POKHAN DUSADH Vs. MTMANOA

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the plaintiff-respondent to recover possession of a holding which admittedly belonged to one Ghaman Teli of mauza Duari. Ghaman Teli died sometime before 1929, and was succeeded by his widow Mt. Runia who died in July 1929. By this time the Hindu Law of Inheritance (Amendment Act), 2 of 1929, which includes a sister in the category of reversioners to the estate of a Hindu male came into force and accordingly the plaintiff who is a sister of Ghaman Teli claiming to be an heir of her deceased brother applied to the landlord for mutation of her name. The landlord however refused to register her name and so she applied under Section 23-A, Chota Nagpur Tenancy Act, to the Sub-divisional Officer of Chatra for mutation which was allowed sometime in July 1930. Meanwhile the landlord had settled the land with defendant 1 and the plaintiff's case is that defendant 1 dispossessed her from the holding and she was therefore compelled to institute the present suit. The plaintiff's suit was decreed by the trial Court and defendant 1 having unsuccessfully appealed to the Court to which the appeal lay in the first instance has now preferred this second appeal.

(2.) The main contention which has been put forward on behalf of defendant 1, the appellant in this case, is that the Hindu Law of Inheritance (Amendment) Act has no application to this case as Ghaman Teli died before the passing of that Act. The question which thus arises for our consideration is whether the Act applies only to those cases where the Hindu owner dies after the passing of the Act or it also applies where such a person dies before the Act came into force, but owing to the estate being in the hands of a female heir (a limited owner under the law) the succession does not open until the death of the latter. In other words what we have to decide is whether the material date for the application of the Act is the date of the death of the Hindu owner or the date when the succession opens. The point is not a new one and has been the subject matter of much discussion in recent times. In 1933 a Division Bench of the Madras High Court held that Act 2 of 1929 does not apply to cases of Hindu males who died intestate before its coming into force and that in determining the order of succession to the estate of such a person the Hindu law as it stood before the Act would apply: see Krishna Chettiar V/s. Manikammal, AIR 1934 Mad 138. The same view was taken by a single Judge of the Lahore High Court in Mt. Janki V/s. Mt. Sattan, AIR 1933 Lah 777. This last decision was however reversed on appeal under the Letters Patent A IR 1936 Lah 139, Ref. 7 below] and the decision of the Madras High Court to which I have referred has been recently overruled by a Full Bench Lakshmi Ammal v. Anantharama Ayyangar, Appeal No. 443 of 1930, D/- 13-10-1936 (F. B).: (1936) Pat WN 154. The High Courts of Madras, Lahore and Allahabad are now agreed that the Act in question applies even to the case of a person who dies before it came into force, if his widow or any other limited owner who inherited his estate is alive at the time of its enforcement: see Sm. Shakuntala Devi V/s. Kaushalya Devi, AIR 1936 Lah 124; Mt. Rajpali Kuer V/s. Surju Rai, ; Bandhan Singh V/s. Mt. Daulata Kuer, ; Mt. Sattan V/s. Janki, AIR 1936 Lah 139 and Shib Das V/s. Nand Lal, AIR 1932 Lah 361. This is also the view which was expressed in this Court by Courtney- Terrell, 0. J. sitting singly after a very thorough examination of the question in all its aspects: see Chulhan Barai V/s. Mt. Akli Baraini, AIR 1934 Pat 324. As however notwithstanding these decisions the question has been raised persistently in this Court it becomes necessary to examine it once more.

(3.) The object of the new Act was in the words of its preamble "to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate." Section 2 which was enacted to carry out this object provides that 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. The effect of this enactment is best understood if we look at the matter as follows: Let us suppose that before the Act came into force there was available to us a complete list of reversionary heirs to a Hindu male which was compiled according to the law as it then stood. The effect of the Act is simply to substitute a revised list with certain additions and alterations. As before the Act we would have had to refer to the list only when the question of succession had to be determined, so after the passing of the Act also it will not be necessary to refer to the revised list substituted by the Act until we are asked to decide who should succeed to the estate of the deceased owner. The Act itself makes no reference to the date of death of the Hindu male and I do not see why the operation of the Act should depend upon that date. The only date which is material is the date when the succession opens or when the question of succession to the estate arises. If such a question arose before the Act came into force the succession would be governed by the Hindu law as it stood before the Act. If the question arises after the Act, it will apply. Therefore when the Hindu owner of an estate died before the Act came into force the question whether the Act would affect the succession to his estate or not would depend on whether he has left any female heir, such as widow, daughter, etc., or he has died without leaving any such heir. In the former case it is only after the death of the limited owner that the succession opens, that is to say, the reversionary heir is entitled to enter into possession of the estate. If, however, the owner has died without leaving any female heir, the succession opens immediately on his death, and if he died before the passing of the Act the Act will have no application.