Tapuriah Jain & Associates

PATNA HIGH COURT

RENUKA BALA CHATTERJI VS ASWINI KUMAR GUPTA AND ORS. ON 27 JUNE, 1961

Summarised Judgement (Scroll for Complete Judgement)

Facts of the Case:

The facts leading to the present appeal by defendant No. 1 may be stated in brief as follows: One Srimati Manorama Mazumdar, widow of Girish Chandra Mazumdar, the d on the 25th of April, 1936 leaving three daughters, Srimati Nirmala, Srimati Urmila and Srimati Amala. She had two other daughters, Srimati Framila and Srimati Simla who had predeceased her. Of the three surviving daughters. Srimati Amala the d on the 19th July, 1936 and Srimati Nirmala in 1939. Srimati Urmila is defendant No. 2 in the present suit and her son is defendant No. 3. Defendants 4 and 5 are sons of Nirmala and Bimala, respectively.

Plaintiffs 1 to 5 are sons of Framila deceased. An item of house property consisting of half of the suit house was acquired by Manorama Mazumdar by way of gift from a relation, and she was the absolute owner thereof. Similarly, another item of property, which was the adjoining half of the house already acquired by Manorama, was purchased by Amala out of her earnings, and she constructed a house on that land herself. She was the absolute owner thereof.

On the death of Manorama Mazumdar in April, 1936, Srimati Amala inherited her property as a Stridhan heir. She thus came in possession of both the halves of the suit house, one which had belonged to Manorama and the other belonging to herself. Within three months of the death of the mother. Amala the died in July 1936. Srimati Ninnala and Srimati Urmila, the two other surviving daughters of Manorama inherited Manoratna's property. They also inherited Amala's portion of the house as Her Stridhan heirs. While both the sisters were thus in possession of the suit house, Nirmala died in 1939, in which case Urmila, the present defendant No. 2, succeeded to the suit house and came in possession exclusively.

Observation of Court:

We have to look to the heirs in Class I given In the Schedule of the Act as that is applicable for the heirs of a male Hindu, and in that class persons available for the purpose of the present case will be the sons of the predeceased daughters of Girish Chandra; that is to say, Girish Chandra will be deemed to have the d on 19-7-1956, when Amala the and his predeceased daughters in that case Will be Bimala and Pramila who were dead before 1936. Their sons are the plaintiffs and defendant No. 5. Thus the plaintiffs are covered by Section 1 5 as heirs both of Amala and Manorama in regard to their absolute properties now in the hands of the limited owner, defendant No. 2. The appellant's objection against the maintainability of the present suit by the plaintiffs cannot thus prevail.

Judgement:

The result, therefore, is that none of the contentions of learned counsel for the appellant succeeds. The appeal is therefore, dismissed but, in view of the circumstances of the case and the legal points involved in it, there will be no order for costs in this Court.

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Complete Judgement

PATNA HIGH COURT

RENUKA BALA CHATTERJI VS ASWINI KUMAR GUPTA AND ORS. ON 27 JUNE, 1961

Equivalent citations: AIR 1961 Pat 498

Author: Mahapatra

Bench: K Ahmad, H Mahapatra

JUDGMENT Mahapatra, J.

1. The facts leading to the present appeal by defendant No. 1 may be stated in brief as follows: One Srimati Manorama Mazumdar, widow of Girish Chandra Mazumdar, the d on the 25th of April, 1936 leaving three daughters, Srimati Nirmala, Srimati Urmila and Srimati Amala. She had two other daughters, Srimati Framila and Srimati Simla who had predeceased her. Of the three surviving daughters. Srimati Amala the d on the 19th July, 1936 and Srimati Nirmala in 1939. Srimati Urmila is defendant No. 2 in the present suit and her son is defendant No. 3. Defendants 4 and 5 are sons of Nirmala and Bimala, respectively. Plaintiffs 1 to 5 are sons of Framila deceased. An item of house property consisting of half of the suit house was acquired by Manorama Mazumdar by way of gift from a relation, and she was the absolute owner thereof. Similarly, another item of property, which was the adjoining half of the house already acquired by Manorama, was purchased by Amala out of her earnings, and she constructed a house on that land herself. She was the absolute owner thereof.

2. On the death of Manorama Mazumdar in April, 1936, Srimati Amala inherited her property as a Stridhan heir. She thus came in possession of both the halves of the suit house, one which had belonged to Manorama and the other belonging to herself. Within three months of the death of the mother. Amala the died in July 1936. Srimati Ninnala and Srimati Urmila, the two other surviving daughters of Manorama inherited Manoratna's property. They also inherited Amala's portion of the house as Her Stridhan heirs. While both the sisters were thus in possession of the suit house, Nirmala died in 1939, in which case Urmila, the present defendant No. 2, succeeded to the suit house and came in possession exclusively. She had no doubt a limited interest in the suit property as a limited owner. On the 23rd of November, 1942, however, she executed and registered a deed of sale in favour of defendant No. 1 in respect of the whole house which stands on holding No. 292 of the Giridih Municipality, for Rs. 600/- only. The present suit was instituted by the plaintiffs, claiming as reversioners, to challenge that alienation, on the ground that it was without legal necessity. They asserted that they along with defendants 3 to 5 were the next reversioners to the estates of Manorama and Amala.

3. The trial court decreed the suit and granted a declaration that the impugned transfer was without legal necessity and was not binding against the plaintiffs. It, however, held that as Srimati Urmila, defendant No. 2, was still alive, the transfer would enure till heri death, and the purchaser, defendant No. 1, would be entitled to remain in possession till that time. Against this the present appeal was preferred by defendant No. 1 in this court.

4. When it came for hearing the following contentions were raised on behalf of the appellant: (1) Manorama Mazumdar and Amala Mazumdar were Brahmos and were to be governed by the Indian Succession Act and not by Dayabhag School, for purpose of succession to their estates. (2) Under the provisions of the Hindu Succession Act, 1956, the plaintiffs had no locus standi as reversioners to challenge the alienation as Srimati Urmila, defendant No. 2, became an absolute owner after that Act came into force, and her transferee, defendant No. 1 would be deemed to have taken such absolute title by his purchase. (3) Even if Srimati Urmila did not acquire absolute title and was a limited owner, on her death the heirs, who would succeed to the estates of Manorama and Amala, would be the heirs according to the Hindu Succession Act, 1956. In that case the plaintiffs would not be such heirs (reversionary heirs).

This court on a consideration of the evidence came to the conclusion that both Manorama Mazumdar and Amala Mazumdar belonged to the Dayabhag School of Hindu law and Manorama and her daughters were married according to the Hindu form and not under the Special Marriage Act, though they were Brahmos. It was further held that Srimati Urmila, (defendant No. 2) was a limited owner in respect of the property in dispute, and the benefits of absolute ownership as provided under Section 14 of the Hindu Succession Act, 1956, were not available to her as she had effected a transfer in favour of defendant No. 1, much before that Act came into force. That transfer was also found to have been without any legal necessity. In all these findings there was a complete agreement with the trial court.

5. In elaboration of the argument that on the death of the limited owner, (defendant No. 2), the next heirs of Manorama and Amala would have to be determined according to the Hindu Succession Act, it was pointed out that the only sons of those daughters of Manorama who had predeceased their father, Girish Chandra Mazumdar, would be entitled to the suit properties. There was nothing on record then to show when exactly Srimati Bimala and Srimati Pramila had the d. Their father, Girisn Chandra Mazumdar, was dead in 1913. It was known that Srimati Nirmala had the d in 1939, but as it was necessary to know the year of death of Bimala and Pramila, with a view to finding out it the plaintiffs would come within the category of sons of predeceased daughter, the case was remanded to the trial court, by the judgment of this court dated the 4th December, 1958.

It has now been found by the learned Subordinate Judge, Hazaribagh, that Girish Chandra Mazumdar, husband of Manorama Mazumdar and father of Bimala and Pramila the d in 1913; before that Bimala was dead. Pramila, however, the d before Mauorama's death but after 1913. Thus the only daughter, who can be said to have actually predeceased Girish Chandra Mazumdar, was Bimala whose son is defendant No. 5. The appeal came tor further hearing after that finding was transmitted to this court.

6. Certain facts and position of law are beyond dispute. Manorama and Amala were absolute owners in respect of the properties they owned before their death. On Manorama's death Srimati Amala, being the only maiden daughter, was entitled to inherit as a limited owner, the estate of Manorama Mazumdar and she did so. On her death, that is Amala's, the next Stridhan heirs of Manorama were the two surviving . daughters Nirmala and Urmila, and as limited owners both of them Were entitled to and came in possession of Manorama's property. On Nirmala's death, Urmila, defendant No. 2, became entitled to and retained possession of that property. So far as Amala's property was concerned, on her death in July 1936, her property, being the Stridhan property of a maiden, was to pass in absence of any uterine brother, mother or father, to her father's heir in order of propinquity, that is to say, in the present case, to the daughters of Girish Chandra Mazumdar according to the rule of Succession under the Dayabhag School of Hindu Law. They Were no other than Nirmala and Urmila. On Nirmala's death, the other surviving (Urmila, defendant No. 2) was the only Stridhan heir of Amala's property.

Thus, in the hands of defendant No. 2, both the properties of Manorama and Amala remained since 1939 and her rights were no better than that of a limited owner. While it was so, the impugned transfer was made on the 23rd of November, 1942 by her in favour of defendant No. 1. The next reversionary heirs of Amala in respect of her maiden Stridhan property would be, according to the Hindu law, the sons of the daughters of her father, who in this case are the plaintiffs and defendants 3, 4 and 5. Manorama's property belonged to the category of Ayautaka Stridhan as it came to her as a gift from a relation. The heirs to that property would be in the following order: (1) sons and maiden daughters, (2) married daughters, (3) sons' sons. (4) daughters' sons and so on. Amala came in the first group and after her, the defendant No. 2 in the second group and after her, will come the plaintiffs and defendants 3 to 5 as belonging to the fourth group. Thus, according to the rules of succession to the Stridhan properties as prevalent in the Dayabhag School of Hindu Law, the plain- tiffs and defendants 3, 4 and 5 are undisputedly the next reversioners in regard to the Stridhan properties left by Manorama and Amala.

7. The point that was stressed on behalf of the appellant was that though Urmila, (defendant No. 2), could not acquire the benefits of an absolute owner under the provisions of Section 14 of the Act, as she had already made an absolute transfer in favour of defendant No. 1 prior to the coming of the Act, yet, on her death, those who will succeed to the suit property will be governed by Section 15 of the Act. In other words, the argument is, whether Urmila (defendant No. 2) is or is not an absolute owner will be immaterial. Section 15 provides for a devolution of the property of a female Hindu dying intestate. The defendant No, 2 is still alive and her death will come after the Act came into force, and during its continuance, the property in her hands will be on her death, that of a female Hindu dying intestate, and, therefore, it shall devolve upon the class of persons set out in section 15 read with Section 16. A "female Hindu" mentioned in Section 15-according to the contention, will include a female Hindu limited owner.

There is no doubt that the Act is applicable to all deaths occurring after the commencement of the Act of all female Hindus having properties as full owners. The question in controversy is whether it would also be applicable to a female Hindu having property as limited owner. Learned counsel's reasons' are that there is nothing in Section 15 to indicate that any particular kind of property in possession of a female Hindu was to be excluded from the operation of the Act, and, therefore, all kinds of properties that are held by a female Hindu must be subject to the rule of devolution prescribed in the Act. He referred to Sections 6 and 7 to show that the Parliament, wherever they wanted to do so, specifically provided for the exclusion of particular types of properties or persons from the operation of the Act. If they wanted to keep out the female Hindu limited owners and their properties out of the ambit of the Act, they would have either in Section 15 or elsewhere prescribed that.

This contention has some seeming force though devoid of real substance. Sections 6 and 7 deal with some kind of interest in the property, in one case, of Mitakshara coparcenary, and in the other, of some other different kinds. Section 8 or 15 deals with the property actually held by a male or female Hindu. Section 8, which lays down the general rule of succession in the case of a male Hindu, does not contain any words to indicate that the general rules were subject to the exceptions provided under Sections 6 and 7. The reason is obvious. That section deals with the property of a male Hindu which is treated as different from an interest in a Mitakshara coparcenary or the like; otherwise Sections 6 and 7 on one hand, and Section 8 on the other, will present some conflict,

8. The appellant's contention cannot prevail also for another reason. "A female Hindu dying intestate" in Section 15 cannot but indicate that that section deals with the property of a female Hindu which is capable of being disposed of by will or other testamentary disposition but not disposed of that way and held by a female Hindu at the time of her death. The property held by a female Hindu as a limited owner is certainly not capable of a testamentary disposition and she cannot be treated to have died intestate in that respect, unless limited ownership matures to absolute ownership within the meaning of Section 14 of the Act.

9. Section 15, coming in the wake of Section 14, makes it abundantly clear that the Legislature first provided for converting all properties possessed by a female Hindu, whether acquired before or after the commencement of the Act, into that of full ownership. That section intended to wipe out all the limited ownership of female Hindus. The words: ".....shall be held by her as full owner thereof and not as a limited owner" are clear proof of that. Different kinds of properties acquired by and in possession of a female Hindu have been mentioned in the explanation given in that section, and the properties acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil court or under an award have been left outside the scope of that section under Sub-clause (2), which indicates that limited ownership if any of a female' Hindu was left to be intact in respect of such properties. Once one kind of limited ownership was left surviving, under Section 14, the following section (Section 15) could not have been intended to include the same for purposes of succession. If it were so, then there was no meaning in retaining the limited ownership. As long as a limited owner is alive, and as far as she herself is concerned, there is no difference between the properties of absolute and limited ownership.

The position becomes different only on the death of the limited owner, as the heirs to succeed to the property thereof will vary; in case of limited ownership, the next heirs of the last full owner will come, but in case of an absolute ownership, the heirs of the dying female Hindu will inherit the property. Reading Sections 14 and 15 together leaves no doubt that Section 15, where the general rules of succession, to properties of a female Hindu dying intestate are provided, cannot apply to properties of limited ownership. "The restricted estate" of a female Hindu saved by Section 14 is not invaded upon under Section 15 of the Act. It is true, that in the present case, the limited ownership of defendant No 2 about the suit property does not come within the categories of Sub-clause (2) of Section 14, but that is immaterial. It is not and cannot be contended that Section 15 excludes only one kind of limited ownership properties and governs other kinds. There is nothing in that section to justify such a contention; all kinds of limited ownership are either included in or excluded from that Section. By a comparison of Sub-section (2) of Section 14 with that of Section 15, I have tried to show that the latter section cannot govern at least that kind of "restricted estate" of a female Hindu described in the former section. That leads to the conclusion that no kind of limited ownership whatsoever can be brought under application of Section 15.

10. It was contended that the preamble of the Act states that it is an Act to amend and codify the law relating to intestate succession among Hindus which can only mean that all kinds of intestate successions are included within the purview of the Act. A word of general import like "codify" in the preamble cannot be taken to necessarily include all possible situations that may arise on the death of a Hindu in regard to the succession to the properties held by him or her. Preamble, at the most, may indicate in a general way the content and colour of an enactment but it cannot override in order to enlarge or restrict the enacting provision in the Act. The language of the enactment portion will determine the meaning of the provision, particularly if that language is in no way ambiguous.

Learned counsel referred, in support of his contention, to a case reported in ILR 23 Cal 563, (PC), Norendra Nath Sircar v. Kamalbasini Dasi. There, the matter in dispute was the interpretation of a clause in a will left by a Hindu father who had stated that his three sons shall be entitled to enjoy all the moveable and immoveable properties left by him equally; but anyone of the sons dying sonless, the surviving sons shall be entitled to all the properties equally. On the death of the testator all the three sons were alive and the properties devolved on them, but sometime after, the eldest one the d leaving no son.

A dispute arose as to whether the two surviving sons of the testator Would take the properties to the exclusion of the widow of the eldest son in respect of the share that he possessed after the testator's death. The trial court held in that case that the entire property was to go to the two surviving sons. In appeal, the High Court reversed that decision. Their Lordships of the Judicial Committee agreed with the view of the High Court, and while doing so, they referred to the dictum laid down by Lord Herschell in the Bank of England v. Vagliano Bros., 1891 AC 107. It was in the following terms:

"I think, the proper course is in the first instance to examine the language of the Statute and 'to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law and not to start with enquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a Statute intended to embody in a code a particular branch of the law is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions."

Section 111 of the Succession Act, 1865, came for interpretation in that case with a view to finding out if under that provision the legacy bequeathed by the father was subject to the happening of the uncertain event, mentioned in the will, after the death of the testator. On a reading of the section itself, it was found that the Legislature had made it clear that unless the uncertain event mentioned in the will, namely, the death of any son leaving no male issue happened before the testator's death the legacy dependent upon that will not fructify. The bequeathed fund will be payable or distributable as the conditions may be at the time of the testator's death.

It does not appear from this decision that words of general import used in the preamble will control or expand the meaning of the enacting- provisions. On the other hand, what was insisted upon in that case was that the language of the statute is to be examined in the first instance and its natural meaning uninfluenced by any other considerations will govern its application. Learned counsel, therefore, cannot derive any help from this case to support his contention.

11. He also referred to the case of Anna-goucta Nathgouda v. Court of Wards, Satara, AIR 1952 SC 60. There the question arose whether the provisions of Act 2 of 1929, the Hindu law or Inheritance Amendment Act, could be invoked to determine the heirs of a Hindu female in respect of her Stridhan property. The preamble stated the object of that Act to be to alter the order, in which heirs of a Hindu male dying intestate were entitled to succeed to his estate. On a consideration of Section 1 Sub-clause (2) of that Act which specifically laid clown that the Act applied only to persons who, prior to the passing of this Act, would have been subject to the law of Mitakshara in respect of the provisions thereunder enacted, and it applied to such persons in respect only of the property of males not held in coparcenary and not disposed of by will. Their Lordships held that the scope of that Act was limited and it governed succession only to the separate property of a male Hindu who the d intestate. It did not alter the law as regards devolution of any other kind of property owned by a Hindu male and did not purport to regulate succession to the property of a Hindu female at all.

In that case the preamble was more general than Section 1 inasmuch as it did not exclude the coparcenary property as was done in Section 1 of that Act. With reference to the enacting provision under Section. 1, the otherwise general import as revealed by the preamble was curtailed by that decision. In my view, therefore, there is no justification for contention of the appellant that in the instant case the preamble containing the word "codify" will any way expand the application of Section 15 of the Act to things other than property with absolute ownership. Thus the heirs of Srimati Urmila (defendant No. 2) have no locus standi to succeed to the suit properties on her death, as the next heirs of Manorama and Amala.

12. This takes us to the next argument of learned counsel, who urged that Section 1 5 of the Act again has to be looked into to discover such heirs. In the first place, his contention is that Manorama's heirs, after Urmila, will be, according to Section 15 Sub- clause (b), the heirs of her husband Girish Chandra. They will be in pursuance of the provisions under Section 8, which in the present case will mean sons of a predeceased daughter. On the findings of the trial court after remand, defendant No. 5 alone will be such a person. There is more than one fallacy in this contention. If Section 1 5 is held as applicable to trace the heirs of Manorama in the present case, Sub-clause (a) of Sub-section (1) of that section will be attracted. It provides that firstly the property shall devolve on the sons and daughters (including the children Of any predeceased son or daughter) and the husband.

After Urmila's death, the only persons that are available under this provision will be the children of the predeceased daughters of Manorama; they would be the plaintiffs and defendant No. 5 because their mothers Prarqila and Bimala predeceased Manorama. As for Amala's property, it was contended that according to Section 1 5, her heirs in the present case will come under Section 1 5 Sub-section (1) Sub-clause (d), that is, the heirs of Amala's father Girish Chandra. Section 16, Rule 3 provides that the devolution of the property of the intestate (in this case Amala) on the heirs referred to in Clause (d) of Sub-section (1) of Section 1 5 shall be in the same order and according to the same rules as will apply if the property had been the father's (in the present case Girish Chandra Mazumdar), and such person had the d intestate in respect (thereof immediately after the intestate's (Amala's) death. This would mean that Girish Chandra will be deemed to have the d immediately after Amala's death in 1936 and his heirs would be those persons with reference to that time of death.

13. But the real objection against the appellant's contention is that section Section 1 5 has no application to the present case. Both Sections 8 and 15 are provided to govern the succession in the case of male and female Hindus, who the intestate subsequent to the commencement of the Act. The language employed therein shows that clearly. In particular, the words "shall devolve" plainly indicate that those two sections are prospective in their operation. They would apply to the death of a Hindu intestate and consequent devolution of his or her property will take place after the commencement of the Act. Previous to the Hindu Succession Act, the Stridhan property varied according as the woman possessing the same was married or not, and also according to the form of her marriage. It varied also according to the source from which he Stridhan property came to the hands of the woman. The modes of devolution of that property, on the death of the Stridhan owner, were different according to the different schools of Hindu law. This- diversity has been abolished by Section 15 of the Act, which lays down a definite and uniform rule of succession to the property of a female Hindu, irrespective of her marriage, source of the property and the particular school of Hindu law by which she is governed.

It is well known that there is no vacuum in succession to a property. Properties of female Hindus must have devolved upon one class or other heirs on their death, that occurred previous to 1956, according to the Hindu Law then prevailing. It cannot be suggested that those devolutions would undergo an alteration on the new Hindu Succession Act coming into force. Property already vested cannot be divested by introduction of a new enactment. No doubt, a Legislature is competent to give retrospective effect to an enactment, but that must be by the language used in that (sic). Every Act is prima facie prospective in its operation, and unless the language used by the Legislature is clear and unequivocal, retrospective operation cannot be inferred. This proposition was clearly laid down in the case of Gardner v. Lucas, (1878) 3 AC 582. Lindlay L. J, expressed the same view in Lauri v. Renad, (1892) 3 Ch. 402: 61 LJ Ch. 580. There is nothing in Section 1 5 to indicate that a retrospective application of that provision was intended by the Legislature. On the other hand, the words "shall devolve" point to the application of the provision to deaths that may occur after the Act.

14. The argument of learned Counsel is that on the death of Urmila (defendant No. 2) the succession will open and Manorama and Amala would be deemed to have the d then, in which case their heirs will have to be found out to take the succession according to the law then prevailing. Both those ladies, Manorama and Amala, would be taken to have the intestate at that point of time, and, as such, Section 15 of the Act will come into place. In other words, a fictional death will be supposed to attract the new rule of succession. This contention is not at all warranted by the language of the section. Wherever a legal fiction was sought to be introduced to work out the succession the Legislature provided for that in clear terms in this Act. Rule 3 under Section 1 6 is an instance of that. There is no justification to import such a deeming clause to S, 15 in absence of any provision for the same.

15. The next contention is that without importing any fictional death of the last full owner to a later time as when the limited owner the s, the next heirs of the last full owner will have to be found out with reference to the law of succession as would hold ground at the time when the succession, opens on the death of the limited owner. There is no dispute that a limited owner succeeds to the estate of the last full owner as an heir. The only limitation in her case is that she does not take it absolutely so as to pass it on her death, to her own heirs. But for this restriction, he is an owner and an heir to the deceased. Succession always opens on the death of the possessor of an estate or property. In the case of death of a limited owner, succession no doubt opens in respect of the property held by her, and in that case, not the heirs of the limited owner but the next heirs of the last full owner would take the property. The position is. the same whether the last full owner was a male or a female Hindu.

The very idea, that the "next" heir of a last full owner living at the time of death of the limited owner will have the preferential right to succeed to the estate, indicates that one of the heirs of the last full owner had already taken the inheritance, and that heir was no other than the limited owner. The line of heirs of the last full owner is, therefore, to be one in which the limited owner was an heir in priority, and this cannot but be with reference to the time when the limited owner heir succeeded, that is, the time of death of the last full owner. In that view, the line of succession under the prevalent law in 1936 when Manorama and Amala the d will be relevant for tracing the "next" heir to succeed to their estates on the death of Urmila (defendant No. 2).

16. Learned counsel suggested that Section 15 of the Hindu Succession Act, 1956, has altered the old Hindu Law of succession of female Hindus, and that would be applicable to the present case when the succession opens after 1956, although the death of the last full owners (Manorama and Amala) took place long before the Act. He referred to the Hindu Law of Inheritance (Amendment) Act, 1929, which was enacted to alter the order in which certain heirs of a Hindu male dying intestate were entitled to succeed to his estate. Under that Act, three female heirs of a male Hindu were placed higher in the rank in the order of succession than a particular male heir. The order of succession under the old Hindu Law was not replaced except the above change in ranking. That change was, no doubt, held applicable to a case where the heirs of a last full male owner were to succeed after the death of a limited owner which occurred after 1929, that is, after the Amendment Act came into force.

Learned counsel referred to the case of Duni Chand v. Mt. Anar Kali, AIR 1946 PC 173. There a Hindu male had the d intestate in 1922 and was succeeded by his widow who the d in July 1936. On her death, as she was a limited owner, having a widow's estate, the succession to the estate opened out. As the opening of succession was after the Hindu Inheritance (Amendment) Act had come into force, it was (held that the nearest reversionens . would be according to the change in ranking introduced by the amending Act. The principle decided in that case comes to this. When the inheritance of a full owner's estate opens to the reversioners on the death of a limited owner, the nearest heir among those reversionerg would be according to the order of succession prevailing at the time of I he death of the limited owner. The view that was taken by the Judicial Committee in Moni Ram Kolita v. Kery Kolitany, 7 Ind App 115 (PC) to the effect that the succession does not open to the heirs of the husband until the termination of the widow's estate, and upon this termination, tile property descends to those who would have been the heirs of the husband if he had lived up to and the d at the moment of her death was reiterated in that decision. A great deal of stress was laid by learned counsel upon that view, and on that basis, he urged that, in the present case, the property will descend to those who would have been heirs of Manorama and Amala if they (Manorama and Amala) had lived up to and the d when Urmila (defendant No. 2) dies. Apparently, there is some force in this contention, but when properly analysed, it would reveal the inherent fallacy in it. The contention assumes, and in my view, wrongly so, that the Hindu Succession Act, 1956, and the Hindu Law of Inheritance (Amendment) Act, 1929, are enactments of the same nature and introduced alteration of the same kind in the matter of succeseion among the Hindus.

17. Before the 1929 Amendment Act, the law of succession in Mitakshara School of Hindu Law was that the heirs were divided into three classes: Sapindas, Samanodakas and Baridhus, and the first class was to succeed before the second, and the second before the third. The order of succession in each one of those three classes was also enumerated. By the amending Act, four persons (son's daughter, daughter's daughter, sister and sisters son) were introduced, for the first time to the class of Sapindas, and their ranks, in the order of succession belonging to that class, were also specified. The amending Act did not indicate at all, as obviously it was not called for, on which kind of deaths, the changed order of succession will apply. That was already in, the old Hindu law of Succession which, in other words, was that in all cases where and when inheritance to a Hindu male would arise, the heirs would be determined in order of priority out of the three classes noted above. That is why, when the inheritance to the estate of a deceased male Hindu arose, not at the time of his death, but after the/termination of a widow's estate later on, the Judicial Committee upheld the application of the changed order under the amending Act.

An argument was advanced before their Lordships that the words "dying intestate" in the preamble of the amending Act indicated a future tense about the application of the Act, and, as such, the Act would govern only that class of succession which would open on the death of a male full owner that would occur subsequent to the commencement of the amending Act. That was rejected with an observation that "dying intestate" described the status of the deceased meaning there-by "in the case of intestacy of a Hindu male". The preamble as a whole read as follows:

"Whereas it is expedient to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate: It is hereby enacted as follows":

That was taken not to indicate any future tense or application. Their Lordships, however, clearly held in that case that, that interpretation of the preamble was not to give a retrospective effect to the provisions of the Act, and the material point of time, for the application of that Act, was the date when the succession opened, namely, the death of the widow, and not the death of the full owner. I should point out here that the effect of the use of the words "shall be entitled to rank" in the S. 2 of that Act do not appear to have come for consideration of their Lordships.

However, what emerges from that decision is that, in their Lordships view the provisions of the amending Act, are applicable with reference to the time when succession opens after that Act came into force. That may be when the limited owner the s or when the full owner the s as the case may be. In either case the incident must be subsequent to the Act. Succession opening prior to the Act, on the death of the full owner, remained out of the operation of that Act as it was not retrospective. In the case reported in AIR 1952 SC 60, the amending Act was also held inapplicable in regard to inheritance to a female Hindu's Stridhan property. Thus it is clear that the general and fundamental principles underlying the Mitakshara Law of succession were not affected by the amending Act of 1929.

18. The Hindu Succession Act, 1956, is entirely of a different character. It replaces the general rules of succession of the Hindus dying intestate in respect of all matters, of which provision has been made ia the Act. Those matters, of which there is no provision in the Act, are still to be governed by the old Hindu law. Section 4 makes that clear. Either of the Sections 8 and 15 provides an order in which there shall be devolution of property of a Hindu dying intestate. Chapter I of the Act deals with preliminary matters, such as, the application of the Act and definitions. Chapter II deals with intestate succession and it contains Sections 5 to 29. Chapter III provides for testamentary succession and Chapter IV gives the schedule of different class.es of heirs. In Section 8, the main part reads as follows: "Property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter". The words "shall devolve" unmistakably point out application of the Act to incidence of devolution of property that will be caused after the coming into effect of the Act, and that devolution will be on account of the death of the male Hindu in respect of his property (including the undivided interest of a Hindu Mitakshara coparcenary), Keeping in view the interpretation given by the Judicial Committee to the words "dying intestate", the section, re-read in that light, may be put like this: The property of a male Hindu "in the case of his intestacy" shall devolve according to the provisions of this chapter. The devolution oi property, spoken of in that section, refers to the first devolution on account of actual death; and to such devolution that would occur after the commencement of the Act. The other kind of devolution of property of a male Hindu, which happens on succession being again opened on the death of a limited owner, who inherited the property immediately on the actual death of the limited owner, is not envisaged by the section. The circumstances and incidence, relating to the existence of limited owners or restricted estates, have been kept out of the ambit of the Act. In that connection I have already referred to Sub-clause (2) of Section 1 4. Reading the Sections 8, 14, 15 and 16 together, I am left with the conclusion that succession of property oi a male or female Hindu on his or her actual death has been reoriented by this Act. Other kinds of succession about such property relating to the intervention by a limited owner are left to be governed by the Old Hindu Law.

It may be suggested that two different orders of succession to the estate of a full owner will ap-

pear rather unreasonable and the Legislature might not have intended that. This suggestion may becompletely answered by pointing to the survival ot restricted estates under Section 1 4, Sub-clause (2), although the mandatory provision of Sub-clause (1) of Section 1 4 is to confer absolute ownership on the female limited owners in respect of properties possessed by them. Even properties owned and possessed by a female Hindu before the Act, in which she could have acquired full ownership, have been held out of the application of Section 1 4, for the reason that they were transferred by such female Hindus in favour of others before the Act came into force. Those properties are to be treated as of a limited owner and are to be governed, for the purpose of succession to them, not by the present Act, but by the old Hindu Law. These two orders or succession for the properties in the hands of aj female Hindu, according as she is a full or limited1 owner, are not ruled out by the enacting provisions of the Act.

Similarly, the interpretation of Section 8, about its application to only devolution on the actual death of a male Hindu, resulting in two orders of succession, according as the succession opens on the deatn of the full owner or a limited owner, will not be, in any way, inconsistent with the scheme of the Act, so as to rule out that construction. Any other Interpretation, such as, making Section 8 applicable to all cases of opening of succession (either on the death of the full owner or limited owner) would bring a strain on the language of the section, and would nullify the plain import and meaning of the word "shall devolve". If the death of a full owner occurs after the 17th June, 1956, there is no doubt that the inheritance will be governed by the Act, and there will be no room for intervention by any limited heir. The difference in succession arises only in cases where the death occurred prior, to the 17th June, 1956, and the first devolution of the estate took place at that time according to the old Hindu Law. If that devolved upon a limited owner, on whose death, the property would devolve once again on the next heir of that full owner according to the old Hindu Law.

I would refer here to the Full Bench decision of this Court in Harak Singh v. Kailash Singh, AIR 1958 Pat 581, There, the plaintiffs asked for a declaration that a deed of gift of the year 1949 executed by defendant No. 2, widow of one Rambarat Singh, in favour of defendant No. 1 was not valid beyond the lifetime of the widow and was not binding on the plaintiffs who were the next reversioners to the estate of Rambarat Singh. Defendant No. 1, the donee, was the sister's son of Rambarat. The plaintiffs were the sons of the separated brother of the father of Rambarat. (I have found that from the trial court judgment). The suit was contested by the donee, defendant No, 1, on the ground that the plaintiffs were not the next reversioners, but he (defendant No. 1) himself was so, being the sister's son of the last full owner. The trial Court dismissed the suit on holding that defendant No, 1 was the preferential reversionary heir, and the suit was not maintainable by the plaintiffs. In appeal by the plaintiffs, the respondent (the defendants including the donee)1: contended that after the passing of the Hindu Suc-

cession Act, 1956, and in view of the provisions of Section 14 of that Act, the limited, estate of the Hindu widow had become absolute even in the hands of

-the alienee, and so the plaintiff could not get a declaration that the deed of gift by the widow executed in 1949 was not valid beyond her lifetime.

When the matter came before the Full Bench that contention was overruled, for the reason that Section 14 had no application to a case where a Hindu widow (a limited owner) had made a complete transfer of the property. It was held that in such a case a suit by a reversioner, for a declaration that a certain transfer made by the widow before 'the Act came into force was invalid and not binding upon the reversioner, was maintainable. The question that was reframed for the consideration of the Full Bench is very significant and reads as follows;

"Whether the right of an heir of the last male holder to repudiate an absolute alienation of property by way of sale or gift made by a female Hindu without legal necessity before the coming into force of the Hindu Succession Act of 1956 (Act XXX of 1956) and his claim of possession thereof from the transferee on the death of the female Hindu or on the extinction of the woman's estate otherwise, has been adversely affected and taken away by Section 14 of Act XXX of 1956?"

The heirs of the last male holder, who brought that suit, were the heirs according to the old Hindu Law and not according to the Hindu Succession Act. The death of the last full owner had occurred before 1956 and the limited owner, his widow, was still alive when the suit was instituted, and the succession to the estate of the last full owner was to open on her death, that is, after 1956. In that context their Lordships of the Full Bench held that the right of the plaintiffs in that case to repudiate the alienation of the property by the widow for no legal necessity was not affected by the Act, and the claim for possession of the plaintiffs from the transferee, after the death of the widow or on the extinction of the widow's estate otherwise, was also not affected or taken away by Section 1 4.

From this it is clear that their Lordships held not only that Section 1 4 did not confer any absolute right on a female Hindu in regard to the property which was in her hands but had been transferred before the Act came into force, but also that the heirs of the full owner who would succeed to the estate, on the death of the widow, would be those according to the class of heirs prescribed under the old Hindu Law; otherwise the maintainability of the suit by the plaintiffs, who were heirs of that kind, and not heirs in any class specified in the Schedule of 1956 Act, would not have been upheld, in spite of the fact that new line of succession had come into force by the new Act by that time. My Lord, the Chief Justice, in delivering the Judgment in that case, at one place observed:

"It is also established that such an alienation by the widow can be avoided only at the instance of a co-widow, or at the instance of reversioners, or at the instance of those who are entitled to the property by escheat. Such an alienation will be legally valid as against third parties, and the transac-

tion cannot be challenged by such third parties on the ground of legal necessity.....

In other words, the transaction by a Hindu widow which is unsupported by legal necessity is not valid but is voidable at the instance of a certain class of persons, namely, those who are entitled to the property by survivorship, or in inheritance, or escheat".

Thus the persons who could challenge the. alienation and who were entitled to succeed to the estate on the death of the limited owner were held, to be according to the old law. In other words, succession that opened on the death of a limited owner to the estate of the last full owner who the d before 1956 was left to be governed by the old law of succession, in spite of the Hindu Succession Act, 1956. This lends great support to the view I have taken about the application of the provisions under Section 8 There is nothing like reversioners under the new Act. The same consideration and meaning is applicable to Section 15 which is in the same terms as Section 8

19. Learned counsel referred to another case: Lateshwar Jha v. Mt. Uma Ojhain^ AIR 1958 Pat 502. The facts there were as follows: One male Hindu had two sons Ramdhari and Bachan. The plaintiff was the grandson of Ramdhari. Defendants 1 to 3 were three sons out of 5. who survived their father Bachan. Defendants 8 and 9 were .the widows of the two deceased sons of Bachan. The Other defendants were sons of defendants 1 and 2. The plaintiff, that is, the grandson of Ramdhari claimed partition of the family properties from the defendants, some of whom compromised with the plaintiff during the suit, but defendants 8 and 9, the widows of Bachan's two sons, contested the suit. Each of them claimed one-tenth share in the properties by virtue of the Hindu Women's Right to Property Act, 1937, and their defence was that their husband had the d in a state of separation from defendants 1 to 3 after the 1937 Act came into force, and, therefore, they were entitled to the respective shales of their husbands in separation of the other defendants, This defence was rejected by the trial court which held that there had been no separation in the family before the suit, and that the death of the husbands took place after the 1937 Act came into force.

On this finding the plaintiffs suit was decreed. An appeal was brought to this Court before a single Judge. During its pendency here defendant No. 9, one of the widows, compromised with the plaintiff; so the only contest in appeal was between the plaintiff and defendant No. 8, the other widow. The learned Judge, who heard the appeal, agreed with the finding of the trial court about the death of the husband of defendant No. 8 being in 1938 after the passing of the Hindu Women's Right to Property Act, and, as such, the widow was entitled to a share representing her husband's share in the property under partition. Then the question arose whether that interest of 'the widow would be taken to have matured to absolute rights within the meaning of Section 14 Clause (1) of the Hindu Succession Act, and his Lordship held that it would. His Lordship considered the contention that was raised on behalf of the plaintiff to the effect that Section 1 4(1) was to come into play only when a Hindu female acquired the interest on the death of her husband after the commencement of the 1956 Act. That contention was overruled for the main reason that Section 1 4(1) was retrospective in the sense that it affected properties whether acquired before or after the commencement of the Act by a female Hindu. That completely disposed of that appeal. But, however, the court thereafter proceeded to consider an alternative argument, which had been advanced on behalf of the widow respondent. It was contended that, even if it was assumed that the husband of the widow had the d before 1937, that is, before the Hindu Women's Right to Property Act came into force, even then, the widow would be entitled to a share representing her husband's share, as an absolute owner, in view of the Hindu Succession Act, as the estate of her husband, who the d intestate, would devolve upon his widow, who was the only heir available according to Section 8(a)read with Class I of the Schedule of the Act.

Against this argument, the other side contend ed that Section 8 was prospective and the rules of suc cession provided thereunder are applicable to the case of properties of male Hindus who the d after the Act and not before. As it appears from the judgment, the only ground advanced in support of that contention was with reference to the words "dying intestate" in that section. Neither the words "shall devolve" nor the Full Bench decision of this Court (AIR 1958 Pat 581) were referred to or con sidered. His Lordship, on a comparison of Section 6 with Section 8 and on account of the omission of the words "after the commencement of this Act" which occur in Section 6, from Section 8, and in view of the inter pretation of the words "dying intestate" given by the Judicial Committee in the case reported in AIR 1946 PC 173, held that Section 8 was applicable to all cases where a male Hindu the s intestate irres pective of the time of his death. With great res pect, I must confess that I am unable to agree with the proposition that has been laid so broadly.

Neither the decision of the Judicial Committee nor the Single Judge decision of the Calcutta High Court in Hiralal Roy v. Kumud Behari Roy, (S) AIR 1957 Calcutta 571 to which, his Lordship also referred, go to that extent.

As I have pointed out earlier, what the Judicial Committee laid down with reference to the Hindu Law of Inheritance (Amendment) Act, 1929, was that the provisions of that Act were applicable when a succession opened after that Act came into force. In the case in AIR 1958 Pat 502 which was for partition, the succession to the widow had opened on the death of her husband and that was long before 1956. Under Section 3 Sub-clause (2) of the Hindu Women's Bight to Property Act, 1937, the widow could get the same interest as her husband had, at the time of his death, in a Hindu Joint family property, provided his death occurred after that Act came into effect. That Act was repealed by the Hindu Succession Act in 1956. Thus the position, as it was till the 1956 Act came to the field, was that the widow could not have any share or interest in the joint family property, or the right to seek a partition, if her husband had the d before 1937, and in the case of a death of that kind, the interest of the husband in the joint family property must have vested in the survivors according to the Mitakshara law of succession. Property once vested like that could never be divested and brought to the widow under a subsequent Act like that of 1956.

Whatever room there may be for an argument in support of the application of Section 8 of the Act to a case of succession opening on, the death of a limited owner subsequent to the Act, there can be no room whatsoever for a contention that this section would have a retrospective application, to divest others in1 whom the property already vested as full owners,: according to the undisputed rule of succession prevailing at the time of such devolution. I am, therefore, constrained to say, with great respect, that it is not possible for me to agree With the view of his Lordship which was stated in very broad terms to the effect that section 8 is retrospective and would apply to all cases of instestacy of a Hindu male without having any reference to the time of death of such a male Hindu, and the property of such a deceased male Hindu would devolve on his heirs mentioned in the Schedule of the Hindu Succession Act, 1956. We have very carefully and with the assistance of learned counsel for both the sides in this appeal, considered the decision of the Judicial Committee, (AIR 1946 PC 173) and the Full Bench decision of this Court (AIR 1958 Pat 581) and the scheme of the Act (Hindu Succession Act, 1956), and have come to the conclusion that Sections 8 and 15 of the Act are not retrospective and they do not govern the devolution of property of a male or female Hindu on his or her death that occurred prior to the 17th June, 1956, when the Act came into force.

The principle laid down in AIR 1946 PC 173 is not applicable to Hindu Succession Act, 1956. The provisions under sections 8 and 15 are prospective and will apply to cases of first devolution on the death of a male or female Hindu that occurs after the Act came into effect. In the present case, Section 15 will have no application, as both Manorama and Amala had the d long before the Act and their property had already devolved upon their heirs, though limited owners. When succession opens on the death of the limited owner, old Hindu Law principles will operate. On the death Of Urmila (defendant No. 2), heirs of Manorama and Amala according to the old law will inherit the properties. Plaintiffs and defendants 3 to 5 are such heirs. They have, however, no vested interest in the estate now. Their right is contingent which may accrue to all or any of them that may be alive at the death of the defendant No. 2 Urmila.

20. Another case was also referred to by the appellant: Smt. Banso v. Charan Singh, AIR 1961 Punj 45. There a male Hindu the d leaving a widow and daughters. The widow made a gift prior to 1956 Act in favour of her married daughters. The suit was instituted by collaterals for a declaration that the gift was inoperative. The Hindu Succession Act came into force during the pendency of the suit. It was held that the widow held a life's estate and the succession, to the estate of the last male holder would open, on the death of the widow (irrespective of the validity or otherwise of the gift) in favour of the daughters. They (the daughters) were the next heirs of the last male holder in view of the order of succession in the 1956 Act. In other words, that case decided that application of Section 8 of the 1956 Act was dependent upon when the succession opened on the death of the limited owner after the Act had come into force and not upon the time of death of the last male holder which preceded the Act. I have already given reasons why this view does not appear to us to be correct.

21. The result, therefore, is that none of the contentions of learned counsel for the appellant succeeds. The appeal is therefore, dismissed but, in view of the circumstances of the case and the legal points involved in it, there will be no order for costs in this Court.

Ahmad, J.

22. I agree.

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