1. The third defendant in O. S. No. 33 of 1965, who is also the second defendant in O. S. No. 195 of 1963 on the file of the Court of the District Munsif of Coimbatore, is the appellant in these two letters patent appeals. The interesting question that arises in these appeals is whether to a case of succession to the estate of a Hindu male, who held the property as the last male-holder, the Hindu Law of Inheritance (Amendment) Act, 1929. Act 2 of 1929, is applicable or not.
2. The short facts that are necessary for disposal of the appeals may be stated. One A. Kandaswami Gounder died in 1912, leaving behind him, his widow RanSammal, two sons. K. Arunachala and K. Kandaswami and three daughters Angammal, Palaniammal, and Pachiammal. Kandaswami's son K. Arunachala died issueless in 1938. After a few months K. Kandaswami also died issueless. After K. Kandaswami's death, Rangammal the mother, was in enjoyment of the joint family properties. The said Rangammal died in 1953. Thereafter, Angammal, the sister of the last male holder K. Kandaswami filed O. S. No. 195 of 1963 for partition and separate possession of the one-third share in the joint family properties. She got a decree. An appeal A. S. No. 412 of 1966, was preferred by Pachiammal, another sister of Kandaswami. After the decree in O. S. No. 195 of 1963 was passed, Ganapathy, son of Pachiammal, filed O. S. No. 33 of 1965 claiming that as the sister's son, he wag the nearer heir to Kandaswami. The said suit was dismissed by the trial Court and he preferred an appeal. A. S. No. 260 of 1966. The appeal against the decree in O. S. No. 195 of 1963 and the appeal A. S. 290 of 1966 against the decision in O. S. No. 33 of 1965 were heard together. Both the appeals were allowed and it was held that the sister's son was the nearer heir and that Act II of 1929 was not applicable. On appeal, a learned single Judge of this Court confirmed the view of the lower appellate Court and dismissed the second appeals.
3. The question that arises in these two appeals is whether Act 2 of 1929 is applicable to the facts of the case. The preamble of the Act runs as follows:--
"An act to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate."
The main purpose of the Act therefore is to alter the order in which certain heirs are entitled to succeed to a Hindu male dying intestate. The four heirs mentioned in Section 2 of the Act are sons' daughter, daughter's daughter, sister and sister's sons. Thev are made to rank in the order of succession next to father's father and before father's brother. The four persons, who are Binnagothra sapindas are put along with gothraia sapindas and given precedence over father's brother and others. Section 1, provides that the Act will be applicable, "only to persons, who, but for the passing of the Act, would have been subject to the law of Mitakshara in respect of the provisions herein enacted," ..... "it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by Will." The section would be applicable to persons, who are subject to the law of Mitakshara and it will be applicable to properties of males not held in coparcenary and not disposed of by Will. A plain reading of the preamble and Sections 1 and 2 of the Act, would indicate that the law of Mitakshara regarding inheritance is changed so as to provide for higher status for the four persons mentioned in relation to the property of a male dying intestate they are given a place after father's father and below the paternal uncle shown as 13-A to 13-D by Mulla in his order of succession.
4. The controversy in these appeals centres round the expression, "the property of males not held in coparcenary". The emphasis is made on the words, "not held in coparcenary" and it is contended that this section applies to cases where a male dies intestate leaving property, which is not coparcenary property or ancestral property as understood by the Hindu law. Examining the section by itself, we find no difficulty in holding that it is not applicable to the property of males held in coparcenary. The words, "not held in coparcenary" would not, in our view, justify the construction that the said section is not applicable to coparcenary property in the hands of the last male holder. The contention of Mr. D. Ramaswami lyengar, learned counsel for the Respondents is that the coparcenary property has a definite meaning in Hindu Law it would include all property which will continue to be coparcenary or joint family property even in the hands of the last male holder, and would be excluded from the operation of the Act. We do not see any justification for such a construction of the Act.
5. In Umayal Achi v. Lakshmi Achi, (1945) 1 Mad LJ 108 = (AIR 1945 FC 25) the Federal Court has observed as follows:--
"The expression, 'separate property' may be the antithesis of three other expressions, viz., 'ancestral property', 'coparcenary property' and 'joint family property'. The particular sense in which that expression has been used in Section 3(1) of the Hindu Women's Rights to Property Act has to be determined in the light of the scheme of the Act. The property held by a person as the last surviving coparcener of a joint family cannot be regarded as 'separate property' within the meaning of Section 3 (1) of the Act. 'Separate property' would be property, in respect of which the son of the surviving coparcener would not be entitled to claim coparcenary rights but only a right of inheritance on the father's death if he survived him."
The words used will have to be interpreted against the background of the Scheme of the Act and in the context of the object of the legislation. As already observed by us the object of this Act, is to amend the law of inheritance so as to give a higher status to the four persons mentioned in Section 2. If the argument of the learned counsel that Act 2 of 1929, will not be applicable to coparcenary or ancestral property in the hands of the last male holder is accepted, it will lead to strange results for there will be two orders of succession to a Hindu male who dies intestate leaving property in respect of which the law of survivorship does not operate In the case of property, which is not held is coparcenary, the Act would be applicable and the Hindu law as it was before Act II of 1929, will not govern in heritance thereto. So also, regarding the separate property of the Hindu dying interstate, the Act would be applicable and the four persons would have a higher status.
6. Mr. D. Ramaswami Iyengar, stressing on these words 'property held in coparcenary' submitted that these words would be otiose, for in the case of coparcenary, when there are other members, the property would devolve by survivorship. We do not agree, for there is no indication to exclude any property which is not held in coparcenary. Obviously, the aim of the Legislature was to provide that when a Hindu male dies possessing of property which is not held in coparcenary and which will devolve by survivorship, the Act would apply. We are supported in our line of reasoning by the decision of the Andhra Pradesh High Court in D. Ramiah v. Venkata Subbaiah, where the Court held that there is no justification to confine the operation of the Act to self-acquired property alone. The Bench expressed its opinion as follows:
"In our considered opinion, the property that falls to the share of a last male owner in a family partition is attracted by Act II of 1929, the only property that is excluded from the operation of Act II of 1929 being coparcenary property, i. e., property in which the other members of the joint family have interest. It extends to all forms of property other than that."
We are in respectful agreement with the view expressed above.
7. The learned Judge from whose judgment these letters patent appeals are preferred, while warning in two places that the question hag to be considered with reference to the language of the statute as well as the scheme of the Act and taking note of the fact that neither the expression, 'separate property' nor the expression, 'joint family property' has been used in the Act, came to the conclusion that Section 2 of the Act will have meaning only if the property to which it is sought to be applied is one capable of being inherited by father's father and father's brother. He continued to observe that if the property is such as not capable of being inherited by father's father and father's brother, Section 2 will become meaningless. The learned Judge observed:
"The question is, can it be said that the same reasoning or logic or principle applies to the property in the hands of the propositus which was originally ancestral property If the property is ancestral property, and the propositus happens to be the last surviving coparcener, ex-hypothesi his father's father will not be there to succeed to the property as an heir. With regard to such a property, if the father's father survives, he will get it by survivorship and not by inheritance and as a matter of fact, in the presence of the father's father, the propositus would not have been the sole or the last surviving coparcener. So also in the absence of the father's father, the paternal uncle will get the property by survivorship and not by inheritance. As I have pointed out already, if Section 2 had to apply, the property must be such as the father's father and paternal uncle are capable of inheritine as heirs. If the father's father and paternal uncle are not capable of inheriting the 'property as heirs, then Section 2 of the Act will have no application and as a matter of fact, it will have no meaning."
With these observations we find ourselves unable to agree. There can be no difficulty in imagining the father's father inheriting the property of a grandson. There might have been a partition between the father's father and the father followed by a partition between the father and the son. The father may die and subsequently the son may die after the partition between himself and his father leaving no nearer heir than his father's father. The father's father may inherit. It is a fallacy to hold that Section 2 will have no application as the question of father's father and maternal uncle inheriting the same cannot possibly arise.
8. The learned counsel appearing for the appellant as well as the respondent in the letters patent appeals stated that they did not put forward the reasoning quoted above which found favour with the learned Judge. In fact the learned counsel for the respondent, in whose favour the reasoning is, frankly stated that he is unable to support the view taken by the learned Judge; but pleaded that he would rely on the decision of the Supreme Court in Annagouda Nathgouda v. Court of Wards. Satara, and contended that the Act is applicable only to 'separate properties' and not to the property which he would characterise as ancestral or coparcenary in the hands of a male holder. Reference will next be made to the contention and the decision of the Supreme Court presently. The learned single Judge relying on the Supreme Court decision has stated:--
"When the Supreme Court used the expression, 'Separate property' in that case, it meant the property to which a father's father and paternal uncle can succeed as heirs, on the death of the holder. From the very nature of the case, with regard to the coparcenery property in the hands of the sole surviving coparcener, such question of inheritance by the father's father and father's brother cannot possibly arise and therefore the Act itself will have no application."
It is difficult to accept this reasoning. The conclusion arrived at by the learned Judge based on the Supreme Court decision was coloured by his erroneous reasoning that inheritance of the father's father cannot possibly arise. I am unable to agree with the interpretation of the learned Judge of Section 2 of the Act or his statement of the Hindu Law of Inheritance.
9. There is nothing in the decision of the Supreme Court to indicate that the Supreme Court meant by 'separate property' the property to which father's father and paternal uncle can succeed as heirs on the death of the holder in the manner the learned Judge understood it. In that case, the Supreme Court was considering the question as to whether the Hindu Law of inheritance (Amendment) Act, Act II of 1929 was applicable to devolution of property belonging to a Hindu female. The Supreme Court observed:--
"Whether this distinction between male and female propositus is at all reasonable is another matter, but the language of the Act makes this distinction expressly and so long as the language is clear and unambiguous, no other consideration is at all relevant".
After holding that the Act provided succession only to separate property of a Hindu male dying intestate the Supreme Court proceeded to observe:
"It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regular succession to the property of a Hindu female at all. It is to be noted that the Act does not make these four relations statutory heirs under the Mitakshara Law in all circumstances and for all purposes; it makes them heirs only when the propositus is a male and the property in respect to which it is sought to be applied is his separate property."
The mention of the words, "separate property" is very strongly relied on by the learned counsel for the respondents. It must be noted that the Supreme Court was dealing with the succession to a Hindu female and it observed that the Act was applicable to separate property. In that context, the Supreme Court was not drawing any distinction between 'separate property' and 'ancestral property' or 'coparcenary property'. I think their Lordships used the expression 'separate property' in contradiction to property "held in coparcenary", and did not intend to confine the application of the Act only to self-acquired or separate property. The distinction between 'separate property', ancestral property', 'coparcenary property' and 'joint family property' is pointed out in (1945) 1 Mad LJ 108 = (AIR 1945 FC 25) already referred to by the Federal Court. But it did not fall to be considered by the Supreme Court in the context, as it was not dealing with that aspect.
10. The Bench of the Andhra Pradesh High Court in
referred to already, also took the same view, as we have done. In that case, they have referred to the decision of the Supreme Court and observed:
"We are not persuaded that this statement of law justifies the proposition advanced by the learned counsel for the appellant. The expression 'separate property' is used in antithesis to 'property not held in coparcenary' ".
11. In conclusion, I would state that the only property sought to be excluded from the operation of the amendment was the property of a male held in coparcenary. The question that will have to be decided is whether the property was in fact held in coparcenary. The nature of the property may be coparcenary in origin, but after partition and when the last male holder holds it, it can no longer be said to be property "held in coparcenary". To such a kind of property when the last male holder holds it as is in the present case, the Hindu Law of Inheritance will apply and equally the legislative amendment. The only exclusion which the legislature contemplated was the property that was held in coparcenary and which would devolve by survivorship. The enactment would embrace all kinds of properties to which the Hindu Law of Inheritance would normally apply.
12. In the result, these appeals are allowed and the decrees and judgments of the trial Court restored with costs. Advocate's fee one set.
13. While I am in entire and respectful agreement with my learned brother, I wish to make the following observations: The Hindu Law of Inheritance (Amendment) Act, 1929 (Act II of 1929) by Sub-section (2) of Section 1 clearly defines the scope of the Act by saying that it applies "in respect only of the property of males not held in coparcenary and not disposed of by Will". The two expressions "not held in coparcenary" and "not disposed of by Will" have been placed in a significant juxtaposition to indicate that the Act would operate only on such property of a male Hindu as can be disposed of by Will. The property held by a Hindu male in coparcenary with another is property over which he could have no testamentary powers of disposition and would, therefore, be the subject of Hindu Law of survivorship, and not the Hindu Law of Inheritance, as amended by the Act of 1929 The question that arises for consideration in these appeals is whether the joint family or the ancestral property held by a sole surviving 'coparcener' is governed by the Act of 1929. Before answering this question, we have to apply to the property a double test prescribed by the Act: (1) Was it property not held in coparcenary? and (2) if it was not so held, has it been disposed of by Will? In this case, K. Kandaswami, the last male-holder, died without disposing of the suit property by Will. The only remaining question is, did he or did he not, at the tune of his death, held the suit property in coparcenary? According to the Concise Oxford Dictionary, "Parcenary" is derived from the Anglo-French word "parcenarie" and means "joint ownership" The prefix "Co" when used before nouns means Joint, mutual (e.g) coheir co-equality". The English jurists felt forced to use this rather inappropriate word "coparcener" to connote a concept peculiar to Hindu Law and entirely extraneous to Anglo-saxon jurisprudence. A property cannot be held in coparcenary in a single individual any more than a firm can be held in partnership by a single individual. There must at least be two male members to hold a property in coparcenary. Where the Hindu joint family has been reduced to a single male member, and property, albeit joint family property, is held by the sole surviving male member, it would be a travesty of words to describe him as "holding the property in coparcenary". It may be that in the uncertain event of his begetting or adopting a son or his predeceased coparcener's widow adopting a son, he would in future hold the property in coparcenary with such a son, and his rights of full ownership including his power to dispose of his property by testament would be lost. But I fail to see how this contingency, which has not happened in this case can convert the sole surviving coparcener holding the joint family property absolutely into a person holding the property in coparcenary. The character of the property has to be judged neither with reference to its past history nor with reference to its future potentialities, but solely with reference to the nature of its tenure at the time the last male-holder thereof died and succession thereto opened. The mere fact that once upon a time the property was held by coparceners cannot, after it has devolved upon a sole coparcener, put the property out of the ambit of the Act, for the expression used in the Act is "property not held in coparcenary", and not "property not held as coparcenary property".
14. A cursory examination of the object of Act II of 1929 would also go to confirm this conclusion. Apparently, the Legislature was not dissatisfied with the mode of devolution of joint family property under the Mitakshara Law of Survivorship, and that is why it left it untouched. But so far as the Mitakehara Law of Inheritance was concerned, the Legislature thought that it was archaic and inequitable for two reasons; viz., (1) it excluded a Hindu's nearest female relations, for example, the son's daughter, the daughter's daughter and sister from inheritance altogether; and (2) it gave the sister's son a very poor chance of succession and assigned to him a very low price among the bandhus, who can only take in the absence of gotraja sapindas and samanodakas. What the Act set out to do was to improve the position of these four relatives. Let it be remembered that the mischief this Act intended to rectify lay not in the mode of survivorship in respect of coparcenary property, but is the mode of inheritance to property, which was not subjected to survivorship. This is made clear not only by the words employed in the preamble to the Act and quoted by my learned brother, but also by the Statement of Objects and Reasons published at page 117 of Part V of the Gazette of India dated March 31, 1928. Paragraph 2 of the Statement of Objects and Reasons reads as follows:--
"The Bill is intended to remove a sex disqualification which under the archaic rules of Hindu Law excludes one's nearest female relations, e.g. the sister, the son's daughter and the daughter's son, from inheritance altogether, while it gives the sister's son a very low place amongst bandhus who can only take in the absence of gotraja sapindas and samanodakas, that is to say, the owner's agnatic relations even upto the 14th and later degrees, which gives him a very poor chance of succession in many cases....."
Paragraph 3 says:
"The Bill is intended to include the son's daughter, daughter's daughter and the sister amongst heritable bandhus which they are not under the Hindu Law, and improves the position of the sister's son by placing him immediately after the grandfather but before the grand-uncle."
Paragraph 4 is in these terms:
"This does not exhaust a very large number of female relations, e.g., the son's son's daughter, the brother's daughter, the sister's daughter, who still remain outside the pale of heritable bandhus but the bill being merely a revival of the bill already passed by the Assembly, it is not proposed to enlarge upon its provisions for the present, though the whole law of Hindu inheritance is unsatisfactory and does not follow the line of affinity and affection, placing as it does agnatic kinsmen however remote above all cognatic relations however near."
If this is the object of the legislation, it would be fantastic to contend that the Legislature, which undoubtedly professed to amend the archaic Mitakshara Law of Inheritance intended that the joint family property in the hands of a sole surviving coparcener should fall outside the purview of the Act and continue to be governed by the archaic and inequitable rules, which, in the matter of inheritance, place agnatic kinsmen, however, remote, above all cognatic relations, however near. The interpretation put by the learned Judge (Ismail, J.) attributes to the Legislature an intention to perpetuate a mischief which it expressly set out to remedy. We do not think it right and fair to attribute such an absurdity to the Legislature, especially when it found that eminent jurists like Messrs. Hari Singh Gour, S. R. Das, and Sankaran Nair had a hand in drafting this Act. In the Bill, as originally drafted by H. S. Gour, Clause 2 (b) defined "the order of succession" to mean "the order in which according to Mitakshara Law of Inheritance, as administered in the territories to which this Act extends, the relations of a deceased Hindu succeed to his estate or to any portion thereof." The above definition shows that the mover of the Bill, while keeping intact the order of succession prescribed by the Mitakshara Law of Inheritance intended to interpolate the four classes of heirs, between the father's father and the father's brother. It is also clear that the Bill intended to regulate the entire mode of inheritance under the Mitakshara Law and did not wish to discriminate between different kinds of heritable estate left by a deceased Hindu. When the Bill went to the Select Committee consisting of nine jurists, they made certain amendments to the Bill. The Bill as amended by them was ultimately passed by the Legislature. The report of the Select Committee published at page 187 of Part V of the Gazette of India dated 29th September, 1928, shows that Clause 2 of the original Bill was omitted. The reason for the omission is stated in paragraph 3 of the Select Committee's report, which runs as follows:--
"We have omitted Clause 2. The definition of "Hindu" adds nothing to Sub-clause (2) clause 1 as amended by us, while consequentially on the omission of this definition, we have also inserted the word "male" in the title and preamble. The expression "order of succession" occurs only in Clause (3) (renumbered by us as Clause 2). We are of opinion that its meaning is self-evident and that no definition is required."
Clause 2, as amended by the Select Committee, is Section 2 of the Hindu Law of Inheritance (Amendment) Act, 1929, and it runs as follows:--
"A son's daughter, daughter's daughter, a sister and sister's son shall in the order so specified, be entitled to the rank in the order of succession next after a father's father and before a father's brother."
Reading Section 2 conjointly with Section 1 of the Act it is clear that the order of succession refers to the order of succession prescribed by the Mitakshara Law of Inheritance. To whatever property the Mitakshara Law of Inheritance would apply, the changes effected by the Act of 1929, would equally apply. When the Select Committee said that the expression "order of succession" is self-evident and that no separate definition thereof was required, it means that the Mitakshara Lew of Inheritance with the order of succession as amended by the Act of 1929 would apply to all kinds of heritable property left by a Hindu male governed by the Mitakshara Law. That is why Section 1, Sub-section (2) says that the Act applies to such persons in respect only of property of males not held in coparcenary. In other words, if a Hindu male governed by the Mitakshara Law of Inheritance died intestate leaving any property, which was not subject to the Mitakshara Law of Survivorship, it should be inherited by a son's daughter, daughter's daughter, sister and sister's son in the order so specified next after a father's father and before a father's brother. The view of the learned Judge, if accepted, would lead to the strange anomaly that joint family property in the hands of a sole surviving male would pass to the father's brother while the self-acquired property and other kinds of separate property of the deceased would go to the son's daughter, daughter's daughter, sister or sister's son in preference to the father's brother.
15. The main argument that seems to have weighed with the learned Judge in coming to the conclusion that the Act does not operate on coparcenary property held by the sole surviving coparcener is an argument, which learned counsel for the respondent says he never advanced before the learned Judge. The argument runs thus: If the property is ancestral or joint family property and the propositus happens to be the last surviving coparcener, ex hypothesi his father's father or father's brother will not be there to succeed to the property as an heir because they must have necessarily predeceased the propositus. The propositus would not have become the sole surviving coparcener unless his father and his father's lather had predeceased him. In that case, it would be absurd to contemplate the father's father or father's brother ever succeeding to the estate of the propositus. Section 2, which contemplates succession to the property of the propositus by his father's father or father's brother, contemplates something which can never happen in human affairs and would consequently become meaningless. In order to give meaning to Section 2 and to rescue it from absurdity says the learned Judge we have to interpret Section 1 in such a way that it applies only to separate property of the sole surviving male and not to coparcenary property held by him. In other words, the rule of harmonious construction constrains the court, according to the learned Judge, to prefer the interpretation which he has put upon the Act.
16. The glaring fallacy underlying this argument has been pointed out by my learned brother, and it is this: The assumption that the father's father and father's brother can never succeed to the property of the propositus by way of inheritance is demonstrably wrong. It is not inconceivable that the propositus became divided from his father after the latter had become divided from his father. If after this double partition and after becoming solely entitled to a certain property, which before the partition was held in coparcenary, the propositus died issueless, fatherless and intestate, his father's father and in his absence, his father's brother, would certainly become entitled to inherit the property under the Mitakshara Law of Inheritance as it was before the Act of 1929. It is this situation that the Act rectified by sandwiching the daughter's son, the daughter's daughter, sister and sister's son in between the father's father, and father's brother. Thus, we find that Section 2, far from being meaningless, is pregnant with meaning and is intended to apply realistically to a situation, which is not impossible of happening. If Section 2 is thus found to have a meaning, there is no need, in the name of harmonious construction, to give to Section 1 any meaning other than what it conveys in plain and unambiguous English. I have therefore, little hesitation in concurring with my learned brother in allowing these appeals with costs and restoring the decrees and judgments of the trial court.