KUMARASWAMI GOUNDER AND ORS. Vs. D.R. NANJAPPA GOUNDER AND ORS.

JUDGEMENT

(1.) This reference comes before us, because of the conflict of opinion on the question, whether Sec. 8 of the Hindu Succession Act, 1956, is applicable to a case where a husband died intestate before the Act came into force and his widow inherited his properties, but was not possessed of those properties and died subsequent to the commencement of the Act. One of us was a party to the reference. Since then has come Daya Singh v/s. Dhan Kaur : A.I.R. 1974 S.C. 665, which, in almost similar circumstances and after dealing with the conflict of opinion of some of the High Courts, answered the question in the affirmative.

(2.) Were the question res Integra, it would have been open to debate and doubt as to whether Sec. 8 was intended to cover reversionary succession as in the instant case. The Act was, no doubt, intended to amend and codify the law regarding intestate succession. The intention of the Act was to cover, as far as possible, the entire filed. That was why Sec. 4 gave the Act over -riding effect. Yet, it visualises that any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act would still have force, if for any matter provision was not made in the Act and also any other law not inconsistent with any of the provisions in the Act, may continue to have force. Chapter II of the Act deals with intestate succession, first, in respect of an interest of a coparcener in coparcenary property and then with devolution of interest in coparcenary property and in the property of a Tarwad, Tavashi, Kutumbal Kavara or Illom. We have then Sec. 8 providing for general rules of succession in the case of males. It abolishes at one stroke the scheme of succession under the Hindu law and provides for devolution of the property of a male Hindu dying intestate, as provided therein read with the Schedule. This course was designed to give effect to the popular desire to prefer the closer relatives of the deceased such as those mentioned in Class I and Class II of the Schedule. Having provided for such a devolution of the property of a male Hindu dying intestate, rules also have been prescribed by the next five Ss. relating to the order of succession among the heirs in the Schedule, distribution of property among heirs of Class I and Class II, the order of succession among agnates or cognates and computation of degrees. Sec. 14 deals with property of a female Hindu. Any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The Explanation to Sub -section (1) is to the effect that for purposes of the sub -section, property includes both movable and immovable property acquired by a female Hindu by inheritance, etc. Sub -section (2) of Sec. 14 provides for certain exception to the rule of enlarging what was a limited estate of a female Hindu into a full and absolute estate. Consistent with the effect of Sec. 14, the next Sec. provides for a drastically new rule of devolution of property of female Hindu dying intestate. But is this sweeping change in the scheme of succession only confined to limited property converted into absolute one in the hands of a woman? What is the effect in this context of the Explanation to Sec. 8(1) on that matter vis a vis Sec. 14? The order of succession and the manner of distribution among the heirs of a female Hindu are then provided for by Sec. 16 and special provisions respecting persons governed by Marumakkattayam and Aliyasathanam also have been made in Sec. 17. Then follow certain, general provisions relating to succession as to the preference between full Wood and half blood and mode of succession of two or more heirs, who will take the property as tenants in common and not as joint tenants. The child in the womb is also taken care of. Sec. 20 provides that the child in the womb at the time of the death of an intestate, who is subsequently born alive shall have the same right to inherit the intestate as if he, or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate. Rules of presumption in cases of simultaneous deaths and preferential right to acquire property in certain cases, special provisions respecting dwelling houses, rules of succession, where certain widows remarry and disqualifications for a murderer and convert's descendants have been made. Finally, provision is made for devolution where there is failure of heirs. Chapter III deals with testamentary succession. That sums up the scheme of the Act. This brief survey indicates that the Act is intended to be a complete Code governing succession to a Hindu male or female dying intestate.

(3.) The expression a male Hindu dying intestate had received judicial interpretation and, as held by the Privy Council with reference to the Hindu law of inheritance Amendment Act, 1929, it only referred to the status of the person dying and it had no effect upon the time of death so that the expression would be apt to apply to a Hindu dying intestate before, or after that Act. If that be so, Sec. 8 would have applied itself when is the instant case the husband died, before the Hindu Succession Act, 1956. Does not Sec. 8 have reference only to his physical death? Can it be said that, in spite of it, by reason of the succession opening by the death of the widow after the Act came into force and of the rule of Hindu law that the particular reversioners entitled to succeed to the estate must be ascertained as on the date of her death as, if her husband also had died on the same date, Sec. 8 would have a further application? The question assumes a little more importance because of the Explanation to Sub -section (1) of Sec. 14. It says that for purpose of that sub -section property includes both movable and immovable property acquired by a female Hindu by inheritance. It is true that Sec. 14 would enable the limited estate to be enlarged only, if the widow was possessed of such property. But if &he had already inherited and the property is hers, though not enlarged into a full estate, what will be the effect of suck inheritance on the scope of Sec. 8? On this aspect extensive argument has been addressed to us.