Court:PUNJAB AND HARYANA HIGH COURT
Bench: JUSTICE Madan Mohan Punchhi
AJIT SINGH & ANR. Vs. THE STATE OF PUNJAB On 8 December 1982
Hindu Succession Act, S. 15 — Hindu female dying leaving property gifted by, and not inherited from parents — Husband in the absence of any son or daughter, alone succeeds to such property — Husband retaining such property and appropriating to his own use — No question of criminal breach of trust on his part arises — Even otherwise matter purely of civil nature.
This is a petition for revision against an order of Shri M.S. Chawla, Judicial Magistrate 1st Class, Patti, dated 24-8-1982, whereby he ordered framing of charge against the petitioners (father and son) for criminal breach of trust under section 406, Indian Penal Code.
2. The bare outline of the facts giving rise to his petition are these : —
“Ajit Singh petitioner was married to Satinder Kaur. Kirpal Singh petitioner is his father. At the time of marriage, his father of Satinder Kaur gave her the customary dowry which she carried to his husband’s house on 19-11-1980. About six months after the marriage, Satinder Kaur died. It is a moot point in another judicial proceeding whether the death was natural, homicidal or suicidal. On her death, the articles of the dowry presumptively were in possession of the petitioners. Surjit Singh, father of Satinder Kaur deceased lodged a First Information Report with the police accusing the petitioners for an offence under section 406, Indian Penal Code, complaining that the articles of the dowry under the law of inheritance vested in him and those had dishonestly been misappropriated by the accused petitioners. The learned trial Magistrate, in his impugned order, observed that there was no Class I heir available in accordance with the Hindu Sucession Act and, thus, the articles of the dowry must go to Surjit Singh, the first informant, as these could not be said to have been inherited by Ajit Singh petitioner. Accordingly, on the allegations that these articles were dishonestly misappropriated by the accused persons after the death of Satinder Kaur the learned trial Magistrate took the view that these facts came within the purview of section 406 of the Indian Penal Code.”
3. It seems that the attention of the learned trial Magistrate was not drawn towards section 15 of the Hindu Succession Act which provides for general rules of succession in the case of female Hindus. The said section provides that the property of a female Hindu dying intestate shall devolve according to the rules set out in section 16, firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband. In the absence of the aforesaid category of heirs, the property would then go to the heirs provided in clauses secondly to lastly of sub-section (1) of section 15 of the Hindu Succession Act. The non-obstante clauses in sub-section (2) of section 15 would, in the instant case, be not applicable, for the dowry gifts received by Satinder Kaur were not in the nature of property inherited by her from her father and, thus, the succession would confine only within sub-section (1) of section 15 according to the rules set out in section 16. Rule (1) thereof provides that, among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Now here, in the absence of the sons and daughters, or the children of any predeceased son or daughter of Satinder Kaur, her husband alone was entitled to her estate. This was not a case of searching for heirs of Class I in the Schedule as has been done by the learned trial Magistrate, for that Schedule too has to operate with the aid of Section 8 of the Hindu Succession Act, which provides for general rules of succession in the case of males. The view taken by the learned Magistrate in the regard is obviously faulty and deserves to be set aside.
4. Even otherwise, the matter is purely of a civil nature. Retention of articles in such a situation cannot be attributed any colour of criminality. It is more a civil cause deservedly to be settled in a civil Court. On that score as well, I do not think this to be a case in which a charge should have framed against the petitioners on the projected facts, even if those projected facts were taken to be true.
5. For the view I have taken, the petition merits acceptance and the order of charge is quashed. However, it is made clear that, since the first informant was not a party to these proceedings, nothing said herein with regard to his civil rights be taken to have been settled in his absence. The observations made herein are solely confined to the decision on the question of charge.