Daya Singh (Dead) Through L.Rs. &
ANR Vs. Dhan Kaur  INSC 47 (5 March 1974)
MATHEW, KUTTYIL KURIEN
CITATION: 1974 AIR 665 1974 SCR (3) 528 1974
SCC (1) 700
Hindu Succession Act, 1956, sec. 8-Whether
effects change in old Hindu Law--Death of female limited owner who succeeds
last male holder-Customary Law of Punjab whether applicableHeld, succession
opens on death of limited owner and would be governed by law then in
force-Interpretation of statutes.
The respondent's father, W, who owned the
suit property died in 1933. His widow, who succeeded to the estate, gifted the
property to her daughter, the respondent. The appellants filed a suit as
reversioners of W questioning the gift. The "it 'as decreed and the decree
was confirmed on appeal.
After coming into force of the Hindu
Succession Act on 17-61956, the widow again made a gift of the same, lands to
the respondent. She died in 1963. The appellants then filed the suit, out of
which this appeal arose, for possession of the lands. alleging that the second
gift was void. The trial court decreed their suit but on appeal the respondent
succeeded in the first Appellate Court as well as in the High Court on second
On appeal by special leave to this Court,
Dismissing the appeal,
HELD (1) Following the decisions of the Privy
Council in Moniram Kolita v. Keri Kolitani, I.L.R. 5 Calcutta 776 at 789 and
Duni Chand v. Anar Kali, A.I.R. 1946 P.C. 173, (infra) the words "dying
intestate in Sec. 8 of the Act must be interpreted as merely meaning "in
the case of intestacy of a Hindu male" and to place this interpretation on
the Act is not to give retrospective effect to its provisions. The reference is
only to the fact of 'intestacy. The material point of time is the date when the
succession opens, namely, the death of the widow. Thus this propositions follow
(i) Succession opens on the death of the limited owner, and (ii) the law then
in force would govern the succession.
[532D-G] Moniram Kolita v. Keri Kolitani,
I.L.R. 5, Calcutta 776 789 and Duni Chand v. Anar Kali, A.I.R. 1946 P.C. 173,
Eramma v. Verritpatina, (1966) 2 S.C.R. 626,
explained and distinguished.
Banso v. Charan Singh, A.I.R. 1961, Punjab 45
and Kuldip Sing v. Karnail Singh, A.I.R. 1961, Punjab, 573, approved.
Kempiah v. Giriganima, A.I.R. 1966, Mysore
Renuka Bala v. Aswini Kumar A.I.R. 1961,
Patna 498 and Sam pathkumari N. Lakshmi Ammal, A.I.R. 1963 Madras, 50,
(ii)Succession to W's estate in the present
cage opened when his widow died and it would have to be decided on the basis
that W died in 1963 when his widow died. in that case succession to his estate
would have to be decided on the basis of s. 8 of the Hindu Succession Act. The
accepted position under the Hindu law is that where a limited owner succeeds to
an estate the succession to the estate on her death will have to be decided on
the basis that the last full owner died on that day. If, therefore, succession
opens and is to be decided on the basis of the last full owner dying on the
date of the death of the limited owner it is only the law in force at the time
of the death of the limited owner that should govern the case. To hold that the
old Hindu law applies to such a case is to allow your imagination to boggle.
[533-A-C, G-H] Eastend Dwellings Co. Ltd. v. Finsbury Borough Council, 1952
A.C. 109, 132, per Lord Acsquit and Venka tachalam v. Bombay Dyeing & Mfg.
Co. Ltd., (1959) S.C.R. 703, referred to.
The reversioners' right being a mere spes
successions there is no question of impairing existing rights by adopting the
interpretation we place on s. 8 apart from 529 the fact that it does not amount
to giving retrospective operation to s. 8. Of course,, if the property had
already vested in a person under the old Hindu Law, it cannot be divested. We
can see no reason either in principle or on authority why the principle
consistently followed under the earlier Hindu law that on the death of the
limited owner succession opens and would be decided on the basis that the last
male owner died on that day, should not apply even after coming into force of
the Act. In the view we have taken it is s. 8 of the Act that applies and not
the Customary Law.[534C-D,E-F.535G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1825 of 1967.
Appeal by special leave from the judgment and
order dated the 18th May, 1967 of the Punjab and Haryana High Court in L.P.A.
No. 158 of 1967.
Naunit Laland Lalit Kohli, for the appellant
O.P. Verma, for the respondent The Judgment of the Court was delivered by ALAGIRISWAMI,
J.-The property in dispute in this appeal belonged to Wadhawa Singh, the father
of the respondent.
After his death in the year 1933 his widow,
who succeeded to the estate, made a gift of the property in favour of her
daughter, the respondent, in April, 1933. The appellants filed a suit as
reversioners to the estate of Wadhawa Singh questioning the gift. The suit was
decreed and the decree was confirmed on appeal. After coming into force of the Hindu
Succession Act on 17-6-1956 the widow again made a gift of the same lands to
the respondent. She died in 1963.
The appellants then filed the suit, out of
which this appeal arises, for possession of the lands alleging that the second gift
was void. The Trial Court decreed their suit but on appeal the respondent
succeeded in the first Appellate Court as well as the High Court on-second
There is no doubt that Wadhawa Singh's widow
had no right to make a gift of the property which she inherited from her
husband in 1933 and the decree obtained by the appellants, who were
reversioners to her husband's estate would bind the respondent who was also a
party, to that suit. The question then is-whether the-coming into force, of the
Hindu succession Act and the subsequent gift made by the widow in favour of the
respondent make any difference. Had not the widow made the gift to the
respondent in 1933, she would have become an absolute owner of the property as
a result of S. 14 of the Hindu Succession Act and the gift made by her
subsequently in favour of the respondent could not have been questioned. But
having made the gift in 1933 she was not in possession of the property
inherited by her from her husband and, therefore, did not become a full owner,
with the result that the subsequent gift made by her in favour of the
respondent was of no effect. This point that unless the limited owner is in
possession of the property section 14 does not apply has now been settled by
decisions of this Court beyond dispute.
What then is the effect of the provision of
s. 8 of the Hindu Succession Act in the circumstances of this case.
'The Punjab High Court in its decisions in
Banso v. Charan Singh (AIR 1961 Punjab 45), and Kuldip Singh v. Karnail Singh
(AIR 1961 Punjab 573), where the facts 530 were similar to the present case,
has taken the view that when a widow dies after the coming into force of the Hindu
Succession Act the next heir to her husband is to be determined in accordance
with the law prevailing on the date of the death of the widow and not in
accordance with the law prevailing at the time of the death of her husband and
held that the daughter succeeded in preference to the reversioners. The Mysore
High Court on the other hand in Kempiah v. Girigamma (AIR 1966 Mysore 189) has
held that on the death of the widow succession would be governed by the Hindu
Law which was in force when the last mate holder actually died. The Patna High
Court in Renuka Bala v.
Aswini Kumar (AIR 1961 Patna 498) was
disposed to take a similar view though the case before it was concerned with
succession to the property of a female under s.15. The Madras High Court in
Sampathkumari v. Lakshmi Ammal (AIR 1963 Madras 50) also took the view that in
such circumstances s. 8 of the Hindu Succession Act would not apply. But the
case before that Court was one where two widows who had succeeded to the estate
of their husband were in possession, and therefore, s. 14 was applicable.
Lastly, we have the decision of this Court in Eramma v. Verrupanna (1966 2 SCR
626).. In that case this Court after setting out the provisions of s. 6 of the Hindu
Succession Act observed:
"It is clear from the express language
of the section that it applies only to coparcenary property of the mate, Hindu
holder who dies after the commencement of the Act. It is manifest that the
language of s. 8 must be construed in the context of s. 6 of the Act.
We accordingly hold that the provisions of s.
8 of the Hindu Succession Act are not retrospective in operation and where a
male Hindu died before the Act came into force i.e., where succession opened
before the Act s. 8 of the Act will have no application." Interpreted
literally this dicision would seem to accord with the decisions of all the
other High Courts except the Punjab High Court. But it should be noticed that
the problem that we are faced within the present appeal and in the cases before
the Punjab and Mysore High Courts did not arise before this Court on the
earlier occasion. The decisions of the Madras High Court and the Patna High
Court are not directly in point.
In the case before this Court the two women
were in possession of property whose last male holder, who had died before
coming into force of the Hindu Succession Act, was their step son. They were
not, therefore in legal possession of the properties of the last male holder.
The question that had to be decided was whether because of the coming into
force of the Hindu Succession Act they were entitled to succeed under s. 8, and
the further question whether s. 14 would be attracted as they were actually in
possession. It was held that as they were not legally in possession s, 14 would
not apply, It was in that context that it was said that where a male Hindu died
Act came into force i.e., where succession
opened before the s. 8 of the Act will have no application, The point that
succession 531 might open not only when the male Hindu died but also
subsequently again when a limited owner who succeeds him dies was not taken
into account. There was no need and no occasion to consider such a contingency
in that case. There was the further fact that the last male holder was succeeded
on his death by persons who were then. his nearest heirs and the property
vested in them could not be divested by the Hindu Succession Act coming into
force subsequently thought this fact was not adverted to in the judgment. This
Court had, therefore. also no occasion to consider the effect of the earlier
decisions on the question as to what happens when a female limited owner,
whether she is a widow, mother or daughter who succeeds the last male bolder,
That position may now be considered. It was
authoritatively laid down by the Privy Council in its decision in Moniram
Kolita v. Keri Kaliteni (ILR 5 Calcutta 776 at 789) that :
"According to the Hindu Law, a widow who
succeeds to the estate of her husband in default of male, issue, whether she
succeeds by inheritance or survivorship-as to which see the S hivagunga case
(1)-does not take a mere life-estate in the property. The whole estate is for
the time vested in her absolutely for some purposes, though in some respects
for only a qualified interest. Her estate is an anomalous one, and has been
compared to that of a tenant-in-tail. It would perhaps, be more correct to say
that she holds an estate of inheritance to herself and the heirs of her
husband. But whatever her estate is, it is clear that, until the termination of
it, it is impossible to say who are the persons who will be entitled to succeed
as heirs of the husband (2). The succession does not open to the heirs of the husband
until the termination of the widow's estate. Upon the termination of that
estate the property descends to those who would have been the heirs at the
husband if he had lived up 'to and died at the moment of her death (3)."
In the subsequent decision in Duni. Chand v. Anar Kali (AIR 1946, PC 173) the
Privy Council observed:
".... during the lifetime of the widow,
the reversioners in Hindu Law have no vested interest in the estate but have a
mere spes succession is or chance of succession, which is a purely contingent
right which may or may not accrue, that the succession would not open out until
the widow died, and that the person who would be the next reversioner at that
time would succeed to the estate and the alteration in the rule of the Hindu
Law brought about by the Act would then be in full force.
(1) 9 Moore's I.A., 604.
(2) Id., 604 (3) Id., 601.
532 In the argument before their Lordships,
reliance was placed upon the words "dying intestate" in the Act as
connoting the future tense, but their Lordships agree with the 'view of the
Lahore High Court in 17 Lah 356(1) at p. 367, that the words are a description
of the status of the deceased and have no reference and are not intended to
have any reference to the time of the death of a Hindu male. The expression
merely m eans "in the case of intestacy of a Hindu male". To place
this interpretation on the Act is not to give a retrospective effect to its
provisions, the materials point of time being the date when the ,.succession
opens, namely, the death of the widow.
On the position of reversioners in Hindu Law,
opinions have been expressed by this Board from time to time with which the
views of the learned Chief Justice in 58 All. 1041(2) mentioned above, are in
agreement. It was said, for instance, that until the termination of the widow's
estate, it is impossible to say who are the persons who will be entitled to
succeed as heirs to her husband; 9 M.I.A. 539 (3) at p. 604. The succession
does not open to the heirs of the husband until the termination of the widow's
estate. Upon its termination, the property descends to those who would have
been the heirs of the husband If he had lived up to and died at the moment of
her death 7 I. A. 115 (4) at 154." It would be noticed that the Privy
Council interpreted the words "dying intestate" as merely meaning
"in the case of intestacy of a Hindu male" and said that to place
this interpretation on the Act is not to give retrospective effect to its
provisions. Those are the very words found in s. 8. These may be contrasted
with the words of s. 6 "where a male Hindu dies after the commencement of
this Act." Here the reference is clearly to the time of the death. In
section 8 it is only to the fact of intestacy. The material point of time, as
pointed out by the Privy Council, is the date when the succession opens,
namely, the death of the widow. It is interesting to note that the Privy
Council was interpreting the provisions of the Hindu Law of Inheritance
(Amendment) Act, 1929 where the two contrasting expressions found in the Hindu
Succession Act, 1956 are not found.' The case for the interpretation of the
words "dying intestate" under the Hindu Succession Act is stronger.
The words "where a male Hindu dies after the commencement of this
Act" in section 6 and their absence in section 8, are extremely
significant. Thus two propositions follow: (1) Succession opens onthe death of
the limited owner. and (2) the law then in force would govern the succession.
Now if this proposition is correct, as we
hold it is, that where a female heir succeeds to an estate, the person
'entitled to succeed on the basis as if the last male holder had lived up to
and died at the (1) Mt. Rajpali Kunwer v. Surju Rai (58 All. 1041).
(2) Shakuntala Devi v. Kambsalya Devi (17 Lah
(3) Katam Natchiar v. Rajah of Shiva Gunga (9
MIA 539), (4) Monirain Kolita v. Kerry Kolitang (7 IA 115: 5 Cal 776).
533 death of the limited owner, succession to
Wadhawa Singh's estate in the present case opened when his widow died and it
would have to, be decided on the basis that Wadhawa Singh had died in 1963 when
his widow died. In that case the succession to his estate would have to, be
decided on the basis of s.8 of the Hindu Succession Act. The various High
Courts which have held otherwise seem to have been oppressed-by the feeling
that this amounted to giving retrospective effect to s. 8 of the Hindu
Succession Act whereas it is only prospective. As the Privy Council pointed out
it means no such thing. The accepted position under the Hindu Law is that where
a limited owner succeeds to an estate the succession to the estate on her death
will have to be decided on the basis that the last full owner died on that day.
It would be unreasonable to hold that in such a circumstance the law as it
existed at the time when the last male holder actually died should be given
effect to. If the person who is likely to succeed at the time of the limited
owner's death is not, as happens very often, likely to be the person who would
have succeeded if the limited owner had not intervened, there is nothing
unreasonable in holding that the law as to the person who is entitled to
succeed on the limited owner's death should be the law then in force and not
the law in force at the time of the last full owner's death.
The Madras High Court thought that the
decision of the Privy Council in Duni Chand v. Anar Kali (supra) was based upon
a legal fiction and that fiction cannot be given effect to except for a limited
purpose. The Mysore High Court also thought that the death referred to in
section is actual death and not fictional death. In East end Dwellings Co.,
Ltd. v. Finsbury Borough Council (1952 A.C. 109 132) lord Asquith of
Bishopstone observed :.
"If you are bidden to treat an imaginary
state of affairs as real, you must surely, unless prohibited from doing so,.
also imagine as real the consequences and incidents which, if the putative
state of affairs had in fact existed, must inevitably have flowed from or
accompanied it. One of those in this case is emancipation from the 1939 level
The statute says that you must imagine a
certain state of affairs; it does not say that having done so, you must cause
or permit your imagination to boggle when it comes to the inevitable
corollaries of that state of affairs".
This observation was cited with approval by
this Court in Venkatachalam v. Bombay Dyeing & Mfg. Co., Ltd (1959 S.C.R. 703)
If, therefore, succession opens and is to be decided on the basis of the last
full owner dying on the date of death of the limited owner the inevitable
corollary is that it is only the law in force at the time of the death of the
limited owner that should govern the case. To hold that the old Hindu Law
applies to such a case is to allow your imagination to boggle. In the case
decided by the Privy Council in Duni Chand v. Anar Kali (supra) if this
principle had been applied the new heirs 534 introduced by the Hindu Law of
inheritance (Amendment) Act, 1929 could not have then come in. We are not
impressed with the reasoning of the Patna High Court that because the change
brought about by that Act is different from the change brought about by the Hindu
Succession Act a different conclusion follows. We should consider that if even
the limited change in the area of succession effected by the Hindu Law of
Inheritance (Amendment) Act, 1929 is to be given effect to as the law
applicable on the date of the death of the limited owner, it is all the more
reason why the Hindu Succession Act which makes a much more radical change in
the Hindu Law should have similar application.
The Mysore High Court thought that the Hindu
Succession Act not being a mere declaratory Act, retrospective effect should
not be given to it so as to impair existing rights and obligations. But the
reversioners' right being a mere spes succession is there is no question of
impairing existing rights by adopting the interpretation we place on section 8
apart from the fact that, as earlier pointed out, the interpretation does not
amount to giving retrospective effect to section 8. of course, if the property
had already vested in a person under the ,old Hindu Law it cannot be divested.
We must also point out that the classes of
cases where such a question is likely to arise is very limited. Where a widow,
mother or daughter was in possession of the estate on the coming into force of
the Hindu Succession Act she would become full owner under the provisions of
the S. 14 of the Act. Even if a widow was in possession of the share belonging
to her in the joint family estate tinder the pro -visions of the Hindu Women's
Right to property Act, 1937, she would become a full owner under s. 14. In both
those cases S. 8 would have no operation. It is only in rare cases, like the
present, that the question is likely to arise at all and we can see no reason
either in principle or on authority why the principle consistently followed
under the earlier Hindu Law that on the death of the limited owner succession
opens and would be decided on the basis that the last male owner died on that
day, should not apply even after coming into force of the Hindu ,Succession
Act, Mr. Naunit Lal appearing for the appellant argued that the result ,of the
decision of this Court in Eramma v. Verrupanna (supra) is that on the death of
Wadhawa Singh's widow it is the old Hindu Law that applied and therefore under
the custom in force in Punjab under which a daughter was not entitled to
succeed to the ancestral property of the father in preference to the
reversioners should apply and the appellants are entitled to succeed. There is
no doubt about the position under the Customary Law of Punjab before coming
into force of the Hindu Succession Act. In Rattigan's Digest of the Customary
Law' published by the University Book Agency (14th Ed.), paragraph 23 at age
132 it is stated:
" 23.(1) A daughter only succeeds to the
ancestral landed property of her father, if an agriculturist, in default :(1)
Of the heirs mentioned in the preceding paragraph and 535 (2) Of near male
collaterals of her father, provided that a married daughter sometimes excludes
near male collaterals, especially amongst Muhammadan tribes :
(a) where she has married a near collateral
descendant from the same common ancestor as her father; or (b) where she has,
with her husband continuously lived with her father since her marriage; looking
after his domestic wants, and assisting him in the management of his estate; or
(c) where being married to a collateral of the father's family, she has been
appointed by her father as his heir.
(2) But in regard to the acquired property of
her father, the daughter is preferred to collaterals." It is on the basis
of this Customary Law that the reversioners succeeded in the suit filed by them
questioning the gift made by the respondent's mother to her. There is no doubt
that Rattigan's work is an authoritative one on the subject of Customary Law in
Punjab, This Court in Mahant Salig Ram v. Musammat Maya Devi (1955) SCR 1191 at
1196) said :"Customary rights of succession of daughters as against the
collaterals of the father with reference to ancestral and non-ancestral lands
are stated in paragraph 23 (if Rattigan's Digest of Customary Law. it is
categorically stated in sub-paragraph (2) of that paragraph that the daughter
succeeds to the self acquired property of the father in preference to the
collaterals even though they are within the fourth degree. Rattigan's work has
been accepted by the Privy Council as "a book of unquestioned authority in
the Punjab". Indeed the correctness of this paragraph was not disputed
before this Court in Gopal Singh v. Ujagar Singhi (1).
It is not now open to the respondent to show
whether any of the circumstances mentioned in sub-paragraph (2) of paragraph 23
of Rattigan's Digest of Customary Law is present here as the previous decision
is resjudicata between the parties and in any case it has not been attempted to
be shown in this case. But in the view we have taken that it is s. 8 of the Hindu
Succession Act that applies and not the Customary Law the appellants cannot
succeed in this appeal.
In the result the appeal is dismissed. The
appellants will pay the respondent's costs.
S. B. W.
(1) 1955 S.C.R. 86.