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Ramchandra Sitaram and ors. Vs. Sakharam and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 176 of 1952
Judge
Reported inAIR1958Bom244; (1958)60BOMLR82
ActsHindu Widows' Remarriage Act, 1856 - Sections 2; Hindu Succession Act, 1956 - Sections 4, 4(1), 14 and 15
AppellantRamchandra Sitaram and ors.
RespondentSakharam and ors.
Appellant AdvocateD.T. Mangalmurti, Adv.
Respondent AdvocateW.B. Pendharkar, Adv.
Excerpt:
.....to inheritance or extinguishes reversionary rights of heirs of last full owner.;section 14 of the hindu succession act, 1956, applies to property possessed by a hindu female when the act commences, or thereafter. if before the commencement of the act the property is transferred, it is not in law possessed by her and section 14 will have no application to that property. there is nothing in section 14 of the act which revives the estate of a limited owner determined before the commencement of the act by death, actual or civil. section 14 in terms purports to enlarge the estate in property possessed by a hindu female and enables the female to hold the property as a full owner; it does not purport to enlarge an estate determined before the commencement of the act, or to enlarge the estate..........for possession of the property.3. mr. mangalmurti then sought to rely upon section 14 of the hindu succession act 1956. that section, by the first sub-section, provides:'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.'mr. mangalmurti stated that the word 'possessed' used in section 14 meant 'inherited' or 'obtained'. counsel submitted that if property had devolved by inheritance or otherwise upon a hindu female before the commencement of the hindu succession act, her interest therein, if limited springs on application of the act into an absolute interest retrospectively, i.e., since the date of acquisition of the interest; and the reversioners have no.....
Judgment:

Shah, J.

1. This second appeal raises a question as to the true interpretation of Section 14 of the Hindu Succession Act 1956 (Act 30 of 1956). The following genealogy may usefully be referred to for understanding the nature of the dispute between the parties:

MAHADU

|

-------------------------------------------

| | |

Sitaram Sakharam Ganpat

| (plff.1) |

-------------------- |

| | |

Motiram Ramkrishna ------------------

(plff. 2) (plff. 3) | |

Sampat Tulsi

=Thunki

|

Laxman

Sampat died on 10-2-1944, leaving him surviving his wife Thunki, his son Laxman and a sister Tulsa. Laxman died on 3-12-1944, and the property of Sampat then devolved upon Thunki. On 23-12-1944 Thunki executed a deed of gift whereby the property in dispute in this litigation was gifted to Tulsa. On 8-6-1945, Thunki contracted remarriage. The plaintiffs who are the uncle and paternal cousins of Sampat filed Civil Suit No. 120-A of 1949 in the Court of the First Civil Judge, Class II, Akola, against Tulsa and defendants Nos. 1, 2 and 3 who are transferees fromher by deeds dated 2-3-1945 and 3-3-1945, for a decree for possession of the property gifted to her by Thunki. It was the plaintiffs' case that the property in suit belonged to Laxman and on his death the property devolved upon Thunki who took a limited estate of a Hindu widow, and on Thunki's remarriage the suit property devolved upon the plaintiffs by inheritance, and the defendants. Tulsa and the alienees from her, could not resist their claim for possession. The trial Court dismissed, the plaintiffs' suit. It was held that on the death of Sampat a half share in the property devolved upon Thunki and the remaining half upon Laxman, and that the property which Thunki inherited from Laxman was not divested by her remarriage. The learned Judge observed that Thunki did not cease to be the mother of Laxman, being related by blood, and the transfer of her life interest under the deed of gift held good during her lifetime, and that only after the death of Thunki the property would devolve upon the remaining heirs living at her death. He, therefore, held that it was not necessary to consider the question whether the plaintiffs were at the date of the suit the next reversioners to the estate of Laxman. Against that decree an appeal was preferred to the District Court at Akola. The learned Additional District Judge observed that the trial Judge had made out a new case for the defendants which was not pleaded by them. According to him, the plaintiffs had pleaded and the defendants had accepted that the suit property belonged exclusively to Laxman and on his death it has devolved upon Thunki, and the learned Judge made out a case that half the property devolved upon Thunki and the remaining half had devolved upon Laxman. He then held that by her remarriage Thunki's interest in the property inherited from Laxman was forfeited and the plaintiffs as the heirs and next reversioners to the estate of Laxman could claim the property from the alienees of Thunki, and on that view he passed a decree for possession of the property in suit in favour of the first plaintiff and dismissed the claim of plaintiffs Nos. 2 and 3 who were one degree more remote in relation to the first plaintiff. Against that decree, defendants Nos. 1, 3 and 4 have appealed to this Court.

2. It is contended by Mr. Mangalmurti, who appears on behalf of the appellants, that the learned Additional District Judge was in error in holding that the estate of Thunki was, on remarriage, forfeited. This question is concluded by a Full Bench decision of the Bombay High Court in Vithu v. Govinda ILR 22 Bom 321. In that case, it was held that under Section 2 of the Widows' Remarriage Act (XV of 1856), a Hindu widow belonging to a caste in which remarriage had been always allowed, who had inherited property from her son, forfeited by remarriage her interest in such property and it devolved upon the next heir of the son. Mr. Mangalmurti contended that this decision was inconsistent with another Full Bench decision of the Bombay High Court in Basappa v. Ragava ILR 29 Bom 91 . In that case, it was held that a remarried Hindu widow was entitled after remarriage to succeed to the property left by her son by her first husband. At first sight, it may appear somewhat incongruous that when a Hindu widow inherits property from her son and remarries, her interest in the property already inherited is forfeited; but when a Hindu widow remarries, her right to succeed to the property of her son by her first marriage is not forfeited. But it cannot be said that the principle of the two judgments is inconsistent, and, in our judgment, the decision in ILR 22 Bom 321 , directly applies to the facts of this case and must be accepted as binding. Thunki's interest was, therefore, forfeited by her remarriage and the interest which the alienees from her derived was determined, and the plaintiffs were entitled to claim a decree for possession of the property.

3. Mr. Mangalmurti then sought to rely upon Section 14 of the Hindu Succession Act 1956. That section, by the first sub-section, provides:

'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.'

Mr. Mangalmurti stated that the word 'possessed' used in Section 14 meant 'inherited' or 'obtained'. Counsel submitted that if property had devolved by inheritance or otherwise upon a Hindu female before the commencement of the Hindu Succession Act, her interest therein, if limited springs on application of the Act into an absolute interest retrospectively, i.e., since the date of acquisition of the interest; and the reversioners have no right to take the property even if the erstwhile limited interest is determined before the commencement of the Act, We are unable to accept that contention. The Legislature appears advisedly to have used the expression 'possessed' as qualifying the property of a Hindu female and we will not be justified, having regard to the context, in substituting the word 'possessed' in Section 14 by 'inherited' or 'succeeded to' or 'obtained'. Indisputably the Act has a limited retrospective operation. On the commencement of the Act property possessed by a Hindu female is by the operation of the Act to be regarded as of her absolute ownership even if her title in its inception was restricted. But Section 14 applies to property possessed by a Hindu female when the Act commences, or thereafter. If before the commencement of the Act the property is transferred, it is not in law possessed by her and Section 14 will have no application to that property. That is clear from the use of the expression 'shall be held by her as full owner.' In any event, there is nothing in Section 14 which revives the estate of a limited owner determined before the commencement of the Act by death, actual or civil. Section 14 in terms purports to enlarge the estate in property possessed by a Hindu female and enables the female to hold the property as a full owner; it does not purport to enlarge an estate determined before the commencement of the Act or to enlarge the estate conveyed to alienees by the limited owner before that date.

4. It was submitted that Section 4 of the Act gave to the provisions of the Hindu Succession Act an overriding effect. Sub-section (1) of Section 4 provides :

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

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

It was urged that by this section all rules of Hindu law relating to estate held by Hindufemales in operation prior to the date of the Act were abrogated. But Section 4 merely enacts that if there be conflict between the provisions of the Act and any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act, on any matter for which provision is made in the Act, the text, rule or interpretation, or any custom or usage, will be deemed to be superseded by the provisions of the Act. Similarly, laws in force immediately before the commencement of the Act which are inconsistent with the provisions of the Hindu Succession Act stand pro tanto repealed by Section 4. But the text, rule or interpretation of Hindu law stands superseded only qua any matter on which provision is made in the Act: and Section 14(1) makes no provision concerning property not possessed by a Hindu female.

5. It was also urged that the law which had the effect of forfeiting the interest of a widow remarrying, viz., the Hindu Widows' Remarriage Act XV of 1856, was repealed by Section 4(1) or the Hindu Succession Act. The repeal is, however, only to the extent of repugnancy with the latter Act. By Section 2 of Act XV of 1856, the right of a Hindu widow in her husband's property ceases on remarriage, and that provision qua property possessed by a Hindu widow may stand repealed after the enactment of the Hindu Succession Act 1956. But Thunki remarried in 1945 and under the rules of Hindu law and Act XV of 1856 her interest in her husband's property stood determined; and there is nothing in the Hindu Succession Act which revives an interest already determined, possession of property by a Hindu female at the date when the Act comes into operation or thereafter is in terms made a postulate to the enlargement of her estate; if the property is not possessed. Section 14(1) of the Act has no application.

6. Mr. Mangalmurti in support of his contention relied upon two decisions, one of the Madhya Pradesh High Court reported in Dhirajkunwar v. Lakhansingh, (S) : AIR1957MP38 , and the other of the Patna High Court reported in Ram Ayodhya Missir v. Raghunath Missir, (S) : AIR1957Pat480 . In Dhirajkunwar v. Lakhansingh (C), it was observed that by the scheme of the Hindu Succession Act the reversionary rights which were recognised by the Hindu law stood abrogated and that since the widow's estate was abolished by the Hindu Succession Act, it necessarily followed that the right of a reversioner, which was a mere spes succession is, could not since the enactment of the Act be enforced. With respect, it must be observed that the Court in that case did not attempt to interpret the language used in Section 14 of the Hindu Succession Act, and merely purported to follow the observations of the Patna High Court in : AIR1957Pat480 . It was also assumed that the rights of reversioners recognised under the Hindu law were abrogated by the Hindu Succession Act. We are unable to find any provision in the Act which has the effect of abrogating either expressly or by necessary implication the rights of reversioners in cases where succession had opened before the commencement of the Act. A reversioner under the Hindu law is a person who inherits as heir the property of the last full owner on the extinction of an intervening limited estate held by a Hindu female. If by the Hindu Succession Act the estate of a Hindu female in property not possessed by her is not regarded as enlarged Into an absolute estate, itwill be difficult to hold that the right of the reversioner to the property of the last full owner on the determination of the limited estate is still extinguished. In (S) : AIR1957Pat480 , the plaintiff claimed a declaration that on the death of the first defendant Mst. Parkalo, he will be entitled as a reversioner to the property alienated by the mother of the first defendant Mst. Sureba Kuer to one Sitaram father of defendants Nos. 2 and 3. The plaintiff's suit was decreed by the trial Court. In Letters Patent Appeal it was held that the plaintiff's right as a reversioner was, in view of the change brought about by the Hindu Succession Act, lost. The Court in that case assumed that the property in suit, which in truth possessed by defendants Nos. 2 and 3, was held by Mst. Parkalo, and that since the enactment of Section 14 of the Hindu Succession Act the plaintiff had no interest in the property either of Mst. Parkalo or of Mst. Sureba Kuer. It was observed:

'It is manifest that Section 14 is made expressly retrospective and the statute declares that 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. .....The effect of these sections (Sections 14 and 15) is that the plaintiff ......... is no more a reversioner and that the estate of Mosammat Parkalo Kuer is not a limited estate but an absolute estate and that the plaintiff has no vested interest in the property nor has he a right of reversion or any kind of spes successionis. ....'

We express no opinion on the correctness of the ultimate decision in that case; we think it however necessary to observe that by the retrospective operation given to Section 14(1) the limited estate of a Hindu female is undoubtedly enlarged, but only in property possessed by her at the date when the Act commences, and that section does not modify the rules relating to inheritance, nor does it extinguish the reversionary rights of heirs of the last full owner, when the estate of the limited owner is not enlarged. Again, there is nothing in the Act which extinguishes rights vested in interest in a person before the date on which the Act commenced.

7. We hold that Thunki's estate was deter-mined by her remarriage in 1945, and the plaintiffs were under the law then in force invested with the right to avoid her alienations. By virtue of the enactment of Act XXX of 1956 the estate of Thunki cannot be regarded as retrospectively enlarged so as to confer upon the aliences from Thunki an absolute right in the property alienated by her.

8. On that view, of the case, the appeal failsand is dismissed with costs.

9. Appeal dismissed.


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