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Dayal Jawala Vs. Buja Biru and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 64 P. of 1953
Judge
Reported inAIR1959P& H326
ActsHindu Succession Act, 1956 - Sections 14 and 15
AppellantDayal Jawala
RespondentBuja Biru and ors.
Appellant Advocate Jai Kishan, Adv. for; Kishori Lal, Adv.
Respondent Advocate Kidar Nath, Adv.
DispositionAppeal allowed
Cases ReferredLachmeshwar Frasad v. Keshwar Lal. In
Excerpt:
.....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 of the constitution. - it is by now well settled and indeed universally recognised that the hindu succession act confers absolute rights of ownership on widow of the last maleholder in respect of the property left by him, which was in her possession on the date of commencement of the act, even though the husband had died long before the act came into force. it is well established that an appellate court is entitled to take into consideration legislative changes which have supervened since the decision under appeal..........for the appellant that the position was entirely changed on account of the enforcement of the hindu succession act. the gift, according to him, now cannot be challenged. learned counsel for the appellant also argued that the change in the legislation could be taken into consideration by this court in this second appeal. it is by now well settled and indeed universally recognised that the hindu succession act confers absolute rights of ownership on widow of the last maleholder in respect of the property left by him, which was in her possession on the date of commencement of the act, even though the husband had died long before the act came into force. from a reading of section 14 of this act it is clear that it is made expressly retrospective.the widow being absolute owner, the.....
Judgment:

Gurnam Singh, J.

1. This regular second appeal arises out of a suit for a declaration. Shrimati Nanki, was a limited owner of the property inherited by her from Partapa, her husband. She made a gift of the property in dispute including the agricultural land and a residential house in favour of her picnhlag son Dayal. Buja and Labhu, fourth degree collaterals of the last maleholder, instituted the present suit for a declaration that the gift of the ancestral property made by Shrimati Nanki was not binding upon their reversionary rights.

The suit was resisted on several grounds by Shrimati Nanki and her son Dayal. The trial Court decreed the suit of the plaintiffs. The defendants appealed to the District Judge. The learned Additional District Judge, Patiala, by his order dated 15-12-1952 dismissed the appeal. Both the Courts found that the plaintiffs were fourth degree collaterals of the last maleholder and Shrimati Nanki being a limited owner was not competent to make the gift. The present appeal by the defendant is directed against the findings of the Courts below.

2. It was argued by the learned counsel for the appellant that the position was entirely changed on account of the enforcement of the Hindu Succession Act. The gift, according to him, now cannot be challenged. Learned counsel for the appellant also argued that the change in the legislation could be taken into consideration by this Court in this second appeal. It is by now well settled and indeed universally recognised that the Hindu Succession Act confers absolute rights of ownership on widow of the last maleholder in respect of the property left by him, which was in her possession on the date of commencement of the Act, even though the husband had died long before the Act came into force. From a reading of Section 14 of this Act it is clear that it is made expressly retrospective.

The widow being absolute owner, the question of reversioners in such cases does not arise. The heirs of the last full owner who would be entitled to succeed to his estate on the death of a limited heir were called reversfoners. Their interest naturally was expectant on death of a limited heir. It was not a vested interest. That being so the reversioners had a mere chance of succession, Their right to demand the preservation of the estate during its enjoyment by the limited heir was recognised. Thus they were entitled to bring a suit seeking declaration that the alienation by the limited heir was not binding on their reversionary rights. The Hindu Succession Act has, however, brought a revolutionary change in the status of these reversioners. In my view the combined effect of Sections 14 and 15 of this Act is that the so-called, reversionary heirs are no more so, as the estate of a limited heir is no more a limited estate. That being so they have no vested right in the estate and no chance to succeed.

In such a situation, in my opinion, they have no right to bring a suit for a declaration questioning the alienation by a full owner. Their right of reversion or any kind of spes successionis is completely ousted by this Act. This view of the matter, in my opinion, does not admit of any doubt. The following authorities abundantly support this view: Hari Kishan v. Hira, (S) AIR 1957 Punj 89, Venkayamma v.Veerayya, (S) AIR 1957 Andh Pra 280, Elliah v. Gangamma, AIR 1957 Andh Pra 776, Gostha Behari v. Hari Das, AIR 1957, Cal 557, Thailambal Ammal v. Kesawan Nair, AIR 1957 Kerala 86, Dhirajkunwar v. Lakhansingh, (S) AIR 1957/Madh Pra 35, Ram Ayodhya Missir v. Raghunath Missir, (S) AIR 1957 Pat 480; Mt. Janki Kuer v. Chhathu Prasad, (S) AIR 1957 Pat 674 and Sm. Laxmi Debi v. Surrendra Kumar Panda. (S) AIR 1957 Orissa 1.

In view of this abundant authority this position was cot challenged by the learned counsel for the respondents. He, however, submitted that the present case was distinguishable. He pointed out that Shrimati Nanki made this gift before the commencement of the Hindu Succession Act. She was thus not in possession of the property in dispute at the time of the enforcement of the Act. Therefore, she does not derive any help from the Hindu Succession Act. At the time of alienation in favour of her son she was not full owner of the property and was, therefore, incompetent to alienate it.

In these circumstances it was contended that the reversioners were entitled to the declaration prayed for. From the appellant's side it was contended that the alienation before the commencement of the Act did not make any difference as the appellate Court could take into consideration the legislative changes effected during the pendency of the appeal. It was argued that the hearing or an appeal was in the nature of re-hearing and therefore the appellate Court was entitled to take into account the change in law effected after the decree appealed against.

The authorities cited above are undoubtedly divided in a case of this nature where the alienation took place before the commencement of this Act. The Patna authority cited above supports the view advanced by the learned counsel for the appellant. It would be proper to cite that authority straightway. In (S) AIR 1957 Pat 480 the facts were as follows:

'A Hindu female S. executed a sale deed in 1914 in favour of father of defendants 2 and 3. The properties covered by the sale deed were subsequently mortgaged in favour of defendant 1 daughter of S. The plaintiff as the reversioner brought a suit for declaration that the sale deed executed by S. was farzi, without consideration and without any legal necessity and was not binding upon him, All the lower Courts decreed the plaintiffs claim. During the pendency of Letters Patent appeal the Hindu Succession Act came into force. Held that in view of the change in law brought by the Hindu Succession Act, the plaintiff lost his right as reversioner in respect of property held by defendant No. 1, and therefore the plaintiffs' suit must be dismissed as not maintainable. It is well established that an appellate Court is entitled to take into consideration legislative changes which have supervened since the decision under appeal has been given.'

Reliance for the finding that the changes in law could be taken into consideration was placed on the authority of the Federal Court reported in AIR 1941 FC 5, Lachmeshwar Frasad v. Keshwar Lal. In this authority it was observed that:

The hearing of an appeal under the procedural law of India is in the nature of re-hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate Court is entitled fo take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate Court is competent to take into account legislative changes since the decision in appeal was given and its powers are not confined only to see whether the lower Court's decision was correct according to the law as it stood at the time When its decision was given'.

Their Lordships referred to some English cases in the course of their judgment. The Patna view has been consistently followed by that Court. The same view of the matter was taken by Madhya Pradesh High Court in (S) AIR 1957 Madh Pra 38. That Court also held that suit by reversioners was not maintainable. It further found that the provisions of the Act must be applied to a case even at the stage of appeal.

If I may say so, with respect, I entirely agree with the observations made by the learned Judges of the Patna High Court. For the reasons given by the learned Judges in the judgments cited above I am of the view that a suit of this nature by the reversioners is not maintainable in view of the provisions of the Hindu Succession Act. I am, however, bound by the view of the Division Bench of this Court (S) AIR 1957 Punj 89 where it was held that a suit of this nature was competent when the alienation had taken place before the commencement of the Act. The learned Judges deciding the Punjab case had no occasion to consider the Patna view.

It appears from the report that their decision preceded the decisions of the Patna High Court. At any rate those decisions and that of the Madhya Pradesh H. C. were not referred to by them. The view that the Hindu Succession Act does not save the alienations made before the commencement of the Act also found favour with Calcutta, Orissa and Kerala High Courts. Those authorities have already been cited in the earlier part of the judgment. It is, however, recognised by all these authorities that the suit by the reversioners is not maintainable when the alienation is made after the commencement of the Hindu Succession Act as the limited owner became full owner after its enforcement. It is admitted in the present case that the alienation by way of gift was made by Shrimati Nanki in favour of her son before the commencement of the Hindu Succession Act.

That being so following the authority of this Court I hold that the present suit by the reversioners was maintainable. The question, however, is whether this Court should be inclined to grant discretionary relief to the plaintiffs in view of the fact that the person in whose favour the gift is made is a heir to Shrimati Nanki when the succession opens. It is not denied that Dayal defendant is a heir according to the Hindu Succession Act to Shrimati Nanki being her son. He is, therefore, entitled to succeed to her property when the succession opens. In such a case I am firmly of the view that the discretionary relief, in the nature of declaration should be refused.

The declaration, if given, will enure to the benefit of the person succeeding to the property afterShrimati Nanki's death. It is not denied that thedonee is her heir. The gift in his favour is thus inthe nature of acceleration of succession, ft is, therefore, unnecessary to set it aside. It may be mentioned here that all the cases where a contrary viewto that of Patna High Court was taken were casesof sales by widows effected before the Hindu Succession Act came into force. None of these cases is acase of a gift in favour of the next heir. The present case is, therefore, distinguishable. As alreadysaid the gift is in the nature of acceleration of succession, I would, therefore, accept this appeal anddismiss the suit of the plaintiffs.

3. In the result the appeal succeeds and the suit of the plaintiffs stands dismissed. There is no order as to costs in the circumstances of this case.


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