Shiv Dayal, J.

This second appeal arises from a suit instituted by the Appellant against the Respondents for possession of Khasra Nos. 31 and 166 in Bhumidhari right, village Kuthkhedi, tahsil Multai. The relationship between the parties had been described in the plaint thus:



There is no dispute about the above genealogy.

Punjya, who was the owner of the suit land died in or about the year 1936. This land was ancestral in his hands. It originally belonged to Ghusya. On the death of Punjya in 1936, the estate devolved on his wife, Smt. Sarji. She continued in possession of the suit land until 6 November 1956, on which date she died. The issue between the parties is whether on the death of Smt. Sarji, Gopikabai, who is Punjyas sisters daughter, succeeds to the estate in preference to Sonu and Bajya (Defendants), who are Punjyas fathers brother sons sons.

Undoubtedly, under the Hindu Law as was in force before the Hindu Succession Act, 1956, the Defendants would have succeeded in preference to the Plaintiff, who is the sisters daughter of the last male holder.

The trial Court accepted Smt. Gopikabais claim and passed a decree in her favour. On appeal, the learned Additional District Judge, Betul, set aside the judgment and decree of the trial Court and dismissed the suit. He held that by virtue of Section 4(2) of Hindu Succession Act, the devolution of the agricultural holdings was not governed by that Act, so that the provisions of that Act could not be called to the Plaintiffs aid. He relied on Sitabai v. Kothulal 1958 NLJ 319=A I R 1959 Bom. 78 . Aggrieved by that decree, the Plaintiff preferred this second appeal.

Two questions arise for decision in this appeal. It is contended by the Appellant that the Hindu Succession Act applies to this case and section 4(2) of that Act is out of the way. That section reads thus:-

For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.

This point has recently been decided by a Division Bench of this Court in Kumari Ramlali v. Mst. Bhagunti Bai 1968 MPLJ 672 Letters Patent Appeal No. 6 of 1965, decided on the 20th April 1968. There, it has been held that Bhumiswami and Bhumidhari rights are not tenancy rights and Section 151 of the M. P. 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 M. P. 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 decision of the Bombay High Court (supra) has been overruled by a Division Bench of that High Court in Indubai v. Vyankati : AIR 1966 Bom. 64 , where it is held that the M. P. Land Revenue Code, 1954, was not a tenancy legislation and consequently the exception made in Section 4(2) cannot apply to it. In order to attract the provisions of Section 4(2) of the Act, the legislation must provide for devolution of tenancy.

On the above basis, the Appellants contention must be allowed.

Shri Dharmadhikari, learned Counsel for the Respondents, then urges that even if the Hindu Succession Act, 1956, applies to the present case, the Defendants are preferential heirs. The argument is based on Section 15(2)(b) of the Hindu Succession Act, as Shri Dharmadhikari reads it. Sub-section (1) of Section 15 lays down general rules of succession in the case of female Hindus. Sub-section (2)(b) reads thus:

(2) Notwithstanding anything contained in Sub-section (1),

(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 pre-deceased 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.

Shri Dharmadhikaris argument is that the expression "upon the heirs of the husband" refers to those heirs of the deceased husband who were his heirs on the date of his death. On that argument, it is contended that since Punjya died in the year 1936, his heirs were the Defendants on that date and not the Plaintiff. Learned Counsel relies on Kempiah v. Girigamma AIR 1966 Mysore 189, which supports his contention.

With respect to the learned Judges of the Mysore High Court, I am of the opinion 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. To put it differently, where a female Hindu intestate dies without issue, the property, which was inherited from her husband, will devolve upon the husbands heirs, as if the husband died the very next moment after her death. If the husband had died before 17 June 1956, when the Hindu Succession Act came into force, and the widow died after the Act came into force, the heirs of her husband have to be found out according to the Succession Act and not according to the Hindu law as was in force earlier. Succession will reopen on the demise of the intervening female heir and it is the date of her death on which the heirs of her husband are to be found out. The view I take was also taken by the Punjab High Court in Banso v. Charan Singh AIR 1961 Punj. 45 and Kuldip Singh v. Karnal Singh AIR 1961 Punj. 573. The learned Judges of the Mysore High Court in Kempiahs case (supra) did not agree with the view taken by the Punjab High Court. With due deference, I am not persuaded by the reasoning in the decision of the Mysore High Court. Rule 3 of Section 16 of the Act reads thus:-

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 fathers or the mothers or the husbands as the case may be and such person had died intestate in respect thereof immediately after the intestates death.

According to this rule, the terminus a quo is the husband, father or mother (as the case may be), as if the husband (or father or mother) was the propositus. Then, the expression "and such person had died intestate in respect thereof immediately after the intestates death" leaves no room for doubt that the husbands death will have to be deemed by legal fiction to have occurred immediately after the widows death.

That being so, it will have to be determined under Section 8 of the Hindu Succession Act, whether the Plaintiff succeeded in preference to the Defendants, if Punjya had died on 6 November 1956. There is no doubt that under the schedule to Section 8, the Plaintiff comes under class II, item IV. All the heirs under Class I and Class II of the schedule come within Clause (b) of Section 8, while the Defendants, as agnates, come under Clause (c) of that section. They do not come under either class I or class II of the schedule. On this analysis, the Plaintiff is the heir preferential to the Defendants.

The appeal is allowed. The judgment and decree of the first appellate Court are set aside and those of the trial Court are restored with costs throughout.