Veerupanna and another vs Eramma and others

This is an appeal by decree-holders in O.S. 6/1 of 1351 Fasli of the Sadar Adalath, Gulbarga, against the order dismissing their execution petition passed by the District Judge, Raichur, on 14th February 1957.

The parties are related to each other as follows:--- The first respondent Eramma and second respondent Siddamma were at the relevant time widows of one Erannagowda. The said Erannagowda had a third wife called Sharnamma, who is the sister of the appellants. By the said Sharnamma Erannagowda had a son called Basanna, who died in Fasli 1347 (corresponding to A.D. 1936-37), at a time when he was the sole male holder of the properties. After his death his step-mothers Eramma and Siddamma got into possession of the properties. Thereupon the appellants commenced litigation out of which this appeal arises before the Sadar Adalath, Gulbarga, claiming that they as the nearest heirs of Basanna, were entitled to all the properties left by him and seeking to recover possession thereof from his step-mothers named above.

The suit was resisted by both the ladies by putting forward adoptions said to have been made by them. The first respondent Eramma claimed to have adopted the third respondent and the second respondent Siddamma claimed to have adopted the fourth respondent to their deceased husband Erannagowda, the former on an alleged authority given to her by her deceased husband and the latter on his authority said to have been conveyed under a will. The trial Court, namely, the Sadar Adalath, rejected the case of Eramma, but upheld that of Siddamma. On appeal to the High Court of the erstwhile State of Hyderabad, Siddamma''s claim of adoption was also negatived. In the result the High Court came to pass a decree in favour of the appellants, which is the decree now under execution.

Both Eramma and Siddamma appear to have applied to the High Court for certificate of fitness to appeal to the Supreme Court. Siddamma was granted such a certificate, but she did not proceed further. Eramma who was denied a certificate by the High Court, approached the Supreme Court with an application for special leave. That application also came to be dismissed by the Supreme Court subsequently.

During the pendency of the proceedings in the Supreme Court, the Hindu Succession Act, 1956, came into force on the 17th June 1956. The pleas in the execution which came to be accepted by the District Court in its order under appeal relate to the rights which the widows of Erannagowda are said to have acquired under the said Act.

Accepting the position that at the time the High Court of Hyderabad came to pass the decree, Eramma and Siddamma as step-mothers of the porosities Basannagowda were not his next heirs, but his maternal uncles the appellants were nearer heirs as ''Bandhus'' according to the Hindu Law then administered in that State, it was contended that step-mothers are enumerated as nearer heirs under S. 8 of the Hindu Succession Act. Both the contestants in this case fall within Class II heirs in the schedule referred to in S. 8. Father''s widow appears in entry No. VI, whereas mother''s brother in entry No. IX. On this footing the case of the contesting respondent Eramma was that because the Act has an overriding effect over the Rules of Hindu Law in force at the time it was brought into force and because the statute was intended to confer an advantage or benefit on female heirs till then excluded under the Hindu Law, S. 8 must be given retrospective effect. So considered, the argument on her behalf continued, she must be held to have acquired a right of heir ship to the deceased Bassannagowda postponing similar right of inheritance given to or conferred upon the maternal uncles of Bassannagowda. In addition it was argued that by virtue of S. 14 of the same Act, she, Eramma, must be taken to have acquired an absolute estate and not what was known as Widow''s estate under the ordinary Hindu Law.

The learned District Judge accepted both these contentions and dismissed the execution petition. Hence this appeal.

The view taken by the learned District Judge that S. 8 of the Hindu Succession Act, 1956, has retrospective operation in the sense that it would apply to the estate of a Hindu'' who had died intestate even before the Act came into force, can no longer be accepted as correct, in view of subsequent rulings of this'' High Court. Earliest of them is the ruling of al Division Bench reported in (1959) 37 Mys LJ 332, Sadashiv Rama Patole v. Balakrishna Somnath Iyer, J. delivering the judgment of the Court expressed himself as follows regarding the effect of S. 8:-

The language of S. 8 makes it very clear that it has no retrospective operation. The words ''the property of a male Hindu dying intestate'' and the words ''shall devolve'' occurring in that section make it very clear that the property whose devolution is provided for by that section must be the property of a person who dies after the commencement of the Hindu Succession Act. That this is so is clear from S. 6 of the Act. That section makes it very clear that the provisions contained in section 6 apply only to the coparcenary property of a male Hindu who dies after the commencement of the Act. That is also the indication provided in the proviso to that section.

The same view was later taken in three subsequent rulings of single Judges of this Court. They are reported in AIR 1960 Mys 79, Appa Sahib v. Gurubasawwa, AIR 1960 Mys 260 Ramappa Gudadappa v. Chandangouda Neelangouda Goudar and 1965 (1) Mys LJ 351: (AIR 1965 Mys 290) Damodhar Rao v. Bhima Rao.

Mr. Krishna Murthy, the learned counsel for the contesting respondents has pointed out that a different view has been taken in some of the rulings of the High Courts of Punjab and Patna and that the view taken by this Court may bear re-examination. We do not think that we can entertain this argument. There is no difference of opinion at all in this Court and it is unnecessary for us to settle the difference between this High Court and other High Courts. Even the rulings of the other High Courts mentioned above, we find, were not followed in their subsequent rulings. Even otherwise the opinion of this Court has the support of a Division Bench ruling which has been consistently followed. We see no reason to depart from that view or to permit Mr. Krishna Murthy to canvass its correctness.

The opinion of the District Judge regarding the applicability of the provisions of S. 14 of the Hindu Succession Act to this case also appears to be inaccurate. Sub-section (1) of that section reads as follows:--

Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

There is an explanation to that sub-section, which reads

In this sub-section ''Property'' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhana immediately before the commencement of this Act.

In taking the view that the provisions of this section can be invoked by the contesting respondent Eramma, the learned Judge was impressed by the admitted fact that she has been in possession of the properties in question and continued to be in possession even at the time the execution petition came to be argued. But with respect to the learned Judge, the possession required by S. 14 cannot be regarded as possession otherwise than pursuant to some type of title acquired by the widow. The property possessed by the female Hindu referred in the section is clearly property to which she has acquired some type of title whether before or after the commencement of the Act. That such is the property dealt with by the section is also clear from the Explanation. It will be noticed that the Explanation sets out the various modes of acquisition and indicates that whatever be the mode by which the female Hindu might have acquired the property, what is of materiality is that she should have acquired title to it. Further the object of the section as apparent from the language is to convert into an absolute estate what was before the passing of the Act an estate of a limited type called the Hindu Widow''s estate. The section does not purport to create rights out of nothing, but only to enlarge the scope of rights acquired by her.

In 1965 (1) Mys LJ 351: (AIR 1965 Mys 290), already cited above, it was pointed out by Tukol, J. that the possession by a widow of property not in her own right but either as trespasser or as licensee is not the type of possession which would attract the provisions of S. 14 and that though the possession contemplated by the said section may be actual or constructive, it should necessarily be one''s own.

Same or similar view has been taken by other High Courts also. Among the cases cited on behalf of the appellant by Mr. Ashrit, those in which there is discussion on principles with which we find ourselves in agreement are those reported in Mst. Bakhtawari Vs. Sadhu Singh and Others, Mst. Bisarti Lodhi Vs. Mst. Sukarti and Another, Andal Ammal and Another Vs. Sivaprakasa Sethurayar and Others, Andal Ammal v. Sivaprakasa Sethurayar.

Applying these principles to the facts of this case, it is clear that, Bassannagouda having died long before the Hindu Succession Act came into force and the High Court of Hyderabad having held in a suit to which the respondents Eramma and Siddamma were parties, that the appellants were the nearer heirs, the entire estate of Bassannagouda vested in the appellants long before the statute came into force and neither Eramma nor Siddamma acquired any title to any portion of that estate. Hence, their admitted possession on the date of the comings into force of the Act is not possession which is traceable to any title acquired by them whether limited or otherwise, so as to attract the provisions of S. 14.

The learned District Judge, therefore, must be held to have erred in law in dismissing the execution petition.

In the result, the appeal is allowed, order of the District Judge set aside and the execution petition remitted to the District Court with a direction to proceed with the execution in terms of the decree. The parties to bear their own costs here as well as in the lower Court.