JUDGMENT
This is an appeal preferred by one Krishna Chettiar against the order of the District Judge of North Arcot for the grant of a succession certificate in favour of the respondents in O. P. No. 31 of 1930. The last male owner was Ponnusami alias Subbu Chetti who died unmarried in or about 1916. His mother (Muthammal) succeeded to his estate as a limited owner under the Hindu law and died on 14th September, 1929. The present respondents who are the sisters of the last male owner claiming to be the nearest heirs by virtue of Act II of 1929 sought for the issue of a succession certificate in their favour, in order to enable them to collect the debts due to the estate of the last male owner. This present appellant Krishna Chettiar opposed this application, contending that under the Hindu Law, he as the paternal uncle of the last male owner Ponnusami is entitled to succeed to the estate on the death of his mother and that Act II of 1929 would not apply to this case. The learned District Judge held that as sisters, the respondents have a preferential right over the paternal uncle, as the Hindu Law of Inheritance (Amendment) Act II of 1929 had come into force when the last limited owner (Muthammal) died. The correctness of that finding is challenged in this appeal.
This appeal raises an important question of law. This question does not appear to have come up for decision in this High Court till now. The point for consideration is, whether this Act has retrospective operation in the sense that the change of law introduced in this Act affects also the estate of persons who have died before the Act. As this Act is not expressed to come into operation on a particular day, it must be deemed to have come into force on the day on which it received the assent of the Governor-General, i.e, on 21st February 1929. The preamble of the Act is as follows:—
“Whereas it is expedient to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate; it is hereby enacted as follows:”
By S. 1 of the Act, it is made applicable to the whole of British India and to the property of Hindu males governed by the Law of Mitakshara not held in co-parcenary and not disposed of by will. The change effected in the order of succession of certain heirs is declared in S. 2, whereby a son's daughter, daughter's daughter, sister and sister's son should in the order so specified, rank next after a father's father and before a father's brother.
The question is, in respect of whose estate or property the altered order of succession among the heirs as fixed by this Act should apply. There is nothing in S. 1 to clarify the doubt whether it covers also cases of male owners who died even before the passing of this Act. There is nothing explicitly stated to indicate that the Act has such a retrospective operation. When there is some doubt in this respect in the enacting part, we may legitimately look to the wording of the preamble of the statute for solving the doubt. The following passage in Maxwell on the Interpretation of Statutes, 7th Edition, at pages 37 and 38 is instructive:
“The preamble of a statute has been said to be a good means of finding out its meaning, and as it were a key to the understanding of it; and as it usually states or professes to state the whole object and intention of the legislature in passing the enactment, it may legitimately be consulted to solve any ambiguity or to fix the meaning of words which may have more than one or to keep the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to doubt.”
In this Act, the preamble says that it is in respect of the estate of a Hindu male dying intestate. According to the plain meaning of the words employed, it seems to us that the Act is intended to apply to cases of Hindu intestate males who died after the passing of this Act. We can perceive no ambiguity in the preamble. The expression “a Hindu male dying intestate” connotes a person whose death is to occur and not one who had already died. If it was meant that the Act should operate retrospectively so as to affect the estate of persons who died even before the Act, we must find clear words signifying such an intention. On the other hand, the wording of the preamble indicates that the scope of the Act is otherwise.
It is argued that if succession opens after the passing of this Act even by the death of a limited owner, the provisions of this Act should apply in fixing the priority among the heirs of the last male owner. But in our view the mere circumstance of the succession opening after the passing of this Act is not enough to attract the provisions of this Act, but it must also be shown that the opening of the succession is in respect of the estate of a Hindu male dying intestate after the passing of this Act, as would be clear from the preamble. S. 2 of the Act merely refers to certain heirs taking precedence over others, but the query is whose heirs are meant in it. It is not clear from section 1 whether they are the heirs of a Hindu male who died before or after the Act, but the answer if found in the preamble, and the doubt, if any, is solved by it.
The view that we take of the Act as it now stands receives strength, if we turn to the wording of the original Bill and the way in which it was amended by the Select Committee in which form the Act now stands. The Bill was introduced in the Legislative Assembly on 22nd March 1928. Its preamble ran thus:
“Whereas it is expedient to alter the order in which certain heirs of a deceased Hindu dying intestate are entitled to succeed to his estate; it is hereby enacted as follows:”
In Sub-Cl. (2) of Cl. (1) of the Bill the latter portion is worded as follows:—
“But it applies only in the case of the property of Hindus, not being held in co-parcenary and not having been disposed of by will, to which the succession opens after the 31st day of July 1928.”
In the Bill as amended by the Select Committee, the word “deceased” in the preamble was dropped out and the reference to the opening of succession was also omitted. The reason for the omission is stated thus in the Report of the Select Committee:—
“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 the reference to the date on which the succession opens.”
These omissions appear to be very significant and it seems to us that with the object of not extending the operations of this Act to all cases of succession opening after the Act, irrespective of the time of the death of the last male owner, but to limit its operation only to the cases of the Hindu male dying intestate after the Act coming into force, the aforesaid amendments have been effected. The fact that succession opens after the passing of this Act is not therefore the only test for the applicability of the provisions of this Act.
The general rule is that an Act should not be construed to have retrospective operation, unless such a construction is clearly warranted by the express terms of the Act. At page 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 page 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 II 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.
We have been referred to a decision of the Lahore High Court reported in (Shib Das v. Nand Lal ), and to another decision of the Allahabad High Court reported in Bandhan Singh v. Daulata Kuar . A similar question arose in both those cases, and the learned Judges have held that the provisions of this Act as to the order of succession are applicable to the estate of the last male owner though he died before the passing of this Act. In the latter case, it seems to have been almost taken for granted that the Act has such a retrospective operation. There is no discussion of the matters involved in the solution of this question in either of those judgments, and, for the reasons which we have stated, with great respect we express our dissent from those decisions. On the other hand, there is a later decision of the Lahore High Court holding a contrary view which is in accordance with the view we have taken. It is the decision of a single Judge reported in Mt. Janki v. Mt. Sattaa (3). In that case also, there is no discussion, but the contention that Act II of 1929 is not retrospective and the sister was no heir at all previously and is not a preferential heir under the Act, as the Hindu male through whom she claims died before the passing of the Act, is stated to be correct.
In view of what we have stated above, we come to the conclusion that Act 2 of 1929 does not apply to cases of Hindu males who died intestate before its coming into force. In determining the order of succession to the estate of such persons, the Hindu law as it stood before this Act should be applied. By so doing, the appellant Krishna Chettiar would be a preferential heir (as the paternal uncle of the last male owner) to the respondents who are his sisters.
We accordingly allow this appeal and dismiss O. P. No. 31 of 1930 with costs in both Courts.
N. R. R.Appeal allowed.