KUMARASWAMI GOUNDER Vs. D R NANJAPPA GOUNDER DEAD

JUDGEMENT

(1.) THIS reference comes before us because of the conflict of opinion on the question whether Section 8 of the Hindu Succession Act 1956 is applicable to a case where a husband died intestate before the Act came into force and his widow inherited his properties, but was not possessed of those properties and died subsequent to the commencement of the Act. One of us was a party to the reference. Since then has come Daya Singh v. Dhankaur which, in almost similar circumstances and after dealing with the conflict of opinion of some oi the High Courts, answered the question in the affirmative.

(2.) WERE the question res integra, it would have been open to debate and doubt as to whether Section 8 was intended to cover reversionary succession as in the instant case. The Act was, no doubt, intended to amend and codify the law regarding intestate succession. The intention of the Act was to cover, as far as possible, the entire field. That was why Section 4 gave the Act overriding effect. Yet it visualises that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act would still have force, if for any matter provision was not made in the act and also any other law not inconsistent with any of the provisions of the act, may continue to have force. Chapter II of the Act deals with intestate succession, first, in respect of an interest of a coparcener in coparcenary property and then with devolution of interest in coparcenary property and in the property of a tarvad, Tavazhi, Kutumba, Kavara or Illom. We have then Section 8 providing for general rules of succession in the case of males. It abolishes at one stroke the scheme of succession under the Hindu Law and provides for devolution of the property of a male Hindu dying intestate, as provided therein read with the Schedule. This course was designed to give effect to the popular desire to prefer the closer relatives of the deceased such as those mentioned in class I and Class II of the Schedule. Having provided for such a devolution of the property of a male Hindu dying intestate, rules also have been prescribed by the nest five sections relating to the order of succession among the heirs in the Schedule, distribution of property among heirs of class I and Class II, the order of succession among agnates or cognates and computation of degrees. Section 14 deals with property of a female Hindu. Any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The Explanation to sub-section (1) is to the effect that tor purposes ot the sub-section, property includes both move-able and immoveable property acquired by a female Hindu by inheritance etc. , Sub-section (2) of Section 14 provides for certain exception to the rule of enlarging what was a limited estate of a female Hindu into a full and absolute estate. Consistent with the effect of Section 14, the next section provides for a drastically new rule of devolution of property of female Hindu dying intestate. But is this sweeping change in the scheme of succession only confined to limited property converted into absolute one in the hands of a woman? What is the effect in this content of the Explanation to Section 8 (1) on that matter vis-a-vis Section 14? the order of succession and the manner of distribution among the heirs of a female Hindu are then provided for by Section 16 and special provisions respecting persons governed by the Marumakathayam and Aliyasanthana also have been made in Section 17. Then follow certain general provisions relating to succession as to the preference between full blood and half blood and mode of succession of two or more heirs who will take the property as tenants-incommon and not as joint tenants. The child in the womb is also taken care of. Section 20 provides that the child in the womb at the time of the death of an intestate who is subsequently bom alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest ia such a case with effect from the data of the death of the intestate. Rules of presumption in cases of simultaneous deaths and preferential right to acquire property in certain cases, special provisions respecting dwelling houses, rules of succession wherein certain widows remarry and disqualifications for a murderer and convert's descendants have been made- Finally, provision is made for devolution where there is failure of heirs. Chapter III deals with testamentary succession. That sums up the scheme of the Act. This brief survey indicates that the Act is intended to be a complete Code governing succession to a Hindu male or female dying intestate.

(3.) THE expression a male Hindu dying intestate' had received judicial interpretation aud? as held by the Privy Council with reference to the Hindu Law of Inheritance Amendment Act 1929, it only referred to the status of the person dying and it had no effect upon the time of death so that the expression would be apt to apply to a Hindu ding intestate before or after that Act. If that be so, section 8 would have applied itself when in the instant case the husband died, before the Hindu Succession Act 1956. Does not Section 8 have reference only to his physical death? Can it be said, that, in spite of it, by reason of the succession opening by the death of the widow after the Act came into force and of the rule of Hindu Law, that the particular reversioners entitled to succeed to the estate must be ascertained as on the date of her death as if her husband also had died on the same date, Section 8 would have a further application? The question assumes a little more importance because of the Explanation to Subsection (i) of Section 14. It says that for purpose of that sub-section property includes both moveable and immoveable property acquired by a female Hindu by inheritance. It is true that Section 14 would enable the limited estate to be enlarged only if the widow was possessed of such property. But if she had already inherited and the property is hers, though not enlarged into a full estate, what be the effect of such inheritance on the scope of Section 8? On this aspect extensive argument has been addressed to us.