JUDGMENT - B.A. MASODKAR, J.:---This is original defendant No. 1's second appeal that questions the concurrent judgment and the decree made and affirmed holding that to the property left by the deceased Tanubai, wd/o Vithoba Girjappa, who died on November 17, 1966, plaintiff Bala Govind Yadav, being the nearest heir, was entitled to succeed and the Will set up the by the appellant original defendant No. 1 was a got-up one and did not confer any entitlement on the appellant to succeed to the property of Tanubai. 2. The undisputed facts as are found are that plaintiff Bala is the son of Govinda, s/o Nana, who was the son of Patlu. Patlu had four sons, being Aba, Nana, Sakhoba and Girjappa. Vithoba, the husband of Tanubai was the son of Girjappa. The plaintiff thus is shown to be Tanubai's husband's cousin brother's son. As far as the other branches are concerned, there does not appear to be any other male heir having priority in the branch and in the family of the husband of Tanubai. 3. The suit property was the property that was the property of Vithoba, who died as far back as some time in 1951. Upon his death, the property was inherited by Tanubai and she was holding the same till her death on November 17, 1966. It was the case of the present appellant that 7 days before her death, she left the Will bequeathing all the property and that Will was produced alongwith the lease at Exhibit 37. As its due execution was not established, it was not formally exhibited. Both the courts below have concurrently found that not only there are suspicious circumstances surrounded the making of the Will which the evidence falls short to dispel the same but even the execution of the Will has not been established, in that it is not shown that the thumb impression on the Will was that of Tanubai. This finding is based on the appreciation of the case set up by the present appellant that Tanubai was an illiterate lady. She used to put her left hand thumb impression in token of execution of the documents and the thumb impression on the document of the Will was os made by her. This finding is based on the appreciation of the case set up by the present appellant that Tanubai was an illiterate lady. She used to put her left hand thumb impression in token of execution of the documents and the thumb impression on the document of the Will was os made by her. As that thumb impression was denied to be that of Tanubai, the said thumb impression along with the admitted thumb impression were sent firstly at the behest of the plaintiff to the handwriting expert who opined that it was not thumb impression of Tanubai. Again, at the behest of the present appellant, the said thumb impression on the Will was referred to another expert and he too affirmed the opinion given by the expert. Both these experts, being Madhav Panchbhai and Vaman Puntambekar, have been examined and accepting their testimony, the courts below have held that the thumb impression purporting to be that of Tanubai is not of her left hand. After the opinions, it appears, the case was set up that it was the thumb impression of the right hand. Appreciating the evidence on this aspect, which consists of scribe Kulkarni and attesting witnesses Parasu Shevale, Yeshwant Patil and Vishnu Ghare, both the courts below have found that this evidence is totally false and against the probabilities. Thus, it had been found that the execution of the Will itself was not proved and so also there were suspicious circumstances which reasonably agitate the judicial mind. Having rejected the Will in this manner, the plaintiff's claim has been decreed an the basis that he was the nearest heir and would be entitled to succeed in view of the provisions of section 15(2) of the Hindu Succession Act, 1956 (hereinafter called "the Act") and the order of succession as mentioned in section 16 of the Act. 4. As far as defendants Nos. 3 and 4 are concerned, who are respondents Nos. 3 and 4 to the appeal, admittedly they are in possession of the landed property. The case pleaded was that their tenancy was illegal. That is countered by defendant No. 4. Inspite of this, without framing the issue with regard to the validity of the tenancy, it appears that the courts below have made a decree for possession with regard to the landed property against the defendants. 5. The case pleaded was that their tenancy was illegal. That is countered by defendant No. 4. Inspite of this, without framing the issue with regard to the validity of the tenancy, it appears that the courts below have made a decree for possession with regard to the landed property against the defendants. 5. Futhermore, when this appeal was admitted by this Court, the record shows that order as to specifying the substantial questions of law as required by section 100(4) of the Code of Civil Procedure, has been made. When this matter was initially argued, a preliminary objection on that count was preferred by Mr. Walawalkar. To overcome this objection, Mr. Paranjape has put in an application raising the substantial question of law. All this is the subject-matter of the present appeal. Upon these facts and findings and from the submissions of the respective counsel, four points emerge for my decision. 6. First is the preliminary objection raised by Shri Walawalkar as to the tenability of the appeal for the reason that the admission of the appeal being contrary to section 100(4) of the Code of Civil Procedure, the appeal should be summarily dismissed. Second and third after the submission that arise out of the arguments advanced by Shri Paranjape in support of the appeal to the effect that the appeal involved substantial questions of law as to the adequacy of proof required for propounding the Will. In the submission of the learned Counsel the courts below erred in law in not accepting the Will of Tanuabi and that raises substantial question in law. In the alternative it is submitted that the provisions of section 15(2) of the Act by reason of which the plaintiff succeeded should be struck down as ultra vires of Articles 14 and 15 of the Constitution of India for the same are discriminatory. The fourth submission comes from Mrs. Shenoy, who appears for respondents Nos. 3 and 4 and submits that the decree under appeal should be reversed because it directs the delivery of possession from defendants Nos. 3 and 4 without making a reference a Tenancy Authority as to their entitlement to remain in possession as the tenants of the agricultural lands in issue. The submission is that the decree can be varied or modified though these respondents have not appealed under Order XLI, Rule 33 of the Code of Civil Procedure. 7. 3 and 4 without making a reference a Tenancy Authority as to their entitlement to remain in possession as the tenants of the agricultural lands in issue. The submission is that the decree can be varied or modified though these respondents have not appealed under Order XLI, Rule 33 of the Code of Civil Procedure. 7. I propose to deal with these seriatim. 8. The amended Civil Procedure Code has made a departure from the earlier one and has restricted the right of second appeal. Prior to it, the appeal lay with regard to "the question of law" and now in legislative wisdom such an appeal is specified only with regard to "the substantial question of law". Amendment clearly restricts the right of second appeal. Sub-section (4) of the section 100 of the Civil Procedure Code enjoins upon the Court admitting such appeal to formulate "the substantial a questions of law" upon which the appeal is admitted. That provisions by itself is mandatory. It is no doubt true that when this appeal was admitted the record does not disclose that there had been any compliance with sub-section (4) of section 100 of the Code; and there is undoubtedly great force in the submission of the learned Counsel that the Court having failed in its statutory duty in not so framing the substantial question of law, result should be that appeal should fail. Mr. Walawalkar is further right that it is with reference to such a question, that sub-section (5) indicates that a notice is to issue to the respondents and the appeal has to be set for final hearing. Furthermore, at that stage a statutory opportunity is provided to the respondents to show that the questions so framed are not substantial questions of law and the appeal should be dismissed. Undoubtedly this statutory entitlement of the answering respondents could not be furthered because of the failure of the Court in not framing the substantial question at the initial stage. But, the question is whether all this means that the appeal should be dismissed when it is set for final hearing? Or is there any other fair modality by which such apparent statutory defect can be cured if otherwise proper opportunity is given to all the parties concerned and furthermore the debate is also permitted as to the existence or non-existence about the involvement of the substantial questions of law? 9. Or is there any other fair modality by which such apparent statutory defect can be cured if otherwise proper opportunity is given to all the parties concerned and furthermore the debate is also permitted as to the existence or non-existence about the involvement of the substantial questions of law? 9. Answers to this would depend primarily in finding out whether the suitor or the appellant should be blamed and penalised for the omission and on the part of the Court while admitting such an appeal. The position is plain. After all, the provisions of section 100(4) are the parts of the procedural law and the mandate of that provisions is to the Court though binding on all those who seek to move the process of second appeal. Evident as it is that sub-section (4) enjoins the Court to frame the substantial question on which the appeal has been admitted. A failure on the part of the Court while admitting the appeal in this regard would always in law be the error of the Court though party affected thereby has to move diligently for its correction. However, failure to do so cannot result in automatically affecting the order or admission and making an order of dismissing the appeal for want of proper prosecution. This is not to observe that appellant has no duty nor any obligation. Even with regard to such errors he has to be diligent enough to bring the same to the notice of Court and get it corrected. In a given case if the conduct of the party in this regard lacked bona fides such a result may be reached. But as a matter of law party cannot be penalised for the error of the Court. It is pertinent to observe that under proviso to sub-section (5) of section 100, additional substantial questions of law can well be permitted to be raised with the leave of the Court and along with the initial question framed can partake and formulate the subject-matter of the debate in such appeal. This proviso is indicative of the legislative intention in this regard. It confers enabling power upon Court and consequent entitlement in favour of the party. This proviso is indicative of the legislative intention in this regard. It confers enabling power upon Court and consequent entitlement in favour of the party. The restrictive scheme of section 100 couched in mandatory terms firstly cast a duty on the Court not to admit the appeals which do not involve substantial questions of law, for, such an appeal is not provided for; and secondly, it requires the admission order to speak about the spell out such substantial question and thirdly, on that question the notice has to be issued to the respondents who are enabled to show that such a question is neither a substantial question of law, nor arises in a given appeal, but further at that stage with the leave of the Court the appellant is further enabled to rely on any other substantial question of law which can form the part of the debate at the final hearing stage. While working out this compact scheme, however, occasion like the present one may arise wherein though the Court admitted the appeal it failed to spell out the substantial questions of law as enjoined by sub-section (4). Doubtless such a situation is regrettable. Nonethelsss, such omission is the omission of the Court and not of the party. The principle that applies to the omissions, errors or mistakes on the part of the Court should always be available to such an eventuality provided the course of justice is not prejudiced or affected to opponent's disadvantage. Once the litigant has diligently followed the procedural law, he cannot be punished for the omission of the Court. To act ex debito justiatiae is the basic rule in matters of administration of justice and, particularly when it arises out of the procedural laws. Failure on the part of the Court, therefore, though serious does not affect the process of appeal, which is set for final hearing, nor can the appeal be dismissed for that reason. There are Sample complementary and supplementary inherent powers with which the Court is clothed to cure such defects and that is expressly recognised by the provisions of section 151 of the Code of Civil Procedure. Drawing upon that power in a given case, the Court would be entitled to cure such a defect of Court's failure to comply with the mandatory requirement of sub-section (4) of section 100 even by formulating such a question at the later stage. Drawing upon that power in a given case, the Court would be entitled to cure such a defect of Court's failure to comply with the mandatory requirement of sub-section (4) of section 100 even by formulating such a question at the later stage. 10. In furtherance of this view, I allowed the appellant to put up an application indicating substantial question involved in the present appeal, as no doubt that appellant could have moved in review before the same Judge who admitted the appeal requesting for formulating of such substantial questions of law, but since that would have entitled unnecessary waste of judicial time and would have added to the complications of the cause particularly when the matter has reached the stage of final hearing and set before me for that purpose, I though it proper and I think that is the proper course, to cure such a defect drawing upon the inherent powers that are recognised by section 151 of the Code of Civil Procedure. The submission for the respondent that the order of admission should be vacated because of the failure of the Court to frame such a question and the appeal be dismissed does not more survive and is rejected. 11. Turning to submission of Mr. Paranjape on the first aspect, it is difficult to find any substantial question of law in the present controversy. The Will that was being propoudned (Exhibit 37/1) has been held after review of evidence as not being genuine and in fact both the courts have concurrently found that it has not been proved. That finding is based on the appreciation of the testimony of two Handwriting Experts, one examined for the defendants and another for the plaintiff and both of them have consistently opined that the alleged left-hand thumb impression on the Will was not of the textatrix Tanubai. The other evidence tendered to show at a later stage that it was the right-hand thumb impression has been correctly appreciated and both the courts have concluded that the evidence in that regard was got up one. Thus, the rejection of the Will after appreciating evidence does not give rise to any question either of law or of substantial question of law. No second appeal lies in such matters which arise out of complaints about appreciation of evidence. The first submission of the learned Counsel is without any merit. 12. Thus, the rejection of the Will after appreciating evidence does not give rise to any question either of law or of substantial question of law. No second appeal lies in such matters which arise out of complaints about appreciation of evidence. The first submission of the learned Counsel is without any merit. 12. That takes me to the challenge to the validity of the provisions of section 15(2) of the Act, because it is submitted that it discriminates between "the heirs of husband" and "heirs of wife". It is suggested that this is a legislative discrimination based on sex differentia and, therefore, void and ultra vires of the guarantee of equal treatment under Article 14 and discriminatory on the ground of sex, and, therefore, invalid under Article 15 of the Constitution. Several provisions of law were relied upon to make a submission that this should be so. 13. Undoubtedly, when the Act is a codifying legislation like the present one, the principle of interpretation governing the same like any other enactment requires the Court to gather the meaning of the statute by the language employed by the legislature. This language following dictate is meant to lay down a limit; in that the Court is not at liberty to travel back into the past and probe into the history so as to attribute meaning to the words in place of its natural meaning. What is clear should be held so. The interpreting Court cannot begin enquiry of the law as it previously stood and then assume that it was probably intended to leave it or alter otherwise by attributing meaning to the words employed by the legislation so that if should bear an interpretation in conformity with the earlier historical view. See (Bank of England v. Malgleen)1, 1891 A.C. 107; (Narendrasingh v. Kamalanbasani)2, 23 Calcutta 563 (P.C.) (Smt. Rohini Kumari v. Narandrasingh)3, A.I.R. 1972 S.C. 459 and (Anandji Haridas v. Engineering Mazdoor)4, A.I.R. 1975 S.C. 946. 14. This rule of interpretation of follow the language of the statute applies when the particular words and terms are in issue. That however, does not hold the field when a state of law itself is required to be gone into to understand as to what an Act of legislature proposes to prompt by express legislation. 14. This rule of interpretation of follow the language of the statute applies when the particular words and terms are in issue. That however, does not hold the field when a state of law itself is required to be gone into to understand as to what an Act of legislature proposes to prompt by express legislation. This should be more so, when the legislature steps in so as to give uniformity and fixity to otherwise flexible and fluid state of law including thorax of simulated sastric injunctions and judicial interpretations as well as the pattern of changing customs of the people. Keeping this all in view, a narrow question centres round the phrase "heirs of the husband" and whether by providing for and preferring that when a Hindu female dies, any irrational arbitrary classification is made having, as was suggested an in-built discrimination only on the ground of sex against the citizens of the State. 15. The Constitution does not posit totally unguided non-classified equality Equal protection under the laws is not an abstract proposition. Laws are in tended to solve specific problems and achieve definite objectives and hence absolute equality or total uniformity is impossible of achievement. The governing principles of Article 14 operate upon the field that amongst the equals the law should be equal and be so administered. Discrimination is forbidden between the classes and persons who are substantially similarly circumstanced. If the persons or groups are rationally classified and such classification bears the testimony of long standing position of the personal law, then surely law can reach them differently and such different treatment would not result in discrimination. If the classification is founded on intelligible differentia and has rational to the object the legislative provision is intended to achieve, then such a challenge can hardly merit acceptance. It is only when the discrimination is based only on consideration of difference of sex amongst the same class that the challenge under Article 15 could be substantiated. Both these articles are supplementary to each other. Article 14 is containing the general right of equality, while the other laying down special circumstances. See (Dasaratha Rama Rao v. State of Andhra Pradesh)5, A.I.R. 1961 Supreme Court 564, and (P. Rajendran v. State of Madras)6, A.I.R. 1958 Supreme Court 1012. 16. Enquiry should proceed from finding the object of the enactment and the purpose for which the same is made. See (Dasaratha Rama Rao v. State of Andhra Pradesh)5, A.I.R. 1961 Supreme Court 564, and (P. Rajendran v. State of Madras)6, A.I.R. 1958 Supreme Court 1012. 16. Enquiry should proceed from finding the object of the enactment and the purpose for which the same is made. Provisions of the Hindu Succession Act along with the Companion Act have the historical background arising out of the system of personal law governing Hindu community. This notification of some of the branches of Hindu law was undertaken after the independence so as to confer much needed uniformity and statutory stability to otherwise fluid state of law. Legislation was not embarked upon any virgin field but was undertaken to give shape and form by sanctioning legislative principles in that regard. Historically, that system of law was determined over ages by the traditions, customs, sastras and the judicial interpretation thereof. The personal law of Hindus or that body of law that does under the terms Hindu Laws is one of the most ancient known systems of jurisprudence. Primarily, it grew with the order that organised Indian Society. It evolved and developed over periods that set pace to orderly development of human affairs. Constantly adopting and even assimilating divergent elements, it often changed the course and united the people around the percepts. Its recognisable origins are traced back to the foundations of Vedic texts, Smritis and Shrutis and several commencement of Dharmasastras. All this pronounced law intermixed with the customs of the people was turned into a live mix by applicative judicial interpretations. It is not necessary to travel back along the luminous trial of judicial history of this ancient system. Suffice it to observe that as far as the present debate in concerned, the state of applicative law with regard to succession did have classified branches having concept of family, marriage, property, of its sources as well the general principles of succession, inheritance and recognition of male and female heirs for that purpose. Coparcenary and/or joint family was the natural state of Hindu Society. That recognised an unique system of proprietory interest by birth and its unimpeded enjoyment. Survivorship and rules of succession were all applicative Rules for retaining property with such a family. Coparcenary and/or joint family was the natural state of Hindu Society. That recognised an unique system of proprietory interest by birth and its unimpeded enjoyment. Survivorship and rules of succession were all applicative Rules for retaining property with such a family. All through, the principal unit or care of family was supported by such rules of succession that added strength and vigour as well as provided sustenance to the very basis of the institution. Schematically, it is not as that this judicial system was averse to recognise rights in favour of a female member as the heir to the property though her position in history witnessed diminution and deprivation. Earliest enlighetened injunctions in this regard indicate continued efforts to enhance and argument her rights as the part of the basic institution of the family. It is enough to quote the "Marriage and Family in India" by K.M. Kapadia, a very illustrious exposition, where the passage of property rights to females is observed as follows :--- "Yajnavalkya introduced the wife and daughters as heirs of family property declared a son's right by the very fact of his birth to the property held by his grandfather, and enlarged the content of woman's property and her control over it. In consonance with these changes in favour of woman, he introduced the three immediate ancestors of the other as the recipients of pindas at the sraddha. Katyayana further enlarged the scope of stridhana, woman's property and recognised woman as entitled to her husband's share in the joint family property after his death. Vijnanesvara introduced the daughter's son as an her in preference to such a near agnatic relation as the father or the brother. And Jimutavahana brought in the sister's son the father's sister's son and the father's father's sister's son as heirs in preference to some of the nearer collaterals. The claims of agnatic relatives beyond the fourth generation came to the ignored in favour of relatives through the mother. And all this was done when joint-family as the basic pattern of Hindu culture was very strongly insisted on". (Emphasis provided). With such lay out of the joint family keeping it as the basic pattern, workable concept of woman's property or stridhana came to be recognised. Woman could inherit while being a member of the family and in turn provide upon death the point for succession. 17. (Emphasis provided). With such lay out of the joint family keeping it as the basic pattern, workable concept of woman's property or stridhana came to be recognised. Woman could inherit while being a member of the family and in turn provide upon death the point for succession. 17. Two schools of Mitaksara and of Dayabhaga or Bengal School, that represent the main streams of persons law, did recognise classifications with regard to different successions to makes and females property. If it were a stridhana an order of succession was also recognised thereto; and it was the rule in Mitaksara that even the stridhana in default of an issue was to go to the husband and his heirs and it was to descend in the same way as if it had belonged to the husband himself. In Mayukh also where a woman died without issue as far as the stridhana was concerned, failing the specified heirs it devolved on the husband's heirs. (See sections 147 to 151 Mulla's Hindu Law). 18. All this body of law developed around and through the special realities of life of man living in organised group like family and joint family clan and commune or the tribe. Institutional recognition of marriage was understood as bringing male and female together in one unity. That generated the basic dynamics of the family; and property relations and entitlement thereto evolved out of the family; and property relations and entitlement thereto evolved out of the obvious necessity of sustaining the same. The Rules of succession and inheritance that where thus made applicable when the marriage of the woman was in an approved form, were based on the concept that the valid marriage results in unity of the spouses, that is, wife and husband together formed one union. In recognition of that position, when succession opened to wife's property, the class known as heirs of the husband when no other immediate heirs were available, was permitted to succeed. That was the logical result of the initial unity, in which the husband and wife came to be inter-woven by the tie of marriage. Recognition and reference to the heirs of the husband were just a logical necessary step to continue that unity in which the female had merged by marriage and was an integral part of such a family. That was the logical result of the initial unity, in which the husband and wife came to be inter-woven by the tie of marriage. Recognition and reference to the heirs of the husband were just a logical necessary step to continue that unity in which the female had merged by marriage and was an integral part of such a family. If the property accrued to her from that family, the rule discernible was that it should remain in succession in that family. 19. It is this state of law which had the basic socio-legal recognition in the unity of the family, in the institutions of marriage and out of which sprung the necessity of laying down the rules of inheritance and succession that provide the feedback to the present codified legislation. It has recognised the same basic necessity to maintain the succession with the family, the unit which thrives and is furthered by marriage. It is significant that the Hindu Succession Act makes meaningful reference to several relations that arise between of valid marriage within the social unit of the family. Otherwise uncodified dictionary not several terms that describe the relations in a kin group as contemplated by this law is a sure indication of the intention of the legislature to fortify the institution of family by recongnising marraige as basic and to continue the property entitlements on that basis. In this scheme 'wife' as a relatives is a specified heir. No doubt, the present condification is not mere collection or arrangement of past parcels of precepts. There are clear departures from the history, one such being the conferring of full ownership upon a Hindu female with regard to the property acquired by her and thus putting her on par with other owners of the property in Hindu family. (Section 14 of the Act). That, however, is not intended either to affect her position as the 'wife' in the family or to affect the character of the family or property in her hand. On the other hand, the provisions like section 15(1) or 15(2) clearly show that when succession opens to her rules are enacted with clear intent to keep us to continuity so that the property of the husband remains in his line, while that of parents follows their line. Both on the socio- justice grounds, classification reasonably exists and is continued. 20. Both on the socio- justice grounds, classification reasonably exists and is continued. 20. Principally, law of succession is a law of entitlement. And also of status. These twin objects are achieved by laying down compact supportive schemes. It is self-evident that for achieving these objectives, the integral unity of the family is the point of legislative reference. That may be because of the socio-legal group governed by the tenants of personal law of Hindus wherein institution like marriage results in union and gives rise to different relations in turn strengthening structure of the family, a vital organism in social web of associative existence. Property or acquisition offers and supports its continuity and unity. Family by that retains its economic as well as jurisdical identity. Of course, marraige, by no means, vests private property in wife nor is it an economic arrangement. It ever represents essential partnership of two human beings united as husband and wife, each of whom being and providing heirs to each other. All this matrix of relations is clear and reference to the definitions available in section 3 of the Hindu Successions Act of the terms like "heir" goes to highlight the same. 21. "Heir" means a person male or female, who is entitled to succession to the property of an intestate. The term "intestate" indicates a person who is deemed to die intestate in respect of the property of which he or she had not made testamentary disposition, (Sections 3(f) and 3(g)). Leaving aside other terms the definition of the word "relative" available in section 3(j) also takes in the basis of legitimate kinship. Therefore, if the kinship is recognised by law and its terms entitle such a person, male or female by the rules of devolution to succeed to the property, then such a legal classification can hardly be said to militate against the interest of other heirs only because such heirs appear to be of other sex. It is interesting to observe in this context that several classes of heirs have been classified in the schedule to the Act and the terms are couched in descriptive manner indicating the natural and legal relations between the parties and particularly to the person whose succession is in issue. It is interesting to observe in this context that several classes of heirs have been classified in the schedule to the Act and the terms are couched in descriptive manner indicating the natural and legal relations between the parties and particularly to the person whose succession is in issue. In the very nature of things, if the object is to further the institutional identity of the family along with its property, the same can well be conferred in favour of the class that comes closer to the family such as those like husband and wife and their off-springs, then the other related but distinct persons to that group of which the husband and wife are the united members. By describing the heris of husband the heirs of wife are not excluded, for being a wife she is the member of her family. That is clear if a look is taken at the arrangement of different types of heirs and the classes thereof. If the property has come from the father or mother of a Hindu woman dying intestate, the law in furtherance of clear objective to continue the family unity directs that such property should go to the heirs of father and mother and not to the heirs of the husband. It is only when the property is inherited form the husband that the provisions require that it should devolve on the heirs of the husband. The supportive principle of both these provisions is the same. Sustaining the unity of the family and for that the entitlement to the property carved out in favour of the family and for that the entitlement to the property carved out in favour of close relations than remote. Choose the core group and permit remote ones to come in only in case of its want, is the principle. 22. Even the main scheme of section 15(1) provides that when a Hindu woman dies intestate, her property has to devolve according to the rules set out in section 16 upon her sons and daughters and the husband (all closely related blood relatives), secondly upon the heirs of the husband (showing the principle of the close-knit unity with the husband), thirdly upon the mother and father (indicating the second group of related family), and fourthly upon the heirs of the father and lastly upon the heirs of the mother (other distant related groups). This schemes itself throws light upon the principles on the basis of which choice and arrangement of different classes of heirs is made, namely, closer blood relation is preferred to the distant one, having reference to the family where succession opens. In the context of this sub-section (2) of section 15 lays down special Rule, which does not depart from this basic principle but furthers it, wife being the part of the family by marriage. If she had received the property by inheritance from her husband in the absence of a son or daughter including the children of any pre-deceased son or daughter, this Rule states that property goes to the heirs of the husband. There is neither any scope of finding out any hostile classification or any sex discrimination as is suggested in this whole operative scheme. It is a rule of devoluation that begins to operate when "a wife" as distinct from mere female dies that with regard to inherited property from husband, heirs being described as husband's heirs that are made to succeed. When this provision speaks of the "heirs of the husband", reference is to the provisions of section 8 of the Act, and that deals with the general Rule of succession in the case of male Hindu dying intestate. It provides that property of such male Hindu would devolve firstly on the relatives specified in Class I, failing that on the relatives specified in Class II and failing them too, on the agnates and lastly upon the cognates of the deceased as mentioned in the schedule. Class I amply shows that there is no sex bias in this legislation for, it includes along with male heirs the female heirs like daughters widow and mother, etc. So also Class II includes female heirs. 23. Therefore, there is hardly any manifest or remote evidence to indicate that any sex preference is legislated by this measure. On the other hand what is being provided is in favour of the family of which the beneficiaries are both male and female heirs. Only because the words of the statute use the phrase like "heirs of husband" to indicate upon whom the property should believed, such terminology does not lead to the conclusion that this has enacted preference only on the ground of sex. Only because the words of the statute use the phrase like "heirs of husband" to indicate upon whom the property should believed, such terminology does not lead to the conclusion that this has enacted preference only on the ground of sex. The very fact that the schedule includes the female heirs, who are entitled to succeed to the property of the husband (male Hindu) goes to show otherwise. The subject of section 15(2) is a succession of a female Hindu dying intestate. It includes both married and unmarried females. If it were a case of married female she being a wife by virtue of law has the capacity to succeed to the interest in property of the husband by reason to section 8. Upon her death as a wife holding the property inherited from the source like that of the husband, the law interdicts that such property should devolve on "the husband's heirs" as is the case with regard to the property that comes to such person from the parents. The basis of both is reasonable and free from any sex criterion. 24. Upon analysis this being the position, it is hard to find any discrimination, much less a hostile discrimination only on the ground of sex in the provisions of section 15(2)(b) of the Hindu Succession Act that enacts a special Rule operative upon specified property inherits by the female from her husband. Such devolution is in recognition of initial twin objectives of maintaining the unity involved in the family kinship and maintaining continuous succession to property in favour of the family when occasion to succession arises. That is to essential to be sustained by such law of succession. It is trite to observe that death is certain fact of individual life. That puts an end to the individual. But the law like that of succession reaches out to maintain a line of extension notwithstanding such death or such extinction, in it practical, pragmatic as well as philosohical brooding so as to confer essential continuity to human affairs as institutionalised in family, marriage and property. 25. Now, to the decisions which came to my notice I must turn. These offer one more approach to the debated problem as to the constitutional validity of the codified provisions of personal law. 26. 25. Now, to the decisions which came to my notice I must turn. These offer one more approach to the debated problem as to the constitutional validity of the codified provisions of personal law. 26. In the case of (The State of Bombay v. Narasu Appa)7, A.I.R. 1952 Bombay 84, the Division Bench of this Court repealed the challenge to the provisions of the Bombay Prevention of Hindu Bigamous Marriages Act on the ground that they violated Articles 14 and 15(1) of the Constitution of India. The ratio of that case is binding. The learned Judge of the Division Bench, namely, Chief Justice Chagla and Justice Gajendragadkar, speaking separately, apart from other reasons have taken the view that Article 13(1) of the Constitution of India uses the phrase 'laws in force' and that does not include the legislation concerning personal law applicable to a given religious community. This is no doubt one of the primary reasons apart from other reasons on the basis of which the challenge was turn down. I must confess my inability to agree with the proposition that post-constitutional legislation on any subject would not be covered by the term "laws in force" notwithstanding the legislative competency as is available in Entry No. 5 of the concurrent list of the Seventh Schedule. The competency enables the Indian legislature to make laws affecting personal laws as specified in the entry and such laws would necessarily be within the contemplation of Article 13(1) of the Constitution of India. However, as stated earlier, the decision is binding and furthermore, because of the view I have already expressed, the present legislation passes the test of equality and there is no discrimination that can be reached so as to be affected by Articles 14 and 15 of the Constitution. It is clear that the classification "of the heirs of husband" has a historical background and further has the rational basis clearly discernible in the growth of socio-legal institutions like marriage and family along with that of property and, in the context, does not militate against constitutional contemplations. 27. The Madras High Court was similarly called upon in the case of (Shrinivasa Aiyar v. Saraswati Ammal)8, A.I.R. 1952 Madras 193 to decide the challenge to the provisions of the Madras High Court (Bigamy Prevention and Divorce) Act, 1949. 27. The Madras High Court was similarly called upon in the case of (Shrinivasa Aiyar v. Saraswati Ammal)8, A.I.R. 1952 Madras 193 to decide the challenge to the provisions of the Madras High Court (Bigamy Prevention and Divorce) Act, 1949. That challenge on the basis that the Act violated Article 15 or Article 25 was negatived holding that it was backed by complete legislative competency; and the judgment suggests that the enactment operates upon the defined class of people governed by the given system of personal law and thus could not be violative of the fundamental rights concerned. The Punjab and Haryana High Court in the case of (Gurdial Kaur v. Mangal Singh)9, A.I.R. 1968 Punjab and Haryana 396, dealt with a custom regarding succession of Jats in Punjab and the challenge to that custom was on the ground that it violated the guarantee of Article 15(1) of the Constitution because the mother was disinherited if she remarried, but the same consequence was not attached to the father. One of the reasons given by the Court for repealing the challenge was that there was no force in the alleged treatment of discrimination because right of succession vary between different heirs belonging to different classes and the matter was governed according to the personal law or the usages by which the party was governed and it was too much to suggest that all heirs belonging to any sex must have the same rights of inheritance. Though there are no further reasons in the text of the judgment, it is obvious that the Court ruled that the rights of inheritance of the mother in that regard depended upon the personal law which governed the parties and the principles of that law could hardly be challenged as discriminatory only because it preferred a particular succession. 28. Similar challenges on the ground of violations of principles of equality and hostile deferentia on the basis of sex have been turned down by the courts consistently. In (Yusuf Abdul Aziz v. State of Bombay)10, A.I.R. 1954 Supreme Court 321, the Supreme Court upheld the provisions of section 497 of the Indian Penal Code on the basis that the distinction was based upon special position of women. In (Yusuf Abdul Aziz v. State of Bombay)10, A.I.R. 1954 Supreme Court 321, the Supreme Court upheld the provisions of section 497 of the Indian Penal Code on the basis that the distinction was based upon special position of women. Section 14 of the Hindu Succession Act was held valid by the Punjab High Court in (Kaur Singh v. Jaggar Singh)11, A.I.R. 1961 Punjab 489, while the provisions of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 were upheld in (Abdulla Khan v. Chandni Bi)12, A.I.R. 1956 Bhopal 71. Similarly, the validity of the Hindu Marriage Act was upheld in (H.B. Singh v. T.N.H.C.B. Devi)13, A.I.R. 1959 Manipur 20. Apart from this, challenge to the personal law being arbitrary, when Lingayats were classed as Sudras was turned down by the Mysore High Court in (Sangannagoude v. Kalkangouda)14, A.I.R. 1960 Mysore 147. So is in the ratio with regard to the Madras Aliya Santhana Act in the case of (Sudha v. Sankappa Rai)15, A.I.R. 1963 Mysore 245, and in the case of (Santhamma v. Neelamma)16, A.I.R. 1956 Madras 642, the former dealing with section 13 and the later with section 35(1) of that Act. With regard to special personal laws, the dictates applicable to Mahomedan community and the exemptions granted by section 129 of the Transfer of Property Act, the Patna High Court in (Bibi Maniran v. Mohd. Ishaque)17, A.I.R. 1963 Patna 229, turned down the challenge on similar grounds. 29. One thing is clear. All these decisions indicate, in the context of the controversy that came to be decided, that the true principle is that the community governed by the given personal law itself forms a recognised class within the constitutional contemplation and that itself offers a reasonable class of persons for testing the given legislation and the same has to be examined in the background of the principles by which such class is governed by the tenets of their personal law. If those principles are otherwise reasonable in the context and the history of the given system of personal law, then the challenge like the present one is hardly sustainable. 30. If those principles are otherwise reasonable in the context and the history of the given system of personal law, then the challenge like the present one is hardly sustainable. 30. It is already indicated that as far as the rights of inheritance are concerned the Hindu personal law recognised a rule with regard to the property in the hands of a female and that upon her death the succession to it should be in favour of the heirs of the husband because of the source and origin of her inheritance. Similar rule applied to the property that came from the paternal side. Both had reasonable nexus. Following that rule for keeping the property with the source of the familial line, succession is presently enacted. Family and property being the two supportive social institutions, there is no reason to hold that such a rule is either unreasonable or discriminatory. 31. I am unable, therefore, to find any substance in the submission of the learned Counsel that the provisions of section 15(2)(b) enact a preferential treatment in favour of a male member of the family and as such introduce sex discrimination with regard to the property of the female. 32. As far as the submission on behalf of the respondents Nos. 3 and 4 is concerned, undoubtely, the learned Counsel is right. Order XLI, Rule 33 of the Civil Procedure Code enables the Appellate Court to pass any decree or order which ought to have been passed as also further order or decree as the nature of the case requires. See (Ramchand v. Janki Ballabhji)18, A.I.R. 1970 Supreme Court 532, and (Giani Ram v. Ramji Lal)19, A.I.R. 1969 Supreme Court 1144. These are enabling provisions and are available to this Court for making it clear that the decree for possession with regard to land in cultivation of the respondents Nos. 3 and 4 (defendants Nos. 3 and 4) would not mean to conclude one way or the other their entitlement to be protected by the provisions of the relevant tenancy law. It is significant that it was the case of the plaintiff that he was the tenant. It is further significant to observe that was the case set up also by defendant No. 4 . Inspite of this, no issue appears to have been framed with regard to the rights in tenancy claimed by defendants Nos. 3 and 4. It is significant that it was the case of the plaintiff that he was the tenant. It is further significant to observe that was the case set up also by defendant No. 4 . Inspite of this, no issue appears to have been framed with regard to the rights in tenancy claimed by defendants Nos. 3 and 4. It was the obligation and duty of the trial Court to frame an appropriate issue with regard to tenancy and, as the law presently stands, to refer the same to the revenue authorities for deciding the question as to the legality or otherwise of such a tenancy. That having not been done, the only course would have been to remit back this matter to the trial Court directing reference of the issue in this regard to the tenancy authorities. But to overcome such a remand, the parties have filed a joint pursis and Mr. Walawalker for the plaintiff has categorically stated that the claim of the alleged tenancy of the respondents Nos. 3 and 4 would not be deemed to have been concluded by the decree that is being affirmed in this second appeal and and these defendants would be free to raise objections on the basis of their alleged tenancy when the decree is put in execution and the executing Court would be entitled to deal with the same according to law. This agreed submission by all the parties obviates the necessity of varying the decree having recourse to the provisions of order XLI, Rule 33 of the Civil Procedure Code. It is, however, made clear that in execution of this decree, the defendants Nos. 3 and 4 , who are in possession of the landed property, would be free to raise such objections on the ground of such a tenancy and the executing Court will deal with the same according to law. In case they are found to be protected by the provisions of the tenancy law, the plaintiffs' entitlement to actual possession of the lands in their cultivation will have to be worked out in consonance with that law. That satisfies the submissions raised on behalf of the respondents Nos. 3 and 4. 33. In the result, the appeal fails and is dismissed with costs. -----