Mahapatra, J.:— The plaintiff is the appellant. His case was that the land described in schedule A of the plaint besides some other lands in mauza Kuda Singh, Police station Kharswan, belonged to one Gurucharan Pradhan Gurucharan had two sons Dasarathi and Kolu the latter being the plaintiff. Dasarathhi's wife was Kamala. Dasarathi died. In 1908 leaving Kamala as widow and two daughters. Paluni and Saradamani. Each of the two daughters had a son, defendant 1 being the son of the former and defendant 2 the son of the latter. The plaintiff alleged that, according to the custom in regard to succession as prevalent in that area among the people belonging to the class to which the parties belong, on the death of a male holder of property, in absence of any male issue of his, the agnates of the last male holder succeed to the estate, although the last male holder's widow will remain in possession as long as she is alive of that estate, without any power of alienation whatsoever. On her death the agnates of the last male holder will come into possession of that property. The plaintiff's further case was that Dasarathi had separated from the family during the life time of the common ancestor, Gurucharan Pradhan with schedule A property given to him. On Dasa rathi death, schedule A property came by way of succession to the plaintiff being the brother of Dasarathi, although that remained in possession of his widow Kamala. As Kamala attempted to transfer a portion of that property a title suit, title suit No. 3 of 1913. Was insituted against her by Gurucharan and Kolu for restraining her from making such alienation in regard to schedule A property, here was a compromise effected in that suit, exhibit 2, in which it was stated by both the parties that as long as Kamala would remain alive she would continue her possession over that property and there would be no interference with her possession from any side. At the end of that document, while Kamala put her sign, it was stated by her that “Be it noted that after my death my properties will to my heirs.” shall refer to this part of the compromise at a later stage while considering its effect on the parties to the present litigation. To continue the plaintiff's narration. Gurucharan died in 1929. Another suit. Title suit No. 11 of 1929, was brought by the present plaintiff, Kolu, again for a permanent injunction against Kamala restraining her from making any alienation. That suit was decreed on the 23rd June, 1929. In spite of that, however, Kamala executed a deed of sale in regard to a part of schedule A property (described in schedule B of the plaint) on the 3rd December, 1949 in favour of one of her daughter's son defendant 1. That document was marked as Exhibit 3 on the plaintiff's side and Exhibit B on the defendants' side. Kamala died on the 5th May, 1957. The plaintiff claimed that after her death he is entitled to possession of schedule B property which had gone to the possession of defendant 1 on the strength of the sale deed executed by Kamala in his favour in 1949. He therefore, instituted the present suit for declaration of title and recovery of possession over that property.

2. The defence was that schedule A property was acquired by Gurucharan himself and did not form a part of the ancestral property of the family in his hand. It was given to Kamala's husband, after whose death Kamala inherited that. There was no custom in regard to succession by the agnates of the last male holder. According to the Hindu Succession Act, Kamala had acquired absolute right over that property before her death. Therefore, the plaintiff had no title and was not entitled to recover any possession from defendant 1. The Courts below have concurrently dismissed the plaintiff's suit. The trial Court held that under sub-section (1) of section 14 of the Hindu Succession Act, 1956. Kamala had acquired absolute rights over the suit property; and her heirs were to succeed to that on her death, in which case the plaintiff was not entitled to claim title or possession. The lower appellate Court held that sub-section (1) of section 14 was not attracted because Kamal was not in possession of that property when the Hindu Succession Act came into force on the 17th June, 1956. It, however, took the view that sub-section (2) of section 14 was to apply; and accordingly it held against the plaintiff. Hence, this second appeal was brought to this Court by the plaintiff. The custom that was pleaded by the plaintiff in regard to succession was not decided one way or the other by any of the two Courts below. The trial Court thought that the alleged custom, if any had already been abrogated section 4 of the Hindu Succession Act and the lower appellate Court took the view that it was not necessary to go into that matter in view of the application of sub-section (2) of section 14 of the Hindu Succession Act.

3. Learned counsel for the plaintiff appellant first contended that the compromise, Exhibit 2, which had been recorded and according to the terms of which the suit, Title Suit No. 3 of 1913, had been disposed of became binding upon the parties including Kamala through whom the defendants are claiming title. In that compromise, according to learned counsel, it had been agreed by the parties that after the death of Kamala the property will go to the agnate of Dasarathi viz. the original plaintiff Kolu, and his branch. (I shall mention here that during the pendency of the suit Kolu died and was substituted by his sons, daughters and widow. This argument is faulty for more than one reason. First of all the compromise, which I have already stated, did not mention that on the death of Kamala the property which was the subject-matter of the suit, would go to the agnatic relation of Dasarathi. Secondly, what was stated by Kamala at the time of putting her mark to that compromise clearly said that the property would go to her heirs. If the compromise is binding as contended by learned counsel that endorsement would be against the plaintiff and the property in the present suit had to go, according to that compromise, to the heirs of Kamala, who are no other than the defendants in the suit. Thirdly, that endorsement was not part of the compromise being only a unilateral statement of one of the parties to that Fourthly, if learned counsel's wrong interpretation on the terms of the endorsement made by Kamala is accepted to mean that the property was intended to go to the plaintiff in preference to the reversioners of Dasarathi according to the general law of succession under the Mitakshars school of Hindu law then that amounted to change of the line of succession which a Hindu widow in possession of the property of he husband as a limited owner, had no power to effect by way of compromise to completed oust the line of succession to which the reversioners were entitled. The lower appellate Court unfortunately read the endorsement made by Kamala in Exhibit 2 in a wrong manner. The relevant portion was quoted in the judgment in Hindi but in putting the English translation thereto the Court below committed an error in thinking that Kamala said that on her death the property would go to the heirs of her husband. That was not so. What she said was that the property would go to her own heirs. If the compromise is taken as binding upon the parties then the plaintiff cannot claim any title according to that part of the compromise. The suit in which that compromise was entered was only with regard to a (Sic) permanent injunction and any thing stated in that compromise beyond the scope of that suit was no relevant part of the compromise in the suit itself. If the parties wanted to take advantage of that, that document could have been used only as an agreement between the parties. Formalities for that purpose were not performed; and in that view, that part of the compromise is also irrelevant for the purpose of the present suit. For all these reasons, the plaintiff cannot derive the slightest aid from that compromise Exhibit 2 in support of his alleged title or claim for possession over the suit land.

4. Next, learned counsel contended that, according to the custom pleaded in the plaint and in evidence, the plaintiff was entitled to the property after the death of Kamala as heir of Dasarathi. As I have said before, the Courts below have not decided if the alleged custom was established. Section 8 of the Hindu Succession Act, 1956, is not retrospective. It is well settled that when succession opens on the death of a limited owner in respect of the last male holder's estate, it will be according to the rule of succession as prevalent at the time of the death of the last male holder (see, Renuka Bala Chatterji v. Aswini Kumar Gupta, (AIR 1961 Pat 498). In the present case, admittedly, Kamala was in possession of the estate of her husband after his death with restrictive power in regard to alienation; in other words, she was a limited owner, having a widow's estate. Whether it was by way of any arrangement with the heirs of Dasarathi or according to the alleged custom prevalent at that time, the fact was that she represented and remained in possession of the husband's estate without absolute ownership and power of alienation. She was a limited owner only. On her death, when succession opens again, it will go to the heirs of Dasarathi. The claim of such heirs has to be determined with reference to the law in regard to succession as prevalent in 1908 and not in regard to the Hindu Succession Act, 1956. There was no question of applying Section 15 of the Hindu Succession Act because the property had not become the absolute properly of Kamala in pursuance of section 14 of that Act. There cannot be any doubt that under the Mitakshara school of Hindu Law defendants 1 and 2 would be the heirs to succeed to the estate of Dasarathi on the death of Kamala being the daughter's son of the deceased last male holder. Here the plaintiff's claim of the special custom becomes important if the plaintiff can establish that the custom in regard to succession was different, then the defendants' claim may be overridden by that of the plaintiff.

5. section 4 of the Hindu Succession Act says that any custom or usage in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act. The trial Court's view was that, according to this provision, the existence of the custom as alleged by the plaintiff, if any, had come to an end. I am afraid, that view is not correct. A custom will cease to exist if it is in respect to any matter for which provision is made in the Hindu Succession Act. It is significant to note the difference in the language employed in the different clauses of section 4. In clause (b) of sub-section (1) of section 4 it has been stated that any other law in force immediately before the commencement of the Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. The language in clause (a) of sub-section (1) of section 4 is different. It states that any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act. The question of inconsistency with any of the provisions in the Act does not arise. In that view we have to see if for a case of the present nature, any provision has been made in the Hindu Succession Act; and if there is any such provision, then only the custom alleged by the plaintiff can be said to have come to, an end with the commencement of the Act on the 17th June, 1956.

6. As I have already indicated, section is not retrospective and no provision of the Hindu Succession Act will come into play in regard to succession to the estate of a last male holder, who died before the commencement of the Act when it opens subsequent to the Act on the death of a limited owner, who was in possession of that estate. Therefore the custom as alleged by the plaintiff, if proved can be saved and will not be affected by the provisions under section 4 of the Act, if the evidence on record would be sufficient to establish the alleged custom, then the plaintiff's claim can be substantiated. If that custom is not proved then the rule of succession as was prevalent in 1008 would apply, in which case the defendants would be entitled to the estate of Dasarathi on the death of Kamala to the exclusion of the plaintiffs. Since the Courts below have not decided giving any finding about the alleged custom. I think it necessary to remand this case to the trial Court to record a finding on that respect on the evidence on record and decide the, case accordingly.

7. The transfer made by Kamala in favour of defendant 1 under Exhibit 3, dated the 3rd December, 1949, was obviously not valid and conveved no title to the transferee as against the reversionary heirs she had no power of alienation.

8. If that document was to be taken as a surrender, that was also invalid because it was not in respect of the entire estate in favour the presumptive reversions ??? Even if defendant I was in continuous possession since the date of transfer and by that acquired title by adverse possession against Kamala, that will not affect the reversionary heir's title, because Kamala died on the 5th May, 1957, and the suit was instituted within few months on the 10th September, 1957.

9. For the reasons given above, the case is remanded to the trial Court for disposal according to law in the light of what has been stated before. There will be now no order for costs which will abide the result of the suit.

10. Sinha, J.:— I agree.

KJ/VVD/D.V.C

11. Case remanded.