Untwalia, C.J:— There is an interesting and important point of Hindu law involved in this second appeal filed by the plaintiff. The facts of the case may be stated in a narrow compass and at the second appellate stage they were no longer in dispute. One Chaitan Mandal had a wife named Bhodia. Chaitan had a daughter Basia from Bhodia. Bhodia died. Chaitan took a second wife named Budhia who was defendant no. 2 in the action and is respondent no. 2 in this appeal. Chaitan had two sisters who are the plaintiff appellants. Chaitan died sometime in or about the year 1947 leaving Budhia as his widow and Basia as his daughter from his first wife Bhodia. Sometime after the death of Chaitan but before 1956 Budhia remarried one Ananti Lal Mandal. Therefore, Basia came in possession of the entire property left by Chaitan being his only heir alive at that time. She was a minor and was living with her maternal grand father. There were some litigations both criminal and civil between the two sisters of Chaitan, namely, the plaintiffs and Basia. In the year 1956 before coming into force of the Hindu Succession Act 1956 (hereinafter called the Act) a compromise was entered into between the two sisters and Basia, the latter acting through her guardian the maternal grand-father. Basia died after coming into force of the Act. She died unmarried. Budhia executed a sale deed in favour of defendant no. 1 respondent no. 1 in respect of the properties left by Basia. Budhia, it appears, claimed to be the heir of Basia's property after her death. Plaintiffs filed the suit for declaration of title to, and recovery of possession of the suit properties, alleging that after Basia's death they were the heirs, under the. Act, of the property left by her and not Budhia; Budhia had no right to execute a sale deed in favour of defendant no. 1. The suit was resisted by the said defendant. It was decreed by the trial court but dismissed by the lower appellate court on the filing of appeal by defendant no. 1. Hence the second appeal by the plaintiffs.

2. There is no doubt that the inheritance of the properties left by Basia will be governed, by the Act. Section 15 prescribes the general rules of succession in the case of female Hindus and it reads as follows:—

“(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16—

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father, and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1):—

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased 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 father, and

(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 pre-deceased 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.”

3. The order of succession and the manner of distribution among heirs of a female Hindu have been engrafted in Section 16 of the Act. It is not necessary to quote that. Reading Section 15(1) with the aid of Sub-section 2(a) in this case it is clear that Basia's property would devolve under Clause (d) of Sub-section (1) upon the heirs of the father of Basia, namely, heirs of Chaitan Mandal. She had no heirs of the type mentioned in Clause (a) nor of Clause (b). Even assuming that the step mother could be covered by the word ‘mother’ in Clause (c) although not accepting it, Clause (b) and (c) were excluded by Sub-section (2)(a). The only question for determination therefore, is who, after coming into force of the Act, on the death of Basia, was her father's heir on whom devolved her property was that heir Budhia who had remarried before coming into force of the Act or were the plaintiffs, the two sisters of Chaitan, such heirs? If Budhia was an heir of Chaitan when succession reopened on the death of Basia, undoubtedly Chaitan's sisters would be excluded, the widow of Chaitan would get preference over his sisters.

4. It was a well settled principle of Hindu Law which was in vogue before coming into force of the Act that a widow by her second marriage forfeited the interests in her deceased husband's estate and it passed to the next heir of her deceased husband as if she were dead. Vide section 2 of the Hindu Widows' Re-marriage Act, 1856, which reads as follows:—

“All rights and interests which any widow may have in her deceased husband's property by way of maintenance or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died, and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same”.

5. A widow succeeded as the surviving half of her husband and she ceased to be so on re-marriage, as noted in Clause 4(iii) of Section 43 at page 107 of Mulla's Hindu Law, 13th Edition. Even after the passing and coming into force of the Hindu Women's Rights to Property Act, 1937, the law was the same. A widow on remarriage lost her right to succeed to her husband's estate. But under the Act the position is different:—

6. Section 24 of the Act provides—

“Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married.”

7. Section 28 says—

“No person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity, or save as provided in this Act, on any other ground whatsoever.”

8. Reading these two sections together, therefore, it is clear that if on the date the succession opens under the Act the widow has re-married then she is not disqualified to be an heir of her husband because she is not one of the disqualified widows mentioned in Section 24 widows who become disqualified by re-marriage. There can, therefore, be no doubt that if the widow has re-married after coming into force of the Act then on the date of the succession opens under it the widow is not disqualified from inheriting the property of her husband or getting a share in it by inheritance. But can it be said that a widow who was in the eye of law dead and ceased to be the widow or surviving half of her husband before coming into force of the Act becomes entitled to succeed as an heir of her husband because she is not disqualified under the Act in view of the provisions contained in Sections 24 and 28? In other words, is it correct to say that the widow who had died a civil death, so far as her right to become the heir of her husband is concerned, is brought to life by virtue of the operation of the law contained in Sections 24 and 28 of the Act? To my mind, the answers to the questions posed must be in the negative. On the 17th June, 1956 when the Act came into force Budhia in the eye of law was dead and gone as a widow of Chaitan. She was not a widow of Chaitan on that date. She was the married wife of her second husband. By the re-marriage she had ceased to be the widow of Chaitan. It is, therefore, difficult to accept the argument put forward on behalf of respondent no. 1 that Budhia came back to life in the eye of law in 1957 and became the heir of Chaitan. If on the 17th June, 1956 she was widow of Chaitan and had not ceased to be so by remarriage, then, opening of the succession on the death of Basia, by legal fiction there was no difficulty in taking the view that in the death of Basia has to be imagined the death of her father Chaitan, and then on that date it has to be seen whether Budhia was a disqualified heir. Merely by her re-marriage she was not disqualified for inheriting the property of Chaitan because of Sections 24 and 28 of the Act. The language of either of these two sections does not suggest that they have a retrospective or retroactive action. It is difficult to accept the argument put forward on behalf of respondent no. 1 by his learned counsel that even a widow who had forfeited her right to inherit her husband's property before coming into force of the Act by re-marriage becomes a qualified heir after coming into force of the Act.

9. The view which I have expressed above is amply borne out by the language of Sections 25 and 26 and especially of the latter. Section 25 clearly is prospective and Section 26 which covers the cases of both the periods—before or after commencement of the Act is couched in a different language and runs thus—

“Where, before or after the commencement of this Act, a Hindu has ceased or ceased to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.”

10. Mr. Thakur Prasad, learned counsel for respondent no. 1 strenuously argued that there was no difficulty in Budhia's getting Basia's property as the latter's step-mother. There are obvious difficulties in accepting this argument as sound. Firstly, a stepmother is not a mother even under the Hindu law as it was in vogue before coming into force of the Act as is found mentioned at page 107 of Mulla's book, 13th Edition. Only a mother was entitled to get the property of her son or her daughter, as held in the case of (i) Bhiku Krishna Badhade… v. Keshav Ramji Badhade…. (A.I.R 1924 Bombay 360). Step mother was not so entitled. Even at Page 799 the passage to which our attention was drawn by Mr. Thakur Prasad states—

“A step mother is not entitled as mother to inherit to her step-son as of the heirs in Class I but she can be an heir as father's widow under Entry VI of Clause II of the Schedule.”

11. Secondly, the term ‘mother’ in Clause (c) of Sub-section (1) of Section 15 of the Act, in my opinion, will not cover the case of step-mother and, thirdly, even if it covers, as I have already stated Sub-section (2)(a) of Section 15 in this case will exclude Clauses (b) and (c) of Sub-section (1). Undisputedly the suit properties were Basia's properties which she had inherited as a female Hindu from her father Chaitan.

12. For the reasons stated above, this appeal succeeds and is allowed, the judgment and decree of the lower appellate court are set aside and the decree of the trial court is restored. There will be no order as to cost in this Court.

13. Nagendra Prasad Singh, J. I agree.

Appeal allowed.