Pokhan Dusadh v. Mt. Manoa

Fazl Ali, J.:— This appeal arises out of a suit instituted by the plaintiff-respondent to recover possession of a holding which admittedly belonged to one Ghaman Teli of mauza Duari. Ghaman Teli died sometime before 1929, and was succeeded by his widow Mt. Runia who died in July 1929. By this time the Hindu Law of Inheritance (Amendment Act), 2 of 1929, which includes a sister in the category of reversioners to the estate of a Hindu male came into force and accordingly the plaintiff who is a sister of Ghaman Teli claiming to be an heir of her deceased brother applied to the landlord for mutation of her name. The landlord however refused to register her name and so she applied under Section 23-A of the Chota Nagpur Tenancy Act, to the Sub-divisional Officer of Chatra for mutation which was allowed sometime in July 1930. Meanwhile the landlord had settled the land with defendant 1 and the plaintiff's case is that defendant 1 dispossessed her from the holding and she was therefore compelled to institute the present suit. The plaintiff's suit was decreed by the trial Court and defendant 1 having unsuccessfully appealed to the Court to which the appeal lay in the first instance has now preferred this second appeal.

2. The main contention which has been put forward on behalf of defendant 1, the appellant in this case, is that the Hindu Law of Inheritance (Amendment) Act has no application to this case as Ghaman Teli died before the passing of that Act. The question which thus arises for our consideration is whether the Act applies only to those cases where the Hindu owner dies after the passing of the Act or it also applies where such a person dies before the Act came into force, but owing to the estate being in the hands of a female heir (a limited owner under the law) the succession does not open until the death of the latter. In other words what we have to decide is whether the material date for the application of the Act is the date of the death of the Hindu owner or the date when the succession opens. The point is not a new one and has been the subject matter of much discussion in recent times. In 1933 a Division Bench of the Madras High Court held that Act 2 of 1929 does not apply to cases of Hindu males who died intestate before its coming into force and that in determining the order of succession to the estate of such a person the Hindu law as it stood before the Act would apply: see 57 Mad 718.1 The same view was taken by a single Judge of the Lahore High Court in AIR 1933 Lah 777.2 This last decision was however reversed on appeal under the Letters Patent [AIR 1936 Lah 139, Ref. 7 below] and the decision of the Madras High Court to which I have referred has been recently overruled by a Full Bench3 : (1936) Pat WN 154 (Notes). The High Courts of Madras, Lahore and Allahabad are now agreed that the Act in question applies even to the case of a person who dies before it came into force, if his widow or any other limited owner who inherited his estate is alive at the time of its enforcement: see, AIR 1936 Lah 1244; AIR 1936 All 5075; AIR 1933 All 1526; AIR 1936 Lah 1397 and 13 Lah 178.8 This is also the view which was expressed in this Court by Courtney-Terrell, C.J sitting singly after a very thorough examination of the question in all its aspects: see, 15 PLT 707.9 As however notwithstanding these decisions the question has been raised persistently in this Court it becomes necessary to examine it once more.

3. The object of the new Act was in the words of its preamble “to after the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate.” S. 2 which was enacted to carry out this object provides that a son's daughter, daughter's daughter, sister and sister's son shall in the order so specified be entitled to rank in the order of succession next after a father's father and before a father's brother. The effect of this enactment is best understood if we look at the matter as follows: Let us suppose that before the Act came into force there was available to us a complete list of reversionary heirs to a Hindu male which was compiled according to the law as it then stood. The effect of the Act is simply to substitute a revised list with certain additions and alterations. As before the Act we would have had to refer to the list only when the question of succession had to be determined, so after the passing of the Act also it will not be necessary to refer to the revised list substituted by the Act until we are asked to decide who should succeed to the estate of the deceased owner. The Act itself makes no reference to the date of death of the Hindu male and I do not see why the operation of the Act should depend upon that date. The only date which is material is the date when the succession opens or when the question of succession to the estate arises. If such a question arose before the Act came into force the succession would be governed by the Hindu law as it stood before the Act. If the question arises after the Act, it will apply. Therefore when the Hindu owner of an estate died before the Act came into force the question whether the Act would affect the succession to his estate or not would depend on whether he has left any female heir, such as widow, daughter, etc., or he has died without leaving any such heir. In the former case it is only after the death of the limited owner that the succession opens, that is to say, the reversionary heir is entitled to enter into possession of the estate. If, however, the owner has died without leaving any female heir, the succession opens immediately on his death, and if he died before the passing of the Act the Act will have no application. The reason why the date of the death of the last male owner is not material in such a case is that the question as to who would be entitled to succeed to his estate as a reversioner cannot be determined until the death of the female heir left by him whenever he dies leaving such an heir. At first by a fiction of law the husband's life was assumed to continue in the existence of his widow, but latterly the same rule has been extended to the case of the other female heirs with the result that it is only after the death of the limited owner that the succession opens and the estate goes to the next heir of the last male owner and not to the next heir of the limited owner. That being so during the lifetime of a limited owner no one can say with certainty as to which of the persons who may be the theirs of the last male holder of an estate at the time of his death will be entitled to succeed to the estate when the succession opens. They may or may not be alive at the date when the succession opens or the whole situation may be altered by the coming into being of a new heir who was not in existence when the last owner died. It follows from this that the estate does not vest in any particular reversioner upon the death of the owner when he leaves behind a limited heir and the reversionary right remains a mere possibility or spes successionis. This position has been made perfectly clear by their Lordships of the Privy Council in a number of decisions and for the purpose of this case it will be sufficient to quote the following passage only from their pronouncement in 39 Mad 634 10:

The law as to the situation of the reversionary heirs is also in substance quite clear; there is, as stated, no vesting at the date of the husband's death, (the case before their Lordships was one where the limited heir was the widow of the last holder) and it follows that the questions of who is the nearest reversionary heir or what is the class of reversionary heirs fall to be settled at the date of the expiry of the ownership for life or lives…. Even where the Courts have proceeded, prior to the opening of the succession, to give any declaration, that has been done for special reasons only …. and—to use the language of Sir Arthur Wilson, it is made clear that “whenever the succession opens by the death of the widow, the present decision will have settled nothing as to who should succeed.

4. Therefore, the only criterion to be applied in determining whether the Act is applicable to a particular case is to inquire when the succession opened and whether the conditions laid down in the Act for its application have been fulfilled. The preamble of the Act makes it clear that it applies where the person to be succeeded has died intestate and S. 1, sub-s. (2) expressly says that:

It applies only to the person who but for the passing of the Act would have been subject to the law of Mitakshara in respect of the provisions enacted in the Act and that it applies to such persons in respect only of the property of the males not held in co-parcenary and not disposed of by will.

5. A question may arise as to whether the Act applies to such property as cannot be disposed of by will. In my opinion, the words “not disposed of by will” which occur at the end of the sub-section are comprehensive enough to cover such a case. Thus as far as I can see there is nothing in the Act which makes the date of the death of the last male holder a condition precedent to its application and as I have already explained the question of the applicability of the Act will arise only when the succession opens and not before it. There are four main grounds on which this view has been criticised in 57 Mad 718, (in which the opposite view has been propounded with great clarity) and these may be summarized as follows: (1) That the words “dying intestate” used in the preamble connote a person whose death is to occur and not one who had already died. (2) That the changes made by the Select Committee in the original bill indicate that it was intended to affect only the estate of the person who has died since the passing of the Act. (3) That the Act cannot have retrospective operation because it contains no express provision to this effect and because it will be contrary to principle to give it a retrospective effect. (4) That to hold that the Act affects the estate of a person who died before the Act would be to frustrate his presumed intentions because if he had known that the law was to be changed, he might have preferred to dispose of his property by means of a will. The first objection admits of a simple answer. It implies that the words “Hindu male dying intestate” mean a Hindu male who will hereafter die intestate. It appears to me, however, that the words in question were never intended to convey this meaning. The words “dying intestate” which qualify the preceding words “Hindu male” are merely descriptive and limit the operation of the Act to the estate of those Hindu males only who answer the description. It is true that the participle in the expression “dying intestate” is in the present tense; but that is the present tense of logic and the expression connotes the intestacy of the deceased owner without any reference to whether the death occurs before or after the Act comes into force. “The Hindu male dying intestate” simply means the Hindu male who has died or may die intestate. As to the changes made by the Select Committee they appear to me to be more or less irrelevant because we have to interpret the Act as it stands. But in point of fact the changes made by the Committee do not point to the conclusion which is sought to be drawn. In sub-cl. (2) of Cl. (1) of the original Bill the latter portion reads as follows:

But it applies only in the case of the property of Hindus not being held in coparcenary and not having been disposed of by the will, to which the succession opens after 31st July 1928.

6. The Select Committee omitted the words which I have underlined [italicised above] and explained the omission by saying:

We are also of opinion that it is unnecessary either to assign retrospective effect to the provisions of the Bill or to defer the coming into operation thereof, and we have therefore omitted; reference to the date on which the succession opens.

7. Now, the Act received the assent of the Governor-General in Council on 21st February 1929, and if the passage which has been omitted by the select committee had been retained, the effect would have been that the Act would have operated retrospectively so as to apply to cases in which succession opened between 31st July 1928, and 21st February 1929. The Select Committee, however thought that it was not necessary to assign retrospective effect, to the provisions of the Act only for such a short period and it decided to let the Act come into force on the day it would have come into operation in the ordinary course. The passage, however, which has been quoted above is significant, because, it shows that what the framers of the Bill as well as the Select Committee had in, view was not the date of the death of the last male owner but the date when the succession opens. The third objection, appears to me to be based on a misconception. As Sir Courtney-Terrell, C.J, has pointed out in 14 PLT 707, on the language of the statute as it stands, no question of its retrospective operation arises. It has been said that the question of retrospective operation arises in the sense that the change of law introduced in this Act affects also the estates of persons who have died intestate before the Act. This fact standing by itself does not make the Act retrospective in its operation. As I have already stated, the critical date is the date when the succession opens and the Act would have had retrospective application only if it was applied to cases where succession opened before the passing of the Act. For instance, it would have had retrospective application if the original Bill (which proposed to make the Act applicable to cases in which succession opened after 31st July 1928) had not been amended by the Select Committee. The question as to when an Act would have retrospective operation is dealt, with elaborately in (1894) 1 QB 725.11 In that case Lopes, L.J observed:

It is a well recognised principle in the construction of statutes that they operate only on cases and facts which come into existence after the statute was passed unless a retrospective effect is clearly intended and that this principle of construction is especially applicable when the enactment to which a retrospective effect is sought to be given would prejudicially affect the vested rights or the legal character of past transaction.

8. Now, in the first place, there is no room for the application of these principles to the present case, because, as I have already stated, the Act was never intended to operate retrospectively in the proper sense of the term; and secondly, to hold that the Act would affect the estate of persons who have died before the passing of the Act will not in any way prejudicially affect any vested rights. Learned counsel for the appellant conceded that when a Hindu male dies leaving a female heir his estate does not vest at once in the next reversioner. He contended, however, that such a reversioner has at least the right to demand that the estate be kept free from waste and danger during its enjoyment by the widow or the owner for life. This right, however, has in some cases been conceded even to one who is not necessarily the nearest reversioner. Again as was pointed out by the Privy Council in 39 Mad 634 such a right is exercised by a reversioner only in a representative capacity. To hold therefore that the Act may in certain cases apply to the estates of persons who died before the passing of the Act cannot prejudicially affect any rights which the reversioner possesses only in a representative capacity. The fourth objection is one on which learned counsel for the appellant laid most stress in this Court and it may be set out once more in the words used by the Judges of the Madras High Court in 57 Mad 718:

At p. 186 of Maxwell's book, it is observed that a fundamental rule of English law is that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. At p. 187, the learned author observes that a testator is presumed to have in view the state of the law when he made his will. If it be so, we can reasonably presume that a person competent to make a will is satisfied with the state of the law regarding the order of succession to his estate among his heirs, if he prefers to die intestate without making a will. If he wishes to prefer a remoter to a nearer heir he will certainly have recourse to the making of a will. If he does not make a will, it may be because he wishes that his property should devolve according to the existing law of succession. The policy of the legislature is not to make a subsequent enactment operative against the estate of such a man and thus frustrate his presumed intentions, unless for special and weighty reasons such a retrospective operation is found to be necessary. If Act 2 of 1929 is given such a retrospective operation, it would be frustrating the intentions of the last male owner who preferred to die intestate before the passing of this Act. Such an anomaly will not arise if this Act should be held to apply only prospectively.

9. The point to be considered is whether we can legitimately draw any presumption as to the intention of a person who has died intestate. I venture to point out respectfully that if it is permissible to say that a man did not leave a will, because he was satisfied with the state of the law regarding the order of succession to his estate, it is equally permissible to say that his intention might have been to let the law take its course and that he was not thinking of any particular heir at all. It being impossible to predicate as to who would succeed to the estate until the succession opens, it is difficult to say that a person who dies intestate had contemplated at the time of his death that he would be succeeded by any particular person or persons. There will be still less justification for presuming that if he had known that a change was going to be effected in the existing law he would have disposed of his property by means of a will. That being so, there is no question of frustrating the presumed intention of a person to whose estate the Act applies, and as already stated to hold that the Act applies only when succession opens is not to give it a retrospective effect and therefore the principles bearing upon the question as to when a Statute shall be construed to have retrospective operation have no relevancy. The conclusion therefore which I have unhesitatingly arrived at is that the view-put forward by Courtney-Terrell, C.J in 15 PLT 707, which now prevails in the other High Courts, is the correct view and should prevail in this Court.

10. The only other question which is raised in this appeal is that Section 139 of the Chota Nagpur Tenancy Act, bars the jurisdiction of the civil Court to try the suit. The question however has been fully considered by the Munsif and the decision of the Munsif does not appear to have been seriously questioned before the learned Sub-ordinate Judge. Besides the question which has been raised here was raised in many cases in this Court and has been exhaustively dealt with recently by a Division Bench of this Court in 14 PLT 657.12 It was held in that case that S. 139(5) only bars the civil Court from entertaining a suit regarding a matter cognizable by the Deputy Commissioner by way of application and that, so far as recovery of possession of a tenancy is concerned, by no

provision did it bar the civil Court from entertaining a suit for a declaration of title to and consequent recovery of possession of a tenancy nor interfere with the period of limitation prescribed for such a suit.

11. This represents the settled view of this Court and there is no doubt therefore that the civil Court was competent to try the present suit. Indeed having regard to the pleadings of the parties no decree for recovery of possession could be passed without properly deciding the plaintiff's title. It is clear that the question as to whether the plaintiff is entitled to avail herself of the provisions of Act 2 of 1929 is one which could not be decided in a summary proceeding for possession in a Revenue Court. In my opinion therefore the decree of the Court below should be affirmed and the appeal dismissed with costs.

Mohamad Noor, J.:— I agree.

James, J.:— I agree.

Dhavle, J.:— I agree.

Varma, J.:— I agree.

K.B/A.L

12. Appeal dismissed.