Shanmughasundrathammal vs Narayana Konar and Others

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 22-3-1966, 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 21-6-1935. One Shanmugha

Konar and his brother Enasamuthu filed a suit O.S 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 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 has not been established. Therefore, we have to proceed on the

basis that the third defendant has not been 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 view 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 Sudaimuthu. 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 plaint if 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 Vs. M. Lakshmi Ammal and Others, wherein it has been observed that the death of 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 hold 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 before the Act, that therefore, Section 8 has no application and

the reversionary heir have to be determined as on the date of the death of the last male holder, and that, if Section 8 no application, Section 4 of

the Act has to come into pay bringing into operation the general Hindu Law which was in operation before the commencement of the Hindu

Succession Act. In V. Sampathkumari 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 every case where a Hindu

male dies intestate leaving a female heir to succeed him, succession to the estate of the male does not really open until the death of the intervening

female heir, when alone it would be 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 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 has 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 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 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 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 matter 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 1-6-1958 after the

commencement of the Hindu Succession Act on 17-6-1956. 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 Tholia Vs.

Sunder Lal Tholia and Others, 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 intestate"" 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 persons, that the point of importance is not the time of

death but 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

death 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 dies before the Hindu Succession Act but the succession opened only after the Act on the death of the intermittent 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 intestate before Central Act 2 of 1929 came into force but 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 female estate holder,

and that the one most nearly related at the time to the last male holder becomes entitled to the estate. Though that decision was rendered with

reference to the provisions of Central Act 2 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 estate 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 by various High Courts to certain earlier decisions of 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 the

death of the last male holder or whether it is on the date of death of the life estate holder. In Krishnan Chettiar (died) and Another Vs.

Manickammal and Another, and Kanhaiya Lal Vs. Mt. Champa Devi, it has been expressed that Central Act 2 of 1929 applied only to a case of a

Hindu male dying intestate on or after 21-2-1929 and if a person has died before the Act, the succession to his estate must be considered to have

opened on the date of his death. But later in Pokhan Dusadh Vs. Mt. Manoa 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 2 of 1929 altering the order of succession of certain persons therein

mentioned, which came into force on 21-2-1929, 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 a mere spes succession is, that the point of time for the

applicability of Act 2 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 2 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 the 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.

Appeal allowed.