Full Judgment Text
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PETITIONER:
BHAJYA S/O SHYAMA KANBI
Vs.
RESPONDENT:
GOPIKABAI AND ANR. ETC.
DATE OF JUDGMENT04/04/1978
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
UNTWALIA, N.L.
KAILASAM, P.S.
CITATION:
1978 AIR 793 1978 SCR (3) 561
1978 SCC (2) 542
CITATOR INFO :
RF 1989 SC 222 (3)
RF 1989 SC 516 (49)
RF 1991 SC2301 (8)
ACT:
Madhya Pradesh Land Revenue Code, (Code 11 of 1955), 1954
Section 151 r/w S. 4(2) of Hindu Succession Act (Act 30),
1956-Interpretation of the words ’subject to his personal
law’ in Section 151, which provides "subject to his personal
law, the interest of a tenure holder shall, on his death,
pass by inheritance, survivorship or bequest as the case may
be"-Whether referable to Hindu Succession Act, 1956-
Legislation by referential incorporation Categories of such
legislation-"Personal law" includes Hindu Succession Act
Hindu Success-ion Act, 1956, Sections 8, 15 & 16.
HEADNOTE:
The suit land which originally belonged to Ghusya, who died
before the Settlement of 1918, came into the possession of
his son Punjya. On Punjya death in the year 1936, the
holding devolved on his widow Smt. Sarji who continued in
possession of the same till her death on 6-11-1956. On the
death of Sariji the defendants entered into wrongful
possession of the land. Smt.Gopikabai, claiming inheritance
to the Bhumidari interest of Smt. Sarij deceased,
as the daughter of the sister of the last male holder.
Punjya, filed a suit for prossetion of the suit land
and also for the value of the crop. The defendants
contested the suit claiming that they were Sapindas of the
last male holder, Punjya (being his father’s brother’s son’s
son), and as such were under the Hindu Law as prevailing on
the date of Punjya’s death, entitled to succeed to the
interest of the deceased tenure holder by virtue of section
151 of the M.P. Land Revenue Code 1954, the operation of
which had been saved by Section 4 (2) of the Hindu
Succession Act, 1956.
The Trial Court decreed the suit; but on appeal the
Additional District Judge set aside the decree of the trial
Court and dismissed the suit. The High Court, in Second
Appeal, restored the trial Court’s decree holding that the
plaintiff came under Clause (b) of Section 8 of the Hindu
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Succession Act, and as such, was entitled to succeed in
preference to the defendants who are agnatic relatives
coming under clause (c) of that Section.
Dismissing the appeal by special leave the Court
HELD : (1) From the conspectus of Ss. 2(7), 2(19), 2(20) and
Ss. 145, 147, 148, 151, 168, 172 of Madhya Pradesh Land
Revenue Code, 1954, the following points emerge clear : (i)
A ’tenure-holder’ and a ’tenant’ have been separately and
distinctly defined in clauses (20) and (19) of s. 2 of the
1954 Code. A ’tenant’ according to the definition, holds
land from a tenure-holder, but a ’tenure-holder holds-and
directly from the State. (ii) A bhumiswami/ Bhumidhari pays
land revenue to the State and not rent; (iii) Tenancy rights
and rights of Bhumiswami/Bhumidhari are dealt with in
separate Chapters of the Code. Bhumiswami/Bhumidharies have
permanent heritable and transferable rights in the land
which cannot be taken away, except in certain cases.
[565 G, 566 E-F]
(2) Even on the assumption, that S. 151 of the 1954 Code is
a law for evolution of tenancy rights in agricultural
holdings, the section itself, in terms, makes personal law
by general reference applicable in the matter of the
devolution of the interest of a deceased tenure holder
(i.e. Bhumiswami and Bhumidhar).
Smt. Indubai v. Vyankati Vithoba Sawadhu and Ors.. A.I.R.
1966 Bom. 64 Kumari Ramlali v. Mst. Bhagunti Hat and Ors.
A.I.R. 1968, M.P. 247 and Nahar Nirasingh and Ors. v. Mst.
Dukalhim & Ors., A.I.R. 1974 M.P. 141 referred to.
(3) (a) There are no words in section 151 or elsewhere in
the Code which. limit the scope of the expression "personal
law" to that prevailing on February’ 5, 1955. On the
contrary the words "on his death" used in s. 151 clearly
show’
562
that the legislative intent was that "personal law" as
amended upto the date on which the devolution of the tenure
holders interest is to be determined, shall to the rule of
decision. [567 H, 568 A]
(b) The Legislature can legislate on a subject by
referential incorporation, if that subject is
constitutionally within its legislative competence. Section
151 is an instance of legislation by such method. The
State Legislature enacted the 1954 Code in exercise of its
power under Entry V in the Concurrent List. The 1954 Code
had also received the assent of the President under Art.
254(2) of the Constitution. [567 E-G]
(c) Broadly speaking legislation by referential
incorporation falls in two categories : First, where a
statute by specific reference incorporates the provisions of
another statute as of the time of adoption.Second where a
statute incorporates by general reference the law concerning
a particular subject, as a genus. In the case of the
former,the subsequent amendments made in the referred
statute cannot automatically be read into the adopting
statute. In the case of latter category,it may be presumed
that the legislative intent was to include all the
subsequent amendments also, made from time to time in the
generic law on the subject adopted by general reference.
[568 B-C]
(b) Constructed in accordance with the above principle, the
expression "personal law" referred to in Section 151 of the
Code, comprehends the Hindu Succession Act, 1956, which
will undoubtedly govern the inheritance to the ,estate’ of
Smt. Sarji who died on November 6, 1956, much after the
coming into force of that Act. F568F-G]
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Smt. Indubai v. Vyankati Vithaba Sawadha and Ors., A.1.R.
1966 Bom. 64, Kumari Ramlali v. Mst. Bhagunti Bai and Ors.,
A.I.R. 1968 M.P. 247 and Nahar Hirasingh and Ors. v. Mst.
Dukalhin and Ors.. A.I.R. 1974 M.P. 141; approved.
(4) Reading Section 15 with rule 3, set out in s. 16, the
instant case will fall under Cl. (b) Sub-s. (2) of s. 15
because Shrimati Sarji died issueless and intestate. The
interest in the suit property was inherited by her from her
husband. The suit land will, therefore, under Cl.(b) go to
the heirs of her husband, Punjya. [569 G-H]
(5)The expression "heirs" of the husband used in S. 15 is to
be construed with reference to the date on which the
succession opens out and not with reference to the date of
the husband’s death. Once it is found that the case falls
under s. 15(2)(b) of the Hindu Succession Act, the fiction
envisaged in Rule 3 of Section 16 is attracted, according to
which, for the purpose of ascertaining the order of
devolution it is to be deemed as if the husband had died
intestate immediately after the female intestate’s death.
[569 A, E, 570 B]
(6) Section 8 of the Act provides that the property of a
male Hindu dying. intestate shall devolve according to the
provisions of this chapter :-
(a) Firstly. upon the heirs, being the
relatives specified ill Class 1 of the
Schedule;
(b) Secondly, if there is no heir of Class 1,
then upon the heirs, being the relatives
specified in Class 11 of the Schedule;
(c) Thirdly, if there is no heir of any of the
two classes then upon the agnates of the
deceased and,
Lastly, if there is no agnate, then upon the
cognates of the
deceased."
Now, Smt. Gopikabai, Respondent No.1 is admittedly the
daughter of the sister of the last male holder, Punjya;
whereas the, appellants are his remote agnates. Neither
party falls under Class 1 of the Schedule. ’Sister’s
daughter’ is Item 4 of Entry V in Class II of the Schedule;
while agnates do not figure anywhere in Class III. Thus,
Smt. Gopikabai’s case will come in Clause (b); Secondly, of
S. 8 and, as such, she will be a preferential heir of the
husband of Smt. Sarji, if he had died the moment after her
death on November 6, 1956. In this view. she would exclude
the defendants from inheritance even
563
according to ’personal law’ which, within the contemplation
of s. 151 of the Code, will include the Hindu Succession
Act, 1956, in force at the time when Smt Sarji died and
succession opened out. [570 C-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2415 of
1968.
Appeal by Special Leave from the Judgment and Decree dated
10-7-68 of the Madhya Pradesh High Court in Second Appeal
No. 3773 of 1962.
Y. K. Sanghi, A. G. Ratnaparkhi and G. L. Sanghi, for the
Appellant.
U. R. Lalit, Y. N. Ganpule and Yeena Devi (Mrs.) Khanna, for
the Respondent No. 1.
The Judgment of the Court was delivered by
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SARKARIA J.-This appealing directed against a judgment of
the,High Court of Madhya Pradesh.
The following is the genealogy of the parties
Dewaji
-----------------------------------------------------------
Jiwaji Dhondya Ghusya
(wife Jhuli)
Shioba Shyam -----------------
Punjya Turji
(last Male (Wd/o Janaji)
Holder
Sonu Bhajya
(Deft. No. 2) (Deft No. 1) =Smt. Sarji
Gopikabai
(Wife of Mukundrao
Pltff.-respdt. 1)
Smt. Gopikabai wife of Mukundrao, shown in the above
pedigree-table, filed a suit in the Court of the Civil
Judge, Multai, against the defendant-appellant, Bhajya, and
Sonu, respondent 2, for possession of Bhumiswami rights in
the land comprised in Khasra Nos.31 and 166 in the area of
Village Kuthkhedi, Tehsil Multai, District Betul, Madhya
Pradesh.
The suit land originally belonged to Ghusya son of Dewaji.
Ghusya died before the Settlement of 1918 and thereafter,
this land was held by his son, Punjya, who died in the year
1936. On Punjya’s ,death, the holding devolved on Punjya’s
widow, Smt. Sarji Smt. Sarji died on November 6, 1956, and
thereupon this dispute about the inheritance to the land
left behind by Smt. Sarji, has arisen between the
parties. Both the parties claim on the basis of Hindu Law.
The plaintiff-respondent, Smt. Gopikabai, claims that she
being the daughter of Smt. Turji, a sister of the last male
holder, Punjya, is an heir under Section 15 read with
Section 2 (II) (4) (iv) of the Schedule referred to in
Section 8 of the Hindu Succession Act, 1956, whereas the
defendants claim as sapindas of the last male holder under
Mitakshra Law.
It is alleged by the plaintiff that Bhajya and Sonu,
defendants, took forcible possession of the suit land after
the death of Smt. Sarji.
564
Apart from possession, the Plaintiff claimed Rs. 180/- as
damages for the crop removed by the defendants.
The defendants’ case, as laid in the, written statement, was
that the suit property being an agricultural holding , in
view of Section 4(2) of the Hindu Succession Act, the
inheritance to the estate of Smt. Sarji who died on
November 6, 1956, will not be governed by the provisions of
that Act, but by Mitakshra School of Hindu Law, according to
which the defendants are entitled to suit land to the
exclusion of the last male holder’s sister’s daughter, the
plaintiff.
The trial court decreed Smt. Gopikabai’s claim. On appeal,
the Additional District Judge set aside the decree of the
trial court and dismissed the respondent’s suit.
In second appeal by the plaintiff, the High Court following
its earlier decision in Kumari Ramlali v. Mst. Bhagunti
Bai(1) held "that Bhumiswami and Bhumidhari rights are not
tenancy rights and Section 151 of the Madhya Pradesh Land
Revenue Code, 1954, which deals with the devolution of
interest of a Bhumiswami or a Bhumidhari tenure-holder,
cannot be regarded as a provision dealing with the
devolution of tenancy rights. Section 4(2) of the Hindu
Succession Act, 1956, in no way saves Section 151 of the
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Madhya Pradesh Land Revenue Code and it cannot be held that
Section 14 of the Hindu Succession Act does not affect the
personal law according to which the devolution of the
interest of a tenure-holder passes under Section 151 of the
Code." The High Court further held that the expression
"heirs of the husband" in Section 15(1) (b), as also in
Section 15 (2) (b), refers to the heirs of the deceased
husband, who would have succeeded under the provisions of
the Hindu Succession Act, 1956, if the husband had died on
the date on which the female intestate actually died. On
these premises, the High Court held that the plaintiff, Smt.
Gopikabai, falls within clause (b) of Section 8, and, as
such, is entitled to succeed in preference to the defendant-
agnates coming under clause (c) of that Section. In the
result, the plaintiff’s appeal was allowed and the decree of
the trial court was restored.
Hence, this appeal by special leave.
The contentions canvassed before us by Mr. Sanghi, learned
counsel for the appellants, are as under
(i) Section 151 of the Madhya Pradesh Land Revenue Code,
1954 (in short, the Code) was a law for the devolution of
tenancy rights in agricultural holdings, because under the
scheme of the Code, Bbumiswamis and Bhumidaris were tenure-
holders who could be included in the term "tenants". [Nahar
Hari Singh v. Dukallun(2) and Sitabai v. Kothulal(2) were
cited].
(ii) In view of the position stated at no. (i), Section 4(2)
of the Hindu Succession Act, 1956, (for short called ’the
Act) saved
(1) L.P.A. 6 of 1965 decided on April 20,1968.
(2) A.I.R. 1974 M.P. 141 (F.B.).
(3) A.I.R. 1959 Bom. 78.
565
Section 151 of the Code. Therefore, devolution of the
agricultural holding left behind by the deceased tenure-
holder 9 will be governed by Section 151 of the Code and not
by anything provided in the Act.
(iii) The expression ’Personal Law’ in Section 151 of the
Code means the Hindu law which was in force before the
enactment of the Act, when the Code was enacted on February
5, 1955, because the words "any law for the time being in
force" in sub-section (2) of Section 4 of the Act cannot be
construed to mean any law which came into force
subsequently.
(iv) In view of no. (iii), under Mitakshra Law (Sans the
Act) the respondent being the daughter of the sister of the
last male-holder, will be excluded from succession by the
appellants, who are agnates of the husband of Smt. Sarji,
deceased.
(v) Even if the Act applies, the expression "heirs of the
husband" in Section 15, means heirs in accordance with the
general Hindu law in force when the husband died, and not
the heirs ascertained under Section 8 by fictionally
postponing Punjya’s death of 6th November, 1956, when Smt.
Sarji died (Kampiqh v. Girigamme(1) relied upon).
As against this, Mr. Lalit submits that-
(a) Section 151 of the Code is not a law dealing with
devolution of tenancy rights in agricultural holdings and,
as such,is not covered by the saving clause in Section 4(2)
of the Act. Section 151 is confined to the devolution of
the interest of a ’tenure-holder’, the concept of which
under the scheme of the Code, is different and distinct from
a ’tenant. Chapter XI of the Code deals with ’tenants’,
while Chapter XII (in which Section 151 is placed) deals
with ’tenure-hold%-.--.’.
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(b) Even if a ’tenure-holder’ includes a ’tenant’, then
also, Section 151 of the Code by reference makes the
devolution of the interest of a deceased tenure holder
"subject to his personal law" as on his death. Since Smt.
Sarji died on November. 6, 1956, the ’personal law’ which
will govern the inheritance to her estate, is Hindu law, as
modified by the Hindu Succession Act, 1956, Under Section 15
read with Section 8 of the Act, Respondent no.1 being a
preferential heir, will exclude the appellants from
inheritance to the estate of Smt. Sarji.
Before dealing with these contentions, it will be profitable
to have a look at the relevant provisions of the Madhya
Pradesh Land Revenue Code, 1954.
"a Section 2 (7) of the Code defined a ’Holding’ to mean,
inter alia, a parcel of land separately assessed to land
revenue". Section 2(20) defined a ’Tenure-holder’as"’a
person holding land from the State Government as a
Bhumiswami or a Bhumidhari". Section 2(19) defined a
’Tenant’ as "a person holding land from a tenure-holder as
an ordinary or an occupancy tenant under Chapter XIV’.
Chapter XII dealt with tenure-holders. In that Chapter,
Section 145 provided that there shall be two classes of
tenure-holders of
(1) A.I.R. 1966 Mysore 189.
566
lands held from the State, namely, (i) Bhumiswami and (ii)
Bhumidhari. Sections 146 and 147 indicated the persons who could be descr
ibed as Bhumiswamis and Bhumidharis. Section
148 provided that every person becoming a Bhumiswami or
Bhumidhari, shall pay as land revenue-
(a) if he was paying land revenue in respect
of the lands held by him-such land revenue,
(b) if he was paying rent in respect of the
land held by him-an amount equal to such rent.
It may be noted that Chapter XII of the Code further
contains provisions for transfer of Bhumiswami or Bhumidhari
rights and partition of Bhumiswami and Bhumidhari holdings
when there are more than one, tenure holder. Tenancy rights
are not dealt with in this Chapter, but separately in
Chapter XIV Sections 168 and 172 in Chapter XIV deal with
the devolution of rights of an ordinary tenant and an
occupancy tenant. Those rights also pass on the death of a
tenant in accordance with the personal law of the deceased.
Section 151, which is in Chapter XII, runs
thus :
"Subject to his personal law, the interest of
a tenure holder shall on his death pass by
inheritance, survivorship or bequest, as the
case may be."
From the above conspectus, the following
points emerge clear:
(i) A ’tenure-holder and a ’tenant’ have been separately and
distinctly defined in clauses (20) and (19) of Section 2 of
the 1954 Code. A ’tenant’ according to the definition,
holds land from a tenure-holder, but a ’tenure-holder’ holds
land directly from the State.
(ii) A Bhumiswami/Bhumidhari pays land revenue to the State
and not rent.
(iii)Tenancy rights and rights of Bhumiswami/Bhumidhari are
dealt with in separate Chapters of the Code.
Bhumiswamis/Bhumidharies have permanent heritable and
transferable rights in the land which cannot be taken away,
except in certain cases.
There is a conflict of judicial opinion as to whether
Chapter XII in general and Section 151 in particular, is a
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law "for the devolution of tenancy rights in respect of
agricultural holdings" within the saving clause in Section
4(2) of the Hindu Succession Act, 1956.
A Division Bench of the Bombay High Court (at Nagpur) in
Smt. Indubai v. Vyankati Vithoba Sawadha & Ors.(1), held
that the aforesaid provisions in the 1954 Code ate not such
a law and the exception made in section 4(2) of the Act,
cannot apply to them.
In view of the distinctive features of the rights of a
tenure-holder, a Division Bench of the Madhya Pradesh High
Court, also, in Kumari Ramlali v. Mst. Bhagunti Bai &
Ors.(2), took the same view, and held that Section 151 of
the Code, which deals with devolution of
(1) A.I.R. 1966 Bom. 64.
(2) A.I.R. 1968 M. P. 247.
567
the interest of a Bhumiswami or Bhumidhari tenure-holder, is
not a provision dealing with devolution of tenancy rights’
within the contemplation of Section 4(2) of the Act.
A Full Bench of the Madhya Pradesh High Court in Nahar
Hirasingh & Ors. v. Mst. Dukalhin & Ors.(1), by a majority
of two against one, however, over-ruled on this point, the
decision in Kumari Ramlali v. Mst. Bhagunti (ibid) and
dissented from the Bombay view. But the Full Bench was not
concerned with the interpretation of section 151 of the 1954
Code. The provision, the interpretation of which was in
question before, the Full as Section 164 of the Madhya
Pradesh Land Revenue Code 1959 as it stood before its
amendment in 1961. Whereas Section 151 of the 1954 Code, in
terms, provided that personal law would be applicable in the
matter of do devolution of the interest of a tenure holder
(i.e. Bhumiswami and Bhumidhari), Section 164 of the, Code
of 1959 (which had repealed and replaced the Code of 1954),
as it stood at the material time, commenced not only with a
non-obstante clause militating against the application of
personal law, but also provided its own list of heirs and
order of succession, which was different from that laid down
in the, Hindu Succession Act, 1956.
Be that as it may, for the purpose of deciding the case
before us, it is not necessary to pronounce one way or the
other, on the question whether Section 151 of the 1954 Code
is a law for devolution of tenancy rights in agricultural
holdings, because even on the assumption that it is such a
law, Section 151 of the 1954 Code, itself, in terms, makes
personal law applicable in the matter of. the devolution of
the interest of a deceased tenure holder. Well then, does
the expression "personal law" mentioned in Section 151, in
the case of Hindus, means is contended by Mr. Sanghi-Hindu
law as obtaining on February 5, 1955 when the 1954 Code came
into force? Or, does it mean Hindu law, as amended by the
Hindu Succession Act, prevailing on November 6, 1956, when
Smt. Sarji died ?
It is well known that a Legislature can legislate on a
subject by referential incorporation, if that subject is
constitutionally within its legislative competence. Section
151 is an instance of legislation by such method. The State
Legislature’ enacted the 1954 Code in exercise of its power
under Entry 5, in the Concurrent List (i.e. List III), which
reads as under
"5. Marriage and divorce; infants and minors;
adoption; wills, intestacy and succession;
Joint family and partition; all matters in
respect of which parties in Judicial
proceedings were immediately before the co-
mmencement of ibis Constitution subject to
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their personal’ law."
The 1954 Code had also received the assent of the President
under Article 254(2) of the Constitution.
The questions posed above turn on an interpretation of the
language of &Won 151. ’Mere are no words in that Section or
elsewhere
(1) A.I.R. 1974 M.P. 141
568
on the Code, which limit the scope of the expression
"personal law" to that prevailing on February 5, 1955. On
the contrary, the words " on his death" used in Section 151,
clearly show that the legislative intent was that ’personal
law’ as amended upto the date on which the revolution of the
tenure holder’s interest is to be determined, shall be the
rule of decision.
Broadly speaking, legislation by referential incorporation
falls in two categories : First, where a statute by specific
reference incorporates the provisions of another statute as
of the time of adoption. Second, where a statute
incorporates by general reference the law concerning a
particular subject, as a genus. In the case of the former
the subsequent amendments made in the referred statute can
not automatically be read into the adopting statute. In the
case of latter category, it may be presumed that the
legislative intent was to include all the subsequent
amendments also, made from time to time in the generic law
on the subject adopted by general reference.This principle
of construction of a referred statute has been neatly summed
up by Sutherland, thus
" A statute which refers to the law of a
subject generally adopts the law on the
subject as of the time the law is invoked.
This will include all the amendments
and modifications of the law subsequent to the
time the reference statute was enacted."
(Vide, Sutherland’s Statutory Construction,
Third Edition, Article 5208, page 5208).
Corpus Juris Secundum also enunciates the same principle in
these terms
".....Where the reference in an adopting
statute is to the law generally which governs
the particular subject, and not to any
specific statute or part thereof, . . . ...the
reference will be held to include the law as.
it stands at the time it is sought to be
applied, with all the changes made from time
to time, at least as far as the changes are
consistent with the purpose of the adopting
statute."
Constructed in accordance with the above principle, the
expression law" referred to in Section 151 of the Code,
comprehends the Hindu Succession Act 1956, which will
undoubtedly govern the inheritance to the ’estate of Smt.
Sarji who died on November 6, 1956, much after the coming
into force of that Act. If we can say so with due
deference, the view taken on this point by the Bombay High
Court in Smt. Indubai’s case (ibid) and by the Madhya
Pradesh High Court in Kumari Ramali’s case (supra) and by
Tare C.J. in Nahar Hirasingh’s case (ibid) is correct.
The further question to be considered is which of the
parties is entitled to succeed to the interest of Smt.
Sarji deceased under the Hindu Succession Act, 1956 ?
569
The General Rules of succession in the case of a female
Hindu dying intestate are given in Section 15 of the Act,
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which so far as it is material for the purpose, reads as
follows :-
"15 (1) The property of a female Hindu dying intestate shall
devolve according to the rules set out in Section 16-
(a) upon the sons and daughters (including the children of
any predeceased son or daughter) and the husband;
(b) upon the heirs of the husband;
(c) to (e)
(2) Notwithstanding anything contained in sub-section
(1),-
(a)..............................
(b) any property inherited by a female Hindu from her
husband or from her father-in-law shall devolve, in the
absence of any son or daughter of the deceased (including
the children of any predeceased son or daughter) not upon
the other heirs referred to ’in sub-section (1) in the order
specified therein, but upon the heirs of the husband."
This Section should be read along with the Rules set out in
Section 16, the material part of which runs as under :
"The order of succession among the heirs
referred to in Section 15 shall be, and the
distribution of the intestate’s property among
those heirs shall take place according to the
following rules, namely :-
"Rule 1........
Rule 2..........
Rule 3.-The devolution of the property of the
intestate on the heirs referred to in clauses
(b), (d) and (e) of sub-section (1) and in
sub-section (2) of Section 15 shall be in the
same order and according to the same rules as
would have applied if the property had been
the father’s or the husband’s as the case may
be, and such person had died intestate in
respect thereof immediately after the
intestate’s death."
(Emphasis supplied)
The instant case will fall under clause (b), sub-section (2)
of Section 15, because Smt. Sarji died issueless and
intestate. The interest in the suit property was inherited
by her from her husband. The suit land will, therefore,
under clause (b), go to the heirs of her husband, Punjya.
2-315SCI/78
570
The next question is, whether "the heirs of the husband" in
Section 15 are to be with reference to the date of
Punjyas demise in 1936, or with reference to the date of
Shrimati Sarji’s death on November 6, 1956, when succession
opened out.
There appears to be some divergence of opinion among the,
High Courts on this point. We are however of opinion that
once it is found that the case falls under Section 15 (2)
(b), the fiction envisaged in Rule 3 of Section 16 is
attracted, according to which, for the purpose of
ascertaining the order of devolution, it is to be deemed as
if the husband had died intestate immediately after the
female intestate’s death. Bearing this fiction in mind we
have then to go to the Schedule under Section 8 of the Act
to find out as to who would be the heirs of Smt. Sarji’s
husband on the date of her death. Section 8 of the Act
provides that the property of a male Hindu dying intestate
shall devolve according to the provisions of this Chapter :-
"(a) Firstly, upon the heirs, being the
relatives specified in Class 1 of the
Schedule;
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(b) Secondly, if there is no heir of Class 1,
then upon the heirs, being the relatives
specified in Class II of the Schedule;
(c) Thirdly, if there is no heir of any of the
two classes*, then upon the agnates of the
deceased; and
Lastly, if there is no agnate, then upon the
cognates of the deceased."
Now, Smt. Gopikabai, Respondent 1 is admittedly the
daughter of the sister of the last male holder, Punjya;
whereas the appellants are his remote agnates. Neither
party falls under Class I of the Schedule. ’Sister’s
daughter’ is Item 4 of Entry IV in Class II of the Schedule;
while agnates do not figure anywhere in Class II. Thus,
Smt. Gopikabai’s case will come in clause ’(b) Secondly’,
of Section 8 and, as such, she will be a preferential heir
of the husband of Smt. Sarji, if he bad died the moment
after her death on November 6, 1956. In this view, she
would exclude the defendants-agnates from inheritance even
according to ’personal law’ which, within the contemplation
of Section 151 of the Code, will include the Hindu
Succession Act, 1956, in force at the time when Smt. Sarji
died and succession opened out.
In the result, we affirm the judgmentand decree of the
High Court and dismiss this appeal with costs.
S.R. Appeal dismissed.
571