R.K. Tankha, J.

1. This second appeal has been filed by defendant No. 1 against the judgment and decree dated 24th September 1969 passed by the Additional District Judge, Seoni (Camp Belaghat) in Civil appeal No. 41-A of 1965.

2. Brief facts of the case are that the suit lands belonged to one Jairam who died on 16-8-1944 leaving behind the plaintiff and defendant No. 2 as his daughters from the second wife Mst. Sumitrabai and defendant No. 1 his son from his first wife. As regards Mst. Sumitrabai she died in the year 1960. The plaintiff filed the suit for partition and separate possession of the suit lands and in the alternative claimed joint possession on the basis that Jairam having died on 16-8-1944, his wife Mst. Sumitrabai became the full owner. After the death of Jairam Mst. Sumitrabai and defendant No. 1 succeeded to the suit property. Mst. Sumitrabai having died in the year 1960, her share will devolve on her two daughters and defendant No. 1 could not lay any claim to the extent of her share. Since defendant No. 1 forcibly took possession of the entire suit property, one of the daughters of Mst. Sumitrabai, namely, the plaintiff filed the present suit.

3. The suit was contested by defendant No. 1 alone while defendant No. 2 did not appear at all before the trial Court and also before the lower appellate Court. As such she had been proceeded ex-parte throughout. Even in this Court, she did not appear nor was represented by a counsel inspirer of notice about the hearing of this appeal. Defendant No. 1 pleaded that Jairam did not die in the year 1944 as pleaded by the plaintiff but about 30 years ago before coming into force of the Hindu womens Right to Properly Act, 1937, and therefore. Mst Sumitrabai could not get any interest or right in the suit lands. According to him, all that she could claim was maintenance. He further pleaded that as Sumitrabai had no title with respect to tie suit lands, it could not devolve on her two daughters. He also pleaded that he being the only heir of Jairam became the sole owner of the suit lands. Thus, he pleaded for the dismissal of the suit.

4. The trial Court decreed the suit for joint possession of the plaintiff and defendant No. 2 along with defendant No. 1 over the suit lands. According to that Court, Jairam having died on 16-8-1944 subsequent to the coming into force of the Hindu womens Right to Property Act. 1937, Mst. Sumitrabai inherited a half share in her husbands property and became absolute owner to that extent after coming into force of the Hindu Succession Act. 1956. Therefore, the said Court held that her two daughters, i.e. the plaintiff and defendant No 2, alone succeeded to her share while denying to defendant No. 1 any right or claim in that share being the step son of Mst. Sumitrabai.

5. The appeal preferred by defendant No. I before the lower appellate Court was partly allowed. The Court although upheld the judgment and decree of the trial Court to the extent of the plaintiffs claim for joint possession of the suit lands was concerned by dismissing the appeal to that extent but as regards mesne profit were concerned, the decree of that Court was modified holding that defendant No. 1 shall be liable to pay only Rs. 80/- to the plaintiff. Hence the defendant No. I has now come up in the present second appeal.

6. Having heard learned counsel of the parties, I am of opinion that there is no merit in this appeal and it must be dismissed. The only point that arises for consideration in this appeal is whether defendant No. 1 could claim any share in the share of Mst. Sumitrabai. Both the Courts below have held that Jairam died on 16-8-1944 and as such his death was subsequent to the coming into force of the Hindu Womens Right to Property Act, 1937. Therefore, Mst. Sumitrabai inherited a half share in the suit property along with Jairams son by the first wife, namely, defendant No. 1 and after coming into force of the Hindu Succession Act, 1956 she became the absolute owner to the extent of her half share in the suit lands. Learned counsel appearing for defendant No. 1 did not dispute this finding and rightly so before me.

7. Then, the point posed for consideration was whether her step-son, defendant No. 1, would be entitled to succeed her exclusively or her two daughters, namely, the plaintiff and defendant No. 2, to the exclusion of defendant No. 1 after her death. Thus, to say in more simplified manner the question involved in this second appeal is, when a Bhumiswami woman dies leaving daughters born to her and the competition arises to inherit her share which she herself inherited from her husband, between her daughters and a son by another wife of the latter, who shall be entitled to inherit her share the daughters or the step-son of the deceased female At this stage. I may point out that the lower appellate Court was in error in deciding the right of the parties on the basis of section 15 of the Hindu Succession Act which would not be applicable to the instant case as the suit lands being agricultural lands and held under Bhumiswami rights. Therefore, the provisions pertaining to devolution contained in the M.P. Land Revenue Code, 1959 would be applicable. See Nahar and others v. Mst. Dokalhin and others 1074 JLJ 250: 1974 RN 136 (FB). The original section 164 of the M.P. Land Revenue Code, 1959 which deals with the devolution had been substituted by section 2 of the M.P. Act No. 38 of 1961. But in the instant case, since Mst Sumitrabai died in the year 1960, the provisions of the repealed section 164 would be applicable, which was as follows:

164. Devolution.--(1) Notwithstanding any law, custom or usage to the contrary, the interest of a Bhumiswami shall on his death devolve in accordance with the order of succession given below :-

Class I--Son, predeceased sons son, son of a predeceased sons predeceased son, widow or husband as the case may be, predeceased sons widow, widow of a predeceased sons predeceased son and widow of a predeceased sons predeceased sons predeceased son.

Explanation I--A grand son whose father is dead and great grandson whose father and grandfather are both dead shall inherit equally with the son.

Explanation II--The widow of the deceased or if there are more widows than one, all his widows together shall take the same share as that of a son, the widow of a predeceased son shall in her it in the manner as a son if there is no son surviving of such predeceased son and in the like manner as a sons son if there is surviving a son or a sons son of such predeceased son. The same rule shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

Class II--Daughter.

Class III--Father.

Class IV--Mother (if she is a widow).

Class V--Step mother (if she is a widow).

Class VI--Brother of the whole blood,

Class VII-Brother of a half blood (being a son of the same father).

Class VIII--Daughters son.

Class IX--Brothers son.

Class X--Brothers sons son.

Class XI--Fathers father.

Class XII--Fathers mother (if she is a widow).

Class XIII-- Sister.

Class XIV--Sisters son.

Class XV--Paternal uncle (fathers brother)

Class XVI--Paternal uncles son (fathers brothers son).

Class XVII--Paternal uncles sons son.

Class XVIII--Fathers fathers father.

Class XIX=Fathers fathers mother (if she is a widow).

Class XX--Fathers paternal uncle.

Class XXI--Fathers paternal uncles son.

Class XXII--Fathers paternal uncles sons son.

Explanation. --(1) If there are more heirs than one of the same class, other than class I who shall inherit per stripes, all shall share equally.

(2) Notwithstanding anything contained in sub-section (1) where the interest of a Bhumiswami is inherited by a female: --

(a) from her father or mother, such interest on the death of the female shall, in the absence of her heirs of Class I or Class II of the order of succession specified in sub-section (1), devolve upon the nearest surviving heir of her father as ascertained in accordance with the provisions of sub-section (1),

(b) from her husband or her father-in-law in such interest on the death of the female shall, in the absence of her heirs of Class I or Class II of the order of succession specified in sub-section (1), devolve upon the nearest surviving heir of her husband as ascertained in accordance with the provisions of sub-section (1),

(c) as a widow, mother, fathers mother or fathers fathers mother such interest shall, on her remarriage, devolve upon the nearest surviving heir of the last male bolder of such interest as ascertained in accordance with the provisions of subsection (1).

... ... ...

Under that section step-son doss not find mention. That being so, it has to be determined first whether the term, "son" mentioned under that section would include step son as well. If it can be so held, then certainly defendant No. 1 would be a preferential heir of class I to inherit to the share of Mst. Sumitrabai in comparison to her daughters. Otherwise the daughters of Mst. Sumitrabai being class II heir, would be entitled to succeed to the share of their mother in the absence of class I heir.

8. Under the M.P. General Clauses Act, 1957, in the cause of a person governed by personal law permitting adoption, son would include an adopted son. But for obvious reasons, which 1 would explain subsequently, the said provision cannot be extended for the benefit of step sons looking to the scheme of devolution under section 164 of the M.P. Land Revenue Code, 1959 referred to above. In my opinion, in the case of a deceased woman, who was Bhumiswami like here, son would not include a step-son, but a son born of her. Therefore, the line of succession in such a case would be related to the deceased female and not to her predeceased husband. The expression son would mean the one born from the body of the deceased female. 1 was not apprised of any decision of this Court on the point by the learned counsel appearing for the parties but references of other High Courts were cited :

In Bhimacharva Bin Venkappacharya v. Ramcharya Bhimcharya, ILR 1908 (33) Bom 452 the relevant passege reads as under:

That the husband of a childless woman is entitled to inherit her Stridhan before a son by another wife of his seems to us to follow as a necessary corollary to certain decisions of this Court. In Kesserbai v. Vallab Raoji (1899) 4 Bom. 188 it was held that a step-mother could not inherit her step sons property under the term mother but that she could come in only as a gotraj Sapinda on the authority of the decisions in Lakshmibai v. Jayram Hari (1869) 6 Bom HC Rep. 152 and Lallubhai v. Mankunwarbai (1876) 2 Bom. 388 . If a step-mother cannot come in as mother in the line of heirs to her step son but can only come in as a gotraj sapinda, it follows, from the same reasoning, that the step-son cannot come in as son but can inherit only as a gotraj sapinda of his step mother.

In Mallappa Fakirappa Sanna Naggehetti and others v. Shivappa and another AIR 1962 Mys 140 their Lordships of the Mysore High Court while construing the expression son in section 15 (1) (c) of the Hindu Succession Act, 1956 held as under :

It is agreed by the learned Advocates on both the sides that the claim of the plaintiff to succeed as heir to the deceased 4th defendant, depends upon as to whether, a step-son is included in the expression sons in section 15 (1)(a). Whereas the defendant No. 1 is the son of deceased defendant No. 4, the plaintiff is the son of a stepson of the deceased defendant No. 4. The contention of Shri Datar is to the affect that the expression son in section 15 (1) (a) must be understood to include also a step son; but the contention of Shri Venkataramiah is that the expression son in section 15(1) (a) cannot be properly "understood to include a step-son of the deceased It is further pointed by Shri Venkataramiah that so far as a step-son of a deceased female is concerned, the step son would only come under section 15 (1) (b), as the heir of the husband of the deceased female we find that there is much force in this argument advanced by Shri Venkataramiah. In the absence of any definition or explanation to the effect that the word son would also include a step-son that word should be given its natural meaning; if to, a son of a deceased female would mean a male issue of the body of that deceased female. (It may also include a boy taken in adoption, who, in law, stands on the same footing as a natural son; but, with this question, we are not at present concerned.). The position, therefore, is that the plaintiff who is the son of the step-son of the defendant No 4, cannot claim to be a son of the deceased 4th defendant. As the son of the step son be may have the right to succeed under section 15 (1) (b) of the Hindu Sucession Act, as the heir of the husband of the deceased defendant No. 4; but defendant No. 1 being the son of the deceased defendant No. 4, has the right to succeed under section 15 (1) (a) and would be the preferential heir. In the 12th Edition of Mullas principles of Hindu Law, it is stated, with reference to section 15 of the Hindu Succession Act, at page 984, as follows :

A step-son is not entitled as son to inherit to his stepmother as one of the heirs under this Entry. But he can succeed to her property as an heir of her husband under Entry (b).

In Gurbachan Singh v. Khichar Singh and another : AIR 1971 P & H 240, wherein also the expression son in section 15 (1) (a) of the Hindu Secession Act, 1956 was the subject of interpretation. This is what has been held as under :

.........The expression son as used in Section 15 (1) (a) includes both natural and adopted sons If a female remarries after the death of her first husband or after divorce, her son from the other Husband would be her natural son. A son may even be illegitimate when the female from whose body be is born is not the lawfully wedded wife of the person from whose loins such a son is born but he will still be natural son of his mother when the question of succession on her dying intestate arises. In the matter of succession as regulated by clause firstly, of section 15 (1) (a), the expression son thus includes the child born from the body of the deceased no matter what be the legal relationship between her and the person from whose loins he is born.

Thus, it is clear that the expression son in S. 15 (1) (a) of the Hindu Succession Act, 1956 does not include a step-son and on the same analogy I find no difficulty in holding that the expression son under Class I heirs mentioned in section 164 of the M.P. Land Revenue Code 1959 does not include a stepson. The non-inclusion of a step-son in any of the classes of the heirs mentioned under sub section (1) of that section in also not an omission but it was in the wisdom of the Legislature. Therefore, the expression son has to be given its natural meaning as one born from the body of the deceased female. It is also manifest from the scheme of the devolution as given under section 164 that step-mother (if she is a widow), brother of the whole blood and brother of the half Blood (being a son of the same father) find mention in Classes V, VI and VII respectively. As such if the Legislature wanted to include a stepson, that would have found mention in or along with twelve classes of heirs mentioned under sub-section (1) or separately as a class. It is not within the province of the Courts to sit in judgment on the wisdom of the Legislature and till the provisions are on the statute book they have to be followed as they are I, therefore feel no hesitation in holding that the expression son in class I heirs of sub-section (1) of section 164 does not include a step-son born from another wife from the same husband.

9. Then, the provisions of Clause (b) of sub-section (2) of S. 164 of the Act, which are relevant, are very clear with regard to devolution in the case of a deceased Bhumiswami if she is a woman. Applying them in the presence of two daughters (plaintiff and defendant No.2) of the deceased Smt. Sumitrabai, who are class II heirs under sub-section (1) of section 164, her step-son (defendant No. 1) was rightly held not entitled to inherit her. He would have been entitled to inherit Mst. Sumitrabai only in the absence of class I and II heirs which is not the position here.

10. No other point was raised before me.

11. For the reasons stated above this appeal fails and is dismissed with costs. Since defendant No. 2 (respondent No. 2) did not contest the appeal here there shall be no order as to costs with respect to her, Defendant No. 1 (appellant) shall pay the costs of the plaintiff (respondent No. 1) alone and bear his own. Counsels fee as per schedule or a certificate whichever is less.