(1) The second appeal raises an important question of law. The plaintiff who is respondent now, filed the suit against defendant 1 who is her adopted son, and against defendant 2 who is the wife of defendant 1, claiming that she is entitled to one half share in the properties originally belonging to her husband. There were several contentions raised for defendant 1 but the only one that now survives for consideration is that the plaintiff was leading an unchaste life prior to her husband's death and also of the time of her husband's death and that, therefore she is disqualified from inheriting her husband's properties.
It is admitted that the plaintiff's husband Basappa died in 1944 and that thereafter on 3-8-1945 she adopted defendant 1. The trial court came to the conclusion that she was unchaste. Still it decreed the plaintiff's suit for partition and possession. In appeal, the decree was confirmed and the appeal was dismissed. It is against this decision that defendant 1 has come up in second appeal.
(2) The main point urged by the learned Advocate for the appellant is that by reason of unchastity which has been held proved by both the lower courts, she is disqualified from inheriting the properties. In the lower appellate court, it was held that by reason of section 2 of the Hindu Women's Rights to Property Act No. XVIII of 1937, the said disability does not affect the right of a widow claiming a share in the property as contemplated under section 3 of that Act.
It is urged by the learned advocate for the appellant that this is not a proper construction. According to him, what is provided by section 2 is that only such portion of the Hindu Law or custom that goes contrary to the provisions of section 3 will not be held to be applicable. In other respects, he urges that the earlier Hindu Law does stand, meaning thereby that the disability on account of unchastity does ensure to the disadvantage of the widow, with the result that she cannot inherit the properties of her husband.
In support of this contention, he relies on the Full Bench decision of the Madras High Court in Ramaiya v. Mottayya, : AIR1951Mad954 . The exact question which is not involved in this case, had come up for consideration before their Lordships. Their Lordships observed:
'The words 'notwithstanding any rule of Hindu Law or custom to the contrary' in section 2 show that if there is any rule of Hindu Law or custom which is contrary to the provisions of section 3, then if is such a rule that is abrogated and not every rule of Hindu law which is not directly contradicted by the provisions of section 3. Thus, it is the general rule of Hindu law that a son excludes the widow in respect of separate property and the surviving coparceners exclude the widow in respect of joint family property that are contrary to the provisions of S. 3 and S. 2 declares that notwithstanding these rules of Hindu law, the provisions of S. 3 shall apply. The Act does not purport to abrogate the pre-existing rule of Hindu law excluding an unchaste widow from succession to the property of her husband.'
As against this, the learned Advocate for the respondents relies on the decision in Akoba Lakshman v. Genu Lakshman, AIR 1941 Bom 204. No doubt in that case, there is an observation that a widow is not debarred from inheriting the property because of her unchastity. But it is not a considered judgment on this point. The specific observations in the judgment are :
'In the recent Hindu Women's Rights to Property Act (18 of 1937) the bar of unchastity seems to have been removed even with regard to the widow inheriting her husband's property, because it says that its provisions shall apply notwithstanding any rule of Hindu Law or custom to the contrary.'
Besides, the judgment seems to have been based on the observation in Mayne's Hindu Law which has tried to interpret the above provision. This said ruling as well as the reading of the law noted in Mayne's Hindu Law have been carefully considered by the Madras High Court in the ruling above quoted.
In my considered opinion, section 2 cannot be said to have been intended for abrogating all the principles of Hindu Law. It must be deemed to have been limited in so far as the application of section 3 is called in. I, therefore, agree with respect, with the decision given by the Madras High Court.
(3) A similar question came up for consideration before the Calcutta High Court in Kanailal Mitra v. Pannasashi Mitra, : AIR1954Cal588 . Dissenting from an earlier decision of the same High Court, reported in Surja Kumar v. Manmatha Nath, : AIR1953Cal200 ., which was itself based upon the above said Bombay decision, their Lordships of the Calcutta High Court came to the conclusion that :
'The Hindu Women's Rights to Property Act has not the effect of abrogating the pre-existing rule of Hindu law which disqualifies a widow from inheriting her husband's property if she is unchaste.'
This case follows the Full Bench decision of the Madras High Court.
(4) The learned advocate for the respondents bases his contentions on some provisions of the Hindu Succession Act of 1956. His first contention is that the provisions of Section 4 make the principles of Hindu law inapplicable after the commencement of the said Act. Clause (a) of sub-section 1 of section 4 lays down that any text, rule or interpretation of Hindu Law shall cease to have effect with respect to any matter for which provision is made in this Act.
Similarly, Clause (b) also lays down that any other law in force shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. This only means that in the matter of application of any provision of the said Act, the earlier law will not come in the way. Unless it is shown that the plaintiff in this case gets any rights under the provisions of this Act, the provisions of S. 4 not invoked.
(5) The learned Advocate next draws my attention to Section 8 of the Hindu Succession Act. It lays down that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter. This Act came into force on 17-6-1956. Obviously the rules of succession laid down to that section can only apply in respect of a succession that has opened up after this Act comes into operation. There is nothing to show that the provisions of this section are retrospective.
In the case under considerable the inheritance opened on the death of the plaintiff's husband Basappa in the year 1944. The succession to the estate of Basappa can only be determined by the law in force in the year 1944. The provisions of section 8 are inapplicable to that case.
(6) The next provision relied upon is S. 28. It says that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or default or save as provided in this Act on any other ground whatsoever. This, no doubt, seems to cover the case of disqualification on the ground of unchastity. But the operation of this section also can come in only in case where the inheritance opens after the coming into force of this Act.
This section is also inapplicable to the present case. The result is that if the inheritance opened in 1944 the plaintiff could not succeed to the property on account of the disqualification on the ground of unchastity. If so, she is not entitled to claim any share in the property by reason of S. 3 of the Hindu Women's Rights to Property Act.
(7) The learned Advocate for the respondents relies on the decision of the Federal Court, it , Lachmeshwar Prasad v. Keshwar Lal. It lays down the Principle that:
'The hearing of an appeal under the procedural law of India is in the nature of re-hearing and...........the appellate court is entitled to take into account even facts and events which come into existence after the decree appealed against. Secondly the appellant court is competent to take into account legislative changes since the decision in appeal was given.'
In view of this proposition, the learned Advocate for the respondents wants that the provisions of the Hindu succession Act, 1956, should be taken into consideration in deciding this appeal. I have already discussed the relevant provisions relied upon by the learned Advocate for the respondents and I have shown that those provisions are not applicable to the present case.
I cannot understand this decision to mean that merely because the Hindu Succession Act has come into force, I should give effect to the provisions of that section so as to affect the rights of the parties retrospectively. The decision of the Federal Court does not go to that extent. Under these circumstances, there is nothing that can be done to the benefit of the plaintiff.
(8) In the result, the appeal is allowed. The decree of the lower appellate court is set aside. The plaintiff's suit to dismissed. The appellant is entitled to costs throughout.
(9) Appeal allowed