T.C. Shrivastava, J.
1. The appellants had filed a suit for possession of agricultural lands and a house situate in village Maili. Tahsil Niwas, District Mandla. The suit was dismissed by the trial Court and the decree has been confirmed in appeal.
2. The facts in the case are no longer in dispute. The property in suit originally belonged to one Nathu Lodhi. Nathu died leaving Mst. Mungia, his widow, as his sole heir. Mst. Mangia died in the year 1962. The appellants, Keshri and Dasrath, are Nathu's daughter's sons. Respondent No. 1, Harprasad, is his distant relation Respondent No. 2, Chhabilal, is the son of Mst. Mungia by her previous husband, Bhangi, and came with her when she married Nathu. Respondent No. 3, Karodimal, is an outsider who did not appear at any time to contest the claim. The real dispute is between the appellants and respondent No. 2, Chhabilal. It is also not disputed that after the death of Nathu, Mst. Mungia came in possession of his estate as full owner under Section 14 of the Hindu Succession Act.
3. The only question which arises in this appeal is whether respondent Chhabilal, who is not the son of Nathu but the son of the previous husband of Mst. Mungia, is entitled to succeed in preference to the appellants who are Nathu's daughter's sons. In this connection Sections 15 and 16 of the Hindu Succession Act are relevant. Sub-section (1) of Section 15 provides that the property of a female Hindu dying intestate shall devolve firstly, upon the sons and daughters and the husband. It then goes to other heirs who are entitled to succeed. But we are not concerned with the Items (b) to (e) in that Section. Clause (b) of Sub-section (2), which is relevant for the present purpose, is as follows :
' (2) Notwithstanding anything contained in Sub-section (1)-
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified therein, but upon the heirs of the husband.'
This clause provides for the mode of succession to the property of the female Hindu which she had inherited from her husband and states that the property goes to her husband's heirs. However, it has to be borne in mind that Clause (b) operates only 'in the absence of any son or daughter of the deceased.' The deceased here obviously refers to the female Hindu. It is true that the words 'not-withstanding anything contained in Sub-section (1)' exclude the provision in Sub-section (1) in so far as the succession of the property inherited by a Hindu female from her husband is concerned. However, the special mode of succession Provided in Sub-section (2) itself restricts the application of Clause (b) to cases where there is no son or daughter. Where a son or daughter exists the heirs of the husband cannot succeed according to this sub-section and the property must go to the son or daughter.
4. The only question is whether the word 'son' should be restricted to the 'son' of the husband from whom the Hindu female inherited the property or it should include sons of the Hindu female irrespective of whether they are born of the husband whose property is in dispute or by any other husband. It was argued that the legislature intended to preserve the property to the branch of the person from whom it devolved on the widow and therefore the word 'son' should be restricted to mean a son of the husband whose property is in dispute. I do not see any reason to restrict the interpretation of the word 'son' in this manner. From the language used in Subsections (1) and (2) it is clear that the intention of the Legislature was to allow succession of the property to the sons and daughters of the Hindu female and only in the absence of any such heirs the property would go to the husband's heirs.
5. Shri Bakshi for the appellants relied upon Rule 3 in Section 15 of the Hindu Succession Act, but I do not agree that it is of any assistance to the appellants. Rule 3 would be attracted only when the succession opens in favour of the husband's heirs in the absence of any son or daughter of the deceased female. It is only in those circumstances that the fiction that the husband had died intestate immediately before the female's death would apply. That fiction has no relevance to the case where a son or daughter capable of inheriting the estate exists.
6. It is true that the idea of the property of her deceased husband passing to the previous husband's son is not in consonance with the orthodox Hindu law. But that alone cannot be a ground for interpreting the unambiguous language of Section 15 differently. In the scheme of Hindu Succession Act there are many provisions which are contrary to the orthodox Hindu law. In spite of this the effect has to be given to them. For instance, it appears to me that Section 15(1)(b) read with the definition of the word 'related' in Clause (i) of Section 3 will enable an illegitimate son of the Hindu female to succeed to the estate of her husband in preference to the husband's heirs This would be against the spirit of strict Hindu law but the intention to bring about this effect seems to be deliberate.
7. Raghavachariar in his Hindu Law, 5th Edn. states in his commentary of Section 15 at page 915 that 'the sons must necessarily mean the sons by both the marriages and also the daughters of such marriages including the children of any predeceased son or daughter.' The learned commentator is thus of the view that the word 'son' should be given its natural meaning and not a restricted meaning to confine it to the son of the husband whose property is left behind by the Hindu female.
8. Accordingly the decision of the Courts below dismissing the claim of the appellants is correct. The appeal is dismissed with costs. Counsel's fee in this Court as per the prescribed schedule of rates, if certified.