- (1.) THIS is a plaintiff's first appeal from the judgment and decree by the Senior Civil Judge, Ganganagar dated 3-2-1967 by which he dismissed the plaintiff's suit for possession of a piece of agricultural land, situated in Chak No. II-K in District Ganganagar by preemption.
(2.) THE land in question measuring 361 Bighas and 14 Biswas was sold in different lots by defendant No. 1, Shrimati Roopa to defendants No. 2 to 5 for a consideration of Rs. 35,000/ -. THE plaintiff Smt. Chanda's case is that she and defendant No. 1 Smt. Roopa are the co-widows of the deceased Lakhuram who died on Migsar Bad 4, S. 2013 leaving behind 75 Bighas of land. It was alleged that the sale of land in question had been effected as a matter of fact for Rs. 10,000/- only and Rs. 35,000/- were shown as fictitious price in the sale deeds. It was further pleaded that since the death of Lakhu Ram took place after the coming into force of the Hindu Succession Act, 1956 (which for the sake of brevity will be hereinafter referred to as 'the Act') she was entitled to get possession of the land in question from the defendants Nos. 2 to 5 on payment of Rs. 10,000/- only. The suit was resisted by the defendant No. 1 as well as the other defendants who are vendees on a number of grounds the chief of which are that Lakhuram had died before the coming into force of the Act i. e. some time in Smt. 2012. They also alleged that after the death of Lakhuram both the widows namely Smt. Chanda and Smt. Roopa divided the land belonging to Lakhuram and each of them got in her share equal land measuring about 37-1/2 Bighas. It was further pleaded that the sale consideration mentioned in the sale deeds amounting to Rs. 35,000/- represented the correct price paid by the vendees. Lastly the defendants resisted the plaintiff's suit on the ground that sec. 22 of the Act had no application to the present case inasmuch as the property in question had devolved upon the two co-widows before the commencement of the Act. After discussing the evidence led by both the parties on the various issues, the learned Senior Civil Judge found that the plaintiff had failed to prove that Lakhu Ram had died on Migsar Bad 4, S. 2013 before the coming into force of the Hindu Succession Act. On the other hand, according to the learned Judge, the defendants had succeeded in proving that Lakhuram had died in Kartik S. 2012 corresponding to November 1955 before the coming into force of the Act. As to the interpretation of sec. 22 of the learned Judge came to the conclusion that sec. 22 had no application to devolution of property which had taken place before the commencement of the Act. Besides the aforesaid findings the learned lower court also found that partition between the two co-widows with respect to the land in question had taken place shortly after the death of Lakhuram before the commencement of the Act. As a result of the aforesaid findings the learned Senior Civil Judge dismissed the plaintiff's suit. Learned counsel for the appellant has argued two points before us. He has contended in the first instance that sec. 22 is retrospective and will apply also to those cases where devolution of property had taken place before the coming into force of the Act. In order to [fortify his submission he has sought assistance from Sec. 14. In order to appreciate the contention of the learned counsel we may reproduce the relevant portion of sec. 22 of the Act - Sec. 22 Preferential right to acquire property in certain cases - (1) Where, after the commenment of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class 1 of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. "
(3.) IN our opinion, the words of sec. 22 (1) are crystal clear and show that the section is intended to be prospective and has no retrospective operation. The use of the words 'after the commencement of this Act' is highly suggestive and shows that the section applies only where succession has opened after the coming into force of the Act. The date of the devolution is material and in order that the section may apply, the devolution must take place after the commencement of the Act and that would happen only where a person dies after the Act came into force. Reference may be made to Gulab Chand vs. Sheo Charan Lall (1), wherein it was observed that there cannot be any manner of doubt that the provisions of sec. 22 are prospective and cannot be taken advantage of by the widows or persons who died before the commencement of this Act. The conclusion to which we have come also clearly flows when we compare the language of this section with that of sec. 26 of the Act where the words used are 'whether before or after the commencement of this Act'. This clearly shows that wherever the Legislature wanted to make a particular provision retrospective, it has used the words 'before or after the commencement of this Act' as contra-distinguished from the words 'after the commencement of the Act'. The position would become further clear from the language of sec. 14 of the Act where the expression used is "whether acquired before or after the commencement of this Act". We have, therefore, no doubt in our minds that the provisions of sec. 22 (1) are only prospective and the advantage of the same cannot be availed of when devolution of the property had taken place before the commencement of the Act. The argument that under sec. 14 any property possessed by a female Hindu whether acquired before or after the commencement of this Act has been declared to be her absolute property does not at all advance the case of the plaintiff in any manner. Sec. 14 only deals with the enlargement of the rights of a Hindu woman in the property by abolition of what was known under the Hindu Law before the Act as 'widows estate' or 'limited estate'. The main objective behind enacting Sec. 14 was to convert into full ownership the property of a Hindu woman whether acquired by her before or after the commencement of this Act. We fail to understand how this provision has any impact on the provisions of sec. 22 (1) of the Act. It is true that what was a limited right vested in the widow before the comenment of the Act became an absolute right nevertheless devolution of the property on the widow must be held to have taken place as soon as her husband died. We are, therefore, unable to accept the contention of the learned counsel that the preferential right provided under sec. 22 of the Act would be available even though the devolution of the property may have taken place before the commencement of the Act. In this view of the matter the next important question for our consideration is as to the date of Lakhuram's death ? Learned counsel for the appellant has strenuously urged that the plaintiff has succeeded in proving that Lakhuram's death took place on Migsar Bad 4, sec. 2013 equivalent to 21-11-1956, i. e. after the commencement of the Hindu Succession Act, i. e. 17-6-1956. ;