{"id":216075,"date":"1974-03-05T00:00:00","date_gmt":"1974-03-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/daya-singh-dead-through-l-rs-vs-dhan-kaur-on-5-march-1974"},"modified":"2018-05-11T01:41:50","modified_gmt":"2018-05-10T20:11:50","slug":"daya-singh-dead-through-l-rs-vs-dhan-kaur-on-5-march-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/daya-singh-dead-through-l-rs-vs-dhan-kaur-on-5-march-1974","title":{"rendered":"Daya Singh (Dead) Through L.Rs. & … vs Dhan Kaur on 5 March, 1974"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Daya Singh (Dead) Through L.Rs. & … vs Dhan Kaur on 5 March, 1974<\/div>\n
Equivalent citations: 1974 AIR 665, \t\t 1974 SCR (3) 528<\/div>\n
Author: A Alagiriswami<\/div>\n
Bench: Alagiriswami, A.<\/div>\n
           PETITIONER:\nDAYA SINGH (dead) THROUGH L.RS. & ANR.\n\n\tVs.\n\nRESPONDENT:\nDHAN KAUR\n\nDATE OF JUDGMENT05\/03\/1974\n\nBENCH:\nALAGIRISWAMI, A.\nBENCH:\nALAGIRISWAMI, A.\nMATHEW, KUTTYIL KURIEN\n\nCITATION:\n 1974 AIR  665\t\t  1974 SCR  (3) 528\n 1974 SCC  (1) 700\n\n\nACT:\nHindu Succession Act, 1956, sec. 8-Whether effects change in\nold  Hindu Law--Death of female limited owner  who  succeeds\nlast male holder-Customary Law of Punjab whether applicable-\nHeld,  succession opens on death of limited owner and  would\nbe governed by law then in force-Interpretation of statutes.\n\n\n\nHEADNOTE:\nThe respondent's father, W, who owned the suit property died\nin 1933.  His widow, who succeeded to the estate, gifted the\nproperty  to her daughter, the respondent.   The  appellants\nfiled a suit as reversioners of W questioning the gift.\t The\n\"it  'as  decreed and the decree was  confirmed\t on  appeal.\nAfter coming into force of the Hindu Succession Act on 17-6-\n1956, the widow again made a gift of the same, lands to\t the\nrespondent.   She died in 1963.\t The appellants\t then  filed\nthe suit, out of which this appeal arose, for possession  of\nthe  lands.  alleging that the second gift  was\t void.\t The\ntrial court decreed their suit but on appeal the  respondent\nsucceeded  in  the first Appellate Court as well as  in\t the\nHigh Court on second appeal.\nOn appeal by special leave to this Court,\nDismissing the\tappeal,\nHELD   (1) Following the decisions of the Privy\t Council  in\nMoniram\t Kolita v. Keri Kolitani, I.L.R. 5 Calcutta  776  at\n789  and  Duni\tChand v. Anar Kali, A.I.R.  1946  P.C.\t173,\n(infra) the words \"dying intestate in Sec. 8 of the Act must\nbe  interpreted as merely meaning \"in the case of  intestacy\nof a Hindu male\" and to place this interpretation on the Act\nis not to give retrospective effect to its provisions.\t The\nreference  is only to the fact of 'intestacy.  The  material\npoint of time is the date when the succession opens, namely,\nthe  death of the widow.  Thus this propositions follow\t (i)\nSuccession opens on the death of the limited owner, and (ii)\nthe   law  then\t in  force  would  govern  the\t succession.\n[532D-G]\nMoniram Kolita v. Keri Kolitani, I.L.R. 5, Calcutta 776\t 789\nand Duni Chand v.   Anar   Kali,  A.I.R.  1946\t P.C.\t173,\nfollowed.\nEramma\tv. Verritpatina, (1966) 2 S.C.R. 626, explained\t and\ndistinguished.\nBanso  v.  Charan Singh, A.I.R. 1961, Punjab 45\t and  Kuldip\nSing v. Karnail Singh, A.I.R. 1961, Punjab, 573, approved.\nKempiah v. Giriganima, A.I.R. 1966, Mysore 189, overruled.\nRenuka\tBala v. Aswini Kumar A.I.R. 1961, Patna 498 and\t Sam\npathkumari  N.\tLakshmi\t Ammal,\t A.I.R.\t 1963  Madras,\t 50,\ndistinguished.\n(ii)Succession\tto  W's estate in the present  cage  opened\nwhen  his widow died and it would have to be decided on\t the\nbasis that W died in 1963 when his widow died. in that\tcase\nsuccession  to\this estate would have to be decided  on\t the\nbasis  of  s. 8 of the Hindu Succession Act.   The  accepted\nposition  under the Hindu law is that where a limited  owner\nsucceeds  to an estate the succession to the estate  on\t her\ndeath  will  have to be decided on the basis that  the\tlast\nfull  owner  died on that day.\t If,  therefore,  succession\nopens  and  is to be decided on the basis of the  last\tfull\nowner dying on the date of the death of the limited owner it\nis  only  the law in force at the time of the death  of\t the\nlimited owner that should govern the case.  To hold that the\nold  Hindu  law\t applies to such a case\t is  to\t allow\tyour\nimagination to boggle. [533-A-C, G-H]\nEastend Dwellings Co. Ltd. v. Finsbury Borough Council, 1952\nA.C. 109, 132, per Lord Acsquit and Venka tachalam v. Bombay\nDyeing & Mfg.  Co. Ltd., (1959) S.C.R. 703, referred to.\nThe reversioners' right being a mere spes successions  there\nis no question of impairing existing rights by adopting\t the\ninterpretation we place on s. 8 apart from\n529\nthe  fact  that it does not amount to  giving  retrospective\noperation  to s. 8. Of course,, if the property had  already\nvested\tin  a person under the old Hindu Law, it  cannot  be\ndivested.   We can see no reason either in principle  or  on\nauthority why the principle consistently followed under\t the\nearlier\t Hindu\tlaw that on the death of the  limited  owner\nsuccession opens and would be decided on the basis that\t the\nlast  male  owner died on that day, should  not\t apply\teven\nafter  coming  into force of the Act.  In the view  we\thave\ntaken  it  is  s.  8 of the Act that  applies  and  not\t the\nCustomary Law.[534C-D,E-F.535G]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1825 of 1967.
\nAppeal\tby special leave from the judgment and\torder  dated
\nthe  18th May, 1967 of the Punjab and Haryana High Court  in
\nL.P.A. No. 158 of 1967.\n<\/p>\n
Naunit Lal- and Lalit Kohli, for the appellant
\nO.P. Verma, for the respondent
\nThe Judgment of the Court was delivered by
\nALAGIRISWAMI,  J.-The  property in dispute  in\tthis  appeal
\nbelonged  to  Wadhawa Singh, the father of  the\t respondent.
\nAfter his death in the year 1933 his widow, who succeeded to
\nthe  estate,  made a gift of the property in favour  of\t her
\ndaughter,  the respondent, in.April, 1933.   The  appellants
\nfiled a suit as reversioners to the estate of Wadhawa  Singh
\nquestioning  the gift.\tThe suit was decreed and the  decree
\nwas  confirmed\ton appeal.  After coming into force  of\t the
\nHindu  Succession  Act on 17-6-1956 the widow again  made  a
\ngift of the same lands to the respondent.  She died in 1963.
\nThe appellants then filed the suit, out of which this appeal
\narises, for possession of the lands alleging that the second
\ngift  was void.\t The Trial Court decreed their suit  but  on
\nappeal the respondent succeeded in the first Appellate Court
\nas well as the High Court on-second appeal.
\nThere is no doubt that Wadhawa Singh’s widow had no right to
\nmale  a\t gift of the property which she inherited  from\t her
\nhusband\t in 1933 and the decree obtained by the\t appellants,
\nwho were reversioners to her husband’s estate would bind the
\nrespondent who was also a party, to that suit.\tThe question
\nthen   is-whether  the-coming  into  force,  of\t the   Hindu
\nsuccession Act and the subsequent gift made by the widow  in
\nfavour\tof the respondent make any difference.\tHad not\t the
\nwidow  made  the gift to the respondent in 1933,  she  would
\nhave become an absolute owner of the property as a result of
\nS.  14 of the Hindu Succession Act and the gift made by\t her
\nsubsequently in favour of the respondent could not have been
\nquestioned.  But having made the gift in 1933 she was not in
\npossession of the property inherited by her from her husband
\nand, therefore, did not become a full owner, with the result
\nthat  the  subsequent  gift made by her\t in  favour  of\t the
\nrespondent  was\t of no effect.\tThis point that\t unless\t the
\nlimited\t owner is in possession of the property\t section  14
\ndoes  not  apply has now been settled by decisions  of\tthis
\nCourt beyond dispute.\n<\/p>\n
What  then  is the effect of the provision of s.  8  of\t the
\nHindu  Succession  Act in the circumstances  of\t this  case.
\n‘The Punjab High Court in its decisions in  Banso v.  Charan
\nSingh  (AIR  1961 Punjab 45), and Kuldip  Singh\t v.  Karnail
\nSingh (AIR<\/a> 1961 Punjab 573), where the facts
\n530<\/span>
\nwere  similar to the present case, has taken the  view\tthat
\nwhen  a widow dies after the coming into force of the  Hindu
\nSuccession  Act\t the  next  heir to her\t husband  is  to  be
\ndetermined in accordance with the law prevailing on the date
\nof the death of the widow and not in accordance with the law
\nprevailing at the time of the death of her husband and\theld
\nthat   the   daughter  succeeded  in   preference   to\t the
\nreversioners.\tThe Mysore High Court on the other  hand  in
\nKempiah v. Girigamma (AIR 1966 Mysore 189) has held that  on
\nthe  death of the widow succession would be governed by\t the
\nHindu  Law  which  was in force when the  last\tmate  holder
\nactually  died.\t  The  Patna High Court in  Renuka  Bala  v.
\nAswini\tKumar  (AIR 1961 Patna 498) was disposed to  take  a
\nsimilar\t view though the case before it was  concerned\twith
\nsuccession  to\tthe  property of a female  under  s.15.\t The
\nMadras\tHigh  Court in Sampathkumari v. Lakshmi\t Ammal\t(AIR
\n1963   Madras\t50)  also  took\t the  view  that   in\tsuch
\ncircumstances  s.  8 of the Hindu Succession Act  would\t not
\napply.\t But  the case before that Court was one  where\t two
\nwidows who had succeeded to the estate of their husband were
\nin possession, and therefore, s. 14 was applicable.  Lastly,
\nwe  have the decision of this Court in Eramma v.  Verrupanna<\/a>
\n(1966 2 SCR 626).. In that case this Court after setting out
\nthe provisions of s. 6 of the Hindu Succession Act observed:\n<\/p>\n
\t      “It is clear from the express language of\t the
\n\t      section  that it applies only  to\t coparcenary
\n\t      property\tof the mate, Hindu holder  who\tdies
\n\t      after  the  commencement of the  Act.   It  is
\n\t      manifest\tthat  the language of s. 8  must  be
\n\t      construed\t in the context of s. 6 of the\tAct.
\n\t      We accordingly hold that the provisions of  s.
\n\t      8\t  of  the  Hindu  Succession  Act  are\t not
\n\t      retrospective  in operation and where  a\tmale
\n\t      Hindu  died  before the Act  came\t into  force
\n\t      i.e.,  where succession opened before the\t Act
\n\t      s. 8 of the Act will have no application.”\n<\/p><\/blockquote>\n
Interpreted  literally\tthis dicision would seem  to  accord
\nwith  the decisions of all the other High Courts except\t the
\nPunjab\tHigh  Court.   But it should  be  noticed  that\t the
\nproblem\t that we are faced within the present appeal and  in
\nthe  cases before the Punjab and Mysore High Courts did\t not
\narise  before  this  Court on  the  earlier  occasion.\t The
\ndecisions of the Madras High Court and the Patna High  Court
\nare not directly in point.\n<\/p>\n
In  the\t case  before  this Court  the\ttwo  women  were  in
\npossession of property whose last male holder, who had\tdied
\nbefore\tcoming into force of the Hindu Succession  Act,\t was
\ntheir\tstep  son.   They  were\t not,  therefore  in   legal
\npossession  of the properties of the last male holder.\t The
\nquestion  that had to be decided was whether because of\t the
\ncoming\tinto  force of the Hindu Succession  Act  they\twere
\nentitled  to  succeed under s. 8, and the  further  question
\nwhether\t s. 14 would be attracted as they were\tactually  in
\npossession.   It was held that as they were not\t legally  in
\npossession  s,\t14 would not apply, It was in  that  context
\nthat  it was said that where a male Hindu died\tbefore\tthe;
\nAct came into force i.e., where succession opened before the
\ns.   8\tof the Act will have no application, The point\tthat
\nsuccession
\n531<\/span>
\nmight  open  not  only when the male  Hindu  died  but\talso
\nsubsequently  again  when a limited owner who  succeeds\t him
\ndies  was not taken into account.  There was no need and  no
\noccasion to consider such a contingency in that case.  There
\nwas the further fact that the last male holder was succeeded
\non his death by persons who were then. his nearest heirs and
\nthe  property  vested in them could not be divested  by\t the
\nHindu Succession Act coming into force subsequently  thought
\nthis  fact was not adverted to in the judgment.\t This  Court
\nhad,  therefore. also no occasion to consider the effect  of
\nthe  earlier  decisions on the question as to  what  happens
\nwhen a female limited owner, whether she is a widow,  mother
\nor daughter who succeeds the last male bolder, dies.
\nThat position may now be considered.  It was authoritatively
\nlaid  down by the Privy Council in its decision\t in  Moniram
\nKolita v. Keri Kaliteni (ILR 5 Calcutta 776 at 789) that :\n<\/p>\n
\t      “According  to  the  Hindu Law,  a  widow\t who
\n\t      succeeds\tto  the\t estate of  her\t husband  in
\n\t      default  of male, issue, whether she  succeeds
\n\t      by inheritance or survivorship-as to which see
\n\t      the S hivagunga case (1)-does not take a\tmere
\n\t      life-estate in the property.  The whole estate
\n\t      is  for the time vested in her absolutely\t for
\n\t      some  purposes,  though in some  respects\t for
\n\t      only  a qualified interest.  Her estate is  an
\n\t      anomalous\t one, and has been compared to\tthat
\n\t      of  a  tenant-in-tail.  It would\tperhaps,  be
\n\t      more  correct to say that she holds an  estate
\n\t      of inheritance to herself and the heirs of her
\n\t      husband.\t But whatever her estate is,  it  is
\n\t      clear that, until the termination of it, it is
\n\t      impossible to say who are the persons who will
\n\t\t\t    be entitled to succeed as heirs of the
\n  husband
\n\t      (2).   The  succession does not  open  to\t the
\n\t      heirs of the husband until the termination  of
\n\t      the  widow’s estate.  Upon the termination  of
\n\t      that estate the property descends to those who
\n\t      would have been the heirs at the husband if he
\n\t      had lived up ‘to and died at the moment of her
\n\t      death (3).”\n<\/p><\/blockquote>\n
In the subsequent decision in Duni.  Chand v. Anar Kali (AIR
\n1946, PC 173) the Privy Council observed:\n<\/p>\n
\t      “….  during the lifetime of the\t widow,\t the
\n\t      reversioners  in\tHindu  Law  have  no  vested
\n\t      interest\tin the estate but have a  mere\tspes
\n\t      succession  is or chance of succession,  which
\n\t      is a purely contingent right which may or\t may
\n\t      not accrue,that the succession  would not open
\n\t      out until the widow died, and that the  person
\n\t      who would be the next reversioner at that time
\n\t      would succeed to the estate and the alteration
\n\t      in the rule of the Hindu Law brought about  by
\n\t      the Act would then be in full force.
\n\t      (1)   9 Moore’s I.A., 604.\n<\/p><\/blockquote>\n
\t      (2) Id., 604
\n\t      (3) Id., 601.<\/p><\/blockquote>\n
\t      532<\/span><\/p>\n
\t      In   the\targument  before  their\t  Lordships,
\n\t      reliance\twas  placed upon  the  words  “dying
\n\t      intestate” in the Act as connoting the  future
\n\t      tense,  but  their Lordships  agree  with\t the
\n\t      ‘view  of\t the  Lahore High Court\t in  17\t Lah
\n\t      356(1)  at  p.  367,  that  the  words  are  a
\n\t      description of the status of the deceased\t and
\n\t      have no reference and are not intended to have
\n\t      any  reference to the time of the death  of  a
\n\t\t\t    Hindu  male.  The expression merely\t m
\neans  “in
\n\t      the  case of intestacy of a Hindu\t male”.\t  To
\n\t      place this interpretation on the Act is not to
\n\t      give a retrospective effect to its provisions,
\n\t      the  materials  point of time being  the\tdate
\n\t      when the ,.succession opens, namely, the death
\n\t      of the widow.\n<\/p>\n
\t      On the position of reversioners in Hindu\tLaw,
\n\t      opinions\thave  been expressed by\t this  Board
\n\t      from time to time with which the views of\t the
\n\t      learned  Chief  Justice  in  58  All.  1041(2)
\n\t      mentioned\t above,\t are in agreement.   It\t was
\n\t      said, for instance, that until the termination
\n\t      of the widow’s estate, it is impossible to say
\n\t      who  are the persons who will be\tentitled  to
\n\t      succeed as heirs to her husband; 9 M.I.A.\t 539
\n\t      (3)  at p. 604.  The succession does not\topen
\n\t      to   the\theirs  of  the\thusband\t until\t the
\n\t      termination  of the widow’s estate.  Upon\t its
\n\t      termination,  the property descends  to  those
\n\t      who  would have been the heirs of the  husband
\n\t      If  he had lived uP to and died at the  moment
\n\t      of her death 7 I. A. 115 (4) at 154.”\n<\/p>\n
It  would be noticed that the Privy Council interpreted\t the
\nwords  “dying intestate” as merely meaning “in the  case  of
\nintestacy  of  a  Hindu male” and said that  to\t place\tthis
\ninterpretation\ton  the\t Act is not  to\t give  retrospective
\neffect to its provisions.  Those are the very words found in
\ns. 8. These may be contrasted with the words of s. 6  “where
\na male Hindu dies after the commencement of this Act.”\tHere
\nthe  reference\tis  clearly to the time of  the\t death.\t  In
\nsection 8 it is only to the fact of intestacy.\tThe material
\npoint  of time, as pointed out by the Privy Council, is\t the
\ndate  when  the succession opens, namely, the death  of\t the
\nwidow.\tIt is interesting to note that the Privy Council was
\ninterpreting the provisions of the Hindu Law of Inheritance
\n(Amendment) Act, 1929 where the two contrasting\t expressions
\nfound in the Hindu Succession Act, 1956 are not found.’\t The
\ncase  for the interpretation of the words “dying  intestate”
\nunder  the  Hindu  Succession Act is  stronger.\t  The  words
\n“where a male Hindu dies after the commencement of this Act”
\nin  section 6 and their absence in section 8, are  extremely
\nsignificant.   Thus two propositions follow: (1)  Succession
\nopens  on- the death of the limited owner. and (2)  the\t law
\nthen in force would govern the succession.
\nNow  if this proposition is correct, as we hold it is,\tthat
\nwhere  a  female  heir succeeds to  an\testate,\t the  person
\n‘entitled to succeed on the basis as if the last male holder
\nhad lived up to and died at the
\n(1)  Mt.  Rajpali Kunwer v. Surju Rai (58 All. 1041).
\n(2)  Shakuntala Devi v. Kambsalya Devi (17 Lah 356).
\n(3)  Katam Natchiar v. Rajah of Shiva Gunga (9 MIA 539),
\n(4)  Monirain  Kolita  v. Kerry Kolitang (7 IA\t115:  5\t Cal\n<\/p>\n
776).\n<\/p>\n
533<\/span><\/p>\n
death  of the limited owner, succession to  Wadhawa  Singh’s
\nestate in the present case opened when his widow died and it
\nwould  have to, be decided on the basis that  Wadhawa  Singh
\nhad  died  in 1963 when his widow died.\t In  that  case\t the
\nsuccession  to his estate would have to, be decided  on\t the
\nbasis of s.8 of the Hindu Succession Act.  The various\tHigh
\nCourts\twhich have held otherwise seem to have\tbeen  oppre-
\nssed-by\t  the\tfeeling\t that  this   amounted\t to   giving
\nretrospective  effect  to s. 8 of the Hindu  Succession\t Act
\nwhereas\t it  is\t only prospective.   As\t the  Privy  Council
\npointed\t out it means no such thing.  The accepted  position
\nunder  the Hindu Law is that where a limited owner  succeeds
\nto an estate the succession to the estate on her death\twill
\nhave  to  be decided on the basis that the last\t full  owner
\ndied on that day.  It would be unreasonable to hold that  in
\nsuch  a circumstance the law as it existed at the time\twhen
\nthe  last male holder actually died should be  given  effect
\nto.   If the person who is likely to succeed at the time  of
\nthe  limited  owner’s death is not, as happens\tvery  often,
\nlikely\tto  be the person who would have  succeeded  if\t the
\nlimited\t  owner\t had  not  intervened,\tthere\tis   nothing
\nunreasonable in holding that the law as to the person who is
\nentitled  to succeed on the limited owner’s death should  be
\nthe  law then in force and not the law in force at the\ttime
\nof the last full owner’s death.\n<\/p>\n
The Madras High Court thought that the decision of the Privy
\nCouncil in Duni Chand v. Anar Kali (supra) was based upon  a
\nlegal  fiction\tand that fiction cannot be given  effect  to
\nexcept\tfor a limited purpose.\tThe Mysore High\t Court\talso
\nthought\t that  the death referred to in\t section  is  actual
\ndeath  and not fictional death.\t In East end Dwellings\tCo.,
\nLtd. v. Finsbury Borough Council (1952 A.C. 109\n<\/p>\n
132) lord Asquith of Bishopstone observed :.\n<\/p>\n
\t      “If you are bidden to treat an imaginary state
\n\t      of  affairs as real, you must  surely,  unless
\n\t      prohibited  from\tdoing so,. also\t imagine  as
\n\t      real the consequences and incidents which,  if
\n\t      the  putative  state of affairs  had  in\tfact
\n\t      existed,\tmust inevitably have flowed from  or
\n\t      accompanied it.  One of those in this case  is
\n\t      emancipation  from  the 1939 level  of  rents.
\n\t      The  statute  says  that you  must  imagine  a
\n\t      certain state of affairs; it does not say that
\n\t      having done so, you must cause or permit\tyour
\n\t      imagination  to  boggle when it comes  to\t the
\n\t      inevitable   corollaries\tof  that  state\t  of
\n\t      affairs”.\n<\/p><\/blockquote>\n
This  observation was cited with approval by this  Court  in
\nVenkatachalam v. Bombay Dyeing & Mfg.  Co., Ltd (1959 S.C.R.\n<\/p>\n
703) If, therefore, succession opens and is to be decided on
\nthe basis of the last full owner dying on the date of  death
\nof the limited owner the inevitable corollary is that it  is
\nonly  the  law\tin force at the time of\t the  death  of\t the
\nlimited owner that should govern the case.  To hold that the
\nold  Hindu  Law\t applies to such a case\t is  to\t allow\tyour
\nimagination  to\t boggle.  In the case decided by  the  Privy
\nCouncil in Duni Chand v. Anar Kali (supra) if this principle
\nhad been applied the new heirs
\n534<\/span>
\nintroduced by the Hindu Law of inheritance (Amendment)\tAct,
\n1929 could not have then come in.  We are not impressed with
\nthe  reasoning\tof  the Patna High Court  that\tbecause\t the
\nchange\tbrought\t about\tby that Act is\tdifferent  from\t the
\nchange brought about by the Hindu Succession Act a different
\nconclusion  follows.   We should consider that if  even\t the
\nlimited\t change\t in the area of succession effected  by\t the
\nHindu  Law  of Inheritance (Amendment) Act, 1929  is  to  be
\ngiven  effect  to as the law applicable on the date  of\t the
\ndeath  of the limited owner, it is all the more\t reason\t why
\nthe  Hindu  Succession Act which makes a much  more  radical
\nchange\tin  the Hindu Law should have  similar\tapplication.
\nThe Mysore High Court thought that the Hindu Succession\t Act
\nnot  being  a  mere declaratory\t Act,  retrospective  effect
\nshould\tnot be given to it so as to impair  existing  rights
\nand  obligations.  But the reversioners’ right being a\tmere
\nspes  succession  is  there  is\t no  question  of  impairing
\nexisting  rights by adopting the interpretation we place  on
\nsection 8 apart from the fact that, as earlier pointed\tout,
\nthe  interpretation does not amount to giving  retrospective
\neffect to section 8. of course, if the property had  already
\nvested\tin  a person under the ,old Hindu Law it  cannot  be
\ndivested.\n<\/p>\n
We must also point out that the classes of cases where\tsuch
\na  question  is likely to arise is very\t limited.   Where  a
\nwidow, mother or daughter was in possession of the estate on
\nthe coming into force of the Hindu Succession Act she  would
\nbecome\tfull owner under the provisions of the S. 14 of\t the
\nAct.   Even  if\t a  widow was in  possession  of  the  share
\nbelonging  to her in the joint family estate tinder the\t pro\n<\/p>\n
-visions  of the Hindu Women’s Right to property Act,  1937,
\nshe  would become a full owner under s. 14.  In\t both  those
\ncases  S.  8 would have no operation.  It is  only  in\trare
\ncases,\tlike  the present, that the question  is  likely  to
\narise at all and we can see no reason either in principle or
\non  authority why the principle consistently followed  under
\nthe earlier Hindu Law that on the death of the limited owner
\nsuccession opens and would be decided on the basis that\t the
\nlast  male  owner died on that day, should  not\t apply\teven
\nafter coming into force of the Hindu ,Succession Act,
\nMr.  Naunit Lal appearing for the appellant argued that\t the
\nresult\t,of  the  decision  of\tthis  Court  in\t Eramma\t  v.
\nVerrupanna<\/a>  (supra) is that on the death of Wadhawa  Singh’s
\nwidow  it  is the old Hindu Law that applied  and  therefore
\nunder  the custom in force in Punjab under which a  daughter
\nwas not entitled to succeed to the ancestral property of the
\nfather\tin preference to the reversioners should  apply\t and
\nthe  appellants are entitled to succeed.  There is no  doubt
\nabout the position under the Customary Law of Punjab  before
\ncoming\t into  force  of  the  Hindu  Succession  Act.\t  In
\nRattigan’s  Digest  of the Customary Law’ published  by\t the
\nUniversity  Book Agency (14th Ed.), paragraph 23 at age\t 132
\nit is stated:\n<\/p>\n
\t      ”\t   23.(1)  A daughter only succeeds  to\t the
\n\t      ancestral landed property of her father, if an
\n\t      agriculturist, in default :-\n<\/p><\/blockquote>\n
\t      (1)   Of the heirs mentioned in the  preceding
\n\t      paragraph and
\n\t      535<\/span>
\n\t      (2)   Of near male collaterals of her  father,
\n\t      provided\tthat  a married\t daughter  sometimes
\n\t      excludes\tnear  male  collaterals,  especially
\n\t      amongst Muhammadan tribes :\n<\/p><\/blockquote>\n
\t      (a)   where she has married a near  collateral
\n\t      descendant  from the same common\tancestor  as
\n\t      her father; or\n<\/p><\/blockquote>\n
\t      (b)   where   she\t  has,\twith   her   husband
\n\t      continuously  lived with her father since\t her
\n\t      marriage;\t looking after his  domestic  wants,
\n\t      and  assisting  him in the management  of\t his
\n\t      estate; or\n<\/p><\/blockquote>\n
\t      (c)   where  being married to a collateral  of
\n\t      the father’s family, she has been appointed by
\n\t      her father as his heir.\n<\/p><\/blockquote>\n
\t      (2) But in regard to the acquired property  of
\n\t      her   father,the\tdaughter  is  preferred\t  to
\n\t      collaterals.”\n<\/p><\/blockquote>\n
It  is\ton  the\t basis\tof  this  Customary  Law  that\t the
\nreversioners succeeded in the suit filed by them questioning
\nthe  gift made by the respondent’s mother to her.  There  is
\nno doubt that Rattigan’s work is an authoritative one on the
\nsubject\t of  Customary Law in Punjab, This Court  in  Mahant
\nSalig  Ram  v. Musammat Maya Devi<\/a> (1955) SCR 1191  at  1196)
\nsaid :-\n<\/p>\n
\t      “Customary  rights of succession of  daughters
\n\t      as against the collaterals of the father\twith
\n\t      reference to ancestral and non-ancestral lands
\n\t      are  stated  in paragraph\t 23  (if  Rattigan’s
\n\t      Digest  of Customary Law. it is  categorically
\n\t      stated in sub-paragraph (2) of that  paragraph
\n\t      that   the  daughter  succeeds  to  the\tself
\n\t      acquired property of the father in  preference
\n\t      to the collaterals even though they are within
\n\t      the  fourth degree.  Rattigan’s work has\tbeen
\n\t      accepted\tby the Privy Council as “a  book  of
\n\t      unquestioned authority in the Punjab”.  Indeed
\n\t      the  correctness\tof this\t paragraph  was\t not
\n\t      disputed\tbefore this Court in Gopal Singh  v.
\n\t      Ujagar Singhi<\/a> (1).\n<\/p><\/blockquote>\n
It is not now open to the respondent to show whether any  of
\nthe   circumstances  mentioned\tin  sub-paragraph   (2)\t  of
\nparagraph  23  of  Rattigan’s Digest  of  Customary  Law  is
\npresent here as the previous decision is resjudicata between
\nthe parties and in any case it has not been attempted to  be
\nshown  in this case.  But in the view we have taken that  it
\nis s. 8 of the Hindu Succession Act that applies and not the
\nCustomary Law the appellants cannot succeed in this appeal.
\nIn the result the appeal is dismissed.\tThe appellants\twill
\npay the respondent’s costs.\n<\/p>\n
S. B. W.\n<\/p>\n
Appeal dismissed.\n<\/p>\n
(1)  1955 S.C.R. 86.\n<\/p>\n
536<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Daya Singh (Dead) Through L.Rs. & … vs Dhan Kaur on 5 March, 1974 Equivalent citations: 1974 AIR 665, 1974 SCR (3) 528 Author: A Alagiriswami Bench: Alagiriswami, A. PETITIONER: DAYA SINGH (dead) THROUGH L.RS. & ANR. Vs. RESPONDENT: DHAN KAUR DATE OF JUDGMENT05\/03\/1974 BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. MATHEW, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-216075","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDaya Singh (Dead) Through L.Rs. & ... vs Dhan Kaur on 5 March, 1974 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/daya-singh-dead-through-l-rs-vs-dhan-kaur-on-5-march-1974\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Daya Singh (Dead) Through L.Rs. & ... vs Dhan Kaur on 5 March, 1974 - 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