- (1.) THIS is a reference from the Division Bench constituted by Sarvshri M. U. Menon Chairman and Z. S. Jhala, Member dated 17. 12. 1963 for the opinion of the larger Bench. The necessity to make this reference arose in the above case, the facts of which are briefly stated as under : Navneetlal Purohit a holder of Chakrana muafi in the former State of Mewar died on 29. 6. 50. THIS Chakrana muafi was resumed under the Jagir Act on 23. 8. 1954. The deceased muafidar was survived by the two widows Mst. Chakarbai and Kesarbai and they applied for the mutation of their name in place of the deceased holder before the Collector concerned and the same was sanctioned on 11. 5. 57. As a result of the resumption of muafi, the two widows claimed compensation for the resumed muafi. In the proceedings that arose before the Deputy Collector Jagir, one Amarlal claiming himself to be reversioner of the deceased filed an objection u/s 37 of the Rajasthan Jagir Act, 1952 alleging that under the Kanun Mal Mewar the widows could not succeed to the Jagir and that he was the rightful heir and the compensation be paid to him. The Deputy Collector, Jagir who tried the compensation application came to the conclusion that the Hindu Succession Act, 1956 applied to the case and the widows were entitled to the payment of compensation and consequently rejected the objection petition of Amarlal. Aggrieved by that order Amarlal filed an appeal before the Board of Revenue and during the pendency of the appeal he died and his elder son Bhopal Lal, the present appellant was substituted as his legal representative and his other brother was cited as a respondent. THIS case came up before the Division Bench constituted as referred to above and the point arose whether the succession to the Chakrana muafi held by Navneetlal Purohit should be governed by the provisions of the Hindu Succession Act or by sec. 137 of the Rajasthan Land Revenue Act. Considering this important question of law, the learned Members thought fit to refer the matter to the Full Bench for authoritative pronouncement. They consequently framed the reference as under:' "whether succession to a Jagirdar would be governed by the provisions of the Hindu Succession Act or by sec. 137 of the Rajasthan Land Revenue Act under which the local law applicable would govern succession and particularly whether in the case of female Hindu irrespective of the provisions in the local law the provisions of the Hindu Succession Act, 1955 will apply although the succession would take effect from before the resumption of the Jagir. "
(2.) AT the outset we examined the scope of the reference, which in our opinion was considered to have been not properly framed. We very much wanted to return the reference to the Division Bench for reframing, but in view of the fact that an important question of law was involved and it required an early pronouncement by the larger Bench it was considered desirable to reframe the reference and to answer it accordingly. According to the facts stated it was clear that Navneetlal Purohit the holder of the Chakrana muafi died on 29. 6. 50. Thus the succession to the Chakrana muafi opened on that date when the Hindu Succession Act, 1956 had not come into force. It was evident that the provisions of sec. 137 of the Rajasthan Land Revenue Act applied to the case, because when the succession opened the law prevailing on that date was not the Hindu Succession Act, but the local law, as laid down in Kavayad Muafi Riyasat Mewar Smt. 2001. In accordance with the provisions contained in sec. 137 which lays down that "succession to an estate shall be governed and regulated by and be determined in accordance with the law, usage or practice of the local area in which such estate lies, and such law, usage or practice shall, notwithstanding the provisions of sec. 263, continue for the purpose aforesaid. " Thus there hardly arose any case which required the consideration before this larger Bench, whether which law should prevail, the Hindu Succession Act or the local law as applied by sec. 137 of the Rajasthan Land Revenue Act, 1950 governing succession to estates. At this stage the counsel for the respondent Shri N. S. Chordia in the first instance disputed the fact that the muafi held by Navneetlal was not chakrana but Punyarth and he also prayed that the reference be reframed by which this larger Bench could consider the scope of the retrospective application of sec. 14 of the Hindu Succession Act, 1956. On the first question the counsel for the appellant Shri S. L. Dashora strongly opposed the changing of facts of the case at the present stage, specially when no objection was raised by the counsel for the respondent earlier. He urged that all along the present proceedings the facts were never disputed. There are no grounds to hold as urged by the counsel for the respondent, that the muafi was Punyarth and not Chakrana. In view of the fact that the nature of the grant was never questioned before and it has all along been held to be chakrana as urged by the counsel for the appellant Shri S. L. Dashora, we accordingly refused to change the facts of the case at the stage and hold that the nature of the muafi grant would remain Chakrana for the disposal of this reference. As regards the application of sec. 14 of the Hindu Succession Act retrospectively it is clear that as the facts of the case are stated the application of Hindu Succession Act could be made to the present case only if this Bench comes to the conclusion that sec. 14 has retrospective effect and that the case of the two widows is covered by the application of sec. 14 of the Hindu Succession Act. Accordingly for the disposal of this reference we reframe the reference as under: "in view of the facts and circumstances of the case whether succession to the estate of Navneetlal Purohit deceased, who died on 29-6. 50 prior to the enforcement of the Hindu Succession Act which came into force on the 17th June, 1956, the succession to his estate would be governed by the provisions contained in Kawayad Muafi Riyasat Mewar Smt. 2001. " The counsel for the respondent Shri N. S. Chordia's only contention was that succession to the estate of Navneetlal Purohit would not be governed by the local law of former Mewar State, but by the provisions contained in sec. 14 of the Hindu Succession Act, 1956, as applied retrospectively. The reply given by the counsel for the appellant Shri S. L. Dashora and by Shri P. D. Kudal appearing on behalf of the Government, was that sec. 14 of the Hindu Succession Act although has retrospective effect would not apply" to this case, and the succession to the estate of the deceased would be governed by the local Mewar law, for the simple reason that the two widows as respondents had neither acquired any right on the death of the Muafidar nor were they in possession of the property. Before we could answer the question which law should apply to the present case it is necessary to determine the nature of the estate and the law applicable to it. It is clear from the record that Navneetlal Purohit was the holder of a Muafi Chakrana in the former State of Mewar. No doubt the estate of the deceased was a "property" within the meaning of sec. 14 of the Hindu Succession Act, 1956 and a female Hindu was entitled to claim even before the commencement of this Act the ownership of the property provided she acquired that property and came into possession of the same. Sec. 14 of the Hindu Succession Act runs as follows: Property of a "14. Famale Hindu to be her absolute property. (1) Any property possessed by a famale Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. " Explanation - In this sub-section, "property" includes both movable and immovable property acquired by a famale Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by commencement of this Act. " As far as the retrospective application of sec. 14 of the Act is concerned there is no difference of opinion between the counsel appearing before us. They all agree that sec. 14 has retrospective effect. The rulings cited before us on both sides also lay down the same law. We are convinced that sec. 14 applies retrospectively to all those cases where a female Hindu had acquired any property and remained in possession when the Hindu Succession Act came into force, in that case only her limited ownership would be converted into full ownership. The question that required our examination is that property was acquired by the two Hindu widows, the two respondents Mst. Chakrabai and Kesarbai as widows of Navneet Lal Purohit in this case. Admittedly Navneetlal Purohit as the holder of Chakrana muafi died on 29. 6. 50. The succession to his estate opened immediately on his death. There is no dispute between the parties which law of succession governed this case of Chakrana muafi. The succession was then governed by the rules provided in Kawayad Muafi Riyasat Mewar Smt. 2001 which has been made applicable to all the estates under sec. 137 of the Rajasthan Land Revenue Act. It may well be presumed, that these two widows in the absence of a male heir of Navneetlal Purohit remained in possession of the estate, but the question requires to be determined is what interest the two widows acquired or what rights got vested in them on the death of the deceased Navneetlal Purohit. The Kawayad Muafi Riyasat Mewar Smt. 2001, Rule 6 lays down the mode of succession to a Chakrana muafi. It says that on the death of a holder of Chakarana muafi, his male issue would be a preferential successor. The second preference would go to an adopted son provided he came from the family of the Moorisala, to whom the muafi was granted and the adoption was sanctioned by the competent authority. In the third instance and in the absence of the two above the muafi would devolve to the nearest heir. The widows are no where mentioned to succeed to the muafi estate. The provision contained in rule 5 of succession of Punyarth muafi however recognises widows right to the possession and enjoyment of the muafi for their life time. This provision of Punyarth muafi does not find place in the devolution of Chakarana muafies. The very fact as the name Chakrana implies which means service, females had no place, in the grant and succession to such kinds of muafis as they were not expected to render any service. Thus the widows in the present muafi were neither entitled to any possession and enjoyment of the grant nor were they entitled to succeed in any form. Therefore, their presumptive possession even though actual was without lawful authority. The Kawayad Muafi Riyasat Mewar rightly omitted widows rights to possession and succession. The grant did not devolve on them. In the absence of the nearest heir there being no real son nor any one adopted the grant escheated to the State. It is a settled law, that free from any controversy succession to a property opens at the time of the death of the last holder, and it devolves in accordance with the provisions contained in the governing law. It is not disputed that the Kawayad Muafi Riyasat Mewar Smt. 2001 did not govern the law of succession to muafies. Therefore the two widows acquired no property or title in the chakrana muafi on the death of Navneetlal Purohit although they may have been in possession of the same. There is nothing on record to show that the possession of the widows over the muafi land was, in respect of some right, say even of maintenance. It was argued by Shri N. S. Chordia, the counsel for the respondent that after the enforcement of the Constitution the State Law of succession became void to the extent of its repugnancy to the law made in the Parliament subsequently. He cited two rulings R. R. D. 1959 p. 56 and R. R. D. 1958 p. 215, in support of his contention. The ruling Prem Singh vs. Mohan Singh reported in R. R. D. 1958 p. 215 has no application here. In that ruling the death of the estate-holder took place in 1953 and therein the scope of sec. 38 of the Jagir Act was only examined and the application of Hindu Succession Act was not at all considered. In Narola vs. Mayadevi reported in R. R. D. 1959 p. 57 it was held, that because the biswedar died on 18. 9. 1956 after the promulgation of the Hindu Succession Act, the biswedari estate would devolve according to the provisions contained in the Hindu Succession Act and not according to the Bharatpur Code where female heirs were not allowed to succeed. This decision was taken on the ground that the State legislation as far as succession was concerned was repugnant to the law enacted by the Parliament and according to the provisions of Art. 254 of the Constitution the law of the Parliament promulgated prevailed. The facts of that case do not apply to the present one to the case of Narola vs. Mayadevi, the biswedari estate devolved after the Hindu Succession Act came into force and that being the law of the Parliament, the female had acquired the property as an heir. The facts of this case are clearly distinguishable from the present one. The other ruling cited by the learned counsel for the respondent is Bhairulal vs. Ramgopal reported in R. L. W. 1959 p. 941, where a widow was allowed to claim full ownership of the property as against the reversioner because she had already acquired a limited estate according to the law in force. Thus the facts of this ruling also do not apply to the present one. The counsel for the appellant cited in support of his reply two rulings Krishna Dasi versus Akhilshab A. I. R. 1958 Calcutta page 671 in which case a widow under a preliminary decree for partition by the Court was given some property for a life. This limited interest was allowed to be converted under the provisions of the Hindu Sucession Act into full ownership as against the others. Similarly, in Mohari vs. Mst. Chukli reported in R. L. W. 1960 page 95, it was held that before Sec. 14 of the Hindu Succession Act could confer full ownership on a female Hindu, it must be shown that she was in possessive ownership of the property under the law and that she was in actual possession of the property as owner or was entitled to possession of the same. The counsel for the appellant therefore urged that in this case the two widows did not acquire any right in the property i. e. the estate of the deceased by the law governing at that time nor were they in possession of the same. It was also held as the counsel urged in the afore- said ruling that the mere right of residence of maintenance to a female Hindu does not help to acquire any right, unless some property was actually transferred in lieu thereof. In view of these circumstances, the counsel finally concluded by saying that the two widows were neither in possession of the property of the deceased nor did they acquire any interest in the property. We, have, therefore, carefully considered the arguments advanced on both sides and the rulings cited by the counsel on the facts of the present case. We are clearly of the opinion that although Sec. 14 of the Hindu Succession Act, 1956 is retrospective in operation, but that section is not at all applicable to the facts of the present case. Navneetlal Purohit was the last holder of the Chakarana muafi who died prior to the coming into force of the Hindu Succession Act and on his death the property in his muafi estate did not confer by inheritance or otherwise any rights on the two widows. Thus they acquired no property within the meaning of Sec. 14 in the estate of Navneetlal Purohit and their continuance in mere possession of the estate does not help them by operation of law u/s 14 of the Hindu Succession Act, to confer full ownership on the widows. There is nothing on record to show that the widows held the possession of the estate by way of their right of maintenance. If that was so, some case could have been made out in favour of the two widows that they were entitled to maintenance according to the law of succession to these muafi as provided in Kawayad Muafi Riyasat Mewar Smt. 2001. But no such proposition was put before us. In fact the law on the subject of maintenance to the widows on the death of the last land holder is completely silent. It can, therefore,, be concluded that even the right of maintenance to the widow was not provided for in the law governing succession at that time. The possession of the widows over the estate of the last holder in this chakarana muafi was, therefore, clearly unlawful and as such this position could not confer any title on the widows, much less they could acquire full ownership over the estate u/s 14 of the Hindu Succession Act. We, therefore, send this reference back to the Division Bench by stating that the succession to this estate of chakarana muafi would be governed by the Kawayad Muafi Riyasat Mewar Smt. 2001 as applied by Sec. 137 of the Rajasthan Land Revenue Act and that the provisions of Hindu Succession Act, 1956 would not apply. The Division Bench, may, on receipt of this reference dispose of the case accordingly. . ;