Ganapatia Pillai, J.
1. I have already perused the judgment about to be pronounced by my learned brother Venkataraman J. and although I entirely agree in the conclusions he has reached, I would like to add a few words of my own on the questions of law raised by Mr. Gopalaswami Aijrangar, counsel for the appellant.
2. Three main contentions were urged by him. The first related to the applicability of Section 14(1) of the Hindu Succession Act of 1956 to this case. It consisted of two parts, the first part factual and the other part legal. The factual part consisted in the argument that the possession of the estate by the 2nd defendant amounted to alienation of the properties by the widows and consequently the widows should be held to be not in possession of the estate when alone the operation of Section 14(1) of the Act would be attracted. The argument has been dealt with fully by my learned brother and I do not propose to add anything more to what he has said. I agree with him that the possession of the estate, either move-able or immoveable, by the and defendant does not amount to alienation of it by the widows, as he occupies the position of an agent of the widows or one of them.
3. The other aspect of the question is not now open having regard to the pronouncement of the Supreme Court in Kotturuswami v. Veeravva, : AIR1959SC577 . The true interpretation of the word 'possession' occurring in Section 14(1) which commended itself to Rajagopalan O. C. J. and Rajagopala Aiyangar J. in App. No. 423 of 1946 viz., that the expression does not connote possession as distinct from title, in a way receives confirmation from the decision of the Supreme Court in Kotturswami's case, : AIR1959SC577 . However, I doubt whether the requirement as to possession in the section qualifies only estates acquired by a Hindu female before the commencement of the Act.
4. In none of the decisions so far available on this topic has this distinction been brought out. It may be material to point out this distinction though it does not affect the disposal of the appeal now before us. Cases may arise where a Hindu female acquires property after the commencement of the Act but does not get possession of it at once. In which event, the distinction may become relevant to find out whether the enlargement of the limited estate into a full estate takes effect from the date of the acquisition or after possession also is acquired by the female. I do not expatiate further upon this point because the question does. not arise for our consideration in this appeal and possibly the decision in Appeal No. 423 of 1946 cited above may furnish the answer.
5. The second argument of Mr. Gopalaswami Aiyangar was that this case should be governed by Section 14(2) of the Act. The nature of a transaction of partition between co-owners like widows has been sufficiently explained by leading decisions which have been referred to by my learned brother in his judgment. It is enough to say that in a transaction of partition between co-owners like co-widows, there is no element of transfer of property but only an element of relinquishment of interest in property. Consequently I agree with my learned brother that the partition in this case would not amount to any kind of transaction covered by Section 14(2) of the Act.
6. The third question which is the substantial question argued by Mr. Gopalaswami Aiyangar related to the effect of Section 8 of the Act in cases where a widow had already succeeded to the estate of a deceased Hindu male who had died intestate before the Act came into force.
7. His contention was that in every case where a Hindu male dies intestate leaving a female heir to succeed him like widow or daughter, succession to the estate of the male does not reallyopen until the death of the intervening female heir when alone it would be possible to ascertain who would be the persons entitled to take the estate as reversioners. That principle of Hindu law has been relied upon for applying the provisions of the Hindu Law of Inheritance (Amendment) Act, 1929 to the case of persons who had died even before that Act came into force. See the decision of the Privy Council in Duni Chand v. Mst. Anarkali ; the leading authority establishing this principle of the heirs of a deceased male being ascertained after the death of the intervening female heir founded upon the other leading case Moniram Kolita v. Keri Kolitany, ILR 5 Cal 776 (PC). Mr. Gopalaswami Aiyangar laid stress on this principle and contended on the strength of tie Privy Council decision in , that there was no vesting of the estate on the date of the death of the male whenever he leaves a female heir to succeed him like widow or daughter. There are no doubt observations in which might lend support to the contention that in every case where a Hindu male dies leaving a female heir to succeed him the estate does not vest in the female heir on the death of the Hindu male. The following quotation is relied upon by him :
'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, Janaki Ammal v. Narayanaswami Aiyar, ILR 39 Mad 634 : AIR 1916 PC 117. The death of the 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.'
8. The second sentence in the quotation explains what their Lordships meant by the estate not vesting in the female heir at the date of the death of the male. It is only in the sense of the inheritance being open to the reversioners on the death of the female owner that one can say that there is no vesting of the estate in the female heir as soon as the male propositus dies. It is a well settled principle of Hindu law that the widow is not a mere life estate holder. As was pointed out in Lakshmi Ammal v. Anantarama Aiyangar, ILR (1937) Mad 948 : AIR 1937 Mad 699, the widow is in more than one sense heir of the last male holder and she completely represents the estate during her lifetime including the right to exercise nearly all the attributes of ownership of the estate. In a way the estate might come to an end in her hand leaving nothing for the reversioners to succeed to because for legal necessity the widow is authorised to alienate the estate. To speak of such an hen as a person in whom the estate is not vested at the date of the death of the male owner might not be quite correct. Therefore, having regard to the fundamental principles that succession is never in abeyance, the estate must vest in some heir as soon as the owner of the estate dies. In this case it vested in the two widows of Muthuswami Chettiar.
9. It is only for the limited purpose of ascertaining the reversionary heirs that a fiction has been created by which the deceased person is deemed to have lived up to the date of the death of the female heir who immediately succeeds him.
10. It is well known that a fiction in law cannot be relied upon for any purpose other than the limited purpose for which law has sanctioned the creation of such fiction. The Parliament in enacting the Hindu Succession Act was recasting the entire law of Hindu Succession. Indeed, Section 4 has enacted that,
'Save as otherwise expressly provided in this Act (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.'
The matter is not left in doubt because Section 4(1)(b) expressly states that any other law applicable to Hindus before the commencement of the Act shall cease to apply in so far as it is inconsistent with any of the provisions contained in the Hindu Succession Act.
11. Thus we start with the position that old ideas about the nature of the estate of female heirs in Hindu law in so far as they are inconsistent with the provisions of Section 14 of the Act could not apply after the Hindu Succession Act came into force. It is also well known that one of the major objects of the reform of the Hindu law undertaken by the enactment of the Hindu Succession Act was to improve the legal status of women in the matter of right to property. Having this in view, it should be the duty of the court to construe the provisions of Section 8 as to give effect to Section 14 in every appropriate case where it could apply.
12. The argument of Mr. Gopalaswami Aiyangar that on the coming into force of the Hindu Succession Act, Section 8 must be applied and, in this case, the daughter (Plaintiff) also should get a half share in the properties of Muthuswami Chettiar along with his two widows is really based upon two assumptions; First, that the operation of Section 8 is really retrospective and Section 14 can be givan effect to only in cases where the propositus dies after the Act came into force. The second assumption can be readily seen to be a fallacy because Section 14 in terms applies not only to estates held by widows by reason of inheritance by the death of the male owner after the Act came into force, but it also applies to estates held by widows in the case of death of male owners having taken place already. This dual application of Section 14 would be nullified if we accept the argument of Mr. Gopalaswami Aiyangar and hold that even though the widows, in this case had inherited the properties of their husbands even before the Act came into force they would have to give up a half share in the properties to the daughter because under the Hindu Succession Act the daughter takes simultaneously with the widows.
The language of Section 8 as also the language of Section 10 is pointed out by Mr. GopalaswamiAiyangar as leading to his contention. Particularly he laid stress upon Section 10 which says that the property of an intestate shall be divided among the heirs in class I of the schedule in accordance with the rules prescribed therein. This, Mr. Gopalaswami Aiyangar contended, implied an imperative duty to divide the properties among the heirs in class I immediately on the coming into force of the Act. Difficulty in the matter arises because, according to the old Hindu law, whenever a female heir succeeds to a male propo-situs she is deemed to hold the property as representing the entire body of heirs and for the benefit of the ultimate reversioners who would take the estate on her death. This special concept of Hindu law is pressed into service for contending that the estate is now (sic. not?) hers and she has only a limited interest in the estate, viz., to enjoy it subject to the limitations imposed upon her by the rules of Hindu law. This anomaly does not, however, lead to the assumption or inference that she has no interest in the estate. In other words, the Hindu law never considered a widow or a daughter as a mere life estate-holder. In one sense, as already pointed out, she represents the estate fully and she can even put an end to it by alienation justified by necessity. To call such an heir as a mere life estate holder would be an anomaly. Consequently it would not be proper to press into service this notion of the limitation imposed upon the enjoyment of the estate by the widow and her inability to pass on the estate to her own heirs as equivalent to her having no interest in the estate as owner.
13. In order to avoid the numerous difficulties that might arise in giving effect to the policy of converting the limited estate owned by females into absolute estates Parliament has made a separate provision for it in Section 14. The same object could have been achieved by a proviso to Section 8, but the fact that a separate provision was made for this purpose, in Section 14 does not affect the result. The subject of enlargement of widow's estate or women's estate into an absolute estate required separate section of the enactment because it had to be carried out having certain limitations which Parliament thought was inherent. As an instance we may point out the provision in Section 14(2) of the Act. Another feature which explains the separate treatment of this subject was the comprehensive nature of the provision which Parliament intended to make. I am referring to the explanation to Section 14(1) which includes every kind of property which a Hindu woman, could possess under the Hindu law. The various schools of Hindu Law had different rules in regard to different kinds of properties owned by Hindu woman, and, Parliament in jits wisdom thought that all such rules should be abrogated and a uniform rule of absolute estate for woman should be enacted and that explains why the subject-matter of Section 14 could not be enacted as a proviso to Section 8.
14. The first assumption underlying the argument of Mr. Gopalaswami Aiyangar viz., Section 8 was intended to be retrospective in operation, is mainly based upon a comparison of other sections in the Act which specifically state that thosesections should come into operation in the case of succession occurring after the date when the Act came into force. My learned brother has dealt with this argument and I agree with him that this circumstance is of no importance.
15. The other sections which specifically state that they would come into operation only in the case of male Hindus dying after the commencement of the Act are Sections 6, 7, 22 and 26. Section 6 deals with devolution of interest in coparcenary property. In the very nature of things, it could only apply to cases where a male Hindu dies after the commencement of the Act because the object of the section was to introduce an exception in the case of female relatives specified in class I of the schedule to the Act or a male relative in that class who claims through such female relative. In their case the interest of the male Hindu, dying after the commencement of the Act, in a Mitakshara ceparcenery property, was directed to devolve by testamentary or intestate succession under the Act and not by survivorship.
16. Similarly, Section 7 deals with devolution of interest in the property of a tarwad, tavazhi, kudumba, kavaru or illom and this provision was intended to cover cases of succession under the Marumakattayam and Aliyasantana systems of Hindu law prevailing in the West Coast of the peninsula. Section 22 deals with preferential right of heirs specified in Class I of the schedule to acquire the property inherited by other heirs in that schedule simultaneously. In other words, it gives effect to the principle of pre-emption as between co-heirs specified in class I of the schedule. It was necessary to limit this principle to cases of succession occurring after the commencement of the Act. Section 26 of the Act gives effect to the principle of disqualification of heirs by conversion to another religion. The rule enacted in this section deals with all cases of conversion of a Hindu, whether before the commencement of, the Act or thereafter. The prohibition applied to children born to the convert after the conversion and also their descendants. The exception made in the rule is in the case of such children or descendants who were Hindus at the time when the succession opens. It would be a moot question, what was intended by the phraseology 'When the succession opens' occurring in this section. But, this does not affect the question which we have to decide with respect to Section 8 in this case.
In order to make the prohibition universal Parliament had to say that the rule in Section 26 would apply not only to a case of death occurring after the commencement of the Act but also to deaths occurring before the commencement of the Act. Thus, it will be seen that the scheme of succession embodied in the Hindu Succession Act is essentially prospectivte, and, in the absence of any compelling reasons we could not read Section 8 in the manner asked for by Mr. Gopalaswami Aiyangar without doing violence to the scheme of the enactment, viz, Section 8 and Section 14 and other sections. We need not rely upon the rule of interpretation of statutes that every provision in a statute should be normally regarded as prospective in operation unless either by words used inthe enactment, or by necessary intendment the enactment should be held to be retrospective in character. Much more so would be the case here where the contention urged by Mr. Gopalaswami Aiyangar would lead to the divesting of the estate already vested by reason of succession to males who had died before the Act came into force.
17. It is unnecessary to dilate further upon this point. My learned brother has pointed out in his judgment the anomaly which would result on the application of Section 8 to a case like the present where the male Hindu, who died before the Act, had left a father and a daughter by a predeceased son of a pre-deceased son. The daughter in that case would not have been an heir under the Hindu law before the Hindu Succession Act, and the father who had taken the estate absolutely would have become a fresh stock of descent. If we accede to the argument of Mr. Gopalaswami Aiyangar, the father's estate would be divested as he does not come under the class of heirs in class I of the schedule to the Hindu Succession Act, and, the daughter by a pre-deceased son of the predeceased son would take the estate on the coming into force of the Act. Certainly, such a contingency was never contemplated by Parliament and we cannot see any justification for this interpretation having regard to the scheme of succession adumbrated in the Act.
18. The other aspects of the argument of Mr. Gopalaswami Aiyangar on this question having been sufficiently dealt with by my learned brother I do not propose to consider them myself. My learned brother has also dealt with fully all the cases cited before us and it would serve no useful purpose for me to cover the same ground over again.
19. This is an appeal by the plaintiff Sampathakumari whose suit has been dismissed by the learned Subordinate Judge, Tiruchirapalli, without going into the merits of the preliminary issue that even taking the plaint allegations to be correct, the suit became not maintainable by virtue of the passing of the Hindu Succession Act, 1956. The question before us is whether this view of the learned Subordinate Judge is right.
20. The Act (by which we mean hereinafter the Hindu Succession Act) came into force on 17-6-1956. The plaint had been filed on 18-4-1956. It will be noted that the contention of the contesting defendants on which the plaintiff has been non-suited on the preliminary ground is that the suit became not maintainable because of the Act. The plaintiff made some amendments to the original plaint in answer to this contention and the case has been dealt with by the learned Subordinate Judge after taking those amendments into consideration. The case has been argued before us on the footing that these amendments also must be taken into consideration by us. It will however be convenient to set out briefly the basis of the plaintiff's action as the plaint originally stood.
21. The suit concerns the estate of one K. G. Muthuswami Chettiar who died intestate on 28-4-1945. He left him surviving his two widows, Lakshmi Ammal and Balammal, who are the first and fourth defendants in the suit, one Nagabhushanammal, a daughter, by the first defendant (Naghabhushanammal, is now dead, the date of her death being 9-6-1949) and the plaintiff Sampathkumari, daughter by the fourth defendant. He had no male progeny. A partition had taken place between him and his two brothers even in 1928. Besides owning immovable properties, the brothers had been carrying on two family businesses, namely, the Standard Aerated Water Works and the Standard Engineering Works at Madras. As a result of the partition, these family businesses were converted into partnership businesses with the three brothers as partners.
22. Muthuswami Chettiar had executed a registered settlement deed dated 26-1-1945 before his death, in favour of his daughter Nagabhushanammal. The properties covered by that deed are listed out as items 1 to 4 in the B schedule to the present plaint. By that deed items 1 to 3 were settled on Naghabhushanammal for life without powers of alienation, and item 4 was set apart for the performance of charities by her during her lifetime without powers of alienation. On her death the properties were to revert to his heirs with an obligation to perform the charities.
23. According to the plaint, K. S. Muthuswami Chetti, the 2nd defendant in the suit, a man of no means and closely related to the first defendant, took advantage of the death of K. G. Muthuswami Chettiar. He was in illicit intimacy with Naghabhushanammal. On 11-6-1945 he secured a general power-of-attorney from the two widows, defendants I and 4, empowering him inter alia to collect the amounts due to K. G. Muthuswami Chettiar from the Standard Aerated Water Works and the Standard Engineering Works. It is averred in the plaint that he collected substantially larger amounts than what he actually accounted for to defendants 1 and 4, and appropriated the balance to his own use. On 18-9-1945, he persuaded the two widows to enter into a partnership agreement with him and started a new business at Madras under the name and style of Sri Ganesa Engineering Works. He fomented dispute between the two widows, and on 29-4-1946 cut off the junior widow, namely, the 4th defendant, from the new partnership business. He brought about the partition deed dated 5-6-1946 between the two widows. In that deed he omitted to disclose some of the assets of the late Muthuswami Chettiar.
24. The partition deed provides for the first defendant taking the immovable properties listed out in the C schedule to the present plaint, and outstandings to the value of Rs. 28748-4-0 and the other widow was to take the immovable properties listed out in the D schedule to the plaint and outstandings to the value of Rs. 28014-10-0. According to the plaint the two widows were to have only a right of enjoyment of the properties and were not entitled to touch the corpus, which was given to the reversionary heirs.
25. After the death of Nagabhushanammal, on 9-6-1949, items 2 and 3 of the B schedule to the plaint were taken possession of by the first defendant, and item 1 by the fourth defendant.The trust property, namely item 4 is in the first defendant's exclusive possession. The trusts have not been performed.
26. On 26-11-1953, the second defendant got a new power-of-attorney from the first defendant taking advantage of her helplessness and assumed full control of the estate committed to his care and management. He also concocted a will dated 29-12-1955 purporting to have been executed by the first defendant giving a lion's share to the second defendant and a portion to the 3rd defendant, who is the son of the fifth defendant, who in turn is the sister of the first defendant. The 2nd defendant leased out the properties of the first defendant to defendants 7 to 10 receiving large premia. With monies really belonging to the estate, he purchased house properties listed out in the E schedule to the plaint, associating the name of the sixth defendant also in respect of one of the houses. It was on these allegations that the plaint was originally brought. The first prayer was for the appointment of a receiver of the B, C and E schedule properties. The basis of this prayer was the allegation that the first defendant had surrendered control of the estate in so far as it belonged to her completely into the hands of the second defendant and has thereby forfeited her right to remain In possession of the estate any longer (vide paragraph 13 of the plaint). It may be noted that the D schedule properties were left out, the reason presumably being that they were in the possession of the plaintiffs mother, the fourth defendant. The second prayer was to direct defendants 1, 2, 3 and 5 'to render a true and correct account of all the dealings, misfeasances, malfeasances and non-feasances and all the omissions and commissions and all the management and mis-management relating to the estate and pay and deliver to the credit of the estate what is found due.'
27. Written statements were filed by the contesting defendants after the Act came into force raising the contention that by virtue of Section 14(1) of the Act, the two widows, namely, the first defendant and the fourth defendant became full owners each in respect of a half portion of the estate and that consequently the suit as originally framed was not maintainable. It was after this the plaintiff made the amendments making the averments contained in paragraphs 20, 21 and 22 and claiming the additional reliefs in paragraphs 25. Before indicating these amendments it will be convenient to reproduce here itself Section 14 of the Act.
'(I) Any property possessed by a female Hindu whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation: In this sub-section: 'property' includes both moveabje and immoveable property acquired by a female Hindu by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her owa skill or exertion, or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
2. Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will of any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.'
28. By the new paragraphs the plaintiff contended that Section 14(1) could not be invoked by the defendants for two reasons; firstly because in this particular case Section 14(2) excluded the operation of Section 14(1). According to the plaintiff, the two widows, the first defendant and the 4th defendant, got their respective propertied only under the partition dated 5-6-1946 and that partition deed even restricted the ordinary Hindu Woman's estate which they otherwise would have had because it permitted them only to enjoy a portion of the income for maintenance and even the surplus income was to be added on to the corpus of the estate which would descend to the heirs of the plaintiff's father in due course.
29. Secondly, even assuming that Section 14(2) did not apply, the first defendant was not possessed of her portion of the estate, she having parted with possession in favour of the second defendant, and the third defendant, and was 'civilly dead altogether'. The plaintiff also contended that in any case she would be entitled to a half share of the entire. estate Under Section 8 of the Act. It is now necessary to quote that section :
'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 I 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.'
30. The daughter is one of the heirs mentioned in class I of the schedule to the Act. Under Section 9, those in class I shall take simultaneously to the exclusion of all other heirs, and if that provision is to apply and a division is to take place Under Section 10, the two widows together shall take one share and the daughter shall take one share, and that is how the plaintiff claimed a half share, in the properties. She claimed that she became entitled to this half share on the date of the passing of the Act itself, namely, 17-6-1956.
31. On the last mentioned basis she prayed for two reliefs which were not contained in the original plaint, namely, the partition of the entire estate in two equal shares, one share being delivered to the plaintiff and for ascertainment and recovery of mesne profits from 17-6-1956.
32. The learned Subordinate Judge first dealt with the contention that the first defendant was not possessed of her portion of the estate within the meaning of Section 14(1). As we shall see presently, there is the authoritative pronouncement of the Supreme Court dated 19-12-1958 on this question, : AIR1959SC577 . This decision was however not available to the learned Subordinate Judge when he pronounced his judgment on 8-2-1958. He followed two decisions which were available to him. The first was a decision of the Andhra High Court in Venkayamma v. Veerayya, AIR 1957 AP 280. In that case a reversioner filed a suit for a declaration that the alienations effected by the widow and the mother of the last maleholder Sambayya were not binding on the reversioner. The widow and the mother set up a will of Sambayya and claimed that they became absolutely entitled to the properties under the will. The trial Court found that the will had not been proved to be genuine. In the appeals preferred by the defendants it was urged that even if the will was not genuine, the widow would be the heir of Sambayya, and she became the full owner by virtue of Section 14(1) of the Act, that there would be no question of any reversioners and that the suit did not any longer lie. This contention was repelled by the learned Judges, Viswanatha Sastri and Satyanarayana Raju, JJ., who pointed out that the object of Section 14 was only to enlarge the interest the widow possessed in the estate and not to benefit an alienee who with open eyes had purchased the estate at a time when the Act was not in force and consequently she would normally have only a Hindu Woman's estate. It was also found that the will was not genuine. It was observed that where a widow had alienated the properties, she could not be said to be possessed of the estate and would not be entitled to the benefit of Section 14(1).
33. In that connection, the following observations were made as to the meaning of the word 'possessed' :
'The word 'possessed' in Section 14 refers to possession on the date when the Act came into force. Of course, the possession referred to is Section 14 need not be actual physical possession or personal occupation of the property by the Hindu female, but may be possession in law. The possession of a licencee, lessee or mortgagee from the female owner or the possession of a guardian or trustee or agent of a female owner would be her possession for the purpose of Section 14. The word 'possessed' is used in section 14 in a broad sense and in the context 'possession' means 'the state of owning or having in one's hands or power'. It includes possession by receipt of rents and profits. Even if a trespasser is in possession of land belonging to a female owner on the date when the Act came into force, the female owner might conceivably be regarded as being in possession of the land, if the trespasser had not perfected his title by adverse possession before the Act came into force. It is not however necessary for us to express an opinion on this point, where however, before the Act came into force, the female owner had sold away the property in which she had only a limited, interest and put the vendee in possession, she should in no sense be regarded as 'possessed' of the property when the Act came into force.'
34. The second decision relied on by the learned Subordinate Judge in this case was an un-reported decision of a Bench of this Court by Rajagopalan, O. C. J. and Rajagopala Aiyangar, J., in C. M. P. No. 5819 of 1957 in A. S. No. 423 of 1946. In that case the reversioners filed a suit, O. S. No. 44 of 1945, on the file of the Subordinate Judge, Tiruchirapalli, praying for the appointment of a receiver on the allegation that the widow had committed acts of waste. The waste was found established. The suit was decreed by the trial Court. On appeal preferred by the widow, A. S. No. 423 of 1946, to this Court, the learned Judges confirmed the finding of waste but appointed the widow herself as the receiver. Subsequently when the Hindu Succession Act came into force on 17-6-1956, the widow made an application, C. M. P. No. 5819 of 1957, for discharge of her receivership and the obligation to account in that capacity. She invoked Section 14(1) of the Act and claimed that she had become the full owner. That application was resisted by the respondents firstly on the ground that Section 14(2) of the Act applied, the contention being that the widow got the property only under the decree in the suit. The learned Judges repelled this contention pointing out that the property had been acquired by the plaintiff by inheritance from het husband and what this court did was only to give effect to the restrictions on her ownership and enjoyment which obtained even under the Hindu law prior to the amendment thereof by the Hindu Succession Act of 1956. Secondly, it was urged by the respondents that the widow was not possessed of the estate in order to get the benefit of Section 14(1). This contention was also repelled and in that connection the learned Judges observed.
'The word 'possessed' in the expression 'property possessed' in Section 14(1) does not in our opinion, connote possession, as distinct from title. If for instance, at the date of the commencement of the Act, property inherited by a woman were in possession of a lessee from her it cannot be contended that Section 14(1) does not apply to the case on the ground that the woman was not in physical possession of the property. Again in the present case, if the stranger receiver had been continued, the same result would have followed. The receiver had been appointed to safeguard the interests of the reversioner against acts of waste by the widow, but such appointment could have no bearing on the title of the parties.'
The learned Judges also observed that the fact that the widow herself had been appointed receiver could make no difference to the result.
35. Applying the criteria in the above decision to the allegations in the plaint in the present case the learned Subordinate Judge pointed out that the allegations proceeded on the footing that assuming that the second defendant was in actual possession of the properties whether by himself of by the lessees, it was on account of the first defendant as her agent and that the first defendant was still possessed of the properties in that sense. In that view, the learned Subordinate Judge emphasised that there was no averment anywhere that the first defendant had alienated the properties. that no alienee was impleaded and that the execution of the will dated 20-4-1955 (29-12-1955?) could obviously be of no avail because the will would take effect only after her death, and of course, she did not have absolute testamentary power in 1955.
36. As for the contention under Section 14(2) of the Act, the learned Subordinate Judge observed in the first place that the terms of the partition, deed did not in any way restrict the ordinary Hindu widow's estate which the widows would have in the properties which were allotted under the deed to them and secondly that it could not be said that widows acquired any right for the first time after the deed of partition, because even prior thereto they had the right as widows of their husbands, and the partition deed merely converted the joint right into separate right in respect of the properties allotted to each.
37. On the contention that the plaintiff acquired a half share under Section 8 on 17-6-1956, the learned Subordinate Judge observed that Section 8 would only apply to the property of a male Hindu dying intestate after 17-6-1956, that to hold otherwise would result in divesting estates which had already vested prior to the commencement of the Act and that the enlargement of the widow's estate under Section 14(1) was not in any way curtailed by Section 8. The learned Subordinate Judge observed,
'Section 14 deals with 'any property possessed by a Hindu female whether acquired before or after the commencement of this Act'. Thus all the properties which a female Hindu had acquired before the commencement of this Act, and after the commencement of this Act, would vest in her absolutely. Hence the contention that Section 8 will apply and under Section 8, the plaintiff as an heir is entitled to a share in the properties is not sustainable.'
On these findings the learned Subordinate Judge held that even assuming the plaint allegations to be true the two widows had acquired the rights of full ownership under Section 14(1) and he dismissed the suit with costs of the contesting defendants.
38. Sri R. Gopalaswami Aiyangar, learned counsel for the appellant, raised before us the same contentions which were put forth in the amended plaint, namely, that on the allegations in the plaint the first defendant was not possessed of the property and therefore Section 14(1) cannot be availed of, that the rights of the two widows are really governed by the partition deed and therefore Section 14(2) would exclude the operation of Section 14(1), and that in any case the plaintiff became entitled to a half share under Section 8 on 17-6-1956 with the passing of the Act. He also urged that the learned Subordinate Judge was not justified in awarding costs to the defendants particularly when the dismissal of the suit was on account of the Act which came into force after the plaint was instituted. We shall deal with these contentions in-order.
39. Taking the first contention, as we pointed out earlier, there is now available for us the authoritative pronouncement of the Supreme Court in : AIR1959SC577 , on the meaning of the word'possessed' occurring in Section 14(1). That case related to the estate of one Kasi Veerappa. He hadauthorised his widow to make an adoption observing certain conditions. The widow of Veerappa pur-ported to adopt Basayya on nth October 1942. Katturswami (appellant before the Supreme Court)claiming to be the next reversioner of Veerappafiled the suit for a declaration that the adoption was invalid and not binding on the appellant or the other reversioners. The suit was dismissed bythe trial judge and the appeal presented by the plaintiff to this court was unsuccessful. The High Court gave a certificate granting leave to appeal to the Supreme Court on the question of the validity of the adoption. By the time, thecase came up for hearing before the Supreme Court,the Hindu Succession Act had been passed. The respondents in the Supreme Court urged that in view of that Act, the appeal must necessarily fail. This was how they put it. Either the adoption was valid or it was not. If there was a valid adoption as found by the District Judge and the High Court, the dismissal of the suit was right. If however the adoption was either invalid, or in fact had not taken place, under the provisions of Section 14 of the Act, Veeravva became tie full ownerof her husband's estate and the appellant's suitwould therefore not be maintainable.
In reply to this, it was urged by the appellant 'that according to his case, the second defendant Basayya was in possession of the estate of Veerappaon foot of the alleged adoption, that consequently the widow Veerayya could not be said to be possessed of the estate in order to claim the benefit of Section 14(1) of the Act and since the question of who was in actual possession of the estate had notbeen tried by the courts below so far, it was at least necessary that a finding should be called for on that question before deciding the appeal. Their Lordships observed that the case of the respondents was that the widow continued in possession of theestate despite the adoption because the ante-adoption agreement made a provision to that effect and that in the affidavit filed before them the seconddefendant had admitted that the widow was still in possession, that he was unlikely to have made such an admission against himself and that thecounter affidavit of the appellant did not expresslydeny this, and that if it was permissible for their 'Lordships to give a finding on the materials beforethem, they would have held that the widow continued in actual physical possession notwithstanding the alleged adoption. But their Lordships recognised that the plaintiff-appellant had not been given an opportunity to prove his case on the question of possession and therefore they were willingto proceed to decide the question at issue on the assumption that the second defendant was inactual physical possession of the estate on 17-6-1956 when the Act came into force. Even so,they observed that the first defendant must be held to be possessed of the estate within the meaning of Section 14(1), the actual'physical possession of the second defendant being only permissive possession on her behalf.
40. After noticing the different views expressed by the High Courts, their Lordships referred to the decision of the Patna High Court inHarak Singh v. Kailash Singh, : AIR1958Pat581 and observed that the Patna High Court
'............rightly pointed out that the objectof the Act was to improve the legal status of Hindu women enlarging their limited interest in property inherited or held by them to an absoltue interest, provided they were in possession of the property when the Act came into force and, therefore, in a position to take advantage of its beneficial provisions but the Act was not intended to benefit alienees who with their eyes open purchased the property from the limited owners without justifying necessity before the Act came into force and at a time when the vendors had only a limited interest of Hindu women. In the case before us, the essential question for consideration is as to how the words 'any property possessed by a female Hindu, whether acquired before or after the commencement of this Act' in Section 14 of the Act should be interpreted. Section 14 of the Act refers to property which was either acquired before or after the commencement of the Act and that such property should be possessed by a female Hindu. Reference to property acquired before the commencement of the Act certainly makes the provisions of the section retrospective, but even in such a case the property must be possessed by a female Hindu at the time the Act came into force in order to make the provisions of the section applicable. There is no question in the present case that Veeravva acquired the property of her deceased husband before the commencement of the Act. In order that the provision of Section 14 may apply to the present case it will have to be further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the and defendant and not Veeravva at the relevant time. On behalf of the respondent it was urged that the words 'possessed by' had a wider meaning 'than actual physical possession although physical possession may be included in the expression. In the case of AIR 1957 AP 280, Viswanatha Sastri J. with whom Satya-narayana Rao J. agreed expressed the opinion that the word 'possessed' in Section 14 refers to possession on the date when the Act came into force'.
Of course, possession referred to in Section 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licencee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of Section 14. The word 'possessed' is used in Section 14 in a broad sense and in the context possession means the state of owning or having in one's hands or power. It includes possession by receipt of rents and profits. The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary in the present case to go to the extent to which the learned Judges went. It is sufficient to say that 'possessed' in Section 14 is used in a broad sense and in the context meansthe state of owning or having in one's hand ot power. In the case of Gostha Behari v. Haridas Samantra,, (S) : AIR1957Cal557 , P. N. Mookherjee J. expressed his opinion as to meaning of the words 'any property possessed by a female Hindu' in the following words :
'The opening words 'property possessed by a female Hindu' obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transferred, into absolute estate under this particular section, was at least in such possession, taking the word 'possession' in its widest connotation, when the Act came into force, the section would not apply.'
'In our opinion, the view expressed above is the correct view as to how the words 'any property possessed by a female Hindu' should be interpreted. In the present case if the adoption was invalid, the full owner of Veerappa's estate was his widow Veeravva and even if it be assumed that the 2nd defendant was in actual possession of the estate, his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the and defendant. In this situation, at the time when the Act came, into force, the property of Veerappa must be regarded in law as being possessed by Veeravva.'
It is clear from the above pronouncement that the word 'possessed' in Section 14(1) is used in a broad sense and in the context means state of owning or having in one's hand or power. Applying these criteria to the allegations in the plaint in this case we are in agreement with the learned Subordinate Judge that the utmost that these allegations would amount to is that the actual physical possession of items 2, 3 and 4 in the B schedule and the C Schedule and E Schedule and moveables and cash was with the and defendant, but all the same the plaint allegations proceeded on the footing that the 2nd defendant was in such possession as agent of the first defendant and accountable to her and consequently to the reversioners and that such possession would therefore be the possession of the first defendant for purposes of attracting Section 14(1) of the Act. In construing the averments in the plaint from this point of view, we have to remember that paragraphs 3 to 19 have been drafted at a time when the Act had not yet come into force and when the plaintiff only claimed the relief of appointment of receiver and rendering of account by defendants 1, 2, 3 and 5. The averments in paragraphs 3 to 19 of the plaint were certainly apt and might be assumed to be sufficient for seeking the reliefs originally claimed.
41. But when the plaintiff was met with the contention based on Section 14(1) of the Act, only the same allegations were retained and nothing new was added substantially, to avoid the effect of Section 14(1). In fact even paragraph 21 (d) is on the same lines as the original averments. Paragraph 21 (d) reads :
'In the same way, all the other properties whatsoever belonging to plaintiff's father's estate, inclusive of the properties which the 2nd defendant and other defendants, who have intermeddled with plaintiff's father's estate should account for, as agents, managers, express trustees or other trustees, intermeddlers, and otherwise, and pay and deliver to the estate, have devolved in one half share on the plaintiff as full owner, and in defendants I and 4 in one-fourth share, each as a restricted estate, to be taken by paintiff on the respective deaths of defendants 1 and 4.'
Since the point is important, we will briefly run over the material portions of the plaint.
42. In paragraph 7 of the plaint dealing with the collections of the dues in respect of the Standard Aerated Water Works and Standard Engineering Works at Madras it is stated that the 2nd defendant 'must render a true and correct account to the estate for all his acting under the General Power of attorney dated 11-6-1945, and account for all his misfeasance, malfeasances and non-feasances, and pay all that may be found due to it.'
43. At this stage to emphasise the point we are making we might notice the submission which Mr. Rajah Aiyar on behalf of the respondents made. He stated that assuming that a receiver had been appointed in this suit before 17-6-1956 on this and other similar averments in the plaint, the two widows could have by virtue of the passing of the Act come forward and legitimately asked for the discharge of the receiver and immediate possession of the estate just as the widow did in C. M. P. No. 5819 of 1957 in A. S. No. 423 of 1946. In our opinion Sri Rajah Aiyar is right in his submission. This is of course subject to the other questions under Section 14(2) and Section 8 which we shall be considering later. We may also bring out our point by observing that the position would be different if there had been an outright alienation by the widows in favour of strangers.
44. Now proceeding to the averments in the remaining paragraphs of the plaint, in our opinion, they are to be understood in the same way as paragraph 7. Thus for instance in paragraph 16(b) it is stated,
'He (2nd defendant) has to account for and pay to the estate all the remaining sums of money, what he realised and what he omitted to realise from the surviving partners in the Standard Aerated Water Works and the Standard Engineering Works, Madras'.
In paragraph 16 (f) it is stated,
'He (2nd defendant) must have made not less than one lakh of rupees from the income of the landed properties. He must account to the estate of the amount with interest.'
There is a similar statement in paragraph 16 (g) in respect of jewels and other moveables. In paragraph 18 it is stated :
'The 2nd defendant is accountable to the estate as an agent, manager, intermeddler, executor, trustee and otherwise for all his management, and mismanagement and is bound to return to it every pie he has taken out of it and deliver to it every inch of property of the estate he has takenor converted, and to make good every pie which he deliberately, fraudulently, collusively or negligently omitted to realise for the estate. He is accountable for all his commissions and omissions, and all his misfeasances, malfeasances and non-feasances and is bound to replace all that he has taken from the estate and all that he has omitted to take from others for the estate.'
We have already quoted paragraph 21(d).
45. We therefore hold, agreeing with thelearned Subordinate Judge that subject to the question of Section 14(2) and Section 8 which we shall consider,the widow, the first defendant, was in constructive possession of the estate and was therefore possessed of the estate under Section 14(1).
46. Regarding the contention under Section 14(2), we agree with the learned Subordinate Judge that the partition deed dated 5-6-1946 does not in any way restrict the ordinary Hindu widow's estate which each of the widows would otherwise have had in the properties on that date. The document says that the first defendant Lakshmiammal should get and enjoy the A Schedule properties (plaint C Schedule properties), and cash of Rs. 28748-4-0; similarly defendant 4 was to get and enjoy the B Schedule properties thereto (plaint D Schedule properties) and cash of Rs. 28014-10-0. It says that each was to pay the public taxes due on the lands allotted to each. The first defendant is asked to do some charities out of items 7 and 8 of the properties allotted to her. It then says that except ties of friendship there would be no other connection between the parties. It concludes with the recital that after their lives, the properties mentioned in the two schedules should go to the heirs at law. In support of the contention that there is restriction of enjoyment, reliance is placed by the learned advocate for the plaintiff, only on this last mentioned clause. But it merely states what would otherwise have happened, namely, that the property would go to the heirs according to law, namely, heirs of Muthuswami Chettiar. It is to be noted that there is no clause whatever restricting the ordinary Hindu woman's estate which the two widows would normally have.
47. Secondly, we are also in agreement with the learned Subordinate Judge that it cannot be said that the widows acquired the right to the properties only under the partition deed, for the simple reason that they had acquired the right even previously by inheritance as widows of their husband and the partition merely divided the properties allotting some to the first defendant and the rest to the fourth defendant. The word 'acquired' means that prior to the acquisition, the widows could not have had any interest in the lands whatever. Though the point is simple and obvious, still it would not be out of place to refer to the decisions cited by Sri K. Rajah Aiyar in this connection. He first of all referred to Bhugwandeen Doobey v. Mypa Baee, 11 Moo Ind App 487 in support of the proposition that the possession of co-widows is the same as that of co-tenants or co-owners, and in that connection he also referred to the decision in Appalasuri v. Kannamma Nayuralu, 49 Mad LJ 479 : AIR 1926 Mad 6, indicating the incidents of a partitionbetween co-widows. He cited some decisions to show that in a partition between co-owners there is essentially no acquisition or transfer of right, but only a release of rights and obligations and a division of rights and obligations. Thus he referred to Girija Bai v. Sadashiv Dhundirai, ILR 43 Cal 1031 : AIR 1916 PC 104 their Lordships of the Privy Council quote the text of Hindu law by Mitra Misra,
'For partition is made of that in which proprietary right has already arisen, consequently partition cannot properly be set forth as a means of proprietary right. Indeed, what is effected by partition is only the adjustment of the proprietary right into specific shares.'
At p. 1048 (of ILR Cal) : (at p. 108 of AIR) their Lordships observed :
'Partition does not give him (the member of a joint Hindu family) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former cosharers.'
Similarly in Narasimhalu v. Someswara Rao, 1948 1 Mad LJ 150 : AIR 1948 Mad 505, the learned Judges Patanjali Sastri and Happell JJ. observed,
'The argument proceeds, in our opinion, on a misconception of the true nature of partition arrangement under which each co-owner gets a specific property in lieu of his rights in all the joint properties; that is to say each co-sharer renounces his rights in the other common properties in consideration of his getting exclusive right to and possession of specific properties in which the other co-owners renounce their fights. It is thus a renunciation of mutual rights and does not involve any transfer by one co-sharer of his interest in the properties to the others. That is why it has been held that a partition can be effected orally and without any registered instrument though it may affect immoveable properties of the value of one hundred rupees or more.'
48. This was quoted with approval in RadhaKrishnayya v. Sarasamma, : AIR1951Mad213 where Subba Rao and Panchapakesa Ayyar JJ. observed after summing upthe case law :
'Partition, therefore, is really a process in and by which a joint enjoyment is transferred into an enjoyment in severalty. Each one of the sharers had an antecedent title and therefore no conveyance is involved in the process as a conferment of new title is not necessary.'
The learned Judges came to the above conclusion on the question whether Section 53-A of the Transfer of Property Act could be availed of by a party to whom the properties had been allotted under an instrument of partition invalid for want of registration. The learned Judges answered the question in the negative on the ground that there was no transfer of properties necessary to attract Section 53-A. Mr. Rajah Aiyar referred incidentally to Income-tax Commissioner v. Smt. Indira, : AIR1960SC1172 :
49. We accordingly hold that Section 14(2) does not stand in the way of the defendants' reliance on Section 14(2) in this case.
50. The arguments of the learned counsel for the appellant that under Section 8 of the Act, the plaintiff gets a half share immediately on the coming'into force of the Act (17-6-1956), and the two widows together get a half share, and each of these three persons got an absolute share, was developed in the following manner. It is enacted in Section 4(1)(a) and (b) as follows :
'4 (i). Save as otherwise expressly provided in this Act,
(a) any text, rule or interpretation of HinduJaw or any custom, or usage as part of that lawin force immediately before the commencement ofthis Act shall cease to have effect with respect toany matter for which provision is made in thisAct.
(b) any other law in force immediaetely before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.'
In view of this provision, we must discard out notions of Hindu law as it stood before the Act and give full effect to the Act immediately it came into force. Section 8 already quoted says that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II, firstly, upon the heirs, being the relatives specified in class I of the schedule and so on. The words used here are imperative and the devolution shall take place on the heirs specified in class I, in this particular case daughter and the two widows. The fact that the male Hindu, namely, Muthuswami Chettiar, died before 17-6-1956 will not affect this result. The words 'dying intestate' occurring in Section 8 merely mean 'dying in a state of intestacy' and do not necessarily mean that the male Hindu should die intestate after 17-6-1956.
The same words 'dying intestate' which occurred in the previous enactment, namely, the Hindu Law of Inheritance (Amendment) Act, 1929 (Act 2 of 1929) were so construed--vide among others the decision in . That was a case under Act 2 of 1929 which enacted that the son's daughter, the daughter's daughter and sister and sister's son shall be entitled to rank in the order of succession next after the father's father and before the father's brother. It thus altered the mode of succession to a Hindu male. In that case the last male holder Dharam Das died in 1922 before the date of the Act leaving neither a widow nor descendants but only his mother, Mst. Chaman Devi, as heir, who took a Hindu widow's estate. But he left four sisters. Chaman Devi died in July 1936. Thereupon one of the sisters of Dharam Das instituted the suit out of which the appeal to the Privy Council arose, claiming that she and the other sisters were entitled to the estate of Dharam Das by virtue of Act 2 of 1929 in preference to her brother's collaterals who would otherwise have taken. The claim was resisted on the ground that Dharam Das had died before 21-2-1929. But the claim was upheld by the courts below and on appeal to the Privy Council on the ground that it was settled law that the succession of the reversionary heirs of the husband would open out only afterthe termination of the limited estate of the female heirs, in that particular case, the widowed mother Chaman Devi, and that till then the reversioners had no vested interest in the estate but had only a mere spes successionis or chance of succession and only the particular heirs who would be living on the date of the death of Chaman Devi would take. On that view of the matter the heirs in 1936 were the sisters, in preference to the collaterals.
51. Their Lordships endorsed the view of the High Court that the words 'dying intestate' were a mere description of the status of the deceased and had no reference and were not intended to have any reference to the time of the death of the Hindu male and that the expression merely meant 'in the case of intestacy of a Hindu male.' They further observed that to place such an interpretation on the Act was not to give retrospective effect to its provisions, the material point of time being the date when the succession opens, namely, the death of the female heir (actually the mother).
52. Sri Gopalaswami Aiyangar contends that the same interpretation should be given to the words 'dying intestate' in the Hindu Succession Act and that consequently the mere fact that Muthuswami Chettiar had died before 17-6-1956 would not affect Section 8 taking effect on 17-6-1956.
53. The learned counsel fortified this argument by a reference to other sections in the Act such as Sections 6, 7, 22 and 26 which have specifically stated that they would apply only to cases where a male Hindu dies or lives to be Hindu male after the commencement of the Act. The learned counsel argues that the absence of similar words in Section 8 is a clear indication of Parliament not intending that Section 8 should be confined in its application to the case of a male Hindu dying on or after 17-6-1956.
54. The learned counsel also laid emphasis on the fact that following Section 8, Section 10 also says the property of an intestate shall be divided among the heirs in class I of the schedule in accordance with 'the rules prescribed therein, which again casts an imperative duty to divide the property among the heirs in class I immediately on the coming into force of the Act in a case like the present. The learned counsel attaches importance to the fact that Sections 8, 9 and 10 precede Section 14. He recognised that Section 14 also must be given effect to. He says that reconciliation must be effected between Section 8 and 10 on the one hand and Section 14 on the other and that the way to do this is to construe Section 14 so as not to abrogate Section 8 and on this interpretation Section 14(1) would mean so far as the present case is concerned that on 17-6-1956 the two widows, first defendant and fourth defendant, between them took a half share of Muthuswami Chettiar's estate absolutely (each getting a one-fourth share), as against the previous widow's estate which was all that they were having, and the plaintiff would get her half share absolutely. He urged further that to interpret Section 14 in the manner attempted by the respondents and by the lower court would shut out the reversioners, and is particular, the daughter who previous to the enactment, had at least a chance of succession.
55. The learned counsel also stated that his interpretation of Section 8 might in some cases divest not merely the widows in respect of the half share but also in some cases a male heir, and that can be illustrated by an example. A father is under the Act only a heir in class II. The daughter of a predeceased son of a predeceased son was not a heir previously. But she is a heir now under the Act in class I. Hence in a case where the last maleholder had died before 17-6-1956 and his father had inherited under the Hindu law as it stood before the Act, the Act would divest the father and give the estate to the daughter of a predeceased son of a predeceased son. The learned counsel submitted that we should not be perturbed by such a result because divesting was not unknown under the Hindu Law before the Act, for example, in the case of adoption, the adopted son would divest the estate which had vested in the collaterals.
56. Mr. Rajah Aiyar met the above arguments thus. It was settled law prior to the enactment of the Act that where a male Hindu died intestate leaving female heirs, in particular widows, the succession of the reversioners would open out only on the death of the female owners and the female owners themselves would have only a limited estate familiarly known in the Hindu law as a Hindu widow's estate. The very decisions relied upon by the learned counsel for the appellant on the construction of the words 'dying intestate' which occurred in the Hindu Law of Inheritance (Amendment) Act, 1929 had in fact proceeded on this principle. There was no difference of opinion on that point. The Legislature must be presumed to have had knowledge of the state of the law and with that knowledge it enacted Section 14 of the present Act, that any property possessed by a female Hindu whether acquired before or after the commencement of the Act shall be held by her as a full owner thereof and not as a limited owner, and the explanation also amplifies the meaning of the word 'property' without cutting it down to a fractional portion, which would be the result if we apply Section 8 also.
Thus, in this particular case the widows, the first and fourth defendants, were entitled to all the properties though with limited rights. But the argument of the learned counsel for the appellant applying Section 8 would cut down the extent of the property to a half of that previously possessed by them. There is no warrant in Section 14 for such a construction. On the contrary the words any property and the words 'whether acquired before or after the commencement of the Act' and the explanation make it clear that it was not intended to cut down the extent of the properties held by the widows. The only limitation was that they should be possessed of the properties in order to earn the benefit of Section 14, and once they are possessed of the properties on 17-6-1956 their limited right was enlarged to full ownership, and that, in respect of the entire extent of the properties and not merely a half share. Mr. Rajah Aiyar also criticised the argument of Sri Gopalaswami Aiyan-gar in so far as it involved divesting of estates which had previously vested, for instance, in the illustration given divesting of father by the daughter of the predeceased son of predeceased son. Mr. Rajah Aiyar urged that the statute should not be construed in such a manner unless there are compelling words and in his submission there are no such compelling words in this case. Mr. Rajah Iyer also pointed out that if Section 8 were to be applied retrospectively, in the extreme sense suggested by Mr. Gopalaswami Aiyangar, there would be no limit of time for reopening and divestiture of the estate.
57. Before proceeding to indicate the reply of Mr. Gopalaswami Aiyangar to the submissions of Mr. Rajah Aiyar, it will be convenient to notice the decisions relied on by Mr. Rajah Aiyar, about the law as it stood before the present Act came into force, though really there was no doubt in the matter. He referred to Pokhan Dusadh v. Mt. Manna, : AIR1937Pat117 , a Full Bench decision of this court in Lakshmi Ammal v. Anantarama Aiyangar, ILR (1937) Mad 948 : AIR 1937 Mad 699 and the decision of the Privy Council in . Thus in which may be referred to first being the most authoritative decision, in upholding contention that the Hindu Law of Inheritance (Amendment) Act, 1929 applied notwithstanding the death of the last male owner in 1922, it was observed :
'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 upto and died at the moment of her death, ILR 5 Cal 776 (PC) .
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, ILR 39 Mad 634 : AIR 1916 PC 117. 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 predicated who would be the nearest reversioner at the time of her death. The Indian Law, however, permits the institution of suits in the lifetime of the female owner to remove a common apprehended injury to the interests of all the reversioners, presumptive and contingent alike. Venkatanarayana Pillai v. Subbammal, ILR 38 Mad 406 : AIR 1915 PC 124. The reversioner's rights during the lifetime of the female heir are merely of a protective character and nothing more, and whenever action is taken by the presumptive reversioner, it is in a representative capacity and on behalf of all the reversioners, and not on the footing that the person taking the action is in fact the next reversioner at the date of the suit. The decisions of Indian High Courts, on which the High Court had relied on this case, proceed on these principles and cover the precise point raised in this appeal.'
58. The same principles had been laid down by the Full Bench of the Patna High Court andof our High Court. These two Full Bench decisions were also rendered on the same question arising under Act 2 of 1929 and the reasoning was to the same effect. Perhaps it will be useful to quote the following passage from, ILR (1937) Mad 948 : (AIR 1937 Mad 699.
'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. That she is thus in one sense the heir of the last male holder, cannot be disputed. Referring to the widow their Lordships say that what she holds is 'an estate of inheritance to herself and the heirs of her husband'. ILR 5 Cal 776 (PC).
The persons described here as the heirs of the last male holder are the reversioners, whose interest, so long as the female holder is alive, is only contingent differentiated little, if at all, from a spes successionis' ILR 39 Mad 634 : AIR 1916 PC 117.
The relevance of this passage for our purpose will be mentioned later.
59-60. In his reply to the submission of Mr. Rajah Aiyar, Mr. R. Gopalaswami Aiyangar naturally conceded that the settled law before the Actwas that succession of that reversionary heirs would open out only on the death of the limited female owner, but he urged that on a true construction of Sections 4, 8, 10 and 14 of the present Act, the widow's estate came to an end on the coming into force of the Act and at the same time let in the other heirs specified in class I of the schedule under Section 8 in this particular case the daughter. He urged that Section 14 while enlarging the nature of the widow's right into one of full ownership, at the same time, cut down the quantum of her estate. He also stated that while Section 8 would have to be construed retrospectively in the sense that the mere fact of the male Hindu having died intestate prior to the Act need not stand in the way of the application of Section 8, for example, in this particular case, still on further consideration, he was not prepared to go to the extent which he had originally done, namely, that the logical extension of his argument might be to divest estates already vested, for being divested, for example, in the illustrations thefather (F), being divested by the daughter of a predeceased son of a predeceased son (SSD). So far as that illustration was concerned, he stated that there would not be such divesting and the reason he put forth for that was that on the father (F) succeeding to the last male holder (M) he (F) himself became a fresh stock of descent and the property could no longer be said to be that of (M) for the purpose of applicability of Section 8. He thus made a distinction between the case where a male heir had taken and a case where a female heir had taken.
61. We feel that the argument of Sri Gopalaswami Aiyangar cannot be accepted. When the present Act was enacted, Parliament fully knew that the reversionary heirs would only succeed on the death of the last female holder and that the female owners themselves were only limited owners, and with full knowledge of this situation, it enacted in Section 14 that any property possessed by a female Hindu whether acquired before or after the commencement of the Act shall be held by her as, full owner thereof and not as a limited owner. Words of widest amplitude are used here and that is made clearer by the explanation. The normal and natural interpretation of these words as applied to the present case would mean that the properties possessed by the two widows, namely, the first and fourth defendants, which had been acquired by them as heirs by inheritance from their husband Muthuswami Chettiar, shall be held by them from the date of the commencement of the Act as full owner and not as limited owners as before. There is no justification in the language of the section for cutting down the extent of the properties thus held by them to a. half share as contended by Mr. Gopalaswami Aiyangar. The words used are 'any property' which would take in the entire extent. The further words 'whether acquired before or after the commencement of this Act' would also take in all the properties inherited by them from their husband, and are inconsistent with the suggestion that the Act put an end to the previously existing title of the widows and created a fresh title by cutting down the quantum of that estate into a half and enlarging the nature of the estate to full ownership. There are no words at all in Section 14 to indicate such an intention. We would really have to rewrite the section in a drastic manner to give effect to such a contention.
62. We need not be alarmed by this, because as pointed out by Ramaswami and Subramaniam JJ. in Marudakkal v. Arumugha Gounder, 1958 1 Mad LJ 101 : AIR 1958 Mad 255, and by the Supreme Court in : AIR1959SC577 the object of the Act was to improve the legal-status of Hindu women enlarging their limited interest in the property inherited, provided they were in possession of the property when the Act came into force. As pointed out by Ramaswami and Subramaniam JJ. in : (1958)1MLJ101 , this is consistent with modern ideas that women are equal in status with men.
63. The view of Section 14 taken by us is in accordance with the principle that really succession to the estate of Muthuswami Chettiar had already taken place on his death when the widows took his properties and the Act should not normally be construed as intending to reopen succession which had already taken place. It is to emphasise this idea we quoted the passage from ILR (1937) Mad 948 : AIR 1937 Mad 699; 'That she is thus in one sense the heir of the last male holder, cannot be disputed.' and that it is only the succession of the reversionary heirs which is postponed till the termination of the estate of the limited female owner. It may also be remembered that succession can never be in abeyance in Hindu law just as in any other system of law. It may be noted that even Mr. Gopalaswami Aiyangar concedes in his final reply that in the illustration given the father F who took before 17th June, 1956, could not be divested by the daughter of the predeceased son of predeceased son (SSD) by virtue of Section 8 of the Act. He put it on the ground that succession had alreadyopened and the father F had become a fresh, stock of descent. On the same reasoning it can be said that in this case also, succession to Muthuswami Chettiar's estate had opened on his death when the widows took it, though in a different sense succession of the reversionary heirs had not yet opened out and it is at this stage the Legislature steps in and enacts Section 14 enlarging the limited interest to full ownership.
We do not see why full effect should not be given to the words used in Section 14. This does not involve any conflict with the main reasoning of the decisions in , because there the question of succession under Act 2 of 1929 arose at a much later stage after the termination of limited female owner's estate under the old Hindu law, but the question here Under Section 14 of the Hindu Succession Act of 1956 arises at an anterior stage, namely, as to what is to happen to the estate of the limited female owner herself. Again this interpretation of ours is consistent with the settled rule that in the interpretation of statutes there should be as little interference with existing interests as possible. From this point of view, it seems to us that nothing turns on the fact that express words are used in Sections 6, 7, 22 and 25 stating that they would apply only where the male Hindu dies or lives to be a Hindu male after the commencement of the Act. Nor can any support be derived from Section 4 because the question would again be only of construction of Sections 8 and 14. The mere fact that Sections 8, 9 and 10 precede Section 14 seems to us to be irrelevant in construing Section 14.
64. We shall now discuss the cases relied on or referred to by either side. It will be convenient to discuss them High Court by High Court.
65. Taking the Allahabad High Court, the learned counsel for the appellant relies on Triveni Devi v. Sharada Devi, : AIR1958All773 . In that case one Ragunath Prasad died on Ist April 1956, leaving him surviving his widow and four daughters. He left an amount of Rs. 7200/- and odd in the savings bank. The widow applied for a succession certificate in her own name. Because three of the daughters were minors a conditional certificate was issued by the learned District Judge stating that she would be entitled to deal with the money only with the permission of the Court. She filed an application for review on the ground that the provisions of Section 14(1) of the Hindu Succession Act had not been brought to the notice of the learned District Judge and that she was entitled to the certificate without any condition. The learned District Judge repelled this plea on the ground that Section 8 of the Act applied and that the daughters also were entitled to a share in the money along with the widow. The widow filed a revision to the High Court. Roy, J., upheld the decision of the learned District Judge. There is no detailed discussion by the learned Judge, and we are unable to see how he got over the plain language of Section 14(1). With respect, we think the decision was wrong.
66. For his part, Mr. K. Rajah Aiyar, relied on the decision in Janak Dulari v. Dist. JudgeKanpur, : AIR1961All294 . In that case certainzamindari property of the last male owner Maheshilal was taken over and compensation amout of Rs. 21000/- was awarded. The daughter Janak Dulari was paid by the Court only Rs. 10,000/-and the rest was retained in the Court of the District Judge because she was only a limited owner. Later when the Hindu Succession Act was passed, she applied for the remainder also, claiming an absolute right Under Section 14(1). The learned District Judge thought that her claim was justified but that a separate suit should be filed. Against that order a writ petition was filed in the High Court. Bhargava, J., set aside the order of the District Judge and directed the balance of the money also to be paid to the daughter pointing out that Section 14(1) gave her an absolute right to the entire compensation amount. Section 14(2) was pressed into service against her on the ground that it was by the prior order of the Court she had been directed to be paid only Rs. 10000/-. It was held that Section 14(2) would not apply and that she did not acquire the right to the compensation amount by virtue of the prior order but by inheritance as heir to her father. It was further observed that it was not necessary to file a separate suit. We respectfully agree with the reasoning in this decision.
67. Turning to the Andhra Pradesh High Court Sri Rajah Aiyar cited Sankara Rao v. Rajyalakshmamma, : AIR1961AP241 . In that case one Venkatasiva Rao died on 7-6-1956 leaving his widow Rajyalakshmamma and an adopted son, the plaintiff in the suit. The suit for partition was instituted on 17th July, 1956. The plaintiff claimed a three-fourth share in the properties. The basis of this claim was that because the widow had not asked for partition of her husband's share she was not entitled to that share under the Hindu Women's Right to Property Act, 1937, and she acquired the right only Under Section 8 of the Hindu Succession Act, 1956, and that under that provision, the plaintiff was also entitled to a share as a simultaneous heir along with her and therefore the widow was entitled only to a one-fourth share and the plaintiff was entitled to the remaining three-fourth share. This contention was repelled by Umamaheswaram, J. The learned Judge pointed out that she acquired the share of her husband under the Hindu Women's Right to Property Act, and that it became enlarged to full ownership Under Section 14(1) of the Hindu Succession Act and that a partition would merely work out the right and the absence of specific partition would not defeat that right. Sri Rajah Aiyar relied on this observation in support of his contention that in the case before us the widows did not acquire their right under the partition deed dated 5-6-1956 but were only working out the prior right they had. We agree with Umamaheswaram, J.
68. Turning to the Calcutta High Court Sri Rajah Aiyar cited Billabasini v. Dulal Chandra, : AIR1958Cal472 . There one Debendranath Datta, the last male owner died on 8-12-1947 leaving behind him as his heirs his widow, Billabasini, four sons and two daughters. In the partition suit which was instituted, a preliminarydecree was passed on 21-12-1954 giving a fifth share to the widow to be enjoyed by her as a Hindu widow in the manner prescribed by the Hindu law. After the Hindu Succession Act came into force she made an application claiming that she was entitled to hold the share allotted to her as full owner and prayed for directions to the Commissioner to that effect. Bechawat, J., allowed the claim observing that the widow had been allotted her share under the Hindu Women's Rights to Property Act, 1937, and the nature of her interest was enlarged to full ownership Under Section 14(1) of the Hindu Succession Act. He pointed out that it was wrong to suggest that she acquired her share under the preliminary decree, because the preliminary decree only recognised her antecedent title which she had acquired by inheritance. We respectfully agree.
69. The decision in Krishna Dasi v. Akhil Ch. Shah, : AIR1958Cal671 which followed Billibasini v. Dulal Chandra, : AIR1958Cal472 held that the possession of the Receiver would constitute possession of the mother of the last male-holder for purposes of Section 14(1) so as to enlarge her interest to full ownership. We respectfully agree.
70. Mr. Gopalaswami Aiyangar relied on thedecision of the Calcutta High Court in BepinBehary v. Sm. Lakshasona Dassi, : AIR1959Cal27 in support of his contention that the first andfourth defendants in this case acquired the properties in their possession only under the partitiondeed. The facts of that case necessary for ourpurpose are these. In a partition suit concerningcertain estate one Madan Mohan Malik was awarded a one-seventh share by a preliminary decreedated 1-4-1938. He died on 2-8-1948 leaving himsurviving a widow, three sons and four daughters.On 19-7-1954 Sarkar, J., made an order directinga further division of the one seventh share amongthe three sons and the widow, each being givena one-fourth share. The direction concerning theshare of the widow Rati Manjari Dasi was :
'The share of Rati Manjari Dasi being held and enjoyed by her as a Hindu widow during the term of her natural life as prescribed in Hindu, law.'
Rati Manjari Dasi died on 1-6-1958 and it became necessary to bring on record her legal representatives in certain proceedings. It was sought to bring on record the three sons and four daughters. But that application was opposed by one of the sons Dinnath Mallick.
The contention of Sri T. P. Das, learned counsel on his behalf, was that the one-fourth share of Rati Manjari Dasi had been given only in lieu of maintenance and in fact had come out of the shares of the sons, who alone had inherited the estate of Madan Mohan Mallick and that, on the death of Rati Manjari Dasi, her share went back to where it had come from, namely, to the sons, and the daughters would have no place. This contention was rejected by the learnSd Judges, Chakravarti, C. J. and Lahiri, J., on the ground that Rati Manjari Dasi had really inherited the share of her husband under the Hindu Women's Rights to Property Act, 1937 though it was notclear whether Sarkar, J., had that Act in his mind. The learned Judges observed that the Hindu Women's Rights to Property Act, 1937 did not permit the raising of the contention that the share acquired by the widow under that Act was in lieu of maintenance and should go back to the sons. The question then arose as to how the position was altered by virtue of the Hindu Succession Act. In answer to the contention that Rati Manjari Dasi's estate became enlarged to that of full ownership by virtue of Section 14(1) it was urged by Mr. T. P. Das the learned counsel that Section 14(2) of the Act applied, the contention being that she got her properties by the final decree in the partition suit, namely, the order of Sarkar, J., dated 19-7-1954 and that if Section 14(2) applied, the old orthodox Hindu law would apply and not Section 8 which would be only prospective in operation and under the Hindu law the contention was that the property should go back to the sons.
Regarding this contention, the learned Judges felt a doubt whether Rati Manjari Dasi could be said to have been possessed of the estate Under Section 14(1) but thought it was not necessary to decide whether Section 14(1) or Section 14(2) applied, because in either case the daughters would also be entitled to be brought on record. The reasoning was that if Section 14(1) applied, Rati Manjari Dasi became the full owner and the daughters also would be her heirs besides the sons (Under Section 15 of the Hindu Succession Act). If, however, Section 14(1) did not apply and Section 14(2) applied it affected only the operation of sub-section (i) but otherwise the law applicable would not be affected. The position was that Rati Manjari Dasi got either a Hindu widow's estate under the order of Sarkar, J., or a Hindu woman's estate under sub-section (3) of Section 3 of the Hindu Women's Rights to Property Act, 1937, and in either case devolution of the estate would take place on her death to the heirs of her husband as by the time of the death of Rati Manjari Dasi, the Hindu Succession Act had come into force, Section 8 would apply letting in the daughters also as heirs along with the sons. The learned Judges pointed out that this would not be giving retrospective effect to Section 8. We are in agreement with the reasoning in part, but we feel that Rati Manjari Dasi could well be said to have been possessed of her one-fourth share of the one-seventh share of her husband for purposes of Section 14(1) and that her estate became enlarged to full ownership by the Hindu Succession Act, 1956, and that consequently on her death, Under Section 15 of the Act, the daughters also would be heirs along with the sons.
71. The learned counsel for the appellant tries to press that portion of the decision in paragraphs, 14 and 16 where the learned Judges expressed a doubt whether in view of the fact that Rati Manjari Dasi's one-fourth share in the one-seventh share of her husband was given by a final decree dated 19-7-1954, the application of Section 14(2) could be avoided on the reasoning that the final decree only recognised her antecedent right under the Hindu Women's Rights to Property Act, 1937. The learned Judges said that it might plausiblybe urged that such reasoning might apply to the preliminary decree but not to the final decree. With respect we are unable to agree with this part of the decision. In our opinion this doubt is not justified and even in respect of the final decree it could be said that it only recognised the antecedent right of the widow. It will be seen that the learned Judges did not express any final opinion on the point.
72. The next decision of the Calcutta High Court which Sri Gopalaswami Aiyangar relied on was Jaria Devi v. Shyam Sundar, : AIR1959Cal338 . That decision is a short one and runs thus:
'This rule raises a short question. It is directed against the order of the learned District Judge, Jagonkuri, in Misc. Judicial Case No. 21 or 1956 Under Section 31(2) of the Land Acquisition Act, whereby the learned District Judge has refused the petitioner's prayer for payment to her of a moiety share of the award of Rs. 2400 on account of compensation of a masonry wall which had been deposited by the Collector in Court under the said provision of law. The petitioner claims payment on the ground inter alia, that, whatever might have been the position before the new Hindu Succession Act of 1956, Under Section 14(1) of that Act her interest in that money is no longer the limited interest of a Hindu widow but has become the absolute interest making her the absolute owner thereof. The question is whether the case would come Under Section 14(1) or would be governed by the exception thereto as enacted in the next sub-section.
The petitioner Jari Devi claims title to the money as the heiress of her husband who was one of the lour coparceners of the particular family owning, inter alia, the acquired property and urges that, under a deed of partition, she had been allotted a moiety share of the property along with the others in lieu of her admitted one-fourth share in the joint properties. She contends that in the circumstances, her limited interest as a Hindu widow in the properties allotted to her as aforesaid must be held to have been transformed into an absolute interest Under Section 14(1) of the new Hindu Succession Act. If this had been a simple case of partition, allotting properties to the parties in proportion to their respective admitted shares, the petitioner's contention might have been correct. But where, as here the widow co-sharer has been allotted properties not strictly according to her share, under a deed which is described as a deed of partition, but which in reality is a deed of family arrangement, not allotting properties to the widow strictly in accordance with any admitted share but by way of family arrangement, expressly stipulating that the widow will have no more than a life interest therein, the case would, in our opinion, fall within the exception, Section 14(2), and not within the general rule enacted in Section 14(1) of the Act. The petitioner's title to the acquired property is really founded on the above deed and not on any admitted share of inheritance. In this view, we affirm the order of the learned District Judge and discharge this rule, though in the circumstances we would make no order as to costs.'
73. It seems to us that the above decision will not afford any assistance to the appellant on the question of Section 14(2) in the case before us, because that decision was given on the particular facts of that case and was resisted on the ground that the widow had been given more than the one-fourth share to which she was entitled. Actually we feel a doubt whether it could not have been a case of her being allotted a half share of the particular property alone in lieu of her admitted one-fourth share of all the family properties and, in that sense, whether it could be said she was given any larger share than she was entitled to. If our doubt is justified we would have to differ from the opinion of the learned Judges.
74. Turning to the Mysore High Court, two decisions were brought to our notice. The first was Appa Saheb v. Gurubasawwa, AIR 1960 Mys 79. There one Basappa died in 1944. His wife (the plaintiff) adopted the first defendant on 3-8-1945. She filed the suit before the Hindu Succession Act of 1956 claiming a half share against her adopted son. The defence was that she was unchaste and therefore forfeited her share. There was finding of unchastity by the Courts below but still the suit was decreed apparently on the ground that she had a right under the Hindu Women's Rights to Property Act, 1937, notwithstanding unchastity. On appeal by the first defendant it was held by the High Court following the view of the Madras High Court that the rule of Hindu law ousting a widow on account of unchastity was still left untouched by the Hindu Women's Rights to Property Act, the effect of which was merely to give her a half share where previously she had none, that consequently even in 1944, on her husband's death she was not entitled to any interest in her husband's property and therefore, Section 8 of the Hindu Succession Act, would not help her either to get her half share. We agree with the decision on the facts of that case, but it will not help either side in this case.
75. The other decision of the Mysore High Court was Ramappa v. Chandangouda, AIR 1960 Mys 260. In that case one Hanamgouda's widow sold her husband's properties to the first defendant. She remarried in 1948. Thereupon the plaintiff reversioner brought a suit for recovery of possession. It was dismissed by the trial Court but decreed by the first appellate Court which found that there was legal necessity. In the second appeal by the alienee to the High Court, it was contended that the sister of Hanamgouda was the nearer heir than the plaintiff. This contention was met by the answer that the property involved in the suit was watan property and in respect of that the plaintiff, a male member, was the preferential heir. This was the position before the Hindu Succession Act. But it wa,s contended in the High Court that Section 4 of the Hindu Succession Act abolished that distinction between watan property and other property, and Under Section 8. of the Hindu Succession Act, the sister would be nearer heir than the plaintiff. The learned Judge repelled this contention observing that the provisions of the Hindu Succession Act were not retrospective in their operation and Succession had already opened in 1948 on the remarriage of the widow and had vested in the plaintiff under the Law as it stood then, and that the estate so vested could not be divested by Section 8 of the Hindu Succession Act. We agree. In his final reply Mr. Gopalaswami Aiyangar himself conceded, that in such a case Section 8 would not apply.
76. Turning to the Patna High Court, thereis the decision in Lateswar Jha v. Uma Ojhain, : AIR1958Pat502 , on which Mr. Gopalaswami Aiyangar initially relied for his contention under Section 8 of the Act without knowing that the learned Judge himself (Rajkishore Prasad, J.,) reversed his opinion on that point in a later decision Ramgulam v. Palakdhari Singh, : AIR1961Pat60 . The following pedigree will help to understand the facts of : AIR1958Pat502 .
BABUJI JHA (died)
Ramdhari Jha (Died) Bachan Jha (Died)
Plaintiff | | | | |
| | | | |
Deft.1 Deft.2 Deft.3 Deft.8 Deft.9
| Achki Jha Siba Jha
| | |
| | |
D.4 D.5 D.6
It will be seen that one Babuji Jha died leaving two sons Ramdhari Jha and Bachan Jha. The plaintiff was the son of Ramdhari Jha. He brought a suit for partition. He was of course entitled to a half share of the entire estate. But the controversy in the High Court was confined to the remaining half share of the second branch. It will be seen that the son Bachan Jha died leaving his three sons, defendants 1, 2 and 3, and two widowed daughters-in-law, namely, defendants 8 and 9. The two widows claimed that their husbands had died in a state of separation, and each was entitled to a fifth share in the half share of that branch. The trial judge found that their husbands had nqt died in a state of separation but however held that they were entitled to the shares claimed by them under the Hindu Women's Rights to Property Act, 1937, the finding being that their husbands had died after that Act came into force in 1938 and 1948 respectively.
The controversy in the appeal by defendants 1, 2 and 3 before the High Court related to the one-fifth share in the half share awarded to the widow, defendant 8, defendant 9 having compromised the matter. The appellants contended that the husband of defendant 8 had died in 1932 itself. But the learned Judge of the High Courtagreed with the finding of the trial judge on that point, that he died only in 1938, and it followed that she was entitled to the same share as her husband under the Hindu Women's Rights to Property Act, 1937 though of course it was only a limited widow's estate. The learned Judge pointed out that with the passing of the Hindu Succession Act that limited ownership became enlarged to full ownership Under Section 14(1) (though the suit itself had been instituted before the Hindu Succession Act had come into force). The learned Judge did not however stop there, but accepted the further contention put forward on behalf of defendant 8 that even if her husband had died before the Hindu Women's Rights to Property Act, 1937, she was entitled to inherit the share of her husband by virtue of Section 8of the Hindu Succession Act, 1956, there being no other simultaneous class I heir. Sri Gopalaswami Aiyangar relied on the latter part of this decision. But in the later decision : AIR1961Pat60 , Rajkishore Prasad, J., sitting with Sinha, J., pointed out that this latter part of the decision was wrong and that Section 8 was not retrospective. When this latter decision was pointed out, Mr. Gopalaswami Aiyangar fairly stated that be could not rely on the earlier decision.
77. The facts in : AIR1961Pat60 , were these. The last maleholder Rajendra Singh died in 1931, leaving as his heir only his grandmother Mst. Ari Kuer, the thirteeth defendant in the suit. In 1951 she executed two sale deeds in favour of defendants 2, 3, and 4. The suit was brought by the plaintiffs claiming to be the nearest reversioners of Rajendra Singh in 1951 for a declaration that the alienations were without legal necessity and were nominal. The trial judge found that the sale deeds were neither genuine nor were acted upon and there was in fact no legal necessity or consideration. The declaration prayed for was therefore granted. During the pendency of the appeal preferred by the defendants in the High Court the Hindu Succession Act had come into force. The appellants contended that Section 14 had become a complete defence to the plaintiffs' suit. The learned Judges repelled this contention pointing out that Section 14 was not intended to enlarge the estate of the alienees. Thereupon the appellants relied upon the Supreme Court decision in : AIR1959SC577 and urged that on the findings of the trial judge that the sale deeds were not acted upon at all and were nominal, Mst. Ari Kuer must still be deemed to be possessed of the properties for the purposes of Section 14(1) of the Act. This submission was also repelled and in doing so the learned Judge distinguished the Supreme Court decision emphasising the difference between a transaction which is void and a transaction which is voidable at the instance of the reversioners and they pointed out that in the Supreme Court decision, the adoption was assumed to be void ab initio and therefore destitute of any legal effect and that was why the actual possession of the adopted son was held to be permissive on behalf of Veeravva. But in the case before the learned Judges the sale deeds executed by Mst. Ari Kuer could not be said to be void but were good against Mst. Ari Kuer herself and even the reversioners might eventuallyelect to abide by it. We agree with this decision. But of course Mr. Gopalaswami Aiyangar does not tely on it.
78. Another decision considered and endorsed as correct in : AIR1961Pat60 is the decision in Jamuna v. Ramanup Singh, : AIR1960Pat182 . It is justified on the ground that there was no actual transfer of possession from the widow to the alience and that therefore Section 14(1) was properly applied. We do not think it necessary to discuss it further. Similarly in the decision of the Patna High Court in Ramsewak v. Sheopujan, : AIR1959Pat75 , also there is a discussion of the scope of the word 'possessed' in Section 14(1). In view of the Supreme Court decision we do not think it necessary to discuss that case either in detail.
79. Turning to the Punjab High Court Sri Gopalaswami Aiyangar referred to the decision in Benso v. Charan Singh, . There the widow of the last maleholder, Banta Singh, executed a registered gift of the properties in favour of the daughters. The plaintiffs, fifth degree collaterals, brought a suit for a declaration that the gift was invalid so far as it related to the ancestral property. The declaration was given. On appeal by the defendants it was urged that the distinction between the ancestral and non-ancestral property which was material under the customary law of Punjab before the Hindu Succession Act of 1956, became immaterial with the passing of the Act and Under Section 8 of that Act, the daughters, would be nearer heirs being class I heirs and the plaintiffs would only be class III heirs being the agnates of the deceased and in that sense their chance of succession to the estate, if and when succession opened out on the death of the widow, would be very remote. This contention was accepted and it was pointed out that it was within the discretion of the Court to make or refuse to make a declaration in such a suit and in that particular case they said they were not prepared to make the declaration because the chance of succession of the plaintiffs would be very remote. On that particular facts of that case the refusal to exercise the discretion may be right but that does not assist the appellant in this case. Similarly the decisions in Mt. Taro v. Darshan Singh, and Gurdas v. Mt. Prito, are not really useful for our purpose.
80. In the result, we hold agreeing with the learned Subordinate Judge that the plaintiff's suit must fail because of Section 14(1) of the Hindu Succession Act, even taking the plaint allegations to be true. The dismissal of the suit was therefore justified, but we do not think that the learned Subordinate Judge was right in asking the plaintiff to bear the costs of the contesting defendants when the dismissal of the suit was based on aground which arose subsequent to the institutionof the plaint and when the original allegations had not been tried. The proper order to makewas to direct the parties to bear their own costs and we feel that the same direction should be made for the costs in the appeal, particularly when the question raised is agitated for the first time inthis Court. Accordingly, while dismissing the appealwe direct the parties to bear their own costs in boththe Courts.