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PETITIONER: ERAMMA

       Vs.

RESPONDENT: VERRUPANNA & ORS.

DATE OF JUDGMENT: 18/11/1965

BENCH:

ACT:     Hindu  Succession Act (30 of 1956), ss, 8 and  14(1)--If s. 8 retrospective--scope of s. 14(1)--Possession by  female as trespasser--If title conferred.

HEADNOTE:      On the death of the last male holder of the  properties in  dispute  his  two step mothers  got  possession  of  the properties.  Claiming to be his nearest heirs, respondents 1 and  2  filed  a suit for recovery  of  posses-%ion  of  the properties.   After the High Court had, in appeal, passed  a decree in their favour, the Hindu Succession Act, 1956, came into  force,  and  when  respondents  1  and  2  sought  the execution of the decree in their favour, the appellant  (who was one of the step mothers) filed objections, on the ground that she had been in possession of half the properties since the  death  of  her  husband, and  that  by  virtue  of  the provisions  of  the Act, she had become full  owner  of  the properties in her possession.  The executing court  accepted the  contention and dismissed the execution  petition.   But the appeal to the High Court was allowed on the ground  that the Act did not apply.      In  her appeal to this Court, the  appellant  contended that : (i) under s. 8  of  the Hindu  Succession  Act,  she, being the step mother, was entitled to  inherit the  proper- ties in preference to respondents 1 and 2, and (ii) by virtue of  s.  14 she became the full owner of the  properties  and therefore the respondents.  No. 1 and 2 could not be allowed to proceed with the execution.      HELD : (i) The provisions of s. 8 are not retrospective in  operation and therefore, where a male Hindu died  before the  Act  came into force, that is, when  succession  opened before  the Act, the section will have no application.  [629 F]      (ii) At  the time of the death of  appellant’s  husband the  Hindu Women’s Right to Property Act, 1937 had not  come into  force and so, when the Hindu Succession Act came  into force,  the  appellant  had  no  manner  of  title  to   the properties.    Therefore,  though  the  appellant   was   in possession of properties, that fact alone was not sufficient to attract the operation of s. 14. [629 H; 630 D]      The  object of the section is to extinguish the  estate called "limited estate" or "widow’s estate" in Hindu law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with  all powers  of disposition and to make the estate  heritable  by her  own heirs and not revertible to the heirs of  the  last male  holder.  It does not in any way confer a title on  the female Hindu when she did not in fact possess any vestige of

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title.   The provisions of s. 14(1) cannot be  attracted  in the  case  of  a Hindu female who is in  possession  of  the property  of  the  last  male holder  on  the  date  of  the commencement  of  the  Act, when she is  only  a  trespasser without any right to the property. [630 G-H; 631 B, C] 627

JUDGMENT:       CIVIL APPELLATE JURISDICTION : Civil Appeal No. 742 of 1965.       Appeal from the judgment and decree dated June 9, 1965 of the Mysore High Court in R.A. No. 90 of 1957.        S. P.  Sinha, E. C. Agarwala and P. C. Agarwala,  for the, appellant.        S. V.  Gupte,  Solicitor-General, R. V.  Pillai,  for respondents Nos.  1 and 2.        M.  M. Kshatriya and R. Thiagarajan,  for  respondent No. 3.        The Judgment of the Court was delivered by     Ramaswami,  J. This appeal is brought by  the  Judgment- debtor, Eramma against the judgment and decree dated June 9, 1965  in  R.A. no. 90 of 1957 of the High  Court  of  Mysore setting,  aside the order of the District Judge  of  Raichur dated February 14, 1957 dismissing an execution petition.     The  appellant--Eramma--and the 3rd  respondent-Siddamma were,  at the relevant time, widows of Eran Gowda who also, had  a third wife--Sharnamma.  By the said Sharnamma,  Eran, Gowda had a son called Basanna who died in the year 1347  F. (corresponding  to 1936-37 A.D.) at a time when he  was  the sole  male  holder of the property in  dispute.   After  his death  his  step  mothers  Eramma  and  Siddamma  got   into possession   of  the  properties.   Respondents  1   and   2 thereafter  filed  a  suit in  the  Sadar  Adalat,  Gulbarga claiming  that they, as the nearest heirs of  Basanna,  were entitled  to all the properties left by him and seeking,  to recover possession thereof from his step-mothers--Eramma and Siddamma.   The suit was contested by Eramma on the  ground’ that  she had adopted Sogan Gouda, respondent no. 4  on  the basis of the authority alleged to have been given to her  by her husband Eran Gowda.  It was claimed by Siddamma that she had adopted Sharnappa, respondent no. 5 on the basis of  the authority alleged’ to have been conveyed under a will.   The trial  court rejected the case of Eramma but upheld that  of Siddamma.  On appeal to the High Court, Siddamma’s claim  of adoption  was also negatived.  In the result the High  Court passed a decree in favour of respondents 1 and 2. Eramma and Siddamma  thereafter  applied  to  the  High  Court  for   a certificate  of fitness to appeal to this  Court.   Siddamma was  granted such certificate but the High Court refused  to grant  a certificate to Eramma who filed an  application  in this Court for 628 special leave.  During the pendency of these proceedings the Hindu Succession Act, 1956 came into force with effect  from June  17, 1956.  Respondents 1 and 2 have put to  execution, the  decree  granted  by the High  Court  in  their  favour. Eramma  filed  an objection in the Execution  Court  on  the ground  that  she  had  been  in  possession  of  half   the properties since the death of her husband and the decree was non-executable  in  view  of the  provisions  of  the  Hindu Succession Act, 1956 and that she had now become full  owner of  the properties of which she is in possession.  The  case of  Eramma was accepted by the District Judge,  Raichur  who

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dismissed   the  execution  case  on  February   14,   1957. Respondents  1 and 2 preferred an appeal to the Mysore  High Court  against the order of the District  Judge,  dismissing the  execution  case.  The appeal was allowed  by  the  High Court on the ground that Hindu Succession Act, 1956 was  not applicable  to  the  case and Eramma did  not  acquire  full ownership  under  s.  14(1) of that  Act.   The  High  Court accordingly set aside the order of the District Judge  dated February 14, 1957 dismissing the execution case and restored the  execution  case to the file of the District  Judge  for being dealt with in accordance with law.     On  behalf of the appellant Mr. Sinha contended, in  the first place, that under S. 8 of the Hindu Succession Act the appellant  being the step mother is entitled to inherit  the properties  of Baswan Gouda in preference to  respondents  I and 2. Mr. Sinha conceded that Baswan Gouda died on  October 23,  1936  long before the coming into  operation  of  Hindu Succession   Act.   It  was,  however,  submitted  for   the appellant  that  S.  8  of  the  Hindu  Succession  Act  was retrospective in operation and the appellant must be held to be in possession of the properties in her own right.  In our opinion, the submission of Mr. Sinha is not warranted by the language of s. 8 which is to the following effect:                   "8.  The  property of a male  Hindu  dying               intestate  shall  devolve  according  to   the               provisions of this Chapter :-                    (a)   firstly, upon the heirs, being  the               relatives specified in    class   I   of   the               Schedule;                    (b)   secondly,  if there is no  heir  of               class  1,  then  upon  the  heirs,  being  the               relatives   specified  in  class  II  of   the               Schedule;                    (c)   thirdly, if there is no heir of any               of  the two classes, then upon the agnates  of               the deceased; and                     (d)  lastly, if there is no agnate, then               upon the agnates of the deceased." 629 There is nothing in the language of this section to  suggest that  it  has  retrospective  operation.   The  words   "The property  of  a male Hindu dying intestate"  and  the  words "shall devolve" occurring in the section make it very  clear that  the property whose devolution is provided for by  that section must be the property of a person who dies after  the commencement of the Hindu Succession Act.  Reference may  be made, in this connection, to s. 6 of the Act which states :                   "6.  When  a  male Hindu  dies  after  the               commencement  of this Act, having at the  time               of  his  death  an interest  in  a  Mitakshara               coparcenary  property,  his  interest  in  the               property  shall devolve by  survivorship  upon               the  surviving members of the coparcenary  and               not in accordance with this Act:                    Provided  that if the deceased  had  left               him  surviving a female relative specified  in               class  I  of the Schedule or a  male  relative               specified  in  that class who  claims  through               such  female  relative, the  interest  of  the               deceased   in   the   Mitakshara   coparcenary               property  shall  devolve  by  testamentary  or               intestate succession as the case may be, under               this Act and not by survivorship. It is clear from the express language of the section that it applies  only  to  coparcenary property of  the  male  Hindu

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holder  who dies after the commencement of the Act.   It  is manifest that the language of s. 8 must be construed in  the context  of s. 6 of the Act.  We accordingly hold  that  the provisions  of  s.  8 of the Hindu Succession  Act  are  not retrospective  in  operation  and where a  male  Hindu  died before the Act came into force i.e., where succession opened before the Act, s. 8 of the Act will have no application.      It  was  next contended by the appellant that  she  was admittedly  in  possession  of half the  properties  of  her husband Eran Gowda after he died in 1341 F and by virtue  of s. 14 of the Hindu Succession Act she became the full  owner of the properties and respondents 1 and 2 cannot, therefore, proceed  with the execution case.  We are unable  to  accept this argument as correct.  At the time of Eran Gowda’s death the  Hindu  Women’s Right to Property Act, 1937 (Act  18  of 1937) had not come into force.  It is admitted by Mr.  Sinha that  the  Act was extended to Hyderabad State  with  effect from  February 7, 1953.  It is manifest that at the time  of promulgation of Hindu Succession Act, 1956 the appellant had no manner L3Sup.Cl/66-10 630 of title to properties of Eran Gowda.  Section 14(1) of  the Hindu Succession Act states :                   "14.  (1)  Any  property  possessed  by  a               female Hindu, whether acquired before or after               the commencement of this Act, shall be held by               her as full owner thereof and not as a limited               owner.                    Explanation.-In     this     sub-section,               "property" includes both movable and immovable               property   acquired  by  a  female  Hindu   by               inheritance  or devise, or at a partition,  or               in lieu of maintenance or arrears of  mainten-               ance,  or by gift from any person,  whether  a               relative  or  not,  before, at  or  after  her               marriage, or by her own skill or exertion,  or               by  purchase  or by prescription,  or  in  any               other  manner  whatsoever, and also  any  such               property held by her as stridhana  immediately               before the commencement of this Act." It  is  true that the appellant was in  possession  of  Eran Gowdas’s properties but that fact alone is not sufficient to attract the operation of s. 14.  The property possessed by a female  Hindu,  as contemplated in the section,  is  clearly property  to  which  she has acquired  some  kind  of  title whether before or after the commencement of the Act.  It may be  noticed  that the Explanation to S. 14(1) sets  out  the various  modes  of acquisition of the property by  a  female Hindu  and  indicates  that  the  section  applies  only  to property to which the female Hindu has acquired some kind of title,  however, restricted the nature of her  interest  may be.   The words "as full owner thereof and not as a  limited owner"  as given in the last portion of sub-s. (1) of s.  14 clearly  suggest  that  the legislature  intended  that  the limited  ownership of a Hindu female should be changed  into full  ownership.   In  other  words, s.  14(1)  of  the  Act contemplates  that  a Hindu female( who, in the  absence  of this  provision,  would  have  been  limited  owner  of  the property,  will now become full owner of the same by  virtue of this section.  The object of the section is to extinguish the  estate  called limited estate or  ’widow’s  estate’  in Hindu  Law and to make a Hindu woman, who under the old  law would  have been only a limited owner, a full owner  of  the property  with  all powers of disposition and  to  make  the

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estate heritable by her own heirs and not revertible to  the heirs  of the last male holder.  The Explanation  to  sub-s. (1) of s. 14 defines the word ’property’ as including  "both movable and immovable property acquired by a female Hindu by inheritance  or devise........... Sub-section (2) of  s.  14 also refers to acquisition of property.  It is true that the Explanation has not given 631 any  exhaustive connotation of the word ’property’  but  the word  ’acquired’ used in the Explanation and also in  sub-s. (2)  of  s.  14 clearly indicates that  the  object  of  the section  is  to  make a Hindu female a  full  owner  of  the property  which  she  has  already  acquired  or  which  she acquires  after the enforcement of the Act.  It does not  in any way confer a title on the female Hindu where she did not in   fact  possess  any  vestige  of  title.   It   follows, therefore,  that the section cannot be interpreted so as  to validate  the  illegal possession of a female Hindu  and  it does  not confer any title on a mere trespasser.   In  other words,  the  provisions  of s. 14(1) of the  Act  cannot  be attracted in the case of a Hindu female who is in possession of the property of the last male holder on the ’date of  the commencement  of  the  Act when she  is  only  a  trespasser without any right to property.     For these reasons we hold that the judgment of the  High Court is correct and this appeal should be dismissed.  We do not propose to make any order as to costs.                                      Appeal dismissed. 632