VAIDIALINGAM, - (1.) THE Judgment of the court was delivered by
(2.) THE short question that arises for consideration inthis appeal, filed by the legal representatives of the deceased defendant, oncertificate, is whether on a true construction of the Hindu Law of Inheritance(Amendment) Act, 1929 (Act 2 of 1929) (hereinafter referred to as the Act),it applies only to the case of a Hindu male dying intestate on or after 21/02/1929 (when the Act came into force) or whether it applies in thecase of a Hindu male dying intestate before the Act came into operation andsucceeded by a female heir who died after that date. The following pedigree will be useful in appreciating the relationshipof the parties as well as the basis of the claim made regarding the title to theproperties by the parties : JUDGEMENT_658_1_1970Image1.jpg 660 The respondent-plaintiff instituted Suit No. 41 of 1955 in the Subordinate Judge's court, Jagraon, against the original defendant for recoveryof possession of the suit properties. According to the plaintiff Kirpa Ram wasthe last owner of the properties. Even during his life-time his only sonCharanji Lal had died. On the death of Kirpa Ram, his widow Bishan Devibecame the owner of the properties and was in possession of the properties forher life-time. After the death of Bishan Devi, her daughter Maya Devi(daughter of Kirpa Ram and Bishan Devi) became her heir and remained inpossession of the property till her death. After Maya Devi's death, accordingto Dharma Shastras the plaintiff, as the daughter's son of Kirpa Ram, wasentitled to succeed to the properties which were in the possession of BishanDevi and later on of Maya Devi, his mother. It was alleged by the plaintiffthat the defendant, after the death of Bishan Devi, claiming to be entitled tothe properties of Kirpa Ram, got mutation in the Revenue Registers effectedin his name on or about January 6, 1947. Therefore, according to the plaintiff,the defendant had no right, title or interest to the properties of Kirpa Ramand the mutation obtained by him could not affect the rights of the plaintiffas the daughter's son of Kirpa Ram. On these allegations the plaintiff prayedfor a declaration regarding his title to the property and for recovery of possession of the same from the defendant.
(3.) THE defendant contested the claim of the plaintiff on various grounds.He alleged that Charanji Lal did not pre-decease Kirpa Ram but, on theother band, after the death of Kirpa Ram, Charanji Lal, his son, became heirand was in possession of the properties left by his father. Charanji Lal diedlong afterwards, in or about 1926 and, after his death, his mother Bishan Devibecame heir to the property left by Charanji Lal, for her life-time. Afterthe death of Bishan Devi, the defendant claimed that he, as a collateral ofKirpa Ram, became entitled to the properties of the latter and, as such, gotmutation effected in his favour, according to law. He further averred thatMaya Devi did not at all come into possession of the estate after the death ofBishan Devi. In fact the defendant even disputed the fact that Maya Deviwas the daughter of Bishan Devi. Even if Maya Devi was the daughter ofBishan Devi, the defendant alleged that according to the custom governingthe parties, Maya Devi had no right to the properties left by Bishan Devi.On these allegations, the defendant maintained that he was rightly entitledto the properties of Kirpa Ram and that the plaintiff has no cause of actionfor having the mutation effected in the Revenue Registers in his favourcancelled. The Trial court, by its judgment and decree, dated 22/02/1956, decreed the plaintiff's claim. It found that Maya Devi was the daughterof Kirpa Ram and Bishan Devi and that the plaintiff was the son of MayaDevi. The Trial court further found that Charanji Lal did not pre-deceasehis father fcirpa Ram but, on the other hand) after the death of Kirpa Ram,Charanji Lal was the last male holder of the entire property and was inpossession, as such, till his death. It was also further found that the partieswere governed by their personal law and not by custom in matters ofsuccession. It has been found that Charanji Lal died issueless on 22/08/1925 and, after his death his mother Bishan Devi was in possession of the propertyas a life-estate holder. After her death on 26/11/1946, Maya Devi wasin possession of the property, again as a life-estate holder, till her death on 25/03/1950. Though no claim was made by the plaintiff to succeed toCharanji Lal as his sister's son) and though his claim was to succeed to theproperty of Kirpa Ram as the latter's daughter's son) the Trial court held661that on the findings that Gharanji Lal was the last male holder, the claim ofthe plaintiff had really to be decided on the basis of the Act under which theplaintiff, as the sister's son of Charanji Lal, has got a preferential claim.The contention of the defendant that the Act did not apply inasmuch asCharanji Lal had died long before the date when the Act came into force( 21/02/1929), was not accepted and the court took the view thatsuccession opened in favour of the plaintiff only after the death of Maya Deviin 1950. In this view the Trial court held that the plaintiff, being the sister'sson of the last male holder (Charanji Lal) was to be preferred to the defendantwho was only a paternal uncle of Charanji Lal and as such, decreed the suit.;