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Indubai Pandhari Naik v. Vyankati Vihoba Sawadha
Judgment Summary — Patel, J.
Factual and Procedural Background
This revisional application arises from an order made under Order XXII, rule 4, of the Code of Civil Procedure in a partition suit. The material facts in the opinion are as follows.
One Balaji left two sons, Vithoba and Pandurang, who were members of a joint family. Vithoba died in 1912 leaving Vyankati (defendant No. 1) and Gopala (defendant No. 2). Pandurang died in 1941 leaving his widow Sarubai and a daughter Indubai (married). At the time of Pandurang’s death the joint family was in possession of the suit properties.
In August 1961 Sarubai (Pandurang’s widow) filed a suit claiming partition of her share in the property against the defendants. After issues were framed she was examined on commission. Sarubai died on 20 October 1962, having executed a will in favour of her daughter Indubai. Indubai applied under Order XXII, rule 3, to be brought on record in place of her mother as plaintiff, claiming the properties under the will or, alternatively, by reason of section 15 of the Hindu Succession Act, 1956, as legal representative of the deceased plaintiff. No further evidence had been led when the application was heard by the trial Judge, who dismissed it.
The trial Judge dismissed the substitution/application on the basis that Sarubai was not in possession of the property at the date of suit (relying on her evidence that she had not lived with the defendants since 1941) and on authorities on adverse possession and prescription.
Legal Issues Presented
- Whether Indubai can be substituted as legal representative of the deceased plaintiff under Order XXII, rule 3, claiming under the will or under section 15 of the Hindu Succession Act, 1956.
- Whether section 14 of the Hindu Succession Act, 1956, applies to convert a widow's limited estate into an absolute estate in respect of “property possessed by her” and whether Sarubai was “possessed” of the suit properties in the sense required by section 14.
- Whether the defendants had acquired an adverse title / prescribed an adverse joint family title in respect of the suit properties (i.e., whether there was ouster or adverse possession sufficient to defeat Sarubai's rights).
- Whether section 151 of the Madhya Pradesh Land Revenue Code, 1954, creates a special mode of succession for agricultural land that is saved from the operation of section 4(2) of the Hindu Succession Act, 1956, thereby preventing the operation of the Hindu Succession Act in respect of agricultural land.
- Whether the local enactments (including the Central Provinces and Berar extension to the Hindu Women's Rights to Property Act) operate retrospectively so as to cover agricultural land where the owner died before the local Act was passed.
Arguments of the Parties
Applicant / Support (Mr. Manohar)
- Reliance on section 14 of the Hindu Succession Act, 1956, to validate the will made in favour of Indubai and to establish Indubai’s right to succeed to Sarubai’s interest otherwise than under the will (i.e., by succession under section 15).
- Implicitly, that Sarubai had such a form of possession and interest in the property at the relevant time that section 14 applied and converted her limited estate into an absolute estate capable of devolution to her heirs or by will.
Opponents / Respondents (Mr. Khare)
- Contended that Sarubai did not “possess” the property in the sense required by section 14; she acquired an interest but the cause of action did not survive her death and the suit abated.
- Relied on earlier decisions (Shamrao v. Kashibai; Subba Rao v. Krishna Prasadam; Jiwanandan Singh v. Sia Ram Prasad Singh; and others) to support the contention that the suit abated on Sarubai’s death and/or that her rights had been lost.
- Argued that, at least with respect to agricultural property, section 151 of the Madhya Pradesh Land Revenue Code, 1954 prescribes a special mode of succession and therefore is not affected by section 4(2) of the Hindu Succession Act (invoking Sitabai v. Kothulal as supporting authority).
- Also advanced a contention that the Hindu Women's Rights to Property Act, 1937, could not apply to agricultural land (but the opinion canvasses the contrary position by reference to a local enactment of 1942 extending the Act to agricultural land).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court (as stated in the opinion) |
|---|---|---|
| Sudarsan Das v. Ram Kirpal Das | Doctrine that possession of a joint estate is adverse to claim to it as a separate estate; principle that ouster must be proved before adverse title can be prescribed. | Trial Judge relied on it to support adverse possession by the joint family; this Court cited it to show that mere non-enjoyment does not establish ouster and that a finding of adverse title required proof at trial. |
| Babaji v. Jivaji | Held that when joint family possessed property as joint property the joint family might prescribe an adverse title against a claim to a separate estate. | Trial Judge relied on it; this Court held the learned Judge misinterpreted the decision and explained the specific factual scope of Babaji's case. |
| Kotturuswami v. Veeravva | Affirmed a wide meaning of “possession” (permitting a view of possession as owning or having in one's hands or power); confirmed view that permissive possession by adopted son was not inconsistent with widow's absolute estate under section 14. | Cited by trial Judge; the Court relied on it in construing “possession” in section 14 and in rejecting the contention that permissive or non-physical possession defeated the widow's rights. |
| Mst. Kirpal Kuar v. Bachan Singh | Illustrative authority where a widow with no right except maintenance had been held to become owner by adverse possession where she enjoyed the property as if entitled. | Trial Judge relied on it to support prescription; this Court observed the factual differences and said the trial Judge misunderstood its application to the present case. |
| Sitabai v. Kothulal | Interpreted section 151 of the Madhya Pradesh Land Revenue Code as creating a particular law of devolution affecting agricultural lands (as read by the learned Judge in that case). | This Court disagreed with the conclusion in Sitabai, examined legislative history, and held section 151 does not constitute tenancy legislation or override the Hindu Succession Act under section 4(2). |
| Venkayamma v. Veerayya | Construed “possession” in the context of widow's rights in a wide sense: state of owning or having in one's hands or power. | Used to support the construction of “possessed by her” in section 14 as meaning owning and having disposing power, not requiring physical occupation. |
| Harekrishna Das v. Jujesthi Panda | Held that under the Hindu Women's Rights to Property Act, a widow could have disposing power over the property and could alienate her interest. | Relied upon to show that a widow's restricted interest under older law gave her disposing power, supporting the view that section 14 converts such interest into an absolute estate. |
| Pem Mahton v. Bandhu Mahto | Similar proposition that widow's rights under prior enactments gave her powers of disposal and enjoyment. | Used to reinforce the conclusion that the widow had ownership over her interest and therefore “possession” for section 14 purposes. |
| Dagadu Balu v. Namdeo Rakhamaji | Held that a widow could alienate her restricted interest to enjoy property during her life and the alienee could also enjoy it; showed disposing power in the widow. | Relied upon to support the proposition that a widow had ownership over her interest and that physical partition or actual enjoyment was not necessary to establish possession under section 14. |
| Shamrao v. Kashibai | One of the authorities cited by opponents to argue that the cause of action or rights might not survive or that possession was not proved. | Cited by Mr. Khare in support of the submission that Sarubai did not possess the property; the Court considered such authorities in determining the nature of the widow's interest post-1956. |
| Subba Rao v. Krishna Prasadam | Authority relied upon to contend that a suit may not survive or that possession was not in the required sense. | Cited by opponents; the Court noted these decisions were given with reference to the law prior to the Hindu Succession Act, 1956, and weighed them accordingly. |
| Jiwanandan Singh v. Sia Ram Prasad Singh | Another pre-1956 authority relied upon by opponents concerning survivability/possession points. | Cited by Mr. Khare; the Court placed these decisions in context as pre-1956 authorities and analyzed their relevance after the Hindu Succession Act. |
| Alamelu Ammal v. Chellammal | Pre-1956 decision relied upon in arguments on survivability and possession. | Noted by the Court as one of the decisions given with reference to the pre-1956 position and therefore not decisive on the effect of section 14 post-enactment. |
| Nargisbai Acidwala v. Jehangir Mody | Principle that in a joint family possession by one is regarded as possession by all; non-enjoyment by a member does not of itself lead to loss of rights. | Invoked by the Court to show that non-enjoyment by Sarubai did not automatically create adverse title in others; ouster must be established at trial. |
| Mahadu Kashiba Varnekar v. Gajarabai Shankar Varnekar | Referenced in discussion about whether widow's rights ended with her death; cited to show prior case law does not support the narrow view. | The Court stated that decisions like this do not support the contention that the widow's right ended with her death; used to reject arguments that the right could not pass to heirs. |
Court's Reasoning and Analysis
The Court conducted a multi-part analysis focused on (a) the meaning and effect of section 14 of the Hindu Succession Act, 1956; (b) whether Sarubai had the requisite form of “possession”; (c) the correctness of the trial Judge’s reliance on adverse possession/prescription authorities; and (d) whether section 151 of the Madhya Pradesh Land Revenue Code and related local enactments prevented the operation of the Hindu Succession Act in respect of agricultural land.
1. Construction of section 14: The Court accepted the wide construction of “possessed by her” — namely, possession as the state of “owning or having in one's hands or power” — and noted that this construction had been taken in earlier decisions (for example, Venkayamma v. Veerayya and affirmed by the Supreme Court in Kotturuswami v. Veeravva). Section 14 converted the widow's limited or widow's estate into an absolute estate in respect of property possessed by her, carrying with it incidents such as passing to heirs under section 15 or by will.
2. Nature of Sarubai’s possession: Applying that construction, the Court concluded that it was not necessary for the widow to reduce her share to actual physical possession by partition or exclusive enjoyment. A widow who had the right to claim partition and had disposing power over the interest must be regarded as being in possession for the purposes of section 14. Because Sarubai had demanded partition, she was entitled to make a valid bequest by will and thereby Indubai could claim under the will or as legal representative under section 15.
3. Adverse possession / prescription: The Court found the trial Judge erred in deciding adverse possession and prescription without a trial. It emphasized the established principle that in joint-family situations possession by the family is possession by all, and mere non-enjoyment by a co-owner does not imply loss of right; ouster must be proved for adverse title to be established. The Court held that the trial Judge had confused and misapplied authorities (e.g., Babaji, Mst. Kirpal Kuar) and thus was wrong to hold that Sarubai's rights were lost.
4. Section 151 and the Land Revenue Code: The Court examined section 151 of the Madhya Pradesh Land Revenue Code, 1954, and concluded it did not create a tenancy legislation or a special code of devolution immune from the Hindu Succession Act. Section 151 merely stated that the interest of a tenure-holder shall pass by inheritance, survivorship or bequest subject to his personal law. The Court held that “personal law” must be the personal law in force when succession opened (not frozen to the law as on a prior date), and therefore the Hindu Succession Act (which changed Hindu personal law) applied. Consequently, the exception in section 4(2) of the Hindu Succession Act did not operate to save section 151 from the operation of the Hindu Succession Act in the way contended by the respondents.
5. Agricultural land and local legislation: The Court analysed the history of local enactments and the specific Central Provinces and Berar Act (No. VI of 1942) extending the 1937 Act to agricultural land. The Court held that the 1942 Act used language (“shall be deemed always to have included”) giving retrospective effect, so that agricultural land left by Pandurang (who died in 1941) could be governed by the widow’s rights under the 1937 Act as extended locally.
6. Procedural remedy: Because further evidence had not been led and the trial Judge had decided factual matters (adverse possession/prescription) prematurely, the Court set aside the order dismissing the substitution/application and ordered that Indubai be shown as the legal representative of Sarubai and that the suit proceed. The Court also gave directions to expedite the trial.
Holding and Implications
Holding (core ruling): The order of the learned trial Judge is set aside; the petitioner (Indubai) is to be recorded as the legal representative of the deceased plaintiff Sarubai, and the suit is to proceed.
Direct consequences and directions imposed by the Court (as stated in the opinion):
- The trial Court’s order dismissing the application for substitution is set aside and the petitioner (Indubai) shall be shown as the legal representative of Sarubai in her place.
- The suit shall proceed forthwith; because the suit was instituted in 1961 and four years had elapsed, the trial Judge was directed to hear the suit from day to day and decide it within three months after the vacation.
- The petitioner shall recover her costs from the opponents both in this Court and in the trial Court in respect of this application.
Broader legal implications discussed in the opinion (limited to what the Court expressly stated):
- The Court endorsed a wide construction of “possessed by her” in section 14 of the Hindu Succession Act, 1956 — possession meaning owning or having the property in one's hands or power — and held that this may convert a widow's limited estate into an absolute estate capable of passing by will or by succession under section 15.
- The Court held that section 151 of the Madhya Pradesh Land Revenue Code does not operate as a tenancy statute that would fall within the exception contained in section 4(2) of the Hindu Succession Act; the personal law of succession applicable when devolution arises governs and changes effected by the Hindu Succession Act apply.
- The Court cautioned against determinations of adverse possession/prescription without trial where issues of ouster and joint-family possession are involved — reiterating the need for proof of ouster before prescribing an adverse title.
No new formal precedent was proclaimed beyond the application and exposition of existing statutory provisions and the way they were applied to the facts of this case. The Court's directions and interpretations are stated above as they appear in the opinion.
Patel, J.:— This revisional application arises out of an order made under the provisions of O. XXII, r. 4, of the Code of Civil Procedure in a suit.
2. The short facts are that one Balaji left two sons Vithoba and Pandurang after his death, who were members of a joint family. Vithoba died in 1912 leaving behind him Vyankati, defendant No. 1 and Gopala, defendant No. 2. Pandurang died in 1941 leaving his widow Sarubai and a daughter Indubai who was married. At the time of his death, the joint family was possessed of the suit properties. In August 1961, Pandurang's widow Sarubai filed a suit claiming partition of her share in the property against the defendants. After issues were framed, Sarubai was examined on commission. Thereafter she died on October 20, 1962. Before her death she had executed a will and bestowed her properties in favour of her daughter Indubai. Indubai then made an application under the provisions of O. XXII, r. 3, for being brought on record in place of her mother as the plaintiff, claiming the properties under the will or, in any event, by reason of s. 15 of the Hindu Succession Act, 1956. She claimed, therefore, to be the legal representative of the deceased plaintiff. Further evidence had not been led. The learned trial Judge dismissed the application. The learned Judge rejected the contention of the petitioner that s. 14 of the Hindu Succession Act, 1956, applied as Sarubai was not in possession of the property at the date of the suit. He relied upon her evidence on commission that after her husband's death she did not live with the defendants, that is, since 1941 she did not stay in the family house saying
“she remained aloof from the family for more than twenty years after her husband's death. Therefore, it could not be inferred that she was in possession as a widow of her husband and her interest became enlarged by reason of section 14 of the Hindu Succession Act.”
3. Then he relied upon Sudarsan Das v. Ram Kirpal Das . [1950] A.I.R P.C 44, S.C 52 Bom. L.R 493. and Babaji v. Jivaji . [1930] A.I.R Bom. 333, S.C 32 Bom. L.R 314. and said
“the doctrine is that possession of a joint estate is adverse to any claim to such an estate as a separate one, and that possession by a joint family may by lapse of time become adverse to a separate estate.”
4. Then while considering the decision in Kotturuswami v. Veeravva . [1959] A.I.R S.C 577. he observed
“Sarubai never showed any concern to the suit property right after 1941. She remained away immediately after Pandurang's death. The defendants' possession therefore became adverse”
and held that in such a case rights of her reversionary heirs would of course be barred at the expiration of twelve years from Pandurang's death and relied upon Mst. Kirpal Kuar v. Bachan Singh . [1958] A.I.R S.C 199.. As to agricultural land, he relied upon s. 151 of the Madhya Pradesh Land Revenue Code, 1954, and the decision, Sitabai v. Kothulal . [1959] A.I.R Bom 78, S.C 60 Bom L.R 408..
5. Mr. Manohar relies on s. 14 of the Hindu Succession Act, 1956, in support of the will in favour of the applicant and her right to succeed to Sarubai's interest otherwise than under the will.
6. Section 14 of the Hindu Succession Act, 1956, effected a change in the old Hindu law and converted widow's estate into an absolute estate in respect of all “property possessed by her”. In Venkayamma v. Veerayya . [1957] A.I.R Andhra Pra. 280. “possession” was construed in its widest sense to mean the state of “owning or having in one's hands or power”. Similar view was taken by this High Court. This view has been affirmed by the Supreme Court in Kotturuswami v. Veeravva. The application of this meaning of the phrase was also not left in doubt in this case. In this case A, the husband of B, had died in 1920 and by will authorised her to adopt a son. She adopted a son C in 1942 and he was placed in possession of the property. D alleged that he was the nearest reversioner of A and filed the suit for declaration that the adoption was invalid and not binding on him. He failed in the trial Court and also in the High Court and at the hearing of his appeal to the Supreme Court a preliminary objection was taken under s. 14 of the Hindu Succession Act, 1956, the contention being that inasmuch as the widow had become the full owner of the estate, his suit could not succeed. Their Lordships said that if the adoption was invalid, the widow would become the absolute owner under the section as C's possession must be regarded permissive possession and the appeal was dismissed.
7. The question is whether Sarubai possessed the property in the above sense. Mr. Khare contends that she did not possess the property at all and so there is no question of s. 14 of the Hindu Succession Act applying. His contention is that Sarubai no doubt acquired an interest in the property, but on her death the cause of action did not survive and the suit abated. He relied on the decisions in Shamrao v. Kashibai . [1956] A.I.R Nag. 110. Subba Rao v. Krishna Prasadam . [1954] A.I.R Mad. 227. and Jiwanandan Singh v. Sia Ram Prasad Singh . [1961] A.I.R Pat. 347.. We must, therefore, consider the nature of her interest in the property when the Hindu Succession Act, 1956, came into force and the effect of her filing the suit.
8. Under old Hindu law a widow had no right except that of maintenance in the property of the joint family of which her husband died as a member. Even in the case of separate property if her husband left a male issue then her only right was one of maintenance. By Hindu Women's Rights to Property Act, 1937, substantial change was made in her rights. Section 3, the most important, is divided into four parts. Sub-section (2) gave her on the death of her husband as a member of the joint family “the same interest as her husband had”. By sub-s. (1) as to separate property of a coparcener and in the case of those governed by the Dayabhaga school, the widow took equally with the son. However, she got a limited estate known as widow's estate but got the right to claim partition.
9. The Legislature gave her full right in the property that her husband had without any limitation except that she got the estate as a widow. It is clear that this right is given to her not in lieu of maintenance or only for the purpose of maintenance. It was, therefore, held that she could alienate her interest in the coparcenary property for legal necessity as she could the separate property of her husband which she got as his heir under the same Act: Harekrishna Das v. Jujesthi Panda . [1956] A.I.R Orisa 73. and Pem Mahton v. Bandhu Mahto . [1958] A.I.R Pat. 20.. It was also held by this Court in Dagadu Balu v. Namdeo Rakhamaji . [1954] Bom. 1069, S.C 56 Bom. L.R 513. that she could alienate her own restricted interest to enjoy the property during her life time and that the alienee could also enjoy the property during her life time and for this purpose he could claim partition. The ratio of these decisions is that she had disposing power over the property.
10. The decisions in Subba Rao v. Krishna Prasadam, Shamrao v. Kashibai, Jiwanandan Singh v. Sia Ram Prasad Singh and Alamelu Ammal v. Chellammal . [1959] A.I.R Mad. 100, F.B were given with reference to the position obtaining before the Hindu Succession Act, 1956, came to be enacted. Apart from this, it seems to us with great respect that the scope of s. 14 of the Act which gives the widow rights in the property of her husband is considerably narrowed down by considerations of old law. The decisions in Dagadu's case and Mahadu Kashiba Varnekar…(Original Defendant), v. Gajarabai Shankar Varnekar…(Original Plaintiff), .* . [1954] Bom. 885, S.C 56 Bom. L.R 387. do not support this view. There is no justification in our view for saying that the right of the widow in the property ended with the death of the widow. If the husband could put an end to his joint status by declaring his intentoin to effect partition she also could, as she had the same interest in the property as that of the husband. There can also not be any doubt that the interest in her husband's property which she got under sub-s. (2) was also by devolution, in the same way that she got a share in the separate property of her husband as a son under sub-s. (1), as sub-s. (3) of that Act speaks of both as devolution. The argument sometimes made that because the word “succession” is not used in the Act the widow's rights are personal and end with her death is not justified as the word has been applied in many statutes even to survivorship also. (See In re Hindu Women's Rights to Property Act15.) It is not necessary however to pursue the question further as, in our view, s. 14 of the Hindu Succession Act has considerable effect on the matter.
11. As stated earlier “possessed” as used in the section means the state of “owning and having a disposing power”. This must mean a right in the property which is capable of enjoyment whenever the widow wills so to do. Having regard to decisions in Harekrishna Das v. Jujesthi Panda, Prem Mahton v. Bandhu Mahto and Dagadu v. Namdeo she had ownership over her interest in the joint family property that she got on her husband's death without even claiming partition and, if that is so, she must be regarded as being in possession of the property. It is not necessary, in our view, that she should reduce her share to possession either by actual partition or even asking for partition. By reason of s. 14 of the Hindu Succession Act her limited estate became transformed into full estate with all its incidents including that of its passing to her heirs in accordance with s. 15 of the Act. It is not necessary for us to decide whether she could will away the property without demanding partition. In the present case, she had demanded partition and she would, therefore, be entitled to make valid bequest by will.
12. The learned trial Judge held that defendant No. 1 had prescribed adverse joint family title and at another place he has held that he became owner by adverse possession. Without a trial the learned Judge ought not to have gone in these matters. It seems to us that there has been confusion of thought in the reasoning of the learned Judge. It is well settled that in the case of members of a joint family even if a member has gone out for a considerable length of time and has not enjoyed the benefit of the property his rights in the property are not lost. Even in the case of co-owners, possession of one is regarded as that of all. In other words, mere non-enjoyment of the property as a co-owner does not mean that those in possession prescribe adverse title to that of the non-participating owner. In order that adverse title can be prescribed ouster must be proved. (See Nargisbai Acidwala v. Jehangir Mody . 1942 45 Bom. L.R 104. and Sudarsan Das v. Ram Kirpal Das). The learned Judge has also misunderstood the decisions in Babaji v. Jivaji, as well as the decision in Mst. Kirpal Kuar v. Baclian Singh. In Babaji's case joint family possessed certain property as joint property which a coparcener was claiming as separate property and the Court held that the joint family had prescribed an adverse title. In Mst. Kirpal Knar's case, a widow who had no right in the property except that of maintenance had been in enjoyment of the property as if she were entitled to it and it was held that she had become owner by adverse possession. The learned Judge was in error in holding that Sarubai's right in the property was lost.
13. Mr. Khare has contended as a last resort that at least qua the agricultural property, the applicant has no right to come on the record. Mr. Khare has invited our attention to the provisions of s. 151 of the Madhya Pradesh Land Revenue Code, 1954, and contended that the section prescribes a special mode of succession and, therefore, its operation is not affected by reason of s. 4(2) of the Hindu Succession Act, 1956. Such a view was taken by Vyas J. in Sitabcd v. Kothulal.
14. Section 151 of the Madhya Pradesh Land Revenue Code runs as follows:—
“Subject to his personal law, the interest of a tenure-holder shall on his death pass by inheritance, survivorship or bequest, as the case may be.”
15. Section 4 of the Hindu Succession Act was intended to give overriding effect to the provisions of the Act over all other laws applicable to Hindus except as provided by the Act. Out of this, an exception has been created by sub-s. (2). It says:
“For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.”
16. In this case no reliance is placed on any law providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings. It is said however that s. 151 provides for the devolution of agricultural lands and, therefore, this sub-section applies. This argument, therefore, must be examined.
17. In order that the exception created by s. 4(2) of the Hindu Succession Act can apply the legislation must provide for devolution of tenancies. Tenancy legislations were and are well known. It is impossible to regard the Land Revenue Act as tenancy legislation. So far as the four districts of the Central Provinces are concerned the earliest Act is the Central Provinces Land Revenue Act. It speaks of proprietary rights in the land and the tenure of land prevalent seems to be similar to Bhagdari and Narwadari tenures of Gujarat in some respects. As the occupants of land were proprietors they had hereditary and transferable title and, therefore, no express provision seems to exist in this respect. Then came the Central Provinces Land Revenue Act, 1917. As the rights were proprietary rights, again, no specific provision was made since widow's right to inheritance was such as she would get in other property on the death of her husband. In Raiyatwari villages by s. 212 the rights of Raiyats were declared heritable but not transferrable. As to the ceded districts of Berar the Governor General in Council made a law known as the Berar Land Revenue Code, 1928, under the Indian (Foreign Jurisdiction) Order in Council, 1902. Section 56 of the same is in terms similar to s. 151 of the present Land Revenue Code and the marginal note is “Occupant's rights heritable and transferrable”. The present Code of 1954 seems to be a sequel to abolition of special tenures and Jamindaris. It has prescribed the condition under which a tenure holder occupies the land. There are two classes of tenure holders, Bhumiswamis and Bhumidharis; but s. 151 applies to both. The holding of the tenure holders are not tenancies. Not being a tenancy legislation, exception in s. 4(2) of the Hindu Succession Act does not apply.
18. Even apart from this, the contention cannot be accepted. The section occurs in Chapter XII of the Code which defines the classes of tenures, their liabilities and privileges. The tenure holders have permanent rights in the land and the section is intended to make it clear that the right is heritable. No doubt the language is not very happy but having regard to the legislative history it is clear beyond doubt that ordinary law of the holder is intended to apply. It also recognises the right of the holder to pass it on by bequest. If the holder is an individual, it would pass to heirs by inheritance and by bequest if he has left a will. If a joint family held the land, it would go by survivorship according to the ordinary law. It is not as if that a special rule has been laid down in order to preserve the integrity of land and prevent its further sub-divisions or for the convenience of the collection of the revenue or the rent. The ordinary law, therefore, of inheritance, survivorship or bequest operates. If a holder is governed by any special law, customary or statutory, then the devolution is intended to be governed by the same.
19. What Mr. Khare contends is that the words “subject to his personal law” meant the personal law as it existed when the statute was passed, that is, in 1954. He contends that s. 151 (of Land Revenue Code) is a reproduction of s. 11 of the Central Province Tenancy Act, 1920, as amended in 1941, and the words “subject to his personal law” must be confined only to the law as then obtaining. The history of the legislation does not justify the contention. It may be that the Tenancy Act came to be repealed by the Code but that may be due to the very comprehensive recent tenancy legislations. Does it mean the personal law as in force in 1928, 1941 or the personal law as in force in 1954? The purpose of s. 151 was one of applying the law of succession by which a holder was governed. It can only mean personal law by which he was governed when the succession opened. There are no words in this section to mean personal law as applicable on a particular day. The normal rule of construction is that “the language of a statute is generally extended to new things which are not known and could have been contemplated by the legislation when it was passed.” (Maxwell on Interpretation of Statutes, pp. 75 and 262). Until 1956 the personal law of a Hindu was the ordinary law applicable to him. By the enactment of Hindu Succession Act, his personal law was changed in supersession of all his old law and, therefore, on the date when the question arose this became his personal law.
20. True, the decision in Sitabai v. Kothual supports Mr. Khare. With respect, we find it very much difficult to agree with the conclusions of the learned Judge. The learned Judge assumes that s. 151 of the Madhya Pradesh Land Revenue Code prescribed a particular law of devolution and secondly that it is with respect to tenancies. It only provided that the holding was heritable and his personal law of succession applied. The next s. 152 makes the Bhumiswami-tenure transferable and Bhumidhari-tenure transferable except by mortgage. In view of what we have said there can be no question of s. 4(2) of the Hindu Succession Act saving the rights of survivors.
21. We may also observe that this does not involve constructing the words “any law for the time being in force”, in sub-s. (2) of s. 4 of the Hindu Succession Act to mean “any law which came into force”, as has been supposed in the above case, once it is held that s. 151 of the Code merely recognises that the tenure is heritable and will pass according to the law applicable to the tenure holder.
22. There is a serious difficulty in accepting the ratio in Sitabai's case. Section 151 of the Madhya Pradesh Land Revenue Code applies to all land holders from the Government, that is, rural as well as urban and open as well as built upon. We may take the case of land in a city on which huge building has been built. According to the decision in the above case in a case like the present, the land would be taken by the survivor or suvivors while the structure would be taken by the heir of the husband of the widow. One has to imagine the chaos resulting in such cases. It is true that if the language of an enactment is clear, then the Court has no concern with the consequences and it must apply the law. Giving a reasonable and natural meaning to the section, as we have done, avoids such a consequence.
23. The matter may be viewed from another point of view. The law applicable to Pandurang under the Land Revenue Acts was the ordinary Hindu law as amended by Hindu Women's Rights to Property Act, as a result of which Sarubai took the property on his death. The limitation of her rights in the property is a limitation on her and that has been removed. This does not affect in any manner anything that is prescribed in s. 151 of the Madhya Pradesh Land Revenue Code, 1954, since the section does not place any restriction on a woman acquiring absolute rights of ownership. This contention, therefore, also fails.
24. It was lastly ‘contended by Mr. Khare that in any event the Hindu Women's Rights to Property Act, 1937, could not possibly apply to agricultural property. Originally when the Act was passed, it was hardly realised that the Central legislature would have no power to legislate with regard to agricultural lands. It was only after the decision of the Federal Court in the mutter of the Hindu Women's Bights to Property Act, 1937, that this position seemed to have been crystallised. Different States, therefore, enacted Acts giving similar rights to widows in respect of agricultural lands.
25. In this area the Central Provinces and Berar Act (No. VI of 1942) being the Central Provinces and Berar Hindu Women's Rights to Property (Extension to Agricultural Land) Act, 1942, received the assent of the Governor on June 6, 1942, and it provided that the term “property” in the Hindu Women's Rights to Property Act, 1937, and the Hindu Women's Rights to Property (Amendment) Act, 1938, as in force in Madhya Pradesh, shall include, and shall be deemed always to have included, agricultural land. The proviso thereof is not material for our present purposes. This proviso creates an exception. It was attempted to be argued that inasmuch as this Act was passed in 1942 and Pandurang died in 1941 the Act will not apply to agricultural land left by Pandurang. The simplest answer is that the Act has been made retrospective expressly by its very language. By now it is well settled so far as this Court is concerned that the words “shall be deemed always to have” gave retrospective operation to a statute. We have, no doubt, therefore, that the Act applied to cases where the owner died even before the local Act was enacted provided that the provisions of the Hindu Women's Rights to Property Act, 1937, and Hindu Women's Rights to Property (Amendment) Act, 1938, were applicable.
26. In the result, we set aside the order made by the learned trial Judge and direct that the petitioner be shown as the legal representative of Sarubai in her place and the suit be proceeded with forthwith. In view of the fact that the suit is of 1961 and four years have already elapsed, we direct that the trial Judge shall hear the suit from day to day and decide it within three months after the vacation. The petitioner will get her costs from the opponents in this Court and also in the trial Court in respect of this application.
27. Order set aside.
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