JUDGMENT - A.A. DESAI, J.:---This appeal raises the questions as to whether :---

A. Members of the tribes notified by the Constitutional (Scheduled Tribes) Order, 1950, (hereinafter referred to "the order of 1950") are deemed to be scheduled tribe regardless of the area specified in relation to them for the purposes of exception as provided under sub-section (2) of section 2 of the Hindu Succession Act, 1956 (hereinafter referred to "the Act of 1956) ?

B. The Scheduled Castes and Scheduled Tribes Order (Amendment) Act of 1976 (hereinafter referred to the Act of 1976) being a declaratory Statute, operates retrospectively ?

2. The plaintiff Shantabai married to late Hari. She was his second wife. She gave birth to daughter Suman. Hari died in 1961. Suman died in 1966. Defendants Nos. 1 and 2 are respectively brother and mother of Hari. Defendant No. 3 Smt. Chindhi is a daughter of Hari from first wife.

The parties have been the residents of District Wardha which is within the region known as Vidarbha. The region was a part of the erstwhile State of Madhya Pradesh.

3. According to the plaintiff, Ramnath father of Hari, died in 1947 leaving behind him the property more specifically described in the schedule. In the property, her husband Hari had a 1/3rd share. She further claimed that herself, Suman and Chindhi each had a 1/3rd share in the property of late Hari; since Suman died she is entitled to 2/3rd share. In the entire property left by Ramnath the plaintiff thus claimed 2/9th share. In 1968 she filed suit for partition and separate possession.

4. According to the defendants, there was a partition of the joint family property in the year 1952 and Hari was given his separate share. The plaintiff is entitled only to 1/2 share in the 1/3rd share of Hari.

The defendants contended that they being Halba Koshtis by caste have been notified as a Schedule Tribe. As such, as laid down under sub-section (2) of section 2, the provisions of the Act of 1956, have no application. The parties are governed by old Hindu law as well customary law. They further contended that the plaintiff in 1966 remarried with one Shri Mahadeo Dekate. As per the provisions of Hindu Widows Remarriage Act, 1856 her right in the estate of Hari has completely been extinguished. She met with a civil death.

5. The learned trial Judge after taking into consideration, the evidence on record upheld the contention of the defendants and dismissed the suit. In appeal by the plaintiff, the Appellate Court confirmed the finding of partition and also allotment of 1/3rd share in favour of Hari. The Appellate Court also maintained that parties being Halba Koshti belong to Scheduled Tribes. The plaintiff remarried by Pat with Mahadeo Dekate.

6. The learned Appellate Judge has, however, held that the parties came to be notified as a Scheduled Tribe by the Act of 1976. The Act has no retrospective effect. The provision of the Act, 1956 would be applicable to them when succession opened on the death of Hari in 1961. It is further held that subsequent remarriage of the plaintiff would not divest the right so vested in the plaintiff. She cannot be said to have met with civil death. The Appellate Judge, therefore, set aside the judgment and decree dismissing the suit. The appeal was partly allowed. The original defendants presented the instant second appeal raising the questions as formulated.

7. The Parliament enacted the Act of 1956 to amend and codify the law relating to intestate succession among Hindus. As per sub-section (2) of section 2, however, the Act has no application to the members of any Schedule Tribes within the meaning of Clause 25 of Article 366 of the Constitution of India. This Article defines, "Scheduled Tribes", which means "such Tribes or Tribal-communities or parts or groups within such Tribes or communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution. Clause 1 of Article 342 authorises the President to notify the Trib

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