1. A preliminary question arises in this appeal as to who is the heir of respondent No. 1, Bhagirthibai, the original plaintiff. The contest is between Neelava, respondent No. 4, who is the widow of Chanbasappa, the separated brother of Bhagirthibai's husband Shivlingapa, and Shivlingappa's three sisters Akavva, Sangava, and Kushava. The point is of importance as Neelava supports the appellant, and therefore if she is found to be the heir of Bhagirthibai there is not likely to be much oppostion to the appeal. It is settled law in the Bombay Presidency that the sister inherits immediately after the father's mother and before the father's father under the Mitakshara. But it is contended that her place in the order of succcession is affected by Act II of 1929, Hindu Law of Inheritance (Amendment) Act, Section 2, which provides that a son's daughter, daughter's daughter, sister, and sister's son shall, in the order so specified, be entitled to rank in the order of succession next after a father's father and before a father's brother. If, therefore, this Act is literally interpreted the effect is to place the sister in a lower position than that which she at present occupies in the Bombay Presidency where she succeeds before the father's father and before the brother's widow as laid down in Rudrapa v. Irava I.L.R. (1903) Bom. 82 5 Bom. L.R. 676. There are two views possible, one, that in view of the words of the Act the sister must rank in the order of succession after a father's father, and the other, which is the view adopted by Sir Dinshah Mulla in his Hindu Law, is that her place in the order of succession is not affected by the Act, for the Act contemplates succession after the father's father while her place as determined by a series of decisions since 1865 is immediately after the father's mother. Under Section 3 of the Act it is provided that nothing in this Act shall affect any special family or local custom having the force of law. It is argued that the position of the sister in Bombay depends not on any special local custom but on the interpretation of the texts by this High Court in a series of decisions.
2. The object of the Act was to legalise the position of certain heirs including the sister and it was not intended to change for the worse the position which the sister holds in the Bombay Presidency. This is perhaps not so clear from the Act, as it might be, although it says in paragraph 3(a) 'Nothing in this Act shall affect any special family or local custom having the force of law.' If, therefore, the position of the sister in the Bombay Presidency is regarded as depending on local custom, it would not be affected by the Act. The view taken by Sir Dinshah Mulla in his Hindu Law, 7th Edn. p. 40, is that the place of the sister in the order of succession is not affected by the Act, for the Act contemplates succession after the father's father, while the sister's place as determined by a series of decisions since 1865 is immediately after the father's mother :-
In cases governed by the Mitakshara, this appears to be the only way of supporting the old order of succession. It cannot be saved on the ground of custom, for otherwise a sister in the Madras Presidency should still rank as a bandhu on the ground of custom, she having been recognized as such in that Presidency for upwards of half a century. This difficulty cannot arise in places where the Mayukha is the overruling authority, such as Gujarat, the island of Bombay and North Konkan, for the Act applies only to cases 'subject to the law of the Mitakshara.'
3. It would, therefore, in view of the opinion of Sir Dinshah Mulla, which, though not binding on us, is entitled to great respect, be unsafe to exempt the sister in Bombay from the operation of Act II of 1929, on the ground of custom, but apart from this in view of the fact that the Act, if literally interpreted, while designed to improve the position of the sister, has actually the contrary effect in Bombay, I would adopt the view that the Act was not intended to affect the position of the sister in Bombay, and this being so, the sister is the preferential heir to the brother's widow. Therefore, the sisters Akavva, Sangava and Kushava are the heirs of the deceased and their names should be added on the record in her place.
4. This appeal raises an important preliminary question under Act II of 1929 entitled the Hindu Law of Inheritance (Amendment) Act, 1929.
5. Respondent No. 1 Bhagirthibai succeeded in getting a decree in the trial Court for possession of a house belonging to her deceased husband Shivlingappa. Defendant No. 4 has appealed from the decree. Pending the appeal respondent No. 1 died. Thereupon the appellant amended the record by bringing Neelava, original defendant No. 3, who is a widow of a half brother of Shivlingappa, and three sisters of Shivlingappa as heirs and legal representatives of Bhagirthibai on record. Mr. Mulgaonkar, who appears for the sisters, contends that as between Neelava and his clients his clients are preferential heirs under the Hindu law prevailing in the Bombay Presidency, as Neelava comes in as an heir, only as the widow of gotraja sapinda. The question thus raised has to be determined by this Court under the provisions of Order XXII, Rule 5. The question shortly is, whether as between a sister of the propositus and his brother's widow, who is the preferential heir
6. But for Act II of 1929 the question in Bombay could have admitted of only one answer and it is clear on the authorities that the sister would succeed before the widow of a gotraj a sapinda. Mr. Dharap, however, who appears for Neelava, says that the order of succession prevailing hitherto is altered by this Act.
7. The Act applies only to cases 'subject to the law of Mitakshara.' The relevant sections are Sections 2 and 3, which run as follows:-
2. A son's daughter, daughter's daughter, sister, and sister's son shall, in the order so specified, be entitled to rank in the order of succession next after a father's father and before father's brother.'
Then comes the proviso under Section 3, and Clause (c) of it runs as follows :-
Nothing in this Act shall-(c) enable more than one of several persons [son's daughters, daughters' daughters, sisters or sister's sons] to succeed by inheritance to the estate of a deceased Hindu male which by a customary or other rule of succession descends to a single heir.
8. Mr. Dharap says that under the Act the sister is postponed to a widow of the gotraja sapinda. He says that the heirs mentioned in Section 8 of that Act come in only after the father's father, and therefore the position of the heirs before father's father in the order of succession is left untouched. That being the case he argues that the widow of the brother comes before father's father in Bombay, and therefore a fortiori must be preferred to the specified heirs mentioned in Section 2. The question is whether on a proper construction of the Act the sister comes after the widow of gotraja sapinda.
9. In construing a statute it is permissible to look for the purposes of enactment the mischief or defect to be prevented, the remedy and the reason of the remedy which the legislature intended to apply should be looked for. In Heydon's Case (1584) 3 Co. 7a, it was unanimously resolved by Sir Roger Manwood, Chief Baron, and the other Barons of the Exchequer (p. 1b):-
that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered :-
1st. What was the common law before the making of the Act,
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth.
And 4th. The true reason of the remedy ; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.'
It is, therefore, permissible to consider what was the exact state of the law at the time the Hindu Inheritance (Amendment) Act was passed.
10. It is clear that as regards female heirs the position prior to the Act was as follows: In Bengal, Benares, and Mithila, none but those expressly mentioned in the Mitakshara can inherit. They were widow daughter, mother, paternal grandmother, and paternal great-grandmother. The sister was no heir in these places. In Madras in addition to the abovenamed certain other female heirs are recognised as bandhus. They could only succeed in the absence of preferential bandhus. Among these were son's daughter and daughter's daughter. Sister came in, but only as a bandhu. In Bombay daughters of descendants, ascendents, and collaterals within five degrees inherit as bandhus in the order of propinquity, but it must be noted that they cannot inherit if any of the nine bandhus expressly mentioned in the Mitakshara are alive. As to the sister, she is recognised as a gotraja sapinda both in the Mitakshara and in the Mayukha. See Bhagwan v. Warubai I.L.R. (1908) Bom. 300: 10 Bom. L.R. 389 It is also recognised in Bombay that the sister comes before the widows of the gotraja sapindas, and her position in the order of succession is after paternal grandmother, but before paternal grandfather. A son's daughter and daughter's daughter were recognised as heirs only in the Bombay and Madras Presidencies, but only as bandhus. Sister's son similarly ranked only as a bandhu. As to a widow of a gotraja sapinda, the position in Bombay is that she inherits after the 'compact series of heirs' and after the sister and half sister, but subject to the rule that there is no existing gotraja sapinda within the sixth decree of the line to which her husband belonged, the widow taking the place which her husband, if alive, would have occupied.
11. That being the position, the question is, what was the object of the Act of 1929 Mr. Mulgaonkar wanted to refer to the proceedings in Council at the time the bill was discussed and to the speeches made in connection therewith. But as laid down by the Privy Council in Administrator-General of Bengal v. Prem Lal Mullick proceedings in Council whilst a statute is being enacted are not relevant and cannot be looked at by the Court on the question of construction of the Act.
12. On a careful consideration of the Act as a whole it seems to me that it was enacted to bring in certain heirs, e. g., a son's daughter, daughter's daughter, sister and sister's son on the principle of propinquity before certain other heirs who hitherto were recognised as preferential heirs in the order of succession in certain places although they were more remotely connected with the propositus by ties of blood. In my opinion the Act contemplates the succession after the father's father and leaves the law as to the order of succession before father's father undisturbed. Where, therefore as in Bombay since 1867 sister is assigned a special place and takes before father's father, can it be contended that the legislature intended to degrade her, to take away from her superior and vested rights she had and to allow other heirs to supersede her To hold that the order of succession before father's father has been altered I would expect quite different language than is found in the Act. In Watton v. Watton (1868) L.R. 1 P.D. 227 Sir J.P. Wilde said (p. 228) :-
When a statute is passed creating new rights, it ought, if possible, to be so construed as not to extinguish existing rights,
In Randolph v. Milman (1868) L.R. 4 C.P. 107 Kelly C.B. said (p. 113) :-
Now, we agree with the principle of law stated by Sir Roundell Palmer at the outset, that vested rights are not to be taken away without express words or necessary intendment or implication.
13. In Hough v. Windus (1884) 12 Q.B.D. 224 Bowen L.J. said (p. 237) :-.the recognised rule is that statutes should be interpreted if possible so as to respect vested rights ;...
The Legislature must not be supposed to do a palpable injustice. In Ex parte Corbett (1880) 14 Ch, D. 122 Brett L.J. observed as follows (p. 129) :-
I think also that there is a general rule of construction of statutes which is applicable to this matter, namely, that, unless you are obliged to do so, you must not suppose that Legislature intended to do a palpable injustice...
The consequence of accepting Mr. Dharap's argument would lead to so manifestly an unjust result, that I should pause before I proceed to adopt this construction of the Act. It seems to me it is in the last degree improbable that legislation would disturb the general system of law prevailing in Bombay in regard to the order of succession before father's father.
14. Mr. Dharap says that vested rights are expressly taken away, as the rights of the other heirs after father's father are expressly taken away. That may be and that is all that, it seems to me, the legislature intended to do. It seems clear to me on a reading of the Act that the intention was to alter the recognised order of succession only after father's father and to leave the heirs before him untouched, Mr. Dharap argues that the result of adopting this construction would be to put even a son's daughter and other persons mentioned in Section 3 before the sister, before the widow of a gotraja sapinda. I do not think so. Before the Act these other heirs came in, as I have pointed out, only as bandhus, and the legislature by this Act has given them a better place. That cannot and does not necessarily mean that, because in Bombay the sister is recognised as coming before the widow of gotraja sapindas, therefore it must follow that the other persons mentioned in Section 3 would ipso facto come before the widow of a gotraja sapinda.
15. This brings me to the proviso. The proviso saves a local custom having the force of law. If necessary, I would be prepared to hold that a sister in Bombay is assigned a fixed place on the ground of a local custom having the force of law. The cases in Bombay clearly show that it is after all on usage that the right of a sister is based. In Mulji Purshotum v. Cursandas Natha I.L.R. (1900) Bom. 563: 2 Bom L.R. 721 after referring to the well known case of Vinayak Anandrav v. Lakshmibai (1861) 1 B.H.C.R. 117 decided in the Supreme Court in 1861, Sir Lawrence Jenkins observed (p. 573) :-
The ratio, however, of the decision appears to me to be this, that in Bombay there was a general usage under which sisters were preferred to male cousins, and that if this could not be supported by the text of the Mitakshara, a point on which no certain pronouncement was made, still it had the express sanction of the Mayukha, which alone was sufficient.
In Rudrapa v. Irava I.L.R. (1003) Bom. 82: 5 Bom. L.R. 676 the same learned Chief Justice puts the matter beyond doubt. That was a case from Dharwar, and it was held that the sister should be preferred as an heir to a brother's widow. At page 86, Sir Lawrence Jenkins observed :-
It has been urged before us that in other districts of the Presidency the sisters succession is governed by the Mitakshara, which does not name the sister. As against this, reliance has been placed on the interpretation of the Mitakshara by Balambhatta and Nanda Pandita, who maintain that sisters are included in 'brethren according to the true rules of Sanskrit exegesis ; and in support of its applicability in the Bombay Presidency reference has bean made to the opinion of Sir Michael Westropp. It is further contended that for the purpose of a sister's succession the rule of the Mayukha is not limited to Gujarat and the Island of Bombay, but is also of authority in other districts of the Presidency. That there is a usage, under which the sister succeeds as an heir when outside Gujarat and the Island of Bombay, is, we think, beyond doubt ; the struggle has been to reconcile that usage with the Sanskrit commentaries, but in view of the decided oases it appeal's to us immaterial whether we invoke in support of it the rule of Nilkantha or the interpretation of Balambhatta or Nanda Pandita.'
16. In Bhagwan v. Warubai(1) the rule which ought to be followed is laid down by Chandavarkar J. in these words (p. 312):-
What, then, is the exact place to assign to the uterine sister of a deceased Hindu in the line of his heirs in cases governed by the Mitakshara It is well settled now for this Presidency that she is an heir. The Mitakshara is silent as to her place, and it is an established rule of this Court that where the Mitakshara is slient or obscure, we must, generally speaking, invoke the aid of the Vyavahara Mayukha to interpret it, and harmonise both the works, so far as that is reasonably possible. The Vyavahara Mayukha brings the sister in immediately after the grandmother. Having regard to the rule just mentioned, that should be her place under the Mitakshara also. Such an arrangement would not be arbitrary, if we bear in mind two points emphasised by Vijnaneshwara in the Mitakshara.
17. It will be seen that although in Bombay in cases governed by the Mayukha sister is brought in by reason of a text, it is really on the ground of usage as evidenced by the text that she comes in, and under the Mitakshara she comes in on the principle laid down by Chandavarkar J. in Bhagwan's case. Their Lordships of the Privy Council with regard to the commentaries as a source of law observed as follows:-
The rules of law enunciated in commentaries are followed in practice in the school where their authority is accepted, and they have thus acquired the sanction of usage. It is therefore the duty of British Indian Courts to treat these rules as law in the province in which they are recognised, even if they appear to proceed on a wrong interpretation of the Smritis, the reason being that under the Hindu system of law 'clear proof of usage will outweigh the written text of the law'.' (Mulla's Hindu Law, 7 th Edn., p. 10).
I do not, therefore, think that the place assigned to the sister in this presidency was intended to be altered by the Act, and that in any case her position is saved by reason of the proviso. I think, therefore, the sisters are preferential heirs than Neelava, and therefore their names should be retained on the record and that of Neelava struck off.
18. I have come to this conclusion not without some hesitation. Undoubtedly there is force in Mr. Dharap's argument that a literal rendering of the proviso or of the Act would show that the sister's position as heir is affected. If it was the intention of the legislature to leave the order of succession prevailing in Bombay before father's father unaffected, as I think it was, it is unfortunate that more apt language has not been employed in this respect.
19. [Their Lordships then went into the merits of the case, and dismissed the appeal with costs.]