M. Hidayatullah, C.J.
1. This appeal is by the defendants, one of whom Tilakchand died during the pendency of the civil suit and only three of the original defendants are now left. Of These, the first appellant Janku was the widow of Laxman, and she transferred 7.39 acres out of khasra No. 343/1 (left by her husband Laxman) to the other defendants by a registered sale deed dated 28 March, 1951. This transaction was challenged by the plaintiff-respondent successfully in the Court below, and he obtained a declaration that the transfer was not binding on him after the death of Mst. Janku. The present appeal is filed against that decision.
2. It may be pointed put that the learned counsel for the appellant did not challenge the decision on the ground that legal necessity had been established in the case. The findings, therefore, on the subject of legal necessity, consideration, and the genuineness of the transaction remain unaffected. The appellants have stated their case entirely under the provisions of the Hindu Succession Act, 1956 (Act 30 of 1956), and particularly Chapter III of that Act. A decision of a Full Bench of this Court reported in Mst. Lukai v. Niranjan, 1958 MPLJ 244 : (AIR 1958 MP 160) (A), governs the case.
The learned counsel for the appellants requested us to reconsider the matter in view of the decisions of the Allahabad and the Patna High Courts reported in Hanuman B. Prasad v. Indrawati, AIR 1958 All 304 (B) and Ramsaroop v. Hiralal AIR 1958 Pat 319 (C), respectively and the cases relied upon by the Division Benches in those cases. I do not think that we should refer the matter for further consideration because the view of this Court is supported by a number of decisions of High Courts in India which have been cited in the Full Bench case. However, I consider it necessary to state why the view of these two High Courts is not acceptable to me.
3. In so far as the Allahnbnd case is concerned, the Division Bench there accepted the proposition that Section 14 of the Act is not retrospective in every way. According to the learned Judges, the provisions are retrospective only if the widow continued to hold the property on the date the Act came into force and they are prospective in respect of property acquired by the widow subsequent to the Act. The learned Judges interpreted Section 14 in the same way as the Full Bench.
They stated that if a widow had alienated the property without legal necessity and the alienation was invalid according to Hindu Law, it remained invalid and its invalidity was not affected at all by the provisions of Section 14. They, however, held further that since the reversioners as a class had disappeared, a declaratory decree obtained by a reversioner before the Act came into force could not be maintained in appeal after the Act came into force because the declaration that the alienation would not be binding on him on the death of the widow was rendered futile by the Act.
4. In the Patna case the learned Judges took a different view of Section 14 and interpreted the word 'possessed' as implying past or present or future possession. They, therefore, held that the section was retrospective to the fullest extent and increased the rights of the Hindu widow retrospectively.
5. I do not agree -- and I say it respectfully -- with the interpretation placed by the Patna High Court upon the word 'possessed' in Section 14. It tends to make the section read as follows :
'Any property of a female Hindu, whether possessed or not, but acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner'. It is obvious enough that the section does not have such a meaning. The section reads :
'Any property possessed by a female Hindu,.... .shall be held by her as full owner thereof. . .
This shows that to attract the provision bettering her rights therein the property must have been possessed by the widow when the Act came into force. The words 'whether acquired before or after the commencement of this Act' qualify 'property' and make the section applicable to properties acquired before or after the commencement of the Act. They have no relation to the word 'possessed' because they qualify 'property' and not 'possessed.' The cardinal condition in the section is possession' by the widow, which must be present before the section is applied to better her rights in the property.
It is quite clear, therefore, that the widow who-is not in possession but has parted with it before; the Act came into force cannot have the benefits of the section; a fortiori any transferee by her before the commencement of the Act cannot be given the benefit of the provisions of Section 14 either, because no such provision exists.
6. What I have said above accords with the view taken in the Full Bench case and the opinion in the Allahabad case. I, therefore, do not feel that any useful purpose will be served by referring the case to a bigger Bench to consider the view propounded in the Patna High Court.
7. The next question is whether the view expressed by the Allahabad High Court demonstrates any error in the decision of the Full Beach. That view is based on Section 15, and it shows that reversioners as a class have disappeared. Section 15 does no more than lay down the order of succession in the case of Hindu females, the rules whereof are to be found in Section 16. No doubt, if a Hindu female died possessed of property in which her rights had already been improved by the application of Section 14, the reversioners would not have any claim to it.
The property to which Section 14 applies is held by the widow as a full owner and she becomes in respect thereof a fresh stock of descent without advertence to how the property came to her. In respect, however of property not in her hands and which is not improved in this manner there is nothing to show that the rules of Hindu Law have been abrogated. Section 4 of the Act, no doubt, makes the Act override any test, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before its commencement; but it docs not say anything about the nature of the property nor how it shall be disposed of, particularly in cases where the widow has done everything to put herself out of the benefit of Section 14.
In my opinion, if Section 14 does not apply, Section 15 also has no place, and the property devolves according to Hindu Law because rights in ownership of the property can only be effected to the extent provided in Sections 14 and 15 and no more. It is not possible to give any more retrospectivity to Section 14 of the Act.
8. The view which was propounded by the Andhra High Court and accepted by the Full Bench emphasized this aspect of the case. I have in this Court preferred that view, and I do not think it necessary to refer the Full Bench decision for reconsideration by a bigger Bench in view of the additional reasons given here.
9. The appeal therefore fails and is dismissed with costs.
P.K. Tare, J.
10. As there is a conflict of views between the different High Courts regarding the interpretation of Section 14 of the Hindu Succession Act 1956, I deem it necessary to join the controversy, as the law is not yet settled by their Lordships of the Supreme Court. I have had the advantage of perusing the judgment of my Lord the Chief Justice. Although I am in entire agreement with the views expressed by him, I would like to examine the reasons that led the learned Judges of the Allahabad and Patna High Courts to dissent from the view expressed by the other High Courts, including the Full Bench decision of this Court in the case of 1958 MPLJ 244 : (AIR 1958 MP 160) (A).
11. The controversy has centred round the word, 'possessed' occurring in Section 14 of the Act. The learned Judges of the Patna High Court in the case of ATR 1958 Pat 319 (C) were mainly influenced by the fact that the word 'possessed' was nut qualified in any way by the Legislature. Therefore, the word could be interpreted really to mean -- 'to be possessed'. The other consideration weighing with the learned Judges was the enactment of Sections 15 and 16 of the Act, which lay down a new rule of succession to the property of Hindu females.
The existence of the two sections is taken to result in the abolition of the class of reversioners. Therefore, the learned Judges were of the view that the provisions of the Act were partly retrospective and partly not. Holding that the grantee would be in the same position as the grantor, Misra, expressed that the alienee from the limited owner would have the same rights, as the limited owner herself. Therefore, the reversioner's light to challenge the alienation was said to have abated consequent upon the enactment of the Hindu Succession Act, 1956.
12. As regards the case of AIR 1958 AH 304 (B), the view regarding the retrospective nature of the Hindu Succession Act approximated the Full Bench view of this Court in the case of Msf. Lukai v. Niranjan (A) (supra), but what ultimately weighed with the learned Judges of the Allahabad High Court was the provisions of Sections 15 and 16 of the Act, which were said to have resulted in a total abolition of the reversioners as a class.
13. It is to be seen if the Hindu Succession Act is retrospective in its operation. Sections 14, 15 and 16 admittedly confer an absolute estate upon Hindu females, irrespective of the fact that they have held the same as limited owners till the time the Act came into force. If the Hindu female be alive and possessed of property, as a limited owner, she will be deemed to be an absolute owner with effect from the time pf enactment of this Act and the succession to her property would be governed by Sections 15 and 16 of the Act.
This would be in spite of the fact that she herself got the property some time in the past as a Hindu woman's estate. Can it be said that merely because her limited right, which accrued in the past, and which stands converted into an absolute right now by virtue of Section 14 of the Act, the provisions of the Act are partly retrospective and partly not, as was the view of the learned Judge of the Patna High Court No provision of the Act any where suggests the retrospective nature of the Act.
The words 'retrospective' and 'retroactive' have been synonymously used by Crawford in his book 'Statutory Construction' in Section 77 at pages 109 and 110; Section 277 at pages 562 and 563; Section 306 at pages 622 and 623 and Section 327 at pages 673 and 676. An Act cannot be called retrospective, or retroactive, merely because a part of the requisites for its action is drawn from a time antecedent to its passing. (See -- 'Craies' on Statute Law page 357 -- Fifth Edition, and 'Maxwell' on The Interpretation of Statutes, page 220, Tenth Edition, as also the case of Master Ladies 'Tailors' Organisation v. Ministry of Labour, 1950-2 All ER 525 (D).
Therefore, strictly speaking, Section 14 of the Act cannot be said to be even partly retrospective, as was held by the learned Judges of the Allahabad High Court, who were of the opinion that it is only prospective. It is not possible to accept the view that Section 14 is retrospective in its operation, or that it is partly retrospective and pratly not. According to the rules of statutory interpretation, what Section 14 of the Act does is merely to confer upon a Hindu female absolute right in property prospectively irrespective of the fact that she had held the property as a limited owner till the commencement of the Act.
Further, what sections 15 and 16 of the Act do is to lay down a rule of succession to her property, which becomes her absolute property from the commencement of the Act. As such, the conclusion that the reversionary right stands extinguished respecting such absolute property, appears to be the necessary and inevitable corollary of the enactment of Sections 14, 15 and 16 of the Act.'
14. As regards the interpretation of the word 'possessed' occurring in Section 14 of the Act, the learned Judges were mainly influenced by the fact that the Legislature had not qualified the word and therefore, it could be deemed to imply past, present as also future possession. It is necessary to see in what exact sense, the word 'possessed' has been used. It cannot be said that the intent of the Legislature was to use the word in the sense of mere physical possession.
But the word appears to have been used in the sense of a right to possess, conveying the suggestion of title or ownership. If the proposition that the Act is partly retrospective and partly not, be correct, then alone, the construction placed by the learned Judges of the Patna High Court would be tenable. But if the Act cannot be said to have any retrospective operation, it would be a violation of statutory constructions, to add words and to imagine that possession, past, present, or future is contemplated, as the Legislature, in its wisdom, did not choose to qualify the word -- 'possessed'.
The word cannot be construed in isolation divorced from the general context and the scheme of the Act. If the proposition that the Act has no retrospective operation be correct, the only reason-able interpretation to be put on the phrase 'possess-ed' would be none else then in the sense of conveying the meaning of a right in praesenti.
If there be no right in praesenti vesting in the limited owner, an alienee from her could not be allowed to take advantage of Section 14 of the Act and to contend that the alienation in his favour is immune from a challenge at the instance of the next heir or an expectant heir. As the wording of Section 14 indicates, it has merely conferred an absolute right on a Hindu female. Had it been the intention of the Legislature to confer immunity upon her alienees, a specific provision to that effect would have been made.
It would be unwarranted to attribute that intent to the legislature. If the interpretation put by the learned Judges of the Patna High Court were to be accepted as correct, the result would be that any alienation made by a Hindu female prior to the commencement of the Act would be immune from a challenge after the Act, although it may not have been for legal necessity. What Section 14 confers on her is absolute right in place of her limited right and nothing more.
At any rate it cannot be said to be conferring on her immunity in respect of her past acts. For instance many State Legislatures enacted ex post facto legislation indemnifying the public servants guilty of excess of authority during the national uprising of the year 1942 and the war times. Can it be said that Section 14 of the Hindu Succession Act 1956 has indemnified all the past acts of a limited owner? Such an interpretation would be nothing short of judicial legislation under the cloak of interpretation, which could be permissible only in the event of there being found an ambiguity in the enactment to be interpreted.
15. The other consideration that weighed with the learned Judges of the Patna and Allahabad High Courts was the enactment of Sections 15 and 16 in the Act, which lay down the rule of intestate succession to the property of a Hindu female. It is true that after the Act there is no reversionary right in existence in respect of the property which becomes her absolute estate. But the reversioners as a class have been abolished with respect to the Hindu female, who has been invested with an absolute right.
If the proposition that Section 14 of the Act does not indemnify the past acts of the limited owners be correct, can it be said that the reversioners as a class have been abolished vis-a-vis the alienees from the limited owner. The answer would be no, if it be correctly assumed that the Act has no retrospective operation, but has only a limited operation as regards the rights of the limited owner.
If the premises set out be initially incorrect, the answer would be in the negative. I would say in all humility that the premises cannot be said to be incorrect,
16. The enactment of Sections 15 and 16 is apparently the real difficulty in the way of the proposition sought to be propounded for the view that a reversioner's suit for declaration does not abate. It might be argued against the proposition that the decision of the question is premature now, as long as the Hindu female is alive and that the question would be relevant when she dies hereafter, when succession would reopen and when admittedly Sections 15 and 16 of the Act would become operative irrespective of any other custom or usage of Hindu Law.
This question has been fully answered by the opinion of the Full Bench in the case of Mst. Lukai v. Niranjan (A) (supra) to the effect that Sections 15 and 16 of the Act would be operative only in respect of property which becomes the limited owner's absolute property under Section 14. They would have no application to a case, where the reversioner, either before or after the Act obtains a declaration that the alienation is not binding on him after the life time of the limited owner.
If the Act has no retrospective or retroactive operative respecting the past transactions effected by the limited owner, the alienation would be subject to the rule of Hindu law regarding legal necessity. The alienee could not claim immunity, merely due to the enactment of the Hindu Succession Act. As such the reversioner's suit for a declaration would not abate. Consequently Section 14 of the Act, for this additional reason would not be attracted so as to further attract the operation of Sections 15 and 16.
It would involve adjudication of the right of the reversioner vis-a-vis the alienee. If the transaction be for legal necessity, the alienee would get the property and if not, the reversioner would get the declaration. The limited owner or her heirs under Sections 15 and 16 of the Act would be out of the picture altogether and after her death, the reversioner would get the estate by virtue of the declaration, if he be the nearest heir at the time of the death.
17. The interpretation put by the Full Bench of this Court, as also, the Calcutta, Andhra, Travan-core-Cochin and the other High Courts would clothe the suing reversioner with the rights of an heir, while the view of the Allahabad and the Patna High Courts, as also, the Division Bench of this Court in the case of Dhirajkunwar v. Lakhansingh, 1957 MPLJ 137 : ((S) AIR 1957 MP 38) (E), would result in conferring immunity upon all past transactions of the limited owners and thereby it would result in unduly benefiting the alienees at the cost of the next heir of the limited owner. As such the view that would work lesser injustice would be preferable according to the rules of interpretation, than the view which would have the effect of causing greater injustice. In the case of Simms v. Registrar of Probates, 1900 AC 323 (F), Lord Hob-house remarked-
'Where there are two meanings, each adequately satisfying the meaning, and great harshness is produced by one of them, that has a legitimate influence in inclining the mind to the other..... it is more probable that the Legislature should have used the word in that interpretation which least offends our sense of justice'. Applying this test, the construction put by the Calcutta and the Andhra High Courts, as also the Full Bench of this Court would be preferable to the one put by the learned Judges of the Allahabad and Patna High Courts, as also the learned Judges of a Division Bench of this Court.
18. For the reasons aforesaid, I am of the opinion that the view taken by the learned Judges of this Court in the Full Bench case of Mst. Lukai v. Niranjan (A) (supra), as also the learned Judges of the other High Courts was in consonance with the rules of statutory interpretation. For this reason alone, the view is acceptable rather than the view expressed by the learned Judges of the Allahabad and Patna High Courts, as also the learned Judges of this High Court constituting the Division Bench in the case of Dhirajkunwar v. Lakhansingh (E) (sup.). Under the circumstances, I concur with my Lord the Chief Justice that it is not necessary to reconsider the view of the Full Bench by consti- tuting a special large Bench.
19. The appeal, therefore, fails and dismissed with costs.