ORDER

This appeal has been filed on behalf of the defendant to the suit in question. Respondent Nos. 1 and 2 (hereinafter to be referred to as the respondents ) filed the aforesaid suit for declaration that the registered sale deed dated November 12, 1960 executed by their mother (respondent No. 3) in favour of the appellant was invalid because on that date she had no title over the lands in question. On behalf of the respondents it was asserted that their mother after the death of their father, Khuman Singh some time in the year 1955-56 remarried in the year 1958 and because of that she forfeited the right to the lands which had devolved on her as widow.

2. There is no dispute that Khuman Singh, the father of the respondents was a pakka tenant in respect of 23 Bighas of land in Khata No. 27 which is the subject matter in dispute. He died some time in the year 1955-56 before coming into force of the Hindu Succession Act (hereinafter referred to as the Succession Act ). according to the respondents, their mother had become a pakka tenant after the death of their father under the provisions of the Madhya Bharat Land Revenue and Tenancy Act (hereinafter to be referred to as the Tenancy Act ), but as she remarried in the year 1958, she forfeited the right of pakka tenant and as such she could not have transferred the lands through the registered sale deed in favour of the appellant on November 12, 1960. The transfer was questioned by the respondents saying that under the provisions of the Tenancy Act after remarriage, their mother forfeited her right over the lands in question, and such lands devolved on the respondents.

3. The trial court decreed the suit holding that the mother of the respondents had no right, title or interest over the lands in question after she remarried in view of the provisions of the Tenancy Act. That finding was affirmed by the court of appeal and by the High Court by dismissal of the second appeal filed on behalf of the appellant.

4. According to the appellant, as respondent No. 3, the mother of the respondents, after coming into force one the Succession Act had become the absolute owner in respect of the property in her possession, she could have conveyed a valid title to the appellant by the sale deed aforesaid.

Section 4 of the Succession Act is as follows :

"4. Overriding effect of Act.-

(1) Save as otherwise expressly provided in this Act-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect of any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

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

On a plain reading sub-section (1) gives the provisions of Succession Act an overriding effect. But sub-section (2) of Section 4 is in the nature of proviso i.e. exception to sub- section (1). It clearly says that nothing contained in the said Act shall deem to affect the provisions of any law for the time being in force;

(i) providing for the prevention of fragmentation of agricultural holding;

(ii) for fixation of ceiling;

(iii) for devolution of tenancy rights in respect of such holdings;

5. According to the respondents because of sub-section (2) of Section 4 of the Succession Act the provisions of Succession Act have overriding effect over the provisions of the Tenancy Act. Under the provisions of the Tenancy Act, because of Section 83 read with Section 8