1. Vabadachariar, J.:—This appeal arises out of an administration action. As one of the principal questions to be determined in the case relates to the validity of the Hindu Women's Rights to Property Act (Act XVIII of 1937), a certificate under s. 205 of the Constitution Act was granted by the High Court at Madras, which heard the appeal against the preliminary decree.

2. The last owner of the suit properties was one Aruna-chalam Chettiar, a resident of South India, who owned properties and assets of large value in British India, Mysore, Ceylon, Burma, the Malay States and Cochin China. He married three wives, the first of whom is said to have died in 1913 leaving behind her three daughters and a son; the son died in 1934, leaving the plaintiff, his widow, him surviving. Arunachala married the second wife after the death of the first; but when the plaintiff's husband died, he was left son-less, as the second wife had borne him no son. He accordingly married the third wife in 1935. Arunachala died on February 23, 1938. The two wives, who survived him, are defendants 1 and 2 in this suit. On January 8, 1938, Arunachala executed a will (Exhibit B) and had it registered on the very next day. In view of the then state of his family, which consisted of six women (viz., plaintiff and defendants 1 and 2 and three daughters by the first wife) and a baby daughter of the third wife, he appointed two of his near relatives as executors and entrusted to them the management of his large estate and of the numerous religious and charitable trusts with which he was connected. He directed the executors to arrange for the adoption of three suitable boys by the two wives and by the daughter-in-law respectively; and the will provided that after certain legacies had been paid, the rest of his movable and immovable properties should be equally divided between the three adopted sons. The executors were, in the meanwhile, asked to pay certain sums of money to the plaintiff and to defendants 1 and 2 for their maintenance and for religious expenses. No adoption has taken place in pursuance of these directions of the testator; the executors claim that till the adoptions take place, they are entitled to remain in possession and management of the estate.

3. Under the ordinary Hindu Law, the plaintiff, who is only a daughter-in-law of the last owner, would not be an heir to his estate. But the Hindu Women's Rights to Property Act, 1937, has conferred certain rights on the widow of a predeceased son. The plaintiff claimed that under that Act she was entitled to a half share in the estate. She disputed the genuineness of the will (Exhibit B) but claimed in the alternative that she was, in any event, entitled to possession of a half share after the legacies had been paid. She denied that the executors had any right to remain in possession till the adoptions, if any, should take place. She filed this suit in July 1938 asking for partition and delivery to her of a half share in the estate, after the payment of the legacies (if the Court should hold the the will to be genuine).

4. The executors (defendants 3 and 4) supported the will and claimed that they were entitled to remain in management till the adoptions were made as per the directions in the will. The first defendant, who was the senior widow, denied the genuineness of the will, while the second defendant affirmed it. The first defendant also contended, that even if the will was genuine and valid, the executors were not entitled to retain possession indefinitely. All the defendants joined in denying the plaintiff's claim to a share in the estate. They contended that the Hindu Women's Bights to Property Act was invalid and that, in any event, it had no application to the case. They further contended that even on the basis of the Act, the plaintiff would not be entitled to any share (1) in agricultural lands belonging to the deceased situate in British India, (2) in his immovable properties and personal assets situate outside British India, and (3) in the right to manage the religious and charitable trusts. A question was also raised as to the exact share which the plaintiff could claim under the Act. Of the issues framed in the case, only issues 12, 17 and 18, are now material. They run as follows:—

“(12) Whether Act XVIII of 1937 referred to in the plaint is ultra vires as contended by Defendants and whether at any rate it cannot affect the devolution of the agricultural lands in British India and properties situate outside British India

(17) To what shares are the Plaintiff and Defendants 1 and 2 entitled in the private properties of the propositus

(18) Whether the Plaintiff is entitled to inherit the trust estate held by the testator or whether Defendants 1 and 2 are entitled to the trust estate exclusively”

5. Issue 18 is not happily worded. What was meant was whether the plaintiff could claim the right to take part in the management of the trusts as a co-trustee. The Trial Court found the will (Exhibit B) to be genuine and valid; this finding has been accepted by the parties. It also held that the executors were not entitled to remain in possession indefinitely, pending the adoption; this finding too has been accepted. On a finding that Act XVIII of 1937 was valid, the Trial Court held that the plaintiff was entitled to a half share in all the immovable properties of the deceased situate in British India and in all the movable assets of the deceased wherever situate, subject to the payment of the legacies etc., provided for in the will. As regards immovable properties situate outside British India, the Court held that the rights of the parties should be determined with reference to the lex sitae. It dismissed the plaintiff's claim to a share in the trusteeship of the religious and charitable endowments. A preliminary decree embodying the above declarations and certain other directions, to which it is not now necessary to refer, was passed on 26th October 1940. On appeal, the High Court at Madras modified this decree, limiting the plaintiff's right (1) in respect of the immovable properties of the deceased in British India, to a share in non-agricultural properties and (2) in respect of the movable properties of the deceased, to a half share in so much only thereof as lay within British India. The High Court gave certain further directions which are not material to this appeal.

6. The plaintiff, who has filed this appeal, questions the correctness of the decision of the High Court on two points—(1) the limitation imposed in respect of the movable properties, to the effect that she can claim a share only in so much thereof as are within British India; and (2) the rejection of her claim to a share in the management of the religious and charitable trusts. The widows of the deceased impugn the correctness of the decision in favour of the validity of Act XVIII of 1937. They also contend that on its true construction, it does not operate to give the plaintiff a share in the properties which form the subject matter of this action. They further contend that if the plaintiff's claim to a share in the foreign assets should be upheld, she would not on a proper interpretation of the Act be entitled to more than a third share. As two of the defendants' contentions, viz., the one relating to the validity of the Act XVIII of 1937 and the other relating to the applicability of the Act to the properties claimed in this suit, go to the root of the plaintiff's claim, it will be convenient to deal with them at the outset

7.The question relating to the validity of Act XVIII of 1937 has been before this Court on a previous occasion, on a reference made by the Governor-General under s. 213 of the Constitution Act (‘). The circumstances which raised doubts as to the validity of the Act are that the Bill, which ultimately became law (as Act XVIII of 1937), was passed by the Legislative Assembly of the Indian Legislature on the 4th of February 1937, that is, before Part III of the new Constitution Act came into operation, but it was passed by the Council of State only on the 6th of April 1937, that is, after Part III had come into operation and it received the Governor-General's assent on the 14th of April 1937. At the time that the Bill was passed by the Legislative Assembly, the Central Legislature had the power to legislate in respect of all property movable or immovable; but by the time that the Bill was considered by the Council of State, the Indian Legislature had been precluded from dealing with “devolution of agricultural land”, as it was one of the subjects enumerated in List II of the Seventh Schedule. On these facts, various contentions bearing upon the validity of the Act have been advanced: (A) It was contended that on the introduction of the new Constitution on the first day of April 1937, it was no longer open to the Council of State to treat the Bill as one which it could take up for consideration and that therefore the Bill could not be deemed to have been passed by “both Chambers of the Indian Legislature”: (B) It was next said that, by reason of the change introduced by the Constitution Act in the powers of the Indian Legislature, the content of the Bill as passed by the Council of State was different from the content of the Bill as passed by the Legislative Assembly, and that therefore it could not be said that the Council of State “agreed to” the Bill as passed by the Assembly or that the agreement, if any, was “without amendment”: (C) It was further contended that on the true construction of s. 316 of the Constitution Act, any subsequent enactment of the Indian Legislature would have validity only if it had been initiated after the first day of April 1937: (D) It was lastly contended that as the Act purports to deal generally with “property”, it was ultra vires the Indian Legislature so far as agricultural land could be comprehended within that general term and that it was not open to the Court to attempt to give it validity by excluding agricultural land from its operation. On the Governor-General's Reference, this Court after due consideration of the above objections reported that the Act was valid and operative except to regulate succession to agricultural land in the Governors' Provinces. Having regard to the special character of that proceeding, the parties to the present appeal claimed and were allowed liberty to deal with the whole question at length.

(A) Taking the objections seriatim, the first objection rests on the assumption that, when the new Constitution came into operation on the first day of April 1937, everything that had been done before ceased to have any operation or existence in the eye of the law, except in so far as it had been saved by the new Act. In support of this argument, reliance was placed upon the decision in Watson v. Winc where, following Surtees v. Ellison, it was held that a bye-law made under a repealed statute ceased to have any validity thereafter unless the repealing Act contained some pro-Vision preserving the validity of the bye-law notwithstanding the repeal. It was pointed out that it was in recognition of this principle that s. 292 of the Constitution Act expressly provided for the continuance of all existing Indian laws. Reference was also made to rule 9 of the Government of India (Commencement and Transitory Provisions) Order, 1936. In dealing with this contention, it is necessary to consider the terms and effect of s. 317 of the Constitution Act by which some of the provisions of the former Government of India Act were continued. Section 321 of the Constitution Act no doubt purports to repeal the previous Government of India Act, but, as it was the intention of the framers of the Act to bring the federal portion of the constitutional scheme into operation only some time later than the commencement of the provincial scheme, provision was made in Part XIII of the Act for the transition period. As part of the transition arrangement, s. 317 provided that most of the provisions of the former Government of India Act so far as they related to the Central Government and to the Indian Legislature, should continue to have effect, notwithstanding the repeal of that Act. These provisions (with a few amendments) have been reproduced in the Ninth Schedule to the Constitution Act. The words “notwithstanding the repeal” of the old Act and “continue to have effect” are significant. Their effect is to indicate that the provisions relating to the Indian Legislature have been continuous in their operation and I see no justification for importing a theory of repeal and of re-enactment in respect of those provisions. It is true that Parliament thought it necessary or proper to enact s. 292; but that was called for, not merely as a measure of caution but also as a necessary provision to secure the continuance of the laws that had been enacted prior thereto, by the Provincial Legislatures. On 1st April 1937, the provisions of the former Government of India Act ceased to have operation so far as they related to the Provincial Governments and the Provincial Legislatures, and they were replaced by the provisions of Part III of the new Act. The laws, which had theretofore been passed by the Provincial Legislatures, could accordingly be kept alive only by a provision on the lines of s. 292.

8. The argument based upon rule 9 of the Order in Council of 1936 does not seem to me to carry the respondents much further. The reason for the rule is not very clear and the rule itself was repealed by another Order in Council dated 18th March 1937, that is, even before the new Constitution came into operation— (India and Burma Transitory Provisions Order, 1937, rule 9). Beading the two Orders together, it seems probable that rule 9 of the Order in Council of 1936 was intended to place a time limit on certain enactments, viz., those passed by the Indian Legislature prior to 1st April 1937 but intended to come into operation only after 1st April 1937. There was this anomaly about such legislation, that it would have been passed at a time when the Indian Legislature was not subject to the limitations introduced by the new scheme of distribution of powers between the Central and Provincial Legislatures, but that it would come into operation only after this distribution had also come into operation. Such legislation was, for this reason, apparently regarded as not standing on the same footing as other existing Indian law, whose operation had been saved by s. 292 in general terms, and therefore only a limited validity was thought fit to be given to it.

9. If the true position be as above indicated, the argument based on the principle of the decision in Watson v. Winch will not help the respondents. It is not without significance for this purpose to note that, during the transition period, the former Indian Legislature was regarded as continuing to exist and to function. Section 316 of the Constitution Act refers to the “Indian Legislature” but that expression is nowhere defined in the Act; and the Act contains no indication that the old legislature was to be regarded as dissolved and a new legislature was brought into existence, either in fact (by a new election) or even by a fiction of law (by declaring the old legislature to be the Indian Legislature for the purposes of the Act). Reliance was placed on rule 8 of the Order in Council of 1936, according to which, such of the members as had been elected or nominated to represent Burma or Burma constituencies, had to vacate their seats on 1st April 1937. The language of this rule is, if anything, more consistent with the view that the legal existence of the Chambers was regarded as continuing; the provision for some members ‘vacating’ their seats would hardly be appropriate if the intention was that the Chamber itself should be deemed to have been dissolved.

10. Should it however be assumed that the portion of the former Government of India Act relating to the Indian Legislature had been so dealt with by the new Act as to invite the application of the principles relating to the repeal of an enactment, the present question must be determined with due regard to the effect of s. 38 (2) of the Interpretation Act. This provision saves all “things done” during the time that the former law was in force. The ordinary illustration of its application would no doubt be a completed legal act. That would be so when the attempt is made to enforce the legal consequences arising from such act. But the nature of the completion required will depend upon the nature of the act itself. In the present case, the completeness of the action to be taken by the Legislative Assembly consisted in the passing of the Bill through the Assembly; and this had been done as early as in February, that is, long before the old Act was repealed. It is true that this act by itself would not secure to the measure the character of law; but that is not the question here. All that s. 63 of the Ninth Schedule requires is that a Bill should be agreed to by both Chambers, by each of them successively passing it. This passing is a fact in respect of each Chamber; and, as a fact, it had duly taken place so far as the Assembly was concerned, at a time when it had legal existence and was competent to consider and pass the Bill. The rules regulating legislative business contain provisions as to the lapse of Bills in certain contingencies. It has not been suggested that, in the present case, the Bill, which had been passed by the Assembly lapsed according to any of those rules. The position therefore was that, in the beginning of April 1937, the Council of State had before it a Bill, which had been duly passed by the Assembly. I am unable to hold that what had happened, in the meanwhile, deprived the Council of State of the power to deal with that Bill in the usual course.

(B) In dealing with the second objection, it is necessary to keep the question of fact distinct from the question of law. Section 63 of the Ninth Schedule requires that a Bill should be agreed to by both Chambers without amendment, or if any amendment was introduced, such amendment should also be agreed to by both Chambers. The rules relating to legislative business prescribe the procedure to be followed if and when an amendment is sought to be introduced. It has not been suggested in this case that any amendment, in this sense, was introduced when the Bill was before the Council of State; and it has not been denied that, according to the official report, the Bill was reported to have been duly passed by the Council of State without amendment (see Rule 117 of the Council Rules). These are questions of fact and it is not open to the Court to speculate as to what is likely to have been in the minds of the members of the Council of State when they dealt with the Bill. The argument seems to be that, if as a matter of law the Council of State had at that time no power to legislate in respect of agricultural land, the members must be deemed to have passed a Bill dealing only with non-agricultural property and that therefore the Bill passed by them was a different Bill from that passed by the Assembly. This argument mixes up the question of fact with the question of construction. For aught one knows, some of the members of the Council of State might have assumed that, as the Bill had been passed by the Assembly when the old Constitution was in force, it would throughout be governed by the old law. Other members might have thought that the matter was not free from difficulty but that it was not their business to come to a decision upon it and they might have left it to the Court to determine the precise operation of the law. Others still might not have exercised their minds over the question at all. These are certainly “internal” matters which are beyond the jurisdiction of the Court to inquire into. It is of course open to the Court to construe the Act in such manner as it may think proper;, it may, if it thinks fit, hold the Act to be ultra vires. These are questions to be considered under another head of objection (D). But there is no warrant for saying that the Bill was not duly passed by the Council of State or that it was amended when it was before the Council of State.

(C) The argument based on s. 316 of the Constitution Act seems to me to have no force. The second part of the first paragraph of that section is only in the nature of an interpretation clause, declaring that references in the body of the Act to Federal Legislature and Federal Laws shall, during the transition period, be taken to refer to the Indian Legislature and to laws passed by the Indian Legislature. The first part of that paragraph became necessary because, pursuant to the scheme of distribution of legislative powers between the Centre and the Provinces, s. 65 of the former Government of India Act (which defined the powers of the Indian Legislature) was omitted from the Ninth Schedule to the new Act. The result of the opening words of s. 316 is that the general powers, possessed by the Indian Legislature under the former Constitution, are subjected to the limitation introduced by the scheme of distribution of legislative powers between the Centre and the Provinces in the new Constitution. It may be that, as a matter of law, every measure which becomes law after 1st April 1937 must be judged with reference to the new Constitution; and the process of becoming law is completed only when the Governor-General gives his assent to a Bill which has been passed by both Chambers of the Indian Legislature. (Section 68 of the Ninth Schedule.) But there is nothing in the language of s. 316 to support the contention that such a law must be initiated only after 1st April 1937. Reference was made in this connection to certain observations in Subrahmanyan Chettiar v. Muttuswami Goundan. They throw no light on this question. The distinction there drawn was between measures which had become laws before 1st April 1937 and measures passed later. The point of time for the initiation of such later laws was not and had not to be considered in that case.

(D) In dealing with the last contention it may be conceded that Act XVIII of 1937 cannot affect the devolution of agricultural land in the Governors' Provinces; but it would not follow that the Act was on this account wholly ultra vires the Indian Legislature. It was pointed out in the advisory Opinion given by this Court that on the principle of the decision in Macleod's case, the general term “property” used in the Act must, as a matter of construction, be limited to property in respect of which the Indian Legislature had power to legislate. It has been argued that this course would be inconsistent with the answer above given to the second objection. It was presented as a kind of dilemma that the Council of State should either be deemed to have limited the measure to non-agricultural property and thus departed from the measure as passed by the Legislative Assembly, or be deemed to have legislated in respect of all kinds of property and therefore exceeded its jurisdiction. As already stated, this argument mixes up the question of fact with the question of construction or legal presumption. The rule in Macleod's case does not rest on any inference as to the actual intention of the members who took part in the enactment of the measure but on a legal presumption as to the intention to be attributed to the legislature as a legal entity. It is true that the particular combination of circumstances that we find in this case, viz., one state of the law as to the powers of the legislature at one stage and another state of the law as to its powers at another stage, did not exist in Macleod's case; but that will not preclude the application here of the principle of that decision. The efficacy and operation of the Act must, in circumstances like the present, be determined with reference to the point of time when the process of its becoming a law has been completed. The statute considered by their Lordships in Macleod's cas used the wide terms “whosoever” and “wheresoever”. The Court, as a Court of construction, searched for a “reasonable limitation” to these general words and so construed the words as not to attribute to the legislature an effort to enlarge its jurisdiction beyond the powers committed to it. On this view, it was said that in the present case, the word “property” would mean one thing for the Governors ‘Provinces and a different thing for the Commissioners’ Provinces, because, in respect of the latter, the Indian Legislature enjoys the powers of the Central Legislature as well as the Provincial Legislature. This anomaly is the result of the Constitution and is not due to any defect in the measure. If, for instance, the enactment had contained a definition clause stating that “property” in the Act meant all property in respect of which the legislature was competent to legislate, the result would have been the same. In the absence of such a definition, the same result is brought about by the rule of construction recognised in Macleod's case. The objections to the validity of Act XVIII of 1937 are therefore, in my opinion, untenable. It was next contended on behalf of the respondents that the learned Judges of the High Court applied a wrong test in determining whether the properties in the suit were “separate property” within the meaning of s. 3 (1) of Act XVIII of 1937. The learned Judges have dealt very briefly with this point. They proceeded on the footing that the suit properties had come to Arunachala as the last surviving member of a Mitakshara joint family; but they held that the suit properties were separate properties of the deceased because he had full disposing power over them. They were of the opinion that the Act itself was enacted “in order to give a widow and a predeceased son's widow a share in the estate of the deceased over which he had a disposing power,” With all respect to the learned Judges, we think, in the light of the arguments urged before us, that the question requires a more detailed examination of the scheme of the Act with due regard to the established rules of Hindu Law. In cases governed by the Mitakshara School of Hindu Law, the expression “separate property” has sometimes been used, in a limited sense, to denote what is known as self-acquired property. (See Mulla, 9th Edition, paragraph 230). But, judged by the test of power of disposition, two other kinds of property held by a Hindu governed by that law, viz., property obtained as his share at a partition and property held by him as a sole surviving coparcener may, in some measure, resemble self-acquired property. There is, however, this difference between them, viz., that in the case of self-acquired property, the owner's power of disposition will continue to remain undiminished throughout his life-time, unless he chooses voluntarily to throw it into the joint family stock, whereas in the case of the other two kinds of property, his power of disposition will become qualified and his interest reduced the moment a son is born to him or the widow of a predeceased coparcener takes a boy in adoption. It would not therefore be right to place these three kinds of property on the same footing merely on the ground that at a particular point of time, the owner may enjoy unrestricted powers of disposition over them. That is why in enumerating the several items constituting “separate property” in paragraph 230 of his book on Hindu Law, Sir Dinshah Mulla has taken care to add certain qualifying words in respect of items 6 and 7 (share obtained on partition and property held by sole surviving coparcener). The expression “separate property” may be the antithesis of three other expressions, viz., “ancestral property”, “coparcenery property” and “joint family property.” It is necessary to determine, in the light of the scheme of the Act, the particular sense in which the expression has been used there.

11. It is true, as the preamble enacts that the measure was intended “to give better rights to women.” But it must be remembered that the Act was not a codifying Act or even a general amendment of the Hindu Law of Inheritance. It will help us to ascertain the precise scope of the Act, if we can ascertain the defects which it set out to remedy. Even under the ordinary Hindu Law, a widow would in certain circumstances have succeeded to the property held by her husband as the last surviving coparcener or as the holder of a share obtained on partition. By themselves, these cases did not call for the interference of the legislature. It is only if the owner had sons (including in that term, grandsons and great grandsons) that the widow would be excluded by the sons. Legislative interference was therefore required to obviate hardship when the owner left a widow as well as sons. Once we take note of the contingency requiring legislative interference, the difference between separate property in the strict sense and separate property in the loose sense will become apparent. In the former case, the sons would not become coparceners with their father and the inheritance would devolve on them only at their father's death. But in the case of property obtained by the father on partition or obtained by him as the last surviving coparcener, the moment sons are born to him, they will become coparceners and there will be no occasion for the property devolving on them at the death of the father. The closing words of s. 3 (1) of the Act, viz., “devolve upon his widow along with his lineal descendants in like manner as it devolves upon a son” will be appropriate to the former case but not to the latter case. The language of the clause substituted by Act XI of 1938 is slightly different but the scheme remains the same. The widow was certainly not intended to become a coparcener with her husband even during his lifetime. The Act of course intended to redress the widow's disabilities even in such a case; but that redress is provided by sub-s. (2) and not by sub-s. (1) of s. 3. When the sons become coparceners with their father in property which was originally held by him as sole surviving coparcener or as his share obtained on partition, the father and the sons become a joint family within the meaning of sub-s. (2) and when the father dies his widow will under sub-s. (2) get his share.

12. Taking next the case of the widow of a predeceased son or predeceased grandson, the difference between separate property in the strict sense and the other kinds of property above referred to is equally marked. In the case of property obtained by the father on partition or as sole surviving coparcener, the son or grandson would have become a coparcener with the father immediately he was born and when he predeceases the father or grandfather the widow of the son or grandson will get his share under sub-s. (2). But if it is the father's self-acquired property, the predeceased son or grandson would have acquired no right and therefore his widow would be left without any claim to the property. That case is accordingly met by the proviso to sub-s. (1) of s. 3; and this explains why this case is dealt with as a proviso to that sub-section. Here again the expression “inherit in like manner as a son” in the proviso is significant. That is apposite to a devolution of the father's self-acquired property; but in respect of the other two kinds of property, there will be no inheritance by the son as he would have become a coparcener with the father immediately he was born. It is true that, on the above view, the plaintiff in the present case will derive no benefit from the Act, though she happens to be the widow of a predeceased son. But that is due to the circumstance that her husband died before the passing of the Act. Other cases of hardship which, for the same reason, the Act may be unable to remedy, may be easily imagined. If A and B were undivided brothers and the family property passed by survivorship to B, on the death of A leaving a widow, B would be the last surviving coparcener with the possibility of A's widow taking a boy in adoption. According to the recent decision of the Judicial Committee in Anant Bigappa Patil v. Sankar Ram Chandra Patil. A's widow can exercise her power to adopt, even after the family property had devolved on B's widow by inheritance; the result of her so adopting a boy would be to divest B's widow of the whole estate. Even if the adoption should take place after the Act had come into operation, B's widow could derive no benefit by relying upon sub-s. (1) of s. 3. The only possibility of calling the Act to her aid is by the application of sub-s. (2) of s. 3, if a double fiction could be imported so as to justify the assumption not only that the joint family was being continued by the adopted boy but that B must be deemed to have died after the adoption. On this assumption, B's widow could retain a half of the estate as against the adopted son of A, only if B's ownership could be described as an “interest in joint family property.” The possibility of such varying consequences cannot be allowed to control the natural and reasonable interpretation of the Act. It is prima facie prospective and its proper construction and operation must be determined with reference to conditions and contingencies likely to arise after its commencement, because these alone could presumably have been within its contemplation.

13. The following illustration will show that the construction contended for on behalf of the plaintiff may lead to an inequitable result which is hardly likely to have been contemplated by the legislature. When a son is born to A, the owner of a share obtained on partition, the father and the son will become coparceners and if the son should predecease the father, the son's widow would get his share under clause (2) of s. 3. If, at this stage, the father-in-law and the daughter-in-law should divide the property, the father-in-law would be the owner of his share. Should this share be treated as “separate property” within the meaning of sub-s. (1) of s. 3, the result might be that, at the father-in-law's death, his widow would have to share it again with the predeceased son's widow notwithstanding the fact that the latter had already taken a half share as representing her husband. If it is not treated as separate property within the meaning of the Act, the father-in-law's widow would succeed to her husband's share under the ordinary Hindu Law. There is no force in the criticism that such a construction assumes that the legislation has not dealt with all conceivable cases. Obviously, that was not the purpose of the measure. As already explained, it is only a limited measure attempting to give relief in certain cases where it was considered that the existing law involved a hardship.

14. The difference between the position of a person owning self-acquired property and that of a person who happens to be the holder of property as a sole surviving coparcener for the time being is shown by the fact that in the latter case his right as full owner will be reduced to that of a coparcener, the moment an adoption is made by a predeceased coparcener's widow. In the words of the Judicial Committee in Anant Bigappa Patil v. Hankar Ram Chandra Pati this possibility challenges the character of the surviving coparcener's right as an absolute right and creates qualifications which impair its completeness. It is an interest liable to fluctuate both during his life-time and even after his death. According to the observations of the Nagpur High Court, quoted with approval by their Lordships, the property held by a person, who is a sole surviving coparcener, has the potentiality of becoming joint family property at any moment so long as there is a widow entitled to add a male member to the family by adoption. On behalf of the appellant, reliance was placed on a sentence in the judgment of the Judicial Committee in Katama Nachiar's case to the effect that “what is divided goes as separate property.” This sentence must be understood in the light of the observation on the preceding page where, speaking of a case where a person, has male issue, their Lordships contrast “separate property” with “family property”—where separate property must clearly mean self-acquired property—and lower down they add “when property belonging in common to a united Hindu family has been divided, the divided shares go in the general course of descent of separate property.” In this last sentence too separate property evidently refers to self-acquired property and the sentence only lays down that the divided share will follow the same line of descent as self-acquired property. I am accordingly of the opinion that property held by Arunachala as the last surviving coparcener of a joint family cannot be regarded as “separate property” within the meaning of s. 3 (1) of Act XVIII of 1937 and that the plaintiff is not therefore entitled to claim the benefit of the Act.

15. Turning now to the appellant's contentions, I am of the opinion that in respect of one of them, viz., that relating to the movable assets of the deceased abroad, she would be entitled to succeed, if only she could claim the benefit of Act XVIII of 1937. It has not been disputed that the distribution of the distributable residue of the movables, wherever they may be situate, is ordinarily governed by the law of the domicile of the owner at the time of his death: (Dicey's Conflict of Laws, rule 192). It can make no difference for this purpose whether the law of the domicile rests on common law or on statute law. It may be that the collection and administration of these assets will, in some measure, be governed by the law of their locality. But the ultimate succession thereto and the distribution thereof will be governed by the law of the domicile—(see Blackwood v. The Queen). The learned Judges of the High Court do not seem to have doubted the correctness of this proposition; but in applying it to the case before them, they have placed a limited construction on Act XVIII of 1937 and held that it effected a change in the general Hindu Law only in respect of properties lying within British India, whether they be movable or immovable. Two reasons have been given in support of this limited construction of the Act. The first is based on the principle that a legislature must be presumed to deal only with matters within its jurisdiction. With all respect, I am unable to see any scope for the application of this principle here. So far as movable properties are concerned, it is not the legislation that directly acts on them. It only declares the law governing the person. The succession to the movables follows that law because it is the law of the person's domicile. Counsel for the respondents referred in this connection to Provincial Treasurer of Alberta v. Kerr. The observations in that judgment must be understood in the light of the distinction explained in Blackwood v. The Queen between the law relating to succession and the law relating to taxation. The maxim mobilia sequuntur personam which is generally relevant to the former has ordinarily no place in the latter.

16. The second reason given in the judgment of the High Court is that even as a matter of construction, apart from presumption, the language of Act XVIII of 1937 shows an intention to legislate only with regard to properties situate in British India; and the learned Judges rely on sub-s. (2) of s. 1 which provides that the Act “extends to the whole of British India including British Baluchistan and Sonthal Parganas and excluding Burma.” They point out that when the Act was passed by the Legislative Assembly, Burma was part of British India but it was nevertheless excluded and the logical inference, according to them, is that the legislation was not intended to apply even to Burma. This line of reasoning ignores the fact that as early as “July 1936, an Order in Council (The Government of India Commencement and Transitory Provisions Order, 1936) had fixed 1st April 1937 as the date for the commencement of the new Constitution which separated Burma from British India and that it would have been idle for the legislature, with knowledge of that fact, to attempt to include Burma in the legislation. Under the General Clauses Act, as it originally stood, the expression” British India “would have included Burma and therefore the draftsman excluded Burma when he used the expression” British India “in sub-s. (2) of s. 1. The result of that exclusion would no doubt be that a Hindu domiciled in Burma would not be governed by the Act. But that is different from saying that a Hindu domiciled in British India would be governed by the Act only in respect of properties situate within British India. The position as regards immovable property is different because, according to the well established rule of International Law, the law of domicile does not furnish the rule of succession to immovable property”.

17. In the view above stated, a further point was raised on behalf of the respondents with reference to the quantum of share which the plaintiff could claim in the foreign movables. Section 3 (1) of Act XVIII of 1937 uses the word “widow” in the singular and provides that the property shall “devolve upon his widow along with his lineal descendants…” In the present case, the deceased left two widows. It was contended that each of the widows must be held entitled to an equal share with a son or a son's widow and that therefore the plaintiff would be entitled only to a third share. An amending Act, XI of 1938, realised the ambiguity arising out of the use of the singular and it substituted for the original provision a clause to the effect that the widow “or if there is more than one widow, all his widows together” shall be entitled to the same share as a son. This Act XI of 1938 was expressly made retrospective to have effect as if it had come into force on the day that Act XVIII of 1937 became law. Counsel for respondents contended that the law of domicile for purposes of succession must be understood to be the law of domicile “as it existed at the date of the death of the propositus” [Halsbury's Laws of England, title ‘succession’, Vol. VI, paragraph 296; Lynch v. Paraguay Provisional Government Be Aganoor's Trusts] and that as Act XI of 1938 became law only some months after the death of Arunachala, the provision for its retrospective operation cannot affect the rule of succession in respect of foreign movables. It might have been necessary to examine this argument if the provision made in Act XI of 1938 had effected a change in the law as it stood under Act XVIII of 1937. I am, however, of the opinion that the language even of Act XVIII of 1937 must, on its true interpretation, be given the same meaning as the provision in Act XI of 1938 bears. Under the Hindu Law, the widows of a person inherit as a body or as a unit and not as tenants in common, though, after they have so inherited, they may, for convenience of enjoyment, divide the property between themselves. Interpreting Act XVIII of 1937 in the light of this principle, the intention of the Legislature must have been to give to the widows, where there is more than one, a unit of share along with the sons. That this must have been the intention will become clear if we turn to the proviso, which enacts that the widow of a predeceased son shall inherit in like manner as a son. Where a predeceased son has left more than one widow, it could hardly have been intended that these widows should claim a per capita division with the other sons of their father-in-law. Such a division would subject the shares of the other sons to diminution by the mere accident of their brother's death. In this view, the provision in Act XI of 1938 is only in the nature of an explanatory enactment and there will be no justification for making any difference between the foreign movables and the properties in British India, so far as the quantum of the plaintiff's share is concerned.

18. The other contention of the appellant relates to her claim to succeed to the trusteeship held by the deceased, individually or jointly with others, in respect of numerous religious and charitable trusts. On this question, I am inclined to agree with the view taken by the High Court as well as by the trial Court that Act XVIII of 1937 was intended to apply only to property beneficially owned by the propositus and not to anything in the nature of a trusteeship. The Hindu Law has no doubt regarded trusteeship as “property” for certain purposes and it has long been established that the title to the management of religious and charitable trusts follows the line of inheritance from the founder, where no other arrangement has been made therefor. In the present case, we have little or no evidence as to the terms of the foundation in respect of any of the trusts managed by the deceased. Counsel for the appellant drew our attention by way of illustration to four documents (Exhibits III, IV, V and VI); but, even in these instances, it appears from the documents themselves, that in respect of some of them Arunachala was not himself the founder of the trust. Not much, however, turns upon this, because even these documents only provide for management by “his heirs.” It does not seem reasonable to construe the reference to “his heirs” as words not of devolution but of direct gift to them. The question is whether the heirs are to be determined according to the ordinary Hindu Law or according to the provisions of Act XVIII of 1937. In view of the limited objective of the Act, the ordinary rule of Hindu Law must furnish the rule of succession. That the Act was intended to deal only with private property is shown by the provision in sub-s. (3) of s. 3 to the effect that the interest devolving on a Hindu widow under the preceding sub-sections shall be only the limited interest known as a woman's estate. This provision will be appropriate enough in relation to private property where the woman's estate is different from the interest taken by a male heir. But in respect of trusteeship or other similar office, the law makes no difference between the interest taken by a male heir and the interest taken by a female heir.

19. Spens, C.J.:—The facts in this case have been fully stated in the judgment of my brother Varadachariar and I do not propose to repeat them.

20. In this Court a very potent attack was made on behalf of the respondents against the validity of the Hindu Women's Eights to Property Act, 1937, (Act No. XVIII of 1937), based upon the dates upon which the Act as a Bill was passed through the two Chambers respectively of the Indian Legislature and at which the assent to the Bill was declared by the Governor-General. The material dates are:—the Bill was passed by the Legislative Assembly on the 4th February, 1937, it was passed by the Council of State, I understand, on the 4th April, 1937, and the Governor-General declared his assent thereto on the 14th April, 1937. The enactment was duly published in the Gazette on the 17th April, 1937. By virtue of clause 3 of the Government of India (Commencement and Transitory Provisions) Order, 1936, the provisions of the Government of India Act, 1935, other than those of Part II thereof and certain other provisions not material to this case, had come into force on the 1st April, 1937. It was accordingly strenuously argued that as the Bill had neither been passed by both Chambers and assented to by the Governor-General before the 1st April, 1937, nor had been passed by both Chambers and assented to by the Governor-General after the 1st April, 1937, it was not a valid enactment under the provisions of the Constitution Act.

21. Before considering in more detail the arguments advanced before us in support of this attack, I would mention that though the Subordinate Judge dealt at some length with the suggestion of invalidity, it was apparently thought when the case was before him that both Chambers had passed the Bill before the 1st April, 1937, and that it was only the declaration of the assent of the Governor-General that had occurred after the 1st April, 1937. In these circumstances the Subordinate Judge found himself able to support the validity of the Act. The substantial arguments hereafter further referred to of lack of agreement between the two Chambers based on the fact that the Council of State also passed the Bill after the 1st April, 1937, were not raised before him. When the case came before the High Court, this Court had already delivered its opinion on the Special [Reference made to it by the Governor-General under s. 213 of the Constitution Act on the Act in question, in the course of which consideration was given to this aspect of the validity of the Act. (See [1941] F.C.E. at pp. 25 and 26). The High Court contented itself with adopting without discussion the views in favour of validity expressed by this Court in the said opinion. That opinion is not technically binding on the High Court, nor is it binding on this Court. Any opinion of this Court given upon a reference under s. 213 can properly be reconsidered at any time by this Court in any litigation coming before it and should be so reconsidered on the proper request of any party, however much respect for the learned Judges responsible for an opinion and a desire to secure continuity and certainty in the pronouncements of this Court may make a member of this Court hesitate to differ.

22. Implicit in the argument of those appearing for the respondents on this point of the validity of the Act was the assumption that although, an enactment of the Indian Legislature, (which by s. 63 of the Ninth Schedule to the Constitution Act is defined as consisting of “the Governor-General and two Chambers, the Council of State and the Legislative Assembly”), be duly published in the Gazette with the date on which the Governor-General has declared his assent, from which it is to be presumed that a Bill in that form has been previously duly passed by both the Chambers of the Indian Legislature, it is open to this Court to inquire into the proceedings of the Indian Legislature, to ascertain whether and when a Bill in that form passed the respective Chambers and subsequently received the assent of the Governor-General. Realising how invidious always is the jurisdiction of any Court to inquire into the proceedings of a Legislature, I felt unable to act upon any such assumption and required to be satisfied that this Court could properly go behind the scenes and inquire into the history inside the Indian Legislature of the Bill to which the Governor-General had declared his assent on the 14th April, 1937. Sir Erskine May in a passage in his Treatise on the Law, Privileges, Proceedings and Usage of Parliament (Thirteenth Edition, commencing at p. 441) considers at some length the effect on an Act of Parliament of irregularities, contrary to the admitted requirements in procedure for a valid enactment of Parliament, occurring either in connection with the passage of a Bill through either House or in connection with the giving of the Royal Assent. The learned author points out that in modern times there has been no decision of any Court. Parliament with a wisdom and foresight (which might, I venture to think, have with advantage before now been imitated by the Indian Legislature in connection with the Hindu Women's Eights to Property Act, 1937), has always, as soon as any irregularity in procedure, which might conceivably be made the basis of a plea of invalidity of an enactment, has been brought to its notice, promptly proceeded by further Act of Parliament to re-enact or validate the provisions of the doubtful enactment, and so has prevented the matter being litigated in the Courts, and becoming the possible cause of differences between the Legislature and the Courts. This passage obviously implies that otherwise a Court might well investigate the alleged irregularity and feel bound to hold the enactment invalid. To that extent therefore it seems proper for a Court to look into the details of the actual procedure of enactment by a Legislature.

23. Moreover before I committed myself to investigate the alleged invalidity of the Hindu Women's Rights to Property Act, 1937, I also required to be satisfied that the subsequent enactment of the Hindu Women's Rights to Property (Amendment) Act, 1938, against the validity of which, so far as the procedure of the Legislature was concerned, no allegation was or could be made, did not operate to cure any invalidity that might attach to the manner in which the 1937 Act had been enacted. After discussion, I was convinced by the argument of counsel for the second respondent that the Act could not be construed as a re-enactment of the 1937 Act with retrospective effect, and that if the 1937 Act were itself invalidly enacted, only to such portions, if any of the amending Act of 1938 could legal effect be given as were capable of being construed as separate and independent enactments.

24. In my judgment the respondents were therefore justified in requiring the Court to investigate the validity of the legislative procedure in connection with the enactment of the 1937 Act. I notice that the jurisdiction and propriety of this Court investigating the proceedings of the Legislature were discussed and considered in the Special Eeference, [1941] F.C.R. 12, and the opinion of this Court then expressed strengthens my view of the jurisdiction and propriety of making an investigation in this case.

25. In support of the attack on the validity of the Act counsel for the respondents developed a number of points. It was urged that the 1st April, 1937, was an absolute dividing line. Prior to that date the Indian Legislature was the Legislature established and functioning as such under the provisions of and with the powers conferred upon it by the then operative Government of India Act. After the 1st April, 1937, the Government of India Act, 1935, provided for the repeal of the material provisions of the old Constitution Act and for the establishment of a new Federal Legislature with quite new legislative powers and functions as therein set forth. It was of course true that to cover the period prior to the establishing of Federation and the Federal Legislature some temporary transitory arrangement had to be made, and the arrangement made was the continuation for the time being of the existing Indian Legislature despite the repeal of the old Constitution Act, but the legislative powers which that Legislature exercised after the 1st April, 1937, were not the old powers but the new powers which the Federal.

Legislature would exercise as and when constituted. Consequently no enactment could be valid if passed by one Chamber under the old powers of the Legislature prior to the 1st April, 1937, and by the other Chamber and assented to by the Governor-General under the new powers conferred upon that Legislature under the Government of India Act, 1935. The Constitution Act of 1935 did not recognise any such hybrid legislation. It recognised as valid enactments of the Legislature first, laws in force in British India immediately before the 1st April, 1937 (s. 292) and “existing Indian law” as defined in s. 311. It recognised secondly, laws made by the Federal Legislature under the powers conferred thereon by s. 99 and following sections, or by the Indian Legislature exercising such legislative powers in the transitory period under s. 316. For the first class to be valid, they had to be passed or made and in force before 1st April, 1937, i.e., duly passed through both Chambers and assented to by the Governor-General before that date. Moreover clause 9 of the Government of India (Commencement and Transitory Provisions) Order, 1936, indicated that to be valid such laws had also actually to be operative prior to 1st April, 1937. Otherwise their validity might not be saved by s. 292 and they therefore required special enactment to give them any validity. The case of an enactment that had only passed through the Assembly before the material date was a fortiori and it must require special enactment to save it. For the second class to be valid, they had to be initiated and completely enacted under the new powers after the 1st April, 1937, otherwise they could not be Federal Laws. Besides the difference in legislative powers before and after the 1st April, 1937, the composition of the Legislature was so different, it was urged, as to make the Legislature after the 1st April, 1937, no longer the same Legislature as before the 1st April. For this purpose the provisions of clause 8 of the Government of India (Commencement and Transitory Provisions) Order, 1936, were relied upon. By that clause all the members of the Council of State and of the Legislative Assembly who had been elected or nominated to represent Burma or Burma constituencies had to vacate their seats on the 1st April, 1937. When the Bill in question was therefore passed by the Council of State, it was passed by the Upper Chamber of a Legislature radically different in composition to the Legislature at the time when the Lower Chamber had previously passed the Bill. Finally it was urged that even if it were possible for an Act of the Indian Legislature to be held to have been validly enacted under the Constitution Act when it had passed only one Chamber prior to the 1st April, 1937, and the passing by the second Chamber and the declaration of the assent by the Grovernor-General had taken place after the 1st April, 1937, none the less this particular Act could still not be held to have been validly enacted as the Council of State had never agreed to the same Bill as that originally passed by the Legislative Assembly. It was suggested that as prior to the 1st April, 1937, the Indian Legislature then had power to legislate in respect of all property, whereas subsequent to the 1st April, 1937, the power to legislate in respect of certain items of property, and in particular agricultural land, had become under the provisions of the Constitution Act solely within the legislative competence of the Provincial Legislature, it must be presumed that when the Legislative Assembly passed the Bill, that Assembly intended to legislate in respect of all property within its legislative competence, and that likewise when the Council of State subsequently passed the Bill, it must be presumed that it only intended to legislate in respect of property within its legislative competence or at any rate it could not be assumed that it intended to legislate in the same sense in this respect as the Legislative Assembly, and that therefore the two Chambers had never in law agreed to the same Bill, despite the wording having been the same when the Bill was passed by each Chamber.

26. Dealing with the last mentioned argument first, in my opinion when a Court ascertains that a Bill has in fact been passed by both Chambers of the Indian Legislature in exactly the same words and form and has so been assented to by the Governor-General, it is impossible and improper for the. Court further to investigatte whether each Chamber and the Governor-General gave the same meaning and connotation to the common terms used. In this case the Court is asked to act on presumptions. But if the Court can consider presumptions it seems to me impossible to exclude cases where positive; evidence might be offered. In some other case the Court might be asked to act upon allegations of fact that so many individuals voted upon some misapprehension as to the meaning of some word or words used so that no real majority was obtained in favour of a Bill in one Chamber or the other. How could such an investigation be conducted What steps could a Court properly take to obtain evidence on the matter I can see no end to the difficulties which might arise or the conflicts with Legislatures in which Courts might become involved if the Courts ever assumed the right to investigate what meaning in fact this or that Chamber or individual members attributed to words or phrases in a Bill at the time they voted in favour of the passing of it. A similar investigation into the mind of the Governor-General at the time of declaring assent would be not less improper.

27. In my judgment it is not therefore permissible for a Court to investigate the actual meaning or connotation alleged to have been given to or held regarding words and phrases in Bills by individual legislators at the time a Bill is passed by the Chamber of which they are members. Nor do I think that a Court can be asked to make presumptions from the powers of the Legislature at the material dates or from any other circumstances as to the meaning or connotation given to or held regarding words or phrases in Bills by the members of Legislative Chambers who pass the Bills. The powers of the Legislature cannot I think be used to found any such presumptions. If a Court finds that a Bill has been passed in the same words and form by the requisite Legislative Chambers and assented to by the requisite authority, when those Chambers and that authority had legal powers of legislation and assent respectively, the Court must, in my judgment, treat it as a valid piece of legislation so far as the legislative processes are concerned and proceed to construe it as the Court considers that it should be construed, and give the meaning or connotation to the words used which the Court according to the rules of construction which it conceives as binding upon it considers ought to be given to an enactment with those words and in that form. I accordingly am not prepared to hold that this Court should presume that the Council of State and the Governor-General did not legally agree to the Bill as passed by the Legislative Assembly, and that the Act is invalid on that ground.

28. I turn now to the question whether by reason of clause 8 of the Government of India (Commencement and Transitory Provisions) Order, 1936, the Indian Legislature, after the vacation of their seats under that clause by the members elected or nominated to represent Burma or Burma constituencies, was so radically different in composition as no longer to be the same legislature as prior to the 1st April, 1937. It is obviously clear that by absence voluntary or through illness of members, or by vacancy oi seats owing to death the Indian Legislature constantly and continuously varies in composition from day to day. Neither before nor after the 1st April, 1937, was it a requirement of the continuity of existence of the Indian Legislature that there should be elected or nominated members for all seats, still less that all elected and nominated members should be present. It follows in my opinion that by a proper enactment binding upon the Legislature, the compulsory vacation by some members of their seats does not and cannot ipso facto cause the continuing Legislature, less those members, to be a different Legislature in law. Indeed the very opposite deduction, namely, that it is the same Legislature carrying on without the excluded members, seems to me to be the proper one to be drawn from the provisions in question. In my judgment this argument is not well founded.

29. In order to indicate the conclusions to which I have come on the remaining important and difficult points raised against the validity of the Act on behalf of the respondents, some further reference must be made to some of the material sections of the Constitution Act of 1935. It is true that by s. 321 of the Constitution Act the statutory provisions under which the Indian Legislature was functioning were formally repealed. From the reference in sub-s. (b) of s. 321 it is, I think, made clear, if such were necessary, that the repeal is without prejudice to the provisions of the Interpretation Act, 1888. Simultaneously by s. 317, it was enacted that certain provisions of the existing legislation, subject to some necessary amendments consequential on the provisions of the 1935 Act, should continue to have effect notwithstanding the repeal effected by s. 321. Amongst the provisions so continued in effect and set out in the Ninth Schedule to the 1935 Act are a number of existing provisions relating to the Indian Legislature, including the provisions in particular of s. 63 and s. 68 of the Ninth Schedule. These repeat and continue the existing structure of the Indian Legislature, viz., the Governor-General and the same two Chambers, and the same requirements necessary for the valid enactment of a piece of legislation by that continued Legislature. It is to be noted that in s. 63, the requirement is continued that a Bill shall not be deemed to have been passed by the Indian Legislature unless it has been agreed to by both Chambers either without amendment or with such amendments only as may be agreed to by both Chambers, and by s. 68 are continued the provisions that it is only “when a Bill has been passed by both Chambers of the Indian Legislature” that the Governor-General can exercise his power of assent and that a Bill passed by both Chambers of the Indian Legislature shall not become an Act until the Governor-General had declared his assent thereto. It appears therefore that by virtue of s. 317 and the Ninth Schedule the same Indian Legislature is continued in existence after the 1st April, 1937, and the same procedure is continued for the valid enactment of legislation, despite the formal repeal of the old statutory provisions. So far as the provisions hitherto referred to are concerned, it would seem that the repeal of the existing legislation was expressly prevented from interrupting the continuity of the Indian Legislature and of the procedure and requirements for enacting legislation. It is a fact that the legislation in question in this case was in the words and form in which it was published in the Gazette, as passed by the Legislative Assembly and by the Council of State and assented to by the Governor-General. The prescribed requirements existing before the 1st April, 1937, and continued thereafter appear to have been complied with. In my judgment the effect of s. 317 is prima facie to establish the uninterrupted continuation of the Indian Legislature and its legislative procedure, notwithstanding the formal repeal of the existing legislation in s. 321. It continues the same Legislature and the same procedure for legislation. There is no break or division on the 1st April, 1937, by reason of the repeal. In my judgment the fact that one can also pray in aid the Interpretation Act, 1889, in construing the Constitution Act also assists. For if the repeal might be held to affect adversely the passing of the Bill by the Assembly, as such passing was prior to the repeal, it seems to me that s. 38 (2) of the Interpretation Act may well cure any possible invalidity on that score.

30. That takes me to the further consideration, whether the fact that when the Assembly passed the Bill it was functioning under the powers conferred upon it by the then existing legislation (s. 65 whereof, it is to be noted, is not included in the Ninth Schedule), whereas when the Council of State passed the Bill, the Indian Legislature's powers of legislation were those given to it by the Constitution Act of 1935, affect the ‘prima facie conclusions above. In my judgment they do not. It seems to me that the powers of a Legislature, that is to say, the field within which it is authorised to legislate, may vary from time to time without in any way affecting the validity of the enacting processes of that Legislature. Such variation may well result in a Court having to hold legislation ultra vires in part or even in whole, but that, it seems to me, is a different matter from holding that legislation is invalidly enacted. What the powers of a Legislature or the area of authorised legislation are whilst a Bill is going through the different preliminary stages of legislation, cannot in my vieffect the validity of the process of enactment. The area in which a Legislature is authorised to legislate only comes to be examined if and when the enacting operations are complete, should there be any question of the Act being ultra vires, and the material date for the examination of the powers or area of authorised legislation for this purpose is in my judgment the date when the Act becomes law, in this case, the date when the Governor-General declared his assent. The Constitution Act does no doubt cause a very substantial break as regards the legislative powers of the Indian Legislature, between those which it possessed before and those which it possessed after the 1st April, 1937. But for laws of the Indian Legislature to be validly enacted it is not in my judgment necessary that the  Legislature should have had the same powers and the same authorised field of legislation throughout all the stages of the legislation. So far as validity of enactment is concerned, the vital question is in my view not what were the powers of the Legislature at the different stages, but was the Legislature the same at all stages and have the statutory requirements relating to the processes of enactmant been duly complied with. Hence it follows in my judgment that for laws of the Indian Legislature it was not necessary that they should be completely enacted through all their stages either wholly before or wholly after the 1st April, 1937. The transitory provisions continued the Legislature as the same and the enacting processes as the same. As these provisions have in my judgment been complied with by the Indian Legislature in the case of the Act challenged in this case, it follows that it was not in my judgment invalidly enacted. Neither is the suggestion that as the Act was neither existing Indian law on the 1st April, 1937, nor wholly enacted as a Federal law after that date, it is therefore invalid, I think sound, nor do I agree with the argument based on clause 9 of the Government of India (Commencement and Transitory Provisions) Order, 1936. The first suggestion in my view really assumes that after the 1st April, 1937, the Indian Legislature could only validly enact laws of the Indian Legislature to the same extent and in the same manner as the Federal Legislature, had it beenin existence, namely, by passing them through all their legislative stages after the 1st April, 1937. This obvious requirement in respect of laws to be enacted by the Federal Legislature follows from the fact that clearly the Federal Legislature must be a totally different Legislature from the Indian Legislature. But if the Indian Legislature is the same after as before the 1st April, 1937, the position may well be, as in my view it is, very different as regards laws of the Indian Legislature to what it might be in respect of laws of the Federal Legislature. As regards clause 9 of the Order of 1936, that clause seems to me directed to quite another point, namely, a possible very inconvenient construction of s. 292. It seems to me to have been drafted on the assumption that it might be held that an existing law of the Indian Legislature to be saved by s. 292 must not only have been enacted, before but must also have been operative before the 1st April, 1937. Or it may be that it was thought desirable to deal directly with a type of laws in force on the 1st April, 1937, namely, those only to come into operation on or after the 1st April, 1937, which might seriously interfere with the legislative scheme of the Constitution Act. In any event before the 1st April, 1937, it was itself repealed by clause 9 of the India and Burma (Transitory Provisions) Order, 1937. In the circumstances I have not been able to get assistance from this argument.

31. In the result, in my judgment, the Hindu Women's Rights to Property Act, 1937, was validly enacted by the Indian Legislature. What is its proper scope and effect is an entirely different question. It has been argued that it is wholly invalid owing to the difficulty of construing the word “property” in the light of the powers of the Indian Legislature as the result of the passing of the Constitution Act. Alternatively, it has been argued that any such difficulty can and should be met by applying the principles of Macleod's cas. The latter argument prevailed in this Court when the matter came before it on the Special Reference. I respectfully concur in the view which the Court then took and I am unable to hold that the Act is wholly ultra vires and invalid on any such ground.

32. I would only add that I have had ample opportunity of reading and considering the judgment just delivered by my brother Varadachariar. With his findings and conclusions on all the other points raised in this case and dealt with by him in his judgment, I respectfully agree and do not desire to add anything further.

33. Zafrulla Khan, J.:—The validity of Act XVIII of 1937 was considered and pronounced upon by this Court in an advisory opinion delivered on the 22nd April 1941. Before delivering its opinion the Court considered statements filed on behalf of the Government of India and seven of the Provinces and heard the Advocate-General of India and the Advocates-General of Madras and the United Provinces. The position taken up by the three Advocates-General was that the Act was for various reasons invalid, but that if it was to be treated as a valid piece of legislation, it could not operate to regulate succession to agricultural land in the Governors' Provinces. The Court pronounced the Act to be valid but declared that it did not operate to regulate succession to agricultural land in the Governors' Provinces.

34. Before us the validity of the Act was attacked on behalf of the Respondents on two main grounds. The first ground was developed along the following lines. The Act was passed by the Legislative Assembly on February 4, 1937, before Part III of the Constitution Act came into operation. It was passed by the Council of State on April 6, and received the Governor-General's assent on April 14, 1937, Part III of the Constitution Act having in the meantime come into operation. [These dates are taken from the Reference made by the Governor-General relating to the Act under s. 213 of the Constitution Act]. It was clearly, therefore, not an “existing Indian law” which is defined in s. 311 of the Constitution Act as “any law, ordinance, order, byelaw, rule or regulation, passed or made before the commencement of Part III of this Act by any legislature, etc.” Much less was it a “law in force in British India immediately before the commencement of Part III of this Act” within the meaning of s. 292 of that Act. The powers of the Indian Legislature to make laws in pursuance of s. 65 of the Government of India Act, 1919, came to an end on March 31, 1937. Henceforth legislation under the scheme of the Constitution Act could either be Provincial or Federal. Federal laws could only be passed by the Federal Legislature. By April 1, 1937, the Federal Legislature had not yet been set up. It was therefore necessary to make some other provision for the making of Federal laws during the period of transition. Sections 316 and 317 in Part XIII of the Constitution Act made that provision. Section 312 prescribes that the provisions of Part XIII shall apply with respect to the period elapsing between the commencement of Part III of the Act (April 1, 1937) and the establishment of the-Federation.

35. Section 316 says that the powers conferred by the provisions of the Constitution Act for the time being in force on the Federal Legislature shall be exercisable by the Indian Legislature, and that accordingly references in those provisions to the Federal Legislature, and Federal laws, shall be construed as references to the Indian Legislature and laws of the Indian Legislature. These powers became operative only on April 1, 1937, and could not be exercised before that date.

36. Section 317 enacts that the provisions of the Government of India Act, 1919, set out with amendments in the Ninth Schedule shall continue to have effect notwithstanding the repeal of that Act by the Constitution Act. So far as the Indian Legislature is concerned, the provisions set out in the Ninth Schedule prescribe the constitution of the two Chambers of the Legislature and the procedure to be adopted in passing legislation. Section 65 of the Act of 1919 which conferred upon the Indian Legislature the power to legislate was omitted in the Ninth Schedule. This was an inevitable consequence of the division of the field of legislation between the Provinces and the Centre carried into effect by ss. 99 and 100 of the Constitution Act read with the three Lists in the Seventh Schedule.

37. The broad result of the combined operation of ss. 316 and 317 read with the Ninth Schedule was that the Indian Legislature was to be continued during the transition period and was to make laws in conformity with the procedure laid down in the Act of 1919. During that period (that is to say, beginning with April 1, 1937, but not earlier) it was competent to exercise the powers and only the powers conferred upon the Federal Legislature by the Constitution Act.

38. The Legislative Assembly, in exercise of the powers conferred upon it by s. 65 of the Act of 1919, passed the Hindu Women's Eights to Property Bill on February 4, 1937. Had this Bill been agreed to by the Council of State and received the assent of the Grovernor-Greneral before April 1, 1937, it would have become “an existing Indian law” within the meaning of s. 311, and had it been put in force before that date, it would have been a “law in force in British India immediately before the commencement of Part III of this Act”, within the meaning of s. 292 of the Constitution Act and would, by virtue of that section, have continued “in force in British India until altered, repealed or amended by a competent legislature or other competent authority.”

39. A Bill passed by the Legislative Assembly in exercise of the powers conferred by s. 65 of the Act of 1919 could become law only if it was agreed to by the Council of State functioning under the same section. The Council, exercising the powers conferred upon it by the Constitution Act, was not competent to agree to a Bill passed by the Legislative Assembly functioning under s. 65 of the Act of 1919.

40. Section 63 of the Act of 1919 which was continued in force in the Ninth Schedule provides that a Bill shall not be deemed to have been passed by the Indian Legislature unless it has been agreed to by both Chambers, either without amendment or with such amendments only as may be agreed to by both Chambers. The Bill passed by the Legislative Assembly on February 4, 1937, did not become an “existing Indian law” inasmuch as it was not agreed to by the Council of State while it was till invested with powers under s. 65 of the Act of 1919. The Bill passed by the Council of State on April 6, 1937, could not become a Federal law as the Legislative Assembly had not agreed to it in exercise of the powers conferred upon it by the Constitution Act. Therefore, it was contended, the Act was not valid.

41. The Appellant's reply was that the effect of s. 317 read with the Ninth Schedule was that the provisions set out in that Schedule were never repealed and continued in force without a break. Consequently the Indian Legislature also continued to function without a break, subject only to a modification of its powers by virtue of the repeal of s. 65 of the Act of 1919 and its replacement by ss. 99 and 100 read with Lists I, II and III of the Seventh Schedule to the Constitution Act. It was contended that all that was necessary for the valid passing of a Bill by the Indian Legislature was that the Bill should be agreed to by both Chambers, either without amendment or with such amendments only as may be agreed to by both Chambers. The Hindu Women's Rights to Property Act was passed by the Legislative Assembly and agreed to by the Council of State without amendment. This being established it was not within the province of a court of law to investigate the matter any further. The extent of the operation of the Act was a matter relating to construction and was not a question affecting the validity of the Act.

42. I am unable to accept the contention that the Court is debarred from investigating whether a piece of legislation, which appears on the face of it to have been agreed to by both Chambers of the Indian Legislature without amendment and to have received the assent of the Grovernor-Greneral, was or was not validly enacted by reason of any alleged lack of power or capacity in one or both Chambers to function effectively. The line of argument summarised above does not raise a mere matter of procedure regulating proceedings in either Chamber of the Legislature. It calls in question the very capacity of the Legislature to function. The determination of the question raised does not depend upon a construction of the Rules of Business or Standing Orders of the Chambers, but upon the interpretation of and the effect to be given to provisions of the Constitution Act from which the Legislature derives its power to legislate.

43. Gwyer, C.J.:—in delivering the opinion of the Court in In re The Hindu Women's Bights to Property Act repelled the contention that the validity of the Act was open to objection on the ground that it was introduced into the Legislature and passed by the Assembly before Part III of the Constitution Act came into force. He opined that the effect of ss. 316 and 317 read with the Ninth Schedule was—

“that the Indian Legislature which was in existence immediately before the coming into force of Part III of the Act was continued in existence after that date, and was in all respects the same Legislature, though its legislative powers were no longer as extensive as they had previously been.”

44. He went on to observe:—

“In the opinion of this Court, therefore, it is immaterial that the powers of the Legislature changed during the passage of the Bill from the Legislative Assembly to the Council of State. The only date with which the Court is concerned is April 14, 1937, the date on which the Governor-General's assent was given; and the question whether the Act was or was not within the competence of the Legislature must be determined with reference to that date and to none other.”

45. It is true that subject to the elected and nominated members representing Burma or Burma constituencies vacating their seats as from April 1, 1937 [paragraph 8 of the Government of India (Commencement and Transitory Provisions) Order, 1936], the Indian Legislature that continued in existence after the commencement of Part III of the Constitution Act was in respect of its personnel the same Legislature which was in existence immediately before that date. But with great respect I am unable to agree that it was “in all respects the same Legislature, though its legislative powers were no longer as extensive as they had previously been”, if by this it is meant that the only difference that the repeal of s. 65 of the Act of 1919 and the coming into force of ss. 99, 100, 316, 317 and Lists I, II and III of the Seventh Schedule to the Constitution Act, made was that the powers of the Indian Legislature suffered modifications in certain directions. In my judgment the effect of the repeal of s. 65 of the Act of 1919 was that the Indian Legislature was divested of all power to legislate on any subject whatever and by virtue of the coming into operation of ss. 316 and 317 of the Constitution Act, it was immediately invested with power to legislate in accordance with the provisions of the Constitution Act. If it had been a case only of a modification of legislative powers, s. 317 would have provided for the continuance in force of s. 65 of the Act of 1919, subject to the desired modifications. That course was not adopted as the whole scheme of the Constitution based on the Act of 1919 was abandoned and a new scheme was adopted which made a total departure from the scheme of allocation of legislative powers under the Act of 1919 and substituted in its place something organically and fundamentally different.

46. Under the Act of 1919 the Indian Legislature had plenary powers of legislation over the whole field; Provincial powers of legislation being, if one might so put it, a matter of grace, provision for which was made by Devolution Rules promulgated under s. 45-A of that Act. By virtue of s. 65 the Indian Legislature had power to make laws for all persons, for all courts, and for all places and things, within British India; and for all subjects of His Majesty and servants of the Crown within any part of India; and for all native Indian subjects of His Majesty without and beyond as well as within British India; and for the government of officers, soldiers, airmen and followers in His Majesty's Indian forces wherever serving, in so far as they were not subject to the Army Act or the Air Force Act; and for all persons employed or serving in or belonging to any naval forces raised by the Governor-Greneral in Council, wherever serving, in so far as they were not subject to the Naval Discipline Act; and for repealing or altering any laws which for the time being were in force in any part of British India or applied to persons for whom the Indian Legislature had power to make laws. This was radically different from the scheme ushered in by the Constitution Act. Broadly stated, that scheme is that during the transition period the Indian Legislature may make laws for the whole or any part of British India with respect only to any of the matters enumerated in the Federal and Concurrent Legislative Lists, and subject to this power, a Provincial Legislature may make laws for the Province or any part thereof with respect to any of the matters enumerated in the Concurrent and Provincial Legislative Lists. The Indian Legislature has also power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof.

47. A comparison of the two schemes of legislative powers set out in the Act of 1919 and the Constitution Act, makes it quite clear that after the commencement of Part III of the latter Act, it would have been extremely inconvenient, if not indeed altogether impossible, to continue s. 65 of the former Act in force during the transition period subject only to modifications. The operation of that section was, therefore, altogether terminated with the greater part of the rest of the Act and its place was taken by something new and entirely different.

48. In some respects (e.g., with reference to repeal, amendment or modification of certain types of Parliamentary legislation) the legislative powers of the Indian Legislature during the transition period are more extensive than they were prior to April 1, 1937. Except with regard to a Province or any part thereof, they still cover the whole field of legislation, but so far as the Governors' Provinces are concerned they are, except during an emergency, limited to legislation with respect to matters enumerated in the Federal and Concurrent Legislative Lists.

49. That the powers conferred by the Constitution Act on the Federal Legislature which were made exercisable by the Indian Legislature by s. 316 were intended to be exercised only after April 1, 1937, and that the expression “laws of the Indian Legislature” in the latter part of that section meant laws that were to be enacted by the Indian Legislature in future while functioning in lieu of the Federal Legislature, is clear on the language of the section itself but was made clearer still by Sulaiman J. and Yaradachariar J. in the judgments deliverad by them in Subrahmanyan Chettiar v. Muttuswami Goundan. Sulaiman J. there observed:—

“The expression ‘The powers. . . . shall be exercisable, etc.’, obviously implies the exercise of such powers in the future. That has no reference to Acts passed previously in the exercise of powers that existed before the Act came into force, for they come within the category ‘existing Indian law’. It is obvious that ‘the powers conferred by the provisions of this Act’ cannot ‘be exercisable by the Indian Legislature’ unless the occasion arises after the Act has come into force. It follows that the first portion of s. 316 necessarily and unmistakably refers to the Acts which are to be passed thereafter. The second portion begins with the words ‘and accordingly’. The significance of these words is that the second portion of s. 316 is consequential, that is to say, is the result of the exercise of the powers conferred by the provisions of this Act. So that it again follows that this latter provision also must refer to the laws of the Indian Legislature which in, future come to be enacted by the Indian Legislature, in exercise of the powers conferred by this Act on such Legislature.”

50. Varadachariar, J. said:—

“But as contended by the learned Advocate-General of Madras, the expression ‘federal law’ would prima facie seem, on the wording of s. 316, only to comprehend legislation passed by the Indian Legislature after the Government of India Act of 1935 came into operation and not earlier enactments of the Central Legislature, like the Negotiable Instruments Act. The use of the word ‘accordingly’ in s. 316 suggests that the second part of the first paragraph is consequential upon the first and as the first part clearly refers to the transition period—between the introduction of provincial autonomy and the establishment of the Federation—it would seem to follow that the expression ‘laws of the Indian Legislature’ in the second part refers to the laws passed by the Indian Legislature, while functioning as the ‘Federal Legislature’ during the transition period.”

51. Could it be validly contended that Act XVIII of 1937 was passed by the Indian Legislature, while functioning as the Federal Legislature during the transition period because it was passed by one Chamber of that Legislature during the transition period The passing of a law by a Legislature must mean its passing by both Chambers of the Legislature, if the Legislature is composed of two Chambers. This Act was not passed by the Legislative Assembly while functioning as a Chamber of the Indian Legislature during the transition period. It was, therefore, not passed by the Indian Legislature while functioning during the transition period.

52. Section 38 (2) (b) of the Interpretation Act, 1889 was sought to be prayed in aid in support of the contention that the Bill passed by the Assembly in February 1937 could be validly enacted into law by its being passed by the Council of State in April 1937 and receiving the Governor-General's assent thereafter. Section 38 (2) (b) runs as follows:—

“Where this Act or any Act passed after the commencement of this Act repeals any other enactment, then, unless the contrary intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed.”

53. I doubt whether the expression “anything duly done” in the sub-section was meant to include a Bill passed by one Chamber of a Legislature and awaiting consideration by the other. “Anything duly done” must mean some action taken and completed in pursuance of the provisions of the repealed enactment. Assuming that the expression might properly include within its purview a Bill passed by one Chamber of a Legislature, I am unable to appreciate the argument that the sub-section somehow operates to invest the other Chamber which has not yet agreed to the Bill with, power to function in respect of the Bill as if it was still governed by the repealed enactment or enables it to treat the Bill as if it had been passed by the first Chamber in exercise of powers conferred by the repealing enactment which powers became exercisable only after the date on which the first Chamber had passed the Bill. If by virtue of s. 316 a Federal law means a law passed by the Indian Legislature while functioning as the Federal Legislature during the transition period, it must be passed by the Assembly while functioning as a Chamber of the Federal Legislature during the transition period and must be agreed to by the Council of State, also while functioning as a Chamber of the Federal Legislature during the transition period, or vice versa. The repeal of the Act of 1919 may, by virtue of s. 38 (2) (b) of the Interpretation Act, have left unaffected a Bill passed by the Assembly, while functioning under s. 65 of that Act, but in my view the Council of State had as a consequence of the repeal lost the power to convert such a Bill into a Federal law by agreeing to it during the transition period.

54. That Parliament could not by enacting ss. 316 and 317 of the Constitution Act have intended that a Federal law may be validly made by being passed by one Chamber of the Indian Legislature while functioning under s. 65 of the Act of 1919 and by its being agreed to by the other Chamber while functioning as one of the Chambers of the Federal Legislature during the transition period, is illustrated by the difficulties with which the Council of State found itself confronted when it was called upon to deal with this particular Bill.

55. When the Legislative Assembly took the Bill into consideration and passed it, it had power to make laws for all persons, for all courts and for all places and things within British India. It passed the Bill in a form in which it was perfectly legitimate for that Chamber to pass it intending that its provisions should have full force and effect in respect of all descriptions of property (including agricultural land). Before the Council of State could pass the Bill both the Assembly and the Council of State had lost the power to legislate with respect to succession to agricultural land. The Council of State could not take upon itself to decide what the Assembly would have wished to do in the circumstances. It would be a matter of conjecture whether the Assembly would have desired to pass the Bill if it was to be inoperative as regards agricultural land. If the Council had amended the Bill so as to exclude succession to agricultural land from its purview, the Assembly might have refused to agree to the amendment on the ground that it would defeat the main purpose of the Bill. If the Council were to pass the Bill without verbal amendment (the course which it actually adopted) the validity of the Bill might become open to serious question on the ground that the Council had not agreed to the Bill as passed by the Assembly inasmuch as by agreeing to the word “property” in the Bill it could not mean and, therefore, did not mean, anything more than “property, excluding agricultural land.”

56. Not only had the Council of State on April 6, 1937, no power to convert by its agreement into a Federal law a Bill that had been passed by the Assembly while functioning under s. 65 of the Act of 1919 before the transition period, it had clearly no power at all to agree to the Hindu Women's Eights to Property Bill as passed by the Assembly, however much it might have desired to do so, inasmuch as its power to legislate under the Constitution Act did not include power to legislate with respect to succession to agricultural land—a matter which had been expressly and validly included by the Assembly within the purview of the Bill. The Council had not the power to pass the Bill as it came before it; it could pass it only by adopting an amendment which would confine the operation of the Bill to “property, other than agricultural land,” in which case it would be necessary for the Bill to go back to the Assembly for securing its agreement to the amendment. Parliament could not be presumed to have intended to call upon either Chamber of the Legislature to solve such a conondrum.

57. In my judgment, therefore Act XVIII of 1937 is not a valid piece of legislation. It is not an “existing Indian law” inasmuch as it was not made before the commencement of Part III of the Constitution Act; nor is it a Federal law inasmuch as it was not passed by the Legislative Assembly while functioning as a Chamber of the Indian Legislature during the transition period and, therefore, cannot be treated as having been passed by the Indian Legislature while functioning as the Federal Legislature within the meaning of s. 316 of the Constitution Act.

58. The second ground urged against the validity of the Act was that it was not passed in accordance with the requirements of s. 63 of the Act of 1919, which is continued in force in the Ninth Schedule to the Constitution Act. This section lays down, as already stated, that a Bill shall not be deemed to have been passed by the Indian Legislature unless it has been agreed to by both Chambers, either without amendment or with such amendments only as may be agreed to by both Chambers. It was argued that though the Council of State purported to agree to the Hindu Women's Eights to Property Bill as passed by the Assembly without amendment, it must be deemed to have amended the Bill so as to confine the operation of the word “property” used in the Bill to “property, other than agricultural land”, inasmuch as by the date on which the Council passed the Bill, it had been deprived of power to legislate with respect to agricultural land. As the Bill was not returned to the Assembly with the request that the Assembly should agree so to confine the operation of the word “property”, it was not, so ran the argument, agreed to by both Chambers as required by s. 63 and thus could not become law by receiving the assent of the Governor-General. In my view this contention is untenable. On the face of it the Council of State agreed to the Bill as passed by the Assembly without amendment. The requirements of s. 63 were thus fulfilled. The Bill could not be returned o the Assembly to procure its agreement to any amendment as no amendment had in fact been made to the language of the Bill. Had the Council by an amendment expressly limited the operation of “property” to “property, other than agricultural land”, that, no doubt, would have necessitated reference back to the Assembly. The Council, whatever its intention, with regard to which it would be unprofitable, even if it were permissible, to speculate, did not choose to make any actual amendment. There was, therefore, no occasion for the Bill to be returned to the Assembly.

59. A further contention was advanced on behalf of the Respondents on the construction of the Act. It was argued that assuming that the Act was validly enacted, it went beyond the powers of the Indian Legislature inasmuch as it purported to regulate succession to property including agricultural land and thus invaded the Provincial legislative field (Entry 21 of List II). We were, therefore, asked to declare the whole Act invalid. In reply it was argued that the invalid part of the Act, namely, that relating to succession to agricultural land was severable from the valid part which could continue to operate effectively by itself. Alternatively it was argued that the word “property” in the Act should be construed as comprising only those categories of property with respect to which the Legislature which enacted the Act was competent to legislate; that is to say, property other than agricultural land. This last was the view that found favour with the Court when dealing with the matter on reference by the Governor-General. It was there explained that when a Legislature with limited and restricted powers makes use of a word of wide and general import like “property”, the presumption must be that it uses it with reference to that kind of property with respect to which it is competent to legislate and to no other. Gwyer, C.J. observed:—

“There is a general presumption that a Legislature does not intend to exceed its jurisdiction; see cases cited in Maxwell on the Interpretation of Statutes (8th ed.) p. 126; and there is ample authority for the proposition that general words in a statute are to be construed with reference to the powers of the Legislature which enacts it.”.

60. Colquhoun v. Heddon ; ‘Blackwood v. The Queen ; Collman v. Mills ; D'Emden v. Pedde and the well known case of Macleod v. Att.-Gen. for New South Wales were relied upon. With the general rule so stated I am in respectful agreement. I also agree that the question of severability does not strictly arise in this case. The Court cannot in this case be asked to divide the Act into two parts—the part which the Legislature was competent and the part which it was incompetent to enact, inasmuch as “property” is a single word and is not divisible. What the Court is invited to declare is that on the true construction of the word “property” as used in the Act no part of the Act was beyond the powers of the Legislature that enacted it. The difficulty in the way of the acceptance of this invitation is that the Legislature that enacted the Act was the Assembly functioning under s. 65 of the Act of 1919 and the Council functioning under s. 100 (2) of the Constitution Act read with Entry 7 of List III of the Seventh Schedule thereto. The Assembly that passed the Bill had power to legislate with respect to property of all kinds and must be presumed to have intended to and did in fact legislate with respect to all descriptions of property. The Council that agreed to the Bill as passed by the Assembly had no power to legislate with respect to agricultural land. The Legislature that enacted the law was thus neither the Indian Legislature functioning under s. 65 of the Act of 1919 and having power to legislate with respect to every kind of property, nor the Indian Legislature functioning as the “Federal Legislature” during the transition period under s. 316 of the Constitution Act having no power to legislate with respect to agricultural land. It was a hybrid made up of one Chamber of the Indian Legislature functioning under s. 65 of the Act of 1919 and another Chamber of the Indian Legislature functioning as the Federal Legislature during the transition period under s. 316 of the Constitution Act. How are the legislative powers of such a Legislature to be determined

61. Did it have power to legislate with respect to all descriptions of property under s. 65 of the Act of 1919 or had it power only to legislate with respect to property other than agricultural land under ss. 100 (2) and 316 of the Constitution Act read with Entry 7 of List III I venture to think that the proper answer to these queries is that which I have already given, viz., that one Chamber of the Indian Legislature functioning under the Act of 1919 could not co-operate with the other Chamber of the Indian Legislature functioning under s. 316 of the Constitution Act to make valid laws. There is, therefore, no room in this case for the application of the rule laid down by the Judicial Committee in Macleod v. Att.-Gen. for New South Wales.

62. It was faintly suggested that Act XI of 1938 being a validly enacted law, its effect was to confirm Act XVIII of 1937 and to cure whatever defects the latter Act might have suffered from. The Act of 1938 is only an amending enactment. If the Act of 1937 was not validly enacted, it could not be validated by implication by the mere enactment of an amending Act. It is true that any provision in the Act of 1938 which, standing by itself might amount to a complete and effective piece of legislation, would be operative proprio vigore subject to the application of the rule in Macleod's case so far as the construction of the word “property” is concerned; but I am not aware of any doctrine of law or rule of construction by the application of which the Act of 1938 could be held by implication to validate the enactment of the Act of 1937.

63. On all other matters I am in agreement with the judgment just delivered by my brother Varadachariar. My regret at my inability to concur in the views expressed by my Lord and my learned brother on the question of the validity of Act XVIII of 1937 is all the keener as I am in complete sympathy with the object which that Act was designed to achieve. I share my Lord's regret that the Legislature has not so far chosen to put the matter beyond the possibility of doubt by appropriate validating legislation and I venture to express the hope that that course might yet be adopted not only with reference to Act XVIII of 1937, but also with regard to any other measure or measures the validity of which might be open to doubt on similar grounds.

64. [The case was adjourned to the 18th December for delivery of the final directions of the Court.]

65. Dec. 18.—The Court made the following order:—

66. On the case put forward on behalf of the plaintiff before the Courts in Madras the estate left by Arunachala cannot in our judgment be regarded as his “separate property” within the meaning of s. 3 (1) of the Hindu Women's Eights to Property Act (Act XVIII of 1937). On our interpretation of that provision, the plaintiff will be entitled to a half share (subject to the limitations mentioned in the decree of the High Court as to immovable property) only in so much of his properties as may be found to have been his “separate property” in the narrow sense, that is property in respect of which the son would not have been entitled to claim coparcenary rights but only a right of inheritance on the father's death if he had survived the father. Whether there are such properties and what they are will have to be determined before the final decree is passed. This limited claim could not have been made or dealt with on the view taken by the plaintiff's advisers and the Courts in Madras as to the scope of s. 3 (1) of Act XVIII of 1937 but that cannot deprive the plaintiff of what she may be found entitled to in the view that we have taken as to the scope of that section. No question of putting the plaintiff on terms arises because we are still at the stage of the preliminary decree and as to costs, we are directing the costs of all parties to come out of the estate.

67. Another question also arises out of our decision. So far as Arunachala's estate may be held not to have been his separate property, it may be necessary to decide whether the plaintiff has any and what claim to maintenance. We express no opinion as to her right but as this action has been treated as an administration action, it may give rise to difficulties in the future if the matter is not dealt with now. As this question is bound up with the question as to the nature of the property, it will be convenient to have both the questions tried and determined before the final decree.

68. The result is that subject to the provisions hereinbelow made, the appeal is dismissed and the Cross-objections are allowed. The case is remitted to the High Court at Madras with a declaration that (i) in place of clause (a) in the decree of the High Court a provision to the following effect shall be substituted, namely, that out of the estate of the deceased RM. AR. AR. RM. Arunachalam Chettiar comprising the properties described in the plaint Schedules A to D thereto annexed and further amplified by the Receiver's report No. 951 and other further reports of the Receivers appointed in the suit, the plaintiff is entitled to a partition of, and a half-share in such of the aforesaid properties as may be found to have been separate property of Arunachala in the sense explained in the judgment but excluding agricultural land situate in British India and immovable properties situate outside British India,

(ii) that corresponding and consequential variations be made in clauses (b) and (d) of the decree of the High Court to show that the shares of defendants 1 and 2 are reduced to a quarter each only in respect of these properties in which the plaintiff is found entitled to a share and that in respect of other properties defendants 1 and 2 are entitled to a half share each, and

(iii) that the High Court will direct the trial and determination by the Court of First Instance of (a) any claim for maintenance that may be put forward by the plaintiff and (b) any case that may be put forward by the plaintiff as to any of the items of property referred to in clause (i) supra being “separate property” of the deceased, so as to entitle the plaintiff to a share therein.

In the circumstances of the case, we direct that the costs of all parties in this Court shall be paid out of the estate.

69. Leave to appeal to His Majesty in Council granted.