Rangnekar, J.
1. This is a petition for letters of administration of the property and credits of Hargovandas Narotamdas, deceased. The petitioner is his widow, and the defendant is the eon of the paternal uncle of the deceased and has filed a caveat against the grant of administration to the petitioner. In the affidavit in support of the caveat the grounds relied upon were (1) that the deceased husband of the plaintiff was a member of a joint and undivided Hindu family of which the defendant also was a member, and that the property belonged to the said joint family; (2) that the petitioner was married to the deceased under the Special Marriage Act III of 1872, in the year 1918, and therefore the property of the deceased would be governed by the Indian Succession Act, and the petitioner would be entitled to a half of the share of the deceased in the joint family property.
2. It may be stated that at the death of the deceased his mother was alive, but she died, it is not clear when, but certainly prior to the presentation of this petition.
3. The issues raised are as follows:-.
(1) Whether the succession to the estate of the deceased is governed by the Hindu law or by the Indian Succession Act?
(2) Whether the petitioner is entitled to the grant of letters of administration to the estate of the deceased alone or jointly with the defendant ?
(3) Whether the defendant has any interest sufficient to maintain the caveat ?
4. The last issue is raised on behalf of the plaintiff and has by consent of counsel been argued as a preliminary issue. It is clear that if the finding on this issue is in the negative, then the caveat must fail.
5. It will be apparent from the issues raised that the contention as to the property being joint family property in which the defendant and the. 1 deceased husband of the petitioner were interested as members of a joint and undivided family has been given up. It has been the invariable practice on the Original Side of this Court, not to enter, in a testamentary suit, into the question whether the deceased's property is joint or separate or as to the title to the property. This practice has been upheld in a series of decisions of this Court and I need refer only to Ochava- ram Nanabhai v. Dolatram Jamietram. I.L.R (1904) Bom. 644, s.c. 6 Bom. L.R. 966. Therefore the short question which arises for determination is by what law the rights of the parties concerned are governed.
6. The learned Counsel for the defendant has argued that as the marriage was solemnized under Act III of 1872, the petitioner and her deceased husband ceased to be Hindus, and, therefore, on the death of the deceased husband of the plaintiff' succession to his property would be governed by the Indian Succession Act. It is clear that if the Indian Succession Act applies to this case, then the defendant admittedly has an interest in maintaining his caveat. If, on the other hand, the Act does not apply, then it is obvious he has no such interest. The question, then is : Does the Indian Succession Act govern the rights of succession to the property of the deceased husband of the plaintiff? The argument of the learned Counsel for the defendant is based on the preamble to the Act III of 1872, and to the declaration required by Section 10, and the form of such declaration set forth in the second schedule to the Act.
7. Before I come to deal with this question, there is one point which has been raised in the course of arguments, to which I think I ought to refer. Act III of 1872 was amended by Act XXX of 1923, and Sections 22, 23, 24, 25 and 26 were newly added under that Act. It is contended that the rights of the parties before me are governed by the amending Act of 1928, and that succession to the property of the deceased must be regulated by the provisions of the Indian Succession Act, and that on account of the marriage there was severance of the plaintiff's husband from the joint family.
8. Act XXX of 1923 is an amending Act and there is no provision therein for retrospective effect. Admittedly, the plaintiff's marriage took place in 1918. In my opinion, therefore, the rights of the parties before me cannot be governed by the Amending Act but by the Original Act III of 1872. In order, therefore, to determine the question which has arisen, I have to consider the provisions of that Act and that Act alone.
9. Now turning to the preamble of the Act, it is clear that the Act was intended to provide a form of marriage for persons who do not profess (inter alia) the Hindu religion. The wording of that preamble is important in view of the arguments addressed to me The preamble runs as follows :-
Whereas it is expedient to provide a form of marriage for persona who do not profess (then follow the various religions), and to legalize certain marriages the validity of which is doubtful; it is hereby enacted as follows 1-
10. Section 2 lays down the conditions upon which marriages under the Act may be celebrated. Sub-clause 4 of the section provides that the parties must not be related to each other in any degree of consanguinity or affinity which would, according to any law to which either of them is subject, render a marriage between them illegal, Section 10 provides for a declaration in the form contained in the second schedule to the Act and requires the same to be signed by the parties and three witnesses. Section 18 provides that the issue of any marriage solemnized under the Act, shall be deemed to be subject to the law to which their fathers were subject as to the prohibition of marriages by reason of consanguinity or affinity. The declaration in the second schedule inter alia requires the declarant to say 'I do not profess (inter alia) the Hindu religion.'
11. Mr. Bhagvati argues that taking the declaration, Section 2 and the preamble, the effect is that parties who were Hindus prior to the marriage ceased to be so after the marriage was celebrated under this Act, I am unable, as a matter of construction of the expressions used in the Act, to accept the argument, and, in my opinion, to say that a person does not profess a particular religion is not equivalent to saying that he ceases to by a member of that religion which he professes not to belong to. If that had been the intention of the legislature, there was nothing to prevent them from stating it in clear terms. Not only has that not been done, but it seems there are indications in the Act itself which go to show that the personal law of the parties was not to be deemed to be abrogated merely by reason of a marriage being solemnized under the Act.
12. In the first place the Act was passed, as the preamble shows, to provide a form of marriage for a certain class of persons. It is a matter of common knowledge that the Act was passed to assist Hindus who objected to some of the customary marriage rites and the desired some means of going through a form of marriage which would be legal and binding other than that prescribed by orthodox Hinduism. Then Section 2, Sub-section 4, imposes on the parties who desire to avail themselves of the benefit of the Act, the same restrictions as to a marriage as would be applicable to them under their personal law by reason of consanguinity or affinity; The language used in the sub-section is significant, namely, 'according to any law to which either of them is subject.' Now what is the personal law to which the contracting parties (in this case, Hindus) were subject when they married? Surely it is the Hindu law and no other. Section 18 imposes upon the issue of marriages solemnized under the Act the same restrictions if they marry under the Act, as were applicable to their fathers under the Jatter's personal law. Having regard to the scope and object of the Act, in ray opinion, the declaration required by the Act does not amount to an abjuration for all purposes of the personal law of the declarant bat merely as a statement for the purposes of the Act itself. The very fact that, although this Act has been in force since 1872, not a single case is forthcoming in which it has been held that by reason of a marriage under the Act, questions as to succession and rights to property must be determined by or under any law other than the personal law of the parties, shows that the mere declaration under the Act did not amount to a renunciation of the personal law of the parties. Mr. Bhagvati has not been able to produce a single authority in support of his contention.
13. In In re Jnanendra Hath Ray I.L.R (1922) Cal. 1069, the Calcutta High Court has taken the same view. In that case a widow of a Bramho applied for a grant to her of letters of administration of her deceased husband's estate. She was married to her deceased husband under Act III of 1872. The question arose whether she was entitled to a grant under the Indian Succession Act (X of 1865) or under the Probate and Administration Act (Act V of 1881). The deceased left an infant son, and if the grant issued under the former Act the widow was entitled to one-third of the estate, if under the latter Act, she was entitled to the ordinary right of a Hindu widow under Hindu law. Now it is clear that the grant could issue under the former Act only if the parties were not Hindus (see Section 331 of the Act). One of the arguments was that by reason of the marriage and the declaration under it, made at the time by the deceased owner and the applicant, they ceased to be Hindus. The learned Judge before whom the petition came for hearing took time to consider his judgment and came to the conclusion that a Bramho who married under the provisions of the Special Marriage Act did not cease to be a Hindu and the succession to his property would be governed by the Hindu law. The arguments which have been addressed to me as to the meaning to be attached to the words in the preamble or Section 2 of the Special Marriage Act, and as to the effect of the declaration under the Act were addressed to the Judge in that case. Further the learned Judge pointed out that there was uniform practice on the Testamentary Side in the Calcutta High Court that in cases like this where marriage had taken place under if the Special Marriage Act, letters of administration were granted only under the Probate and Administration Act.
14. I may also refer to the Full Bench case of Matungini Gwpta v. Ram Rutton Roy. I.L.R (1891) Cal. 289. The judgment in the light of the facts and the arguments in that case lends support to the conclusion to which I have come. The facts were that a Hindu widow inherited the property of her husband taking therein the estate of a Hindu widow. She afterwards married a second husband not a Hindu, in a form provided by Act III of 1872, having first made a declaration as required by Section 10 of the Act that she was not a Hindu. The question arose whether by that marriage she forfeited her interest in her first husband's estate in favour of the next heir. It was argued in substance that she ceased to be a Hindu as soon as she married under Act III of 1872, and, there fore, the Hindu Widows Marriage Act XV of 1856, which only applies to Hindu widows, did not apply, and, therefore, she did not forfeit her interest in her first husband's estate. The question was referred to a Full Bench and it was held by the judges (Prinsep J. dissenting) that Act XV of 1856 applied and the widow had forfeited her interest in her first husband's estate on account of her marriage under Act III of 1872
15. I am, therefore, of opinion that the rights of the parties before me are, firstly, governed by the Special Marriage Act III of 1872, and, secondly, they are governed by the personal law of the parties, namely, the Hindu law. That being the case, it is clear that the defendant has no interest to sustain this caveat.
16. In the result the caveat must be dismissed with costs. Letters of administration would issue to the plaintiff. If the plaintiff is not able to recover attorney and client costs from the defendant, then she would be entitled to recover them from the estate of the deceased.