Full Judgment Text
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PETITIONER:
FATEH BIBI ETC.
Vs.
RESPONDENT:
CHARAN DASS
DATE OF JUDGMENT:
10/03/1970
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
SIKRI, S.M.
BHARGAVA, VISHISHTHA
CITATION:
1970 AIR 789 1969 SCR (2) 953
1970 SCC (3) 658
ACT:
Hindu Law of Inheritance, (Amendment) Act, 1929 (Act 2 of
1929)--Act whether applies in case of Hindu male dying in-
estate before the Act came into operation and succeeded by
female heir dying after that date-Succession to estate of
last male owner when opens.
HEADNOTE:
K’s son C died in 1925 and was succeeded in the ownership of
his properties (inherited from K) by his mother B. B
continued in possession till her death in 1946. Her
daughter M took possession of the properties as heir. M
died in 1950. The respondent-plaintiff was the son of M. In
1955 he filed a suit alleging that the defendant, after the
death of B claiming to be entitled to the properties as a
collateral and revisioner of K, had got mutation of the
aforesaid properties effected in his name. As daughter’s
son of K the respondent-plaintiff prayed for declaration of
his title to the suit properties; he also prayed for
recovery of possession thereof from the defendant. The
defendant contended that he was a collateral of K and was
entitled to succeed to the properties after the termination
of the life-estate of his widow B on her death in 1946. The
trial court held that in view of the provisions of the Hindu
Law of Inheritance (Amendment) Act 1929 (Act 2 of 1929) the
plaintiff as sisters’ son of C the last male holder, had a
preferential claim to that of the defendant who was only a
paternal uncle of C. The first appellate Court upheld the
decree of the trial Court. In second appeal by the
defendant before the High Court the learned Single Judge
held that as C the last male owner had died in 1925 his
heirs must be found on that date. On that date according to
the learned Judge the heir of C was the defendant. The fact
that the life-estate of the moth& and sister of C intervened
after his death would not affect the rights of the defendant
as the Act of 1929 had no retrospective operation. In
Letters Patent Appeal the Division Bench reversed the
judgment of the Single Judge. The legal representatives of
the defendant appealed to this Court by certificate. The
question of law that fell for consideration was whether the
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Act applies only to the case of a Hindu male dying intestate
on or after February 21, 1929 when the Act came into force
or whether it also applies to the case of a Hindu male dying
intestate before the Act came into operation and succeeded
by a female heir who died after that date. It was not
disputed that C held the property absolutely and he died.
intestate.
HELD:Applying the rule laid down by the Judicial Committee
of the Privy Council in Lala Duni Chand’s case the appeal
must be dismissed.
The point of time for the applicability of the Act is when
the succession opens viz. when the life estate terminates.
In consequence the question as to who is the nearest
reversionary heir, or what is the class of reversionary
heirs will fall to be settled at the date of the expiry of
the ownership for life or lives. The death of a Hindu
female life-estate owner ovens the inheritance to the
reversioners and the one most nearly related at the time to
the last full owner becomes entitled to the estate. [961 E]
LI 10SupCI(NP )70-16
9 5 4
The Act accordingly must be held to apply to the case of a
Hindu male dying intestate before the Act came into
operation and succeeded by a female heir who died after that
date. In this case as decided by all the Courts the last
female heir died only on March 25, 1950 and, under the Act,
the plaintiff as the sister’s son of C, was entitled to
succeed to his estate, in preference to the defendant who
was only a paternal uncle. Under the Act the paternal uncle
is postponed to the four relations referred to in the Act,
the last of whom is the sister’s son. [961 G]
It may also be stated, though the question was not raised by
the parties, that in this case the succession can be
considered to have opened even in 1946 on the termination of
the life-estate of C’s mother and accordingly C’s sister
must be considered to have succeeded to the property of her
brother, in her own right as a preferential heir under the
Act, though the estate taken by her was also under s. 3 (b)
only a life estate.[961H]
Lala Duni Chand v. Musammat Anar Kali, L.R. 73 I.A. 187,
followed and applied.
Krishnan Chettiar v. Manikammal, I.L.R.57 Mad. 718, Kanhaiya
Lal v. Mst. Champa Devi A.I.R. 1935 All. 203, Lakshmi v.
Anantharama,I.L.R. 1937 Mad. 948 (F.B.) Rajpali Kunwar v.
Sarju Rai, I.L.R. 58 All. 1041 (F.B.) Annagouda Nathgouda
Patil v. Court of Wards. [1952] S.C.R. 208, 215, Shrimati
Shakuntala Devi v. Kaushalya Devi, I.L.R. 17 Lah. 356,
Pokhan Dusadh v. Mst. Manoa, I.L.R. 16 Pat. 215 (F.B.) and
Bindeshari Singh v. Baij Nath Singh, I.L.R. 13 Luck 380,
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 364 of 1967.
Appeal from the judgment and decree dated October 30, 1961
of the Punjab High Court in Letters Patent Appeal No. 42 of
1959.
G. S. Vohra and Harbans Singh, for the appellants.
Bishan Narain, J. B. Dadachanji, O. C. Mathur and Ravinder
Narain, for the respondent.
The Judgment of the Court was delivered by
Vaidialingam, J.-The short question that arises for
consideration in this appeal, filed by the legal
representatives of the deceased defendant, on certificate,
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is whether on a. true construction of the Hindu Law of
Inheritance (Amendment) Act, 1929 (Act 11 of 1929)
(hereinafter referred to as the Act), it applies only to the
case of a Hindu male dying intestate on or after February
21, 1929 (when the Act came into force) or ’-ether it
applies in the case of a Hindu male dying intestate before
the Act came into operation and succeeded by a female heir
who died after that date.
955
The following pedigree will be useful in appreciating the
relationship of the parties as well as the basis of the
claim made regarding the title to the properties by the
parties.
Dayala
Mohri Tota
Dasondhi Thakur Dass
Kirpa Ram-Bishan Devi Bishnan Bisban Singh
(Defendant)
Charanji Lal Maya Devi-Nand Lal
Charan Dass (Plaintiff)
The respondent-plaintiff instituted Suit No. 41 of 1955 in
the Subordinate Judge’s Court, Jagraon, against the original
defendant for recovery of possession of the suit properties.
According to the plaintiff Kirpa Ram was the last owner of.
the properties. Even during his life-time his only son
Charanji Lal had died. On the death of Kirpa Ram, his widow
Bishan Devi became the owner of the properties and was in
possession of the properties for her lifetime. After the
death of Bishan Devi, her daughter Maya Devi (daughter of
Kirpa Ram and Bishan Devi) became her heir and remained in
possession of the property till her death. After Maya
Devi’s death, according to Dharma Shastras the plaintiff, as
the daughter’s son of Kirpa Ram, was entitled to succeed to
the properties which were in the possession of Bishan Devi
and later on of Maya Devi, his mother. It was alleged by
the plaintiff that the defendant. after the death of Bishan
Devi, claiming to be entitled to the properties of Kirpa
Ram, got mutation in the Revenue Registers effected in his
name on or about January 6, 1947. Therefore, according to
the plaintiff, the defendant had no right title or interest
to the properties of Kirpa Ram and the mutation obtained by
him could not affect the rights of the plaintiff as the
daughter’s son of Kirpa Ram. On these allegations the
plaintiff prayed for a declaration regarding, his title to
the property and for recovery of possession of the same from
the defendant.
The defendant contested the claim of the plaintiff on
various grounds. He alleged that Charanji Lal did not pre-
decease Kirpa Ram but, on the other hand, after the death of
Kiripa Ram,
9 5 6
Charanji Lal, his son, became heir and was in possession of
the properties left by his father. Charanji Lal died long
afterwards, in or about 1926 and, after his death, his
mother Bishan Devi became heir to the property left by
Charanji Lal, for her lifetime. After the death of Bishan
Devi, the defendant claimed that he, as a collateral of
Kirpa Ram, became entitled to the properties of the latter
and, as such, got mutation effected in his favour, according
to law. He further averred that Maya Devi did not at all
come into possession of the estate after the death of Bishan
Devi. In fact the defendant even disputed the fact that
Maya Devi was the daughter of Bishan Devi. Even if Maya
Devi was the daughter of Bishan Devi, the defendant alleged
that according to the custom governing the parties, Maya
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Devi had no right to the properties left by Bishan Devi. On
these allegations, the defendant maintained that he was
rightly entitled to the properties of Kirpa Ram and that the
plaintiff has no cause of action for having the mutation
effected in the Revenue Registers in his favour cancelled.
The Trial Court, by its judgment and decree dated February
22, 1956 decreed the plaintiff’s claim. It found that Maya
Devi was the daughter of Kirpa Ram ands Bishan Devi and that
the plaintiff was the son of Maya Devi. The Trial Court
further ,found that Charanji Lal did not pre-decease his
father Kirpa Ram but, on the other hand, after the death of
Kirpa Ram, Charanji Lal was the last male holder of the
entire property and was in possession, as such, till his
death. It was also further found that the parties were
governed by their personal law and not by custom in matters
of succession. it has been found that Charanji Lal died
issueless on August 22, 1925 arid, after his death, his
mother Bishan Devi was in possession of the property as a
life-estate holder. After her death on November 26, 1946
Maya Devi was in possession of the property, -again as a
life estate holder, till her death on March 25, 1950 Though
no claim was made by the plaintiff to succeed to Charanji
Lal as his sister’s son, and though his claim was to succeed
to the property of Kirpa Ram as the latter’s daughter’s son,
the Trial Court held that on the findings that Charanji Lal
was the last male holder, the -claim of the plaintiff had
really to be decided on the basis of the Act under which the
plaintiff, as the sister’s son of Charanji Lal, has got a
preferential claim. The contention of the defendant that
the Act did not apply inasmuch as Charanji Lal had died long
before the date when the Act came into force (February 21,
1929), was not accepted and the Court took the view that
succession opened in favour of the plaintiff only after the
death of Maya devi in 1950 in this view the trial ale Court
held that the plaintiff, being the sister’s son of the last
in holder (Charanji Lal) was to be preferred to the
defendant who
957
was only a paternal uncle of Charanji Lal and as such,
decreed the suit. -
The defendant carried the matter in appeal before the
learned District Judge, Ludhiana, in C.A.53 of 1956. The
learned Judge, in the judgment dated March 14, 1957, has
stated that the defendant only attacked the finding of the
trial Court that the plaintiff was the daughter’s son of
Kirpa Ram and the findings on the other issues were not
challenged The learned Judge, on this point, agreed with the
finding of the trial Court that Maya Devi was the daughter
of Kirpa Ram and Bishan Devi and that the plaintiff was the
son of Maya Devi. The decree of the trial Court was
confirmed.
The defendant again challenged the decrees of both the
Subordinate Courts before the Punjab High Court in Regular
Second Appeal No. 359 of 1957. Before the learned Single
Judge the appellant raised two contentions : (1) That the
plaintiff never set up any claim as a preferential heir
under the Act being the sister’s on of the last male holder
and, as such. his title should not have been recognised by
the Subordinate Courts; and (2) In any event, the Act does
not apply inasmuch as the last male holder Charanji Lal died
as early as August 22. 1925, long before the coming into
force of the Act on February 21, 1929.
The learned Judge, after a reference to the pleadings, held
that the first contention was well-founded as the plaintiff
claimed title to the properties only as the daughter’s son
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of Kirpa Ram and had even alleged that Charanji Lal had
predeceased his father and no claim as the sister’s son of
Charanji Lal was over made. But, in view of the findings
recorded by the two Subordinate Courts that the plaintiff
was the sister’s son of Charanji Lal who had also been held
to be the last male holder, the learned Single Judge held
that the applicability of the Act did arise for
consideration.
The learned Judge agreed with the , findings of the two
Courts that Charanji Lal was the last male holder of the
properties in question and that he was the absolute owner of
those properties and there was no question of the property
in his hands being coparcenary property. But, regarding the
applicability of the Act, the learned Judge held that as
Charanji Lal died on August 22, 1925 the succession to his
estated must be considered to have opened on the date of his
death and, as the Act came into force only on February 21,
1929 the heirs of Charanji Lal must be found on the date the
succession opened, viz., August 22, 1925; and the heir to
Charanji Lal on that date was
958
his paternal uncle, the defendant. According to the learned
Judge the fact that the life estate of the mother and sister
of Charanji Lal intervened after his death, will not affect’
the rights of the defendant as the Act has no retrospective
operation. For this view, the learned Judge relied on two
earlier decisions, one of the Madras High Court in Krishnan
Chettiar v. Manikammal(1) and the other of the Allahabad
High Court in Kanhaiya Lal v. Mst. Champa Devi(1) holding
that the Act applied only to the case of a Hindu Male dying
intestate on or after February 21, 1929. In this view the
learned Judge, by his judgment dated November 18, 1958 held
that the rightful heir to the estate of Charanji Lal was the
defendant and reversed the decrees of the two Subordinate
Courts and dismissed the plaintiff’s suit with costs
throughout.
The plaintiff-respondent carried the matter in Letters
Patent Appeal No. 42 of 1959 before a Division Bench of the
Punjab High Court. The Division Bench noticed that the
decisions relied on by the learned Single Judge had been
over-ruled by Full Bench decisions of the same Courts in
Lakshmi v.,,- Anantharama (3 ) and Rajpali Kunwar v. Sarju
Rai (4 ) , where it had been held that under the Hindu Law
it is the death of the female heir that opens inheritance to
the reversioners who, till, then possess only an inchoate
right, generally termed a spes successions. It has been
further held that the Act will apply even to cases where the
last male-holder dies intestate before the passing of the
Act and the limited female heir is alive after the coming
into force, of the Act, as the succession to the deceased
male member must be considered to open only after the
passing of the Act and will .be governed by the provisions
of the Act. Following these decisions, the Division Bench
reversed the judgment of the learned Single Judge and
decreed the plaintiff’s suit for possession holding that
under the Act the plaintiff, being the sister’s son of the
last male holder Charanji Lal, was the preferential heir.
Mr. Vohra, learned counsel for the appellant, no doubt urged
that the interpretation placed upon the Act by the Division
Bench is erroneous. According to him the Act will apply
only to cases of Hindu male dying intestate after the Act
came into force, i.e., after February 21, 1929; and, in this
case as Charanji Lal died on August 25, 1925 long before the
Act came into force, succession to his estate opened on the
date of the death of Charanji La] and on that date the
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defendant, in Hindu Law,. was entitled to succeed to the
estate.
(1) I.L.R. 57 Mad. 718.
(3) I.L.R. [1937] mad 948. (F.B.)
A.I.R. 1935 All. 203.
(4) I.L.R. 58 All. 1041 (F. B.)
959
Mr. Bishan Narain, learned counsel for the plaintiff-respon
dent pointed out that it was rather unfortunate that the
later full Bench decisions of the Madras and Allahabad High
Courts were not brought to the notice of the learned Single
Judge who had followed the decisions of those Courts which
had been subsequently over-ruled. The learned Counsel also
pointed out that according to the decisions of the various
High Courts, the view taken by the Letters Patent Bench was
correct.
We are of the opinion that the decision of the Letters
Patent Bench is correct. No doubt, originally the view
taken by some of the High Courts was that the Act applies
only if the last male holder dies after the coming into
force of the Act and it will have no retrospective
application to cases of Hindu males dying intestate before
the date of the Act. That view has now been given the go-by
as is seen from the later decisions to which we shall refer
presently. But before we refer to those decisions,we shall
quote the observations of this Court in Annagouda Nathgouda
Patil v. Court of Wards(1) regarding the object and scope of
the Act. This Court observed
"The object of the Act as stated in the
preamble is to alter the order in which
certain heirs of a Hindu male dying intestate
are entitled to succeed to his estate; and
section 1(2) expressly lays down that ’the Act
applies only to persons who but for the
passing of this Act would have been subject to
the Law of Mitakshara in respect of the
provisions herein enacted, and it applies to
such persons in respect only of the property
of males not held in coparcenary and not
disposed of by will’. Thus the scope of
the Act is limited. It governs succession
only to the separate property of a Hindu male
who dies intestate. It does not alter the law
as regards the devolution of any other kind of
property owned by a Hindu male .... It is to
be noted that the Act does not make these four
relations statutory heirs under the Mitakshara
Law under all circumstances and for all
purposes: it makes them heirs only when the
propositus is a male and the property in
respect to which it is sought to be applied is
his separate property."
The four relations, referred to in the above extract, are :
the son’s daughter. daughter’s sister and sister’s son.
Under the Mitakshara Law, in the line of heirs, the paternal
uncle came just after the paternal grandfather and his son
followed him immediately. But, by the Act, the four
relations mentioned above have been introduced between the
grandfather and the
(1) [1952] S.C.R. 208, 215.
9 6 0
paternal uncle and his son. That is, the paternal uncle and
his son are postponed to these four relations by the Act.
In the case before us we have already pointed out that
Charanji Lal was the absolute owner of the property and
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therefore there was no question of the property being held
in coparcenary .and there is no controversy that the
property was not -disposed of by will by Charanji Lal.
Therefore, prima facie the Act will apply to the estate of
Charanji Lal if it can be held that the succession to his
estate opened only when his sister Maya Devi died on March
25, 1950.
The question is : When did succession open to the estate of
Charanji Lal. Was it on the date when he died, i.e., August
22, 1925; or was it when his sister Maya Devi died, viz.,
March 25, 1950?
In this connection we may refer to the decisions in Shrimati
Shakuntala Devi v. Kaushalya Devi(1);Rajpali Kunwar v. Sarju
Rai (2) ; Pokhan Dusadh v. Mst. Manoa ( 3 ) ; Lakshmi v.
Anantharama(1) and Bindeshari Singh v. Baij Nath Singh(5).
In all these cases the last mate holder had died before the
date of the Act and the estate was in the possession of a
life-estate holder either a widow or a mother who died after
the coming into force of the Act. It has been held in all
these decisions that the succession to the estate of the
last male-holder must be considered to open only on the
termination of the life-estate and the Act will apply in
considering the heirs of the last male holder at the
termination of the life estate.
It is not necessary for us to refer to any of these
decisions in great detail as the matter has been considered
by the Judicial Committee of the Privy Council in Lala Duni
Chand v. Musammat Anar Kali(1). The Judicial Committee has
held that the Act, which altered the order of succession of
certain persons mentioned therein and which came into
operation on February 21, 1929 applies not only to the case
of a Hindu male dying intestate on or after February 21,
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 Judicial Committee, has further
held that succession in such cases to the estate of the
’last Hindu male who died intestate did not open until the
death of the life-estate holder. It has also been held that
during the life-time of the life-estate holder, the
reversioners in Hindu Law have no vested interest in the
estate land that they have a mere
(1) I.L.R. 17 Lah. 356.
(3) I.L.R. 16 Part. 215 F.B.
(5) I.L.R. 13 Luck. 380.
(2) I.L.R. 58 All. 1041 F.D.
(4) I.L.R. [1937] Mad. 948 F.B
(6) L.R. 73 I.A. 187.
9 6 1
spes successions. It was contended before the Judicial Com-
mittee that the words ’Hindu male dying intestate’ was
occurring in the preamble to the Act connotes the future
tense, of a Hindu male dying after the Act has come into
force. This contention was rejected by the Judicial
Committee, which observed as follows :
"In the argument before their Lordships
reliance was placed on the words ’dying
intestate’ in the Act as connoting the future
tense, but their Lordships agree with the view
of the Lahore High Court in Shrimati Shakun-
tala Devi v. Kaushalaya Devi (ILR 17 Lah 356)
that the words are a mere description of the
states of the deceased and have no reference,
and are no-, intended to have any reference,
to the time of the death of a Hindu male. The
expression merely means "in the case of
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intestacy of a Hindu male". To place this
interpretation on the Act is not to give a
retrospective effect to its provisions, the
material point of time being the date when the
succession opens, namely, the death of the
widow."
We are in entire agreement with the above observations of
them Judicial Committee and accordingly hold that the point
of time for the applicability of the Act is when the
succession opens, viz., when the life estate terminates. In
consequence, it must be further held that the questions as
to who is the nearest reversionary heir, or what is the
class of reversionary heirs will fall to be settled at the
date of the expiry of the ownership for life or lives. The
death of a Hindu female life-estate holder opens the
inheritance to the reversioners and the one most nearly
related at the time to the last full owner becomes entitled
to the estate.
We hold that the Act applies also to the case of a Hindu
male dying intestate before the Act came into operation and
has been succeeded by a female heir who died after that
date. In this case, on the findings recorded by all the
Courts, the last female heir died only on March 25, 1950
and, under the Act, the plaintiff, as the sister’s son of
Charanji Lal, is entitled to succeed to his estate, in
preference to the defendant who is only a paternal uncle.
We have already pointed out that the paternal uncle is
postponed to the four relations referred to in the Act, the
last of whom is the sister’s son.
Before we conclude, we may state that in this case the suc-
cession can be considered to have opened even on November
26, 1946 when Bishan Devi’s (the mother’s) life estate
terminated and it must be held that even Maya Devi, the
sister of Charanji
9 6 2
Lal, must be considered to have succeeded to the property of
her brother, in her own right as a preferential heir under
the Act, though the estate, taken by her under S. 3(b) will
only be a life-estate. No doubt these aspects have not been
raised before any of the Courts, nor even before us.
The result is that the decision of the Letters Patent Bench
of the High Court is correct. In consequence the appeal
fails and is dismissed with costs.
G.C.
Appeal dismissed.
963