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Kuppu Alias Kuppammal Vs. Kuppuswami Mandiri and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Reported in(1984)2MLJ224
AppellantKuppu Alias Kuppammal
RespondentKuppuswami Mandiri and ors.
Cases ReferredRamayya v. Mottayya
Excerpt:
- s. swamikkannu, j.1. the plaintiff kuppu alias kuppammal is the appellant in this second appeal. the plaintiff filed the suit informa pauperis for partition.2. the case of the plaintiff as stated in the plaint is as follows: the plaintiff is the daughter-in-law of one ramasami mandiri. the plaintiff's husband rajagopal mandiri was the son of ramasami mandiri by his first wife. the 1st defendant is his son by his second wife. ramasami mandiri had an eider brother by name beeki mandiri defendants 2 and 3 are the sons of beeki mandiri. beeki mandiri and ramasami mandiri were members of a joint family. beeki mandiri was the family manager. the b, c and d schedule properties were all joint family properties acquired with the income from ancestral nucleus and joint labour and joint earnings of.....
Judgment:

S. Swamikkannu, J.

1. The plaintiff Kuppu alias Kuppammal is the appellant in this second appeal. The plaintiff filed the suit informa pauperis for partition.

2. The case of the plaintiff as stated in the plaint is as follows: The plaintiff is the daughter-in-law of one Ramasami Mandiri. The plaintiff's husband Rajagopal Mandiri was the son of Ramasami Mandiri by his first wife. The 1st defendant is his son by his second wife. Ramasami Mandiri had an eider brother by name Beeki Mandiri Defendants 2 and 3 are the sons of Beeki Mandiri. Beeki Mandiri and Ramasami Mandiri were members of a joint family. Beeki Mandiri was the family manager. The B, C and D schedule properties were all joint family properties acquired with the income from ancestral nucleus and joint labour and joint earnings of the two brothers and were treated and dealt with as joint family properties. The plaintiff was married to Rajagopal about 20 years ago. Ramasami Mandiri died in or about 1945 as an undivided member. On his death, the plaintiff's husband and the first defendant became entitled to undivided one half share each in the share of Ramasami Mandiri. The family continued to be joint. The plaintiff's husband died undivided in 1950. The plaintiff continued to remain in the joint family and she was in joint possession of her husband's share of the family properties along with the other members of the family. She was residing with Beeki Mandiri who was paying her a portion of the income from the family properties. Beeki Mandiri died in May 1960. After his death, the second defendant is the manager of the family. He, acting in collusion with the first defendant, did not give portion of the income from the family properties to the plaintiff. The plaintiff demanded partition. But the defendants refused to effect a partition. The plaintiff is residing with her parents after the death of Beeki Mandiri and the defendants 1 to 3 are in exclusive possession of the properties. The plaintiff is entitled to 1/4 share in the family properties. She is entitled to absolute right over the l/4th share by virtue of the Hindu Succession Act 30 of 1956. The 1st defendant filed a suit O.S. No. 59 of 1963 on the file of the trial court for partition claiming half share in the family properties without referring to the rights of the plaintiff. A final decree has been passed in that suit on 5-3-1975 under which the first defendant has been allotted the F schedule properties and he has taken possession of the same. The fourth defendant is impleaded on the contention of the 1st defendant though she has no right in the F schedule properties. Since the 1st defendant has been allotted half share in all the family properties as per decree in O.S. 59 of 1963, the plaintiff is entitled to claim a half share in the F schedule properties so allotted as an alternate remedy.

3. On the other hand the case of the 1st defendant as contended in his written statement is as follows: The plaintiff is not the widow of Rajagopal and she is not entitled to any interest in the suit properties. Even before Ramasami's death in 1945, she abandoned her husband and ran away to Vellore for improper purposes. The family repudiated her and out of shame and disgust over her unbecoming conduct, her husband Rajagopal went and joined the military. He returned from military, shattered and ruined in health and died thereafter. The plaintiff never came to Mudinampet during his sickness or for his death or other ceremonies. She was not his widow at his death. Rajagopal died in 1946 and not in 1950. It is absolutely false to state that the plaintiff was in the joint family and in joint possession of Rajagopal's interest in the family properties. She did not remain with Beeki Mandiri. Since 1945, the defendants have been in exclusive possession of the suit properties along with Beeki Mandiri and after 1960, the defendants alone are in exclusive possession. The plaintiff is not entitled to any share. The claim made under Act 30 of 1956 is unsustainable. The plaintiff had pursued a life of profligate prostitution even during her husband's lifetime whom she had abandoned and she is even now living with one Kannappa Mudali. Even if the plaintiff was the widow of Rajagopal, her rights, if any, have been extinguished and lost under sec. 28 of the Indian Limitation Act. The plaintiff had never been in possession of the suit properties at any time for the past 19 years prior to the institution of the suit. The suit is misconceived and has to be dismissed.

4. The first defendant filed an additional written statement contending that Lakshmi Ammal is a necessary party to the suit since the award in O.S. 59 of 1963 has been made in her favour also and that the suit without impleading her is bad for non-joinder of parties.

5. The second defendant has filed a written statement which is adopted by the third defendant contending as follows: Beeki Mandiri and Ramasami Mandiri became divided as early as 1943 both in status and estate by means of a koorchit dt. 7-10-1943. About two years after the partition, Ramasami died. Thereafter, the plaintiff's husband and the 1st defendant were enjoying the properties that fell to the share of their father. The plaintiff's husband Rajagopal died some time after and the first defendant has been in sole and exclusive possession of the properties belonging to him and his brother. Items 14 and 15 of B schedule and items 1 and 2 of C schedule are the exclusive properties of Beeki Mandiri. The plaintiff or-the 1st defendant cannot claim any right over the same. All the movables mentioned in the plaint do not exist. The movables that exist belong to defendants 2 and 3 absolutely. Defendant's 1 to 3 are not members of a joint family. The plaintiff's remedy, if any, is only against the 1st defendant. The plaintiff was not given any share of income by defendants 2 and 3 or their father from their Properties. It is false to state that the plaintiff lived with Beeki Mandiri after 1943 or with defendants 2 and 3. The plaintiff's suit is barred by limitation and it has to be dismissed.

Lakshmi Ammal has been subsequently impleaded as the fourth defendant and she has filed a written statement contending that she has a share in the suit properties and she has been allotted her share in the decree in O.S. 59/63, that unless that decree is set aside, the plaintiff cannot claim any share and that the plaintiff having left her husband and married another even during the life time of her husband, is not entitled to any relief.

6. On the above pleadings, the following issues were framed by the trial court for trial :

1. Whether the plaintiff is the heir of Rajagopal Mandiri entitled to claim an one fourth share in the suit properties?

2. Whether the plaintiff was in joint possession of the suit properties at the time of the death of Beeki Mandiri?

3. Whether the plaintiff abandoned her husband and lived a life of prostitution during her husband's life time?

4. Whether the plaintiff is not the widow of Rajagopal entitled to claim a share in that suit properties?

5. Whether the division between Ramasami Mandiri and Beeki Mandiri pleaded by defendants 2 and 3 is true?

6. Whether items 14 and 15 of the 'B' schedule of plaint are the separate properties of Beeki Mandiri?

7. Whether the sugarcane crusher and accessories belong to defendants 2 and 3 exclusively?

8. Whether the pumpsets in items 3, 4 and 15 are the properties of defendants 2 and 3?

9. Whether there are debts to the extent of over Rs. 7,000/-?

10. What are the properties available for division?

11. Is the suit barred by time?

12. To what reliefs are the parties entitled?

Additional issues framed on 24-11-1975-

13. To what share the plaintiff is entitled?

14. Whether the suit is bad for non-joinder of necessary party, viz., Lakshmi Ammal?

Additional issue framed on 15-7-1976-

15. Whether the fourth defendant is entitled to any share in the F Schedule property?

xxxxx

7. Relying on the provisions of Section 3 of the Hindu Women's Rights to Property Act, 1937, and the decision in Ramaiya Konar v. Mottayya Mudaliar : AIR1951Mad954 , the trial court held that in the instant case, it is proved that the plaintiff was living a life of adultery even during the lifetime of her husband Rajagopal and hence she is not entitled to claim any share in her husband's property. In other words, the trial court held that the plaintiff is not the heir of Rajagopal Mandiri, that she was not in joint possession of the suit properties at the time of the death of Beeki Mandiri, that the plaintiff abandoned her husband and lived a life of prostitution even during his lifetime and that the plaintiff is not entitled to claim a share in the suit properties.

xxxxx

8. On the point whether the plaintiff was unchaste at the time of her husband's death, the lower appellate court held that the plaintiff was unchaste even at the death of her husband. That being the case, the lower appellate court held that the plaintiff-appellant is disqualified from succeeding to the interest of her husband. In the result, the appeal was dismissed with costs of the contesting defendants 1 and 4. The judgment and decree of the trial court were confirmed by the lower appellate court. The lower appellate court also directed that the court fee due to the government shall be paid by the plaintiff-appellant.

9. Aggrieved by the decision of the lower appellate court, the plaintiff has come forward with this second appeal before this court.

10. At the time of the admission of this second appeal, the following substantial question of law was framed:

Whether the courts below are right in holding that on account of her unchastity, the plaintiff is not entitled to succeed to the interest of her deceased husband, when Section 28 of the Hindu Succession Act, does not prescribe unchastity as a ground of disqualification for inheritance?

11. Section 28 of the Hindu Succession Act, 1956(Act XXX of 1956), reads as follows:

No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever.

Under the texts of the Dharmshastras as interpreted by the courts, certain defects, deformities and diseases excluded an heir from inheritance. This was substantially remedied by the Hindu Inheritance (Removal of Disabilities Act)1928, which ruled that 'no person, other than a person who is and has been from birth a lunatic or idiot, shall be excluded from inheritance or from any right or share in joint family property by reason only of any disease, deformity or physical or mental defect'. The present section discards almost all the grounds which imposed exclusion from inheritance. It rules out disqualification on any ground whatsoever excepting those expressly recognized by any provisions of the Act. Unchastity of a widow is not a disqualification under the Act.

12. Sections 24 to 28 of the Hindu Succession Act, 1956 deal with the question of disqualification of heirs. Section 28 lays down that no person shall be disqualified from succeeding to any property on any ground whatsoever except on those expressly mentioned in the Act, viz., remarriage in cases falling under Section 24; murder in cases falling under Section 25; and conversion in cases falling under Section 26. Section 27 lays down a general rule. Succession in any case where there is a disqualified heir takes place as if such person had died before the intestate.

(Discussion of facts and evidence omitted-Ed.)

13. Therefore, this court in this second appeal cannot take a different view as contended by Mr. R.S. Venkatachari, that both the courts below have not properly appreciated the evidence on record and came to an erroneous conclusion that the plaintiff-appellant was unchaste even on the date of death of her husband. This court upholds the finding of both the trial court and the lower appellate court that the plaintiff-appellant herein was unchaste even on the date of death of her husband.

14. The point of law that is strenuously argued on behalf of the plaintiff-appellant herein by Mr. R.S. Venkatachari is that the trial court and the lower appellate court had overlooked the fact that O.S. No. 2 of 1964 viz., the present suit had been instituted by the plaintiff subsequent to the coming into existence of the Hindu Succession Act, 1956, and as such it is the provisions of this enactment that are applicable and the provisions of the Hindu Women's Rights to Property Act, 1937, are not applicable to the instant case. In this regard, it is also pointed out by Mr. R.S. Venkatachari, the learned Counsel for the appellant that in paragraph 6 of the plaint, the Plaintiff had claimed l/4th share by virtue of the provisions of the Hindu Succession Act 30 of 1956.

15. On the other hand, Mr. M.N. Padmanabhan, the learned Counsel for the defendants-respondents herein contends that in the instant case, it is common ground that Rajagopal, husband of the plaintiff died on 21-2-47 and as such the succession opened on that date itself because the right to succeed can never remain in abeyance. He further submitted that on the death of a Hindu, the (person who is then his nearest heir becomes entitled at once to the property left by him. The right of succession vests in him immediately on the death of the owner of the property. It is contended on behalf of the defendants-respondents by Mr. M.N. Padmanabhan, that since the plaintiff-appellant herein was proved to be unchaste on the date of death of her husband, she is not entitled to inherit the property of her husband as she is disqualified as per the provisions of Section 3 of the Hindu Women's Rights to Property Act, 1937 and as laid down by the decision in Ramaiya Konar v. Mottayya Mudaliar : AIR1951Mad954 . Mr. M.N. Padmanabhan, learned Counsel for the respondents herein further points out that by merely instituting the suit O.S. 2/64, the plaintiff-appellant herein is not entitled to claim any right of inheritance when she was found to be disqualified even on the date of death of her husband Rajagopal. She was living in adultery with another person and as such disqualified under the provisions of Section 3 of the Hindu Women's Rights to Property Act. It is also submitted on behalf of the defendants-respondents herein that the plaintiff-appellant herein cannot also invoke the provisions under Section 14 of the Hindu Succession Act, 1956, because there was no interest or estate limited in nature available with the plaintiff on the date of death of her husband so as to become absolute under the provisions of Section 14 of the Hindu Succession Act, 1956.

16. In this regard, it is relevant to refer to the following passage in page 586 of Mayne's Treatise on Hindu Law and Usage, 11th edition by N. Chandrasekara Iyer, 1950, which runs as follows:

The right of succession under Hindu Law is a right which vests immediately on the death of the owner of the property. It cannot in any circumstances remain in abeyance in expectation of the birth of a preferable heir, not conceived' at the time of the owner's death. A son or daughter who is in the mother's womb at the time of the death is, in contemplation of law, actually existing, and will, on his or her death, divest the estate of any person with a title inferior to his or her own, who has taken in the mean time. So, in certain circumstances, will a son who is adopted after the death. But in no other case will an estate be divested by the subsequent birth of a person who would have been preferable heir if he had been alive at the time of death. In Gada Dhur Mulik v. Official Trustee of Bengal, I.L.R.(1940) Cal. 415 the Judicial Committee observed: 'The rule is that the right of succession vests immediately on the death of the owner. Apart from the case of a child on ventre sa mere or of an adopted child, the estate once vested in an heirwill not be divested by the subsequent birth of a person who would have been a preferable heir had he been alive at the time of the death of the last owner'. And the rightful heir is the person who is himself the next-of-kin at that time. No one can claim through or under any other person who has not himself taken. Nor is he disentitled because his ancestor could not have claimed. For instance, in certain circumstances, a daughter's son would be heir, and would transmit the whole estate to his issue. But if he died before his grand-father, his son would never take. And the son of a cogenital lunatic or idiot will inherit, though his father could not.

17. Mr. M.N. Padmanabhan, the learned Counsel for the respondents herein also refers to the provisions of Section 6 of the General Clauses Act, 1897 dealing with the effect of repeal of an enactment.

18. The provisions of the Hindu Women's Rights to Property Act, 1937, were repealed by Section 31 of the Hindu Succession Act, 1956.

19. Section 6 of the General Clauses Act, 1897(Act 10 of 1897) reads as follows:

Effect of repeal-Where this Act, or any other Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered there-under; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

20. It was held in Kuppathammal v. Sakthi, : AIR1957Mad695 , that the repeal of the Hindu Women's Rights to Property Act, 1937, effected by Section 31 of Act 30/56 does not in any way impair the rights conferred on the widows by the Act of 1937 even though the widows had not asserted their rights by claiming a share.

21. In Govindammal v. Ramasami, 81 L.W. 655 : I.L.R. (1969) Mad. 684, it was held that the interest of a widow under Section 3(2) of the Hindu Women's Rights to Property Act, 1937, is property and the act of her becoming entitled to that interest by operation of that statutory provision is in effect acquisition by, or accrual to her of right within the meaning of Section 6 of the General Clauses Act. On that view the rights acquired by the widow stand entirely unaffected by and survive the repeal of the Act.

22. Mr. R.S. Venkatachari, learned Counsel for the plaintiff-appellant herein refers to the decision in Jayalakshmi Ammal v. Ganesa Iyer : AIR1972Mad357 , for the following proposition-

Section 8 of the Hindu Succession Act gives the provisions of the Act an effect of overriding the Hindu Law except to the extent save as otherwise expressly provided for in the Act itself. The effect of Section 8 is to limit succession to the cases of persons in the order of priority specified. Unless therefore, any rule of Hindu Law with reference to the disqualification of any of the heirs mentioned in any of the classes is covered by Section 8 each one of them will be, as a matter of right, entitled to succeed in accordance with the provisions of that section. The Act has made its intention specific that unchastity of a widow will, after the Act came into force, no longer be a disqualification for her to succeed as the father's widow.

In the decision Jayalakshmi Ammal v. Ganesa Iyer : AIR1972Mad357 , the defendants were the appellants in the second appeal before the High Court. The respondent brought the suit for recovery of possession of the plaint schedule properties and for mesne profits. He purchased the properties from Rajamani, the widow of one Narayanaswami, who died in 1948 leaving his sons Prasanna and Vengopal by his first wife Chinnammal That lady had predeceased her husband. Narayanaswami also left behind him his brother Krishnaswami. The sale deed executed by Rajamani directed the respondent to pay out of the purchase price certain debts of Venugopal which, however, have not upto date been paid. Prasanna and Venugopal died in 1953 and 1957. Even during their life-time Rajamani instituted OS 34/53 on the file of the court of the Subordinate judge, Tiruchirapalli, for partition of the properties described in the plaint schedules A to C and for delivery to her of a l/6th share on the ground that those properties belonged to the joint family consisting of Narayanaswami and his brother Krishnaswami. That suit ended in a compromise in terms of which a decree followed. The stipulation there was that Rajamani should be paid a sum of Rs. 16,000/- in consideration of her giving up her rights as mentioned in paragraph 5 of the compromise. After the death of Prasanna and Venugopal, Rajamani claimed to have succeeded to the estate of Venugopal as the widow of his father under the provisions of the Hindu Succession Act, 1956.

23. In the instant case before us, it is relevant to note that the plaintiff-appellant claims (herein) the property as the widow of her husband, who died on 21-2-1947. In the decision viz., Jayalakshmi Ammal v. Ganesa Iyer : AIR1972Mad357 , the widow Rajammal claimed to the estate of Venugopal as class II heir and instituted the suit O.S. 1030/62 before the court of the learned Principal District Munsif of Tiruchirapalli. This claim as the class II heir has been made under the provisions of Act 30/56. Venugopal who died in the year 1957 is the son of Chinnammal, the 1st wife of Narayanaswami, who predeceased Narayanaswami. It is only under the above circumstances, it was observed in the decision Jayalakshmi Ammal v. Ganesa Iyer : AIR1972Mad357 , as follows:

The second question is this. The courts below have concurrently found that, even during the lifetime of her husband, Rajamani left him and lived in open and notorious unchastity. The appellants contend that this disqualified Rajamani from inheriting the properties of Venugopal. We are unable to accede to this contention. Unchastity of a widow, is, under the Hindu Law, undoubtedly a disqualification. But the point is whether that disqualification would any longer apply after the Hindu Succession Act 1956 came into force. Rajamani succeeded to Venugopal's properties as his father's widow. Section 4 of the Act gives to its provision an overriding effect. It says that save as otherwise expressly provided in the Act 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 the Act shall cease to have effect with respect to any matter for which provision is made in the Act. It also provides that any other law in force immediately before the commencement of the Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. In accordance with the provisions of Section 8, the property of a male Hindu dying intestate shall devolve, according to the provisions in Chapter II of the Act, firstly upon the heirs specified in class I of the schedule and secondly, if there is no heir of class I, then upon the heirs specified in Class II of that schedule. Section 8 is in substitution of the Hindu Law of Succession relating to the property of a male Hindu dying intestate. Once the Act has provided for that, as enacted by Section 4(l), the rule of Hindu Law relating to that matter ceases to have operation. But the appellants rely on Ramaiya v. Mottayya : AIR1951Mad954 , (F.B.), and contend that in so far as the Hindu Succession Act has not abrogated the rule of Hindu Law as to the disqualification of a Hindu widow to succeed on the ground of unchastity, the personal law should govern with the result that Rajamani would be disentitled to succeed to the properties of Venugopal. That decision was rendered under the Hindu Women's Rights to Property Act. It was held in that case that a Hindu married woman living in adultery at the time of her husband's death was disqualified, by reason of her unchastity, from acquiring any interest under the Hindu Women's Rights to Property Act. This was upon the view that the Act conferred only a benefit upon a widow. But that did not mean that suo motu the Act meant to abrogate the rule of Hindu Law relating to the disqualification of a widow to succeed on the ground of unchastity. The court pointed out as we find from the judgment of the learned Chief Justice:

Much reliance was placed on Section 2 which declares that the provisons of Section 3 shall apply notwithstanding any rule of Hindu Law or custom to the contrary. It is important to note that the language is not 'notwithstanding any rule of Hindu Law or custom' but notwithstanding any rule of Hindu Law or custom to the contrary'. If there is any rule of Hindu law or custom which is contrary to the provisions of Section 3, then it is such a rule that is abrogated and not every rule of Hindu Law which is not directly contradicted by the provisions of Section 3.

It seems to us that the position under the Hindu Succession Act is entirely different. The Hindu Succession Act, in so far as it covers the matters therein, is meant to be a complete Code relating to Hindu Succession and to that extent the Act prevails and the Hindu Law in respect of it will cease to operate. That is the effect of Section 4 which, as we said gives the provisions of the Act an effect of overriding the Hindu Law except to the extent save as otherwise, expressly provided for in the Act itself. The effect of Section 8 is to limit succession to the class of persons in the order of priority specified. Unless, therefore, any rule of Hindu Law with reference to the disqualification of any of the heirs mentioned in any of the classes is covered by Section 8, each one of them will be, as a matter of right, entitled to succeed in accordance with the provisions of that section. As a matter of fact the Act has, by Sections 24 to 26 provided otherwise which relates to the disqualifications enjoined by Hindu Law in respect of remarriage, murder and conversion Where a widow has remarried, she will not be entitled to inherit as the widow. So too murder will be a disqualification- as enjoined by Section 25 and conversion under Section 26. Section 28 makes it manifest that no person shall be disqualified from succeeding to any property on the grounds of any disease, defect or deformity, or save as provided in the Act, on any other grounds whatsoever. That means, in our opinion, the Act has made its intention specific that unchastity of a widow will, after the Act came into force, no longer be a disqualification for her to succeed as the father's widow. The second point of the appellants also fails.

24. In the instant case before us, both the courts below have found concurrently that the plaintiff appellant herein was unchaste on the date of her husband's death when succession opened. It cannot be contended on behalf of the plaintiff-appellant herein that the succession was not opened on the death of her husband on 21-2-1947 and that the date of the institution of the suit O.S. No. 2/64 by the plaintiff is the date that has to be taken into consideration regarding succession. It is a well established principle of law that inheritance or succession under Hindu Law vests immediately on the death of the owner of the property. The succession never remains in abeyance. As already seen in the decision in Jayalakshmi v. Ganesa Iyer : AIR1972Mad357 , the widow had claimed the estate of the son through the first wife of her husband as a class II heir viz., father's widow and as such it was held in the said decision that her unchastity does not stand in the way of her succeeding to the estate of her son through the first wife of her husband as the class II heir under the provisions of the Hindu Succession Act, 1956. The unchastity of Rajamani even during the life time of her husband is not a disqualification when she claims the estate of Venugopal, who died in the year 1957, by instituting the suit O.S. 1030/62 as a class II heir under the provisions of the Act 30/56. The disqualification on the basis of unchastity to succeed to the estate of her husband during the time before the commencement of the Act viz., on the death of her husband Narayanaswami in the year 1948 never remained as a disqualification at the time when she claimed the estate of Venugopal who died in the year 1957, by instituting the suit O.S. 1030/62 as the living step mother of the said Venugopal. Under the circumstances, the decision in Jayalakshmi Ammal v. Ganesa Iyer : AIR1972Mad357 , is not applicable to the facts of the instant case before us.

25. Mr. R.S. Venkatachari, the learned Counsel for the plaintiff-appellant herein refers to the decision in Phulmani v. State : AIR1974Ori135 , for the following proposition:

Under the Hindu Succession Act, there is no restriction on women to inherit any property. including Brahmottar grant, while under the 'General Principle No. 4(a) woman cannot inherit or succeed to any Brahmottar grant. The provision in the Control Order debarring women to inherit Brahmottar grant is inconsistent with Section 4(l)(b) of the Hindu Succession Act and had ceased to have effect.

It is relevant to note that in the said decision, the succession opened in 1959 on the death of one Rama Chandra Pati. The Hindu Succession Act, 1956 came into force on 17-6-1956. In the instant case before us, the succession opened on 21-2-1947 viz., the date of death of Rajagopal, husband of the plaintiff-appellant herein. Therefore this decision is not applicable to the facts of the instant case before us.

26. Mr. R.S. Venkatachari, the learned Counsel for the plaintiff-appellant herein refers to the decision in Chandi Charan v. Bhagyadhari A.I.R. 1974 Cal. 356, for the following observation in paragraph 6 at page 357 which runs as follows:.In any view of the matter, the Hindu Succession Act is there which does not contain any provision which debars an unchaste widow from inheriting to her deceased husband. An attempt was made by Mr. Dutt to say that Section 28 speaks about certain disease, defect or deformity, all relating to bodily defects which have been excluded from the category of disqualifications debarring any person from inheritance. Mr. Dutt wants to say that the principles of the Hindu Law that no unchaste woman should be allowed to inherit to her husband has not been excluded by this Act. I am afraid, I cannot accept this contention. The Hindu Succession Act regulates succession without making any exception on ground of unchastity or otherwise. When there is no bar to succeeding to husband's property by unchaste widow, it cannot be presumed that the principles of the Hindu Law as were followed previous to this act have been retained. The Hindu Succession Act is clear and specific and there is no bar to any unchaste widow succeeding to her husband. Section 4 of the Act is the overriding provision. The rule of Hindu Law has ceased to operate regarding succession with the appearance of the Hindu Succession Act, 1956. In this connexion I may refer to the decision of Jayalakshmi Ammal v. T.V. Ganesa Iyer, reported in : AIR1972Mad357 , This point was considered in that case and it was held that according to the provision of the Hindu Succession Act, a widow, though unchaste, can succeed to the property of her son as his father's widow.

It is relevant to note that in this decision, the plaintiff therein was not able to prove the date of death of Sathya Charan. The suit was filed on 22-11-1956. Therefore, according to law, the presumption under Section 108 of the Evidence Act, 1872, started in that case from the date when the dispute arose, that is to say, when the suit was filed. So the succession opened on 22-11-1957, i.e., after the commencement of the Hindu Succession Act, 30 of 1956. Now in the instant case before us, the succession opened on 21-2-1947, i.e., before the commencement of the Act and on that date both the courts below found that the plaintiff-appellant herein was unchaste which was a disqualification for succession under the provisions of Section 3 of the Hindu Women's Rights to Property Act, 1937. We have already seen there is no retrospective effect given relating to the provisions of the Hindu Succession Act, 1956.

27. Section 14 of the Hindu Succession Act, 1956 reads as follows:

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation-In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

28. The provision of Section 14 of the Hindu Succession Act, 1956 contemplates that a Hindu female who is limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called 'limited estate' or widow's estate in Hindu law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder.

29. In the instant case before us, on the date of the opening of the succession, the plaintiff-appellant herein did not succeed to her husband due to her unchastity on the date of the death of her husband and thus did not have any estate to become a full owner as per the provisions of Section 14 of the Hindu Succession Act, 1956. Further, the provisions of the Act 30 of 1956 are not retrospective in their operation. In this regard, the following passage at page 920 of the Hindu Law by Mulla, 15th edition by S.T. Desai, can usefully be referred:

Act is not retrospective in its operation: It is a fundamental and firmly established rule of interpretation that a statute which deals with rules of substantive law, shall not be construed to have introspective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary implication. There is the clear indication in this section read with the other important sections of the Act that it is not intended to have retrospective effect. A contrary rule would have the very serious consequences of prejudicially affecting vested rights and of disturbing titles and legality of past transactions.

The general rule that an enactment like the present should operate only in cases and in respect of facts which come into existence after it was passed -- nova constitution futuris formam imponere debet, non praeteritis-has been accepted by the Legislature and the exceptions to its application in the Act are indeed few.

It has been held in a number of cases, such exceptions apart, that the provisions of the Act are prospective and not retrospective in their operation. Since the Act is not retrospective in its operation it follows that succession would not be governed by the Act where it opened before the commencement of the Act.

One notable exception is to be found in Section 14 of the Act. As has already been pointed out the Hindu Woman's limited estate is now abolished and any property held by a female Hindu howsoever acquired is now held by her as absolute property with full powers of disposal. The restraints and limitations on her power cease to exist even in respect of existing property, so that any property possessed by a female Hindu whether acquired by her before or after the commencement of the Act, is now held by her as full owner. This enlargement of the estate of a female Hindu is, therefore, not confined to property acquired by her after the coming into operation of the Act but embraces all property possessed by her even if it was acquired by her at any time prior to the Act if the case falls within the ambit of Section 14. Another instance where the Act operates retrospectively is to be found in Section 26 which affects the rights of the descendants of a convert from Hinduism.

30. The decision in Khagendra Nath v. Karunadhar : AIR1978Cal431 , is relied on by Mr. R.S. Venkatachari, the learned Counsel for the plaintiff-appellant for the following proposition:

Reading the different provisions of the Hindu Succession Act and specially Ss. 4 and 28 there is no doubt that except the disqualifications mentioned in Sections 24, 25 and 26 any other disqualification which existed in the Hindu Law has been removed by the Hindu Succession Act. As unchastity of a widow has not been mentioned as a disqualification in Sections 24 to 26, it must be deemed that her unchastity is no longer a disqualification for her succeeding to the property of husband.

31. Mr. M.N. Padmanabhan, learned Counsel for the defendants-respondents in this second appeal submits that the facts of this decision also disclose that Charu Chandra Ghosh died subsequent to the coming into existence of the Hindu Succession Act, 1956 and that only on his death, the suit land belonging to him devolved on his wife Mira Bala. The learned Counsel for the respondents points out that in the instant case before us, on the death of the husband of the plaintiff-appellant herein on 21-2-1947, no estate of her husband devolved on her due to unchastity as per the provision of Section 3 of the Hindu Women's Rights to Property Act which was in existence on the date of the opening of the succession. I am unable to reject the contention of Mr. M.N. Padmanabhan, the learned Counsel for the respondents as unsustainable.

32. The decision in Chockalingam Pillai v. Alamelu Ammal (1981)2 M.L.J. 23, is relied on by Mr. R.S. Venkatachari, the learned Counsel for the plaintiff-appellant herein for the following proposition-

According to Section 3(2) of the Hindu Women's Rights to Property Act, XVIII of 1937, where a Hindu died leaving at the time of his death an interest in joint family property, his widow shall, subject to the provisions of Sub-section (3) have in the property the same interest as he himself had. The interest the husband had in the property was a half share of the family properties and that half share devolved on his widow on his death. Of course, this right was subject to Sub-section (3) which stated that the widow did not become the absolute owner, but she should have only a limited interest known as a Hindu Woman's estate'. A conjoint reading of both sub-Sections (2) and (3) of the Act would clearly indicate that the widow shall have in the property of the joint family the same interest as the husband himself had. Of course the right is curtailed to the extent indicated in Sub-section (3). In this case, the plaintiff's mother had not asserted her rights or worked out her rights by filing a suit for partition during her life time. But the question is not as to what she did or did not do during her lifetime but as to what was the interest she had on the date of the commencement of the Act XXX of 1956. Admittedly, on that date, she had the same interest in the suit property as her husband had at the time of his death. It is not in dispute that the husband had a half share in the suit properties at the time of his death. The half share devolved under Section 3(a) of the 1937 Act, on the plaintiff's mother. The interest which she acquired had not been lost by her or extinguished on the date of the commencement of the Central Act XXX of 1956. The question whether she lost her right by not filing a suit for partition during her lifetime will arise only if Section 14(1) had not intervened in the meanwhile. If Section 14(1) had operated even before her death, in 1963, then, there is no question of any rule of survivorship applying. On the date when Section 14(1) came into operation, admittedly the plaintiff's mother had in the suit properties, the same interest as her husband had, that is the half share.

As on the death of her husband, in the instant case before us, the plaintiff had not acquired any estate of her husband due to the disqualification on the basis of her unchastity as contemplated under Section 3 of the Hindu Women's Rights to Property Act, XVIII of 1937, this decision referred to above by the appellant-plaintiff is not applicable to the facts of the instant case before us.

33. The decision in R . Narasimhachari v. Andal Ammal : AIR1979Mad31 , is relied on for the following propositions-

The question which arose for consideration in this case was whether a Hindu widow who secures a statutory right under the Hindu Women's Rights to Property Act, 1937 without being in corporeal possession of the property which her husband was entitled to on the date of the induction of the Hindu Succession Act, 1956, can still maintain that her legal entitlement under the quondam 1937 Act has been enlarged into an absolute estate within the meaning of Section 14(l) of the Hindu Succession Act? It was held that it is not necessary for a Hindu widow entitled to . rights under the 1937 Act to seek for partition either by demanding it or by filing a suit for that purpose. Her entitlement or right to possess the property under the 1937 Act enlarges itself by reason of the liberal and wide amplitude of Section 14(1) of the 1956 Act.

In the instant case before us, as already mentioned, on the date of death of her husband viz., on 21-2-1947, the plaintiff-appellant herein, due to her disqualification on the ground of unchastity did not succeed to the estate of her husband as per the provisions of the Act for that purpose. Her entitlement

or right to possess the property under the 1937 Act enlarges itself by reason of the liberal and wide amplitude of Section 14(l) of the 1956 Act.

Therefore, this decision is not applicable to the facts of the instant case before us.

34. The decision in Sundari v. Laxmi : [1980]1SCR404 , is also relied on by Mr. R.S. Venkatachari, the learned Counsel for the plaintiff-appellant herein in support of his contention. In this decision it was held that in view of the over-riding provision in Section 4 of the Hindu Succession Act, 1956, it is clear that the provisions of Aliyasantana Act (Madras Act IX of 1949), whether customary or statutory will cease to apply, in so far as they are inconsistent with the provisions of the Hindu Succession Act, which came into force on 17th June, 1956. Therefore, the devolution by testamentary or intestate succession is under the Hindu Succession Act. It was also held in this decision that the effect of the provisions of the Hindu Succession Act is that after the coming into force of the Hindu Succession Act an undivided interest of a Hindu would devolve as provided by Section 7(2), while in the case of separate property it would devolve on his heirs as provided for in the Hindu Succession Act.

35. In the instant case before us, it is relevant to note that the plaintiff-appellant herein was disqualified as per the provisions of Section 3 of the Hindu Women's Rights to Property Act, 1937 which was in existence on the date of death of her husband viz., 21-2-47. It was on that date itself succession opened. On that date when the succession opened, the plaintiff-appellant was found to be unchaste and at that time the unchastity was a disqualification for succession as per the provisions of the Hindu Women's Rights to Property Act, 1937. Therefore, the decision in Sundari v. Laxmi : [1980]1SCR404 , is not applicable to the facts of the case before us.

36. Mr. M.N. Padmanabhan, the learned Counsel for the respondents submits that the decision in Jayalakshmi Ammal v. Ganesa Iyer : AIR1972Mad357 , is not applicable to the facts of the instant case before us. On the other hand, the learned Counsel for the respondents refers to the decision in Appa Saheb v. Guruba sawwa A.I.R. 1960 Mys. 79, and submits that this decision is applicable to the facts of the instant case before us. In the said decision Appa Saheb v. Gurubasawwa A.I.R. 1960 Mys. 79, it was held as follows-

The Hindu Women's Rights to Property Act, 1937, does not purport to abrogate the pre-existing rule of Hindu Law which excludes an unchaste widow from succession to the property of her husband. Section 2 of that Act cannot be said to have been intended for abrogating all the principles of Hindu Law. It must be deemed to have been limited in so far as the application of Section 3 is called in. Ramaiya's case : AIR1951Mad954 (F.B.) foll. Akoba Laxman v. SaiGenu Laxman : AIR1941Bom204 , not foll.

Section 4 of the Hindu Succession Act, 1956 cannot be invoked unless it is shown that the claimant gets any rights under the provisions of the Act. Similarly, Section 8 of the Act applies only in respect of a succession that has opened after that Act came into operation. Also Section 28, which seems to cover the case of disqualification on the ground of unchastity, comes into operation only in cases where the inheritance opens after the coming into force of the Act and the provisions of the Act are not retrospective.

Where, therefore, the inheritance had opened in 1944 and the unchastity of the plaintiff widow was held proved by both the lower courts, she was not entitled to claim any share in the property of her deceased husband merely because the Hindu Succession Act came into force.

In the said decision, Appa Saheb v. Gurubasawwa A.I.R. 1960 Mys. 79, the plaintiff filed the suit against the first defendant who is her adopted son, and against the second defendant who is the wife of the 1st defendant, claiming that she is entitled tol/2 share in the properties originally belonging to her husband. It was contended on behalf of the first defendant that the plaintiff was leading an unchaste life prior to her husband's death and also at the time of her husband's death and that therefore she is disqualified from inheriting her husband's properties. It was admitted that the plaintiff's husband Basappa died in 1944 and that thereafter on 3-8-1945 she adopted the first defendant. The trial court came to the conclusion that she was unchaste. Still it decreed the plaintiff's suit for partition and possession. In appeal, the decree was confirmed and the appeal was dismissed. It is against the said decision, the first defendant has come up in second appeal. The main point urged in that case was that by reason of unchastity which has been held proved by both the lower courts, she is disqualified from inheriting the properties. It was held that the Hindu Succession Act came into force on 17-6-1956 and that the rules of succession laid down in Section 8 of the Act can only apply in respect of succession that has opened up after the said Act came into operation. There is nothing to show that the provisions of Section 8 of the Hindu Succession Act are retrospective. It was observed at page 80 of the said decision as follows-

In the case under consideration the inheritance opened on the death of the plaintiff's husband Basappa in the year 1944. The succession to the estate of Basappa can only be determined by the law in force in the year 1944. The provisions of Section 8 are inapplicable to that case.

(6) The next provision relied upon is Section 28. It says that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity or save as provided in this Act on any other ground whatsoever. This, no doubt, seems to cover the case of disqualification on the ground of unchastity. But the operation of this section also can come in only in cases where the inheritance opens after the coming into force of this Act.

This section is also inapplicable to the present case. The result is that if the inheritance opened in 1944 the plaintiff could not succeed to the property on account of the disqualification on the ground of unchastity. If, so, she is not entitled to claim any share in the property by reason of Section 3 of the Hindu Women's Rights to Property Act.

(7) The learned advocate for the respondents relies on the decision of the Federal Court, in Lachmeshwar Prasad v. Keshwar Lal . It lays down the principle that-

The hearing of an appeal under the procedural law of India is in the nature of rehearing and ... the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Secondly the appellate court is competent to take into account legislative changes since the decision in appeal was given.

In view of this proposition, the learned advocate for the respondents wants that the provisions of the Hindu Succession Act, 1956, should be taken into consideration in deciding this appeal. I have already discussed the relevant provisions relied upon by the learned advocate for the respondents and I have shown that these provisions are not applicabele to the present case.

I cannot understand this decision to mean that merely because the Hindu Succession Act has come into force, I should give effect to the provisions of that section so as to affect the rights of the parties retrospectively. The decision of the Federal Court does not go to that extent. Under these circumstances, there is nothing that can be done to the benefit of the plaintiff.

37. In the said decision in Appa Saheb v. Gurubasawwa A.I.R. 1960 Mys79, the Mysore High Court followed the decision of the Madras High Court in Ramayya v. Mottayya : AIR1951Mad954 .

38. In Ramayya v. Mottayya : AIR1951Mad954 , their Lordships observed as follows-

The words notwithstanding any rule of Hindu Law or custom to the contrary' in Section 2 show that if there is any rule of Hindu Law or custom which is contrary to the provisions of Section 3, then it is such a rule that is abrogated and not every rule of Hindu Law which is not directly contradicted by the provisions of Section 3. Thus, it is the general rule of Hindu Law that a son excludes the widow in respect of separate property and the surviving coparceners exclude the widow in respect of joint family property that are contrary to the provisions of Section 3 and Section 2 declares that notwithstanding these rules of Hindu Law, the provisions of Section 3 shall apply. The Act does not purport to abrogate the pre-existing rule of Hindu Law excluding an unchaste widow from succession to the property of her husband.

39. Panchapakesa Aiyar, J., in Ramayya v. Mottayya : AIR1951Mad954 at page 960 observes as follows regarding chastity-

(19) Chastity is considered by all schools of Hindu Law, and by all Hindus as Truth in Action, and this is a land where it is proclaimed that God is Truth and Truth is God. For the Hindus, chastity in a wife is the first thing required, all other qualities paling into insignificance beside it. The Vedas say: Ardha va Esha Atmanee Yajyayeta' (she ... the wife ... is born as half of the self). In the horary past Sati Savitri leaped across death with chastity as her sole armour and shield, and got back the life of her husband, Satyawan, from Yama who had to yield her husband's body, the submerged half of the wand of life of the couple, when it was pulled by her, his half standing out of the waters of death. Only in the background of this thrilling tale can we understand the law- giver Prajapati's words:

Amanaye Smrititantre Cha Lokachare cha sooribhi, Sareerardham Smrita Jaya Punya Pujam phala Sama, Yasya Noparata bharya dehardham tasya jeevati Jeevatyardhasareerartham Kathamanyah Samapnuyat.

(In the Vedas and Smritis and popular usage, the wife is declared to be half the body of her husband and to be sharing equally the fruits of her husband's good and bad acts. Of him whose wife is not dead, half the body survives. When half his body survives, how can any one else inherit his property?)

(20) Vriddha Manu expressly cays that only the sonless widow who keeps the bed of her lord unusullied is entitled to her husband's property. Katyayana also expressly says that she must be chaste (Yasyadavyabhicharinee) if she is to succeed to her husband's properties. This idea of an unchaste wife's being disqualified to inherit her husband's property was taken for granted so much so that several law-givers, like Yagnavalkya, Vishnu and Brihaspati, often omit it as understood. Thus, Yagnavalkya says: 'Patneeduhitaraschaiva Pitarau Bhrataasthatha'(the wife, the daughter, the parents and the brothers succeed to the property of a sonless man).

Vishnu says: 'Anapatyasya Prameetsaya Dhanam Patnyabhigami (the wife takes the property of her sonless husband). And Brihaspati says: 'Bhariya Sutaviheenasya Purushasya Mritasyatu' (the wife takes the property of her sonless husband). By such omission they do not intend to say that the disqualification of unchastity is. removed. For it is the very same Brihaspati who says:

Vrateenavasadirata Brahmacharya Vyasavasthita Dharmadanarata-nityam aputrapi divam Vrajet'. (Performing religious ceremonies and observing fasts, chaste, virtuous, and always making gifts for the benefit of her husband's soul, even a childless widow goes to heaven).

(21) That the Hindus of South India (the widow in this second appeal comes from Trichinopoly district) did not attach less importance to chastity in a wife is clear from the following verses from the Kural of Sage Tiruvalluvar, the authoritative book of Dharma of the South:

Is there anything greater than a wife with the armour and shield of chastity? She worships no other God than her husband. Verily, at her bidding the rain will fall. Her chastity is her armour and her shield. A home with a chaste wife lacks nothing. If a wife lacks chastity, the home is doomed'. So, the North and South, East and West in Hindu India, did not differ in the least on this Vital point. And this was only natural, seeing that the patriarchal Hindu law, of Sapindas and Samanodhakas, depended on the chastity of the wife as the corner stone of its edifice.

40. In Ramayya v. Mottayya : AIR1951Mad954 , the Full Bench of the Madras High Court held that the Hindu married woman who is unchaste at the time of her husband's death is disqualified from inheriting the interest in the joint family property under Section 3 of the Hindu Women's Rights to Property Act, 1937. It cannot be said that the Hindu Women's Rights to Property Act, 1937, has either expressly or by necessary intendment done away with the personal disqualification like unchastity imposed by Hindu Law on widows claiming to succeed to the estate of their deceased husbands. The rule of Hindu Law to the contrary referred to in Section 2 must be construed as confined to the rule of Hindu Law excluding a widow from succession to her husband's estate if he had left a son or grand-son or if he had died a member of a joint family leaving him surving his coparceners. It is the rule of Hindu Law that must be held to have been superseded by Section 3 of the Hindu Women's Rights to Property Act, 1937 and to that extent and no further can Section 3 be held to be contrary to and in super session of the rule of Hindu Law. This view has been followed by other decisions of other High Courts as well. See Kanailal .v. Pannasashi A.I.R. 1954 Cal. 598. A contrary view has been taken in A k o b a v. Laxman A.I.R. 1941 Bom. 204. In Manabai v. Chandan Bai A.I.R. 1954 Nag. 284, it was held that a widow re-marrying should forfeit her right of succession to the property of her deceased husband. in Surja Kumar v. Manmantha : AIR1953Cal200 , it was held that if unchastity of the wife had been condoned by the husband, the unchastity would not be a bar.

41. It was held in Marakkal v. Angappa Gounder (1960)2 M.L.J. 49 (Appeal No. 78 of 1957 dated 17-8-1960, Balakrishna Iyer and Jagadisan, JJ., that in order to claim the benefit of the succession as provided for under the Hindu Succession Act, 1956, the onus of proving that the last holder of the estate died after the date of coming into force of the Act is on the person claiming the benefit of the Act. In that decision it was claimed by the plaintiff-claimant that her husband Kongappa Gounder must be deemed to have died only after 17-6-1956, the date of the commencement of the Hindu Succession Act, 1956, under the provisions of Sec, 108 of the Indian Evidence Act. It was held that it is not open to her to go behind the averments in the plaint wherein she categorically asserted that her husband not having been heard of for the last seven years must be believed to be dead. The plaint itself was filed on 12-4-1954. In the face of that averment, it was held that she cannot be permitted to take up a different position merely with a view to enable her to take advantage of the provisions of the Hindu Succession Act, 1956. It was further held that the plaintiff-claimant had not succeeded in establishing that Kongappa Gounder died after the commencement of the Hindu Succession Act, 1956. The onus of establishing, that fact is undoubtedly upon the plaintiff. It was held that the plaintiff is therefore disentitled to claim any relief under the Hindu Succession Act, 1956.

42. In Jayalakshmi Ammal v. Ganesa Iyer (1972)2 M.L.J. 50 : 85 L.W. 82, it is held that unless the disqualification is one gatherable from the provisions of the Hindu Succession Act (Act XXX of 1956), it does not operate as a bar to succession. That means that the Hindu Succession Act XXX of 1956 has made its intention specific that unchastity of a widow will, after the Act came into force, no longer be a disqualification in regard to her heritable capacity. This proposition of law laid down in Jayalakshmi Ammal v. Ganesa Iyer (1972)2 M.L.J. 50 : 85 L.W. 82, cannot be made applicable to the succession which opened in the instant case on 21-2-1947 on which date the husband of the plaintiff-appellant died and on that date itself she was found to be unchaste and made herself disqualified for inheriting the estate of her husband. Merely on the ground that the plaintiff-appellant herein had instituted the suit O.S. 2 of 1964 subsequent to the commencement of the Hindu Succession Act XXX of 1956, it cannot be held that she is eligible to succeed to the estate of her husband notwithstanding her unchastity on the date of opening of the succession. On the date of death of the husband of the plaintiff-appellant herein it was only the provisions of the Hindu Women's Rights to Property Act, 1937 that were in existence and as per the decision in Ramayya v. Mottayya : AIR1951Mad954 , the plaintiff-appellant herein was disqualified to inherit a share in her husband's property as it was found by both the courts below that she was living a life of adultery even during the lifetime of her husband Rajagopal.

43. Mr. R.S. Venkatachari, the learned Counsel for the plaintiff-appellant herein refers to Section 4 of the Hindu Succession Act, 1956 which reads as follows-

4. (1) 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;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of framentation of agricultural holdings or for the fixation of ceiling or for the devolution of tenancy rights in respect of such holdings.

44. The learned Counsel referring to the provisions of Sec4 contends that by virtue of this section, the principles of Hindu Law embodied in the ancient texts and other law in force immediately before the commencement of the Hindu Succession Act become inapplicable after the commencement of the Hindu Succession Act, 1956. A careful reading of the provisions of Sec4 of the Hindu Succession Act, 1956 shows that in the matter of application of any provision of the Hindu Succession Act, 1956 the earlier law will not come in the way. Unless it is shown that the plaintiff-appellant in the instant case gets any rights under the provision of the Hindu Succession Act, 1956, the provisions of Section 4 cannot be invoked.

45. Mr. R.S. Venkatachari, the learned Counsel for the plaintiff-appellant next draws my attention to Section 8 of the Hindu Succession Act, 1956. It lays down that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter after the Hindu Succession Act, 1956 came into force on 17-6-1956. Obviously, the rule of succession laid down in that section governs succession that has opened up after the Hindu Succession Act, 1956 comes into operation. In the instant case before us, the succession opened on 21-2-1947 on which date the husband of the plaintiff-appellant herein died. It was only the provisions of the Hindu Women's Rights to Property Act, 1937, that were in existence on the date of opening of the succession in the instant case. There is nothing in the Hindu Succession Act, 1956, to show that the provisions of Section 8 of the Hindu Succession Act are retrospective. The succession to the estate of Rajagopal can only be determined by the law in force in the year 1947. The provisions of Section 8 of the Hindu Succession Act, 1956 are inapplicable to the instant case.

46. The next provision relied upon is Section 28 of the Hindu Succession Act, 1956. It says that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity or save as provided in this act on any other ground whatsoever. This, no doubt, seems to cover the case of disqualification on the ground of unchastity. But the operation of this section also can come in only in cases where the inheritance opens after the coming into force of the Hindu Succession Act, 1956.

47. Section 28 of the Hindu Succession Act, 1956, is also inapplicable to the present case before us. The result is that if the inheritance opened in 1947, the plaintiff-appellant herein could not succeed to the property of her husband on account of the disqualification on the ground of unchastity. If so, she is not entitled to claim any share in the property by reason of Section 3 of the Hindu Women's Rights to Property Act.

48. It is contended by Mr. R.S. Venkatachari, the learned Counsel for the plaintiff-appellant herein that the provisions of the Hindu Succession Act, 1956, should be taken into consideration in deciding this second appeal because even in her plaint, the plaintiff-appellant herein claimed a share in the property of her husband as per the provisions of the Hindu Succession Act, 1956. I am unable to uphold this contention because on the date of opening of the succession viz., 21-2-1947, the relevant Act in force was the Hindu Women's Rights to Property Act, 1937. As per Section 3 of the Hindu Women's Rights to Property Act, 1937, which was applicable on the date of opening of the succession, the plaintiff-appellant herein was found to be unchaste. Merely on the ground of the institution of the suit O.S. No. 2 of 1964 by the plaintiff-appellant herein claiming a share in the estate of her husband, it cannot be held that she is entitled to a share. I have already discussed the relevant provisions of the Hindu Succession Act, 1956, relied upon by Mr. R.S. Venkatachari, the learned Counsel for the appellant and I have shown that those provisions are not applicable to the present case. It cannot be held that merely because the Hindu Succession Act has come into force, I should give effect to the provisions of that Act so as to affect the rights of the parties retrospectively. Under these circumstances, there is nothing that can be done to the benefit of the plaintiff-appellant herein.

49. In the result, the second appeal is dismissed. The judgment and decree of the lower appellate court are confirmed. There is no order as to costs in this second appeal.


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