1. This petition under Articles 226 and 227 of the Constitution is directed against a reversing order of the Board of Revenue dated 15 September 1961 by which a moiety of the compensation payable under the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952, in respect or four Pawai villages was directed to be paid to Msf. Munia (respondent 1).
2. The facts of the case may be briefly stated.
One Sawailal Singh and his two sons, Harisharan Singh and Shivsharan Singh, who were governed by the Mitaskshara law, jointly held a heritable Pawai consisting of six villages. Sawailal Singh died long ago, leaving behind his two sons. Shivsharan Singh died in 1946 (according to the petitioners, in 1939) survived by his widow, Mst Munia (respondent 1). The Hindu Women's Rights to Property Act, 1937 (18 of 1937), was extended to Vindhya Pradesh in 1990. Thereafter, Harisharan Singh died leaving behind him two sons, the present petitioners. Upon the commencement of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952, the pawaidars became entitled to compensation in respect of the six villages. Mst. Munia claimed a half of the compensation on the ground that she had inherited her husband's half share in the Pawai. By an order dated 1st June 1959, the Assistant Collector, Rewa, who exercised territorial jurisdiction over four out of the six villages, held that Mst. Munia was not entitled to a half share in those four Pawai villages and dismissed her application. By the order impugned before us, the Board of Revenue found that she had a half share in those villages and was, therefore, entitled to a corresponding share in the compensation payable therefor.
3. Relying upon Lateshwar Jha v. Uma Ojhain, AIR 1958 Pat 502, the Board has taken the view that Section 8 of the Hindu Succession Act, 1956 (30 of 1956) is retrospective in operation. That is the only ground on which the claim of Mst. Munia has been accepted. In Renuka Bala v. Aswini Kumar, AIR 1961 Pat 498, a Division Bench of the Patna High Court has expressly dissented from the view taken in the earlier case and held that Section 8 is prospective in operation. That is also the view taken in Appa Saheb v. Gurubasawwa, AIR 1960 Mys 79.
Apart from these cases, it is hardly necessary for us to point out that to gives to that section a retrospective effect would prejudice vested rights and unsettled estates which had long vested in others. Such a construction cannot be placed upon that section unless it appears very clearly from the terms therein used or arises by necessary and distinct implication. We may add that there is nothing in Duni Chand v. Mt. Anar Kali, 73 Ind App 187 : (AIR 1946 PC 173) which would lead us to give to Section 8 a retrospective operation. Indeed, when their Lordships interpreted the expression 'dying intestate' occurring in the Hindu Law of Inheritance (Amendment) Act, 1929 (II of (1929), they clearly stated that they were not giving to the provision a retrospective operation. There is nothing in Section 8itself to indicate that it is intended to be retroactive in operation. The use of the expression 'after the commencement of this Act' in Section 6 of the Act shows that it is prospective in operation, but that alone can be no reason for giving to another section a retrospective effect. Indeed, in our opinion, Section 6, which has been enacted by way of abundant caution, presupposes Section 8 to be operating in future and therefore restates for future application the pre-existing law relating to the devolution of coparcenary property.
We may add that whenever retrospective effect was intended, words like 'whether acquired before or after the commencement of the Act' as in Section 14 of the Act were employed and the matter was not left in doubt.
In our opinion, Section 8 must he given prospective operation. We may also add that Section 8 applies to 'the property of a male Hindu' and does not govern his 'interest in a Mitakshara coparcenary property'. This view is reinforced by ! the explanation under Section 30 of the Act by which a fiction has been created for making the interest of a male Hindu in coparcenary property capable of being disposed of by will. That being so, Section 8 can be of np assistance to the claim made by Mst. Munia. Since her learned counsel conceded before us that he was unable to support the Board's view on this point, we do not consider it necessary further to dwell on the question. We consider it sufficient to say that the order of the Board suffers from this error of law which is apparent on the face of the record.
4. The learned counsel for' Mst. Munia however endeavoured to support her claim on the ground that Shivsharan Singh had already separated from his brother, Harisharan Singh though the joint estate was not actually divided by metes and bounds. We find no support for this contention in the application of Mst. Munia for a share of the compensation. On the other hand, she expressly stated in paragraph 3 of that application that she continued to be joint with her husband's brother and nephews and the estate was never partitioned. We cannot infer from this statement a positive case of separation in status.
5. In view of the infirmity from which the impugned order of the Board of Revenue suffers, it must be quashed and the case remitted to it for a fresh decision in accordance with law.
6. The petition succeeds and is allowed. The order of the Board of Revenue is. quashed. The respondent I shall bear her own costs and pay those of the petitioners to whom the security amount shall also be refunded. Hearing fee Rs. 50/-.