(1) This second appeal is from the judgment of the District Judge, Nizamabad, given on 30th July, 1960, whereby the appeal preferred by the defendants was allowed and the plaintiffs suit dismissed. The short but important question which must necessarily be answered in this second appeal is whether S. 8 of the Hindu Succession Act, 1956 (hereinafter called the Act) governs a case, where the last Hindu male-holder died before the commencement of the Act and where he was succeeded by a female having limited interest, she without becoming the absolute owner, died after the Act came into force. In order to find out a satisfactory answer to this question it is necessary to mention a few facts. the plaintiffs - appellant instituted a suit for a declaration that the alienation made by Sayamma, the 1st defendant, who lands under a sale deeds, dated 9-12-1955 is a sham and nominal transaction and that the plaintiffs are the nearest reversioners to Pedda Saidu, the last male-holder of the property and that they are not bound by the said alienation after the death of Sayamma, the alienor.
(2) The defence raised was that Pedda Saidu died possessed of the suit property, that the plaintiffs are not entitled to sue for the declaration as they are not the nearest heirs of Pedda Saidu and that the alienation is not assailable because it was effected by Sayamma for legal necessity. It was also contended that the suit is not maintainable in view of S. 14 of the Act.
(3) The trial court decreed the plaintiffs suit holding that the plaintiffs are the nearest heirs entitled to succeed to the estate of Pedda Saidu. The learned District Munsif also held on all the issues against the defendants. The defendants, therefore, preferred an appeal which was allowed, It was held by the District Judge that s. 8 of the Act governs the instant case and in the light of the schedule to S. 8 of the Acts plaintiffs are not superior heirs to Pedda Saidu and they are not, therefore, entitled, to sue. It is this view of the learned District Judge that is now assailed in this second appeal.
(4) The principal contention of Mr. Jaleel Ahmed, the learned counsel for the appellants is that inasmuch as Pedda Saidu admittedly died long before the Act came into force the suit was instituted on 25-1-1956 by the reversioners for declaration that the alienation made by the widow is not binding upon them. Although Sayamma dies on 4-9-1956 during the pendency of the suit and the Act came into force in July, 1956 it is the orthodox Hindu Law which governs the case according to which the plaintiffs are the heirs to Pedda Saidu, the last male-holder. It is convenient here to read S. 8 of the Act :
'8. the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter :-
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule ;
(b) Secondly, if there is no heir of Class 1, then upon the heirs, being the relatives specified in Class II of the Schedule ;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased ; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.'
It is not necessary to extract the Schedule because it is admitted that in case S. 8 governs the instant case it is Sayamma, the brother's daughter of the last male-holder, who is a preferential heir to the plaintiffs who are the sons of bother's sons of the last male-holder.
(5) The contention of Mr. Jaleel Ahmed is that on the language of S. 8 it, must be held that the section would apply only to the succession of male Hindu if the male Hindu dies after passing of the Act. If, however, the male Hindu dies before the Act, S. 8 has no application. reliance is placed on the opening words dying intestate shall devolve'.
(6) It is plain that for a proper appreciation of the question thus raised it is essential to understand not only the scheme of the Act but the fundamental changes which have been effected by the Act in the relevant rules of Hindu Law. The Act brings about some fundamental and radical changes in the law of succession hitherto applicable to Hindus. The scheme of the Act in the matter of succession of the property of a Hindu dying intestate is to lay down a set of general rules in succession to the property of a male Hindu in Ss. 8 - 13 including the rules relating to ascertainment of shares and portions of the various heirs which may be described as the statute of distribution. Thus, Ss. 8 - 13 constitute fasciculus of rules which must be read together. Section 8 prescribes a new and different scheme of succession and lays down certain rules of succession These rules are pivotal and they have to be read along with the schedule.
Thus read it will be noticed that the changes these sections brings about in the law as it stood prior to this enactment are far-reaching and basic. the important changes amongst others are that the two systems of inheritance to the separate or self-acquired property of a male intestate which have hitherto provided under the Dayabhaga and Mitakshara schools are abolished and a uniform system as propounded in S. * read with the schedule comes into operation. The three classes of heirs recognised either by the Mitakshara school or the Dayabhaga school ceased to exist in cases of devolution taking place after the Act. Instead the heirs are now divided into four classes mentioned in S. 8 of the Act. The property devolves according to the rules amongst these classes.
One essential principle that ran through the estate inherited by a female heir, namely, that she took a limited estate has been completely abolished ; she now takes it as an absolute owner. Numerous females are now added to the list as the heirs to the property. Their position in the line of heirs is considerably improved and the status of the widow, mother and daughter, is elevated to that of a son. These and other changes introduced by the Act have undoubtedly not only changed the old concepts in regard to succession but it has also created some new problems which have to be tackled keeping in the view the object of the legislation. It is in this background that we have to see whether S. 8 applies to the instant case.
(7) It is true that Mulla at p. 941 has observed in reference to the opening words of S. 8 :
'The language of the section and particularly the words 'shall devolve' plainly indicate that the section is prospective in its operation. It applies where on death of a male intestate devolution of his property takes place after the commencement of the Act and does not govern succession to the property of a male Hindu whose death took place before the commencement of the Act. In the latter case all question of inheritance would be determined according to previous law'.
The learned author referring to Hiralal Rao v. Kumud Behari, (s) : AIR1957Cal571 and Lateshwar Jha v. Mt. Uma Ojhain, : AIR1958Pat502 observed in the foot note that
'observations on the meaning of the words dying intestate' in this section made in the above said cases were in a different context. There are observations to the effect that S. 8 is retrospective which also seem to have been made in a different context and are obiter. Obviously this section cannot have retrospectively operation.'
(8) Similarly, Raghavachariar on Principles and Precedents of Hindu Law observes at p. 803 without making any statement such as above :
' 'Dying intestate' 'occurring in this section are words of mere description indicating the status of the deceased and have no reference to the time of death.'
(9) Based on the observations of the learned author, Mulla and relying upon Renuka Bala v. Aswini Kumar, : AIR1961Pat498 , Mr. Jaleel Ahmed submits that as the last Hindu male-holder died long prior to the Act came into force, it is the old Hindu Law which must govern the case, according to which the plaintiffs are superior heirs to Sayamma, the brother's daughter. it seems to manifestly clear that this contention is incorrect not only as a matter of principle but also as a matter of authority. It must be noted that whereas in Ss. 6 and 7 of the Act the opening words are 'where a male Hindu dies after the commencement of the Act,' this expression is omitted in S. 8. Instead we have the words as extracted above. This change in the language, in my judgment is not without significance . It shows that the Legislature was aware of some contingencies or class or cases where although the male Hindu may have died intestate before the act, but the succession may open out as in the present case after the Act has come into force. In such cases obviously the Legislature did not intend to apply the old law merely because the death of the male Hindu occurred before the Act.
The intention appears to me to be clear that the law in operation at the time when succession opens would apply. It cannot be in doubt that after the death of the last male-holder if the property is inherited by a female having life interest, there is no vesting of any interest in the body of reversioners. In the lifetime of such limited owner the reversionary right is a mere possibility or spes successionis. This possibility is common to all the reversioners living. It cannot, however, be predicted as to who would be the nearest reversioner at the time of the death of the limited owner, because it is at that point of time that the succession to the last male-holder opens. The question as to who is the nearest reversioner or what is the class of reversioner must naturally be settled at the date of the expiry of the limited ownership.
It is thus clear that it is limited owner, who intervenes that opens the inheritance to the reversioners and the one most nearly related at that point of time becomes entitled to the property as heir of the last male-holder. What the reversioner has, therefore, before such a succession opens is a contingent right which may materialise if he happens to survive the limited owner. The reversioner may, however, institute suits during the lifetime of the limited owner to remove any apprehended common injury to their interest. But that is very much different than saying that he has any vested interest. The reversioner's rights during the life time of the limited owner are merely of a protective character. thus when the succession to the last male-holder would open after the death of the limited owner and that the reversioner who is most near at that time would succeed to the estate, it must follow that the change in the rules of Hindu law brought about by the Act would apply as it is that law that is in force at the time when succession opens, the old law having been repealed.
(10) In this connection it is relevant to note that S. 4 of the Act lays down the over-riding effect of the Act on the law as it obtained previously, the effect of which is that if there is any provision in the Act in respect of any matter governed by the Hindu Law previously, then the provisions of the Act would prevail and the provisions of the Hindu Law to the extent it related to that matter stand nullified. Section 4, therefore, abrogates all the rules of law of succession hither to applicable to Hindus. I am, therefore, clearly of the opinion that although the last male Hindu died before the Act, but since the widow having the limited interest which did not become absolute under S. 14 of the Act as she had already alienated the property under a sale-deed before the Act came into force, died after the Act, in such a case succession has opened to the property after the Act came into force. It is S. 8 therefore, which must govern the case.
It need not necessarily be said that S. 8 is retrospective. In fact it is unnecessary to so hold. As the succession opens on the death of the limited owner, it is the law which then prevails that would apply to the succession and not the law which was in vogue at the time when the last male-holder died. It is sufficient to say that the opening words 'dying intestate' are a mere description of the status of the deceased and have no reference and are not intended to have any reference to the time of the death of the Hindu male. The words merely men in the case of intestate of a Hindu male'. Any view, therefore, that in order to attract S. 8 in all cases the last male-holder must have died after the commencement of the Act is neither true in principle, nor correct, in view of the authorities. In general it is true that S. 8 will apply to cases where the last male Hindu dies after the Act comes into force, but there are some cases like the present one where S. 8 will govern the rules of succession propounded in Section 8 read with the schedule. This Section 8 read with the schedule. This interpretation will further be in consonance with the spirit of the Act. I have already stated that the intention of the Legislature is to bring about radical changes in the rules of succession and elevate the status of the womenfolk. Section 14 is a pointer to this direction. It is true that sub-s (2) of S. 14 leaves certain types of cases outside the purview of S. 14 Nonetheless S. 14 confers absolute right on those limited owners who happen to be in possession of the property on the date when the Act came into force.
It must also be remembered that the expression 'possession' occurring in S. 14 has been interpreted to have a broader and wider meaning. Even if the limited owner is entitled to possession, S. 14 get attracted. It is thus seen that the general trend of the Act is to abolish the limited ownership and confer as far as possible absolute rights immediately after the Act on limited owners except those which are left out limited owners except those which are left out under S. 14(2) of the Act. In cases which are left out under S. 14(1), that is to say, cases in which the limited owners are not in possession of the property at the commencement of the Act and have not acquired absolute rights, undoubtedly if the limited owners die after the Act it is S. 8 that will govern the cases, although in such cases the limited owner does not become the fresh stock of descent. In all other cases where they have acquired absolute rights, they are considered to be the fresh stock of descent. It is thus clear that very small area of cases where limited owners have failed to obtain absolute rights are left out ; but in those cases also the old Hindu Law has not been applicable, but it is S. 8 which undoubtedly improves the line of succession and elevates the place of women, that would apply. Any other inter-women, that would apply. Any other interpretation of S. 8 would cut at the very root of the object of the Act and would result in anomalous position which it is difficult to say was intended by the Legislature.
(11) I am fortified in my conclusion by a decision of the Privy Council in Duni Chand by a Mt. Anar Kali, AIR 1946 PC 173. Prior to this decision there were several decisions deciding almost on the same lines of various Indian High Courts.
(12) To mention a few such prominent decisions:
(a) Lakshmi Ammal v. Anantharama Ayyangar, AIR 1937 Mad 699 (FB)
(b) Mt. Rajpali v. Surju Raj. AIR 1936 All 507 (FB).
(c) Pokhan Dusadh v. Mt Manoa. AIR 1937 Pat 117 (FB).
(d) Shakuntala Devi v. Kaushalya Devi AIR 1936 Lah 124.
Their Lordships of the Judicial Committee observed : -
'The description and preamble of the Act (Hindu Law of Inheritance) (Amendment) Act (1929), make it clear that the object of the Act is to alter the order of succession of certain persons therein mentioned, namely a sons daughter daughter's daughter, sister and sister's son and to rank them as heirs in the specified order of succession next after a father's father and before a father's brother.
The words 'dying intestate' are a mere description of the status of the deceased and have no reference and are not intended to have any reference The words m and are not intended to have any reference to the time of the death of a Hindu The words merely men in the case of intestacy of a Hindu male'.
(13) It is no doubt true that the abovesaid cases are not under the Act, but are under the Hindu Law of Inheritance (Amendment) Act, II of 1929. That does not, however, in any opinion make any change. The preamble of the said Act also uses the expression 'dying intestate', which has been used in S. 8 of the Act. When the Privy Council clothed that expression with a certain meaning, unless the Legislature uses that expression in a subsequent legislation for a different or contrary purpose, it must be presumed that the Legislature after accepting the meaning given to that expression has used it in S. 8. Nothing contrary can be pointed out. It is difficult to posit that the object behind the Act, II of 1929 was not the same as is behind the Act.
It is true that Act II of 1929 was enacted for a limited purpose. But it does undoubtedly bring about changes in the line of succession and elevate the status of certain heirs. That object is again kept in view while legislating the Act, but the change brought about by the Act is more fundamental and basic and radical in its character. It makes innumerable changes and elevates the position of numbers female heirs. The object must have been widened. Nevertheless the spirit behind both these Acts is the same and that is to reform the traditional Hindu Law and remove the anomalous and unjust treatment meted out to certain heirs under the orthodox Hindu Law. These cases, therefore, would certainly apply to find out the meaning of not only the expression 'dying intestate', but would be helpful in finding out the true intention and meaning of S. 8 of the Act.
(14) Apart from the abovesaid cases the following cases which are directly under S. 8 of the Act support the conclusion to which I have reached.
(a) Kuldip Sigh v. Karnail Singh,
(b) Bepin Behary v. Sm. Lakshasona Dassi, : AIR1959Cal27 .
Viewed in this light the observations and the foot-note at P. 941 of Mulla on Hindu Law do not in my opinion expound the wholly correct position of law. The cases referred to in the foot-note lend considerable support to the view which I have taken. I have already stated that S. 8 may not be retrospective in its effect. But that does not mean that the devolution of the property cannot take place under S. 8 when the succession opens out after the Act in cases where the female limited owner dies after the Act. It is not necessary in all cases that the last male-holder must die only after the Act in order to attract the provisions of S. 8. It is only in that context that the observation of Raghavachariar extracted above has to be understood. I do not think that the learned author, Mulla had in view the cases of the type like the present ones, when he made the abovesaid observations. The learned author probably wanted to convey that S. 8 is not retrospective in its operation. If, so, there cannot be any quarrel with that proposition. But if it means that in a case like the present one S. 8 does not govern, I must respectfully disagree with any such interpretation.
(15) Mr. Jaleel Ahmed relied upon : AIR1961Pat498 , and strenuously argued that in the light of the said decision I must hold that S. 8 does not govern the present case. It is true that a bench of the Patna High Court held :
'It is not correct to say that S. 8 is retrospective and would apply to all cases of intestacy of a Hindu male without having any reference to the time of death of such a male Hindu, and the property of such a deceased male Hindu would devolve on his heirs mentioned in the Schedule of the Hindu Succession Act, 1956. Whatever room there may be for an argument in support of the application of S. 8 to a case of succession opening on the death of a limited owner subsequent to the Act, this section cannot have a retrospective application to divest others in whom the property already vested as full owners, according to the undisputed rule of succession prevailing at the time of such devolution.'
The reasoning employed to arrive at this conclusion appears in different paragraphs of the judgment. Referring in para 13 to the well-known principle of the Hindu Law that there can be no vaccum in succession to a property their Lordships observed :
'Properties of female Hindus must have devolved upon one class or other heirs on their death, that occurred previous to 1956, according to the Hindu Law then prevailing. It cannot be suggested that those devolutions would undergo an alteration on the new Hindu Succession Act coming into force. Property already vested cannot be divested by introduction of a new enactment.'
Their Lordships constructed the words 'shall devolve' and held that they point to the application of the provision to deaths that may occur after the Act. Rejecting the contention raised that a fictional death will supposed to attract the new rule of succession of the last male-holder on the day when the limited owner died, their Lordships thought that that contention is not at all warranted by the language of the section. They observed :
'Wherever a legal fiction was sought to be introduced to work out the succession the Legislature provided for that in clear terms in this Act.'
Their Lordships observed at p. 504 :
'The line of heirs of the last full owner is, therefore, to be one in which the limited owner was in heir priority, and this cannot but be with reference to the time when the limited owner heir succeeded, that is, the time of death of the last full owner. In that view the line of succession under the prevalent law in 1936 when Manorama and Amala died will be relevant for tracing the next heir to succeed to their estates on the death of Urmila (defendant No. 2)'.
On the same page their Lordships repelled the contention by observing :
'The contention assumes, and in my view, wrongly so, that the Hindu Succession Act, 1956, and the Hindu Law of Inheritance (Amendment) Act, 1929, are enactments of the same kind in the matter of succession among the Hindus.' Referring to the decision of the Privy Council in AIR 1946 PC 173, their Lordships thought :
'I should point out here that the effect of the use of the words shall be entitled to rank' in S. 2 of that Act do not appear to have come for consideration of their Lordships.' and held '
'. . . . . the general and fundamental principles underlying the Mitakshara Law of succession were not affected by the amending Act of 1929. The Hindu Succession Act, 1956, is entirely of a different character. It replaces the general rules of succession of the Hindus dying intestate in respect of all matters, of which provision has been made in the Act. Those matters, of which there is no provision in the Act, are still to be governed by the old Hindu law. Section 4 makes that clear. Either of the Ss. 8 and 15 provides an order in which there shall be devolution of property of a Hindu dying intestate.'
Their Lordships continued :
'The words 'shall devolve' unmistakably point out application of the Act to incidence of devolution of property that will be caused after the coming into effect of the Act, and that devolution will be on account of the death of the male Hindu in respect of his property (including the undivided interest of a Hindu Mitakshara coparcenary)'.
(16) Accepting the meaning given by the judicial Committee to the words 'dying intestate' their Lordship make a difference between the tow kinds of devolution of property of male Hindu. Their lordships thought:
'The devolution of property, spoken on in that Section 8, refers to the first devolution on account of actual death; and to such devolution that would occur after the commencement of the Act. The other kind of devolution of the Act. The other kind of devolution of property of a male Hindu, which happens on succession being again opened on the death of a limited owner, who inherited the property immediately on the actual death of the limited owner, is not envisaged by the section. The circumstances and the incidence, relating to the existence of limited owners or restricted estates, have been kept out of the ambit of the Act. In that connection I have already referred to sub-clause (2) of S. 14. Reading Ss. 8, 14, 15 and 16 together I am left with the conclusion that succession of property of a male or female Hindu on his or her actual death has been reoriented by this Act. Other kinds of succession about such property relating to the intervention by a limited owner are left to be governed by the Old Hindu Law.'
This interpretation their Lordships thought is not inconsistent with the scheme of the Act. it is on these reasonings that their Lordships came is on these reasonings that their Lordships came to the conclusion extracted above.
(17) Now as far as the conclusion that S. 8 is not retrospective is concerned I have already stated that it need not be so held. But the two reasons employed for the purpose of reaching the conclusion do not, in my judgment, with due respect, appear to be correct. I have already stated that not only 1929 Act brings about certain changes in the traditional Hindu Law, but the 1956 Act goes a long was in bringing about changes of radical character. It is not correct to say that the two enactments are not similar, or do not stem from the same objectives. There is no warrant for any argument that the reversioners get vested interests although the property is inherited by a limited owner. Any such argument is contrary to the principles of Hindu Law. In AIR 1937 Mad 699 (FB), a Full Bench of the Madras High Court held :
'The Hindu Law conception is this : So long as a female heir is alive, no one can claim any vested interest in succession, a fortiori there is no vesting at the date of the male holder's death, in other words, the crucial date is that of the death of the female heir, on whose death alone the succession opens.'
(18) This view has been continuously reiterated by several decisions of the Judicial Committee culminating in AIR 1946 PC 173, referred to above. The Full Bench further held :
'Under Hindu Law, it is the death of the female heir that opens the inheritance to the reversioners, who till then possess an inchoate right, generally termed a spes successions in other words, the male-holder is regarded by the Hindu Law as having led up to and died at the moment of the death of the female heir, When a female heir intervenes, therefore the fictional death of a Hindu male is something different from his actual death, the result being that the date of his death is for this purpose postponed to the death of the limited owner. Thus there is no vesting at the date of the male-holder's death, in other words the crucial date is that of the death of the female heir, on whose death alone the succession opens.
Where, therefore, a Hindu male dies intestate before the passing of Act 2 of 1929, leaving a limited female heir who is alive after the Act 2 of 1929 has come into force, the succession to the deceased male members opens the provisions of that Act.'
It was further observed by the Full Bench :
'The position of a Hindu widow or other female heir is an anomalous one, for, although she is said to possess a qualified interest, she can in certain circumstances alienate the entire estate. She is thus in one sense the heir of the last male-holder.'
In the view, which the madras High court has taken I do not think I can subscribe to the view taken in the abovesaid case of the Patna high Court. There is no justification, in my judgment , so that there are two classes of devolution after the death of the last male-holder and it is to the first devolution that S. 8 applies. The devolution in this case has taken place after the Act, because the limited heir died only after the Act. It is not in consonance with the principle to say that the first devolution and already taken place in favour of the limited heir after the death of the last male-holder. In a sense it may be so, But that does not necessarily mean that the devolution which takes place after the Act because of the death of the limited heir is not governed by S. 8.
When succession really opens to the property of the last male-holder after the death of the limited heir, it is the law which is in vogue at that point of time that would be applicable to such succession and not the old law. The reasons given to distinguish the Privy Council ruling do not appear to me to make any distinction . The meaning attributed to the expression dying' intestate' will have to be followed. The better view, in may case, appears to me to be the one which is taken by the abovesaid decisions both under the Act. I would therefore, prefer to closely adhere to what has been stated in those rulings.
(19) It is conceded that if S. 8 governs the case after the death of Sayamma, the 1st defendant, during the pendency of the suit, the plaintiffs not being the nearer heirs under S. 8 read with the schedule, do not succeed to the property of the last male-holder, who succeeds. That being the position, the plaintiffs cannot have any relief in this case. They have no locus standi to continue the suit after the death of the 1st defendant. The lower appellant court , Therefore in my view reached the correct conclusion. The suit, therefore, dismiss this second appeal with costs. No leave.
(20) Appeal dismissed.