(1) Defendant No. 1 in the suit is the appellant before me. The suit, out of which this appeal arises, was instituted by the plaintiff claiming as reversioner of one Hanamgouda, deceased, for possession of the suit land. Defendant No. 2 is the widow of the said Hanamgouda. She executed a sale deed in favour of defendant No.1 of the suit properties for a sum of Rs. 1200/-. The widow remarried in the year 1948.
Thereafter, this suit was filed on 4-8-1951 by the plaintiff claiming to be reversionary heir of the said Hanamgouda. The plaintiff's case was that the sale in favour of defendant No. 1 was not supported by legal necessity. His further case was that the suit land being watan property, which is an admitted fact, the sale deed is void by virtue of section 5 of the Bombay Hereditary Offices Act.
(2) Defendant No. 1 alone contested this suit. His case was that there was legal necessity for the sale and he being a stranger to the watan section 5 of the Bombay Hereditary offices Act had no application to this case. The trial court dismissed the suit. It held that the sale was justified by legal necessity and that the defendant being a stranger to the watan was not hit by the provisions of Section 5 of the Bombay hereditary Offices Act.
On appeal, the Assistant Judge reversed the decree of the trial court. He held that there was no legal necessity. The learned Assistant Judge did not go into the other question viz. whether or not the sale deed was void by virtue of section 5 of the Bombay Hereditary Offices Act as, in his opinion, having regard to his finding on the question of legal necessity it was not necessary to go into it. This appeal has been filed against the decision of the lower appellate court.
(3) Two grounds were urged before me by the learned Advocate for the appellant. In the first place it was contended that the plaintiff was not on heir of Hanamgouda. It was urged that one Hanamawa, who was the sister of the said Hanamgouda, was his nearest heir. That being so, it was contended that the suit by the plaintiff was not maintainable.
This contention appears to have been raised also before the trial court; but the trial court did not accept the same in view of the fact that the property in question was watan property and under the provisions of section 2 of the Bombay Hereditary Offices Act a female other than the widow of the last male owner shall be postponed in the order of succession to say watan to every male member of the family qualified to inherit such watan or part thereof, or interest therein. Before me it was urged that in view of the provisions of the Hindu Succession Act, 1956, section 2 of the Bombay hereditary Offices Act was no longer operative.
Section 4 of the Hindu succession Act, 1956 provides that any law which is inconsistent with the provisions of the said Act, shall cease to apply to Hindus to the extent of the inconsistency. It was urged that section 8 of the Hindu Succession Act lays down the order of succession and, if that order has to be followed, Hanamawa was to succeed in preference to the plaintiff. This contention, in my opinion, would have been unanswerable if the succession in question in this case had opened after the Act came into force. The provisions of the Hindu Succession Act. 1956, are not retrospective in their operation.
In other words, in a case where a succession had already opened and the estate in question had already vested in persons in accordance with the law which was in force before the Hindu Succession Act came into force the said succession cannot be reopened and the vesting which has taken place cannot be divested. There is nothing in the Hindu Succession Act which makes it retrospective in its operation. That being so, the present case does not come within the purview of the said Act.
As I have already stated the widow remarried in the year 1948 and it is on that date that succession opened by virtue of the law then in force and the estate vested in the plaintiff. It is in 1956, i.e. about eight years thereafter, that the Hindu Succession Act came into force. The estate which has already vested cannot be divested by virtue of the Hindu Succession Act. In my opinion, the contention of the appellant therefore should be rejected.
(4) The other contention raised was that the lower appellate court was not justified in holding that the appellant failed to prove any legal necessity in view of the fact that there is an admission by the plaintiff himself which should have led the said court to hold that the initial onus, which was cast upon the appellant was discharged. The admission, which is relied on by the appellant, is that the plaintiff in the litigation, which was carried on between him and the widow had to spend about Rs. 2000/-. it was contended that because of this admission of the plaintiff it should be held that the probable expenses which the widow had to incur would be the same amount.
This contention was urged before the learned Assistant Judge but it was not accepted. In my opinion, the lower appellate court was correct in holding that it does not follow from this that defendant No. 2 i.e., the widow also must have spent the amount as the costs of the said litigation. The question of legal necessity, which is a question of fact, has been carefully dealt with by the learned judge in his judgment and I find no reason to disagree with his finding, even if I were permitted sitting in second appeal to do so. The result is that this contention of the learned Advocate for the appellant also fails.
(5) The appeal is therefore dismissed. Each party will bear its own costs of this appeal.
(6) Appeal dismissed.