PETITIONER: DAYA SINGH (dead) THROUGH L.RS. & ANR. Vs. RESPONDENT: DHAN KAUR DATE OF JUDGMENT05/03/1974 BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. MATHEW, KUTTYIL KURIEN CITATION: 1974 AIR 665 1974 SCR (3) 528 1974 SCC (1) 700 ACT: Hindu Succession Act, 1956, sec. 8-Whether effects change in old Hindu Law--Death of female limited owner who succeeds last male holder-Customary Law of Punjab whether applicable- Held, succession opens on death of limited owner and would be governed by law then in force-Interpretation of statutes. HEADNOTE: The respondent's father, W, who owned the suit property died in 1933. His widow, who succeeded to the estate, gifted the property to her daughter, the respondent. The appellants filed a suit as reversioners of W questioning the gift. The "it 'as decreed and the decree was confirmed on appeal. After coming into force of the Hindu Succession Act on 17-6- 1956, the widow again made a gift of the same, lands to the respondent. She died in 1963. The appellants then filed the suit, out of which this appeal arose, for possession of the lands. alleging that the second gift was void. The trial court decreed their suit but on appeal the respondent succeeded in the first Appellate Court as well as in the High Court on second appeal. On appeal by special leave to this Court, Dismissing the appeal, HELD (1) Following the decisions of the Privy Council in Moniram Kolita v. Keri Kolitani, I.L.R. 5 Calcutta 776 at 789 and Duni Chand v. Anar Kali, A.I.R. 1946 P.C. 173, (infra) the words "dying intestate in Sec. 8 of the Act must be interpreted as merely meaning "in the case of intestacy of a Hindu male" and to place this interpretation on the Act is not to give retrospective effect to its provisions. The reference is only to the fact of 'intestacy. The material point of time is the date when the succession opens, namely, the death of the widow. Thus this propositions follow (i) Succession opens on the death of the limited owner, and (ii) the law then in force would govern the succession. [532D-G] Moniram Kolita v. Keri Kolitani, I.L.R. 5, Calcutta 776 789 and Duni Chand v. Anar Kali, A.I.R. 1946 P.C. 173, followed. Eramma v. Verritpatina, (1966) 2 S.C.R. 626, explained and distinguished. Banso v. Charan Singh, A.I.R. 1961, Punjab 45 and Kuldip Sing v. Karnail Singh, A.I.R. 1961, Punjab, 573, approved. Kempiah v. Giriganima, A.I.R. 1966, Mysore 189, overruled. Renuka Bala v. Aswini Kumar A.I.R. 1961, Patna 498 and Sam pathkumari N. Lakshmi Ammal, A.I.R. 1963 Madras, 50, distinguished. (ii)Succession to W's estate in the present cage opened when his widow died and it would have to be decided on the basis that W died in 1963 when his widow died. in that case succession to his estate would have to be decided on the basis of s. 8 of the Hindu Succession Act. The accepted position under the Hindu law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day. If, therefore, succession opens and is to be decided on the basis of the last full owner dying on the date of the death of the limited owner it is only the law in force at the time of the death of the limited owner that should govern the case. To hold that the old Hindu law applies to such a case is to allow your imagination to boggle. [533-A-C, G-H] Eastend Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 A.C. 109, 132, per Lord Acsquit and Venka tachalam v. Bombay Dyeing & Mfg. Co. Ltd., (1959) S.C.R. 703, referred to. The reversioners' right being a mere spes successions there is no question of impairing existing rights by adopting the interpretation we place on s. 8 apart from 529 the fact that it does not amount to giving retrospective operation to s. 8. Of course,, if the property had already vested in a person under the old Hindu Law, it cannot be divested. We can see no reason either in principle or on authority why the principle consistently followed under the earlier Hindu law that on the death of the limited owner succession opens and would be decided on the basis that the last male owner died on that day, should not apply even after coming into force of the Act. In the view we have taken it is s. 8 of the Act that applies and not the Customary Law.[534C-D,E-F.535G] JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1825 of 1967.
Appeal by special leave from the judgment and order dated
the 18th May, 1967 of the Punjab and Haryana High Court in
L.P.A. No. 158 of 1967.
Naunit Lal- and Lalit Kohli, for the appellant
O.P. Verma, for the respondent
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-The property in dispute in this appeal
belonged to Wadhawa Singh, the father of the respondent.
After his death in the year 1933 his widow, who succeeded to
the estate, made a gift of the property in favour of her
daughter, the respondent, in.April, 1933. The appellants
filed a suit as reversioners to the estate of Wadhawa Singh
questioning the gift. The suit was decreed and the decree
was confirmed on appeal. After coming into force of the
Hindu Succession Act on 17-6-1956 the widow again made a
gift of the same lands to the respondent. She died in 1963.
The appellants then filed the suit, out of which this appeal
arises, for possession of the lands alleging that the second
gift was void. The Trial Court decreed their suit but on
appeal the respondent succeeded in the first Appellate Court
as well as the High Court on-second appeal.
There is no doubt that Wadhawa Singh’s widow had no right to
male a gift of the property which she inherited from her
husband in 1933 and the decree obtained by the appellants,
who were reversioners to her husband’s estate would bind the
respondent who was also a party, to that suit. The question
then is-whether the-coming into force, of the Hindu
succession Act and the subsequent gift made by the widow in
favour of the respondent make any difference. Had not the
widow made the gift to the respondent in 1933, she would
have become an absolute owner of the property as a result of
S. 14 of the Hindu Succession Act and the gift made by her
subsequently in favour of the respondent could not have been
questioned. But having made the gift in 1933 she was not in
possession of the property inherited by her from her husband
and, therefore, did not become a full owner, with the result
that the subsequent gift made by her in favour of the
respondent was of no effect. This point that unless the
limited owner is in possession of the property section 14
does not apply has now been settled by decisions of this
Court beyond dispute.
What then is the effect of the provision of s. 8 of the
Hindu Succession Act in the circumstances of this case.
‘The Punjab High Court in its decisions in Banso v. Charan
Singh (AIR 1961 Punjab 45), and Kuldip Singh v. Karnail
Singh (AIR 1961 Punjab 573), where the facts
530
were similar to the present case, has taken the view that
when a widow dies after the coming into force of the Hindu
Succession Act the next heir to her husband is to be
determined in accordance with the law prevailing on the date
of the death of the widow and not in accordance with the law
prevailing at the time of the death of her husband and held
that the daughter succeeded in preference to the
reversioners. The Mysore High Court on the other hand in
Kempiah v. Girigamma (AIR 1966 Mysore 189) has held that on
the death of the widow succession would be governed by the
Hindu Law which was in force when the last mate holder
actually died. The Patna High Court in Renuka Bala v.
Aswini Kumar (AIR 1961 Patna 498) was disposed to take a
similar view though the case before it was concerned with
succession to the property of a female under s.15. The
Madras High Court in Sampathkumari v. Lakshmi Ammal (AIR
1963 Madras 50) also took the view that in such
circumstances s. 8 of the Hindu Succession Act would not
apply. But the case before that Court was one where two
widows who had succeeded to the estate of their husband were
in possession, and therefore, s. 14 was applicable. Lastly,
we have the decision of this Court in Eramma v. Verrupanna
(1966 2 SCR 626).. In that case this Court after setting out
the provisions of s. 6 of the Hindu Succession Act observed:
“It is clear from the express language of the
section that it applies only to coparcenary
property of the mate, Hindu holder who dies
after the commencement of the Act. It is
manifest that the language of s. 8 must be
construed in the context of s. 6 of the Act.
We accordingly hold that the provisions of s.
8 of the Hindu Succession Act are not
retrospective in operation and where a male
Hindu died before the Act came into force
i.e., where succession opened before the Act
s. 8 of the Act will have no application.”
Interpreted literally this dicision would seem to accord
with the decisions of all the other High Courts except the
Punjab High Court. But it should be noticed that the
problem that we are faced within the present appeal and in
the cases before the Punjab and Mysore High Courts did not
arise before this Court on the earlier occasion. The
decisions of the Madras High Court and the Patna High Court
are not directly in point.
In the case before this Court the two women were in
possession of property whose last male holder, who had died
before coming into force of the Hindu Succession Act, was
their step son. They were not, therefore in legal
possession of the properties of the last male holder. The
question that had to be decided was whether because of the
coming into force of the Hindu Succession Act they were
entitled to succeed under s. 8, and the further question
whether s. 14 would be attracted as they were actually in
possession. It was held that as they were not legally in
possession s, 14 would not apply, It was in that context
that it was said that where a male Hindu died before the;
Act came into force i.e., where succession opened before the
s. 8 of the Act will have no application, The point that
succession
531
might open not only when the male Hindu died but also
subsequently again when a limited owner who succeeds him
dies was not taken into account. There was no need and no
occasion to consider such a contingency in that case. There
was the further fact that the last male holder was succeeded
on his death by persons who were then. his nearest heirs and
the property vested in them could not be divested by the
Hindu Succession Act coming into force subsequently thought
this fact was not adverted to in the judgment. This Court
had, therefore. also no occasion to consider the effect of
the earlier decisions on the question as to what happens
when a female limited owner, whether she is a widow, mother
or daughter who succeeds the last male bolder, dies.
That position may now be considered. It was authoritatively
laid down by the Privy Council in its decision in Moniram
Kolita v. Keri Kaliteni (ILR 5 Calcutta 776 at 789) that :
“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 survivorship-as to which see
the S hivagunga case (1)-does not take a mere
life-estate in the property. The whole estate
is 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 holds 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 of the
husband
(2). 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 at the husband if he
had lived up ‘to and died at the moment of her
death (3).”
In the subsequent decision in Duni. Chand v. Anar Kali (AIR
1946, PC 173) the Privy Council observed:
“…. during the lifetime of the widow, the
reversioners in Hindu Law have no vested
interest in the estate but have a mere spes
succession is or chance of succession, which
is a purely contingent right which may or may
not accrue,that the succession would not open
out until the widow died, and that the person
who would be the next reversioner at that time
would succeed to the estate and the alteration
in the rule of the Hindu Law brought about by
the Act would then be in full force.
(1) 9 Moore’s I.A., 604.
(2) Id., 604
(3) Id., 601.
532
In the argument before their Lordships,
reliance was placed upon 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 17 Lah
356(1) at p. 367, that the words are a
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 a
Hindu male. The expression merely m
eans “in
the case of intestacy of a Hindu male”. To
place this interpretation on the Act is not to
give a retrospective effect to its provisions,
the materials point of time being the date
when the ,.succession opens, namely, the death
of the widow.
On the position of reversioners in Hindu Law,
opinions have been expressed by this Board
from time to time with which the views of the
learned Chief Justice in 58 All. 1041(2)
mentioned above, are in agreement. It was
said, for instance, that until the termination
of the widow’s estate, it is impossible to say
who are the persons who will be entitled to
succeed as heirs to her husband; 9 M.I.A. 539
(3) at p. 604. The succession does not open
to the heirs of the husband until the
termination of the widow’s estate. Upon its
termination, the property descends to those
who would have been the heirs of the husband
If he had lived uP to and died at the moment
of her death 7 I. A. 115 (4) at 154.”
It would be noticed that the Privy Council interpreted the
words “dying intestate” as merely meaning “in the case of
intestacy of a Hindu male” and said that to place this
interpretation on the Act is not to give retrospective
effect to its provisions. Those are the very words found in
s. 8. These may be contrasted with the words of s. 6 “where
a male Hindu dies after the commencement of this Act.” Here
the reference is clearly to the time of the death. In
section 8 it is only to the fact of intestacy. The material
point of time, as pointed out by the Privy Council, is the
date when the succession opens, namely, the death of the
widow. It is interesting to note that the Privy Council was
interpreting the provisions of the Hindu Law of Inheritance
(Amendment) Act, 1929 where the two contrasting expressions
found in the Hindu Succession Act, 1956 are not found.’ The
case for the interpretation of the words “dying intestate”
under the Hindu Succession Act is stronger. The words
“where a male Hindu dies after the commencement of this Act”
in section 6 and their absence in section 8, are extremely
significant. Thus two propositions follow: (1) Succession
opens on- the death of the limited owner. and (2) the law
then in force would govern the succession.
Now if this proposition is correct, as we hold it is, that
where a female heir succeeds to an estate, the person
‘entitled to succeed on the basis as if the last male holder
had lived up to and died at the
(1) Mt. Rajpali Kunwer v. Surju Rai (58 All. 1041).
(2) Shakuntala Devi v. Kambsalya Devi (17 Lah 356).
(3) Katam Natchiar v. Rajah of Shiva Gunga (9 MIA 539),
(4) Monirain Kolita v. Kerry Kolitang (7 IA 115: 5 Cal
776).
533
death of the limited owner, succession to Wadhawa Singh’s
estate in the present case opened when his widow died and it
would have to, be decided on the basis that Wadhawa Singh
had died in 1963 when his widow died. In that case the
succession to his estate would have to, be decided on the
basis of s.8 of the Hindu Succession Act. The various High
Courts which have held otherwise seem to have been oppre-
ssed-by the feeling that this amounted to giving
retrospective effect to s. 8 of the Hindu Succession Act
whereas it is only prospective. As the Privy Council
pointed out it means no such thing. The accepted position
under the Hindu Law is that where a limited owner succeeds
to an estate the succession to the estate on her death will
have to be decided on the basis that the last full owner
died on that day. It would be unreasonable to hold that in
such a circumstance the law as it existed at the time when
the last male holder actually died should be given effect
to. If the person who is likely to succeed at the time of
the limited owner’s death is not, as happens very often,
likely to be the person who would have succeeded if the
limited owner had not intervened, there is nothing
unreasonable in holding that the law as to the person who is
entitled to succeed on the limited owner’s death should be
the law then in force and not the law in force at the time
of the last full owner’s death.
The Madras High Court thought that the decision of the Privy
Council in Duni Chand v. Anar Kali (supra) was based upon a
legal fiction and that fiction cannot be given effect to
except for a limited purpose. The Mysore High Court also
thought that the death referred to in section is actual
death and not fictional death. In East end Dwellings Co.,
Ltd. v. Finsbury Borough Council (1952 A.C. 109
132) lord Asquith of Bishopstone observed :.
“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 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 the 1939 level of rents.
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 that state of
affairs”.
This observation was cited with approval by this Court in
Venkatachalam v. Bombay Dyeing & Mfg. Co., Ltd (1959 S.C.R.
703) If, therefore, succession opens and is to be decided on
the basis of the last full owner dying on the date of death
of the limited owner the inevitable corollary is that it is
only the law in force at the time of the death of the
limited owner that should govern the case. To hold that the
old Hindu Law applies to such a case is to allow your
imagination to boggle. In the case decided by the Privy
Council in Duni Chand v. Anar Kali (supra) if this principle
had been applied the new heirs
534
introduced by the Hindu Law of inheritance (Amendment) Act,
1929 could not have then come in. We are not impressed with
the reasoning of the Patna High Court that because the
change brought about by that Act is different from the
change brought about by the Hindu Succession Act a different
conclusion follows. We should consider that if even the
limited change in the area of succession effected by the
Hindu Law of Inheritance (Amendment) Act, 1929 is to be
given effect to as the law applicable on the date of the
death of the limited owner, it is all the more reason why
the Hindu Succession Act which makes a much more radical
change in the Hindu Law should have similar application.
The Mysore High Court thought that the Hindu Succession Act
not being a mere declaratory Act, retrospective effect
should not be given to it so as to impair existing rights
and obligations. But the reversioners’ right being a mere
spes succession is there is no question of impairing
existing rights by adopting the interpretation we place on
section 8 apart from the fact that, as earlier pointed out,
the interpretation does not amount to giving retrospective
effect to section 8. of course, if the property had already
vested in a person under the ,old Hindu Law it cannot be
divested.
We must also point out that the classes of cases where such
a question is likely to arise is very limited. Where a
widow, mother or daughter was in possession of the estate on
the coming into force of the Hindu Succession Act she would
become full owner under the provisions of the S. 14 of the
Act. Even if a widow was in possession of the share
belonging to her in the joint family estate tinder the pro
-visions of the Hindu Women’s Right to property Act, 1937,
she would become a full owner under s. 14. In both those
cases S. 8 would have no operation. It is only in rare
cases, like the present, that the question is likely to
arise at all and we can see no reason either in principle or
on authority why the principle consistently followed under
the earlier Hindu Law that on the death of the limited owner
succession opens and would be decided on the basis that the
last male owner died on that day, should not apply even
after coming into force of the Hindu ,Succession Act,
Mr. Naunit Lal appearing for the appellant argued that the
result ,of the decision of this Court in Eramma v.
Verrupanna (supra) is that on the death of Wadhawa Singh’s
widow it is the old Hindu Law that applied and therefore
under the custom in force in Punjab under which a daughter
was not entitled to succeed to the ancestral property of the
father in preference to the reversioners should apply and
the appellants are entitled to succeed. There is no doubt
about the position under the Customary Law of Punjab before
coming into force of the Hindu Succession Act. In
Rattigan’s Digest of the Customary Law’ published by the
University Book Agency (14th Ed.), paragraph 23 at age 132
it is stated:
” 23.(1) A daughter only succeeds to the
ancestral landed property of her father, if an
agriculturist, in default :-
(1) Of the heirs mentioned in the preceding
paragraph and
535
(2) Of near male collaterals of her father,
provided that a married daughter sometimes
excludes near male collaterals, especially
amongst Muhammadan tribes :
(a) where she has married a near collateral
descendant from the same common ancestor as
her father; or
(b) where she has, with her husband
continuously lived with her father since her
marriage; looking after his domestic wants,
and assisting him in the management of his
estate; or
(c) where being married to a collateral of
the father’s family, she has been appointed by
her father as his heir.
(2) But in regard to the acquired property of
her father,the daughter is preferred to
collaterals.”
It is on the basis of this Customary Law that the
reversioners succeeded in the suit filed by them questioning
the gift made by the respondent’s mother to her. There is
no doubt that Rattigan’s work is an authoritative one on the
subject of Customary Law in Punjab, This Court in Mahant
Salig Ram v. Musammat Maya Devi (1955) SCR 1191 at 1196)
said :-
“Customary rights of succession of daughters
as against the collaterals of the father with
reference to ancestral and non-ancestral lands
are stated in paragraph 23 (if Rattigan’s
Digest of Customary Law. it is categorically
stated in sub-paragraph (2) of that paragraph
that the daughter succeeds to the self
acquired property of the father in preference
to the collaterals even though they are within
the fourth degree. Rattigan’s work has been
accepted by the Privy Council as “a book of
unquestioned authority in the Punjab”. Indeed
the correctness of this paragraph was not
disputed before this Court in Gopal Singh v.
Ujagar Singhi (1).
It is not now open to the respondent to show whether any of
the circumstances mentioned in sub-paragraph (2) of
paragraph 23 of Rattigan’s Digest of Customary Law is
present here as the previous decision is resjudicata between
the parties and in any case it has not been attempted to be
shown in this case. But in the view we have taken that it
is s. 8 of the Hindu Succession Act that applies and not the
Customary Law the appellants cannot succeed in this appeal.
In the result the appeal is dismissed. The appellants will
pay the respondent’s costs.
S. B. W.
Appeal dismissed.
(1) 1955 S.C.R. 86.
536