Anthony Servai v. Pethi Naicker and others — 1973 DIGILAW 285 (MAD)

Judgment:-These two Second Appeals arise out of O.S. No. 308 of 1965 filed by the plaintiffs claiming to be the nearest reversioners to the estate of one Pethi Naicker, a minor, who died in or about 1944. On the death of the limited owner (mother on 8th February, 1965) who succeeded the last male holder, (the minor) in 1944 the reversion opened and the plaintiff; have sought to recover possession from the defendants of the A to H schedule properties. The main question to be considered is whether section 8 of Act XXX of 1956 is applicable to a case where a limited owner who having parted with possession of the properties of the last male holder inherited by her before the coming into force of Act XXX of 1956, died after the coming into force of the Act. In order to appreciate the contentions raised, it is necessary to set out briefly the facts, which are as follows. 2. The suit properties originally belonged to Appi Naicker, who died in or about 1942 leaving behind him his only son Pethi Naicker, a minor, who also died in or about 1944 and was succeeded by his mother Pappammal, who was in possession and enjoyment of the same till she alienated the same in 1949 in favour of her nearest relations and died in 1965. The plaintiffs as reversioners filed a declaratory suit (O.S.No. 335 of 1949) against Pappammal and the alienees contending that the said alienations are not binding on the reversioners and the said suit was decreed on 13th September, 1950, the Court holding that the said alienations are not valid after the lifetime of Pappammal. . The said Pappammal died on 8th February, 1965 and on her death the plaintiffs as the nearest reversioners to the estate of the last male holder, Pethi Naicker (minor) have filed the present suit for recovery of possession of the suit properties. 3. The first defendant, who is the alienee, contested the suit on the ground that the sale deed in his favour is true, valid and fully supported by consideration, that he is not bound by the decree in O.S No. 335 of 1949 to which he was not a party, that in any event he had spent Rs. 3. The first defendant, who is the alienee, contested the suit on the ground that the sale deed in his favour is true, valid and fully supported by consideration, that he is not bound by the decree in O.S No. 335 of 1949 to which he was not a party, that in any event he had spent Rs. 2,500 in making the suit properties fit for garden cultivation, that he has converted them into nanja lands, that he has further dug a well in the A schedule properties and put up stone construction, that the houses constructed were worth about Rs. 1,000, that he had also put up a gr?nite stone embankment at a cost of Rs. 600, that he had acquired title to the A schedule by adverse possession, that the suit was barred by limitation and that the plaintiffs were not entitled to recover possession without paying costs of the improvements effected. 4. Defendants 3 and 4 contended that Pappammal had othied C schedule properties to the third defendant and the D schedule properties to the fourth defendant, that they are in possession of the said properties as othidars and that the Othi debts not having been discharged by Pappammal, the plaintiffs are not entitled to possession without edemption. 5. Defendants 2 and 5 remained ex parte. The sixth defendant filed a written statement contending that the plaintiffs are not the nearest reversioners, that she is the daughter of Venkattammal, the sister of late Pethi Naicker (senior), that Pappammal became the absolute owner of the properties of late minor Pethi Naicker by virtue of section 14 of Act XXX of 1936, that she alone is the heir, who is entitled to the suit properties by yirtye of section 15 of the said Act, that Pappammal had also devised the suit property in her favour under the registered will dated 2nd December, 1964, and that the decision in O.S. No. 335 of 1946 is not binding on her in view of Act XXX of 1956. 6. The plaintiffs filed a reply statement contending that the first defendant purchased the A schedule properties with knowledge of the decree in O.S. No. 335 of 1949 and in spite of the objections of the plaintiffs and their notice, that the deepening of the well was done after the issue of the plaintiffs’ objections, the cost of which could not have exceeded Rs. 50, that he has not levelled up the lands, that the othi deeds have been brought about by the alienees under the sale deed dated 7th September, 1959, that Pappammal had no interest in the suit properties at the time when the Hindu Succession Act XXX of 1956 came into force, that the sixth defendant is not the heir and not entitled to the suit properties and that the alleged will in favour of the sixth defendant is not valid . 7. The trial Court decreed the suit and directed the plaintiffs to pay Rs. 3,750 being the value of improvements effected by the first defendant and permitted the first defendant to remove the superstructures put up by him. 8. Aggrieved by the said judgment and decree the plaintiffs as well as the first defendant filed A.S. No. 162 of 1967 and 172 of 1967 to the Sub-Court, Dindigul. Two questions arose for determination in both the appeals. They were (1) whether the plaintiffs are the reversioners to the estate of Pethi Naicker as on the date of death of Pappammal and (2) whether the first defendant is entitled to the cost of improvements effected by him and if so to what amount 9. The learned Judge relying on the decision in Sampath Kumari v. Lakshmi Ammal1, and Erramma v. Veerupana2, held that the plaintiffs, are the reversioners to the estate of Pethi Naicker, and are entitled to succeed on the death of Pappammal, (the limited owner) with reference to the law that was prevalent prior to the enactment of Act XXX of 1956 and not the sixth defendant who would be the heir only if the heirship is to be traced under Act XXX of 1956. On the question of improvements the appellate Court held that the first defendant would not be entitled to the cost of improvements as he had effected such improvements only after being put on notice by the plaintiffs of his defective title. In the result A.S. No. 162 of 1967 was allowed and A.S. No. 172 of 1967 was dismissed. The above two second appeals are filed by the first defendant. 10. In the result A.S. No. 162 of 1967 was allowed and A.S. No. 172 of 1967 was dismissed. The above two second appeals are filed by the first defendant. 10. The question that arises for consideration in the above Second Appeals is whether succession on the death of a limited owner, who has parted with the property to which she succeeded before the coming into force of the Hindu Succession Act, but who died after the Act had come into force, is governed by section 8 of the Act or whether the Hindu Law prevailing prior to the coming into force of the Act will apply. It is the common case that the limited owner did not die possessed of any property to which section 14 of the Act would be applicable. It is also the common case that the plaintiffs are the nearest heirs of the last maleholder, the succession to whose property opened on the death of the limited owner and that if section 8 is applicable, the plaintiffs will be nowhere. 11. It may be seen that under the old Hindu Law, when a limited owner who succeeds to the estate of the last male holder dies, succession opens on her death, but succession is traceable to the last male holder, and the fiction is that the last male holder who actually died long ago is deemed to die simultaneously with the limited owner. The said fiction is applicable only for the purpose ascertaining who the nearest reversioners are on the date of death of the limited owner. In other words, the fictional date of death of the last male holder and not his actual date of death is the basis for ascertainment as to who the reversioners of the estate of the last male holder are. In this connection section 4 (6) of the Hindu Succession Act, which was referred to by Venkataraman, J., in Sambathkumari v. Lakshmi Ammal and others1has a material bearing, the importance of which has been lost sight of in several decisions taking the opposite view. But for the recent judgment of the Supreme Court in Fatch Bibi v. Chanrandas2 , arising under the Central Act II of 1929 where a similar language as that in section 8 of the Succession Act is employed, this question should be taken to have been finally decided in Errdmma v. Veerupana3. But for the recent judgment of the Supreme Court in Fatch Bibi v. Chanrandas2 , arising under the Central Act II of 1929 where a similar language as that in section 8 of the Succession Act is employed, this question should be taken to have been finally decided in Errdmma v. Veerupana3. But as Ramanujam, J. has applied the latest decision of the Supreme Court to a case arising under the Hindu Succession Act, it has become necessary to consider the question as to which of the judgments of the Supreme Court have to be followed. It is in this view I have considered the question at some length. Before dealing with the case-law on the point it is necessary to set out the material portion of section 8 of the Central Act XXX of 1956, which runs as follows:- “The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter”. The Act came into operation on 17th June, 1956, on which date it received the assent of the President. The language of section 8 has to be contrasted with the language used in sections 6 and 7 of the Act. While sections 6 and 7 use the words “when a male Hindu dies after the commencement of the Act”, section 8 is singularly silent on this matter. A part from the different language used in that section, there is nothing in the section itself to indicate the intention of giving a retrospective operation and according to the well recognised canons of construction every provision is prospective unless there is an express or implied intention to give it a retrospective effect. So far as this Court is concerned a Division Bench consisting of Ganapatia Pillai and Venkataraman, JJ., in Sambathkumari v. Lakshmi Ammal and others1 , considered this question. Ganapatia Pillai, J., at page 52 explained certain of the observations made by the Privy Council in Duni Chand v. Mst. Anarkali1 , and held that having regard to the fundamental principle that succession is never is abeyance, the estate must vest in some heir as soon as the owner of the estate dies that " the estate in the present case "vested the two widows of Muthuswami Chettiar the last maleholder". Anarkali1 , and held that having regard to the fundamental principle that succession is never is abeyance, the estate must vest in some heir as soon as the owner of the estate dies that " the estate in the present case "vested the two widows of Muthuswami Chettiar the last maleholder". The learned Judge made the following observations at page 53: "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 up to the date of the death of the female heir who 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". The learned Judge ultimately came to the conclusion that section 8 is not retrospective and is inapplicable to the case on hand. 12. The other learned Judge, Venkataraman, J., dealt with this question more fully from pages 61 and referred to the various decisions on the point and ultimately came to the conclusion that section 8 is not retrospective. Various other High Courts took the same view. For example Kempiah v. Girigamma2 , Chaturbhuj Pradarn v. Sarbeshwar Vardah3and Jondebi v. Upendra Sahu4 . This question came up for consideration before the Supreme Court in Eramma v. Veerupana5 , Ramaswami, J., who delivered the judgment on behalf of the Bench observed at page 1881 as follows: — "There is nothing in the language of this section to suggest that it has retrospective operation. The words "The property of a male Hindu dying intestate" and the words "shall devolve" occurring in the section make it very clear that the property whose devolution is provided for by that section must be the property of a person who dies after the commencement of the Hindu Succession Act. The words "The property of a male Hindu dying intestate" and the words "shall devolve" occurring in the section make it very clear that the property whose devolution is provided for by that section must be the property of a person who dies after the commencement of the Hindu Succession Act. Reference may be made, in this connection, to section 6 of the Act which states: "When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that if the deceased had left him surviving a femle relative specified in class I of the schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship. It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of section 8 must be construed in the context of section 6 of the Act. We accordingly hold that the provisions of section 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, section 8 of the Act will have no application". 13. On the other line there are a few decisions commencing from Bopin Behari v. Smt. Lakshmosona Dassi6, taking the opposite view viz., that the Act is retrospective, that is to say, that section 8 of the Act will apply to such cases and I shall briefly refer to a few of them: Ratan Kumari v. Sundarlal7 , Mt. Taro v. Darshan Singh8, Ramulu v. Narayana6 and Harbhaj v. Mohan Singh". I may observe that the leramed Judges in Harbhaj v. Mohan Singh case10, decided after the decision of the above Supreme Court case did not refer to the decision of the Supreme Court in Eramma v. Veerupana1 . Taro v. Darshan Singh8, Ramulu v. Narayana6 and Harbhaj v. Mohan Singh". I may observe that the leramed Judges in Harbhaj v. Mohan Singh case10, decided after the decision of the above Supreme Court case did not refer to the decision of the Supreme Court in Eramma v. Veerupana1 . Similarly in Satyancrayana v. Sitamma2, the learned Judge without referring to Eramma v. Veerupana1, came to the same conclusion. Recently a Full Bench of the Himachal Pradesh High Court in Lachman v. Thunia3, has without referring to either of the two Supreme Court decisions referred to above come to the same conclusion. 14. As already stated,the Supreme Court has finally expressed in Eramma v. Veerupana1, that section 8 is only prospective. However, the Supreme Court in Fatch Bibi v. Charandas4, had occasion to consider a similar languge in the Hindu Law of Inheritance (Amendment Act 1929). The question which arose in the case was whether the Hindu Law of Inheritance (Amendment Act, 1929) applied only to a case of a Hindu female dying intestate on or after 21st February, 1929 (when the Act came into force) Or whether it applied to a case of a Hindu male dying intestate before the Act came into operation and succeeded by a female heir who died after that date. Vaidialingam, J., who delivered the Judgment of the Court in construing the 1929 Act, the langugae of which is similar to the language employed in section 8 of the Hindu Succession Act, held that the Act applied also to the case of a Hindu male dying intestate before the Act came into operation and is succeeded by a female heir who died after the Act came into force. The learned Judge relied on the decision of the Prviy Council in Lala Duni Chand v. Mt. Anar Kali5, wherein the words “dying intestate” was interpreted as descriptive of the status of the deceased and having no reference to the time of the death of the propositus. The learned Judge, however, did not refer to Eramma v. Veerupana1, rendered under section 8 of the Hindu Success-sion Act but came to the opposite conclusion. Anar Kali5, wherein the words “dying intestate” was interpreted as descriptive of the status of the deceased and having no reference to the time of the death of the propositus. The learned Judge, however, did not refer to Eramma v. Veerupana1, rendered under section 8 of the Hindu Success-sion Act but came to the opposite conclusion. Ramanujam, J., in Shanmughasundarathammal v. Narayana Konar and others6, applied the latest decision of the Supreme Court to a case arising under section 8 of the Hindu Succession Act and held that section 8 is prospective in operation and that the plaintiff, who was the one most nearly related to Sudalaimuthu, the last male holder at the time of the death of Somu Ammal, became entitled to the suit properties, (the date of the actual death of the last male header not being relevant). The Supreme Court having fully considered the question whether section 8 is retrospective or not in Eramma v. Veerupana7 , the question now arises as to how far the said decision has been affected by Fatch Bibi v. Charandas8That is a matter which requires consideration. Ramanujam, J., however, granted leave in the second appeal decided by him and I understand that an appeal has been filed against that Judgment. The question raised is of considerable importance and likely to recur frequently and an early authoritative determination of this question is desirable. I, therefore, consider that this is a fit matter to be decided by a Division Bench. The papers may, therefore, be placed before my Lord, the Chief Justice, for posting the appeal before a Division Bench. The Letters Patent Appeal against the Judgment in Shanmughasundarathammal v. Narayana Konar and others6, may also be posted along with this appeal. . On the second appeals coming before the Division Bench consisting of Kailasam and N. S. Ramaswami, JJ. The papers may, therefore, be placed before my Lord, the Chief Justice, for posting the appeal before a Division Bench. The Letters Patent Appeal against the Judgment in Shanmughasundarathammal v. Narayana Konar and others6, may also be posted along with this appeal. . On the second appeals coming before the Division Bench consisting of Kailasam and N. S. Ramaswami, JJ. The Judgment of the Court was delivered by N.S. Ramaswami, J.-The question that arises in the two Second Appeals and the Letters Patert Appeal is one and the same, viz., whether the provisions of the Hindu Succession Act (XXX of 1956), hereinafter referred to as the Act, or the textual Hindu Law, which was in force prior to the coming into force of the Act, have to be applied for determining the reversiorers in a case where the last male prior to the coming into force of the Act, died after the coming into force of the Act. 16. The two second appeals arise out of Original Suit No. 308 of 1965 on the file of the Court of District Munsif, Dindigul, which is one filed by the two plaintiffs in that suit as reversioners of one Pethi Naicker, a minor, who died in the year 1944, for the recovery of possession of the properties of the said Pethi. On Pethi’s death in the year 1944, his mother Pap-pammal succeeded to his estate as a limited owner and she alienated the several items of suit properties. The property described in the A schedule to the plaint has been sold to the 1st defendant in the case. Other items had been alienated in favour of defendants 2 to 5, but we are not concerned with those items in the second appeals. Pappammal died on 8th February, 1965. As far as A Schedule property is concerned, the 1st defendant, the alienee, inter alia contended that Pappammal having died after the Act came into force, the reversioners of Pethi, the last male holder, should be determined as per the provisions of the Act and not in accordance with the textual Hindu Law which was in vogue prior to the coming into force of the Act and that under the provisions of the Act, the two plaintiffs would not be the nearest reversioners of the last male holder as on the date of the death of Pappammal, the limited owner. Muthammal, impleaded as the 6th defendant, is the last male holder’s sister’s daughter who would be a class II heir as per the provisions of the Act. The two plaintiffs are the son’s sons of one Kolandama Naicker who is the brother of the paternal great-grandfather Of the last male holder. If the provisions of the Act are applicable, admittedly the plaintiffs would be owners in the picture. The 1st defendant further contended that in any event, he should be paid the monies spent by him for improving the property before he is dispossessed of the property. The trial Court found in favour of the plaintiffs regarding the question whether they are entitled to possession of the property, but held that the plaintiffs are bound to pay a sum of Rs. 3,750 to the 1st deferdant towards improvements carried out by him, before getting possession. The plaintiffs filed A. S. No. 162 of 1967 on the file of the Court of Subordinate Judge, Dindigul, against that portion of the decree of the trial Court which was against them viz., the direction to the plaintiffs to pay a sum of Rs. 3,750 to the 1st defendant as a condition precedent to get possession of the property. The 1st defendant filed A.S. No. 172 of 1967 on the file of the same court challenging the decision of the trial Court that the plaintiffs are entitled to possession of the property. The two appeals were heard together by the learned Subordinate Judge, Dindigul and he concurred with the view of the trial Court that the plaintiffs are entitled to possession. Both the Courts found that the reversioners entitled to get the estate of the last male holder are to be determined only as per the textual Hindu Law which was in vogue prior to the coming into force of the Act and not under the provisions of the Act. The first appellate Court further found that the 1st defendant is not entitled to claim the value of the improvements carried out by him. Therefore the first appellate Court allowed A.S. No. 162 of 1967 filed by the plaintiffs and dismissed A.S. No. 172 of 1967 filed by the 1st defendant. The first appellate Court further found that the 1st defendant is not entitled to claim the value of the improvements carried out by him. Therefore the first appellate Court allowed A.S. No. 162 of 1967 filed by the plaintiffs and dismissed A.S. No. 172 of 1967 filed by the 1st defendant. The two second appeals are by the 1st defendant, Second appeal No. 1076 of 1970 being against the dismissal of A.S. No. 122 of 1967 by the first appellate Court and Second Appeal No. 1088 of 1970 being against A.S. No. 162 of 1967 which has been allowed by the first appellate Court. 17. The two second appeals came up before Raghavan, J. and the learned Judge, after referring to a number of decisions and particularly to two decisions of the Supreme Court one in Eramma v. Veemppana1and the other in Fateh Bibi v. Charandas2, made a reference that the two second appeals be posted before a Division Bench for the decision of the question whether section 8 of the Act would be applicable in the case of a male Hindu whose physical death occurred prior to the coming into force of the Act, but the limited owner alienating the estate prior to the coming into force of the Act died after the coming into force of the Act. The learned Judge felt that there was conflict of opinion regarding this question in the two decisions of the Supreme Court referred to above and that is why the reference has been made. 18. Letters Patent Appeal No. 6 of 1972 arises out of a different matter turning on a similar question. That is against the decision of Ramanujam, J., in Second Appeal No. 1439 of 1969 which is reported in Shanmughasundarathammal v. Narayana Konar1. There the learned Judge found that in view of the decision of the Supreme Court in Fateh Bibi v. Charandas2, section 8 of the Act would be applicable even in a case of a male Hindu whose physical death occurred prior to the coming into force of the Act, provided the limited owner, who got the estate and alienated the same before the coming into force of the Act, died after the commencement of the Act. As the question that arises in the two second Appeals as well as in the Letters Patent Appeal is one and the same, they were heard together. 19. As the question that arises in the two second Appeals as well as in the Letters Patent Appeal is one and the same, they were heard together. 19. In the two second appeals, admittedly the two plaintiffs would be the nearest reversioners of the last male holder Pethi (who died as a minor in the year 1944), if the textual Hindu Law is applied. Similarly, if the provisions of the Act are applicable, then the 6th defendant, who is the last male holder’s sister’s daughter, would be the nearest reversioner as she is one of the Class II heirs under the Act who get precedence over agnates. Section 4 (1) of the Act is as follows: "Save as otherwise expressly provided in this Act — (a) 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 this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act". Section 8 of the Act relates to the general rules of succession in the case of males and it is as follows: "The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter: (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) Secondly, if there is no heir of Class I, then upon the heirs, being the relatives in class II of the schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased". Whether section 8 is applicable in the case of the estate of Pethi, the last male holder, is the question. We are quite clear that it does. In holding so, we do not say for a moment that section 8 is retrospective in character. It is true that minor Pethi died long prior to the coming into force of the Act. We are quite clear that it does. In holding so, we do not say for a moment that section 8 is retrospective in character. It is true that minor Pethi died long prior to the coming into force of the Act. But his mother Pappammal intervened as a limited owner and she died only in the year 1965 after the coming into force of the Act.The succession to the estate of minor Pethi. undoubtedly opened on 8th February, 1965, the date on which Pappammal, the limited owner, died. It is settled law that even though the last male holder’s physical death is on a particular date, for the purpose of determining the order of succession fictionally he would be deemed to have died only on the date on which the intervening limited owner dies. Therefore, to apply section 8 to a case where the physical death of the last male holder happened prior to the commencement of the Act but succession to his estate opened only after the commencement of the Act (as in the present case), it is wholly unnecessary to construe section 8 as retrospective in character. Because of the fiction referred above, "the term "male Hindu dying intestate" occurring in section 8 would, in the case of the male Hindu dying prior to the commencement of the Act but succession to his estate opening after the commencement of the Act, have reference only to the date on which the limited owner dies.In other words, in such a case, the male Hindu dies intestate only on the date on which the limited owner dies. 20. The Act is a codifying law relating to intestate succession among Hindus. Section 4 of the Act says that the law relating to succession among Hindus that was in force prior to the commencement of the Act shall cease to have effect in respect of matters for which provision has been made in the Act. Succession to a male Hindu is a matter undoubtedly provided for in the Act. That being so, we are unable to see how the old textual Hindu Law can be looked into for ascertaining the reversionary heirs of a male Hindu regarding whose estate succession opens after the commencement of the Act, merely because the physical death of the man had occurred prior to the commencement of the Act. 21. That being so, we are unable to see how the old textual Hindu Law can be looked into for ascertaining the reversionary heirs of a male Hindu regarding whose estate succession opens after the commencement of the Act, merely because the physical death of the man had occurred prior to the commencement of the Act. 21. The question whether section 8 would apply to a case where the physical death of a male Hindu occurs prior to the commencement of the Act, arises only where a limited owner takes the estate, alienates the same prior to the commencement of the Act and dies subsequent to the commencement of the Act. In cases where no limited owner takes the estate on the death of the last male holder, the estate vests in the nearest heir of the last male holder and the Act, which came into force on a subsequent date, would have no application at all to such an estate. The legislation must be taken to be only prospective in character unless there are clear words in the statute to make any particular provision to have retrospective operation. In cases where a Hindu male died intestate prior to the commencement of the Act and there was no limited owner taking the estate, the same would have gone to his heirs according to the rules of succession then in force. The estate having thus vested in such heir or heirs, they cannot be divested of the estate, even though, under the statute which comes into force subsequently, they would not be the nearest heirs of the said last male holder. Section 8 of the Act is certainly not meant to be applied to a case where the estate has already vested in a full owner as per the rules of succession which were in force prior to the commencement of the Act. 22. Similarly, if the estate left by a male Hindu who dies prior to the commencement of the Act happened to be an interest in coparcenary property and that interest had passed on to other members of the coparcenary by survivorship, such estate would not be affected in any way by the provisions of the Act. 22. Similarly, if the estate left by a male Hindu who dies prior to the commencement of the Act happened to be an interest in coparcenary property and that interest had passed on to other members of the coparcenary by survivorship, such estate would not be affected in any way by the provisions of the Act. Section 6 of the Act, which deals with devolution of interest in coparcenary property, specifically says that the provision applied to a case of a male Hindu dying after the commencement of the Act. That is so because the provisions are not meant to have retrospective operation, affecting estates which had already vested in accordance with the rules of Hindu Law which were in force prior to the commencement of the Act. 23. What happens in a case where a female Hindu takes the estate as a limited owner on the death of the last male holder prior to the commencement of the Act ? If the estate continued to be in the possession of such a female Hindu till the date on which the Act came into force, by virtue of section 14. (1) of the Act the limited estate would get enlarged to an absolute estate, for section 14 (1) of the Act says that any property in possession of 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. In such a case, when the female Hindu, who became the absolute owner of the estate, dies subsequently, she would bs the stock of descent and succession has to be traced to her. 24. The difficulty arises only in a case where a female Hindu becomes a limited owner in respect of the estate of a male who dies prior to the commencement of the Act, then the limited owner, alienates the estate (prior to the commencement of the Act) and dies subsequent to the commencement of the Act. To such a case section 14 of the Act is not applicable because the property is not possessed by the female Hindu as contemplated under that section. When, in such a case, the female Hindu dies after the commencement of the Act, undoubtedly succession to the estate opens on the date on which she dies. To such a case section 14 of the Act is not applicable because the property is not possessed by the female Hindu as contemplated under that section. When, in such a case, the female Hindu dies after the commencement of the Act, undoubtedly succession to the estate opens on the date on which she dies. It must be remembered that the property remains that of the last male holder who died prior to the commcencement of the Act, as the female Hindu who got the property held only a limited estate in the same and it never got enlarged into an absolute estate, as the female Hindu was not possessed of the property after the commencement of the Act, the same having been sold away prior to the commencement of the Act. Therefore succession is to be traced to the last male holder as if he died on the date on which the limited owner died, even though the physical death of the last male holder had occurred very much prior to the commencement of the Act. That is the situation in the present case. 25. The property in question had been alienated to the 1st defendant by Pappammal, the limited owner, prior to the commencement of the Act, but she died only on 8th February, 1965. The reversionary heirs of minor Pethi as on that date, viz., 8th February, 1965, have to be determined because of the fiction that the last male Hindu should be deemed to have died intestate only on the date on which the limited owner died. Therefore taking section 8 to be only prospective in character, we do not see why the provisions of that section are not to be applied in the case. If the textual Hindu Law has to be applied to the present case in order to find out the nearest reversioners, then it would, in our opinion, amount to making the intention of the legislature nugatory. When the legislature codified the law of succession relating to Hindus dying intestate, it is not possible to say that they intended that the old textual Hindu Law would apply in a case where the succession opens very much after the commencement of the Act as in the present case. When the legislature codified the law of succession relating to Hindus dying intestate, it is not possible to say that they intended that the old textual Hindu Law would apply in a case where the succession opens very much after the commencement of the Act as in the present case. That in a case where a limited owner intervenes, succession to the estate of the last male holder opens on the date on which the limited owner dies, cannot be disputed. In the present case, the suit has been filed only on the basis that succession has opened on 8th February, 1965, the date on which Pappammal, the limited owner, died. But in spite of succession so opening very much after the commencement of the Act, the plaintiffs want the Court not to apply section 8 of the Act to determine who the nearest reversioners are and they want the old textual Hindu Law to be applied. We are quite clear that that is not possible. 26. It must be taken to be settled law that the expression “a Hindu male dying intestate” need not necessarily relate to the date of the physical death of the man and that it would relate to the date of the fictional death of the man in cases where a limited owner intervened. 27. It is contended that a reading of sections 6 and 8 of the Act together would show that section 8 would be applicable only to a case where a male Hindu physically dies after the commencement of the Act. Section 6 of the Act relates to devolution of interest in coparcenary property. The section re-enacts the old textual Hindu Law that the interest of a Hindu in a Mitakshara coparcenary property shall devolve by survivorship upon the surviving members of the coparcenary. Section 6 of the Act relates to devolution of interest in coparcenary property. The section re-enacts the old textual Hindu Law that the interest of a Hindu in a Mitakshara coparcenary property shall devolve by survivorship upon the surviving members of the coparcenary. But there is a proviso to the section which says that if the male Hindu, who dies after the commencement of the Act, had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, his interest in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship (Explanation I to the section says the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not). Therefore in a case where a Hindu coparcener dies intestate after the commencement of the Act leaving a female relative specified in Class I of the Schedule, etc. his interest in the coparcenary would not devolve by survivorship (though it would have so devolved but for the coming into force of the Act) but as per. the provisions contained in section 8 of the Act. To this extent section 8 is linked with section 6. But the question is whether, because of the above link between the two sections, one can hold that section 8 would apply only to a case where the physical death of a male Hindu occurs after the commencement of the Act. We do not think so. It must be remembered that section 6 relates only to devolution of interest in coparcenary property and to no other property. As far as such interest in coparcenary property is concerned, the Act applied only if the male Hindu died after the commencement of the Act. That is so because, if a coparcener had died prior to the commencement of the Act, his interest in the coparcencry would have already devolved by the law of survivorship on the remaining coparceners and the same would have vested in them and the Act is not meant to divest persons of estates which had already vested in them. That is so because, if a coparcener had died prior to the commencement of the Act, his interest in the coparcencry would have already devolved by the law of survivorship on the remaining coparceners and the same would have vested in them and the Act is not meant to divest persons of estates which had already vested in them. But section 8 does not relate only to interest in coparcenary property but it relates to separate property of a male Hindu as well. In fact, under Explanation I to section 6, the interest in coparcenary property of a male Hindu dying intestate is deemed to be his share in the coparcenary property in case a partition had been effected as on the date on which he died. That is for the purpose of applying the rule of succession contained in section 8 to the interest of a coparcener who dies intestate. But as we said, section 8 is not intended to cover only cases contemplated under section 6 of the Act, for while section 6 relates only to devolution of interest in coparcenary property, section 8 operates on a wider field. Therefore, though while determining the devolution of interest in coparcenary property under section 6, one has to look to section 8, there would be no vice-versa. In other words, to determine the meaning of the expression “a male Hindu dying intestate” occurring in section 8, section 6 is not to be tacked on. 88. In Duni Chand v. Anar Kali1, the Judicial Committee had to consider this question, viz., the meaning of the expression “a Hindu male dying intestate”, though it was under the Hindu Law of Inheritance (Amendment) Act, 1929. That was a case where the physical death of the Hindu male happened before the coming into force of the 1929 Act. He was succeeded by a female heir who died after the Act came into operation. The Judicial Committee held that in that case the succession to the estate opened out on the death of the female heir and hence the 1929 Act would apply to the case and an heir under the said Act would be entitled to succeed. He was succeeded by a female heir who died after the Act came into operation. The Judicial Committee held that in that case the succession to the estate opened out on the death of the female heir and hence the 1929 Act would apply to the case and an heir under the said Act would be entitled to succeed. Their Lordships pointed out that there is no vesting as at the date of the death of the last full owner and the question of who is the nearest heir or what is the class of reversionary heirs, falls to be settled at the date of the expiry of the ownership for life. It was also pointed out that during the lifetime of the female limited owner, reversionary right is a mere possibility or spes successions and that it cannot be predicated who would be the nearest reversioner at the time of her death. Even though this decision is under the 1929 Act, the principle is the same. The question in both the cases is whether the expression “a Hindu male dying intestate” has reference only to the date of the physical death of the man or it would refer to the date of the fictional death, viz., the date on which the limited owner died. This decision of the Judicial Committee has been approved by the Supreme Court in Fateh Bibi v. Charan Dass2 . That is also a case under the 1929 Act. But we think after the above decision of the Supreme Court it would not be open to contend that the expression “a Hindu made dying intestate” should have reference only to the date of the physical death of the man even in a case where a limited owner intervenes and succession opens after the commencement of the Act. As a matter of fact, we are of the opinion that the principle laid down by the Privy Council and approved by the Supreme Court in the above case would apply a fortiori to the present case. It must be remembered that the Hindu Law of Inheritance (Amendment) Act, 1929 was not a codifying law. It only altered the order of succession of certain persons mentioned therein. It must be remembered that the Hindu Law of Inheritance (Amendment) Act, 1929 was not a codifying law. It only altered the order of succession of certain persons mentioned therein. When even under that Act it is held that the expression “a male Hindu dying intestate” should be taken to have reference to the date on which the limited owner dies and succession opens, in the present case, which is under the Act which is a codifying law relating to intestate succession among Hindus, it would be incongruous to say that even though succession opens very much after the commencement of the Act, still one has to look to the old textual Hindu Law to determine the reversionary heirs, taking the expression “a male Hindu dying intestate” as having reference only to the date of physical death of the man. We are quite clear that that expression would relate to the date of the physical death of the man, only if on that date the succession to his estate finally opened and not to a case where a limited owner intervenes and keeps the reversionary succession in abeyance as it were. 39. Reliance is placed on behalf of the plaintiffs on the decision of the Supreme Court in Eramma v. Veerupana1, which is a case arising under the Act itself. It is also contended that the view expressed in Fateh Bibi v. Charan Dass2, is in conflict with the view in the earlier case of the Supreme Court, viz., Eramma v. Veerupana1, and that the earlier case being one under the Act while the other case is under the 1929 Act, as far as this case is concerned, the earlier decision of the Supreme Court has to be followed. We are of the opinion that there is really no conflict between the two decisions of the Supreme Court, and the earlier decision of the Supreme Court, though under the Act, does not in any way help the plaintiffs in the present case. That was a case where the last male holder by name Basanna died in 1936-37, (i.e„) prior to the commencement of the Act. The said Basanna was the son of one Eran Gowda who had married three wives by name Eramma, Siddamma and Sharnamma ; Basanna was the son through Sharnamma. That was a case where the last male holder by name Basanna died in 1936-37, (i.e„) prior to the commencement of the Act. The said Basanna was the son of one Eran Gowda who had married three wives by name Eramma, Siddamma and Sharnamma ; Basanna was the son through Sharnamma. On his death, his two stepmothers, viz., Eramma and Siddamma, who had absolutely no right in his estate, had trespassed into the estate and continued to be in possession of the same. (Sharnamma, the mother of Basanna, seems to have predeceased him.) The reversioners who were entitled to the estate of Basanna filed a suit to recover possession of the estate. The two stepmothers of Basanna set up a case that each one of them had adopted a son to their late husband Eran Gowda and therefore the plaintiffs in that suit cannot recover possession. The case of adoption set up by the two step-mothers was negatived by the High Court and in the case of one of the step mothers leave had been granted to appeal to the Supreme Court. In respect of the other, leave had been refused by the High Court and a special leave application had been filed in the Supreme Court by her When those proceedings were so pending in the Supreme Court, the Act (Hindu Succession Act, 1956) came into force. The plaintiffs in that suit having obtained a decree for possession, executed the decree. Then Eramma, one of the step-mothers of Basanna, contended that the decree became non-executable in view of the provisions of the Act as under section 14 of the Act she had become the full owner of the property that was in her possession. This contention was negatived by the High Court and affirmed by the Supreme Court holding that section 14 of the Act would have no application in that case because Eramma was in possession of the property only as a trespasser and not as a limited owner thereof. When Eran Gowda, the father of Basanna, died the Hindu Women’s Rights to Property Act was not in force and therefore Eramma and Siddamma had absolutely no right in the estate of Basanna. Section 14 would apply only if a female Hindu is possessed of property, whether acquired before or after the commencement of the Act. When Eran Gowda, the father of Basanna, died the Hindu Women’s Rights to Property Act was not in force and therefore Eramma and Siddamma had absolutely no right in the estate of Basanna. Section 14 would apply only if a female Hindu is possessed of property, whether acquired before or after the commencement of the Act. Their Lordships of the Supreme Court pointed out that possession contemplated under that section is lawful possession and not possession as a trespasser. 30. It had been further contended on behalf of Eramma, one of the stepmothers of Basanna, that section 8 of the Act is retrospective in character and that therefore it applied even to the estate of Basanna who died as early as 1936-37. That contention was negatived and their Lordships held that the provisions of section 8 of the Act are not retrospective in operation and where a male Hindu died before the Act came into force, section 8 of the Act will have no application. It must be remembered that in that case no limited owner intervened and the succession did not open after the commencement of the Act. Admittedly in the case before the Supreme Court the estate did not pass on to any limited owner on the death of Basanna in 1936-37. The succession to his estate had opened even in 1936-37. It is under those circumstances it was held by the Supreme Court that Section 8 of the Act would not be applicable to that case. As a matter of fact, their Lordships specifically point out thai section 8 of the Act would not be applicable where succession opened before the Act. The observation of the Supreme Court is as follows: “We accordingly hold that the provisions of section 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, section 8 of the Act will have no application”. Even the above observation can be interpreted as impliedly approving of the position that where succession opened after the commencement of the Act (whatever be the date on which the last male holder physically died), Section 8 would be applicable. Even the above observation can be interpreted as impliedly approving of the position that where succession opened after the commencement of the Act (whatever be the date on which the last male holder physically died), Section 8 would be applicable. Anyway, in that case their Lordships of the Supreme Court did not say that section 8 would not be applicable even if succession opened after the commencement of the Act, though the male Hindu died prior to the Act. Therefore this decision is in no way conflicting with the decision of the Privy Council in Duni Chand v. Anar Kali1, and that of the Supreme Court in Fatek Bibi v. Charan Doss2, which are cases specifically dealing with the question of succession opening after the commencement of the Act, even though the male Hindu died before the Act. As pointed out by the Privy Council and the Supreme Court, in holding that section 8 would be applicable to a case of a male Hindu whose physical death occurred prior to the Act but succession to his estate opened after the commencement of the Act, we are not giving retrospective effect to section 8 as the material point of time is the date when the succession opens, viz., the death of the female Hindu who intervened. 31. In Sampath Kumari v. Lakshmi Ammal3 a Division Bench of this Court has observed that when a male Hindu dies intestate leaving a female heir like a widow or a daughter to succeed him under the law in force prior to the commencement of the Act, it is not correct to say that succession to the estate of the male does not open until the death of the intervening female heir. It was further observed that the widow is not a mere life-estate holder and having regard to the fundamental principle that succession is never in abeyance, the estate of the male Hindu must vest in some heir as soon as he dies. In that particular case, the estate so vested in the two widows of the last male holder, that was a case of the male Hindu dying prior to the commencement of the Act leaving two widows and a daughter. In that particular case, the estate so vested in the two widows of the last male holder, that was a case of the male Hindu dying prior to the commencement of the Act leaving two widows and a daughter. As per the provisions of the Hindu Women’s Rights to Property Act, the two widows succeeded to the estate of the male Hindu and as they were in possession of the estate on the date on which the Act came into force; by virtue of section 14 of the Act the limited estate became enlarged to one of absolute estate in their hands. But the daughter of the last male Hindu wanted a share in the estate on the ground that section 8 of the Act is retrospective in operation and that it applied to the estate even though her father died prior to the commencement of the Act. The above contention of the daughter was, if we may say so with respect, rightly rejected by Ganapatia Pillai and Venkataraman, JJ. who constituted the Division Bench of this Court. As we have already pointed out, section 8 is really not retrospective in operation and it would not apply to a case of a male Hindu who died prior to the Act, unless succession to his estate opened out after the commencement of the Act. It is needless to stress that by applying section 8 to a case where succession opened after the commencement of the Act (though the last male holder had died prior to the Act), we are not giving any retrospective effect to that section, for the material date is the date on which the succession opened. 32. The observations of the Division Bench in Sambatk Kumari v. Lakshmi Ammal1, that succession opened in that case even on the date of physical death of the male Hindu and that the estate vested in his widows, should be understood on the facts of that case. Those observations do not cover the question as to when succession opens as far as the reversioners are concerned. It is true the widow or any other female heir who took a limited estate under the old textual law did succeed to the estate, but that succession is certainly not as full owner. It may be that the widow who so succeeds would be competent to validly liquidate the estate under certain circumstances. It is true the widow or any other female heir who took a limited estate under the old textual law did succeed to the estate, but that succession is certainly not as full owner. It may be that the widow who so succeeds would be competent to validly liquidate the estate under certain circumstances. But what happens if the estate is available to be taken by the reversioners on the date of the death of the widow, is the question. Undoubtedly, on such date succession to the estate of the last male Hindu opens but as far as the reversioners are concerned, if the female Hindu had alienated the property prior to the commencement of the Act, but such alienation is not binding on the reversioners, succession to the estate (which still remains to be that of the last male Hindu) does open out on the death of the female Hindu. That is what has happened in the present case. It cannot be contended and, as a matter of fact, it is not contended that the succession to the estate of minor Pethi did not open out on 8th February, 1965, the date on which Pappammal, his mother, died. The vesting of the estate in the female heir as soon as the make propositus dies, as observed by the above Division Bench, is certianly not an absolute vesting. The female heir does succeed to the estate of the male Hindu, but certainly not as full owner under the old textual Hindu Law. In the case before the Division Bench, the daughter was not entitled to a share in the estate of her father, not because the estate had absolutely vested in another before the commencement of the Act, but really because succession to the estate did not open after the commencement of the Act. It must be remembered that the widows of the last male Hindu who had taken over his estate prior to the Act were alive on the date of the commencement of the Act, so much so section 14 came into operation and converted the limited estate into an absolute estate. In such a case, naturally the daughter cannot rely upon section 8 of the Act and claim a share in the estate for the simple reason that no succession opened after the commencement of the Act. In such a case, naturally the daughter cannot rely upon section 8 of the Act and claim a share in the estate for the simple reason that no succession opened after the commencement of the Act. Therefore the observations of the Division Bench in Sampath Kumari v. Lakshmi Ammal2, are in no way inconsistent with the conclusion which we. have reached in this case. 33. The Calcutta High Court in Bepin Behary v. Sm. Lakshasona Dassi3, and Raton Kumari v. Sunder Lal4, has taken a similar view as we now take regarding application of section 8 of the Act. The Punjab High Court has also taken the same view in M.S.T. Taro v. Darshan Singh5and Harbhaj v. Mohan Singh6. The Andhra Pradesh High Court in Rarmlu v. Narayana7, the Mysore High Court in Satyanarayana v. Seethamma8 , and a Full Bench of the Himachal Pradesh High Court in Laehhman v. Thunia10 , have also taken the same view. But the Patna High Court in Renuka Bala v. Aswirti Kumar10, and Chaturbhuj Pradhan v. Sarbeshwar Pradhan11, the Mysore High Court in Kempiah v. Girigamma12, and the Orissa High Court in Jandebi v. Upendra Sahit13,have taken a different view. But we are of the opinion that the above decisions taking a contrary view cannot be accepted in view of the decision of the Supreme Court in Fateh Bibi v. Charandas14. 33. The Orissa High Court, in the case referred to above, has observed that the death of a male Hindu after commencement of the Act refers to actual and not fictional death, purporting to follow Eramma v. Veerupana15. But the above decision of the Supreme Court did not deal with the question of fictional death. As already seen, that was a case where succession did not open after the commencement of the Act inasmuch as no limited owner intervened. 34. The Patna High Court and the Mysore High Court seem to think that applying section 8 to a case, like the present one (where the limited owner alienated the property prior to the Act and died after the Act, thereby succession to the last male Hindu opening after the Act) would amount to giving retrospective operation to section 8. The Mysore High Court has also been critical of the decision of the Judicial Committee in Duni Chand v. Anar Kali1. The Mysore High Court has also been critical of the decision of the Judicial Committee in Duni Chand v. Anar Kali1. As the Supreme Court in Fatech Bibi v. Charan Dass2, has approved the decision of the Privy Council, the view of the Mysore High Court cannot be followed. With respect to the learned Judges of the Mysore High Court as well as the Patna High Court, we are unable to agree with their view. 35. In the present case (the two second appeals), the plaintiffs, who are agnates of the last male Hindu (minor Pethi) removed by several degrees, cannot have any claim to his estate in preference to the 6th defendant who is the last male holders sister’s daughter. She is a Class II heir under section 8 of the Act. Therefore Second Appeal No. 1076 of 1970 has to be allowed. However, Second Appeal No. 1088 of 1970 has to be dismissed because the question of the 1st defendant getting the value of improvements does not arise as the plaintiffs are not entitled to possession of the property. 36. The facts in the Letters Patent Appeal are as follows: The last male holder is one Sudalaimuthu. He had two brothers by name Enamuthu and Shanmugam. The father of the last male holder is also Sudalaimuthu and he has to be referred to as Sudalaimuthu No. I and the last male holder has to be referred to as Sudalaimuthu No. II. Somu Ammal is the widow of Sudalaimuthu No. II, (the last male holder) who succeeded to the estate in the year 1919 on the death of her husband. The widow Somu Ammal sold the property in the year 1935 to the 1st defendant in the case by name Narayana Konar. Thereupon Enamuthu and Shanmugam, the two brothers of Sudalaimuthu No. II (last male holder), filed a suit (O.S. No. 275 of 1935) for a declaration that the alienation was not binding on the reversioners after the death of Somu Ammal. That suit had been decreed. Somu Ammal died on 22nd March, 1966. 37. The Letters Patent Appeal arises out of O.S. No. 299 of 1966 filed by Shanmugasundarathammal, the plaintiff, who claims to be the nearest reversioner entitled to succeed to the estate of Sudalaimuthu No. II. She is the son’s daughter of Shanmugam, one of the brothers of Sudalaimuthu No. II. Somu Ammal died on 22nd March, 1966. 37. The Letters Patent Appeal arises out of O.S. No. 299 of 1966 filed by Shanmugasundarathammal, the plaintiff, who claims to be the nearest reversioner entitled to succeed to the estate of Sudalaimuthu No. II. She is the son’s daughter of Shanmugam, one of the brothers of Sudalaimuthu No. II. In the suit, the alienee from Somu Ammal was impleaded as the 1st defendant. His brother’s son, who was in possession of the property, was impleaded as the 2nd defendant and the brother of the 2nd defendant, who claimed to have been adopted by Somu Ammal and thereby became entitled to the property, was impleaded as the 3rd defendant. The Courts below concurrently found against the case of adoption set up by the 3rd defendant. The trial Court decreed the suit holding that the plaintiff is the nearest reversioner, but the first appellate Court reversed the finding. Ramanujam, J. allowed the second appeal filed by the plaintiff and the decision is reported in (Shanmugkasmdarathammal v. Narayana Knnar)3. It is not disputed that if the provisions of section 8 of the Act are applicable, the plaintiff would be the nearest reversioner entitled to the property and if it is not applicable and the old textual Hindu Law has to be applied in order to determine the nearest reversioners, the plaintiff has to be non-suited. Mookandi and Palavesam are the sons of two different paternal uncles of the last male holder Sudalaimuthu No. II. The last male holder’s father is also Sudalaimuthu No. I and Mookandi is the son of one brother of Sudalaimuthu No. I and Palavesam is the son of another brother of the said Sudalaimuthu No. I. If the textual Hindu Law is to be applied, the said Mookandi and Palavesam, who are still alive, would get precedence over the plaintiff. But as we agree with Ramanujam, J. that section 8 of the Act would be applicable even though the last male holder died as early as 1919, as succession opened out only after the coining into force of the Act, the plaintiff should succeed. Under rule 1 of section 12 of the Act, among agnates, the one who has fewer or no degrees of ascent has to be preferred. Mookandi and Palavesam, as well as the plaintiff, are agnates of the last male holder. Under rule 1 of section 12 of the Act, among agnates, the one who has fewer or no degrees of ascent has to be preferred. Mookandi and Palavesam, as well as the plaintiff, are agnates of the last male holder. But the plaintiff has fewer degrees of ascent than Mookandi and Palavesam (The plaintiff is the last male holder’s father’s son’s grand-daughter. Mookandi and Palavesam are the last male holder’s father’s father’s son’s sons). Therefore the Letters Patent Appeal has to be dismissed. 38. The result is, Second Appeal No. 1076 of 1970 is allowed and Second Appeal No. 1088 of 1970 is dismissed. Parties to bear their respective costs throughout. The Letters Patent Appeal is dismissed with costs.