Heir - defined

M/S. Bay Berry Apartments Pvt. ... vs Shobha & Ors on 19 October, 2006

CASE NO.: Appeal (civil)  8814 of 2003

DATE OF JUDGMENT: 19/10/2006

N.Krishnammal vs R. Ekambaram & Ors on 16 April, 1979

Equivalent citations: 1979 AIR 1298, 1979 SCR (3) 700

DATE OF JUDGMENT16/04/1979

Now, the principal question is as to what would be the meaning of expression 'heirs'. We have noticed hereinbefore that whereas in relation to the male descendancy the executor had used the expression 'heirs' in regard to the succession of property after their death, which were bequeathed in their favour; the expression 'children' has been used in relation to the inheritance of the property bequeathed in favour of daughters and daughters in law.

The expressions 'children', 'issue' and 'heirs' would ordinarily be not synonymous but sometimes they may carry the same meaning. All the aforementioned terms have to be given their appropriate meanings.

In P. Ramanatha Aiyar's Advanced Law Lexicon at page 2111, it is stated:

"There is doubtless a technical difference in the meaning of the two words "heirs" and "children", and yet in common speech they are often used as synonymous. The technical distinction between the terms is not to be resorted to in the construction of a will, except in nicely balanced cases.

"When the general term "heirs" is used in a will, it will be construed to mean 'child' or 'children', if the context shows that such was the intent of the testator."

Where the words "children" and "heirs" are used in the same instrument in speaking of the same persons, the word "heirs" will be construed to mean "children"; such usage being treated as sufficient evidence of the intention to use the word "heirs" in the sense of "children."."

Heirs may be lineal or collateral. When we say that the Will was a carefully drafted document, evidently, the guarantor thereof was aware of the fact that as thence some of the sons having not been married; the question as to who would be their heirs was uncertain. If they did not have any issue, the properties in terms of the law as then existing might have passed on to their brothers.

Whether the expression 'heirs' would, thus, mean legal heir, the question specifically came up for consideration in N. Krishnammal vs. R. Ekambaram & sons [(1979) 3 SCR 700 : (1979) 3 SCC 273], wherein it was stated:

"It is well settled that legal terms such as "heirs", used in a Will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator "

Referring to an earlier decision of this Court in Angurbala Mullick vs. Debabrata Mullick [(1951) 2 SCR 1125], this Court opined that the expression 'heirs' cannot normally be limited to issues and it must mean all persons who are entitled to the property held and possessed by/ or under the law of inheritance. In that case, the widow would not have been entitled to inherit the property of her husband as she was not an heir. However, she became an heir by reason of the provisions of the Hindu Succession Act.

Hindu Succession Act was enacted to codify the law relating to intestate succession amongst Hindus. Section 4 of the Act provides that the same has an overriding effect over other laws for the time being in force. Sub-Section (1) of Section 4 reads as under :

"4. Overriding effect of Act. (1) Save as otherwise expressly provided in this Act,

(a) any text, rule or interpretation of Hindu Law or any custom or usages as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."

A bare perusal of the aforementioned provision, thus, clearly goes to show that the Court must take into consideration the purport and object of the Act.