1. Does the coparcennary property in the hands of the last male-holder fall within the scope of the Hindu Law of Inheritance Amendment Act (Central Act II of 1929) is the question that arises for determination in these two second appeals.
2. The facts as admitted and found by the courts below and which are not challenged before me are as follows: One A Kandaswami was the original owner of the properties which are the subject matter of these two second appeals. His wife was one Rangammal. The said Kandaswami died in the year 1912 leaving behind him his widow Rangammal and five children, namely, two sons by name K. Arunachalam and K. Kandaswami and three daughters Palaniammal, Augnammal and Pachiammal. The son K. Arunachalam died somewhere about 36 years ago unmarried. His brother K. Kandaswami also died within a few months thereafter unmarried. Rangammal herself died in 1953 leaving behind the three daughters mentioned above. One of her daughters, namely, Pachiammal has three sons by name Ganapathi Gounden, Sethupathi Gounden and Kandaswami Gounden. O. S. 195 of 1963 on the file of the Court of the District Munsif, Coimbatore, was instituted by Angammal, one of the three daughters of A. Kandaswami and Rangammal, for partition and separate possession of her one-third share of the properties belonging to A. Kandaswami and the other two sisters were impleaded as parties to the suit. The second defendant in that suit, namely, Pachiammal supported the case of the plaintiff and the first defendant, namely, Palaniammal was the only contesting defendant therein. She put forward several contentions to negative the case of the plaintiff therein and ultimately all those contentions were negatived and the said suit, O. S. 195 of 1963, was decreed on 11-8-1966 holding that the three daughters of A. Kandaswami were entitled to succeed to the properties of A. Kandaswami and therefore the plaintiff therein was entitled to a preliminary decree for partition as prayed for. Against this decree and judgment, A. S. 412 of 1966 was preferred to the First Additional Distinct Judge, Coimbatore.
3. In the meantime, it is alleged that when steps were taken to execute the decree in O. S. 195 of 1963, the first defendant therein, namely, Palaniammal set up Ganapathi Gounden, son of Pachiammal, to file the other suit, namely O. S. 33 of 1965 on the file of the Court of the District Munsif, Coimbatore, to claim the entire properties as belonging to him and to his brothers alleging that the Hindu Law of Inheritance (Amendment) Act, 1929 (Central Act II of 1929) hereinafter referred to as the Act will not apply to the properties of K. Kandaswami and therefore under the Hindu Law as it stood prior to the amendment by the said Act, his sister's sons were entitled to succeed to the properties of the maternal uncle and in this case of K. Kandaswami. To that suit, he impleaded his mother and two maternal aunts and his two brothers as parties. That suit was dismissed by the learned District Munsif on 14-12-1965 holding that the Act was applicable to the properties of K. Kandaswami and consequently the sisters of K. Kandaswami were the preferential heirs than the sister's sons. Against this judgment and decree, Ganapathi Gounder preferred A. S. 290 of 1966 on the file of the District Judge's Court, Coimbatore.
4. The learned First Additional District Judge on 17-4-1967 allowed both the appeals. He held that the Act did not apply to the properties of K. Kandaswami and consequently Ganapathi Gounden as sister's son was entitled to succeed to the properties in preference to the sisters of K. Kandaswami and in that view the suit instituted by Ganapathi Gounden was decreed and the suit instituted by Angammal was dismissed. Hence the present second appeals.
5. The only question that was argued before me was whether the Act applied to the properties in question. It is the common case of the parties that the properties were ancestral properties in the hands of Kandaswami. On his death in 1912, the properties survived to his sons K. Arunachalam and K. Kandaswami and on the death of K. Arunachalam, K. Kandaswami became the sole surviving member of the coparcenary and the properties survived to him. On his death, his mother, Rangammal, took a woman's estate in the properties and she died in the year 1953. The question for consideration is, who is entitled to succeed to the properties on the death of Rangammal, whether it is the three daughters of Rangammal, who are the sisters of K. Kandaswami or Ganapathi Gounder and his brothers who are the sister's sons of K. Kandaswami. The learned First Additional District Judge after elaborately considering the question has come to the conclusion that the Act has no application to the ancestral properties in the hands of K. Kandaswami and it is applicable only to 'separate property' and therefore the succession to the properties of K. Kandaswami will have to be traced under the Hindu Law as it stood prior to its amendment by the Act and if it is so traced, the sister's sons will be entitled to succeed to the properties in preference to the sisters. It is the correctness of this conclusion that is challenged before me. Though the decision will have to ultimately depend upon the language of the Act, elaborate arguments were addressed to me by the Counsel on both sides with regard to the concept of 'separate property' and 'coparcenary property' under the Hindu Law. Before I actually refer to the decisions relied on before me, it is necessary to refer to the actual provisions of the Act itself.
6. The preamble to the Act states that the object of the Act was to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate. Sub-section (2) of Section 1 dealing with the extent of operation of the Act states:
"It applies only to persons who, put for the passing of this Act, would have been subject to the law of Mitakshara in respect of the provisions herein enacted, and it applied to such persons in respect only of the property of males not held in coparcenary and not disposed of by will." Section 2 is the most important section and it is as follows:
"A son's daughter's daughter's daughter, sister and sister's son shall, in the order so specified, be entitled to rank in the order of succession next after a father's father and before a father's brother:
Provided that a sister's son shall not include a son adopted after the sister's death".
Ultimately the decision will have to depend upon a combined reading of sub-section (2) of Section 1 and Section 2 of the Act. It has to be noticed that the Act does not use the expression 'separate property' or 'joint family property', nor even uses the expression 'coparcenary property'. On the other hand, it uses a negative expression, namely, 'property of males not held in coparcenary'. It is the significance of this expression in the context of the specific provision made in Section 2 that will have to be considered.
7. Mr. V. C. Veeraraghavan, learned counsel for the appellant in these two second appeals, relied on the decision of the Supreme Court in Fateh Bibi v. Charan Dass, . That case did not decide this question at all. In that case one Kirpa Ram died leaving behind his widow Bishan Devi, a son Charanjilal and a daughter Maya Devi. The question for consideration was whether Charandas, sister's son of Charanjilal was entitled to succeed to the property or one Bishna or Bishan Singh, a collateral of Kirpa Ram, was entitled to the property. No argument was advanced before the Court that the property being coparcenary property in the hands of the last male-holder, namely, Charanjilal, the Act has no application and as a matter of fact, a reading of the judgment indicates that it was assumed that the Act applied. In paragraph 9 of the judgment at p. 792, it is stated:
"The learned Judge agreed with the findings of the two courts that Charanjilal was the last male-holder of the properties in question and that he was the absolute owner of those properties and there was no question of the property in his hands being coparcenary property".
Again in paragraph 14 at p 793, it is stated--
"In the case before us we have already pointed out that Charanjilal was the absolute owner of the property and therefore there was no question f the property being held in coparcenary and there is no controversy that the property was not disposed of by will by Charanjilal. Therefore, prima facie the Act will apply to the estate of Charanjilal if it can be held that the succession to his estate opened only when his sister Maya Devi died on 25-3-1950."
Thus, it will be seen that the Supreme Court in that case assumed that to the property which was the subject-matter of the decision, the Act applied and therefore the sister's son was a preferential heir to a distant collateral. The only question that was decided by the Supreme Court was, whether the Act applied to a Hindu dying before the commencement of the Act, who left behind a female heir to take a women's estate and who herself died after the commencement of the Act. That was the only question decided is apparent from the very opening sentence of the judgment to the effect:
"The short question that arises for consideration in this appeal filed by the legal representatives of the deceased defendant, on certificate, is whether on a true construction of the Hindu Law of Inheritance (Amendment) Act 1929 (Act II of 1929), (hereinafter referred to as the Act), it applied only to the case of a Hindu male dying intestate on or after February 21, 1929 (when the Act came into force) or whether it applies in the case of a Hindu male dying intestate before the Act came into operation and succeeded by a female heir who died after the date".
After considering the decisions in this behalf, particularly the decision of the Privy Council in Lala Dunichand v. Mt. Anarkali 73 Ind App 18 = (AIR 1946 PC 173), the Supreme Court stated that it was in agreement with the observations of the Judicial Committee and therefore held that the point of time for the applicability of the Act was when the succession opened, namely, when the life estate terminated. Apart from this only question decided by the Supreme Court, the case relied on has not decided the controversy that has been raised before me.
8. On the other hand, the learned counsel for the respondents brought to my notice several decisions holding that the coparcenary property in the hands of the last male holder continues to be joint family property. The use of the expressions 'separate property', 'joint family property' or 'coparcenary property' occurring in other statutory provisions or text books or in judgments may not be really conclusive for deciding the question with reference to the Act. As I have pointed out already, the question has to be considered primarily having regard to the language employed by the Act and the scheme of the Act itself.
9. In one of the early cases, namely, Umayal Achi v. Lakshmi Achi, AIR 1945 FC 25, dealing with the scope of the Hindu Women's Rights to Property Act, 1937, the Federal Court had occasion to consider the scope of the expressions 'separate property' and 'joint family property'. That was because Section 3(1) of the Hindu Women's Rights to Property Act, 1937 (Central Act 18 of 1937) used the expression 'separate property' and Section 3(2) of the said Act used the expression 'an interest in a Hindu joint family property'. In that case also the property in the hands of one Arunachalam Chettiar, who was the last surviving coparcener was ancestral property. Consequently, the Federal Court had to consider the scope of these two expressions used in that enactment. In that context, Varadachariar J., who delivered the leading judgment deals with the concept of separate property under the Hindu Law. At p. 32, it is stated:--
"It was next contended on behalf of the respondents that the learned Judges of the High Court applied a wrong test in determining whether the properties in the suit were 'separate property' within the meaning of Section 3(1) of the Act, 18 of 1937. The learned Judges have dealt very briefly with this point. They proceeded on the footing that the suit properties had come to Arunachalam as the last surviving member of a Mitakshara joint family, but they held that the suit properties were separate properties of the deceased because he had full disposing power over them. They were of the opinion that the Act itself was enacted, 'in order to give a widow and a predeceased son's widow a share in the estate of the deceased over which he had a disposing power.' With all respect to the learned Judges, we think, in the light of the arguments urged before us, that the question requires a more detailed examination of the scheme of the Act with due regard to the established rules of Hindu Law. In cases governed by the Mitakshara school of Hindu Law, the expression 'separate property' has sometimes been used in a limited sense, to denote what is known as self-acquired property (See Mullah, 9th Edn. para 230). But, judged by the test of power of disposition, two other kinds of property held by a Hindu governed by that law, viz., property obtained as his share at a partition and property held by him as a sole surviving coparcener may, in some measure, resemble self-acquired property. There is however, this difference between them, viz., that in the case of a self-acquired property, the owner's power of disposition will continue to remain undiminished throughout his lifetime, unless he chooses voluntarily to throw it into the joint family stock, whereas in the case of the other two kinds of property, his power of disposition will become qualified and his interest reduced the moment a son is born to him or the widow of a predeceased coparcener takes a boy in adoption. It would not therefore be right to place these three kinds of property on the same footing merely on the ground that at a particular point of time, the owner may enjoy unrestricted powers of disposition over them. That is why in enumerating the several items constituting 'separate property' in para 230 of his book on Hindu Law, Sir Dinshah Mulla has taken care to add certain qualifying words in respect of Items 6 and 7 (share obtained on partition and property held by sole surviving coparcener). The expression 'separate property' may be the antithesis of three other expressions, viz., 'ancestral property', 'coparcenary property' and 'joint family property'. It is necessary to determine, in the light of the scheme of the Act, the particular sense in which the expression has been used there."
Further at p. 33, the learned Judge proceeded to state:
"The difference between the position of a person owning self-acquired property and that of a person who happens to be the holder of property as a sole surviving coparcener for the time being is shown by the fact that in the latter case his right as full owner will be reduced to that of a coparcener, the moment an adoption is made by a predeceased coparcener's widow. In the words of the Judicial Committee in 70 Ind App 232 = (AIR 1943 PC 196), Anant Bhikappa v. Shankar Ramachandra this possibility challenges the character of the surviving coparcener's right as an absolute right and creates qualifications which impair its completeness. It is an interest liable to fluctuate, both during his lifetime and even after his death. According to the observations of the Nagpur High Court, quoted with approval by their Lordships, the property held by a person, who is a sole surviving coparcener, has the potentiality of becoming joint family property at any moment so long as there is a widow entitled to add a male member to the family by adoption."
It is on such reasonings that it was held in that case that the coparcenery property in the hands of the last male-holder was not separate property, as contemplated by Section 3(1) of the Hindu Women's Rights to Property Act 1937. Though this decision which I shall have to refer to again, throws some light, still this cannot be said to be a direct authority on the question that is involved in the present case. The Supreme Court had to deal with the Act, though not directly the questions arising for decision in the present second appeals. That was the case of Annagouda Nathgouda v. Court of Wards, Satara, . That case dealt with the succession to stridhana
property of a female. Having regard to the specific language contained in Section 1(2) of the Act, certainly the provisions of the Act can have no application to the succession to the stridhana property of a female. It is in this context, after extracting the language of Section 1(2) of the Act, the Supreme Court observed--
"Thus the scope of the Act is limited, it governs succession only to the separate property of a Hindu male who dies intestate. 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 regulate 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. 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 considerations is at all relevant."
This observation of the Supreme Court is relevant for the purpose of the point in controversy, as I shall show a little later in the course of this judgment. One thing which I want to mention immediately is that the expression 'separate property' has been used twice in the extract given above and in other portions of the judgment also. The Supreme Court has pointed out that the Act applies only to the separate property of a male dying intestate.
10. Two other decisions of the Supreme Court on which reliance was placed by the learned counsel for the respondents are (1) Narendranath v. Commr. of Wealth tax, Andhra Pradesh, and (2) Smt. Sitabai v. Ramachandra, . In the former case, the
question as to the status in which a divided coparcener in the possession of the property allotted at a partition has to be assessed to wealth tax came up for consideration, namely, whether he should be assessed in the status of Hindu undivided family or as an individual. Dealing with this question, the Supreme Court pointed out:
"In the present case the property which is sought to be taxed in the hands of the appellant originally belonged to the Hindu undivided family belonging to the appellant, his father and his brothers. There were joint family properties of that Hindu undivided family when the partition took place between the appellant, his father and his brothers and these properties came to the share of the appellant and the question presented for determination is whether they ceased to bear the character of joint family properties and became the absolute properties of the appellant. As pointed out by the Judicial Committee in Arunachalam's case, 1957 AC 540 (Attorney General of Ceylon v. A. R. Arunachalam Chettiar), it is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property of the undivided family'. Applying this test, it is clear that, though in the absence of male issue the dividing coparcener may be properly described in a sense as the owner of the properties, upon the adoption of a son or birth of a son to him, it would assume a different quality. It continued to be ancestral property in his hands as regards his male issues for their rights had already attached upon it and the partition only cuts off the claims of the dividing coparceners. The father and his male issue still remain joint. The same rule would apply even when a partition had been made before the birth of the male issue or before a son is adopted, for the share which is taken at a partition by one of the coparceners is taken by him as representing his branch. Again the ownership of the dividing coparcener is such 'that female members of the family may have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. (See Arunachalam's case, 1957 AC 540). It is evident that these are the incidents which arise because the properties have been and have not been ceased to be joint family properties. It is no doubt true that there was a partition between the assessee, his wife and minor daughters on the one hand and his father and brothers on the other hand. But the effect of partition did not affect the character of these properties which did not cease to be joint family properties in the hands of the appellant. Our conclusions is that when a coparcener having a wife and two minor daughters and no son receives his share of the joint family properties on partition, such property in the hands of the coparcener belongs to the Hindu undivided family of himself, his wife and minor daughters and cannot be assessed as his individual property."
The decision can be distinguished on three grounds. In the first place, it dealt with the property obtained by divided coparcener at the partition. Secondly, it dealt with the character of the property even when the divided coparcener was alive and did not deal with the succession to that property under the Hindu Law. Thirdly, it dealt with the property belonging to a joint family consisting of a male, his wife and unmarried daughters and not to a coparcenery. There is a basic difference between the concept of Hindu joint family and a Hindu coparcenary. As pointed out by the Supreme Court itself in that judgment:
"A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the Hindu joint family, it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons and great grandsons of the holder of the joint property for the time being."
Therefore, this decision is not directly in point and is not of any assistance to the respondents herein.
11. In the second case, viz., , there were two
brothers Dulichand and Bhagirath and the properties concerned were ancestral properties. The plaintiff in that case Sitabai was the widow of Bhagirath, who predeceased Dulichand, his elder brother some time in 1930. After the death of Bhagirath, his widow Sitabai was living with Dulichand, as a result of which connections an illegitimate child, defendant in that case Ramachandra, was born in 1935. Dulichand died in March, 1958. Sometime before his death, Sitabai adopted the second plaintiff Sureschandra and an adoption deed was executed on 4-3-1958. After the death of Dulichand, Ramachandra took possession of the joint family properties. The plaintiff Sitabai therefore brought the present suit for ejectment of the defendant Ramachandra, the illegitimate son of Dulichand from the disputed properties. When the matter came up to the High Court, the High Court had held that the second plaintiff became the son of the first plaintiff in 1958, namely, from the date of adoption and did not obtain any coparcenary interest in the joint family properties and on the date of adoption Dulichand was the sole coparcener and there was nobody else to take a share of his property and the second plaintiff had no concern with the coparcenary property in the hands of Dulichand. It is the correctness of this conclusion the Supreme Court had to consider and it pointed out that the first question to be considered in that appeal was whether the High Court was right in holding that the second plaintiff at the time of adoption by the first plaintiff did not become a coparcener of Dulichand in the joint family properties. It is in this context, the Supreme Court held, after referring to certain earlier decisions, that--
"Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and the property of a joint family does not cease to belong to a joint family merely because the family is represented by a single coparcener who possess rights which an absolute owner of property may possess; the property which was the joint family property of the Hindu undivided family does not cease to be so because of the 'temporary reduction of the coparcenary unit to a single individual; the character of the property, viz., that it was the joint property of a Hindu undivided family remains the same; it is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can property be described as 'joint property' of the undivided family.
Where a Hindu undivided family consisted of two brothers, on death of one of them, the joint family property continues to retain its character as joint family property in the hands of the surviving brother, when the widow of the deceased brother continues to enjoy the right of maintenance out of the joint family properties."
12. The decision also does not directly cover the present case. As a matter of fact this decision directly flows from the decision of the Privy Council in 70 Ind App 232 = (AIR 1943 PC 196).
13. Yet another decision relied on is that of this court in A. N. Subramanian v. A. S. Kalyanarama Iyer, . That case
concerns with the character of the property obtained by a divided coparcener at a partition, namely, whether it can be said to be separate property of the divided coparcener so as to attract S. 3(1) of the Hindu Women's Rights to Property Act, 1937. A Bench of this court on the reasoning adopted by the Federal Court in AIR 1945 FC 25, already referred to, held that the property obtained by a divided coparcener as his share at a partition of the family property cannot be said to be his separate property.
14. The only other decision which may be of any assistance is that of the High Court of Andhra Pradesh in Devaluri Ramiah v. Bodepudi Venkatasubbiah, . That case directly concerned with the question whether the property allotted to the last male owner for his share at the partition with his coparceners falls within the ambit of the Act. A Bench of the Andhra Pradesh High Court referred to certain authorities and came to the conclusion that the Act applied to the property obtained by a divided coparcener at a partition of the properties.
15. As I have said already, the question has to be considered with reference to the language of the statute as well as the scheme of the Act. Neither the expression 'separate property' nor the expression 'joint family property' has been used in the Act. The expression that is used in the Act is, 'property of males not held in coparcenary'. The question for consideration is, whether the coparcenary property in the hands of the last male-holder can be said to be 'property not held in coparcenary'. In my opinion, this question has to be considered not in isolation, but with reference to the scheme of the Act as adumbrated in Section 2 of the Act. Section 2 introduces four heirs, who can be said to be binna gothra sapindas or bandhus under the Mitakshara law in between father's father and father's brother of the propositus. If they are introduced as statutory heirs independent of the prevailing Hindu law to succeed to the estate of a male dying intestate, the question may be different. For the purpose of applying Section 2, we have to understand and find out, what exactly the pre-existing Hindu law was and what exactly the change that was sought to be introduced by the Act in question. The pre-existing Hindu law had postponed the son's daughter, daughter's daughter, sister and sister's son, three of them being females and one of them being a male, to a very late stage and gave preference to far remoter agnatic males on the ground that they are gotraja sapindas and samanodakas. Taking into account, the propinquity or the nearness of relationship, the statute wanted to amend the existing Mitakshara Scheme of law of inheritance by introducing these four heirs after father's father and before father's brother. Therefore, Section 2 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. If the property is such, not capable or being inherited by father's father and father's brother, Section 2 will become meaningless. Therefore, what exactly was the nature of the property contemplated by Section 1(2) of the Act has to be found out with reference to this feature of Section 2.
It is in this context a reference may be made to the enumeration of 'separate property' as given by Sir Dinsha Mullah's Hindu Law and in Mayne's Hindu Law, though that enumeration has been given for different purposes. Paragraph 230 of Sir Dinshaw Mullah's Hindu Law, 13th Edn. enumerates the following as separate property:--
"Property acquired in any of the following ways is the separate property of the acquirer; it is called 'self-acquired' property, and is subject to the incidents mentioned in paragraph 222--
(1) Obstructed heritage--Property inherited as obstructed heritage (sapratibandha daya), that is, property inherited by a Hindu from a person other than his father, father's father, or father's father's father.
(2) Gift--A gift of small portion of ancestral moveable made through affection by a father to his male issue is his separate property.
(3) Government grant--Property granted by Government to a member of a joint family is the separate property of the donee, unless it appears from the grant that it was intended for the benefit of the family.
(4) Property lost to family--Ancestral property lost to the family, and recovered by a member without the assistance of joint family property.
(5) Income of separate property--The income of separate property, and purchases made with such income.
(6) Share on partition--Property obtained as his share on partition by a coparcener who has no male issue.
(7) Property held by sole surviving coparceners--Property held by a sole surviving coparcener, when there is no widow in existence who has power to adopt.
(8) Separate earnings--Separate earnings of a member of the joint family.
(9) Gains of learning--All acquisitions made by means of learning are now declared by the Hindu Gains of Learning Act, 1930, to be the separate property of the acquirer."
Though this enumeration was for a different purpose, nonetheless it throw light on the question now under consideration. There can be no difficulty in understanding items 1 to 5, 8 and 9. Clearly by no stretch of imagination can they be called coparcenary property or joint family property which will go by survivorship on the death of the holder of the property. What is important is item 6 which deals with the property obtained by a divided coparcener on partition. If that divided coparcener has a male issue, the property will become ancestral property with reference to such male issue. On the other hand, if he has no male issue, against all the other divided coparceners the property will continue to be only separate property to which the principle of inheritance alone will apply and not survivorship. In view of this alone, the rule has been enunciated in the following terms in sub-paragraph 4 of paragraph 223 of Mullah's Hindu Law of the same edition--
"The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession."
The correctness of this statement of law is borne out by the decisions of the Supreme Court referred to already. The significant thing that has to be noticed, as far as the present point for decision before me is concerned is, with regard to the property obtained as a share at a partition, a divided coparcener will be the absolute owner of the property, and in the event of there being no male issue, it will go by inheritance and the father's father will be an heir to the propositus. Therefore, after the father's father the four statutory heirs enumerated already, will come into the picture, to succeed in the order referred to therein, before the paternal uncle.
Having regard to the language contained in Section 1(2) and Section 2 of the Act, the property obtained by a Hindu male at a partition among the coparceners and dying leaving no male issue can be said to be a property to which the Act applies. On this basis, the decision of the Andhra Pradesh High Court referred to already can be justified. 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 has to apply, the property must be such as the father's father and paternal uncle are capable of inheriting 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. In regard to the coparcenary property in the hands of the sole surviving coparcener, the question of father's father and paternal uncle inheriting the same cannot possibly arise and therefore the Act itself can have no application to such a property. This reasoning of mine derives support from the observation of Varadachariar J., already extracted, in AIR 1945 FC 25, and in particular the statement,
"It would not therefore be right to place these three kinds of property on the same footing merely on the ground that at a particular point of time, the owner may enjoy unrestricted power of disposition over them"
and the decision of the Supreme Court in , where the Supreme Court has pointed out that the Act was intended to have a limited operation and it applied only to the separate property of a male dying without male issue and intestate and the Act does not make the four relations statutory heirs under Mitakshara Law in all circumstances and for all purposes. When the Supreme Court used the expression 'separate property' in that case, it meant the property to which the 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 coparcenary 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.
16. Mr. V. C. Veeraraghavan, learned counsel for the appellant, relied on the following statement of law contained in Mayne's Hindu Law, 11th Edn. at pages 584-585--
"Accordingly the test of Yajnavalkya confines inheritance to the estate of one who leaves no male issue. The Mitakshara Law of inheritance therefore applies severally exclusively to property which was held in absolute by its last owner.
Such property will include (1) self-acquisitions of the last male owner; (2) property inherited by him from his collaterals, mother or maternal grandfather; (3) property which was allotted to him for his share at a partition, with his coparceners and (4) property which vested in him exclusively as the last surviving coparcener". I have already given my reasons why the third kind of property can fall within the scope of the Act and the fourth kind of property cannot fall within the scope of the Act. The statement of law as contained in Mayne's Hindu Law has reference to the distinction between coparcenary property and separate property having regard to the legal incidents appertaining to those two categories of properties. Here we are concerned with the applicability of the Act and that applicability has to be determined, having regard to the language used in the Act as well as the scheme of the Act. Taking into account the language as well as the scheme of the Act, I do not have any hesitation in coming to the conclusion that the Act has no application to the coparcenary property in the hands of the sole surviving coparcener, the succession to which has to be traced only according to the principles of Hindu Law without any reference to the amendment introduced thereto by the Act. As far as the principles of Hindu Law, without reference to the amendment introduced by the Act, are concerned, there is no controversy before me that sister's son is a preferential heir to the sister herself, as has been held in Lakshmanammal v. Thiruvengada Mudali, (1882) ILR 5 Mad 241.
17. Under these circumstances, the second appeals fail and are dismissed. The parties will bear their respective costs throughout. Leave granted.
18. Appeals dismissed.