1. This appeal under Clause X of the Letters Patent must fail. The facts are simple.
One Puran Sinsh mortgaged his land in favour of Mohma Singh for a sum of Rs. 3,500/- in the year 1983 Bk. Gopi Singh, Munshi Singh, Kehar Singh and Gokha Singh, his near collaterals, filed a declaratory suit under the customary law challenging the mortgage as without consideration and necessity. This suit was decreed and it was held that the mortgage was for necessity only to the extent of Rs. 2,170/-. Thereafter, Puran Singh sold the land, which was the subject-matter of the mortgage to one Sawan Singh, for Rs. 3,700/-. Again, the same collaterals filed a suit redeclaration that the sale will not affect their reversionary rights as the same was not for consideration and necessity. This suit was decreed and it was held that the sale will not affect their reversionary rights after the death of the alienor except to the extent of Rs. 3,500/-. During the course of the declaratory suit, Sawan Singh had died and the decree was passed against his son Inder Singh, who has been impleaded as his legal representative. Inder Singh sold the land to the aforesaid collaterals for Rs. 3,600/-. Later on, Harchand Singh and Gurdev Singh sons of Inder Singh brought a suit for possession by pre-emption of the land sold by Inder Singh. This suit was decreed. Puran Singh died on the 20th January, 1960. His reversioners filed three suits for possession of the land left by Puran Singh on the basis of the declaratory decree. One suit was filed by Hans Raj son of Kehar Singh, second by Gopi Singh, and the third by Munshi Singh and Joginder Singh sons of Gokha Singh. Each of the branches of the reversioners claimed 1/4th share of the land. It is not disputed that Gopi Singh's suit was decreed, that of Hans Raj was dismissed and so also the suit of Munshi Singh and Jogin-der Singh. Joginder Singh did not appeal, but Munshi Singh did. His appeal was rejected by the Lower Appellate Court. Munshi Singh then came up to this Court in second appeal. The learned Single Judge accepted his appeal. The basis for the rejection of Mushi Singh's appeal in the Lower Appellate Court and the dismissal of his suit in the trial Court was that the Courts below inferred from the sale by Inder Singh to the reversioners that they had consented to the alienation. The learned Single Judge has taken the view that the sale by the vendee to the reversioners after the declaratory decree does not amount to consent to the alienation. Harchand Singh and Gurdev Singh sons of Inder Singh being dissatisfied with the decree passed by the Single Judge in favour of Munshi Singh have come up in appeal under Clause X of the Letters Patent.
2. Mr. S.L. Ahluwalia, learned Counsel for Harchand Singh and Gurdev Singh, contends that sale by Inder Singh to the reversioners of Puran Singh, after they had obtained the declaratory decree, amounts to consent to the sale. We are unable to agree with this contention. Consent cannot be inferred from the mere fact that the reversioners purchased the property after the declaratory decree. To hold this would be contradiction in terms. They were merely purchasing the right of the vendee to possess the land during the lifetime of the vendor, and, therefore, the learned Single Judge was perfectly justified in coming to the conclusion that from the mere fact that after the declaratory decree the land was sold by the vendees to the reversioners, no consent to the sale, which had been challenged, could be spelt out. Mr. Ahluwalia stressed the fact that the declaratory decree does not confer title on the reversioners. There can be no quarrel with this proposition, but this does not in any manner affect the decision of the present appeal. We are not concerned here whether the title vested in the reversioners after the declaratory decree, because we are dealing with the matter after the death of the alienor. After his death, the title does vest in the reversioners. The rule is well-settled that inheritance never remains in abeyance and as soon as succession opens, the estate vests in the next heir. It is another matter that the next heir may not enforce his right and recover possession of the property. But if he does, his title relates back to the date when the succession Opened.
In this view of the matter, we find no force in the appeal.
3. Mr. Ahluwalia then contends that decree for one-half of the land in dispute has been drawn up by this Court. This contention does not appear to be correct. While describing the claim in the decree sheet, it is stated, that, the suit is for joint possession of one-half share of the land in dispute, whereas the operative Part of the decree reads as follows:--
'It is ordered that the appeal be accepted and the decree of the Additional District Judge, Patiala, dated the 28th January. 1966, affirming that of the Sub-Judge IIIrd Class, Rajpura, Camp Bassi, dated the 26th October, 1964, as described overleaf be set aside and the suit of the plaintiff Munshi Singh be and the same is hereby decreed.'
It may be mentioned that Munshi Singh sued for 1/4th share of the estate of the deceased though he was entitled to 1/2 share in the estate in view of Section 8 read with Section 12 of the Hindu Succession Act, 1956. Munshi Singh is a third degree collateral of the last male holder. So far as his co-plaintiff, namely. Joginder Singh son of Gokha Singh, is concerned, he is one degree remote in succession and, therefore, he was not in the line of succession. As a matter of fact, under the law governing succession, the property of Puran Singh would devolve equally on Gopi Singh and Munshi Singh but as Munshi Singh merely sued for 1/4th share and no attempt was made to amend the claim, we are unable to hold that the Single Judge was in error in decreeing the suit to the extent of l/4th.
4. The contention of the learned Counsel for the respondents that Joginder Singh's share should be decreed, is unfounded and cannot be accepted because Joginder Singh did not appeal and in the second appeal no cross-objections have been filed. The judgment qua Joginder Singh has become final and it must stand. Of course, the plaintiff Munshi Singh will get possession of l/4th of the land on payment of 1/4th share of the charge that is on the land by reason of the declaratory decree.
5. For the reasons recorded above,we dismiss this appeal. There will be noorder as to costs.