Judgment

VAIDIALINGAM, J.: The short question that arises for consideration in this appeal, filed by the legal representatives of the deceased defendant, on certificate, is whether on a true construction of the Hindu Law of Inheritance (Amendment) Act, 1929 (Act II of 1929) (hereinafter referred to as the Act), it applies only to the case of a Hindu male dying intestate on or after February 21, 1929 (when the Act came into force) or whether it applies in the case of a Hindu male dying intestate before the Act came into operation and succeeded by a female heir who died after that date.

2. The following pedigree will be useful in appreciating the relationship of the parties as well as the basis of the claim made regarding the title to the properties by the parties.

3. The respondent-plaintiff instituted Suit No. 41 of 1955 in the Subordinate Judge s Court, Jagraon, against the original defendant for recovery of possession of the suit properties. According to the plaintiff, Kirpa Ram was the last owner of the properties. Even during his lifetime his only son Charanji Lal had died. On the death of Kirpa Ram, his widow Bishan Devi became the owner of the properties and was in possession of the properties for her lifetime. After the death of Bishan Devi, her daughter Maya Devi (daughter of Kirpa Ram and Bishan Devi) became her heir and remained in possession of the property till her death. After Maya Devi s death, according to Dharma Shastras the plaintiff, as the daughter s son of Kirpa Ram, was entitled to succeed to the properties which were in the possession of Bishan Devi and later on of Maya Devi, his mother. It was alleged by the plaintiff that the defendant, after the death of Bishan Devi claiming to be entitled to the properties of Kirpa Ram, got mutation in the Revenue Registers effected in his name on or about January 6, 1947. Therefore, according to the plaintiff, the defendant had no right, title or interest to the properties of Kirpa Ram and the mutation obtained by him could not affect the rights of the plaintiff as the daughter s son of Kirpa Ram. On these allegations the plaintiff prayed for a declaration regarding his title to the property and for recovery of possession of the same from the defendant.

4. The defendant contested the claim of the plaintiff on various grounds. He alleged that Charanji Lal did not predecease Kirpa Ram but, on the other hand, after the death of Kirpa Ram, Charanji Lal, his son, became heir and was in possession of the properties left by his father. Charanji Lal died long afterwards, in or about 1926 and, after his death, his mother Bishan Devi became heir to the property left by Charanji Lal, for her lifetime. After the death of Bishan Devi the defendant claimed that he, as a collateral of Kirpa Ram, became entitled to the properties of the latter and, as such, got mutation effected in his favour, according to law. He further averred that Maya Devi did not at all come into possession of the estate after the death of Bishan Devi. In fact the defendant even disputed the fact that Maya Devi was the daughter of Bishan Devi. Even if Maya Devi was the daughter of Bishan Devi, the defendant alleged that according to the custom governing the parties, Maya Devi had no right to the properties left by Bishan Devi. On these allegations, the defendant maintained that he was rightly entitled to the properties of Kirpa Ram and that the plaintiff has no cause of action for having the mutation effected in the Revenue Registers in his favour cancelled.

5. The Trial Court, by its judgment and decree dated February 22, 1956 decreed the plaintiff s claim. It found that Maya Devi was the daughter of Kirpa Ram and Bishan Devi and that the plaintiff was the son of Maya Devi. The Trial Court further found that Charanji Lal did not pre-decease his father Kirpa Ram but, on the other hand, after the death of Kirpa Ram, Charanji Lal was the last male holder of the entire property and was in possession, as such, till his