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Hari Kishen and ors. Vs. Hira and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 421 of 1949
Judge
Reported inAIR1957P& H89
ActsHindu Law; Hindu Succession Act, 1956 - Sections 14
AppellantHari Kishen and ors.; Hira and ors.
RespondentHira and ors.;hari Kishen and ors.
Appellant Advocate H.L. Sarin and; K.S. Thapar, Advs.
Respondent Advocate K.L. Gosain and; Raj Kumar, Advs.
DispositionAppeal dismissed
Excerpt:
.....the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227..........the vendor and rs. 1,800 were left with the vendees for payment to trie previous mortgagees. the present suit was filed on the 21st august, 1946, by hira, etc., for the usual declaration that this sale would not affect their reversionary rights on the ground that it was effected without consideration and legal necessity. the vendees contested, the suit on various grounds. the suit, however, was decreed by the trial court on the findings that parties were governed by custom in matters of inheritance and alienation, that the vendees had not paid rs. 1,800 to the previous mortgagees and that the payment of rs. 3,200 to the vendor was not for legal necessity. the trial court also held that the paintiffs were the collaterals of the last male holder and were competent to challenge the sale......
Judgment:

Bishan Narain, J.

1. Salig Ram was the last male holder of the property in dispute in this litigation. On his death his widow Mst. Puni entered into possession of this property. By sale-deed, dated the 7th June, 1946, she sold it to Rain Chand, etc., for Rs. 5,000 and gave possession to the vendees. Sale deed mentions the necessity for this transaction as payment to previous mortgagees and requirement of money for maintenance of the vendor and for her going on tirath yatra. According to the document Rs. 3,200 were paid in cash to the vendor and Rs. 1,800 were left with the vendees for payment to trie previous mortgagees. The present suit was filed on the 21st August, 1946, by Hira, etc., for the usual declaration that this sale would not affect their reversionary rights on the ground that it was effected without consideration and legal necessity. The vendees contested, the suit on various grounds. The suit, however, was decreed by the trial Court on the findings that parties were governed by custom in matters of inheritance and alienation, that the vendees had not paid Rs. 1,800 to the previous mortgagees and that the payment of Rs. 3,200 to the vendor was not for legal necessity. The trial Court also Held that the paintiffs were the collaterals of the last male holder and were competent to challenge the sale. The vendees appealed to the District Judge, Ambala, but without success, and they have now filed this second appeal in this Court.

2. The learned counsel for the appellants half-heartedly urges that the findings given by the lower Courts are erroneous. These are, however, findings of fact and nothing has been urged before us to vitiate these findings. There can be no doubt that the payment of Rs. 3,200 to the vendor for the purposes of going on tirath yatra cannot be considered to be for legal necessity. The learned counsel, however, bases his arguments on the enactment of the Hindu Succession. Act (No. 80 of 1956).

3. The learned counsel first urges that since the enactment of the Hindu Succession Aft the order of succession has been changed and the plaintiffs have now very remote chance of succeeding to the property and therefore the suit should be dismissed as speculative. It is. however, conceded that at the time the suit was filed the plaintiffs were the nearest collaterals of the last male holder. It is true that Courts should in the exercise of their discretion refuse to grant a declaratory decree to the effect that an alienation by a widow shall not affect the reversionary rights after her death if the chances of the collaterals avoiding the transaction are very remote and the Court considers these chances to be merely speculative. This principle, however, is not applicable to the present case when it is conceded that the suit when filed could not be considered speculative. The persons who are now likely to succeed under the new Act could not have filed the suit to avoid the alleged alienation at the time that the present suit was filed as they had no right to succeed to the property, at that time. The declaration given in this suit will enure to the benefit of any person succeeding to the property after the death of the vendor and even if the paintiffs do not succeed to the property It cannot be said that at this stage the suit should be dismissed as speculative. I therefore reject this contention of the learned counsel.

4. It is then urged that under Section 14(1) of the Hindu Succession Act it should be held that since the passing of this Act Mst. Puni became full owner of the property with retrospective effect and therefore the sale by her on the 7th June,1946, cannot be avoided by the collaterals now. Section 14(1) of the Hindu Succession Act reads-

'14 (1) Any property possessed by a female Hindu whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.'

The sub-section thereafter explains the 'property' mentioned in this sub-section. Obviously this sub-section is retrospective in effect and if Mst. Puni is in possession of any property of her husband she has become full owner thereof under this provision of law in the present case, however, Mst. Puni has sold the property now in dispute long before the Act came into force and had part-ed with its possession at the time of the sale. The question arises whether she can be said to be in possession of the property so that in future she could hold it as full owner. As long as she was in possession of the property, it could be said that she was possessed of it and therefore in future she could hold it as full owner, but after its sale it cannot possibly be said that at the time when this Statute came into force she was possessed of the property and if that be not so she can obviously not hold it in future either as full owner or as limited owner. It is true that the sale has been held to be without necessity in the present case' and it has been avoided successfully by the collaterals. This circumstance, however, cannot restore the possession of the property to Mst. Puni on the date that the Act came into force to enable her to hold it in future as full owner. The transaction is binding on her during her lifetime and she has no rights left in this property on account of the sale. Neither under custom nor under any provision of law this property which has been sold outright by her can revert to her. In my opinion Section 14 contemplates that if at the time the Hindu Succession Act. 1956, came into force a female Hindu was possessed of any property, then she shall hold, it in future as full owner. This provision of law will not restore to her any property or any rights in the property which she had parted with before the Act came into force. It is, therefore, clear that this section can have no applicability to the present case. The contention of the learned counsel for the appellants therefore has no force.

5. The result is that this appeal fails and is dismissed with costs.

Chopra, J.

6. I agree.


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