Bhajya S/O Shyama Kanbi vs Gopikabai And Anr. Etc

566 lands held from the State, namely, (i) Bhumiswami and (ii) Bhumidhari. Sections 146 and 147 indicated the persons who could be descr ibed as Bhumiswamis and Bhumidharis. Section 148 provided that every person becoming a Bhumiswami or Bhumidhari, shall pay as land revenue-

(a) if he was paying land revenue in respect of the lands held by him-such land revenue,

(b) if he was paying rent in respect of the land held by him-an amount equal to such rent. It may be noted that Chapter XII of the Code further contains provisions for transfer of Bhumiswami or Bhumidhari rights 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 in the land which cannot be taken away, except in certain cases.

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) of the Hindu Succession Act, 1956.

A Division Bench of the Bombay High Court (at Nagpur) in Smt. Indubai v. Vyankati Vithoba Sawadha & Ors.(1), 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 to them.

In view of the distinctive features of the rights of a tenure-holder, a Division Bench of the Madhya Pradesh High Court, also, in Kumari Ramlali v. Mst. Bhagunti Bai & Ors.(2), took the same view, and held that Section 151 of the Code, which deals with devolution of (1) A.I.R. 1966 Bom. 64.

(2) A.I.R. 1968 M. P. 247.

567 the interest of a Bhumiswami or Bhumidhari tenure-holder, is not a provision dealing with devolution of tenancy rights' within the contemplation of Section 4(2) of the Act. A Full Bench of the Madhya Pradesh High Court in Nahar Hirasingh & Ors. v. Mst. Dukalhin & Ors.(1), by a majority of two against one, however, over-ruled 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 a non-obstante clause 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. 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 co- mmencement of ibis Constitution subject to their personal' law."

The 1954 Code had also received the assent of the President under Article 254(2) of the Constitution. The questions posed above turn on an interpretation of the language of &Won 151. 'Mere are no words in that Section or elsewhere (1) A.I.R. 1974 M.P. 141 568 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 holder's 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 general reference.This principle of construction of a referred statute has been neatly summed up by Sutherland, thus " A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted." (Vide, Sutherland's Statutory Construction, Third Edition, Article 5208, page 5208). Corpus Juris Secundum also enunciates the same principle in these terms ".....Where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof, . . . ...the reference will be held to include the law as. it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute."

Constructed in 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. 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 ?

569 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 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 sub-section (1) in the order specified therein, but upon the heirs of the husband."

This Section should be read along with the Rules set out in Section 16, the material part of which runs as under :

"The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely :-

"Rule 1........

Rule 2..........

Rule 3.-The devolution of the property of the intestate on the heirs referred to in clauses

(b), (d) and (e) of sub-section (1) and in sub-section (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 father's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death."

(Emphasis supplied) The instant case will fall under clause (b), sub-section (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, Punjya. 2-315SCI/78 570 The next question is, whether "the heirs of the husband" in Section 15 are to be with reference to the date of Punjyas demise in 1936, or with reference to the date of Shrimati Sarji's death on November 6, 1956, when succession opened out.

There appears to be some divergence of opinion among the, High Courts on this point. We 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 intestate's 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. Sarji's 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 this Chapter :-

"(a) Firstly, 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; 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 the judgmentand decree of the High Court and dismiss this appeal with costs.

S.R. Appeal dismissed. 571