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PETITIONER: FATEH BIBI ETC.

       Vs.

RESPONDENT: CHARAN DASS

DATE OF JUDGMENT: 10/03/1970

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. SIKRI, S.M. BHARGAVA, VISHISHTHA

CITATION:  1970 AIR  789            1969 SCR  (2) 953  1970 SCC  (3) 658

ACT: Hindu  Law of Inheritance, (Amendment) Act, 1929 (Act  2  of 1929)--Act  whether applies in case of Hindu male dying  in- estate  before the Act came into operation and succeeded  by female  heir dying after that date-Succession to  estate  of last male owner when opens.

HEADNOTE: K’s son C died in 1925 and was succeeded in the ownership of his  properties  (inherited  from  K) by  his  mother  B.  B continued  in  possession  till  her  death  in  1946.   Her daughter  M  took possession of the properties as  heir.   M died in 1950.  The respondent-plaintiff was the son of M. In 1955 he filed a suit alleging that the defendant, after  the death  of B claiming to be entitled to the properties  as  a collateral  and  revisioner of K, had got  mutation  of  the aforesaid  properties effected in his name.   As  daughter’s son of K the respondent-plaintiff prayed for declaration  of his  title  to  the  suit properties;  he  also  prayed  for recovery  of  possession thereof from  the  defendant.   The defendant  contended that he was a collateral of K  and  was entitled to succeed to the properties after the  termination of the life-estate of his widow B on her death in 1946.  The trial court held that in view of the provisions of the Hindu Law of Inheritance (Amendment) Act 1929 (Act 2 of 1929)  the plaintiff  as sisters’ son of C the last male holder, had  a preferential  claim to that of the defendant who was only  a paternal  uncle of C. The first appellate Court  upheld  the decree  of  the  trial  Court.   In  second  appeal  by  the defendant  before  the High Court the learned  Single  Judge held  that  as C the last male owner had died  in  1925  his heirs must be found on that date.  On that date according to the learned Judge the heir of C was the defendant.  The fact that the life-estate of the moth& and sister of C intervened after his death would not affect the rights of the defendant as  the  Act  of 1929 had no  retrospective  operation.   In Letters  Patent  Appeal  the  Division  Bench  reversed  the judgment of the Single Judge.  The legal representatives  of the  defendant appealed to this Court by  certificate.   The question of law that fell for consideration was whether  the

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Act applies only to the case of a Hindu male dying intestate on  or after February 21, 1929 when the Act came into  force or whether it also applies to the case of a Hindu male dying intestate  before the Act came into operation and  succeeded by  a  female  heir who died after that date.   It  was  not disputed  that C held the property absolutely and  he  died. intestate. HELD:Applying  the rule laid down by the Judicial  Committee of  the Privy Council in Lala Duni Chand’s case  the  appeal must be dismissed. The  point of time for the applicability of the Act is  when the  succession opens viz. when the life estate  terminates. In  consequence  the  question  as to  who  is  the  nearest reversionary  heir,  or what is the  class  of  reversionary heirs  will fall to be settled at the date of the expiry  of the  ownership  for  life or lives.  The death  of  a  Hindu female  life-estate  owner  ovens  the  inheritance  to  the reversioners and the one most nearly related at the time  to the last full owner becomes entitled to the estate. [961 E] LI 10SupCI(NP )70-16 9 5 4 The  Act accordingly must be held to apply to the case of  a Hindu  male  dying  intestate  before  the  Act  came   into operation and succeeded by a female heir who died after that date.   In this case as decided by all the Courts  the  last female heir died only on March 25, 1950 and, under the  Act, the  plaintiff  as the sister’s son of C,  was  entitled  to succeed  to his estate, in preference to the  defendant  who was only a paternal uncle.  Under the Act the paternal uncle is  postponed to the four relations referred to in the  Act, the last of whom is the sister’s son. [961 G] It may also be stated, though the question was not raised by the  parties,  that  in  this case  the  succession  can  be considered to have opened even in 1946 on the termination of the  life-estate  of C’s mother and accordingly  C’s  sister must be considered to have succeeded to the property of  her brother,  in her own right as a preferential heir under  the Act, though the estate taken by her was also under s. 3  (b) only a life estate.[961H] Lala  Duni  Chand v. Musammat Anar Kali, L.R. 73  I.A.  187, followed and   applied. Krishnan Chettiar v. Manikammal, I.L.R.57 Mad. 718, Kanhaiya Lal v.    Mst.  Champa Devi A.I.R. 1935 All. 203, Lakshmi v. Anantharama,I.L.R.  1937 Mad. 948 (F.B.) Rajpali  Kunwar  v. Sarju  Rai, I.L.R. 58 All. 1041 (F.B.)  Annagouda  Nathgouda Patil  v. Court of Wards. [1952] S.C.R. 208,  215,  Shrimati Shakuntala  Devi  v.  Kaushalya Devi, I.L.R.  17  Lah.  356, Pokhan Dusadh v. Mst.  Manoa, I.L.R. 16 Pat. 215 (F.B.)  and Bindeshari  Singh  v. Baij Nath Singh, I.L.R. 13  Luck  380, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 364 of 1967. Appeal  from the judgment and decree dated October 30,  1961 of the Punjab High Court in Letters Patent Appeal No. 42  of 1959. G. S. Vohra and Harbans Singh, for the appellants. Bishan  Narain, J. B. Dadachanji, O. C. Mathur and  Ravinder Narain, for the respondent. The Judgment of the Court was delivered by Vaidialingam,   J.-The  short  question  that   arises   for consideration   in   this  appeal,  filed   by   the   legal representatives  of the deceased defendant, on  certificate,

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is  whether  on  a. true construction of the  Hindu  Law  of Inheritance   (Amendment)  Act,  1929  (Act  11   of   1929) (hereinafter referred to as the Act), it applies only to the case  of a Hindu male dying intestate on or  after  February 21,  1929  (when  the Act came into  force)  or  ’-ether  it applies  in the case of a Hindu male dying intestate  before the  Act came into operation and succeeded by a female  heir who died after that date. 955 The  following pedigree will be useful in  appreciating  the relationship  of  the parties as well as the  basis  of  the claim  made  regarding the title to the  properties  by  the parties.                            Dayala      Mohri                                    Tota      Dasondhi                              Thakur Dass    Kirpa Ram-Bishan Devi    Bishnan           Bisban Singh                                               (Defendant) Charanji Lal     Maya Devi-Nand Lal                Charan Dass (Plaintiff) The  respondent-plaintiff instituted Suit No. 41 of 1955  in the Subordinate Judge’s Court, Jagraon, against the original defendant for recovery of possession of the suit properties. According to the plaintiff Kirpa Ram was the last owner  of. the  properties.   Even during his life-time  his  only  son Charanji Lal had died.  On the death of Kirpa Ram, his widow Bishan  Devi became the owner of the properties and  was  in possession  of the properties for her lifetime.   After  the death  of Bishan Devi, her daughter Maya Devi  (daughter  of Kirpa  Ram and Bishan Devi) became her heir and remained  in possession  of  the  property till her  death.   After  Maya Devi’s death, according to Dharma Shastras the plaintiff, as the daughter’s son of Kirpa Ram, was entitled to succeed  to the  properties which were in the possession of Bishan  Devi and  later on of Maya Devi, his mother.  It was  alleged  by the plaintiff that the defendant. after the death of  Bishan Devi,  claiming  to be entitled to the properties  of  Kirpa Ram,  got mutation in the Revenue Registers effected in  his name on or about January 6, 1947.  Therefore,  according  to the plaintiff, the defendant had no right title or  interest to the properties of Kirpa Ram and the mutation obtained  by him  could  not affect the rights of the  plaintiff  as  the daughter’s  son  of  Kirpa Ram.  On  these  allegations  the plaintiff  prayed for a declaration regarding, his title  to the property and for recovery of possession of the same from the defendant. The  defendant  contested  the claim  of  the  plaintiff  on various grounds.  He alleged that Charanji Lal did not  pre- decease Kirpa Ram but, on the other hand, after the death of Kiripa Ram, 9 5 6 Charanji Lal, his son, became heir and was in possession  of the  properties left by his father.  Charanji Lal died  long afterwards,  in  or  about 1926 and, after  his  death,  his mother  Bishan  Devi  became heir to the  property  left  by Charanji  Lal, for her lifetime.  After the death of  Bishan Devi,  the  defendant claimed that he, as  a  collateral  of Kirpa  Ram, became entitled to the properties of the  latter and, as such, got mutation effected in his favour, according to  law.  He further averred that Maya Devi did not  at  all come into possession of the estate after the death of Bishan Devi.   In  fact the defendant even disputed the  fact  that Maya  Devi  was the daughter of Bishan Devi.  Even  if  Maya Devi was the daughter of Bishan Devi, the defendant  alleged that  according  to the custom governing the  parties,  Maya

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Devi had no right to the properties left by Bishan Devi.  On these  allegations,  the defendant maintained  that  he  was rightly entitled to the properties of Kirpa Ram and that the plaintiff  has  no cause of action for having  the  mutation effected in the Revenue Registers in his favour cancelled. The  Trial Court, by its judgment and decree dated  February 22, 1956 decreed the plaintiff’s claim.  It found that  Maya Devi was the daughter of Kirpa Ram ands Bishan Devi and that the  plaintiff  was the son of Maya Devi.  The  Trial  Court further  ,found  that Charanji Lal did not  pre-decease  his father Kirpa Ram but, on the other hand, after the death  of Kirpa  Ram,  Charanji Lal was the last male  holder  of  the entire  property  and was in possession, as such,  till  his death.   It  was also further found that  the  parties  were governed by their personal law and not by custom in  matters of  succession.  it has been found that  Charanji  Lal  died issueless  on  August 22, 1925 arid, after  his  death,  his mother  Bishan Devi was in possession of the property  as  a life-estate  holder.  After her death on November  26,  1946 Maya  Devi  was in possession of the property, -again  as  a life estate holder, till her death on March 25, 1950  Though no  claim was made by the plaintiff to succeed  to  Charanji Lal as his sister’s son, and though his claim was to succeed to the property of Kirpa Ram as the latter’s daughter’s son, the Trial Court held that on the findings that Charanji  Lal was  the last male holder, the -claim of the  plaintiff  had really to be decided on the basis of the Act under which the plaintiff,  as the sister’s son of Charanji Lal, has  got  a preferential  claim.  The contention of the  defendant  that the Act did not apply inasmuch as Charanji Lal had died long before  the date when the Act came into force (February  21, 1929),  was  not accepted and the Court took the  view  that succession opened in favour of the plaintiff only after  the death of Maya devi in 1950 in this view the trial  ale Court held that the plaintiff, being the sister’s son of the  last in  holder  (Charanji  Lal)  was  to  be  preferred  to  the defendant who 957 was  only  a  paternal uncle of Charanji Lal  and  as  such, decreed the suit. - The  defendant  carried  the matter  in  appeal  before  the learned  District Judge, Ludhiana, in C.A.53 of  1956.   The learned  Judge,  in the judgment dated March 14,  1957,  has stated  that the defendant only attacked the finding of  the trial  Court  that the plaintiff was the daughter’s  son  of Kirpa  Ram  and the findings on the other  issues  were  not challenged The learned Judge, on this point, agreed with the finding  of the trial Court that Maya Devi was the  daughter of Kirpa Ram and Bishan Devi and that the plaintiff was  the son  of  Maya  Devi.   The decree of  the  trial  Court  was confirmed. The  defendant  again  challenged the decrees  of  both  the Subordinate  Courts before the Punjab High Court in  Regular Second  Appeal No. 359 of 1957.  Before the  learned  Single Judge  the appellant raised two contentions : (1)  That  the plaintiff  never  set up any claim as  a  preferential  heir under the Act being the sister’s on of the last male  holder and,  as such. his title should not have been recognised  by the  Subordinate Courts; and (2) In any event, the Act  does not apply inasmuch as the last male holder Charanji Lal died as  early  as August 22. 1925, long before the  coming  into force of the Act on February 21, 1929. The learned Judge, after a reference to the pleadings,  held that the first contention was well-founded as the  plaintiff claimed  title to the properties only as the daughter’s  son

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of  Kirpa  Ram and had even alleged that  Charanji  Lal  had predeceased  his father and no claim as the sister’s son  of Charanji  Lal was over made.  But, in view of  the  findings recorded  by the two Subordinate Courts that  the  plaintiff was the sister’s son of Charanji Lal who had also been  held to  be the last male holder, the learned Single  Judge  held that   the   applicability  of  the  Act   did   arise   for consideration. The  learned  Judge agreed with the , findings  of  the  two Courts  that  Charanji Lal was the last male holder  of  the properties in question and that he was the absolute owner of those  properties and there was no question of the  property in his hands being coparcenary property.  But, regarding the applicability  of  the Act, the learned Judge held  that  as Charanji  Lal died on August 22, 1925 the succession to  his estated must be considered to have opened on the date of his death  and, as the Act came into force only on February  21, 1929 the heirs of Charanji Lal must be found on the date the succession  opened, viz., August 22, 1925; and the  heir  to Charanji Lal on that date was 958 his paternal uncle, the defendant.  According to the learned Judge the fact that the life estate of the mother and sister of Charanji Lal intervened after his death, will not affect’ the rights of the defendant as the Act has no  retrospective operation.   For this view, the learned Judge relied on  two earlier decisions, one of the Madras High Court in  Krishnan Chettiar  v.  Manikammal(1) and the other of  the  Allahabad High  Court in Kanhaiya Lal v. Mst.  Champa Devi(1)  holding that the Act applied only to the case of a Hindu Male  dying intestate  on or after February 21, 1929.  In this view  the learned Judge, by his judgment dated November 18, 1958  held that the rightful heir to the estate of Charanji Lal was the defendant  and reversed the decrees of the  two  Subordinate Courts  and  dismissed  the  plaintiff’s  suit  with   costs throughout. The  plaintiff-respondent  carried  the  matter  in  Letters Patent Appeal No. 42 of 1959 before a Division Bench of  the Punjab  High  Court.  The Division Bench  noticed  that  the decisions  relied  on by the learned Single Judge  had  been over-ruled  by  Full Bench decisions of the same  Courts  in Lakshmi  v.,,- Anantharama (3 ) and Rajpali Kunwar v.  Sarju Rai  (4 ) , where it had been held that under the Hindu  Law it is the death of the female heir that opens inheritance to the  reversioners who, till, then possess only  an  inchoate right,  generally  termed a spes successions.  It  has  been further held that the Act will apply even to cases where the last  male-holder dies intestate before the passing  of  the Act  and the limited female heir is alive after  the  coming into  force, of the Act, as the succession to  the  deceased male  member  must  be considered to  open  only  after  the passing  of the Act and will .be governed by the  provisions of  the Act.  Following these decisions, the Division  Bench reversed  the  judgment  of the  learned  Single  Judge  and decreed  the  plaintiff’s suit for possession  holding  that under  the Act the plaintiff, being the sister’s son of  the last male holder Charanji Lal, was the preferential heir. Mr. Vohra, learned counsel for the appellant, no doubt urged that the interpretation placed upon the Act by the  Division Bench  is  erroneous.  According to him the Act  will  apply only  to cases of Hindu male dying intestate after  the  Act came into force, i.e., after February 21, 1929; and, in this case as Charanji Lal died on August 25, 1925 long before the Act came into force, succession to his estate opened on  the date  of  the  death of Charanji La] and on  that  date  the

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defendant,  in  Hindu Law,. was entitled to succeed  to  the estate. (1)  I.L.R. 57 Mad. 718. (3)  I.L.R. [1937] mad 948. (F.B.) A.I.R. 1935 All. 203. (4) I.L.R. 58 All. 1041 (F.  B.)                             959 Mr. Bishan Narain, learned counsel for the  plaintiff-respon dent  pointed  out that it was rather unfortunate  that  the later full Bench decisions of the Madras and Allahabad  High Courts were not brought to the notice of the learned  Single Judge  who had followed the decisions of those Courts  which had been subsequently over-ruled.  The learned Counsel  also pointed  out that according to the decisions of the  various High Courts, the view taken by the Letters Patent Bench  was correct. We  are  of  the opinion that the decision  of  the  Letters Patent  Bench  is correct.  No doubt,  originally  the  view taken  by some of the High Courts was that the  Act  applies only  if  the last male holder dies after  the  coming  into force  of  the  Act  and  it  will  have  no   retrospective application  to cases of Hindu males dying intestate  before the date of the Act.  That view has now been given the go-by as is seen from the later decisions to which we shall  refer presently.  But before we refer to those decisions,we  shall quote the observations of this Court in Annagouda  Nathgouda Patil v. Court of Wards(1) regarding the object and scope of the Act.  This Court observed               "The  object  of  the Act  as  stated  in  the               preamble  is  to  alter  the  order  in  which               certain heirs of a Hindu male dying  intestate               are  entitled  to succeed to his  estate;  and               section 1(2) expressly lays down that ’the Act               applies  only  to  persons  who  but  for  the               passing of this Act would have been subject to               the  Law  of  Mitakshara  in  respect  of  the               provisions  herein enacted, and it applies  to               such  persons in respect only of the  property               of  males  not  held in  coparcenary  and  not               disposed  of by will’.  Thus the scope of               the  Act  is limited.  It  governs  succession               only to the separate property of a Hindu  male               who dies intestate.  It does not alter the law               as regards the devolution of any other kind of               property  owned by a Hindu male .... It is  to               be noted that the Act does not make these four               relations statutory heirs under the Mitakshara               Law  under  all  circumstances  and  for   all               purposes:  it makes them heirs only  when  the               propositus  is  a  male and  the  property  in               respect to which it is sought to be applied is               his separate property." The four relations, referred to in the above extract, are  : the  son’s  daughter. daughter’s sister  and  sister’s  son. Under the Mitakshara Law, in the line of heirs, the paternal uncle  came just after the paternal grandfather and his  son followed  him  immediately.   But,  by  the  Act,  the  four relations  mentioned above have been introduced between  the grandfather and the (1)  [1952] S.C.R. 208, 215. 9 6 0 paternal uncle and his son.  That is, the paternal uncle and his son are postponed to these four relations by the Act. In  the  case  before us we have already  pointed  out  that Charanji  Lal  was the absolute owner of  the  property  and

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therefore  there was no question of the property being  held in  coparcenary  .and  there  is  no  controversy  that  the property  was  not  -disposed of by will  by  Charanji  Lal. Therefore,  prima facie the Act will apply to the estate  of Charanji  Lal if it can be held that the succession  to  his estate  opened only when his sister Maya Devi died on  March 25, 1950. The question is : When did succession open to the estate  of Charanji Lal.  Was it on the date when he died, i.e., August 22,  1925; or was it when his sister Maya Devi  died,  viz., March 25, 1950? In this connection we may refer to the decisions in Shrimati Shakuntala Devi v. Kaushalya Devi(1);Rajpali Kunwar v. Sarju Rai  (2) ; Pokhan Dusadh v. Mst.  Manoa ( 3 ) ;  Lakshmi  v. Anantharama(1)  and Bindeshari Singh v. Baij Nath  Singh(5). In all these cases the last mate holder had died before  the date  of the Act and the estate was in the possession  of  a life-estate holder either a widow or a mother who died after the  coming into force of the Act.  It has been held in  all these  decisions  that the succession to the estate  of  the last  male-holder  must be considered to open  only  on  the termination  of  the life-estate and the Act will  apply  in considering  the  heirs  of  the last  male  holder  at  the termination of the life estate. It  is  not  necessary  for us to  refer  to  any  of  these decisions in great detail as the matter has been  considered by the Judicial Committee of the Privy Council in Lala  Duni Chand v. Musammat Anar Kali(1).  The Judicial Committee  has held that the Act, which altered the order of succession  of certain  persons  mentioned  therein  and  which  came  into operation on February 21, 1929 applies not only to the  case of  a  Hindu male dying intestate on or after  February  21, 1929  but  also to the case of such a male  dying  intestate before  that date if he was succeeded by a female  heir  who died  after that date.  The Judicial Committee, has  further held  that  succession in such cases to the  estate  of  the ’last  Hindu male who died intestate did not open until  the death of the life-estate holder.  It has also been held that during   the  life-time  of  the  life-estate  holder,   the reversioners  in  Hindu Law have no vested interest  in  the estate land that they have a mere (1)  I.L.R. 17 Lah. 356. (3)  I.L.R. 16 Part. 215 F.B. (5)  I.L.R. 13 Luck. 380. (2)  I.L.R. 58 All. 1041 F.D. (4)  I.L.R. [1937] Mad. 948 F.B (6)  L.R. 73 I.A. 187. 9 6 1 spes successions.  It was contended before the Judicial Com- mittee  that  the  words ’Hindu male  dying  intestate’  was occurring  in  the preamble to the Act connotes  the  future tense,  of  a Hindu male dying after the Act has  come  into force.   This  contention  was  rejected  by  the   Judicial Committee, which observed as follows :               "In   the  argument  before  their   Lordships               reliance  was  placed  on  the  words   ’dying               intestate’ in the Act as connoting the  future               tense, but their Lordships agree with the view               of  the Lahore High Court in Shrimati  Shakun-               tala Devi v. Kaushalaya Devi (ILR 17 Lah  356)               that  the words are a mere description of  the               states of the deceased and have no  reference,               and  are no-, intended to have any  reference,               to the time of the death of a Hindu male.  The               expression  merely  means  "in  the  case   of

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             intestacy  of  a Hindu male".  To  place  this               interpretation  on  the Act is not to  give  a               retrospective  effect to its  provisions,  the               material point of time being the date when the               succession  opens,  namely, the death  of  the               widow." We  are in entire agreement with the above  observations  of them Judicial Committee and accordingly hold that the  point of  time  for  the  applicability of the  Act  is  when  the succession opens, viz., when the life estate terminates.  In consequence,  it must be further held that the questions  as to  who  is the nearest reversionary heir, or  what  is  the class  of reversionary heirs will fall to be settled at  the date of the expiry of the ownership for life or lives.   The death  of  a  Hindu  female  life-estate  holder  opens  the inheritance  to  the reversioners and the  one  most  nearly related at the time to the last full owner becomes  entitled to the estate. We  hold  that the Act applies also to the case of  a  Hindu male dying intestate before the Act came into operation  and has  been  succeeded by a female heir who  died  after  that date.   In  this case, on the findings recorded by  all  the Courts,  the  last female heir died only on March  25,  1950 and,  under the Act, the plaintiff, as the sister’s  son  of Charanji  Lal,  is  entitled to succeed to  his  estate,  in preference  to the defendant who is only a  paternal  uncle. We  have  already  pointed out that the  paternal  uncle  is postponed to the four relations referred to in the Act,  the last of whom is the sister’s son. Before we conclude, we may state that in this case the  suc- cession  can be considered to have opened even  on  November 26,  1946  when  Bishan Devi’s (the  mother’s)  life  estate terminated  and  it must be held that even  Maya  Devi,  the sister of Charanji 9 6 2 Lal, must be considered to have succeeded to the property of her  brother, in her own right as a preferential heir  under the Act, though the estate, taken by her under S. 3(b)  will only be a life-estate.  No doubt these aspects have not been raised before any of the Courts, nor even before us. The result is that the decision of the Letters Patent  Bench of  the  High Court is correct.  In consequence  the  appeal fails and is dismissed with costs. G.C. Appeal dismissed. 963