P. Chakravartti, C. J.
1. This is an application for the substitution of the heirs and legal representatives of a deceased party, made within time and prima facie it was a simple application. In the course of the argument, however, Mr. T. P. Das has raised a point which, in my view, deserves to be dealt with in a judgment instead of being disposed of by a mere order.
2. The facts are these : In a partition suit brought with respect to the estate of one Nanda Lal Mullick, a preliminary decree was passed on 1-4-1938. Under that decree, the share of one Madan Mohan Mallik was declared to be 1/7th and another 1/7th was declared to be the share of one Anukul Chanclra Mallik. Anukul, it appears, transferred his share in one of the joint properties to a Marwari lady who has thus come to bo interested in his share along with his heirs and legal representatives, but with that matter we are not here concerned. After the preliminary decree had been made, there was the usual reference to a Commissioner of Partition who made his return in due course. Exceptions to his return were taken by the heirs and legal representatives of Anukul who had, in the meantime, died. The exceptions were rejected by an order of P. B. Mukharji, J. and by a further order the Commissioner's return was confirmed. The heirs and legal representatives of Anukul, who are the petitioners before us, then filed two appeals, one against the order rejecting their exceptions and another against the order confirming the Commissioner's return. Those appeals, being Appeals Nos. 165 and 166 of 1955, are both pending.
3. Since the appeals were filed, there have been a plethora of applications with respect to one matter or another and the carriage of the appeals has been of a rather confused character. We are, however, concerned here with only two of those applications or rather, if we take the two appeals into account, with four. During the pendency of the appeals, one of the respondents, named Madhu Sudan Mallik died on 4-1-1957 and thereupon an application was made for the substitution of his heirs and legal representatives. No orders could be made on that application, since it was an application by only one of the appellants and, therefore, a second application by the rest of them was made in each of the two appeals. By that time, however, the appeals had already abated. The petitioners had, therefore, to make an application for the setting aside of the abatements, which they did, but while those applications were pending, another respondent, namely, Rati Manjari Dasi, died on 1-6-1958. Upon her death, the petitioners misguided themselves into making applications for the, substitution of her heirs and legal representatives in the two appeals, quite overlooking the fact that the appeals had already abated and that till the abatements were set aside, no substitution in the abated appeals could possibly be made. When this was pointed out to the petitioners, they made two fresh applications in each of the appeals, and by those applications they prayed for the substitution of the heirs and legal representatives of Rati Manjari Dasi in the applications already made by them for the setting aside of the abatements of the appeals. It is those four applications which we have before us today.
4. It will be convenient from now to speakof one application only and use the singular number. Rati Manjari died, leaving her surviving threesons, namely, Dinanath Mallik, Hansa Gopal Mallik and Subal Chandra Mallik and four daughters,namely, Dalim Kumari Dasi, Radha Rani Dasi,Ganga Moni Dasi and Monoka Raui Dasi. By theirapplication, the petitioners pray for the substitutionin the place and stead of Rati Manjari Dasi of allthe sons and daughters, seven in number, left byher, on the basis that her interest has devolved onthem all.
5. The application has been opposed on behalf of Dina Nath Mallik, one of the sons of Rati Manjari Dasi, to the extent that so far as his sisters are concerned, they are not entitled to be substituted in the place of the mother, because, on her death, her interest devolved on her sons alone. The application has also been opposed on behalf of respondent No. 18 Indra Mani Bazaz who is the Marwari lady I mentioned a moment ago and who has purchased Anukul's share in one of the houses. No separate argument was advanced on her behalf, her learned counsel adopting the argument of Mr. T. P. Das.
6. In order to appreciate the position, it is necessary to recite a little more of the history of the suit. I have already stated that the share of Madan Mohan Mallik declared by the preliminary decree was 1/7th. Madan Mohan died on 2-8-1948, leaving his surviving his widow, Rati Manjari Dasi, and three sons and four daughters whom I have already named. It appears that sometime after Madan Mohan's death, one of his sons, Subal, applied to the Court for a sub-partition of his 1/7th share between his heirs, namely, the widow Rati Manjari. the sons Dinanath, Hansagopal and himself. On that application, an order was made by Sarkar, J. on 19-7-1954, by which the learned Judge directed the Commissioner of Partition to divide Madan Mohan's 1/7th share into four equal parts or shares, one of such shares or parts to be given to each of the three sons and to the widow. As regards the share of the widow, Rati Manjari Dasi, the learned Judge added the following direction :
'the share of Rati Manjari Dasi being held and enjoyed by her as a Hindu widow during the term of her natural life as prescribed in Hindu law.'
There were certain other directions given by the order to which it is not necessary for our present purpose to refer. I may, however, mention that shortly after the order was made, Dinanath and Hansagopal informed the Commissioner that they and the mother did not want any partition amongst themselves and that the Commissioner might proceed to separate only a 1/4th share and give it to Subal. In fact, that was what the Commissioner actually did and an objection taken by Subal to the sub-partition made in that form was rejected by P. B. Mukharji, J. by an order made on 16-8-1955.
7. The objection taken by Mr. T. P. Das to the proposed substitution of the daughters of Rati Manjari is that the share given to her at the subpartition was merely a share given in lieu of maintenance and it had in fact come out of the shares of the sons who alone had inherited the estate of Madan Mohan. According to Mr. T. P. Das, the share given to Rati Manjari ceased to exist upon her death and it went back to where it had come from, namely, to her sons. In that view, it was contended, the daughters could have no place in the succession to Rati Manjari at all and, therefore, the proposal to bring them also on the record as the heirs of Rati Manjari was altogether misconceived. Mr. T. P. Das had also a second branch of his argument. He contended that even assuming that what Rati Manjari got at the sub-partition was a Hindu widow's estate in the 1/4th of the 1/7th share given to her, as it was described in the order of Sarkar, J. or she got 'a restricted estate in such property' under Sub-section (2) of Section 14 of the Hindu Succession Act, 1956, the share given to her reverted on her death to her husband's estate and thereafter, under Hindu law, it could devolve only on the sons.
8. In my view, the contention of Mr. T. P Das is plainly untenable. He seems to have framed it without reference to the Hindu Women's Rights to Property Act, 1937, and ignored the effect of Sub-sections (1) and (3) of Section 3 of that Act. The rule which, he assumed, would govern the succession to the share held by Rani Manjari after it had reverted to her husband's estate was also mistaken, us I shall presently show.
9. The position to my mind is clearly this : Madan Mohan died in 1948 when the Hindu Women's Rights to Property Act had already come into force. Section 3(1) of that Act, so far as is material,Provides that when a Hindu governed by the Daya-bhag School of Hindu Law -- as Madan Mohan was -- dies intestate, leaving any property, his widow shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he died intestate to the same share as a son. Sub-section (3) of the section to which Sub-section (1) refers provides that any interest devolving on a Hindu widow under the provisions of the section shall be a limited interest, known as a Hindu Woman's estate and there is a proviso which says that she shall have the same right of claiming a partition as a male owner. There can be no doubt whatsoever that the estate which Sub-section (1) of Section 3 gives to the widow is an estate of inheritance. That it is an estate of such a character not only follows from the terms of Sub-section (1) itself, which gives the widow a share in the property left by her husband dying intestate, but is also emphasised by the provisions of Sub-section (3) which entitles the widow to claim partition in her own right and in the same manner as a male owner. The section, however, adds the qualification that the interest devolving on the widow shall be only a limited interest devolving on the widow shall be only a limited interest, known as a Hindu Woman's estate. The total effect of the section, therefore, is that it provides for a departure from the orthodox Hindu law to the extent that a widow is given by it a share in her deceased husband's estate in spite of his having left male heirs, whereas, under the orthodox law, she could have got the husband's estate and the whole of it only if he died sonless. The other departure from the orthodox Hindu law which the section provides for is merely consequential. It gives the widow the same right of partition as a male owner has and it appears to me that there was a double necessity for making an express provision in this behalf, if a right of partition was sought to be given. Had Sub-section (1) of Section 3 stood alone, it might be said that the widow would get her share in an absolute right and as the owner of that share she would necessarily have a right to claim partition, if she wanted to claim it. Sub-section (3), however, makes the interest of the widow a limited interest, known as a Hindu Woman's estate, and it is well settled that while there were sons, the widow could only claim a share in lieu of maintenance if they asked for a partition, but could not initiate any proceeding for a partition herself. It was, therefore, necessary, since the amplitude of what was given by Sub-section (1) was considerably curtailed by the earlier part of Sub-section (3), to provide specifically that the widow, getting a share under Sub-section (1), would be entitled to claim a partition in her own right even as against the sons.
10. What is material to notice in the section for the purposes of our present case is that while it gives a Hindu widow a share in her husband's estate in circumstances in which she would have none under the orthodox Hindu law, it stops there and does not alter the nature of the estate which a widow gets under the ordinary law in the estate of her husband, dying sonless. In the latter case it would be the whole estate which would come to her, to be held by her during her life, subject to certain limitations, but it would come only if there were no male heirs. Under the Act, only a fraction comes to her, but it comes despite the existence of male heirs but, on the other hand, her interest in it is in no way a large interest than a widow has in her husband's estates under the orthodox law. What she gets is only a Hindu Woman's estate, as Sub-section (3) of Section 3 of the Act expressly lays down.
11. I am not quite sure whether Sarkar, J. had the provisions of the Hindu Women's Rights to Property Act, 1937, in his mind when he directed that Rati Manjari's share would be 'held and enjoyed by her as a Hindu widow during the term of her natural life as prescribed in Hindu law.' The last few words would rather suggest that he was not making an order in terms of the Act, but making an order of the Court, presumably on the basis of an agreement between the parties. But whether he did the one or the other, the result was the same, because the order he made gave the widow exactly the same right as she would have under the Hindu Women's Rights to Property Act and it was described in substantially the same language,
12. It was that interest which ceased to be held by Rati Manjari Dasi on 1-6-1958, when she died. The petitioners say that Sub-section (I) of Section 14 of the Hindu Succession Act, 1956 applies to the case and that since, by virtue of the provisions of that sub-section, Rati Manjari had become a full owner of the share given to her, it could devolve upon her death only on her heirs and not on her husband's. If so, all the sous and daughters left by Rati Manjari had become her heirs and, therefore, the substitution of all of them was rightly proposed. Apart from the contention that, under the orthodox law, Rati Manjari's share, given to her at the sub-partition, would be deemed to have come from the shares of her sons and that the Hindu Women's Rights to Property Act had made no difference in that regard, it is contended on behalf ot Dinanath Mallik that, in any event, Sub-section (2) of Section 14 of the Hindu Succession Act, 1956, would apply to the present case and not Sub-section (1); and that if Sub-section (2) applies, Rati Manjari's share, upon its reversion to the estate of her husband, would devolve according to the orthodox Hindu law and, therefore, descend only to his sons, Section 8 of the Hindu Succession Act being only prospective in its operation and, therefore, not applicable.
13. Before dealing with the rival contentions on Section 14 of the Act, I would dispose of the extreme argument of Mr. T. P. Das that the share given to a widow under the Hindu Women's Rights to Property Act is of the same nature as a share given to her in lien of maintenance under the old law at a partition between the sons. What was intended to make out was that if the widow's chare under the special Act was of the same nature as a share given in lieu of maintenance, it would be a share carved out of the shares of the sons and, therefore, it would, upon the widow's death, revert to the sons themselves and could not go anywhere else. I cannot, however, find any justification for reading into the provisions of the Hindu Women's Rights to Property Act the qualification which Mr. T. P. Das wanted to add. As I have already said Section 3 (1) of the Act quite clearly gives the widow an estate of inheritance and not merely a solatium for her maintenance. If it is an estate of inheritance which the widow gets under the provisions of the Act, it is altogether beside the point to go back to the orthodox law and search there for an estate analogous to the interest given by the new legislation. Such a search would be pointless. The Act introduces a new and a firm right and quite clearly vests in the widow a share in the estate left by her husband which she gets as one of the heirs, though her enjoyment of it is made subject to certain limitations. It is, therefore, altogether erroneous to speak of this share as of the same nature as the share which a widow used to get under the orthodox law at a partition between her sons.
14. Taking up Section 14 now, the question whether Sub-section (1) or Sub-section (2) would apply to this case is not free from difficulty. As regards Sub-section (1), the difficulty is that it speaks only or property possessed by a female Hindu' and would thus seem to be limited to property in the possession of a female. I am quite sure that such is not the real intention of the section, but the language in which it has been expressed does create a difficulty. The section goes on to say that the property shall be held by the widow as the full owner thereof and, therefore, under the strict language of the section, property to which a female Hindu is not in possession, although it might have been acquired by her, would seem not to be covered. There is no evidence that Rati Manjari was in possession of the share given to her at the sub partition. About Sub-section (2), the difficulty is that it speaks inter alia of 'any property acquired * * * under a decree or order of a Civil Court', It may plausibly be said that a co-sharer, who is allotted a particular property by a partition decree, does not acquire it under the decree, but he had a right to it always and what the decree does is only to declare his right which otherwise existed. In answer to this contention it may be said with equal plausibility that while such may be the true view of a share declared by a preliminary decree made in a partition suit, the same cannot be said of a final decree, because by the final decree, particular properties are separated and made exclusive properties of the different co-sharers so that it may, without violence to language, be said that a co-sharer, getting an allotment of a particular property at the final partition, acquires it under the decree. It seems to me, however, that it is not necessary to decide whether Sub-section (1) of Section 14 applies to the present case or Sub-section (2) does, because, as I shall presently indicate, whichever applies, the result will be the same.
15. If Sub-section (1) of Section 14 applies, the position is perfectly clear. By virtue of the provisions of the section Rati Manjari was a full owner of the share given to her at the sub-partition and if she was, the share would, upon her death, certainly devolve on not merely her sons but on her daughters as well, who too are her heirs. Who the husband's heirs would be is not a question which at all arises under Section 14(1).
16. It is Sub-section (2) of the section which gives rise to the argument we heard from Mr. T. P. Das. If that sub-section applies, Sub-section (1) would be out of the way, because Sub-section (1) cannot apply to any property acquired under a decree or order where the decree or order prescribes a restricted estate in the property concerned. The order of Sarkar, J. did prescribe a restricted interest of Rati Manjari in the share given to her, because it said that she would only hold and enjoy it as a Hindu widow during the term of her natural life, as prescribed in Hindu law. Sub-section (2), however, while excluding the operation of Sub-section (1), does not purport to affect in any way the estate or interest prescribed. The incidents of such an estate are left to such other laws as may be applicable. If Sub-section (2) applies, the position, therefore, was that Rati Munjari having got either a Hindu widow's estate in the share given to her under the order of Sarkar, J. or a Hindu Woman's estate under Sub-section (3) of Section 3 of the Hindu Women's Rights to Property Act, devolution of that estate after her death would be according to the law applicable to the devolution of a Hindu Womans' estate after the termination of the life of the limited owner. Up to this point, there was in the end no controversy.
17. As to what the rule of devolution applicable to Rati Manjari's share would be, it was contended by Mr. T. P. Das that it would be the rule of the ordinary Hindu law and that, therefore, upon reversion to the estate of Madan Mohan, Rati Manjari's share would descend to the male heirs of Madan Mohan under that law, then surviving. In aid of that contention, it was argued that Section 8 of the Hindu Succession Act could not apply, because that section had a clear reference to futurity and was clearly prospective in operation. 'The property of a male Hindu dying intestate', says the section, 'shall devolve according to the provisions of this chapter.' It was said by Mr. T. P. Das that this language could only mean that property of a male Hindu, dying intestate after the commencement of the Act, would devolve according to the manner that the Act prescribed. Madan Mohan. although he had died intestate, had died long before the date of the Act and when the Act had come into force, it could not be said of any property of Madan Mohan that it 'shall devolve' according to its provisions. If Section 8 was out of the way, the only law in the field was the orthodox Hindu law and under that law it was only the sons of Madan Mohan on whom the share of Rati Manjari would devolve upon her death as a part of the estate of Madan Mohan.
18. This argument of Mr. T. P. Das is based on a clear fallacy. The very conception of the reversion of a widow's estate to the estate of the husband involves that it becomes the husband's estate once again at the date of the reversion and necessarily occasion for its further devolution can only arise at that date. That this is the true view has been laid down in a series of decisions of the highest authority, beginning from Katama Natchiar v. Rajah of Shivagunga, 9 Moo Ind App 359 at p. 604 (A). It is true that the physical death of the husband takes place at a much earlier date, but the law presumes that his death, as the death of the owner of the property, fakes place when his wiodw dies and, therefore, it is only then that the succession to the estate opens. The law was tersely stated by the Judicial Committee in the well known case of Moniram Kolita v. Keri Kolitani, 7 Ind App 115, at p. 154 (B), in the following words :
'The succession does not open to the heirs of the husband until the termination of the widow's estate. Upon the termination of that estate, the property descends to those who would have been the heirs of the husband if he had lived up to and died at the moment of her death.'
19. It is thus clear that, by a fiction, the husband is deemed as continuing to Jive till the death of his widow and the consequence of introducing that fiction is that the time relevant to the question of the further devolution of the estate is the time of the widow's death, with which the law makes the husband's death simultaneous. If so, the death of Madan Mohan in the present case must be deemed to have taken place on 1-6-1958, when his widow Rati Manjari died and since occasion for further devolution of Rati Maniari's share, reverted to Madan Mohan's-estate, would arise only then, the law applicable to such devolution would be the law then in force. The Hindu Succession Act came into force on 17-6-1956 and, therefore, at the time when succession to the share held by Rati Manjari during her life opened, the Act was already in operation. To apply the pro-visions of the Act to the devolution of that share cannot, therefore, be to apply it retrospectively. It follows that even on the view of Section 8 of the Act, contended for by Mr. T. P. Das, it is that section and not the ordinary Hindu law which would govern the succession in the present case. Under Section 8, read with Class I of the Schedule, sons and daughters would both be heirs and, therefore, substitution of both has rightly been prayed for.
20. Some doubt was expressed as to whether the principle which I have endeavoured to explain, would apply to a case where, between the death of the husband and the subsequent death of the widow, the law of succession had changed. There seems to be no good ground for such doubt, because if, with respect to property reverting to the estate of the husband upon the widow's death, the heirs are persons who would be the heirs if the husband had died at the moment the widow had, the only law applicable to the succession would clearly be the law in force at the date of the widow's death, whatever the prior law might have been. Any doubt which might still be left will be completely dispelled, if reference is made to the decision of the Judicial Committee in the case of Duni Chand v. Mt. Anar Kali . It was there held that the Hindu Law of Inheritance (Amendment) Act, 1929, which had altered the order of succession of certain persons therein mentioned, and which had. come into operation on 21-2-1929, applied not only to the case of a Hindu male dying intestate on or after 21-2-1929, but also to the case of such a male dying intestate before that date, if he was succeeded by a female heir who died after that date. The reason given for the decision was that the succession to the estate did not open till the death of the female heir. Delivering the judgment of the Board, Mr. M. R. Jayakar observed as follows :
'The succession does not open to the heirs of the husband until the termination of the widow's estate. On its termination, the property descends to those who would have been the heirs of the husband if he had lived up to, and died at the moment of her death.'
Since the Hindu Law of Inheritance (Amendment) Act had come to be the appropriate law of succession at the time of the widow's death which, by fiction, was to lie treated as the death of the husband, as well, it was held that it was that Act which would govern the succession, although the physical death of the, husband might have taken place prior to the date when the Act had come into force. The present case, it seems to me, is on all fours with the case before the Judicial Committee. Mr. T. P. Das tried to distinguish it on the ground that the female heir, there concerned, was a mother who was holding the entire estate as a limited owner, whereas in the present case Rati Manjari had been holding only a fraction. This distinction clearly makes no difference, because it is not the quantum of the estate held by the intervening holder but the character of it which attracts the principle laid down in the authorities. Whether it was the whole estate, as in the case before the Judicial Committee, or a 1/4th of a 1/7th share, as in the case before us, in both the cases, it was the estate of Hindu Female. Therefore, there is no reason at all why the principles applied by the Judicial Committee on the ground that the intervening estate was the estate of a limited owner should not apply as much to a case where the estate comprises of a share of the property as in the case where it comprises the whole.
21. In the result, therefore, the position is this: There is no evidence in the case that Rati Manjari was in possession of her share and, therefore, the applicability of Sub-section (1) of Section 14 may, in one view of the sub-section, be doubtful. But if the sub-section applies, there can be no doubt that upon the death of the lady, the share given to her at the sub-partition descended on her daughters as much as on her sons. It, on the other hand, Sub-section (2) of Section 14 applies, even then the interest of Rati Manjari in the share given to her being a limited interest, whether called a Hindu Woman's estate or an estate of a Hindu widow, it reverted, upon her death, to the estate of her husband and thereupon it devolved on the per-sons who would be the heirs of Madan Monan, if he died at the date of Rati Manjori's death. The law in force on that date being the Hindu Succession Act, the heirs of Madan Mohan, if he died on 1-6-1938, would be both his sons and daughters under Section 8 of the Act, read with the First Schedule thereto,
22. In the result, therefore, whether Sub-section (1) of Section 14 applies or Sub-section (2) does, the daughters would be among the heirs in either case.
23. Towards the end of the argument, our attention was drawn to a decision of Mallick, J. in the case of Hiralal Roy Chowdhury v. Kumud Behari Roy Chowdhury, : AIR1957Cal571 . The facts of the case before the learned Judge appear to have been precisely the same as those before us and we agree entirely with the view taken by him.
24. In the result the applications filed on 31-7-1958 succeed and there will be orders in terms of prayers (a), (b) and (c) of the applications.
25. The petitioners will have the costs of this application from the respondent No. 9 Dinanath Mallik and Sm. Indramoni Bazaz, respondent No. 10 in the notice of motion and respondent No. 18 in the petition who have opposed the application. The respondent No. 28 in the notice of motion, Sm. Dalim Kumari Dasi, will have her costs from Dinanath Mallik, respondent No. 9 and Sm Indramoni Bazaz, respondent No. 10 in the notice of motion and respondent No. 18 in the petition. The remaining parties will bear their own costs.
26. Let the order be drawn up as expeditiously as possible.
27. Upon the substitution directed by this order being made, the applications for setting aside the abatements in the two appeals (Appeals Nos. 165 and 166 of 1955) shall be placed for hearing.
28. This order will also govern the similar applications made in Appeal No. 166 of 1955
S.C. Lahiri, J.
29. I agree.