Thukru Bai vs Attavar and Others

Madhavan Nair, J.—This Appeal arises out of an application u/s 372 of the Indian succession Act, XXXIX of 1925, made by the widow of

one Venkappa for the grant of a succession certificate to enable her to collect the amount of two deposits as regards which her husband died

intestate.

The widow is the appellant. She and her husband are members of the Billava community in South Kanara which follows the Aliyasanthanalaw of

inheritance according to which a widow has no right to the property of her deceased husband. They were originally married in 1890 according to

the rules of their community and had children, respondents 1 to 7. Later on, Venkappa and his family became Brahmos. On 19th June, 1903, a

marriage under the Special Marriage Act III of 1872 was solemnised between the appellant and her deceased husband in the presence of the

Registrar. Act III of 1872 was amended by Act XXX of 1923 and Sections 22, 23, 24, 25 and 26 were newly added to the Act. Section 24 says

that:

Succession to the property of any person professing the Hindu, Budhist, Sikh or Jaina religion, who marries under this Act, and to the property of

the issue of such marriage, shall be regulated by the provisions of the Indian Succession Act.

The appellant before us claims under this provision that as she and her husband were married under ""this Act"", i.e., the Special Marriage Act,

she is entitled to the grant of a succession certificate under the Indian Succession Act. Her claim is resisted by the eighth respondent, who is a

brother of the deceased Venkappa. He contends that Section 24 of the Act on which the appellant relies has no retrospective operation and as

such, though she was married under the Special Marriage Act she is not entitled to get a succession certificate. The appellant''s contention was

overruled by the learned District Judge and her petition was dismissed.

The short question for determination in this Civil Miscellaneous Appeal is whether under the new Section 24 added to the Special Marriage Act

III of 1872 by the amending Act XXX of 1923 the appellant is entitled to a succession certificate under the Indian Succession Act XXXIX of

1925.

u/s 10 of the Special Marriage Act III of 1872 before it was amended, the parties to the marriage should sign a declaration that they did not

profess the Christian, Jewish, Hindu, Mahomedan, Parsi, Buddhist or Jaina religion. The law is well-settled that in spite of this declaration, a Hindu

by becoming a Brahmo did not cease to be a Hindu and that in the case of such a person, a succession certificate under the Succession Act cannot

be granted. See 7 CWN 895 (Privy Council) and Jnanendra Nath Ray, In re ILR (1922) 49 Cal. 1069 . This position is not disputed by the

learned Counsel for the appellant; but what he contends is that after the introduction of Section 24 into the Act the petitioner is entitled to ask for a

succession certificate as she has been validly married under the Act. The answer to the question we have to determine does not depend upon the

consideration whether the marriage of the Petitioner with her deceased husband under the Special Marriage Act is valid or not, for its validity is not

disputed by any one. What we have to determine is whether the case of the appellant falls within the words of the new Section 24 of the Act. That

section can apply only to a person ""professing the Hindu, Buddhist, Sikh, or Jaina religion who marries under this Act"". It is obviously inapplicable

to the appellant for two reasons. In the first place, when she and her husband solemnised the marriage under the Special Marriage Act in 1903 the

declaration that they must have made u/s 10 of the Act was that they did not profess the Christian, Jewish, Hindu, Mahomedan, Parsi, Budhist or

Jaina religion, whereas a person claiming the benefit of Section 24 should have declared at the time of the marriage that they professed the Hindu,

Budhist, Sikh or Jaina religion. The form of declaration u/s 10 to be used by the parties has been changed subsequent to the introduction of Section

24 as will be seen from the second schedule to the Act. The declaration now in use after the amendment of the Act is totally the reverse of the

declaration which must have been made by the appellant and her husband when their marriage was solemnised under the Act in 1903. Secondly,

the words ""who marries"" used in the section clearly shows that the marriage contemplated is one after the date of the coming into force of the

section and not a marriage under the Act before it was amended. These two grounds would show that Section 24 can apply to persons who marry

under the Act subsequent to the enactment which has added it to the old Act by amendments : i.e., in other words, Section 24, cannot have any

retrospective effect and will not apply to persons who solemnised their marriage under the Special Marriage Act before its amendment. If it was

the intention of the Legislature to give Section 24 retrospective operation it could clearly have shown that intention by using appropriate language.

The conclusion we have arrived at, based on the language of the section, is supported by authorities also. In Emperor Vs. Phillip Spratt (No. 1), it

was pointed out that:

Act XXX of 1923 is an amending Act and there is no provision therein for retrospective effect.

In that case the plaintiff''s marriage took place in 1918 under the Special Marriage Act of 1872 and it was held that the rights of the parties

could not be governed by the amending Act of 1923 but by the original Act as the amending Act has no retrospective effect. In Monmohan Ray

and Others Vs. Punyabrata Das, the learned Judges construed the words ""who marries"" in Section 24 as synonymous with ""who shall marry

hereafter"" which means from the date of the enactment which brought that section into being and cannot mean who is married under the Act hereby

amended.

For the above reasons we hold that the appellant is not entitled to claim succession certificate by virtue of the new Section 24 of the Act and

that her rights to claim the succession certificate should be regulated by the provisions of the Act before its amendment, in which case it is not

disputed having regard to the decisions that she will not be entitled to ask for a succession certificate. The Civil Miscellaneous Appeal therefore

fails and is dismissed with costs.