Does Section 33 of the Indian Succession Act, 1925 (which governs succession to a male who dies intestate leaving a widow and lineal descendants) apply to property that was purchased in the joint names of his two wives?
Coram: Sanjay Karol; Nongmeikapam Kotiswar Singh
Indian Succession Act, 1925 — ss.33, 35, 38 — Property in Joint Names of Two Wives — Widower’s Rights — Devolution on Grandchildren — Section 33 ISA does not apply to property never solely owned by the deceased male — Held: Where property is purchased in the joint names of a deceased man’s two wives, Section 33 of the Indian Succession Act, 1925 (succession on a male’s intestacy leaving a widow and lineal descendants) has no application to it as though it were his own estate; the property belongs to the wives themselves. (¶10) Sections 35 and 38 govern the actual devolution — Held further: On the predeceased wife’s death, Section 35 gives the husband a widower’s one-third share in her portion, the remaining two-thirds passing to her lineal descendants; the surviving wife’s own share, on her later intestate death without a surviving child, devolves upon her grandchildren under Section 38. Appeal allowed. (¶10, 11, 12)
Does Section 33 of the Indian Succession Act, 1925 (which governs succession to a male who dies intestate leaving a widow and lineal descendants) apply to property that was purchased in the joint names of his two wives?
No. Since the property was never solely the husband’s but stood in the joint names of his two wives, it is their property, not his estate — Section 33 has no application to it as though he had died intestate owning it.
How does the property actually devolve where one of the two joint-owner wives predeceases the husband, and the other wife later dies intestate survived only by grandchildren?
On the first wife’s death, Section 35 (a husband’s widower rights, mirroring a widow’s rights under Section 33) gives the husband a one-third share in her portion, with the remaining two-thirds passing to her own lineal descendants. The second wife’s share, upon her later intestate death without a surviving child but with grandchildren, devolves under Section 38 equally among those grandchildren.
What did the Supreme Court finally decide on the succession dispute between the step-siblings?
The judgments of the Courts below, which had applied Section 33 as though the entire property were the deceased husband’s own intestate estate, were set aside; the appeal was allowed and the property was directed to be divided by tracing each wife’s share separately through Sections 35 and 38.
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The original defendant challenges the judgment dated 7 th February 2020 passed by the High Court of Chhattisgarh at Bilaspur in Second Appeal No.290 of 2009. All the three courts have taken differing views.
The plaintiffs’ suit being Civil Suit No.51-A/2007 before the 5th Civil Judge, Class I, Bilaspur[^1], was decreed and the sale deed executed by the defendants was held to be invalid. The plaintiffs were held entitled for 1/4th share of Khasra No.690/7. Defendants were entitled to vacant possession of a specified portion. The 1st Additional District Judge, Bilaspur[^2] in the First Appeal filed by the original defendants, set aside the decree of the Civil Court and held that both plaintiffs and defendants collectively are entitled to half share each from their respective mother. However, since defendants 1 to 5 had sold their share to Defendant 6 the sale was held to be valid. The High Court, in terms of the impugned judgment, held the two widows of Mattus Anthony[^3] namely Filomina and Shyam Bai, together entitled to 1/3rd of the property, and the children of Filomina (plaintiffs) being the lineal descendants of MA, entitled to 2/3rd of the property.
The plaintiffs and defendants are step siblings and their successive generations. Family chart depicting the same is as follows: Mattus Anthony (died in 1991 Filomina Shyam Bai (Wife (Wife 1; died in 2; died in 2000) 1985) Francina Anjleena John Anthony Shakuntala Robert Anthony Anthony Anthony (son; died in (son) Plantiff 1 (daughter) (daughter) (Wife) Def 1 1985) Plaintiff 2 Plaintiff 3 Deziz Agastin Johnlooks Joseph Anthony Seema Anthony Anthony (son) Anthony (son)
(son) Def 4 (daughter) Def 5 Def 2 Def 3
MA had two wives, Filomina and Shyam Bai. Filomina had three children. Shyam Bai had one son. The parties are undisputedly Christian by faith. There is no dispute regarding the marriages performed by MA and the paternity of the children so begotten. The facts in which the present dispute arises are that MA, in the year 1959, bought the portion of land for consideration of INR 300, in the name of his two wives. Filomina died in 1985. MA died in 1991 and Shyam Bai died in 2000, with her son John Antony predeceasing her in 1985. The defendants, on 19 August 2002, sold their share i.e., half out of the total 1776ft² i.e., 888 ft² to defendant No. 6, namely Marium Anthony, leading the Plaintiffs to file the suit in question. The issues framed by the Civil Court and the corresponding findings, and the points of consideration as also their findings, are encapsulated below:
TRIAL COURT
Issues Findings Mutual partition never took place between them so the suit land is joint ancestral property of the legal Whether the suit land being joint heirs of Late Filomina and legal heirs of Late property of the Plaintiffs and Shyama Bai. Defendant no. 1 to 6, the sale deed Any sale without permission or consent of co-owner 1. dated 19.08.02 executed by the is not legal. Since no consent of plaintiffs was Defendant Nos. 1 to 5 in favour of obtained before sale, the sale deed is not valid and Defendant No. 6 being illegal and void since the said sale deed is illegal, the mutation is not binding on plaintiffs? proceeding carried out in favour of defendant No.6 on the basis of said sale deed by itself is void. Since the sale deed has been found to be illegal, the Can it be proper to grant possession of statutory right of Defendant No. 6 ends. The plaintiffs 2. ‘a, b, c, d’ parts of suit land to the along with the defendant Nos.1 to 5 are entitled to plaintiffs from the Defendant No. 6? vacant possession of the disputed land from Defendant No.6. Whether the plaintiffs are entitled to The plaintiffs neither pleaded nor adduced evidence get permanent injunction restraining showing any interference or intermeddling by 3. defendant No. 6 from interfering with Defendant No.6, hence, not entitled to get permanent ‘a, b, c, d’ part of the suit land? injunction. Whether the plaintiffs are entitled to No fraud by Defendant 6 is proved. Sale deed found 4. get damages of Rs. 500/- from June, illegal, defendant No.6 is free to recover the sale 2003 from Defendant No. 6 and a sum amount from defendant Nos.1 to 5 upon delivering of Rs. 500/- with interest till receipt of vacant possession. vacant possession of the suit land & house? Whether the plaintiffs have affixed • It appears that the plaintiffs have properly valued their 5. court fee after valuing their claim claim and paid the court fee. properly? • Sale deed dated 19.8.2002 & consequent mutation in favour of defendant No.6 are ineffective. Plaintiffs entitled to one-fourth each.
Reliefs & Costs? • Defendant No.6 to hand over vacant possession to Defendant Nos.1 to 5 and free to recover the sale amount from Defendant Nos.1 to 5.
FIRST APPELLATE COURT
Issues Findings Since Maitus Antony purchased the land from his own income in the name of both wives, property not ancestral property of Filomina Bai and Shyama Bai but of their legal heirs. Even though no partition took place between Filomina Bai and Shyama Bai, each was entitled to a half share, as admitted in cross Whether the appellants/ defendants examination by Robert Anthony. 1. No.1 to 5 have half share in the Mere joint recording of names does not by itself disputed house and land bearing entitle plaintiffs to a one-fourth share; rather they are Khasra No.690/17, area 0.04 acre? entitled only to the share of their mother Filomina Bai. Defendants being the legal heirs of John Antony are entitled to Shyama Bai's half share in the disputed property.The defendants sold the property which they could have received in their share, hence the sale deed dated 19.08.2002 cannot be said to be illegal and void. If yes, whether the judgment and 2. decree of the learned Court below The judgment and decree of the trial Court dated dated 29/9/2008 is liable to be set 29.09.2008 is set aside. aside being contrary to law and facts? 6. The High Court posed a question as to whether for the purpose of succession, one or both the wives of MA be considered entitled or not. With reference to a judgement of the High Court of Judicature at Allahabad [Shephali Chatterjee &Ors. v. Kamla Banerjee & Ors[^4]], however, it was concluded that the term widow as it appears in Section 33 ISA, would cover both widows. On the aspect of lineal descendant, it was observed, with reference to a judgment of the Calcutta High Court [In the Goods of Sarah Ezra, deceased[^5]] that a lineal descendant can only be that person who is an offspring of a lawful marriage. Since John Anthony did not qualify as such, only the Plaintiffs were held to be lineal descendants of MA.
Heard. The main ground pressed into service by the appellants is whether the High Court, has correctly applied the provisions of the Indian Succession Act, 1925[^6] to the present dispute. That is the question we must consider.
The provisions referred to, and applied by the High Court, are reproduced below for reference:
“25. Lineal consanguinity. -(1) Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great- grandfather, and so upwards in the direct ascending line; or between a man and his son, grandson, great-grandson and so downwards in the direct descending line. (2) Every generation constitutes a degree, either ascending or descending. (3) A person's father is related to him in the first degree, and so likewise is his son; his grandfather and grandson in the second degree; his great-grandfather and great-grandson in the third degree, and so on.”
“33. Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred. -Where the intestate has left a widow-- (a) if he has also left any lineal descendants, one-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained; (b) save as provided by section 33A, if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained; (c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow.” (emphasis supplied)
For the application of Section 33, as it appears from the plain text of the section, it is essential that the deceased person regarding whom the succession dispute is, is a male. It provides for 3 situations when a male has died intestate and details the portions in which his widow and others, either kindred or descendants lineal in nature, would inherit the property. Each of the scenarios provided therein, need not be explained by us.
The documents appended to the record of this case show that when MA bought the property, he did so, squarely in the names of his 2 wives. There is no dispute on that point. Consequently, the application of Section 33 appears misplaced for the reason that, by its application, what the High Court implies is that the property that was legally bought in the name of the 2 wives of MA is, in fact, in the eyes of the law, his property, whereas that is not the case. Since the property is in the name of the 2 wives of MA, it is their property. Now, since Filomena predeceased MA, by virtue of the application of Section 35 of the ISA, MA would possess the same rights on Filomena’s property as she would have in the scenario that MA would have predeceased her. The section runs thus:
“35. Rights of widower. -A husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate.” The effect thereof would be that with respect to the part of the property in the name of Filomena, one third would rest with MA and the remaining two thirds would go to her successors in interest, that is the Plaintiffs. There would be no application of Section 33 on the entirety of the property since never did the whole property rest in the name of MA. Therefore, there was never the case that MA had died intestate and left behind a widow and further descendants. The property always rested (owned) with the 2 wives of MA. The application of section 33 via section 35, would only limit to the one half of the property that belonged to Filomena.
The one third of Filomena’s property received by MA upon her death, would then devolve upon the children of MA through Filomena and Shyam Bai i.e., the Plaintiffs and John Anthony. In other words, the one-third share would be divided amongst the four children of MA and Shyam Bai. The defendants i.e. the children of John Anthony would receive portions out of only the 1/5th share that fell in the share of John Anthony. The one fifth share received by Shyam Bai through MA, would assimilate into her property and the division of said property upon her death would include this share.
In regard to the half of the property in the name of Shyam Bai, the same would be distributed only amongst her children. There is no concept of joint family property as under Hindu law, applicable here. When property is inherited, it is done so as tenants-in-common. It is not the case that Shyam Bai had willed her portion to anyone. She too had died intestate. Section 38 would govern the scenario. It provides:
“38. Where intestate has left no child, but grandchild or grandchildren. Where the intestate has not left surviving him any child but has left a grandchild or grandchildren and no more remote descendant through a deceased grandchild, the property shall belong to his surviving grandchild if there is one, or shall be equally divided among all his surviving grandchildren.”
Two issues, which we need not deal in detail, are the issue of benami transactions and the validity of the second marriage performed by MA. Both these issues were not pressed by any party.
13.1 Still, in respect of benami¸ we take note of the submission of Mr. Gaurav Agrawal, senior counsel, that Valliammal v. Subramaniam[^7], which holds that, ‘intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami.’ would cover the present scenario where it has been unequivocally stated that MA bought the property for the benefit of his two wives out of love and affection.
13.2 The status of Shyam Bai as wife of and later widow of MA is not in dispute; the parties are ad idem that the dispute was limited to the extent of the inheritance rights of the parties and not the existence of such a right itself.
Having arrived at that conclusion, we hold that the judgment of the Courts below is set aside. All consequences to follow. The appeal is allowed. Pending application(s), if any, shall stand disposed of. No costs. ……………………………………………J. (SANJAY KAROL) ……………………………………………J. (NONGMEIKAPAM KOTISWAR SINGH) New Delhi; July 30, 2026
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