Case: Bajaya Vs. Gopikabai and Anr

This appealing directed against a judgment of the, High Court of Madhya Pradesh.The following is the genealogy of theDhondya Ghusya(wife Jhuli)ShiobaTurji(last Male (Wd/o Janaji)HolderSonu Bhajya(Deft. No. 2) (Deft No. 1) =Smt. SarjiGopikabai(Wife of MukundraoPltff.. Gopikabai wife of Mukundrao, shown in the abovefiled a suit in the Court of the Civil Judge, Multai, against theBhajya, and Sonu, respondent 2, for possession of Bhumiswami rights in the land comprised in Khasra Nos.31 and 166 in the area of Village Kuthkhedi, Tehsil Multai, District Betul, Madhyasuit land originally belong ed to Ghusya son of Dewaji. Ghusya died before the Settlement of 1918 and thereafter, this land was held by his son, Punjya, who died in the year 1936. On Punjyas , death, the holding devolved on Punjyas widow, Smt. Sarji Smt. Sarji died on November 6, 1956, and thereupon this dispute about the inheritance to the land left behind by Smt. Sarji, has arisen between the parties. Both the parties claim on the basis of Hindu Law. TheSmt. Gopikabai, claims that she being the daughter of Smt. Turji, a sister of the last male holder, Punjya, is an heir under Section 15 read with Section 2 (II) (4) (iv) of the Schedule referred to in Section 8 ofthe Hindu Succession Act, 1956, whereas the defendants claim as sapindas of the last male holder under Mitakshrais alleged by the plaintiff that Bhajya and Sonu, defendants, took forcible possession of the suit land after the death of Smt. Sarji.Apart from possession, the Plaintiff cl aimed Rs. 180/as damages for the crop removed by thedefendants case, as laid in the, written statement, was that the suit property being an agricultural holding , in view of Section 4(2) of the Hindu Succession Act, the inheritance to the estate of Smt. Sarji who died on November 6, 1956, will not be governed by the provisions of that Act, but by Mitakshra School of Hindu Law, according to which the defendants are entitled to suit land to the exclusion of the last male holders sisters daughter, the plaintiff.The trial court decreed Smt. Gopikabais claim. On appeal, the Additional District Judge set aside the decree of the trial court and dismissed the respondentssecond appeal by the plain tiff, the High Court following its earlier decision in Kumari Ramlali v. Mst. Bhagunti Bai(L.P.A. 6 of 1965 decided on April 20, 1968.)Bhumiswami and Bhumidhari rights are not tenancy rights and Section 151 of the Madhya Pradesh Land Revenue Code, 1954, which deals with the devolution of interest of a Bhumiswami or a Bhumidharicannot be regarded as a provision dealing with the devolution of tenancy rights. Section 4(2) ofthe Hindu Succession Act, 1956, in no way saves Section 151 of the Madhya Pradesh Land Revenue Code and it cannot be held that Section 14 of the Hindu Succession Act does not affect the personal law according to which the devolution of the interest of apasses under Section 151 of the CodeHigh Court further held that the expression "heirs of the husband" in Section 15(1) (b), as also in Section 15 (2) (b), refers to the heirs of the deceased husband, who would have succeeded under the provisions ofthe Hindu Succession Act, 1956, if the husband had died on the date on which the female intestate actually died. On these premises, the High Court held that the plaintiff, Smt. Gopikabai, falls within clause (b) of Section 8, and, as such, is entitled to succeed in preference to the defendantagnates coming under clause (c) of that Section. In the result, the plaintiffs appeal was allowed and the decree of the trial court was restored.Hence, this appeal by special leave.

Reasoning:
There is a conflict of judicial opinion as to whether Chapter XII in general and Section 151 in particular, is a law "for the devolution of tenancy rights in respect of agricultural holdings" within the saving clause in Section 4(2) ofthe Hindu Succession Act, 1956.A Division Bench of the Bombay High Court (at Nagpur) in Smt. Indubai v. Vyankati Vithoba Sawadha &Ors.(A.I.R. 1966 Bom. 64  .), held that the aforesaid provisions in the 1954 Code ate not such a law and the exception made in section 4(2) of the Act, cannot apply toview of the distinctive features of the rights of aa Division Bench of the Madhya Pradesh High Court, also, in Kumari Ramlali v. Mst. Bhagunti Bai &Ors.(A.I.R. 1968 M. P. 247.), took the same view, and held that Section 151 of the Code, which deals with devolution of the interest of a Bhumiswami or Bhumidhariis not a provision dealing with devolution of tenancy rights within the contemplation of Section 4(2) of theFull Bench of the Madhya Pradesh High Court in Nahar Hirasingh &Ors. v. Mst. Dukalhin &Ors.(A.I.R. 1974 M.P. 141), by a majority of two against one, however,on this point, the decision in Kumari Ramlali v. Mst. Bhagunti (ibid) and dissented from the Bombay view. But the Full Bench was not concerned with the interpretation of section 151 of the 1954 Code. The provision, the interpretation of which was in question before, the Full as Section 164 of the Madhya Pradesh Land Revenue Code 1959 as it stood before its amendment in 1961. Whereas Section 151 of the 1954 Code, in terms, provided that personal law would be applicable in the matter of do devolution of the interest of a tenure holder (i.e. Bhumiswami and Bhumidhari), Section 164 of the, Code of 1959 (which had repealed and replaced the Code of 1954), as it stood at the material time, commenced not only with aclause militating against the application of personal law, but also provided its own list of heirs and order of succession, which was different from that laid down in the, Hindu Succession Act, 1956.Be that as it may, for the purpose of deciding the case before us, it is not necessary to pronounce one way or the other, on the question whether Section 151 of the 1954 Code is a law for devolution of tenancy rights in agricultural holdings, because even on the assumption that it is such a law, Section 151 of the 1954 Code, itself, in terms, makes personal law applicable in the matter of the devolution of the interest of a deceased tenure holder. Well then, does the expression "personal law" mentioned in Section 151, in the case of Hindus, means is contended by Mr.law as obtaining on February 5, 19 55 when the 1954 Code came into force? Or, does it mean Hindu law, as amended by the Hindu Succession Act, prevailing on November 6, 1956, when Smt. Sarji diedis well known that a Legislature can legislate on a subject by referential in corporation, if that subject is constitutionally within its legislative competence. Section 151 is an instance of legislation by such method. The State Legislature enacted the 1954 Code in exercise of its power under Entry 5, in the Concurrent List ( i.e. List III), which reads asMarriage and divorce; infants and minors; adoption; wills, intestacy and succession; Joint family and partition; all matters in respect of which parties in Judicial proceedings were immediately before the commencement of ibis Constitution subject to their personal1954 Code had also received the assent of the President under Article 254(2) of thequestions posed above turn on an interpretation of the language of &on 151. Mere are no words in that Section or elsewhere on the Code, which limit the scope of the expression "personal law" to that prevailing on February 5, 1955. On the contrary, the words " on his death" used in Section 151, clearly show that the legislative intent was that personal law as amended upto the date on which the revolution of the tenure holders interest is to be determined, shall be the rule of decision.Broadly speaking, legislation by referential incorporation falls in two categories: First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former the subsequent amendments made in the referred statute can not automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by generalin accordance with the above principle, the expression law" referred to in Section 151 of the Code, comprehends the Hindu Succession Act 1956, which will undoubtedly govern the inheritance to the estate of Smt. Sarji who died on November 6, 1956, much after the coming into force of that Act. If we can say so with due deference, the view taken on this point by the Bombay High Court in Smt. Indubais case (ibid) and by the Madhya Pradesh High Court in Kumari Ramalis case (supra) and by Tare C.J. in Nahar Hirasinghs case (ibid) is correct.The further question to be considered is which of the parties is entitled to succeed to the interest of Smt. Sarji deceased underthe Hindu Succession Act, 1956General Rules of succession in the case of a female Hindu dying intestate are given in Section 15 of the Act, which so far as it is material for the purpose, reads as(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Sectionupon the sons and daughters (including the children of any predeceased son or daughter) and the husband;(b) upon the heirs of the husband;(c) to (e)(2) Notwithstanding anything contained in. ............(b) any property inherited by a female Hindu from her husband or from hershall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in(1) in the order specified therein, but upon the heirs of theSection should be read along with the Rules set out in Section 16, the material part of which runs asorder of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules,The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of(1) and in(2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the fathers or the husbands as the case may be, and such person had died intestate in respect thereof immediately after the intestates death." (Emphasis supplied)The instant case will fall under clause (b),(2) of Section 15, because Smt. Sarji died issueless and intestate. The interest in the suit property was inherited by her from her husband. The suit land will, therefore, under clause (b), go to the heirs of her husband,are however of opinion that once it is found that the case falls under Section 15 (2) (b), the fiction envisaged in Rule 3 of Section 16 is attracted, according to which, for the purpose of ascertaining the order of devolution, it is to be deemed as if the husband had died intestate immediately after the female intestates death. Bearing this fiction in mind we have then to go to the Schedule under Section 8 of the Act to find out as to who would be the heirs of Smt. Sarjis husband on the date of her death. Section 8 of the Act provides that the property of a male Hindu dying intestate shall devolve according to the provisions of thisFirstly, upon the heirs, being the relatives specified in Class 1 of the Schedule;(b) Secondly, if there is no heir of Class 1, then upon the heirs, being the relatives specified in Class II of the Schedule; (c) Thirdly, if there is no heir of any of the two classes*, then upon the agnates of the deceased; andLastly, if there is no agnate, then upon the cognates of theSmt. Gopikabai, Respondent 1 is admittedly the daughter of the sister of the last male holder, Punjya; whereas the appellants are his remote agnates. N either party falls under Class I of the Schedule. Sisters daughter is Item 4 of Entry IV in Class II of the Schedule; while agnates do not figure anywhere in Class II. Thus, Smt. Gopikabais case will come in clause (b) Secondly, of Section 8 and, as such, she will be a preferential heir of the husband of Smt. Sarji, if he bad died the moment after her death on November 6, 1956. In this view, she would exclude thefrom inheritance even according to personal law which, within the contemplation of Section 151 of the Code, will includethe Hindu Succession Act,in force at the time when Smt. Sarji died and succession opened out.