Bajya v. Gopikabai & Anr.

Cases referred:

1. Kumari Ramlali v. Mst. Bhagunti Bai, A.I.R. 1968 M.P. 247.

2. Nahar Hari Singh v. Dukalhin, A.I.R. 1974 M.P. 141 (F.B.).

3. Sitabai v. Kothulal, A.I.R 1959 Bom.78.

4. Kempiah v. Girigamma, A.I.R. 1966 Mys. 189.

5. Smt. Indubai v. Vyankati Vithoba Sawadha, 1965 Mh.L.J. 745 = A.I.R.1966 Bom. 64.

Advocated appeared:

V.K. Sanghi with A.G. Ratnaparkhi and G.L. Sanghi, for appellant.

U.R. Lalit with V.N. Ganpule and Veena Devi Khanna, for respondent No. 1.

Per Sarkaria R.S., J. :- This appeal is directed against a judgment of the High Court of Madhya Pradesh.

2. The following is the genealogy of the parties:

DEWAJI

Jiwaji Dhondya Ghusya

(Wife of Jhuli)

Shioba Shyam

Sonu Bhajya

(Deft. No. 2) (Deft. No. 1) Punjya Turji

(Last Male (Wd/o

Janaji)

Holder)

= Smt. Sarji Gopikabai

(wife of Mukundrao Pltf Respdt. 1)

3. Smt. Gopikabai wife of Mukundrao, shown in the above pedigreetable, filed a suit in the Court of the Civil Judge, Multai, against the defendant appellant, Bhajya and Sonu, respondent 2, for possession of Bhumiswami rights in the land comprised in Khasra Nos. 31 and 166 in the area of Village Kuthkhedi, Tehsil Multai, District Betul, Madhya Pradesh.

4. The suit land originally belonged to Ghusya son of Dewaji. Ghusya died before the Settlement of 1918, and thereafter, this land was held by his son, Punjya, who died in the year 1936. On Punjyas death, the holding devolved on Punjyas widow, Smt. Sarji. Smt. Sarji died on November 6, 1956, and thereupon this dispute about the inheritance to the land left behind by Smt. Sarji, has arisen between the parties. Both the parties claim on the basis of Hindu Law.

5. The plaintiff-respondent, Smt. Gopikabai. claims that she being the daughter of Sint. Turji, a sister of the last male holder, Punjya, is an heir under section 15 read with section 2 (II) (4) (iv) of the Schedule referred to in section 8 of the Hindu Succession Act, 1956, whereas the defendantsclaim as Sapindas of the last male holder under Mitakshara Law.

6. It is alleged by the plaintiff that Bhajya and Sonu, defendants, took forcible possession of the suit land after the death of Smt. Sarji. Apart from possession, the plaintiff claimed Rs. 180 as damages for the crop removed by the defendants.

7. The defendants case, as laid in the written statement, was that the suit property being an agricultural holding, in view of section 4 (2) of the Hindu Succession Act, the inheritance to the estate of Smt. Sarji who died on November 6, 1956, will not be governed by the provisions of that Act, but by Mitakshara School of Hindu Law, according to which the defendant Sapindas are entitled to suit land to the exclusion of the last male holders sisters daughter, the plaintiff.

8. The trial Court decreed Smt. Gopikabais claim. On appeal, the Additional District Judge set aside the decree of the trial Court and dismissed the respondents suit.

9. In second appeal by the plaintiff, the High Court following its earlier decision in (Kumari Ramlali v. Mst. Bhagunti Bai)1, A.I.R. 1968 M.P. 247 held that Bhumiswami and Bhumidhari rights are not tenancy rights and section 151 of the Madhya Pradesh Land Revenue Code, 1954, which deals with the devolution of interest of a Bhumiswami or a Bhumidhari tenure-holder, cannot be regarded as a provision dealing with the devolution of tenancy rights. section 4 (2) of the Hindu Succession Act, 1956, in no way saves section 151 of the Madhya Pradesh Land Revenue Code and it cannot be held that section 14 of the Hindu Succession Act does not affect the personal law according to which the devolution of the interest of a tenure-holder passes under section 151 of the code. The High Court further held that the expression heirs of the husband in section 15 (1) (b), as also in section 15(2), (b), refers to the heirs of the deceased husband, who would have succeeded under the provisions of the Hindu Succession Act, 1956, if the husband had died on the date on which the female intestate actually died. On these premises, the High Court held that the plaintiff, Smt. Gopikabai, falls within clause (b) of section 8, and, as such is entitled to succeed in preference to the defendantagnates coming under clause (c) of that section, in the result, the plaintiffs appeal was allowed and the decree of the trial Court was restored.

10. Hence, this appeal by special leave.

11. The contentions canvassed before us by Mr. Sanghi, learned counsel for the appellants, are as under:

(i) section 151 of the Madhya Pradesh Land Revenue Code, 1954 (in short, the Code) was a law for the devolution of tenancy rights in agricultural holdings, because under the scheme of the Code, Bhumiswamis and Bhumidhans were tenure-holders who could be included in the term tenants. (Nahar Hari Singh v. Dukalhin)2, A.I.R. 1974 M.P. 141 (F B) and (Sitabai v. Kothulal)3, A.I.R 1959 Bom.78 were cited.

(ii) In view of the position stated at No. (i), section 4(2) of the Hindu Succession Act, 1956, (for short called the Act) saved section 151 of the Code. Therefore, devolution of the agricultural holding left behind by the deceased tenure-holder, will be governed by section 151 of the code and not by anything provided in the Act.

(iii) The expression Personal Law in section 151 of the code means the Hindu Law which was in force before the enactment of the Act, when the Code was enacted on February 5, 1955, because the words any law for the time being in force in sub-section (2) of section 4 of the Act cannot be construed to mean any law which came into force subsequently.

(iv) In view of No. (iii), under Mitakshara Law (sans the Act) the respondent being the daughter of the sister of the last male-holder, will be excluded from succession by the appellants who are agnates of the husband of Smt. Sarji, deceased.

(v) Even if the Act applies, the expression heirs of the husband in section 15, means heirs in accordance with the general Hindu Law in force when the husband died, and not the heirs ascertained under section 8 by fictionally postponing Punjyas death to 6th November, 1956, when Smt. Sarji died. (Kempiah v. Girigamma)4, A.I.R. 1966 Mys. 189. relied upon.

12. As against this, Mr. Lalit submits that-

(a) section 151 of the code is not a law dealing with devolution of tenancy rights in agricultural holdings and, as such, is not covered by the sating clause in section 4 (2) of the Act. Section 151 is confined to the devolution of the interest of a tenure-holder, the concept of which under the scheme of the Code, is different and distinct from a tenant. Chapter XI of the Code deals withtenants; while Chapter XII (in which section 151 is placed) deals with tenure-holders.

(b) Even if a tenure-holder includes a tenant, then also, section 151 of the code by reference makes the devolution of the interest of a deceased tenure-holder subject to his personal law as on his death. Since Smt. Sarji died on November 6, 1956, the personal law which will govern the inheritance to her estate, is Hindu Law as modified by the Hindu Succession Act, 1956. Under section 15 read with section 8 of the Act, Respondent No. 1 being a preferential heir, will exclude the appellants from inheritance to the estate of Smt. Sarji.

13. Before dealing with these contentions, it will be profitable to have a look at the relevant provisions of the Madhya Pradesh Land Revenue Code, 1954.

14. Section 2 (7) of the Code defined a Holding to mean, inter alia, a parcel of land separately assessed to land revenue. Section 2 (20) defined a Tenure-holderas a person holding land from the State Government as a Bhumiswami or a Bhumidhari. Section 2 (19) defined a Tenant as a person holding land from a tenure-holder as an ordinary or an occupancy tenant under Chapter XIV.

15. Chapter XII dealt with tenure-holders. In that Chapter, section 145 provided that there shall be two classes of tenure-holders of lands held from the State, namely, (i) Bhumiswami and (ii) Bhumidhari. Sections 146 and 147 indicated the persons who could be described as Bhumiswamis and Bhumidharis, Section 148 provided that every person becoming a Bhumiswami or Bhumidhari, shall pay as land revenue-

(a) if he was paying land revenue in respect of the lands held by him such land revenue,

(b) if he was paying rent in respect of the land held by him an amount equal to such rent.

16. It may be noted that Chapter XII of the Code further contains provisions for transfer of Bhumiswami or Bhumidhari rights and partition of Bhumiswami and Bhumidhari holdings when there are more than one tenure-holder. Tenancy rights are not dealt with in this Chapter, but separately in Chapter XIV. Sections 168 and 172 in Chapter XIV deal with the devolution of rights of an ordinary tenant and an occupancy tenant. Those rights also pass on the death of a tenant in accordance with the personal law of the deceased.

17. Section 151, which is in Chapter XII, runs thus:

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.

18. From the above conspectus, the following points emerge clear:

(i) A tenure-holder and a tenant have been separately and distinctly defined in clauses (20) and (19) of section 2 of the 1954 Code. A tenant according to the definition, holds land from a tenure-holder, but a tenure-holder, holds land directly from the State.

(ii) A Bhumiswami/Bhumidhari pays land revenue to the State and not rent.

(iii) Tenancy rights and rights of Bhumiswami/Bhumidhari are dealt with in separate Chapters of the Code. Bhumiswam is/Bhumidharis have permanent heritable and transferable rights in the land which cannot be taken away, except in certain cases.

19. There is a conflict of judicial opinion as to whether Chapter XII in general and section 151 in particular, is a law for the devolution of tenancy rights in respect of agricultural holdings within the saving clause ia section 4(2) of the Hindu Succession Act, 1956.

20. A Division Bench of the Bombay High Court (at Nagpur) in (Smt. Indubai v. Vyankati Vithoba Sawadha)5, 1965 Mh.L.J. 745 = A.I.R.1966 Bom. 64., held that the aforesaid provisions in the 1954 Code are not such a law and the exception made in section 4 (2) of the Act, cannot apply to them.

21. In view of the distinctive features of the rights of a tenure-holder, a Division Bench of the Madhya Pradesh High Court, also, in Kumari Ramlali v. Mst. Bhagunti Bai, took the same view, and held that section 151 of the code, which deals with devolution of the interest of a Bhumiswami or Bhumidhari tenure-holder, is not a provision dealing with devolution of tenancy rights within the contemplation of section 4 (2) of the Act.

22. A Full Bench of the Madhya Pradesh High Court in Narhar Hirasingh v. Mst. Dukaihin, by a majority of two against one, however, overruled on his point, the decision in Kumari Ramlali v. Mst. Bhagunti {ibid) and dissented from the Bombay view. But the Full Bench was not concerned with the interpretation of section 151 of the 1954 Code. The provision, the interpretation of which was in question before the Full Bench, was section 164 of the Madhya Pradesh Land Revenue Code, 1959 as it stood before its amendment in 1961, Whereas section 151 of the 1954 Code, in terms, provided that personal law would be applicable in the matter of the devolution of the interest of a tenure-holder (i.e. Bhumiswami and Bhumidhari), Section 164 of the Code of 1959 (which had repealed and replaced the Code of 1954), as it stood at the material time, commenced not only with a nonobstante clause militating against the application of personal law, but also provided its own list of heirs and order of succession, which was different from that laid down in the Hindu Succession Act, 1956.

23. Be that as it may, for the purpose of deciding the case before us, it is not necessary to pronounce one way or the other, on the question whether section 151 of the 1954 Code is a law for devolution of tenancy rights in agricultural holdings, because even on the assumption that it is such a law, section 151 of the 1954 Code, itself, in terms, makes personal law applicable in the matter of the devolution of the interest of a deceased tenure-holder. Well then, does the expression personal law mentioned in section 151, in the case of Hindus, mean as is contended by Mr. Sanghi-Hindu Law as obtaining on February 5, 1955 when the 1954 Code came into force? Or, does it mean Hindu Law, as amended by the Hindu Succession Act, prevailing on November 6, 1956, when Smt. Sarji died?

24. It is well-known that a Legislature can legislate on a subject by referential incorporation, if that subject is constitutionally within its legislative competence. Section 151 is arc instance of legislation by such method. The State Legislature enacted the 1954 Code in exercise of its power under Entry 5 ia the Concurrent List (i. e. List III), which reads as under:

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

25. The 1954 Code had also received the assent of the President under Article 254 (2) of the Constitution.

26. The questions posed above turn on an interpretation of the language of section 151. There are no words in that section or elsewhere in the Code, which limit the scope of the expression personal law to that prevailing ore February 5, 1955. On the contrary, the words on his death used in section 151, clearly show that the legislative intent was that personal law as amended upto the date on which the devolution of the tenure holders interest is to be determined, shall be the rule of decision.

27. Broadly speaking, legislation by referential incorporation falls in two Categories: First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus:

A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted.

(Vide, Sutherlands Statutory Construction, Third Edition, Art. 5208, p. 5208). Corpus Juris Secundum also enunciates the same principle in these terms:

.Where the reference id an adopting statute is to the law generally which governs the particular subject, and not to any specific statute oi part thereof, the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute.

28. Construed in accordance with the above principle, the expression personal law referred to in section 151 of the Code, comprehends the Hindu Succession Act, 1956, which will undoubtedly govern the inheritance to the estate of Smt. Sarji who died on November 6, 1956, much after the coming into force of that Act. If we can say so with due reference, the view taken on this point by the Bombay High Court in Smt. Indubais case (ibid) and by the Madhya Pradesh High Court in Kumari RamlalVs case (supra) and by Tare C. J. in Narhar Hirasinghs case (ibid), is correct.

29. The further question to be considered is: Which of the parties is entitled to succeed to the interest of Smt. Sarji deceased under the Hindu Succession Act, 1956?

30. The General Rules of succession in the case of a female Hindu dying intestate are given in section 15 of the Act, which so far as it is material for the purpose, read as follows:

15(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-

(a) upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;

(b) upon the heirs of the husband;

(c) to (e)

(2) Notwithstanding anything contained in sub-section (1),-

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

31. This section should be read along with the Rules set out in section 16, the material part of which runs as under:

The order of succession among, the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules namely:-

Rule 1

Rule 2

Rule 3-The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the fathers or the husbands as the case may be, and such person had died intestate in respect thereof immediately after the intestates death. (Italics supplied)

32. The instant case will fall under clause (b), sub-section (2) of section 15, because Smt. Sarji died issueless and intestate. The interest in the suit property was inherited by her from her husband. The suit land will, therefore, under clause (b), go to the heirs of her husband, Punjya.

33. The next question is, whether the heirs of the husband in section 15 are to be ascertained with reference to the date of Punjyas demise in 1936, or with reference to the date of Shrimati Sarjis death on November 6, 1956, when succession opened out.

34. There appears to be some divergence of opinion among the High Courts on this point. We are however of opinion that once it is found that the case falls under section 15 (2) (b), the fiction envisaged in rule 3 of section 16 is attracted, according to which, for the purpose of ascertaining the order of devolution, it is to be deemed as if the husband had died intestate immediately after the female intestates death. Bearing this fiction in mind we have then to go to the Schedule under section 8 of the Act to find out as to who would be the heirs of Smt. Sarjis husband on the date of her death. Section 8 of the Act provides that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:- (a) Firstly, upon the heirs, being the relatives specified in Class I of the Schedule;

(b) Secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;

(c) Thirdly, if there is no heir of any of the two classes then upon the agnates of the deceased; and

Lastly, if there is no agnate, then upon the cognates of the deceased.

35. Now, Smt. Gopikabai, respondent 1 is admittedly the daughter of the sister of the last male holder, Punjya, whereas the appellants are his remote agnates. Neither party falls under Class I of the Schedule. Sisters daughter1 is Item 4 of Entry IV in Class II of the Schedule; while agnates do not figure anywhere in Class II. Thus, Smt. Gopikabais case will come in clause (b). Secondly, of section 8 and, as such, she will be a preferential heir of the husband of Smt. Sarji, if he had died the moment after her death on November 6, 1956. In this view, she would exclude the defendants-agnates from inheritance even according to personal law which, within the contemplation of section 151 of the Code, will include the Hindu Succession Act, 1956, in force at the time when Smt. Sarji died and succession opened out.

36. In the result, we affirm the judgment and decree of the High Court and dismiss this appeal with costs.

Appeal dismissed.

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