S. Ramachandra Iyer, C.J.
1. This second appeal raises a question of some importance as to the construction of Section 14(1) of the Hindu Succession Act, 1956 (which we shall sometimes refer to also as the Act). The facts giving rise to this litigation are not now in dispute. One Somasundara Udayar, a resident of Poongavur village in Thanjavore District, died sometime, before the year 1937, leaving him surviving his widow, Sellathachi and two daughters, Kuppammal and Punithavalli Ammal, the last of them being the first respondent to this appeal. The properties left by Somasundara were inherited by his widow and were in her possession on the date when the Act came into force. Punithavalli Ammal was a disappointment to her mother, she having left her husband in the year 1947 to live with her paramour. Disputes even arose between them and Sellathachi bad to file a suit in the year 1948 and that successfully to restrain her daughter and her paramour from interfering with the properties in her possession.
2. While so, the Hindu Succession Act came into force on 14-6-1956. By virtue of the provision contained in Section 14(1) of the Act, Sellathachi became the absolute owner of the properties which she inherited from her husband.
3. She then appears to have contemplated taking the appellant in adoption and secured the necessary consent from her husband's relations for the purpose. Just a few days before the adoption took place, she settled an extent of seven acres and thirty six cents of land on her elder daughter Kuppammal for her life with a gift over to the son to be adopted. Under the same document an extent of two acres and twenty eight cents were given to the settlor's brother. The document also provided that if Punithavalli Ammal were to leave her paramour and reform herself, half of the net income, if Kuppammal was agreeable, from the properties settled on her, might be given to the former for her maintenance. The validity of this document has not now been questioned.
4. On 13-7-1956 the appellant was duly taken in adoption by Sellathachi after the performance of the prescribed ceremonies. A deed of adoption was ' also executed by the adoptive mother on the same day That unmistakably shows that the executant's intention then was, that all the properties in her enjoyment should thereafter be taken by the appellant. There were, however, no formal words of conveyance to that effect in the adoption deed.
5. Some months thereafter, on 19-6-1957, Sellathachi who was then ill, executed another settlement, Ex. B-4, in favour of the first respondent, her erring daughter giving her an absolute interest in 9 acres and 16 cents of land and a half share in a house. The validity of this settlement was challenged almost immediately by the appellant when Sellathachi was alive by the suit which has given rise to this second appeal. The Settlor who was impleaded as the first defendant to the action died soon after its institution.
6. The validity of the settlement deed, Ex. B-4 was impugned before the Courts below on more than one ground; but the arguments before us were confined to one point alone, namely, the competency of Sellathachi to settle the properties on her daughter after the adoption of the appellant had been made.
7. The lower Courts have concurrently found that by reason of Section 14(1) of the Act the widow's estate till then possessed by Sellathachi became an absolute one in her hands, and that the adoption of the appellant subsequent to the coming into force of the Act, would not have the effect of divesting her of the estate; and consequently the settlement in favour of the first respondent was validly made.
8. In our opinion, there appears to have been some misapprehension on the part of the lower Courts in regard to the true construction of Section 14(1) of the Act. What that section enacts is to convert a limited estate which a woman possessed under the law (except in the cases provided by sub-section (2) ) into an absolute one; it does not in terms render void or ineffectual any claim by a preferential heir to the person whose property the lady as his then nearest heir inherited and secured an absolute right thereto.
9. Let us explain what we mean by an illustration : suppose a man dies leaving a widow but he had also a son whom we shall assume had not been heard of for over 7 years at the time of his death. His widow would undoubtedly inherit his properties, there being a presumption that the son had predeceased the father. If the death of the latter had taken place prior to the Act his widow would be entitled to a limited estate only. On the coming into force of the Act, her estate would become an absolute one. Even so if after that date, the long lost son were to turn up, the widow's right to the property, absolute it might be after the Act, will be defeated by the superior claim of the son. Absolute in such a case as the widow's estate will be, it nevertheless will thus be a defeasible one.
10. A defeasible estate does not mean that it is a limited one. Defeasibility can co-exist with an absolute estate and the latter only means that there will be no restriction in the enjoyment of it and if left undisposed of by its owner, law will regulate its succession. A defeasible estate on the other hand is one where on the fulfilment of a condition subsequent the ownership of the person holding it comes to an end or is defeated. So long as that condition or the supervening event has not happened, the estate can exist as an absolute one in the hands of the person holding it. This is a familiar principle in the law of gifts.
In Krishnaswami Iyer v. Appavier, 39 Mad LJ 498 : AIR 1920 Mad 783 Seshagiri Iyer, J., pointed out that even though there might be a gift of a property by a person, there was nothing to prohibit a substantial gift being made to take effect on the failure of a stipulated condition. The learned Judge referred in this connection to the Scottish law where although a conveyance to person and his heirs, etc., would make him an absolute owner, there might follow a valid conditional substitution or a gift over, to which on the occurrence of the contemplated events, effect could be given. The English law has also recognised as valid, a clause of forfeiture or defeasance of an absolute estate subject to an executor gift. Those and similar clauses of defeasance under a settlement etc., have been regarded as a limitation of the estate itself and not as a condition repugnant to the original absolute estate given.
11. It cannot therefore be assumed from the mere fact that Section 14(1) confers an absolute estate on a female owner who till then had only a limited estate, that it will not be liable to be defeated by the claims of a preferential heir to the owner from whom that lady inherited. The case of an adoption by a widow furnishes an example of defeasibility, where by a fiction, of law the adopted son is deemed to be in existence on the gate of the death of the father and he is regarded as the preferential heir.
12. But a statute can by appropriate language prevent that fiction being applied. It has indeed done so under proviso (c) to Section 12 of the Hindu Adoption and Maintenance Act, 1956. But that enactment came into force only on 21-12-1936, several months after the adoption of the appellant had been made by Sellathachi to her husband. We have therefore to see whether there is anything in the Hindu Succession Act which will have the effect of abrogating the title by relation back which is available to a son adopted by a Hindu widow to her husband.
13. The argument in support of the view taken by the lower Courts is rested on the ground that the Act being in the nature of a code, exhaustive of matters dealt with by it, the conferment of an absolute estate on a female owner therein and making her thereafter as a fresh stock of descent, would negative the right of any other person to claim as a preferential heir to the last male owner. Put in that broad form the contention has to be ruled out. For instance, it cannot be said in the illustration we have given earlier i. e., a natural son unheard of for 7 years prior to his father's death returning to claim his father's properties later, the widow would still have the right. But the case of an adopted son's title depending as it does purely on a fiction created by the law will stand on a different footing. We have then to see whether by enacting Section 14(1) the Legislature intended to put an end to his right of divesting the estate in the possession of his adoptive father's heir.
14. The Act purports to amend and codify the law of interstate succession amongst Hindus. In the recent decision of the Supreme Court reported in Munnalal v. Rajkumar, : AIR1962SC1493 . Their Lordships have referred to this aspect of the enactment, with its far-reaching changes in the law of inheritance and the sweeping away the traditional limitations on the powers of the Hindu females, making them a fresh stock of descent for succession to properties held by them. That decision is of particular value to this case as, it was concerned with the amplitude of Section 14. The facts there were these: Prior to the coming into force of the Act, a widow in a family had filed a suit for partition and obtained a preliminary decree; but before a final decree could be passed dividing the properties by metes and bounds, the widow had died. Under the law as it stood prior to the Act and as laid down in Pratap Mull Agarwalla v. Dhanabati Bibi , a wife or mother in a joint family obtaining a share in a suit for partition, would not become the owner of that share, until actual division had taken place.
15. A question therefore arose before the Supreme Court whether the widow could be held to have left any property which her own heirs could claim. That was answered in the affirmative on the basis that although a woman might not before the passing of the final decree become the owner of the property, her rights under the preliminary decree would still be 'property possessed by her' as contemplated in Section 14(1) and she would get absolute rights thereto by virtue of the statute. That it will be seen that that was a case where a specific provision in the Act had to be applied. Section 4(a), to which we will have occasion to refer later, gives to all matters expressly provided an overriding effect over the rules of the ordinary Hindu law.
16. But we have here to see whether the Act being a code, its provisions will have the effect of nullifying the ordinary law not only in regard to matters expressly provided for therein but matters not so provided, as well, by implication. In that connection we shall have first to advert to the principles which should guide the Courts in interpreting a code. Lord Herschell, while dealing with that matter in the course of his speech in the Bank of England v. Vagliano Brothers, 1891 AC 107, observed:-
'I think the proper course is in the first instance to examine the language of the statute, and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute intended to embody in a code a particular branch of the law is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before by roaming over a vast number of authorities, in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even of an absolute proceeding such as a demurrer to evidence.
I am, of course, far from asserting that recourse may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If, for example, a provision be of doubtful import such resort would be perfectly legitimate. Or again if in a code of the law of negotiable instruments words be found which have previously acquired a technical meaning or been used in a sense other than their ordinary one in relation to such instruments the same interpretation might well be put upon them in the code. I give these as examples merely. They, of course, do not exhaust the category. What, however, I am venturing to insist upon is, that the first step taken should be to interpret the language of the statute, and that an appeal to earlier decisions can only be justified on some special ground. One further remark I have to make before I proceed to consider the language of the statute. The Bills of Exchange Act was certainly not intended to be merely a code of the existing law. It is not open to question that it was intended to alter, and did alter, it in certain respects. And I do not think that it is to be presumed that any particular provision was intended to be a statement of the existing law, rather than a substituted enactment.'
The rule that a statute can be regarded as a code only on the points specifically dealt with by it, has also been recognised and emphasised by the Supreme Court in the decision to which we just now referred to Munnalal v. Rajkumar, : AIR1962SC1493 . White reading Section 14(1) in the context of Section 4, the Court observed:
'Manifestly the legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act.'
We can at this stage with appropriateness take a broad look at the changes brought about by the Act to ascertain the intention of the legislature in enacting Section 14(1). The rules of succession and the nature of the estate taken by the heirs thereunder are almost new. A uniform law of succession to all those who were governed till then by different rules according to the school to which a person belonged, has been evolved. In regard to the property to which such rules are applicable, even an undivided interest of a coparcener under the Mitakshara law has been made heritable property in certain circumstances. No distinction has been made between a male and a female heir of equal degree in the matter of inheritance; the limited estate of woman who has inherited and those in possession as an heir has been enlarged into an absolute one.
There are also other changes particularly in the enumeration of heirs. All these, it will be seen are pertinent to the law of succession. But that law is only a part of the Hindu law. Other branches of the law like adoption had not been codified by the time the Act came into force. Shastraic or textual and customary Hindu law continued to apply in respect of those matters. Therefore while the Act can be regarded as a code and interpreted with reference to matters dealt with by it on the principles referred to above, a different rule of interpretation will have to be ad opted where the provisions of the statute indirectly affect an unabrogated part of the pre-existing Hindu law. That this will be so will be apparent from the very terms of Section 4 which statutorily makes the provisions of the Act comprehensive. That provides:
'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' (rest of the section omitted as unnecessary.) There is nothing in the foregoing provision (sic) a repeal by implication of any rule of Hindu law not directly contradictory of the provisions contained in the Act. Therefore Section 4 will not abrogate any principle outside the rule of succession. By way of illustrating what we have said, we would like to refer to a recent decision of the Gujarat High Court reported in Nathubhai v. Chhotubhai, : AIR1962Guj68 , where it was held that Section 4 of the Hindu Succession Act, 1956 will not have the effect of abrogating the rule of pious obligation existing under the Hindu law, although succession has been regulated under the Act with regard to joint family property as well.
17. But the case of an adopted son is undoubtedly one of succession. Where an inheritance to a male takes place after the Act has come into force and a heir specified in the Act has become entitled to the deceased's property, it will perhaps be difficult (we do not, however, express any opinion on the point) to hold that a subsequently adopted son to the deceased could displace the title to succession laid down by the Act; there is nothing in the Act itself in regard to that matter. But the succession by the female owner in the instant case had not taken place under the Act, the statute not being retrospective, as it had already taken place to the last male-holder prior to the year 1937. Section 14(1) has the effect only of enlarging the estate, which the female owner had inherited prior to the Act freeing it from the restrictions in regard to its enjoyment. Absolute estate in females with respect to inherited property was not unknown to Hindu law previously. For example, a daughter inheriting to her father under the Bombay school took it as her Stridhanam with absolute rights. The effect of Section 14(1) with regard to female owners in possession of an inheritance from even prior to the Act, is to make such owner have the same absolute estate as a daughter under the Bombay school had with respect to her father's property.
18. In considering whether the lights of the adopted son had been taken away impliedly by the statute, we must have regard to the words of caution spoken by Lord Wrenbury in British and Foreign Marine Insurance Co. v. Sanday (Samual) and Co., (1916) 1 AC 650 -
'I should look more carefully in a codifying Act to see whether any existing law is altered by express words, and should not hold that the Act is going beyond codification unless it puts the matter beyond dispute.'
It cannot however be denied that the intention of the legislature is that with regard to property inherited by a female prior to the Act, which was in her possession on the date it came into force, she should thenceforth be a full owner. At the same time, there is nothing express in the Act, to take away the rights of any person who may corns into existence later but whose rights under a different branch of the law would defeat the right of a female heir. Whether the legislature should be taken to have impliedly abrogated even those rights will have to be ascertained on a true construction of Section 14 and on consideration of the question whether the conferment of an absolute estate will be inconsistent with its divestment by a preferential heir.
19. Section 14(1) deals with two cases (1) of property possessed by a Hindu female haying been acquired before the Hindu Succession Act came into force; and (2) property similarly possessed after the commencement of the Act. An absolute estate is conferred on the female owner in regard to both the types of properties. As we indicated the latter case will certainly form part of the law of inheritance prescribed by the Act which is prospective in its operation; there could, perhaps, as we said, be no scope in such a case for importing the fictitious existence of an heir at the time of the succession if an adoption were to be made by the widow later on; for, then a fiction will have to prevail over what the statute expressly provides. But that principle cannot obviously apply to the former types of cases where the conferment of an absolute estate is not made as a part of the law of succession as enacted, succession haying taken place anterior to the Act, but as the effectuation of the policy of the legislature to remove the existing disabilities on women in regard to holding of properties and to make them fresh stock of descent even in regard to that property. In that case even the Act should be regarded as exhaustive as to the precise property in respect of which she became entitled to full ownership; see : AIR1962SC1493 , and also as to the extent of the interest she will have therein. That interest will not suffer from any restriction under the law in regard to toe power of disposal etc.
20. Even so, that cannot be said of all the property inherited by a female owner prior to the Act. For, Section 14(1) applies only to properties in her possession at the commencement of the Act, thereby excluding from its operation such part of inherited properties not in her possession then. For example, if the female who had a limited interest had sold property for a purpose not binding on the estate prior to the Act, there is no provision in the Act providing for succession etc., with regard to such property. Such an alienation will be valid only for her life. Who should succeed on the termination of that period is not a matter expressly provided in the Act. To that extent a least the legislation cannot be said to be sufficiently comprehensive.
21. Reverting to the precise question before us, it has to be seen whether the divestment by an adopted son of the estate in the hands of his adoptive mother, can be regarded as a restriction of her estate or only the result of the operation of a different branch of the law, which has not been dealt with under the Act. If the former were the case, the divestment will be contrary to Section 14(1) and therefore of no legal effect. If it were the latter, the adopted son must be held competent to divest an absolute estate possessed by his adoptive mother as an inheritance from her husband.
22. For a due consideration of the question, it will be useful to refer briefly to the concept of a woman's estate under law as it stood prior to the Act and the rule of the relation back of an adopted son's title. A widow inheriting her husband's property (prior to the Act) completely represented the estate and so long as she was alive, no person had a vested right therein. But at the same time, her proprietorship stood qualified with reference to her powers of disposition. She could not make a donation or testamentary disposition of the property. Nor could she even alienate property except for justifying necessity or manifest benefit to the estate. Where, however, there existed such necessity or benefit her powers of alienation were like those of any other full owner. This qualified nature of inheritance is peculiar to the Hindu law and it was generally applicable even to other females like daughter, sister etc., inheriting property.
The rule, however, was not universal, for textual Hindu law as administered in certain parts of the country did permit female heirs of the type just now mentioned to take an absolute estate. For example, under the Bombay School of Hindu law (Mitakshara as well as Mayukha) a limited estate herein before described, would exist only in regard to property inherited by a female heir from males who come into the Gotra of the deceased owner by marriage, like a widow of the deceased, widows of his Sapindas etc., but where the female heir inheriting was born in the same Gotra as the deceased, like daughter, son's daughter sister etc., such female would get an absolute estate, taking it as her stridhanam. Notwithstanding the fact that law recognised absolute estate in female heirs of that description, it has been held that a son subsequently adopted to the last male owner, would be capable of divesting even such an inheritance. The rule is also the same where the adoptive father's coparcenary interest had devolved on his death to the surviving male members of the coparcenary, who under the law, had the full powers.
23. This right to divest an estate once vested is the outcome of the rule as to relation back of the adopted son's title. In Mayne's Hindu Law, 11th Edn. the effect of an adoption by a widow is put thus (page 250):
'A widow with authority to adopt cannot be compelled to act upon it. Consequently, the vesting of the inheritance cannot be suspended until she exercises her right. Immediately upon her husband's death it passes to the next heir, whether that heir be herself or some other person, and that heir takes with as full rights as if no such power to adopt existed, subject only to the possibility of his or her estate being divested by the exercise of that power. But as soon as the widow's power is exercised, the adopted son stands exactly in the same position as if he had been born to his adoptive father, and his title relates back to the death of his father to this extent, that he will divest the estate of any person in possession of the property to which he would have had a preferable title, if he had been in existence at his adoptive father's death.'
The position will be the same in the case of an adoption by a widow who did not have authority of her husband but who took a boy in adoption in pursuance of an authority given by her Sapindas. In the classic judgment in Jatindra Mohan Tagore v. Ganendra Mohan Tagore, Ind App Sup Vol 47, Willes, J., observed:-
'The Hindu law recognises an adopted child, whether adopted by the father himself in .his lifetime, or by the person to whom he has given the power of adoption after his death from amongst those of his class, of one to stand in the place of a child actually begotten by the father. In contemplation of law such child is begotten by' the father who adopts him or for and on behalf of whom he is adopted. Such child may be provided for as a person whom the law recognises as in existence at the death of the testator or to whom by way of exception, not by way of rule it gives the capacity of inheriting or otherwise taking from the testator as if he had existed at the time of the testator's death having been actually begotten by him.'
The logical result of this doctrine of relation back will be to make the adopted son the heir to the father in preference to the widow, or any other heir that might have inherited the property; the same rule will also apply to property held by the adoptive father as a coparcener in a joint Hindu family which survived to the other coparceners on his death. In such cases, the vesting or survivorship will only be conditional, i.e., having efficacy till an adoption is made by the widow of the deceased. Consequently, once the adoption is made, the adopted son obtains a right to divest the widow or the other owner of the property which has thus vested.
24. Taking the case of a widow's adoption by way of illustration, the consequence of it will have to be regarded as more in the nature of a derogation not a restriction or cutting out of her rights. It is as if that inheritance of the widow could never have taken place.
25. Mukherjee, J., while delivering the judgment in Natvarlal v. Dadubhai, : 1SCR339 observed:
'A Hindu widow has larger rights than those of a life-estate holder inasmuch as in case of justifying necessity she can convey to another an absolute title to the properties vested in her. On the other hand, where there is no necessity for alienation, the interest which she herself holds and which she can convey to others, is not an indefeasible life estate but an estate liable to be defeated on the happening of certain events 'which in Hindu law cause extinction of the widow's estate. Re-marriage by the widow is one such event which completely divests her of any interest in her husband's property. Adoption of a son to her husband is another circumstance which puts an end to her estate as heir to her husband, the effect of adoption being to bring in a son who has prior claims to succession under the Hindu law.'
See also Sankaralingam v. Veluchami, ILR (1943) Mad 309 : AIR 1943 Mad 43, where a Full Bench of this Court has considered in detail the scope and effect of the rule of relation back of the title of the son adopted by a widow to her husband.
26. But the application of the rule has its limitations. For example, in a case where prior to the adoption, the limited owner in possession had alienated the property for justifiable necessity, the adopted son cannot divest the alienee. Nor can he by that fiction claim to have been a coparcener with the adoptive father and impugn his alienations. Quite recently, a Bench of this Court, to which one of us was a party, had to consider (in A. S. No. 184 of 1959 (Mad) ) whether the fictitious existence of an adopted son on the date of the death of the adoptive father would make him a coparcener so as to defeat a testamentary disposition by his adoptive, father who died a sole surviving coparcener of a Hindu family, we held that there should be a. distinction between a posthumous son who should be deemed to be in existence from the moment of his conception and an adopted son whose existence could be assumed only from the point of death of his adoptive father. Thus, there are two limitations to the application of the rule of relation back of the adopted son's title with respect to the property of his adoptive father, (1) It will not have the effect of defeating a disposition made by the adoptive father while he was the sole surviving coparcener of the family, whether such disposition be inter vivos or testamentary and (2) where prior to the adoption, a widow makes an alienation which would bind the estate of her husband. In such cases the rights of the adopted son will have effect only from the date of the adoption, but where, on the other hand, the widow makes an unauthorised alienation the adopted son can question the same.
27. From what we have stated above, and except in the two types of cases referred to, a divestment by an adopted son of the property in the hands of his mother or any other heir of his father, is by virtue of his own right and not by reason of any restriction or a defect in the nature of the estate possessed by the adoptive mother or any other heir. In all such cases, the person who actually inherits on the death of the last male owner can be regarded only as an intermediate heir with certain powers, and whose estate will be liable to be defeated on an adoption being made to the deceased by his widow. That an adoption by a widow to her husband has, with reference to the property left by the latter, the effect of defeating the inheritance that had already taken place regardless of the fact whether the heir so inheriting had an absolute estate therein has now been clearly laid down in K.V. Deshpande v. Dhruwaraj, : 2SCR813 .
28. The facts of the case were: One Narasappa Gowda had a son by name Bandegowda who predeceased him, leaving a widow by name Tunga Bai. Narasappa Gowda on whom, after his son's death, all the properties of the family vested, as the sole surviving coparcener, later died leaving behind him two daughters, Krishna Bai and Shyama Bai. Both of them obtained an absolute estate in the inheritance under the Bombay School of law. Long afterwards, Bandegowda's widow, Tunga Bai, adopted a son to her husband. The adopted son claimed the property which had absolutely vested in Krishna Bai; his claim was upheld by the Supreme Court.
29. The case no doubt was concerned with the interpretation of law as it stood prior to the Hindu Succession Act, 1956. But the principles laid down therein show that a subsequently adopted son's right to divest even an inheritance which has vested absolutely in an heir; that is of particular value to the interpretation of Section 14(1) of the Act which does nothing more than confer an absolute estate on the female owner. The existence of such an estate therefore in an intermediate heir cannot prevent the retrospective operation of an adopted son's title. In Srinivasa Krishna Rao Kango v. Narayana Deviji Kango, : 1SCR1 the underlying principle has been stated thus:
'When an adoption is made by a widow of either a coparcener or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back, is subject to the limitation that alienations made prior to the date of the adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees from limited owners, whether they be widows or coparceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing title defeasible on adoption and the result of such adoption must be to extinguish that title and that of all persons claiming under him. The alienees from him would have no protection as there could be no question of supporting the alienations on the ground of necessity or benefit.'
A widow who had inherited the property of her husband prior to the Act, so long as she could adopt a son to him, will be in the position of a mesne holder of the estate, for a son if adopted will be a preferential heir to her husband. In the absence of any express statutory provisions, her position in that regard cannot be considered as different, because the intermediate estate in her hands has been converted into an absolute one, for, as we have shown, defeasibility of an estate can co-exist with the absolute character of the same in the owner till the contemplated event happens. We find nothing in Section 4(a) of the Hindu Succession Act against this rule.
30. Commenting on that provision, the learned Editor of Mulla's Hindu Law, 12th Edn. says at page 278: .
'Although section has wide and overriding effect, it does not operate to abrogate every rule of Hindu law which may have bearing on the question of succession. It operates in respect of matters dealt with in the Act and though the Act codifies the law of succession, there is an indeterminate residue which it does not embrace and of this matter of reversion under discussion is an outstanding instance ...............'
One such rule of Hindu Law will in our opinion, be the rule of relation back of the title of the adopted son.
31. Our attention has, however, been invited to a decision of the Bombay High Court where a different view has been expressed; Vide Yamuna Bai v. Ram Maharaj, AIR 1960 Bom 463. In that case the parties were residents of the former Kolhapur State, where under the law, to effect a valid adoption, the sanction of the State was necessary. A widow who had properties adopted a son, but before the sanction of the State could be obtained, she died leaving surviving her co-widow. The adopted son's title not being perfect, the co-widow took possession of the properties left by the deceased. She happened to be in possession of the Game when the Hindu Succession Act, 1956, came into force, and her rights thereto became full and absolute. Nearly two years thereafter the State of Bombay gave sanction to the adoption made by the deceased widow. The adopted son then sought to recover the properties from his adoptive mother's co-widow, relying on the antecedency of his title. The learned Judges negatived his claim, holding that such claim being destructive of the full ownership conferred upon the co-widow, by the statute, it would be of little avail. The following observation in that judgment is relevant to the present discussion:
'But that incident of the estate, does not in our judgment, justify the imposition of a limitation restricting the connotation of the expression 'full owner' used in Section 14 of the Hindu Succession Act. Full ownership contemplated by Section 14 of the Succession Act, is not made by the legislature subject to any incident of divestation by adoption. If liability to divestation be implied, it will cut across the estate and the estate will not be regarded as of a full owner within the meaning of Section 14 of the Act.'
With great respect to the learned Judges, we are unable to share the opinion that defeasance of the widow's title by a preferential heir can be regarded as a restriction of her estate. As we said, the adopted son divests because of his superior claim to the estate of his adoptive father, and the vesting of inheritance in latter's heir prior to the date of adoption could only be regarded as an interim vesting. Secondly, the Hindu Succession Act should be regarded as a Code only for the subjects dealt with by it and it cannot affect the other parts of the Hindu law, unless there is an express provision to the contrary in the statute itself. There is no provision in the Act in regard to properties inherited by a widow prior to the Act, expressly or even impliedly, making the estate in her hands an indefeasible one. Section 14(1) does convert such an estate into an absolute one and if the widow dies thereafter without making an adoption, succession to it will be governed by the provisions contained in the Act.
32. Even so, the estate in the hands of thy widow can be regarded only as similar to and indeed it cannot be higher than an estate which had absolutely vested in her from the moment of inheritance. On the other hand, it can be said that it is even something less because that rule enacted in Section 14(1) will not apply to the properties alienated by the female owner prior to the commencement of the Act. The decision of the Supreme Court in : 2SCR813 , has clearly laid down that an adoption made to the last male owner, will have the effect of bunging into existence a preferential heir to him and the son so adopted could divest his estate which had vested absolutely in another. In our opinion, the decision of the Bombay High Court is inconsistent with this view. Sellathachi, therefore, had no right to make the settlement under Ex. B-4 in favour of the first respondent at the time she did, the adoption of the appellant having been made earlier. It is however made clear that the appellant has not challenged Sellathachi's dispositions made prior to the adoption under the earlier document Ex. A-I.
33. The appeal will succeed to the extent of the properties covered by Ex. B-4. In view of the fact that the question involved in the case is not free from difficulty, we do not make any order as to costs in any of the Courts.