(1) This last male holder of the land in dispute was Bhagwan Singh who, on his death, was succeeded by his pre-deceased son's widow Puran Kaur. On 1st July, 1943, Puran Kaur gifted the land in favour of her daughter's son Gurmit Singh appellant. Tara Singh respondent, nephew of Bhagwan Singh, brought a suit impugning the alienation and obtained a declaratory decree that the gift would be ineffective as against his reversionary rights. This decree is dated 24th March, 1947. Puran Kaur died on 9th December, 1956, and thereafter Tara Singh brought the present suit for possession on the basis of the decree in his favour. The suit has been decreed by the courts below and this is an appeal preferred by the defendant.
(2) A suit on behalf of reversioners to challenge and alienation by a female, during her lifetime, is always in a representative capacity. It is to remove a common apprehended injury to the interest of all the reversioners, presumptive and contingent alike. A decree obtained in such a suit ensures for the benefit of the person entitled to succeed after the death of the female. The decree does not lay down that the person taking the action would be entitled to inherit and get the property.
He would not be entitled to get it so long as some other nearer heir is alive. In other words, he can sue for possession on the basis of the decree only if he is the nearest heir entitled to succeed on the death of the female. The principle is well-settled and is not disputed. It is also not disputed that if the Hindu Succession Act, No. 30 of 1956, applies Gurmit Singh appellant, whether he be regarded as the grand-daughter's son of Bhagwan Singh or the daughter's son of Gurmakh Singh, would be a better and nearer heir as compared to Tara Singh respondent and that the latter would not be entitled to inherit in the presence of Gurmit Singh appellant.
The dispute, therefore, boils down to the application of the Hindu Succession Act, and that depends upon the question, when the succession should be deemed to have opened. Admittedly, Puran Kaur died after the coming into force of the said Act. The respondent's case, however, is that since Puran Kaur was holding a life-estate the succession had, in fact, opened on the death of Bhagwan Singh, the last male holder, and, therefore, succession to the estate would have to be determined according to the law that was applicable on the date of the death of Bhagwan Singh.
An identical question arose and was dealt with in a large number of cases on the coming into force of Hindu Law of Inheritance (Amendment) Act No. 2 of 1929. The series of Full Bench decisions on the point were reviewed by the learned Chief Justice of the Allahabad High Court in Mt. Rajpali Kunwar v. Surju Raj, ILR 58 All 1041: (AIR 1936 All 507). The decision was approved by their Lordships of the Privy Council in Dunj Chand v. Mt. Anar Kali, AIR 1946 PC 173. In this case Dharam Das, the last male holder of the property in dispute, died in 1922, before the coming into force of Act II of 1929.
His mother Mst. Chaman Devi succeeded him as heir, taking a Hindu widow's estate. Chaman Devi died in 1936, after the date of the Act. The rival claimants to the right of inheritance were the sisters of Dharam Das on the one side and his collaterals on the other. The collaterals claimed that they has succeeded to the property as the heirs of Dharam Das, who had died before the Act came into force, and the Act having no retrospective effect did not apply to the parties of the case.
The contention was turned down. Agreeing with the decision in Mst. Rajpali Kunwar's case, ILR 58 All 1041: (AIR 1936 All 507) their Lordships observed-
* * * * * It will be sufficient to observe that their Lordships are in complete agreement with the view of the leaned Chief Justice in that case, that, during the lifetime of the widow, the reversioners in Hindu Law have no vested interest in the estate but have a mere spes successions or a chance of succession which is a purely contingent right which may or may not accrue, that the succession would not open out until the widow died, and that the person who would be the next reversioner at that time would succeed to the estate and the alteration in the rule of the Hindu Law brought about by the Act would then be in full force.'
In the course of argument, reliance was placed upon the words 'dying intestate' in the said Act (the same words appear in section 8 of Act 30 of 1956) as connoting the future tense. Their Lordships accepted the view taken by a Division Bench of the Lahore High Court in Shakuntala Devi v. Kaushalya Devi, ILR 17 Lah. 356: (AIR 1936 Lah 124), and observed as follows:--
* * * * * The words are a 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 a Hindu male. The expression merely means 'in the case of intestacy of a Hindu male.' To place this interpretation on the Act is not to give a retrospective effect to its provisions, the material point of time being the date when the succession opens, namely, the death of the widow.'
Expressing their agreement with some other Indian decisions their Lordships concluded by saying:
'The succession does not open to the heirs of the husband until the termination of the widow's estate. Upon its termination, the property descends to those who would have been the heirs of the husband if he had lived up to and died at the moment of her death.
There is no vesting as at the date of the husband's death, and it follows that the questions of who is the nearest reversionary heir or what is the class of reversionary heirs, fall to be settled at the date of the expiry of the ownership for life or lives. The death of a Hindu female owner opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility, or spes successionis, but this possibility is common to them all for, it cannot be predicted who would be the nearest reversioner at the time of her death.'
(3) In this view of the matter no retrospective effect is given to the provisions of the Hindu Succession Act; they are applied to a succession which opened after the Act had come into force. The above dictum made in approval of the unanimous view of the High courts in India affords complete answer to the entire argument of Mr. Manmohan Singh, learned counsel for the respondent, and also to the two decisions relied up by him. The facts in Roshan Ali v. Mt. Rehmat Bibi, AIR 1943 Lah, 219, were somewhat different.
There a mortgage effected by one Rehmat Bibi, widow of Hassan Ali Shah, on 17th February, 1932, in favour of her two daughters was challenged by a nephew of Hassan Ali Shah, the last male owner. The suit had been dismissed because of the Muslim Personal Law (Shariat) Application Act, 1937, having come into force on 7th October, 1937. It was recognised that according to the Customary Law then in force, by which the parties were governed, 'she (Rehmat Bibi) would have remained in possession of the whole of that property during her lifetime and inheritance would have opened to the collaterals of her husband only after her death and, as she happened to have two daughters, after their death.'
The question to be decided was whether Rehmat Bibi's rights in the property could be found to have undergone any change by reason of the Muslim Shariat Law having been brought in to operation and could she be regarded since then, a full owner of 1/8th share in the property as provided by the Mohammedan Law of Inheritance instead of the limited owner that she had been after Hassan Ali Shah's death. Since there was nothing in the Muslim Shariat Act which could show that it was to have retrospective action either expressly or by necessary implication, the question was answered by the Letters Patent Bench in the negative and the plaintiff's right to bring a suit for declaration that the alienation would not be binding on him was not held to have been taken away by the said Act. One of the reasons for coming to this conclusion was stated by Abdur Rehman J. as follows:--
'The expression that succession opens to the reversioners on the death of the last of the limited holders in unexceptionable but that would not show that the succession to the last male-holder had not opened before and had not remained in a state of abeyance for as long as the estate remained temporarily in the possession of the limited owner with the object of its being taken back to the time when the life of the last full owner came to a close and of allowing it to devolve permanently on his nearest relation in existence at the time of the limited owner's death except to the extent that it was reduced by her for consideration and justifiable necessity.'
The observation is not based upon any reasoning and seems to be contrary to the well-settled view referred to above. I have not been able to convince myself to accept the proposition that there can be any splitting of a succession. If the succession has once opened to the reversioners on the death of the last male holder, that would be an end of the matter; it would not open once again on the death of the last of the limited holders.
(4) The second decision relied upon by the learned counsel is that of Mehar Singh J. in R. S. A. No. 552 of 1953, (decided on 3rd December, 1958). The decision is merely based upon the view taken in Syed Roshan Ali's case, AIR 1943 Lah 219, referred to above.
(5) According to Mr. Manmohan Singh the rule that succession opens to the reversioners on the death of the limited owner and not on the death of the last male holder is peculiar to Hindu Law and can have no application to a case the parties to which are governed by custom. Both under Hindu Law and Punjab Customary Law the respective rights of a widow in possession of the husband's estate and of the reversioners are analogous.
Under both the laws, a widow is recognised as heir to her husband's estate, she holds it for life with the same limitations on her powers of disposition, and the reversioners enjoy the same rights in relation to the estate held by her. It is a well-recognised rule under custom that where a widow has succeeded collaterally, after her death it is the heirs of her husband who are entitled to succeed and not the heirs of the last male holder. That would not be possible, if the succession be taken to have opened to the reversioners on the death of the last male holder.
(6) The widow's life tenure, which originated in her right to maintenance, was in course of time recognised as a right to the enjoyment of the whole estate, whether it exceeded her needs or not. It is now too late in the day to say that she holds the estate merely in lieu of maintenance; the widow or mother of a sonless proprietor succeeds to the life estate as an heir. Widow's right of succession is not ordinarily affected by the circumstance that the husband was joint in estate with others. Two or more widows succeed jointly and they are governed by the rule of survivorship. Limitation on her right of disposition is only an incident of the tenure of the estate she gets, and not a limitation on her right to succeed.
(7) In the view that I take, succession to the reversioners opened on the death of Puran Kaur and not on the death of Bhagwan Singh and Puran Kaur having died after the coming into force of the Hindu Succession Act Gurmit Singh appellant, and not Tara Singh respondent, would succeed to the suit-land, if there had been no gift or the one made has to be ignored or regarded as ineffective. That is what was said by the declaratory decree; according to the decree the respondent is to get possession of the land only if and when the succession opens out to him.
(8) In the result the appeal is accepted, the judgment and decree of the District Judge are set aside and the suit dismissed. In view of the facts of the case the parties are left to their own costs throughout.