Appeal No 1825 of 1967
Appeal by special leave from the judgment and order dated the 18th May 1967 of the Punjab and Haryana High Court in LPA No 158 of 1967
Naunit Lal and Lalit Kohli for the appellant OP Verma for the respondent The Judgment of the Court was delivered by ALAGIRISWAMI J
The property in dispute in this appeal belonged to Wadhawa Singh the father of the respondent
After his death in the year 1933 his widow who succeeded to the estate made a gift of the property in favour of her daughter the respondent in
April 1933
The appellants filed a suit as reversioners to the estate of Wadhawa Singh questioning the gift
The suit was decreed and the decree was confirmed on appeal
After coming into force of the on 17 6 1956 the widow again made a gift of the same lands to the respondent
She died in 1963
The appellants then filed the suit out of which this appeal arises for possession of the lands alleging that the second gift was void
The Trial Court decreed their suit but on appeal the respondent succeeded in the first Appellate Court as well as the High Court on second appeal
There is no doubt that Wadhawa Singh s widow had no right to male a gift of the property which she inherited from her husband in 1933 and the decree obtained by the appellants who were reversioners to her husband s estate would bind the respondent who was also a party to that suit
The question then is whether the coming into force of the Hindu succession Act and the subsequent gift made by the widow in favour of the respondent make any difference
Had not the widow made the gift to the respondent in 1933 she would have become an absolute owner of the property as a result of section 14 of the and the gift made by her subsequently in favour of the respondent could not have been questioned
But having made the gift in 1933 she was not in possession of the property inherited by her from her husband and therefore did not become a full owner with the result that the subsequent gift made by her in favour of the respondent was of no effect
This point that unless the limited owner is in possession of the property section 14 does not apply has now been settled by decisions of this Court beyond dispute
What then is the effect of the provision of section 8 of the in the circumstances of this case The Punjab High Court in its decisions in Banso vs Charan Singh AIR 1961 Punjab 45 and Kuldip Singh vs Karnail Singh AIR 1961 Punjab 573 where the facts 530 were similar to the present case has taken the view that when a widow dies after the coming into force of the the next heir to her husband is to be determined in accordance with the law prevailing on the date of the death of the widow and not in accordance with the law prevailing at the time of the death of her husband and held that the daughter succeeded in preference to the reversioners
The Mysore High Court on the other hand in Kempiah vs Girigamma AIR has held that on the death of the widow succession would be governed by the Hindu Law which was in force when the last mate holder actually died
The Patna High Court in Renuka Bala vs Aswini Kumar AIR 1961 Patna 498 was disposed to take a similar view though the case before it was concerned with succession to the property of a female under s15
The Madras High Court in Sampathkumari vs Lakshmi Ammal AIR 1963 Madras 50 also took the view that in such circumstances section 8 of the would not apply
But the case before that Court was one where two widows who had succeeded to the estate of their husband were in possession and therefore section 14 was applicable
Lastly we have the decision of this Court in Eramma vs Verrupanna In that case this Court after setting out the provisions of section 6 of the observed It is clear from the express language of the section that it applies only to coparcenary property of the mate Hindu holder who dies after the commencement of the Act
It is manifest that the language of section 8 must be construed in the context of section 6 of the Act
We accordingly hold that the provisions of section 8 of the are not retrospective in operation and where a male Hindu died before the Act came into force ie where succession opened before the Act section 8 of the Act will have no application
 Interpreted literally this dicision would seem to accord with the decisions of all the other High Courts except the Punjab High Court
But it should be noticed that the problem that we are faced within the present appeal and in the cases before the Punjab and Mysore High Courts did not arise before this Court on the earlier occasion
The decisions of the Madras High Court and the Patna High Court are not directly in point
In the case before this Court the two women were in possession of property whose last male holder who had died before coming into force of the  was their step son
They were not therefore in legal possession of the properties of the last male holder
The question that had to be decided was whether because of the coming into force of the they were entitled to succeed under section 8 and the further question whether section 14 would be attracted as they were actually in possession
It was held that as they were not legally in possession s 14 would not apply It was in that context that it was said that where a male Hindu died before the Act came into force ie where succession opened before the section 8 of the Act will have no application The point that succession 531 might open not only when the male Hindu died but also subsequently again when a limited owner who succeeds him dies was not taken into account
There was no need and no occasion to consider such a contingency in that case
There was the further fact that the last male holder was succeeded on his death by persons who were then
his nearest heirs and the property vested in them could not be divested by the coming into force subsequently thought this fact was not adverted to in the judgment
This Court had therefore
also no occasion to consider the effect of the earlier decisions on the question as to what happens when a female limited owner whether she is a widow mother or daughter who succeeds the last male bolder dies
That position may now be considered
It was authoritatively laid down by the Privy Council in its decision in Moniram Kolita vs Keri Kaliteni ILR 5 Calcutta 776 at 789 that  According to the Hindu Law a widow who succeeds to the estate of her husband in default of male issue whether she succeeds by inheritance or survivorship as to which see the S hivagunga case 1 does not take a mere life estate in the property
The whole estate is for the time vested in her absolutely for some purposes though in some respects for only a qualified interest
Her estate is an anomalous one and has been compared to that of a tenant in tail
It would perhaps be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband
But whatever her estate is it is clear that until the termination of it it is impossible to say who are the persons who will be entitled to succeed as heirs of the husband 2
The succession does not open to the heirs of the husband until the termination of the widow s estate
Upon the termination of that estate the property descends to those who would have been the heirs at the husband if he had lived up to and died at the moment of her death 3
 In the subsequent decision in Duni
Chand vs Anar Kali AIR the Privy Council observed  during the lifetime of the widow the reversioners in Hindu Law have no vested interest in the estate but have a mere spes succession is or chance of succession which is a purely contingent right which may or may not accruethat the succession would not open out until the widow died and that the person who would be the next reversioner at that time would succeed to the estate and the alteration in the rule of the Hindu Law brought about by the Act would then be in full force
1 9 Moore s IA 604
2 Id 532 In the argument before their Lordships reliance was placed upon the words dying intestate in the Act as connoting the future tense but their Lordships agree with the view of the Lahore High Court in at p 367 that the words are a description of the status of the deceased and have no reference and are not intended to have any reference to the time of the death of a Hindu male
The expression merely m eans in the case of intestacy of a Hindu male
To place this interpretation on the Act is not to give a retrospective effect to its provisions the materials point of time being the date when the succession opens namely the death of the widow
On the position of reversioners in Hindu Law opinions have been expressed by this Board from time to time with which the views of the learned Chief Justice in 58 All
10412 mentioned above are in agreement
It was said for instance that until the termination of the widow s estate it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband 3 at p 604
The succession does not open to the heirs of the husband until the termination of the widow s estate
Upon its termination the property descends to those who would have been the heirs of the husband If he had lived uP to and died at the moment of her death 7 I A 115 4 at 154
 It would be noticed that the Privy Council interpreted the words dying intestate as merely meaning in the case of intestacy of a Hindu male and said that to place this interpretation on the Act is not to give retrospective effect to its provisions
Those are the very words found in section 8
These may be contrasted with the words of section 6 where a male Hindu dies after the commencement of this Act
 Here the reference is clearly to the time of the death
In section 8 it is only to the fact of intestacy
The material point of time as pointed out by the Privy Council is the date when the succession opens namely the death of the widow
It is interesting to note that the Privy Council was interpreting the provisions of the Hindu Law of Inheritance Amendment Act 1929 where the two contrasting expressions found in the are not found  The case for the interpretation of the words dying intestate under the is stronger
The words where a male Hindu dies after the commencement of this Act in section 6 and their absence in section 8 are extremely significant
Thus two propositions follow 1 Succession opens on the death of the limited owner
and 2 the law then in force would govern the succession
Now if this proposition is correct as we hold it is that where a female heir succeeds to an estate the person entitled to succeed on the basis as if the last male holder had lived up to and died at the 1 Mt Rajpali Kunwer vs Surju Rai 58 All 1041
2 Shakuntala Devi vs Kambsalya Devi 3 Katam Natchiar vs Rajah of Shiva Gunga  4 Monirain Kolita vs Kerry Kolitang 7 IA 115 533 death of the limited owner succession to Wadhawa Singh s estate in the present case opened when his widow died and it would have to be decided on the basis that Wadhawa Singh had died in 1963 when his widow died
In that case the succession to his estate would have to be decided on the basis of s8 of the 
The various High Courts which have held otherwise seem to have been oppre ssed by the feeling that this amounted to giving retrospective effect to section 8 of the whereas it is only prospective
As the Privy Council pointed out it means no such thing
The accepted position under the Hindu Law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day
It would be unreasonable to hold that in such a circumstance the law as it existed at the time when the last male holder actually died should be given effect to
If the person who is likely to succeed at the time of the limited owner s death is not as happens very often likely to be the person who would have succeeded if the limited owner had not intervened there is nothing unreasonable in holding that the law as to the person who is entitled to succeed on the limited owner s death should be the law then in force and not the law in force at the time of the last full owner s death
The Madras High Court thought that the decision of the Privy Council in Duni Chand vs Anar Kali supra was based upon a legal fiction and that fiction cannot be given effect to except for a limited purpose
The Mysore High Court also thought that the death referred to in section is actual death and not fictional death
In East end Dwellings Co Ltd vs Finsbury Borough Council 132 lord Asquith of Bishopstone observed 
If you are bidden to treat an imaginary state of affairs as real you must surely unless prohibited from doing so also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it
One of those in this case is emancipation from the 1939 level of rents
The statute says that you must imagine a certain state of affairs it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs
This observation was cited with approval by this Court in Venkatachalam vs Bombay Dyeing  Mfg Co Ltd 1959 SCR 703 If therefore succession opens and is to be decided on the basis of the last full owner dying on the date of death of the limited owner the inevitable corollary is that it is only the law in force at the time of the death of the limited owner that should govern the case
To hold that the old Hindu Law applies to such a case is to allow your imagination to boggle
In the case decided by the Privy Council in Duni Chand vs Anar Kali supra if this principle had been applied the new heirs 534 introduced by the Hindu Law of inheritance Amendment Act 1929 could not have then come in
We are not impressed with the reasoning of the Patna High Court that because the change brought about by that Act is different from the change brought about by the a different conclusion follows
We should consider that if even the limited change in the area of succession effected by the Hindu Law of Inheritance Amendment Act 1929 is to be given effect to as the law applicable on the date of the death of the limited owner it is all the more reason why the which makes a much more radical change in the Hindu Law should have similar application
The Mysore High Court thought that the not being a mere declaratory Act retrospective effect should not be given to it so as to impair existing rights and obligations
But the reversioners  right being a mere spes succession is there is no question of impairing existing rights by adopting the interpretation we place on section 8 apart from the fact that as earlier pointed out the interpretation does not amount to giving retrospective effect to section 8
of course if the property had already vested in a person under the old Hindu Law it cannot be divested
We must also point out that the classes of cases where such a question is likely to arise is very limited
Where a widow mother or daughter was in possession of the estate on the coming into force of the she would become full owner under the provisions of the section 14 of the Act
Even if a widow was in possession of the share belonging to her in the joint family estate tinder the pro visions of the Hindu Women s Right to property Act 1937 she would become a full owner under section 14
In both those cases section 8 would have no operation
It is only in rare cases like the present that the question is likely to arise at all and we can see no reason either in principle or on authority why the principle consistently followed under the earlier Hindu Law that on the death of the limited owner succession opens and would be decided on the basis that the last male owner died on that day should not apply even after coming into force of the Hindu Succession Act Mr Naunit Lal appearing for the appellant argued that the result of the decision of this Court in Eramma vs Verrupanna supra is that on the death of Wadhawa Singh s widow it is the old Hindu Law that applied and therefore under the custom in force in Punjab under which a daughter was not entitled to succeed to the ancestral property of the father in preference to the reversioners should apply and the appellants are entitled to succeed
There is no doubt about the position under the Customary Law of Punjab before coming into force of the 
In Rattigan s Digest of the Customary Law  published by the University Book Agency 14th Ed paragraph 23 at age 132 it is stated  231 A daughter only succeeds to the ancestral landed property of her father if an agriculturist in default  1 Of the heirs mentioned in the preceding paragraph and 535 2 Of near male collaterals of her father provided that a married daughter sometimes excludes near male collaterals especially amongst Muhammadan tribes  a where she has married a near collateral descendant from the same common ancestor as her father or b where she has with her husband continuously lived with her father since her marriage looking after his domestic wants and assisting him in the management of his estate or c where being married to a collateral of the father s family she has been appointed by her father as his heir
2 But in regard to the acquired property of her fatherthe daughter is preferred to collaterals
 It is on the basis of this Customary Law that the reversioners succeeded in the suit filed by them questioning the gift made by the respondent s mother to her
There is no doubt that Rattigan s work is an authoritative one on the subject of Customary Law in Punjab This Court in Mahant Salig Ram vs Musammat Maya Devi at 1196 said  Customary rights of succession of daughters as against the collaterals of the father with reference to ancestral and non ancestral lands are stated in paragraph 23 if Rattigan s Digest of Customary Law
it is categorically stated in sub paragraph 2 of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the collaterals even though they are within the fourth degree
Rattigan s work has been accepted by the Privy Council as a book of unquestioned authority in the Punjab
Indeed the correctness of this paragraph was not disputed before this Court in Gopal Singh vs Ujagar Singhi 1
It is not now open to the respondent to show whether any of the circumstances mentioned in sub paragraph 2 of paragraph 23 of Rattigan s Digest of Customary Law is present here as the previous decision is resjudicata between the parties and in any case it has not been attempted to be shown in this case
But in the view we have taken that it is section 8 of the that applies and not the Customary Law the appellants cannot succeed in this appeal
In the result the appeal is dismissed
The appellants will pay the respondent s costs
section B W Appeal dismissed


Summary:
The respondent s father W who owned the suit property died in 1933
His widow who succeeded to the estate gifted the property to her daughter the respondent
The appellants filed a suit as reversioners of W questioning the gift
The it as decreed and the decree was confirmed on appeal
After coming into force of the on 17 6 1956 the widow again made a gift of the same lands to the respondent
She died in 1963
The appellants then filed the suit out of which this appeal arose for possession of the lands
alleging that the second gift was void
The trial court decreed their suit but on appeal the respondent succeeded in the first Appellate Court as well as in the High Court on second appeal
On appeal by special leave to this Court Dismissing the appeal HELD 1 Following the decisions of the Privy Council in Moniram Kolita vs Keri Kolitani ILR 5 Calcutta 776 at 789 and Duni Chand vs Anar Kali AIR 1946 PC 173 infra the words dying intestate in Sec
8 of the Act must be interpreted as merely meaning in the case of intestacy of a Hindu male and to place this interpretation on the Act is not to give retrospective effect to its provisions
The reference is only to the fact of intestacy
The material point of time is the date when the succession opens namely the death of the widow
Thus this propositions follow i Succession opens on the death of the limited owner and ii the law then in force would govern the succession
532D G Moniram Kolita vs Keri Kolitani ILR 5 Calcutta 776 789 and Duni Chand vs Anar Kali AIR 1946 PC 173 followed
Eramma vs Verritpatina  explained and distinguished
Banso vs Charan Singh AIR 1961 Punjab 45 and Kuldip Sing vs Karnail Singh AIR 1961 Punjab 573 approved
Kempiah vs Giriganima AIR  overruled
Renuka Bala vs Aswini Kumar AIR 1961 Patna 498 and Sam pathkumari N Lakshmi Ammal AIR 1963 Madras 50 distinguished
iiSuccession to W s estate in the present cage opened when his widow died and it would have to be decided on the basis that W died in 1963 when his widow died
in that case succession to his estate would have to be decided on the basis of section 8 of the 
The accepted position under the Hindu law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day
If therefore succession opens and is to be decided on the basis of the last full owner dying on the date of the death of the limited owner it is only the law in force at the time of the death of the limited owner that should govern the case
To hold that the old Hindu law applies to such a case is to allow your imagination to boggle
533 A C G H Eastend Dwellings Co Ltd vs Finsbury Borough Council  132 per Lord Acsquit and Venka tachalam vs Bombay Dyeing  Mfg Co Ltd   referred to
The reversioners  right being a mere spes successions there is no question of impairing existing rights by adopting the interpretation we place on section 8 apart from 529 the fact that it does not amount to giving retrospective operation to section 8
Of course if the property had already vested in a person under the old Hindu Law it cannot be divested
We can see no reason either in principle or on authority why the principle consistently followed under the earlier Hindu law that on the death of the limited owner succession opens and would be decided on the basis that the last male owner died on that day should not apply even after coming into force of the Act
In the view we have taken it is section 8 of the Act that applies and not the Customary Law534C DE F535G