1. This order will dispose of two second appeals, R.S.A No. 592 of 1958 and R.S.A No. 601 of 1958.

2. The land in dispute at one time belonged to Daya Singh who was childless and left a widow Smt. Ind Kaur. He made a will of his land on the 21st of Kartik, 1958 Bk in favour of one Bakhtawar Singh, who was his brother-in-law's son. According to the Hadayats of the Ruler of Nabha State, to which the parties belong, the will had to be submitted to the Ruler for sanction. The will was submitted for sanction on the 21st of Kartik, 1958 Bk. On the 24th of Kartik, 1958 Bk the sanction was refused. In 1960 Bk. Daya Singh died and was succeeded by his widow Smt. Ind Kaur. The matter of sanction was again raised by Bakhtawar Singh and on the 18th of Baisakh, 1963 Bk the sanction was granted: vide Exhibit P.W The sanction was in these terms:

“So it is ordered that Bakhtawar Singh who is a relation of Daya Singh from his parents-in-law side be held to be owner of Daya Singh's self-acquired property according to the will made by Daya Singh on 21-7-1958 Bk which had been disallowed by orders of His Highness, dated 24-7-1958 Bk. It is directed that Bakhtawar Singh will have no right to sell or mortgage this property so long as there are lineal descendants of Bakhtawar Singh they would remain in possession of this property. Bakhtawar Singh or his lineal descendants as well will have no right to make any adoption qua the property left by Daya Singh……”

3. It seems that in spite of this sanction, Smt. Ind Kaur continued in possession of this property till her death, whereafter it was taken by Bakhtawar Singh, the legatee under the will and on his death, it was inherited by his widow Smt. Bhagwan Kaur. She, however, sold a part of this property on 28-2-1957, to one Sant Ram Dass Gurdev Singh, who is a second degree collateral of Daya Singh brought the present suit that in view of the terms of the sanction accorded by the Ruler, the alienation will not affect his rights of succession on the death of the widow. This suit was decreed by the trial Court on 31-10-1957, and an appeal against that decision also failed. The present appeals are be the vendee as well as by the widow of Bakhtawar Singh (R.S.A No. 592 of 1958 and R.S.A No. 601 of 1958).

4. After hearing the learned counsel for this parties, I am of the view that these appeals ??? succeed. After coming into force of the Hindu Succession Act the whole position is altered. Section 14 of the Act makes a female Hindu possessed of property whether acquired before or after the commencement of the Act as an absolute owner of the same. It cannot be disputed that on the death of Bakhtawar Singh, Smt. Bnagwan Kaur came into lawful possession of his property, and as soon as the Act came into force, she became its absolute owner. At this stage the arguments of Mr. Chawla, learned counsel for the respondent in one appeal and Mr. Babu Ram in the other, may be enumerated before they are examined. The learned counsel contend:

1. That under S. 14(2) of the Act, Smt. Bhagwan Kaur holds a life estate in this property, because she got it under an instrument, Exhibit P.W which in terms restricted the estate for life only.

2. That under the aforesaid instrument Smt. Bhagwan Kaur had no right whatever to succeed to this property as Bakhtawar Singh had died without leaving any lineal descendant and the widow not being a lineal descendant the property immediately vested in the collaterals of Daya Singh, and as such she could not be deemed to be in possession of the property for the purposes of S. 14(1) of the Act, her possession not being lawful.

3. That the Act is ultra vires the Constitution of India inasmuch as the Central Parliament cannot regulate succession to agricultural land.

5. As regards the first contention, it can admit of no doubt that S. 14(2) is an exception to S. 14(1). It cannot be said that Smt. Bhagwan Kaur acquired any property under Exhibit P.W which Mr. Chawla calls an instrument and which, to my way of looking at it, is merely the sanction of the Ruler in favour of Bakhtawar Singh. The property was acquired by Bakhtawar Singh under the will of Daya Singh and that will could only be effective if sanctioned by the Ruler. The sanction, exhibit P.W, gave validity to the will of Daya Singh. It is no doubt true that the sanction put certain limitations, but for the purposes of the application of S. 14 of the Act, it is immaterial what those limitations are because those limitations are not put on the estate, which the so-called instrument contemplated to confer on the widow. As a matter of fact, no estate was at all conferred on the widow by any instrument. The estate she got was by succession to her husband, and any such estate by force of S. 14 vests absolutely in her, divorced of all limitations. Therefore, this argument of Mr. Chawla has no merit and is repelled.

6. The second contention raised that the possession of Smt. Bhagwan Kaur at its inception was not lawful and therefore S. 14(1) has no application, hinges on the question whether on the death of Daya Singh, the collaterals became immediately entitled to the possession of the property, the widow of Bakhtawar Singh not being a lineal descendant. This argument loses sight of the fact that Bakhtawar Singh would be deemed to be living so long as the widow lives. It is a settled rule of law that when a male holder dies leaving a widow succession to his estate opens when the widow dies — the life of the widow is treated as the continuation of the life of her husband. On his death she succeeds to him and holds the property as a limited heir.

7. This was so before the Hindu Succession Act came into force. Now, of course, the position is ??? and the widow succeeding to her husband gets an absolute estate as already stated in the earlier part of this judgment. In any case, if there is any merit in the contention of the learned counsel that on the death of Bakhtawar Singh she was not entitled to succeed to this property, then she, having remained in possession of this property without any right for over twelve years as against the rightful owner, has become its absolute owner by the rule of adverse possession. In this connection reference may be made to Hira Mal v. Ronqi Ram, ILR (1955) Punj 1120. Moreover, if the possession of the widow was unlawful as from the death of Bakhtawar Singh, the present suit would fail as the plaintiffs being entitled to sue for possession cannot sue for a mere declaration. No attempt was made by the plaintiffs right up-to-date to seek an amendment of the plaint and to convert the suit into one for possession. Looking at the matter in either way, Mr. Chawla's contention must fail.

8. Coming to the third contention, the matter admits of no doubt. Schedule VII, List III of the Constitution of India, Entry No. 5, is in these terms:

“5. Marriage and divorce; infants and minors: adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.”

9. The corresponding entry in the Government of India Act 1935 was in these terms

“Schedule VII, List III, Entry 7.

10. Wills, intestacy and succession, save as regards' agricultural land.”

11. It would be clear from the plain reading of these entries that the words “save as regards agricultural land” have been omitted from Entry No. 5, Schedule VII, List III of the Constitution of India. The object of the omission is not far to seek. It was thought, essential to have uniformity in the matters enumerated in this entry in regard to all kinds of property, and thus it became necessary to omit these words. Wherever it was thought necessary to exclude agricultural land from List III, it has been specifically so stated. In this connection reference may be made to entries Nos. 6, 7 of Schedule VII. List III of the Constitution of India and the corresponding entries Nos. 6, 7, 8 and 9 in the same list in the Government of India Act, 1935.

12. The argument of the learned counsel is based on Entry No. 18 of List II of the Constitution of India. This entry is in these terms:

“18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land-improvement and agricultural loans; colonization.”

13. If this entry is compared with its counterpart in the Government of India Act, 1935, wherein it is at No. 21 and is in these terms: “21. Land, that is to-say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization; Courts of Wards; encumbered and attached estates; treasure trove it is significant that the word “devolution” has been, omitted from the corresponding entry in the Constitution of India. If these vital changes are kept in view, it is quite plain that succession to agricultural land is covered by item No. 5 in List III of the VIIth Schedule of the Constitution of India. The Hindu Succession Act regulates succession to the property of all Hindus and as such has been validly enacted by Parliament under Entry No. 5, List III. It is settled law that in interpreting entries widest amplitude should be given to them. In this connection reference may be made to Hans Muller of Nurenburg v. Superintendent Presidency Jail, Calcutta, (1955) 1 SCR 1284 : ((S) AIR 1955 SC 367) and Commissioner of Income-tax West Bengal v. Benoy Kumar Sahas Roy, (S) AIR 1957 SC 768.

14. In view of my finding that at the relevant date Smt. Bhagwan Kaur had become the absolute owner of the property in dispute, the plaintiff's suit must fail.

15. For the reasons given above, I allow the appeals preferred by Sant Ram Das and Smt.

16. Bhagwan Kaur and dismiss the plaintiff's suit with costs throughout.

17. On an oral request by the learned counsel for the respondents, I certify that this is a fit case for appeal under clause 10 of the Letters Patent.

ED/R.G.D

18. Appeals allowed.