# BHAJYA S/0 SHYAMA KANBI v. GOPIKABAI AND ANR. ETC

- **Citation:** [1978] 3 S.C.R. 561
- **Court:** Supreme Court of India
- **Decided:** 1978-04-04
- **Case number:** Civil Appeal No. 2415 of 1968
- **Bench:** R. S. Sarkaria, N. L. Untwalia, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhajya-s-0-shyama-kanbi-v-gopikabai-and-anr-etc-7362
- **Pages:** 10

## Headnote

Madhya Pradesh Land Revenue Code, (Code II of 1955), 1954 Section 151
rfw S. 4(2) of Hindu Succession Act (Act 30), 1956-Interpretation of the
words 'subject to his personal law' in Section 151, which provides "subject to
his personal law, the interest of a tenure holder shall, on his death,
pass by
inheritance, su1vivorship or bequest as the case may be"--Whether referable
to Hindu Succession Act, 1956-Legislation by referential incorporation-Categories of such legislation-"Personal law" includes Hindu Succession ActHindu Succes~ion Act, 1956, Sections 8, 15 & 16.
The suit land which originally belonged to Ghusya, who died before the Settlement of 1918, came into the possession of his son Punjya. On Punjya death
in the year 1936, the holding devolved on his widow Smt. Sarji who continued
in possession of the same till her death on 6-11-1956. On the death of Sarij the
defendants entered into wrongful possession of the land. Smt. Gopikabai, claiming inheritance to the Bhumidari interest of Smt. Sarji deceased, as the daughter
of the sister of the last male holder. Punjya, filed a suit for possession ot the
suit land and also for the value of the crop. The d<>fetid~nt~
,.,..n+<>.;;tec-1
the
suit claiming that they were Sapindas of the last male holder, Punjya (being
his father's brother's son's son), and as such were under the Hindu Law as
prevailing on the date of Punjya's death, entitled to succeed to the interest of
the deceased renure holder by virtne of Section 151 of the M.P. Land Revenue
Code 1954, the operation of which had been saved by Section 4(2)
of the
Hindu Succession Act, 1956 .
The Trial Court decreed the suit; but on appeal the Additional District
Judge set aside the decree of the trial Court and dismissed the suit. The High
Court, in Second Appeal, restored the trial Court's decree holding that the
plaintiff came under Clause (b) of Section 8 of the Hindu Succession Act, and
a8 such, was entitled to succeed in preference to the defendants who are agnatic relatives coming under clause (c) of that Section.
Dismissing the appeal by special leave the Court
HELD: (I) From the conspectus of Ss. 2(7), 2(19), 2(20) and Ss. 145,
147, 148, 151, 168, 172 of Madhya Pradesh Land Revenue Code,
1954, the
following points emerge clear: (i) A 'tenure-holder' and a 'tenant' have been
separately and distinctly defined in clauses (20) and (19) of s. 2 of the 1954
Code.
A 'tenant' according to the definition, holds land from a tenure-holder.
but a. 'ten~re-holder' holds and directly from the State.
(ii) A bhumiswami/
Bhum.idhan pays land revenue to the State and not rr>nt; (iii) Tenancv rights
and rights of Bhumiswami/Bhumidhari are dealt with in separare Chaprers
of the Code.
Bhumiswami/Bhumidharies have permanent heritable and transferable rights in the land which cannot be taken away, except in certain cases.
[565 G, 566 E-FJ
(2) Even on the assumption, that S. 151 of the 1954 Code is a law for
devolution of tenancy rights in agricultural holdings, the section
itself,
in
terms, makes personal law by general reference applicable in the matter of the
devolution of the interest of a deceased tenure holder (i.e. Bhumiswami and
Bhumidhar).
S1nt. lndubai v. Vyankati Vithoba Sawadhu and Ors .. A.I.'R. 1966 Born. 64
'Kumarf Ramlali v. Mst. Bhagunti Bai ana Ors. A.I.R. 1968, M.P. 247 and
i"l«ft11r 1111rus1ngh and Ors. v. Mst. Duka/him & Ors., A.I.R. 1974 M.P.
141
referred to.
(3) (a) There are no words in section 151 or elsewhere in the Code which
Jiu1it th.~ scope of the expression "personal law'' to that prevailing on February
5, 1955. On the contrary the words "on his death" used in s. 151 clearly show
A
B.
c
E
F
G
H
562
SUPREME COURT REPORTS
[1978] 3 S.C.R.
A
that the legislative intent was that "personal law" as amended upto the date on
which the devolution of the tenure holders interest is to be determined, shall
to the rule of decision.
[567 H, 568 A]
B
c
(b) The Legislature can legislate on a subject by referential incorporation

## Text

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561
BHAJYA S/0 SHYAMA KANBI
v.
GOPIKABAI AND ANR. ETC.
April 4, 1978
[R. S. SARKARIA, N. L. UNTWALIA AND P. S. KAILASAM, JJ.]
Madhya Pradesh Land Revenue Code, (Code II of 1955), 1954 Section 151
rfw S. 4(2) of Hindu Succession Act (Act 30), 1956-Interpretation of the
words 'subject to his personal law' in Section 151, which provides "subject to
his personal law, the interest of a tenure holder shall, on his death,
pass by
inheritance, su1vivorship or bequest as the case may be"--Whether referable
to Hindu Succession Act, 1956-Legislation by referential incorporation-Categories of such legislation-"Personal law" includes Hindu Succession ActHindu Succes~ion Act, 1956, Sections 8, 15 & 16.
The suit land which originally belonged to Ghusya, who died before the Settlement of 1918, came into the possession of his son Punjya. On Punjya death
in the year 1936, the holding devolved on his widow Smt. Sarji who continued
in possession of the same till her death on 6-11-1956. On the death of Sarij the
defendants entered into wrongful possession of the land. Smt. Gopikabai, claiming inheritance to the Bhumidari interest of Smt. Sarji deceased, as the daughter
of the sister of the last male holder. Punjya, filed a suit for possession ot the
suit land and also for the value of the crop. The d<>fetid~nt~
,.,..n+<>.;;tec-1
the
suit claiming that they were Sapindas of the last male holder, Punjya (being
his father's brother's son's son), and as such were under the Hindu Law as
prevailing on the date of Punjya's death, entitled to succeed to the interest of
the deceased renure holder by virtne of Section 151 of the M.P. Land Revenue
Code 1954, the operation of which had been saved by Section 4(2)
of the
Hindu Succession Act, 1956 .
The Trial Court decreed the suit; but on appeal the Additional District
Judge set aside the decree of the trial Court and dismissed the suit. The High
Court, in Second Appeal, restored the trial Court's decree holding that the
plaintiff came under Clause (b) of Section 8 of the Hindu Succession Act, and
a8 such, was entitled to succeed in preference to the defendants who are agnatic relatives coming under clause (c) of that Section.
Dismissing the appeal by special leave the Court
HELD: (I) From the conspectus of Ss. 2(7), 2(19), 2(20) and Ss. 145,
147, 148, 151, 168, 172 of Madhya Pradesh Land Revenue Code,
1954, the
following points emerge clear: (i) A 'tenure-holder' and a 'tenant' have been
separately and distinctly defined in clauses (20) and (19) of s. 2 of the 1954
Code.
A 'tenant' according to the definition, holds land from a tenure-holder.
but a. 'ten~re-holder' holds and directly from the State.
(ii) A bhumiswami/
Bhum.idhan pays land revenue to the State and not rr>nt; (iii) Tenancv rights
and rights of Bhumiswami/Bhumidhari are dealt with in separare Chaprers
of the Code.
Bhumiswami/Bhumidharies have permanent heritable and transferable rights in the land which cannot be taken away, except in certain cases.
[565 G, 566 E-FJ
(2) Even on the assumption, that S. 151 of the 1954 Code is a law for
devolution of tenancy rights in agricultural holdings, the section
itself,
in
terms, makes personal law by general reference applicable in the matter of the
devolution of the interest of a deceased tenure holder (i.e. Bhumiswami and
Bhumidhar).
S1nt. lndubai v. Vyankati Vithoba Sawadhu and Ors .. A.I.'R. 1966 Born. 64
'Kumarf Ramlali v. Mst. Bhagunti Bai ana Ors. A.I.R. 1968, M.P. 247 and
i"l«ft11r 1111rus1ngh and Ors. v. Mst. Duka/him & Ors., A.I.R. 1974 M.P.
141
referred to.
(3) (a) There are no words in section 151 or elsewhere in the Code which
Jiu1it th.~ scope of the expression "personal law'' to that prevailing on February
5, 1955. On the contrary the words "on his death" used in s. 151 clearly show
A
B.
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G
H
562
SUPREME COURT REPORTS
[1978] 3 S.C.R.
A
that the legislative intent was that "personal law" as amended upto the date on
which the devolution of the tenure holders interest is to be determined, shall
to the rule of decision.
[567 H, 568 A]
B
c
(b) The 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 V in the Concurrent List.
The 1954 Code had also received the assent of the President under Art. 254(2)
of the Constitution. [567 E-GJ
(c) Broadly speaking legislation by referential incorporation falls in two
categories : First, where a statute by specific reference incorporates the provisions of another statute "' of the time of adoption. SecOnd, where a statute
incorporates by general reference the law concerning a parucular subject, as
a genus. In the case of the former, the subsequent amendments made in the
referred statute cannot automatically be read into the adopting statute. Jn the
case of latter category, it may be presumed that the legislative intent Yias to
include all the subsequent amendments also, made from time to time in the
generic law on Lhe subject adopted by general reference.
[568 B-C]
(b) Construed in accordance with the above principle, the expression "personal 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.
f568F·G)
D
Smt. lndubai v. Vyankati Vithaba Sawadha and Ors., A.LR. 1966 Born. 64,
E
F
G
H
Kuman· l?amlalt v. Mst. Bhagunti Bai and Ors., A.l.R. 1968 M.P.
247
and
Nahar Hirasingh and Ors. v. Mst. Duka!hin and Ors .. A.I.R. 1974 M.P.
141;
apprc.ved.
(4) Reading Section 15 with 1ule 3, set out in s. 16, the instant case will
fall under Cl. (b) Sub-s. (2) of s. 15 because Shrirnati Sarji died issueless and
intestate. The interest in the suit property was inherited by
her
from
her
husband. The suit land will, therefore, under Cl.(b) go to the heirs of her
husband, Punjya. [569 G-H]
(5) The expression "heirs" of the husband used in S. 15 is to be construed
with reference to the date on which the succession opens out and
not
with
reference to the date of the husband's death.
Once it is found that the
case
falls under s. 15(2)(b) of the Hindu Succession Act, the fiction envisaged in
Rule 3 of Section 16 is attracted, according to whk:h,
for the purpose of
ascertaining the order of devolution it is to be deemed as if the husband had
died intestate inimediately after the female intestate's death. [569 A, E, 570 B]
(6) 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 I of
the Schedule;
(b) Secondly, if there is no heir of Class I, 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 cla~ses then upoii
the agnates of the deceased and,
Lastly, if there is no agnate,
then
upon the
cognates
of the
deceased."
Now, Smt. Gopikabai, Respondent No. 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 V in Class II of the Schedule; while agnates do not figure
anywhere in Class III. Thus, Smt. Gopikabai's case will come in Clause (b);
Secondly, of S. 8 and, as such, she _will be a preferential heir of the husband of
Smt. Sarji, if he_ had died the moment after her death on No:remb~r 6, 1956.
Jn this view. she would exclude the defendants-agnates from 1n~entance even
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BHAJYA v. GOPIKABAI (Sarkaria, !.)
563
according to 'personal law' which, within the contemplation of s. 1~1 of the
Code, will include the Hindu Succession Act, 1956, in force at the time when
Smt. Sarji died and succession opened out.
[570 C-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2415 of 1968.
Appeal by Special Leave from the Judgment and
Decree dated
10-7-68 of the Madhya Pradesh High Court in Second Appeal No. 3773
A
of 1962.
B
.,
V. K. Sanghi, A. G. Ratnaparkhi and G. L. Sanghi, for th Appel-
.. ~
Jant.
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U. R. La/it, V. N. Ganpule and Veena Devii (Mrs.) Khanna, for
the Respoudent No. 1.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal is directed against a judgment of the
Hi¥11 Court of Madhya Pradesh.
The following is the genealogy of the parties :
Dewaji
--------------
Jiwaji
Dhondya
Shioba
So nu
(Deft. No. 2)
Sh yam
Bhajya
(Deft No. I)
Punjya
°(last Male
Holder)
=Srnt. Sarji
Ghusya
(wife Jhuli)
Turji
(Wd/o Janafl
Gopikabai
(Wife of Mukundrao
Pltff.-respdt. I)
Smt. Gopikabai wife of Mukundrao, shown in the above pedigreetable, filed a suit in the Conrt of the Civil Judge, Multai, against the
defendant-appellant, Bhajya, and Sonu, re·spondent 2, for possession of
Bhumiswami rights in the land comprised in Khasra Nos. 31 and 166
in the area of Village Kuthkhedi, Tehsil Multai, Di~trict Betul, Madhya
Pradesh.
The suit land originally
belonged 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 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(11) (4) (iv) of the
Schedule referred to in Section 8 of the Hindu Succession Act, 19 5 6,
whereas the defendants claim as sapindas of the last male holder under
Mitakshra Law.
It is alleged by the plaintiff that Bhajya and Sonn, defendants,
took forcible possession of the suit land after the death of Smt. Sarji.
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564
SUPREME COURT REPORTS
(1978] 3 S.C.R.
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Apart from possession, the plaintiff claimed Rs. 180/- as damages
for the crop removed by the defendants.
B
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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 by Mitakshra School of Hindu Law, according
to which the defendant-sapindas are entitled to suit land to the exclusion
of the last male holder's sister's daughter, the plaintiff.
The trial court decreed Smt. Gopikabai's claim.
On appeal, the
Additional District Judge set aside the decree of the trial court and
dismissed the respondent's suit.
In second appeal by the plaintiff, the High Cou.rt following
its
earlier decision
in Kumari Ramlali v. Mst. Bhagunti Bai('), held
"that 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 Bhumidhari
tenure-holder, cannot be regarded as a provision dealing with
the
devolution of tenancy rights.
Section 4(2) of the 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 a tenure-holder passes under Section
151 of the Code." The High 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 of the 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 defendant-agnates
coming under clause (c) of that Section. In the result, the plaintiff's appeal was allowed and the decree of the trial court was restored.
Hence, this appeal by special leave.
The contentions canvassed before us by Mr. Sanghi, learned counsel for the appellants, are as under :
( i) Section '151 of the Madhya Pradesh Land Revenue
Code,
1954 (in short, the Code) was a law for the devolution of tenancy
rights in agricultural holdings, because under the scheme of the Code,
Bhumiswamis and Bhumidaris were tenure-holders
who could be.
included in the term "tenants".
[Nahar Harl Singh v. Dukallun(2)
and Sitabai v. Kothulal(2 ) were cited].
(ii) In view of the position stated at no. (i), Section 4(2) of
the Hindu Succession Act, 1956, (for short called 't!u: Act') saved
(l) L.P.A. 6 of 1965 decided on April 20, 1968.
(2) A.I.R. 1974 M.P. 141 (F.B.).
(3) A.LR. 1959 Born. 78.
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BHAJYA v. GOPIKABAI (Sarkaria, J.)
5H5
Section 151 of the Code.
Therefore, devolution of the agricultural
holding left behind by the deceased tenure-holder, will .be governed
by Section 151 of the Code and not by anytlung provided m
the
A
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 e:>cluded 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. Sarji died (Kampiah v. Girigamme(') relied upon).
As against this, Mr. Lalit submits that-
( a) Section 151 of the Code is not a law dealing with devolution
of tenancy rights in agricultural holding.. and, as such, is not covered
by the saving clause in Section 4(2) of the Act.
Section 151
is
confined to the devolution of the interest of a 'tenure-holder',
the
concept of which under the scheme of the Code, is different and distinct from a 'tenant'. Chapter XI of the Code deals with 'tenants',
while Chapter XII (in which Section 151 is placed) deals
with
'tenure-holders' .
(b) Even if a 'tenure-holder' includes a 'tenant', then also, Section
151 of the Code by reference makes the devolution of the interest
of a deceased tenure holder "subject to his personal law" as on his
death.
Since Smt. Sarji died on November 6, 1956, the 'personal
law' which will govern the inheritance to her estate, is Hindu law
as modified by the Hindu Succession Act, 1956. Under Section 15
read with Section 8 of the Act, Respondent no. 1 being a preferential
heir, will exclude the appellants from inheritance to the estate of Smt.
Sarji.
Before dealing with these contentions, it will be profitable to have
a look at the relevant provisions of the Madhya Pradesh Land Revenue
Code, 1954.
Section 2(7) of the Code defined a 'Holding' to mean, inter alia,
"a parcel of land separately assessed to land revenue".
Section 2(20)
defined a 'Tenure-holder' as "a person holding land from the State
Government as a Bhumiswami or a Bhumidhari".
Section 2(19)
defined a 'Tenant' as "a person holding land from a tenure-holder as
an ordinary or an occupancy tenant under Chapter XIV".
Chanter XIl dealt with tenure-holders.
In that Chapter, Section
145 provided that there shall be two classes of
tenure-holders
of
(I) A.T.R. 19~6 Mysore 189.
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566
SUPREME COURT REPORTS
[19781 3 s.c.It.
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land~ held from the State, namely, (i) Bhumiswami and (ii) Bhumidhan: Sections 14.6 an~ 147 indicat~ ~e persons who could be
descnbed as Bhum1Swa~1s and Bh~1dharis. Section 148 provided
that every person becoming a Bhum1swami or Bhumidhari, shall pay
as land revenue-
( a) if he was paying land revenue in respect of the lands
B
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
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this Chapter, but separately in Chapter XIV Sections 168 and 172 in
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Cb.apter XIV deal with the devolution of rights of an ordinary tenant
and an occupancy tenant. Those rights also pass on the death o{ 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 tenureholder 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/BhumiF
dharies have pennanent 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.
G
A Division Bench of the Bombay High Court (at Nagpur)
in
Smt. lndubai v. Vyankati Vithoba Sawadha & Ors.('), held that the
aforesaid provisions in the 1954 Code are 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 Kumar1
Ramlali v. Mst. Bhagunti Bai & Ors.('), took the same view, and
H
held that Section 151 of the Code, which deals with devolution of
(I) A.LR. 1966 Born. 64.
(2) A.LR. 1963 M. P. 247.
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BHAJYA v. GOPIKABAI (Sarkaria, !.)
567
the interest of a Bhumiswami or Bhumidhari tenure-holder, is not a
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
Elirasi11gh & Ors. v. Mst. Dukalhin & Ors.('), 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 Bench, was 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 the 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 !)lay, for the purpose of deciding the case before us,
it is not necessarj'I. 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, meanas 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 bv the Hindu Succession Act, prevailing on
November 6, 1956, when Smt. Sarji died?
1t is well known that a Legislature can !Cglslate '1n a rnbject 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; ioint family and partition;
all matters in respect of which parties in judicial proceedings
were immediately before the commencement of this 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 question• posed above turn on an interpretation of the language of Section 151. There are no words in that Section or elsewhere
(1) A LR. 1974 M.P. 141
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in 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
devolution of the tenure holder's interest is to be determined, shall
be the rule of decision.
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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 cannot 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 reference statute has been neatly summed
up by Sutherland, thus :
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"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."
(Vidc, Sutherland's Statutory Construction, Third Edition,
Article 5208, page 5208).
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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."
Construed in accordance with the above principle, the expression
"personal law" referred to in Section 151 of the Code, comprehends
the Hindu Snccession 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 dne deference, the view taken on this point by the Bombay
High Court in Smt. lndubafs case (ibid) and by the Madhya Pradesh
High Court in Kumari Ramlali'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 nnder the
Hindu Succession Act, 1956?
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BHAJYA v. GOP!KABAI (Sarkaria, !.)
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
th•
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-Jaw 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."
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D
This Section should be read along with the Rules set out in Section
16, the material part of which runs as under :
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"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
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same rules as would have applied if the property had
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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 L5, because Smt. Sarji died issneless and intestate. The interH
est in the snit property was inherited by her from her husband. The
snit land will, therefore, under clause (b) , go to the heirs of her
husband, Punjya.
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SUPREME COURT REPORTS
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The next question is, whether "the heirs of the
husband"
in
Section 15 are to be ascertained with reference to the date of Punjya's
demise in 1936, or with reference to the date of Shrimati Sarji's
death on November 6, 1956, when succession op~ned 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)(h), 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 I of the Schedule;
(b) Secondly, if there is no heir of Class I, then upon the
heirs, being the relatives specified in Class II of the
Schedule;
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( 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 had died the moment after her death on November 6,
1956. In this view, she would exclnde 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.
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In the result, we affirm the judgment and decree of the High Court
and dismiss this appeal with costs.
S.R.
Appeal dismissed.
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