V. Bhargava, J.
1. This is a defendant-appellant's appeal arising out of a suit brought by the plaintiff-respondent for recovery of possession of certain property against the defendants.
2. The findings of fact given by the lower court show that the plaintiff-respondent was the transferee of the rights in the property in suit from Srimati Dhiraj Kunwar daughter of Ram Bux Singh who was the last male owner of the property. Srimati Dhiraj Kunwar died and the defendants took possession of the property without coming to court It has also been found that the defendants are the reversioners of Ram Bux Singh so that, on the death of Srimati Dhiraj Kunwar and on their repudiation of the transfer made by her in favour of the plaintiff-respondent, they were the owners of this property.
The trial court dismissed the suit holding that the plaintiff respondent was not entitled to take back possession from the defendants who had dispossessed him. The lower appellate court held that the plaintiff was entitled to a decree for possession on the ground that dispossession of the plaintiff by the defendants without bringing a suit for cancellation of the transfer made by Srimati Dhiraj Kunwar in favour of the plaintiff was illegal. It appears that in this case the learned Judge of the lower appellate court did not correctly appreciate the points that arose for decision.
The question that arose for decision really should have been put in this form. The defendants, after the death of Srimati Dhiraj Kunwar, are the persons entitled to the property as reversioners of Ram Bux Singh. They have already dispossessed the plaintiff who had obtained possession by virtue of a transfer made by Srimati Dhiraj Kunwar, which transfer was valid for her life but was voidable on her death at the option of the reversioners. Can the plaintiff now claim to be put back in possession?
It is clear that the defendants, who are the reversioners, exercised their right of repudiating the transfer after the death of Srimati Dhiraj Kunwar by dispossessing the plaintiff. This act of theirs amounted to a repudiation of that transfer. They had an alternative remedy of giving effect to this repudiation by bringing a suit against the plaintiff. The fact that they had such a right to bring a suit did not, however, bar their exercising the right without the intervention of any court, provided of course that they could do so without committing any criminal offence.
In the present case, the defendants did dis-nossess the plaintiff peacefully. Now that the rightful owners are in possession, the plaintiff, who has no title in the property, cannot obtain the aid of court to dispossess the rightful owners. The leading case on the point which has been referred to by the learned Judge of the lower appellate court also, is that of Bijoy Gopal Mukerji v. Krishna Mahishi Debi, ILR 34 Gal 329 (PC), in which their Lordships of the Privy Council expressed the following view:
'A Hindu widow is not a tenant for life, but is owner of her husband's property subject to certain restrictions on alienation and subject to itsdevolving upon her husband's heirs upon her death.But she may alienate it subject to certain conditionsbeing complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidableat the election of the reversionary heir. He maythink fit to affirm it, or he may at his pleasure treatit as a nullity without the intervention of anyCourt, and he shows his election to do the latterby commencing an action to recover possession orthe property.'
This view expressed by the Privy Council showsthat a reversioner can repudiate a transfer made bya widow and treat it as a nullity 'without the intervention of any court.' Of course, there must besuch specific act committed by him which wouldshow that he has exercised this right of electionvested in him. In the present case, as I have saidearlier, the defendants showed the exercise of theirright of election by dispossessing the plaintiff peacefully without the intervention of a Court. Oncethey did so, their possession became rightful possession over this property. The plaintiff had notitle to the property and, on the basis of mere possessory title, he could not come to court against therightful owners though he could have done soagainst all other persons who had no title in theproperty. The decisions of the Allahabad HighCourt and the Judicial Commissioner's Court ofOudh relied upon by the learned Judge of thelower appellate court which are reported in Kandhyav. Mt Raj Kunwar, AIR 1923 All 367 (2) andBahadur Singh v. N. S. Sultan Hussain Khan, AIR1022 Oudh 171, in no way affect the view expressedby me above and have not been correctly interpreted by the learned Judge. The result is that thisappeal succeeds.
3. The appeal is allowed, the decree passedby the lower appellate court is set aside and the suitof the plaintiff is dismissed with costs in all thecourts.