Chandra Pal Singh v. Bhagwati Devi — 1979 DIGILAW 308 (ALL)

JUDGMENT R.R. Rastogi, J. - This is defendants appeal arising out of a suit filed by the plaintiff respondent Smt. Bhagwati Devi, originally for a permanent injunction restraining the defendants from interfering in her possession of house Nos. 152 and 153 situated in Mohalla Gadariyan in the city of Najibabad. It appears that during the pendency of the suit the plaintiff was dispossessed from this house and hence she prayed for recovery of possession as also Rs. 1,000/- by way of damages. The case taken in defence was that the plaintiff was not the owner of the disputed house nor had she ever been in possession of it, but Smt. Jaldei was its owner and she had made a transfer in respect of it in favour of defendants 1 and 5 on 17-7-1964 and they had been living in the house along with defendant No. 2. Plea of estoppel was also taken and further it was pleaded that defendants 3 and 4 were not necessary parties to the suit. There was also a plea that the court-fee paid was insufficient. 2. Several issues were framed by the trial court. On the main issues the trial court held that the plaintiff was the owner of the disputed house and had been in possession of the same and she had been dispossessed by the defendants without any right or title and as such she was entitled to recover possession over the same. On the question of damages it was held that the plaintiff had failed to prove the defendants had caused any such damage. The suit was hence decreed for possession of the house in dispute in favour of the plaintiff-respondent. 3. Being aggrieved, an appeal was filed by the defendants which remained unsuccessful and hence this further appeal has been filed before this court. 4. There are certain facts which are either admitted or found as proved on the basis of the evidence on record- Admittedly one, Behu Singh was the owner of the house in dispute. He had one son Bhola Singh and one daughter Smt. Bhaoti. Behu Singh died on 12-12-1934. It has been found as a fact by the court below that Bhola Singh predeceased his father. That being a finding of fact cannot be challenged in this Court. It has also been found as a fact that Smt. Jal-dei was the legally wedded wife of Bhola Singh. Behu Singh died on 12-12-1934. It has been found as a fact by the court below that Bhola Singh predeceased his father. That being a finding of fact cannot be challenged in this Court. It has also been found as a fact that Smt. Jal-dei was the legally wedded wife of Bhola Singh. On an issue remitted by this Court in regard to the date of death of Smt. Bhaoti the finding recorded is that Smt. Bhaoti died on 16-4-1954. No objection has been filed to this finding. The position, therefore, is that on the death of Behu Singh the disputed house was inherited by Smt. Bhaoti and she was the limited owner of this property. She died in 1954, as noted above, and on her death the disputed house would go to the next heir of her father and it has to be seen as to who was the next heir entitled to succeed to this house on her death. 5. According to the learned counsel for the defendants appellants the widow of a predeceased son was given a right to inherit in like manner as a son's son if there is no son surviving of such predeceased son under Section 3 (1) of the Hindu Womens Rights to Property Act of 1937. But, because of Section 4 of that Act Smt. Jaldei could not have divested Smt. Bhaoti, who, as noted above, had inherited the property of Behu Singh on his death in 1934, but in 1954 Smt. Bhaoti died and succession opened to the reversioner of Bhaoti, she was the preferential heir entitled to succeed and not Bhaotis daughter. According to the learned counsel the Courts below have not appreciated certain important legal aspects which are that there was no question of giving any retrospective effect when the position as obtaining on the death of Smt. Bhaoti in 1954 is concerned, that the real nature of women's state was not correctly appreciated and understood and lastly that because of the 1937 Act the widow of the predeceased son is a preferential heir when compared to daughters daughter. On the other hand on behalf of the plaintiff-respondent the submission made was that since Section 4 of 1937 Act excludes the predeceased sons widow and she could not be treated as preferential on the death of Smt. Bhaoti in 1954. On the other hand on behalf of the plaintiff-respondent the submission made was that since Section 4 of 1937 Act excludes the predeceased sons widow and she could not be treated as preferential on the death of Smt. Bhaoti in 1954. It was not disputed that the succession opened on the death of Smt. Bhaoti and would go to the reversioner of Behu Singh. It was to be seen as to who was the nearest heir and of course because of the 1937 Act the predeceased sons widow is a preferential heir to the daughters daughter. But, since in this case the husband of Smt. Jaldei had died before the coming into effect of that Act by virtue of Section 4 thereof she is excluded from inheritance. It was urged that it is almost settled that the Hindu Womens Rights to Property Act, 1937 was not retrospective in effect. 6. So far as the question whether the Act 1937 is retrospective or not. it is almost well settled. Section 4 of this Act says - "Nothing in this Act shall apply to the property of any Hindu dying intestate before the commencement of this Act." It may be noted that certain amendments were made in this Act by Act XI of 1938 and in Moni Dei v. Hadibandhu Patra, AIR 1955 Orissa 73, Full Bench, the following question was referred to the Full Bench. "Whether the provisions of Sec. 3 (2) of the aforesaid Act, as amended by Act XI of 1938, are retrospective so as to apply to the case of a widow whose husband died prior to the date when the said Act came into force." The Full Bench answered that the provisions of the Act have no retrospective effect so as to apply to the case of widow whose husband had died prior to the date of commencement of the Act, namely, 14-4-1937. The same view on this question was taken by a learned single Judge of this Court in Mt. Phulia v. Narpat Singh, AIR 1954 All 307 : (1953 All LJ 677) and by the Patna High Court in Lakhan Lal Puri v. Richu Main, AIR 1960 Pat 181 . The Rajasthan High Court in Mst. Mohari v. Mst. Chukli, AIR 1960 Raj 82 and the Himachal Pradesh High Court in Mt. Phulia v. Narpat Singh, AIR 1954 All 307 : (1953 All LJ 677) and by the Patna High Court in Lakhan Lal Puri v. Richu Main, AIR 1960 Pat 181 . The Rajasthan High Court in Mst. Mohari v. Mst. Chukli, AIR 1960 Raj 82 and the Himachal Pradesh High Court in Mt. Krishni v. Gannun, AIR 1952 Him Pra 51, have, as well, laid down that the Hindu Womens Rights to Property Act is not retrospective. The Calcutta High Court in Ratan Kumari v. Sundar Lal, AIR 1959 Cal 787 , laid down the same principle. Therefore, it is settled that the Hindu Womens Rights to Property Act, 1937 is not retrospective and in order that a widow may acquire interest in coparcenary property under the Hindu Womens Rights to Property Act, the male Hindu must die intestate after the commencement of the Act and not before. However, in the present case the question for consideration is as to who would be the preferential heir as between the predeceased sons widow and daughters daughter on the death of the limited owner in 1954. 7. According to the Bengal, Benares, Mithila and Madras schools every female who succeeds as an heir, whether to a male or to a female, takes a limited estate in the property inherited by her. In other words a widow, mother, fathers mother, fathers father's mother take a limited estate according to all the schools, while the daughter takes absolutely in the Bombay school, and in every other school she takes a limited estate- The heirs of the last full owner, who would be entitled to succeed to the estate of such owner on the death of a widow or other limited heir, if they be then living, are called "reversioners". A reversioner may be a male or a female. Further the interest of a reversioner is an interest expectant on the death of a limited heir. It is not a vested interest. It is a spes succession-is or a mere chance of succession. (Vide Sections 174 and 175 Mullas Hindu Law, Thirteenth Edition). 8. By the Hindu Law of Inheritance (Amendment) Act, 1929 (Act No- II of 1929) the old order of Succession of Hindu Law was amended by introducing certain persons as heirs who had no such place according to the ordinary interpretation of Mitakshara Law. One such heir was daughter. (Vide Sections 174 and 175 Mullas Hindu Law, Thirteenth Edition). 8. By the Hindu Law of Inheritance (Amendment) Act, 1929 (Act No- II of 1929) the old order of Succession of Hindu Law was amended by introducing certain persons as heirs who had no such place according to the ordinary interpretation of Mitakshara Law. One such heir was daughter. As noted above, the widow of a predeceased son was introduced as an heir by the Act of 1937. There is one basic difference between these two Acts and it is that the object of Act II of 1929 is to alter the order of succession of certain persons therein mentioned, namely, a sons daughter, daughters daughter, sister and sisters son, and to rank them as heirs in the specified order of succession next after a fathers father and before a fathers brother, while the Act of 1937 was intended to redress the disabilities and to give better rights to women by recognising their claim by fair and equitable means in certain matters of succession. There was one more difference between these two Acts and it was that Act II of 1929 applied only to the property of males not held in coparcenary and not disposed of by will, (vide Section 1 (2) see Annagouda Nathgouda v. Court of Wards, Satara, AIR 1952 SC 60 ), while the Act of 1937 applies to both self-acquired and coparcenary property. As noted above there is nor there can be any dispute that when Behu Singh died in 1934 his daughter succeeded him in preference to his predeceased sons widow. She was. however, a limited owner and the question of who is the nearest reversionary heir or what is the class of reversionary heirs falls to be settled at the date of the expiry of ownership for life. As laid down by the Privy Council in Duni Chand v. Mt. Anar Kali, AIR 1946 PC 173 at p. 176 "the death of a Hindu female owner opens the inheritance to the reversioners, and the one most nearly related at the time of the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility, or spes succession is, but this possibility is common to them all for, it cannot be predicated who would be the nearest reversioner at the time of her death." 9. In her lifetime, however, the reversionary right is a mere possibility, or spes succession is, but this possibility is common to them all for, it cannot be predicated who would be the nearest reversioner at the time of her death." 9. In this view of the matter when on 16-4-1954 Smt. Bhaoti died and the succession opened to the revisioners of Behu Singh the nearest reversioner would be the predeceased sons widow and not daughter's daughter. In my opinion Sec. 4 of the Act of 1937 would not stand in the way of the predeceased sons widow because by fiction the date of Behu Singhs death would be advanced to 16-4-1954, the date on which the succession opened on the death of the limited heir, i. e. his daughter. There would be no question of giving any retrospective effect to this Act in this view of the matter. My finding, therefore, is that on the death of Smt. Bhaoti the nearest reversioner of Behu Singh entitled to succeed was Smt. Jaldei and not Smt. Bhagwati, his daughters daughter. The suit of the plaintiff-respondent, Smt. Bhagwati therefore, fails and should be dismissed. 10. This appeal is allowed and suit of the plaintiff-respondent is dismissed with costs throughout.