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TMI Blog1978 (4) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... 1936. On Punjya s ,death, the holding devolved on Punjya s 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. The plaintiff-respondent, Smt. 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 of the Hindu Succession Act, 1956, whereas the defendants claim as sapindas of the last male holder under Mitakshra Law. It is 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 claimed ₹ 180/- as damages for the crop removed by the defendants. The defendants 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of 1965 decided on April 20,1968. (2) A.I.R. 1974 M.P. 141 (F.B.). (3) A.I.R. 1959 Bom. 78. Section 151 of the Code. Therefore, devolution of the agricultural holding left behind by the deceased tenureholder 9 will be governed by Section 151 of the Code and not by anything provided in the Act. (iii) The expression Personal Law in Section 151 of the Code means the Hindu law which was in force before the enactment of the Act, when the Code was enacted on February 5, 1955, because the words any law for the time being in force in sub-section (2) of Section 4 of the Act cannot be construed to mean any law which came into force subsequently. (iv) In view of no. (iii), under Mitakshra Law (Sans the Act) the respondent being the daughter of the sister of the last male-holder, will be excluded from succession by the appellants, who are agnates of the husband of Smt. Sarji, deceased. (v) Even if the Act applies, the expression heirs of the husband in Section 15, means heirs in accordance with the general Hindu law in force when the husband died, and not the heirs ascertained under Section 8 by fictionally postponing Punjya s death of 6th November, 1956, when Smt. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts and partition of Bhumiswami and Bhumidhari holdings when there are more than one, tenure holder. Tenancy rights are not dealt with in this Chapter, but separately in Chapter XIV Sections 168 and 172 in Chapter XIV deal with the devolution of rights of an ordinary tenant and an occupancy tenant. Those rights also pass on the death of a tenant in accordance with the personal law of the deceased. Section 151, which is in Chapter XII, runs thus : Subject to his personal law, the interest of a tenure holder shall on his death pass by inheritance, survivorship or bequest, as the case may be. From the above conspectus, the following points emerge clear: (i) A tenure-holder and a tenant have been separately and distinctly defined in clauses (20) and (19) of Section 2 of the 1954 Code. A tenant according to the definition, holds land from a tenure-holder, but a tenure-holder holds land directly from the State. (ii) A Bhumiswami/Bhumidhari pays land revenue to the State and not rent. (iii)Tenancy rights and rights of Bhumiswami/Bhumidhari are dealt with in separate Chapters of the Code. Bhumiswamis/Bhumidharies have permanent heritable and transferable rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Sanghi-Hindu law as obtaining on February 5, 1955 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 died ? It is well known that a Legislature can legislate on a subject by referential incorporation, 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 as under 5. Marriage 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Indubai s case (ibid) and by the Madhya Pradesh High Court in Kumari Ramali s case (supra) and by Tare C.J. in Nahar Hirasingh s 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 under the Hindu Succession Act, 1956 ? The General 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 follows :- 15 (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16- (a) upon 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 sub-section (1),- (a).............................. (b) any property inherited by a female Hindu from her husband or from her father-in-law shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified 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; and Lastly, if there is no agnate, then upon the cognates of the deceased. Now, Smt. Gopikabai, Respondent 1 is admittedly the daughter of the sister of the last male holder, Punjya; whereas the appellants are his remote agnates. Neither party falls under Class I of the Schedule. Sister s daughter is Item 4 of Entry IV in Class II of the Schedule; while agnates do not figure anywhere in Class II. Thus, Smt. Gopikabai s 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 the defendants-agnates from inheritance even according to personal law which, within the contemplation of Section 151 of the Code, will include the Hindu Succession Act, 1956, in force at the time when Smt. Sarji died and succession opened out. In the result, we affirm t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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