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Judgment
G. Ramanujam, J.—The plaintiff is the appellant. He sued for declaration of his title to the suit property and for recovery of the same from
the three defendants. The case of the plaintiff was that the suit property originally belonged to one Sudalaimuthu Konar, that after his death his
widow, Somu Ammal was in enjoyment of the same till her death on 22nd March, 1966, that Somu Ammal had a daughter Kasamadi who
predeceased her leaving no issues and that after her death Somu Ammal sold the properties to her brother the first defendant under a registered
sale deed dated 21st June, 1935. One Shanmuga Konar and his brother Enamuthu filed a suit O.S. No. 275 of 1935 on the file of the District
Munsif, Srivaikuntam for a declaration that the sale deed executed by Somu Ammal was not binding on them as reversioners and succeeded in
obtaining a decree. After the death of Somu Ammal the suit property is claimed by the plaintiff as ""the nearest heir of Sudalaimuthu as per the
provisions of the Hindu Succession Act, 1956.
The defendants resisted the suit contending that the third, defendant has been taken in adoption by Somu Ammal in 1965 and that as the
adopted sop of Somu Ammal he is entitled to succeed to the suit property. They also contended that, in any event the succession to the properties
has to be governed by the law of succession as on the date of Sudalaimuthu''s death and not under the Hindu Succession Act which was in force
on the date of the death of Somu Ammal.
Both the Courts below held that the case of adoption set up by the defendants had not been established. Therefore we have to proceed on the
basis that the third defendant was not adopted by Somu Ammal and he cannot claim the suit property on that basis. But the Courts below differed
in their view as to the applicability of the law of succession. The trial Court felt that the question as to who is to succeed to the suit property after
the death of Somu Ammal has to be found out with reference to the Hindu Succession Act which was the law in force relating to Hindu succession
prevailing at the time of Somu Ammal''s death. But the lower appellate Court has taken the view that the orthodox law of succession which
prevailed at the time when Somu Ammal''s husband Sudalaimuthu died has to be applied. It is for consideration in this second appeal as to which
of the two differing views is correct.
It is not in dispute that if the Hindu Law of inheritance at the time of Sudalaimuthu''s death is to be applied, the plaintiff cannot be the nearest heir
of Sudalaimuthu. But on the other hand if the provisions of the Hindu Succession Act which was in force at the time of the death of Somu Ammal
are to be applied, the plaintiff will be the nearest heir of Sudalaimuthu and he will be entitled to succeed. The lower appellate Court purported to
follow the decision of the Supreme Court in Eramma Vs. Verrupanna and Others, holding that the provisions of Section 8 of the Hindu Succession
Act are not retrospective in operation and the decision in V. Sampathkumari by next friend and husband C. Venkatachalapathi (declared major)
Vs. M. Lakshmi Ammal and Others, , wherein it has been observed that the death of a Hindu female owner opens the inheritance to the
reversioners, and the one most nearly related to the last full owner at the time of his death becomes entitled to possession. The lower appellate
Court felt that the decision in Harbhaj Vs. Mohar Singh and Others, holding that where a widow succeeded to her husband''s property and the
succession opens to the reversioners on the death of the widow, the heirs of the last male holder as on the date of the death of the widow have to
be determined under the Hindu Succession Act which is in force on the date of the death of the widow, cannot held good after the above decision
of the Supreme Court.
On this question there appears to be a divergence of judicial opinion. It is now well settled by the decision of the Supreme Court in Eramma Vs.
Verrupanna and Others, , that Section 8 of the Hindu Succession Act is not retrospective in operation and that where a male Hindu died before the
Act came into force, that is, where the succession opened before the Act, Section 8 will have no application. Only if succession or devolution is
treated as having taken place before the Act, the heirs are to be ascertained as on the date of the death of the last male holder and not as on the
date on which the widow died.
The following decisions have taken the view that though the reversionary heirs are to be found out after the death of the widow who earlier
succeeded to her husband''s estate, succession should be deemed to have opened b fore the Act that therefore, Section 8 has no application and
the reversionary heirs have to be determined as on the date of the death of the last male holder, and that, if Section 8 has no application Section 4
of the Act has to come into play b inking into operation the general Hindu Law which was in operation before the commencement of the Hindu
Succession Act. In V. Sampathkumari by next friend and husband C. Venkatachalapathi (declared major) Vs. M. Lakshmi Ammal and Others, , a
Division Bench of this Court in dealing with a similar question took the view that it is only for the limited purpose of"" ascertaining the reversionary
heirs that a fiction has been created by which the deceased person is deemed to have lived upto the date of the death of the female heir who
immediately succeeds him, and that a fiction in law cannot be relied upon for any purpose other than the limited purpose for which it has been
created. It was contended before the Bench that in every case where a Hindu male dies intestate leaving a female heir to succeed him, succession
to the estate of the male does rot really open until the death of the intervening female heir, when alone it would be possible to ascertain as to who
would be the person entitled to take the estate as reversioners. In rejecting that contention the Bench held that though the estate of the last male
holder had vested in his female heir, if the female heir dies the reversionary heirs to succeed to the estate have to be found out as if the succession
had opened on the date when the last male holder died. The learned Judges observed as follows:
It is only for the limited purpose of ascertaining the reversionary heirs that a fiction has been created by which the deceased person is deemed to
have lived upto the date of the death of the female heir who immediately succeeds him. It is well known that a fiction in law cannot be relied upon
for any purpose other than the limited purpose for which law has sanctioned the creation of such fiction.
In that view the learned Judges held that Section 8 will not have operation in a case of succession opening to the estate of the last office-holder
after his widow''s death if he bad died before the commencement of the Act. In Kempiah v. Girigamma AIR 1966 Mys. 189 also a similar view
was taken. There the last male holder died before the Hindu Succession Act came into force, and the widow''s estate came to an end after the
coming into force of that Act. The question arose as to whether the reversioners are to be treated according to the provisions of the Hindu Law
which was in force on the date of the actual death of the last male holder, or whether according to the law in force on the date when the widow''s
estate came to an end. The learned Judge in that case held that as Section 8 of the Hindu Succession Act is not retrospective in operation and as
the death referred to in Section 8 does not mean the fictional death which happens on the termination of the life estate, but the actual physical death
of the last male holder, Hindu Law in force before the commencement of the Act has to be applied in view of the saving provision contained in
Section 4(2) of the Hindu Succession Act, and that Section 8 should apply only in case of death of the last male holder occurring subsequent to the
enactment of the said Act. Chaturbhuj Pradhan and Others Vs. Sarbeshwar Pradhan and Another, , also took the same view. In that case after the
death of the last male holder his widow succeeded and was in possession of the property as limited owner. Her death took place after the
commencement of the Hindu Succession Act. In finding out the line of succession the Court applied the rule of succession as prevalent at the time
of the death of the last male holder on the view that Section 8 is not retrospective and that no provision of the Hindu Succession Act will come into
play in the case of succession to the estate of a last male holder, who died before the commencement of the Act, when it opens subsequent to the
Act on the death of a limited owner, who was in possession of that estate. Mst. Jandebi Vs. Upendra Sahu and Another, , purported to follow the
decision of the Mysore High Court in Kempiah v. Girigamma AIR 1966 Mys. 189, and held that as Section 8 is only prospective and applies only
to cases where a Hindu male dies after the commencement of the Hindu Succession Act, and the death of the Hindu male after the commencement
of the Act refers to actual and not fictional death, it is not the orthodox rule of Hindu Law, which was prevalent on the date of the death of the last
male holder for whose estate the reversion opens, that is to be taken into account. The learned judges did not accept the views expressed in Bepin
Behary Mullick and Others Vs. Sm. Lakshasona Dassi and Others, , Harbhaj Vs. Mohar Singh and Others, and Ramulu and Another Vs. Govur
Venkanna (Died) Govur Narayana and Others, , on the ground that the matte, is concluded by the decision of the Supreme Court in Eramma Vs.
Verrupanna and Others, , holding Section 8 to be only prospective.
In Bepin Behary Mullick and Others Vs. Sm. Lakshasona Dassi and Others, , the learned Judges invoked the fiction that the husband is deemed
as continuing to live till the death of his widow for purposes of succession to his estate, 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. In that case the last male holder died in 1948 and his widow who succeeded to his estate died on 1st June, 1958 after the
commencement of the Hindu Succession Act on 17th June, 1956. The Court held that the succession to the estate of the last male holder opened
after the Hindu Succession Act came into force and, therefore, the provisions of the Hindu Succession Act have to be applied. Ratan Kumari v.
Sunder Lal AIR 1959 Cal. 786, also took the same view. That decision laid down that the rule of devolution as laid down by Section 8 of the
Hindu Succession Act has no reference to the time of the death of the person, that ""dying interstate"" in the section must be and indeed has been
construed as a description of the status of the man and has no reference to the time of the death of the person, that the point of importance is not
the time of death but the time of devolution and that in order that Section 8 might apply the time of devolution must be after the date of the Act
coming into force, not the date of death. According to the learned Judge in that case a man may die prior to the date of the Act but succession will
open after the date if, in between, one or more female heirs intervened and the rule of devolution as laid down in Section 8 will apply only if
succession opens after the Act came into force, which normally takes place at the time of the death of a male Hindu but not necessarily, and the
devolution may be long after the death of the male Hindu. Taro Vs. Darshan Singh and Others, also has taken the same view. There it was held
that where the last male holder dies leaving behind him his widow before the Hindu Succession Act but the widow continues to survive after the
Act came into force, succession really opens on the demise of the intervening female heir and that it was wrong to say that the succession opens
out on the death of the last male holder.
The cleavage of judicial opinion as to the rule of succession to be applied in cases where the last male holder to whose estate the devolution
takes place died before the Hindu Succession Act but the succession opened only after the Act on the death of the intermittant life estate-holder
has, in my opinion, been finally concluded by the decision of the Supreme Court in Fateh Bibi etc. Vs. Charan Dass, . While dealing with a
situation where a Hindu male died in testate before Central Act II of 1929 came into force but was succeeded by a female heir after that date, their
Lordships of the Supreme Court expressed the view that succession in such cases opened only after the Act when the life estate terminates and
that in consequence, 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 termination of the life estate and that the inheritance is opened to the reversioners only on the death of the Hindu females life estate
holder, and that the one most nearly related at that time to the last male holder becomes entitled to the estate. Though that decision was rendered
with reference to the provisions of Central Act II of 1929, the rationale of that decision equally applies to the situation on hand.
Even in the earlier decision in Eramma Vs. Verrupanna and Others, , where the date of death of the person and the devolution of his was the
same it has been observed that the date of devolution has also to be taken as the relevant date for applying the rules of succession. In the later
decision in Fateh Bibi etc. Vs. Charan Dass, reference has been made to certain earlier decisions by various High Courts which showed a sharp
difference of opinion between the various Courts on the point as to when succession opens, whether it is the date of death of the last male holder
or whether it is the date of death of the life estate bolder. In Krishnan Chettiar (died) and Another Vs. Manickammal and Another, , and Kanhaiya
Lal Vs. Mt. Champa Devi, , it had been expressed that Central Act (II of 1929) applied only to a case of a Hindu male dying intestate on or after
21st February, 1929, and if a person had died before the Act the succession to his estate must be considered to have opened on the date of his
death. But later in Shakuntala Devi v. Kousalya Devi AIR 1936 Lah. 124, AIR 1937 402 (Oudh) Pokhan Dusadh Vs. Mt. Manoa and Another, ,
and Lakshmi Ammal and Another Vs. Anantharama Aiyanagar and Another, , a contrary view had been taken that 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 in cases where the male holder had died before the Act and the estate was in the possession of the life
estate holder who died after the Act. The Supreme Court resolved the conflict, and agreeing with the view expressed by the Judicial Committee in
AIR 1946 173 (Privy Council) holding that Central Act (II of 1929) altering the order of succession of certain persons therein mentioned, which
came into force on 21st February, 1929, applied not only to the cases of Hindu male dying intestate on or after the Act but also to cases of such a
male dying intestate before that date, if he was succeeded by a female heir who died after that date, that succession in such cases to the estate of
the last Hindu male holder who died intestate did not open until the death of the life estate holder, that during the lifetime of the life-estate holder,
the reversioners in Hindu Law have no vested interest in the estate, that they have mere spes successionis, that the point of time for the applicability
of Act II of 1929, is when the succession opens, that is, when the life estate terminates, and that questions as to who is the nearest reversionary
heir or what is the class of the reversionary heirs will fall to be settled on the termination of the life estate. Their Lordships have specifically held that
Act II of 1929, applied not only to cases of Hindu male dying intestate after the Act but also to cases 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. Therefore, following the above decision of the
Supreme Court in Fateh Bibi etc. Vs. Charan Dass, , I hold that the plaintiff, who is the one most nearly related to Sudalaimuthu, the last male-
holder at the time of the death of Somu Ammal, becomes entitled to the suit properties, the date of the death of the last male-holder not being
relevant.
The result is the view taken by the lower appellate Court has to be set aside. The second appeal is, therefore, allowed, the decree and
judgment of the lower appellate Court are set aside and those of the trial Court restored. There will be no order as to costs. Leave granted.