Ramachandra Bhat and Another vs Srideviamma and Others

Venkataramiah, J.—The question referred to the Full Bench for its opinion is:

Whether the provisions of Section 8 of the Hindu Succession Act apply to a case in which a last male holder governed by the Mitakshara Law died intestate in the year 1920 leaving behind him his mother who succeeded him as a limited owner and who died after the coming into force of the Hindu Succession Act, for the purpose of determining the next reversioner to the estate of the last male holder?

The above question arises in the following way. At a partition which took place in 1909 amongst one Krishna, his brother, Vasudeva and his paternal uncle. Shankaranarayana Krishna was allotted certain properties. Krishna died on 23-2-1919 leaving behind him his widow Rukminiamma and a daughter Srideviamma (the plaintiff). At the time of his death Rukminiamma was pregnant and she gave birth to a posthumous male child on 13-9-1919. According to the law in force at that time, the estate of Krishna devolved on his son as his sole heir and hence the child became the full and absolute owner of the same. The child died on 13-1-1920 and his mother, Rukminiamma, succeeded to his estate as a limited owner. The said estate comprised the properties with which we are concerned in these proceedings. On 4-8-1920 a document styled as ''Vyavasthu Pathra'' was executed by Rukminiamma in favour of Vasudeva, the brother of Krishna and Shankaranarayana, one of the sons of Vasudeva. Under that document the properties inherited by her as a limited owner, were transferred to the possession of Vasudeva and his son Shankaranarayana subject to certain conditions. On account of several transfers that followed, the properties were in the possession and enjoyment of defendants 1 and 2 on 17-6-1967 on which date Rukminiamma, the limited owner under whom they claimed, died. After her death, her daughter, Srideviamma, the plaintiff, instituted a suit in O.S. No. 6 of 1968 on the file of the Civil Judge, Mangalore, out of which this appeal arises, for possession of those properties on the ground that she was the nearest heir of the last male holder when her mother. Rukminiamma the limited owner, died and, was therefore entitled to the properties which formed part of the estate of the last male holder and were in the possession of defendants 1 and 2.

One of the pleas taken by defendants 1 and 2 in their written statement was that the plaintiff was not the next heir of the last male holder according to the law in force in 1920 when the last male holder died and hence she could not institute the suit for possession. The contention of the plaintiff was that she was the next heir of the last male holder under the provisions of Section 8 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act of 1956) as she was his sister.

The Court below was of the opinion that the relevant law which should be applied to determine on whom the estate of the last male holder devolved after the death of the limited owner was the law in force on the date of death of the limited owner and not the law in force on the date of death of the last male holder. Accordingly it found that the provisions of Section 8 of the Act of 1956 were applicable to the case on hand and that the plaintiff was the next heir of the last male holder. The Court below therefore made a decree in favour of the plaintiff.

Aggrieved by the decree passed by the Court below, defendant 2 and defendant 3 who was brought on record as one of the legal representatives of defendant 1, have filed this appeal.

When the above appeal was heard by a Division Bench of this Court, defendants 2 and 3 relied upon the decision of this Court in Kempiah and Another Vs. Girigamma and Another, in which it had been held that where the last male holder died before the Act of 1956 came into force and the subsequent woman''s estate came to an end after the coming into force of the Act of 1956, the question as to who would be the next heir to the estate of the last male holder, should be determined in accordance with the law in force on the date of the actual death of the last male holder and not by the provisions of the Act of 1956 and contended that in the absence of any evidence that there was no other nearer heir of the last male holder as the law stood in 1920, the plaintiff had to fail. The Division Bench which heard the appeal having expressed its disagreement with the view expressed in Kempiah and Another Vs. Girigamma and Another, referred the question set out above for the opinion of the Full Bench. That is how this matter has come up before this Full Bench.

Under the Hindu Law if the next heir of the last male holder is a male, he takes the estate of the last male holder immediately and on his death, devolution is traced from him. That means he is treated as a fresh stock of descent. If the next heir of the last male holder is a female, she cannot except in Bombay become a fresh stock of descent. After her death the estate does not pass to her heirs but to the heirs of the last male holder. If that heir is also a female, it reverts again to the heir of the last male holder. The above principle of law was accepted and applied in (1880) L.R. 7 I.A. 115 (Privy Council) in which Sir Barnes Peacock, sneaking for the Judicial Committee observed at page 154 as follows:--

According to the Hindu Law a widow who succeeds to the estate of her husband in default of male issue, whether she succeeds by inheritance or by survivorship (as to which see the Shivaganga case, (1863) 9 Moo Ind App 539 at p. 604 (PC)) does not take a mere life-estate in the property. The whole estate for the time vested in her absolutely for some purposes though in some respects for only a qualified interest. Her estate is an anomalous one and has been compared to that of a tenant in tail. It would perhaps be more correct to say that she held an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband. 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 upto and died at the moment of her death,

(underlining (italics) by us).

Although in the above passage, the case of a widow succeeding to her husband''s estate is dealt with, the same legal principle is extended to every female whether she be a daughter mother, father''s mother or father''s father''s mother who succeeds to the property of a male. Such female takes only a limited estate in the property inherited by her and at her death the property passes not to her heir, but to the next heir of the male from whom she inherited it.

The point for consideration in this appeal is whether the question as to who is the next heir of the last male holder after the termination of the intervening estate of a limited owner, should be determined with reference to the law in force at the time of the last male holder or with reference to law in force at the time of the death of the limited owner. The above question has been raised and decided by several High Courts, the Privy Council and the Supreme Court in a number of cases in the context of the Hindu Law of Inheritance (Amendment) Act, 1929 (hereinafter referred to as the Act of 1929), by which a son''s daughter, daughter''s daughter, sister and sister''s son were declared as being entitled to rank in the order of succession of a Hindu male dying intestate next after his father''s father and before his father''s brother. The said Act came into force on 21-2-1929. The relevant part of the said Act read as follows:

Whereas it is expedient to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate, it is hereby enacted as follows:--

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A son''s daughter, daughter''s daughter, sister and sister''s son shall, in the order so specified, be entitled to rank in the order of succession next after a father''s father and before a father''s brother.

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In Lakshmi Ammal and Another Vs. Anantharama Aiyanagar and Another, the question arose whether the Act of 1929 was applicable to a case where the last male holder had died before the said Act came into force to determine who were his presumptive reversioners in the following way. The last male holder who was one Venkatakrishna died unmarried on 11-7-1922. He was succeeded by his mother Lakshmiammal against whom the plaintiff claiming to be presumptive reversioner, filed a suit in 1927 for certain reliefs in respect of the estate of the last male holder which was in her hands. Lakshmiammal''s daughter and her son contended that after the Act of 1929 came into force, they were the presumptive reversioners and the plaintiff had ceased to be a presumptive reversioner. The Madras High Court observed in that case as follows:

But the true principle seems to be that under the Hindu Law it is the death of the female heir that opens the inheritance to the reversioners who will till then possess an inchoate right, generally termed as a spes successions; in other words the male holder is regarded by the law as having lived upto and died at the moment of the death of the female heir. When a female heir intervenes therefore, the fictional death of a Hindu male is some thing different from his actual death, the result being that the date of his death is for this purpose postponed to the death of the limited owner.

Ultimately the High Court of Madras held that in that case the succession opened to the heirs of the last male holder after the passing of the Act of 1929 and was therefore governed by its provisions. In AIR 1936 124 (Lahore) : Rajpali Kunwar v. Sarju Rai, AIR 1936 All 507 (FB): Pokhan Dusadh Vs. Mt. Manoa and Another, and AIR 1937 402 (Oudh) also it was held that when the last male holder had died before the Act of 1929 came into force and the estate was in the possession of a widow or a mother who died after the coming into force of the Act of 1929, the succession to the estate of the last male holder must be considered to have opened only after the termination of the life estate and the Act of 1929 would apply in considering the heirs of the last male holder at the termination of the life estate.

The Judicial Committee of the Privy Council had occasion to consider the above question in AIR 1946 173 (Privy Council) . It approved the view expressed by the several High Courts referred to above, after rejecting the contention that the words ''Hindu male dying intestate'' occurring in the preamble to the Act of 1929 connoted future tense and hence they referred only to the case of a Hindu male dying after the Act of 1929 came into force, 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 AIR 1936 124 (Lahore) that the words are a mere description of the status of the deceased and have no reference and are not intended to have any reference to the time of the ''death of the Hindu male. The expression merely means ''in the case of intestacy of a Hindu male''. To place this interpretation on the Act is not to give retrospective effect to its provisions the material point of time being the date when the succession opens, namely, the death of the widow.

In Fateh Bibi etc. Vs. Charan Dass, the Supreme Court fully approved the decision of the Privy Council in AIR 1946 173 (Privy Council) in the following words:--

We are in entire agreement with the above observations of the 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 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 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�����

The Act of 1956 came into force on 17-6-1956. By that Act the Act of 1929 was repealed. In this case the limited owner died on 17-6-1967 and the succession opened after the coming into force of Act of 1956. The question is whether provisions of Section 8 of the Act of 1956 which deals with the succession to a Hindu male dying intestate after the Act of 1956 came into force can be applied while considering the question as to who is the next heir to the estate of the last male holder which had been inherited by the limited owner, who dies after the said Act has come into force.

The decision in Kempiah and Another Vs. Girigamma and Another, no doubt supports the contention of Sri B.P. Holla, learned counsel for defendants 2 and 3. We are now called upon to examine the correctness of the said decision. The facts of that case were these. The last male holder died in 191''8 and after his death, his mother succeeded him as a limited owner. She executed a settlement deed on 12-5-1919 under which the property inherited by her was transferred in favour of defendant 2 in those proceedings. She died in 1958 after the Act of 1956 came into force. Thereafter the plaintiffs, claiming to be the reversioners to the estate of the last male holder in view of the provisions of Section 8 of the 1956 Act, filed the suit for possession of the same. The defendants resisted the claim mainly on the ground that the succession to the estate was regulated by the law in force when the last male holder actually died and not by the provisions of the Act of 1956. When the matter came up before this Court in a second-appeal, Hegde, J. was of the view that the matter required to be considered by a Division Bench as he felt that an earlier decision of this Court had not been, correctly decided. In his order of reference to the Division Bench, he however-observed that the case was governed by the provisions of Section 8 of the Act of 1956. The Division Bench which consisted of Somnath Iyer and Gopivallabha Iyengar, JJ. took the view that the case was governed by the law which was in force when the last male holder actually died and not by the provisions of Section 8 of the Act of 1956. The reasons given by the Division Bench to come to that conclusion were: (1) that the Act of 1956 was prospective and hence could not apply to the estate of a male who had died before the said Act came into force; (2) that since no provision had been made in the Act of 1956 for the devolution of the property on the termination of the limited estate, the law prevailing prior to its coming into force alone continued to apply to such a case: and (3) that the decision of the Privy Council in AIR 1946 173 (Privy Council) could not be relied upon because-- (i) the Privy Council had not taken into account the words ''shall be entitled to rank'' in the Act of 1929. (ii) that a statute had to be interpreted in accordance with the language employed in it, and (iii) Section 8 of the Act of 1956 referred to the case of actual death of a Hindu male after that Act came into force. With great respect to their Lordships, we do not agree with the view expressed in the above case as we are not convinced of any of the reasons given in support of the decision.

It is seen from the above decision that no attention has been given tome principle of law applicable to the case viz., that the succession does not open to the heirs of the last male holder; until the termination of the limited estate and upon the termination of that estate: the property descends to those who would have been the heirs of the last male holder if he had lived upto and died at the moment of her death, although the said principle was expounded by the Privy Council in (1880) L.R. 7 I.A. 115 (Privy Council) in 1880 and had been followed by all Courts in India while dealing with the cases arising under the Act of 1929. If the above principle of law had been noticed then there would have been no difficulty in applying the Act of 1956 to the case before them. While deciding the above case, their Lordships reversed the process by first coming to the conclusion that the Act of 1956 was prospective and then holding that it did not apply to the estate of a Hindu male who died before the said Act came into force. The logical method was to find out first when the succession opened and then to apply the law in force on the date when the succession opened. If that method had been adopted, it would have been clear that in fact no retrospective effect was being given to the provisions of the Act of 1956 as observed by the Privy Council in AIR 1946 173 (Privy Council) with reference to the Act of 1929. It is no doubt true that the Act of 1956 does not deal with devolution of estate held by a limited owner but it contains Section 8 which is relevant for deciding the case on hand. It is again erroneous to think that Section 8 applies only to a case where the death of the male holder takes place after the Act of 1956 came into force and not to any other case. In the matter of devolution of the estate of a Hindu male who is succeeded by a limited owner, there is a legal fiction which lays down that the last male holder should be deemed to have lived upto and died at the moment of the death of the limited owner as already stated above and that legal fiction should be carried to its logical conclusion in applying the same in a given case. It is relevant to refer here to the observation of Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council. 1952 AC 109 at P. 132 which are as follows:

If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents of which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from 1939 level of rent. The statute says that you must imagine a certain state of affairs: it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of the state of affairs.

The above passage was quoted with approval by the Supreme Court in M.K. Venkatachalam, I.T.O. and Another Vs. Bombay Dyeing and Mfg. Co., Ltd., Hence we have to imagine in this case that the last male holder actually died at the moment when the limited owner who succeeded him died for the purpose of determining the next heir and apply that law which would be applicable to his estate if he had actually died at the time of the death of the limited owner. It follows that the provisions of the Act of 1956 alone would be applicable to this case as the death of the limited owner took place after the coming into force of the Act of 1956.

Sri B.P. Holla next relied upon the decision of the Supreme Court in Eramma Vs. Verrupanna and Others, and contended that Section 8 of the Act of 1956 was only prospective. That case is of no assistance to him because the Supreme Court was not dealing with a case like the present one in that case and further as, we have already observed, we are not at all treating the said provision as having retrospective effect in order to decide the question before us.

It was lastly argued by Sri B.P. Holla that the words ''dying intestate'' taken along with ''shall devolve'' in Section 8 of the Act of 1956 meant that they referred to a future event as the finite verb in the sentence was in future tense. This is merely a futile exercise in semantics as the case is not taken any further by the above argument.

With great respect we do nor also agree with the views expressed on the above question in Renuka Bala Chatterji Vs. Aswini Kumar Gupta and Others, : Nathuni Missir Vs. Mosammat Ratna Kuer and Others, Chaturbhuj Pradhan and Others Vs. Sarbeshwar Pradhan and Another, Mst. Jandebi v. Upendra Sahu, AIR 1968: Orissa 187: V. Sampathkumari Vs. M. Lakshmi Ammal and Others, and Rameswar v. Hardas, AIR 1964 All 308. In all these cases the view expressed by the Privy Council in AIR 1946 173 (Privy Council) which has been later approved by the Supreme Court in Fateh Bibi etc. Vs. Charan Dass, regarding the time at which the succession opens has either been lost sight of or has not been given due weight in deciding the question. In view of the decision of the Supreme Court in Fateh Bibi''s case the view expressed in these cases to the contrary should be treated as having been overruled.

Our view on the question referred to the Full Bench receives support from the decisions reported in Hiralal Roy Choudhury Vs. Kumud Behari Roy Choudhury, : Bepin Behary Mullick and Others Vs. Sm. Lakshasona Dassi and Others, ; Ratan Kumari Tholia Vs. Sunder Lal Tholia and Others, : Taro Vs. Darshan Singh and Others, : S. Kuldip Singh and Others Vs. Karnail Singh Bakhshish Singh and Others, ; Smt. Banso and Others Vs. Charan Singh and Others, : Harbhaj Vs. Mohar Singh and Others, : Ramulu and Another Vs. Govur Venkanna (Died) Govur Narayana and Others, : Shanmughasundrathammal Vs. Narayana Konar and Others, : and Shivadeviamma and Others Vs. Sumanaji and Others, We respectfully agree with the opinions expressed therein.

In conclusion, we hold that Kempiah''s case has been wrongly decided and we overrule it. Our answer to the question referred to the Full Bench is that the provisions of Section 8 of the Hindu Succession Act apply to a case in which a last male holder governed by the Mitakshara Law died prior to the coming into force of that Act, leaving behind him his mother who succeeded him as a limited owner and who died after the coming into force of the Hindu Succession Act for the purpose of determining the next reversioner to the estate of the last male holder.