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Jagdish Vs. Barhama and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 85 of 1968
Judge
Reported inILR1970Delhi277
ActsHindu Succession Act, 1956 - Sections 8 and 14
AppellantJagdish
RespondentBarhama and ors.
Advocates: D.P. Sud and; P.N. Nag, Advs
Cases ReferredBhabani Prosad Saha v. Smt. Sarat Sundari Choudhurani
Excerpt:
.....a limited owner should not affect his reversionary rights at the time the succession opens and the suit is decreed, the only effect of the decree is to declare the alienation to be invalid except for the life of the alienor. the declaratory decree does not pass any title to the presumptive reversioner and does not create any right in him in the property alienated. the title still remains in the alienee. he has only a contingent reversionary interest in the estate at that time and he cannot get a declaration that he is next reversioner. it is thus manifest that the declaratory decree obtained by one or more reversioners enures for the benefit of the entire reversionary body and it is only the next heir at the time of the opening of the succession on the death of the limited owner who is..........a compromise was arrived at between the parties) to the effect that after the death of smt. janki, plaintiffs shall be entitled to get 12/44 share of the alienated land without any encumbrance. a decree in terms of compromise was accordingly passed on the same date. smt. janki died on 7-9-1965 and on her death the plaintiff jagdish asserted his claim for possession of the land in terms of the compromise decree. his claim was, however, repudiated by the defendants. he, thereforee, instituted the suit which has given rise to the present appeal. the defendants resisted the plaintiffs claim on various grounds. in this' appeal, however, we are concerned with only one ground which found favor with both the courts below and has resulted in the dismissal of the suit. the plaintiff was.....
Judgment:

Hardayal Hardy, J.

(1) This second appeal is directed against the judgment of the District Judge, Kangra at Dharamsala, affirming the decree of the Senior Subordinate Judge whereby the plaintiff applicant's suit for possession of certain land situate in Tika Dadhuna Dakhali Garh Jamoela, Tehsil Palampur, along with share in Shamilat was dismissed.

(2) The facts found by the Court below are as follows :-

ONESmt. Janki widow of Gulaba sold one-half of her land which she held as a limited owner in favor of Brahma Nanda who was imp leaded as defendant no. 1 in the suit and is respondent no. 1 in this Court. The mutation of the land was made in favor of the vendee on 23-2-1945. On the same date she made a gift of her remaining half share in that land in favor of Smt. Manshan who was defendant no. 2 in the trial Court and is respondent no. 2 here. . The donee is the daughter of the brother of Smt. Janki's husband Gulaba.

(3) Both these alienations were challenged in a suit brought by Jogdish and his father Prabhu on 4-3-1946 on the ground that the same having been made by a widow having only a life-estate in the property were void and ineffective and were not binding on the reversionary rights of the plaintiffs as her husband's collaterals. On 25-7-1947 a compromise was arrived at between the parties) to the effect that after the death of Smt. Janki, plaintiffs shall be entitled to get 12/44 share of the alienated land without any encumbrance. A decree in terms of compromise was accordingly passed on the same date. Smt. Janki died on 7-9-1965 and on her death the plaintiff Jagdish asserted his claim for possession of the land in terms of the compromise decree. His claim was, however, repudiated by the defendants. He, thereforee, instituted the suit which has given rise to the present appeal. The defendants resisted the plaintiffs claim on various grounds. In this' appeal, however, we are concerned with only one ground which found favor with both the Courts below and has resulted in the dismissal of the suit. The plaintiff was constrained to admit that his right to the property in dispute was based on the decree (Ex. P.6) passed in terms of the compromise deed (Ex. P.I.) otherwise he was only a remote reversioner and Smt. Manshan who was the daughter of Janki's husband's brother, was the nearest heir to succeed to the property at the time of Janki's death. He had, thereforee, no right to inherit the property as such.

(4) The question that was raised before the Courts below and has been agitated in this Court is about the nature and effect of the compromise decree. The defendants contend that the decree (Ex. P.6) was for the benefit o.f the entire reversionary body and as such whoever among the reverslioners was nearest at the time of Janki's death, was entitled to succeed. Since under section 8 of the Hindu Successsion Act, 1956; Smt. Manshan was the next heir, the plaintiff could not claim possession on the basis' of the declaratory decree.

(5) The contention urged on behalf of the plaintiff, an the other hand,. is that the decree was personal and it did not ensure for the benefit of the entire body of revrsioners. The Courts below have found that the decree enured for the benefit of all the reversioners and as such the plaintiff alone could not take advantage .of it to the exclusion of the nearer reversioner. A great deal, thereforee, depends upon the nature of the suit filed by the plaintiff, the capacity in which the suit was filed, the parties imp leaded therein, the nature of the compromise and the resultant decree. Ex. D.I is the copy of the plaint in the previous suit. A bare reading of this document makes it clear that the suit was brought in a representative capacity for protecting the property against any injury to the right of the entire body of reversioners.

(6) The parties, imp leaded in the suit were the two plaintiffs viz. Jagdish and his late father Prabhu. On the side of the defendants the persons arrayed were Smt. Janki, the alienor, Brahma Nand Smt. Manshan, the two alienees, and one Shiv Ram legal representative of Charhta, one of the collaterals. The latter was imp leaded as a pro-forma defendant. Ex. P. 1 is the compromise deed. It is signed by all the parties and their lawyers, except Shiv Ram whose name. according to the, compromise was agreed to be struck out from the list of defendants. This document in terms provides that defendants Brahma Nand and Smt. Manshan shall be liable to give 12 Kanals i.e. 12/44 share of the land in dispute to the plaintiffs free from all encumbrances after the death of Smt. Janki and to that extent the alienation shall be deemed to have been cancelled. The document further provides that with respect to the nomaining 32/44 share of the land the plaintiffs' suit shall be treated as having been dismissed. The abadi land shall remain the property of Smt. Manshan. The plaintiffs shall have the right to get their share of 12 Kanals of land partitioned-off and separated from the entire land.

(7) After the above compromise deed was signed by the parties and presented to the Court the statements of their counsel were recorded and in terms of the compromise a declaratory decree with regard to 12 Kanals of. land, out of the total land in suit or 12/44 share out of the whole, was passed infavor of the plaintiffs against the defendants leaving the parties to tear their own costs (vide decree sheet copy Ex. B.6).

(8) These documents leave no manner of doubt that the decree was only a declaratory decree. It did not give any immediate right for possession to the then plaintiffs, rather it was to be effective only after the death of Smt. Janki who till then was to retain all her rights as ' a limited owner. The plaintiff and his father who had brought a suit ' for declaration had merely a contingent right to succeed. They could not claim themselves to be the nearest reversioners so as to be entitled to the property. They sued in a representative capacity and the benefit of the suit, in the event of its success, was to go to whoever was at the time of the widow's death the nearest heir of the last male holder.

(9) It is well settled that till succession opens, no reversioner can claim any right to or interest in the property which is in the posesision of the limite downer. Till then the reversioners interest is merely in the nature of spoes successionis and it cannot be postulated with regard to any particular person whether at the time the interest of the limited owner comes to an end he would be entitled to the property. When the presumptive reversioner brings a suit for a declaration that an alienation by a limited owner should not affect his reversionary rights at the time the succession opens and the suit is decreed the only effect of the decree is to declare the alienation to be invalid except for the life of the alienor. The declaratory decree does not pass any title to the presumptive reversioner and does not create any right in him in the property alienated. The title still remains in the alienee. He has only a contingent reversion interest in the estate at that time and he cannot get a declaration that he is the next reversioner. It is thus manifest that he declaratory decree obtained by one or more reversioners enures for the benefit of the entire reversionary body and it is only the next heir at the time of the opening of the succession on the death of the widow who is entitled to take the benefit of the decree. Reference may be made in this connection to Janki Ammal v. Narayanaswami Aiyer A.I.R. 1916 PC 117 and the observations of Mr. Ameer Ali who delivered the judgment of the Judicial Committee of the Privy Council in V. Venkatanarayana Pillai v. Subbamnal and another 38 Mad 406, Air 1915 PC 124 and in Gokal v. Haira and others A.I.R. 1949 E PUN 414.

(10) It follows that the compromise decree on which the plaintiff in this present suit based his claim was a decree of which all the reversioners could take advantage. It was not open to some of the presumptive reversioners to come to terms either among themselves or with the alienees to fore-close or defeat the rights of the other reversioners. The modus operandi adopted by the parties to the previous suit in striking out the name of the other reversioner Shiv Ram from the suit as a term of the compromise, could hardly have the effect of transmuting a declaratory decree into a personal decree. Its character still remained the same, a decree for the benefit of all the reversioners.

(11) Learned counsel for the appellant, however, argued that whatever be the effect of such a decree there is nothing in law that prevents some of the reversioners to agree among themselves to relinquish their reversionary interesit in the property in favor of another reversioner.

(12) His argument is that in the present case Smt. Manshan agreed with the appellant and his father to give up her claim to a portion of the estate. The compromise was, thereforee, binding on her and she was estopped from going back on it. The argument does not seem to me to be well founded. At the time the plaintiffs brought their suit. Smt. Manshan was not an heir of Smt. Janki's husband. The only right she claimed in the property was as a donee from Smt. Janki and not as an heir. When she entered into a compromise with the plaintiffs all she agreed to give up was a portion of her right obtained by her under the gift madis in her favor by the limited owner. It is only under the Hindu Succession Act of 1956 that she first obtained a right of succession under section 8 of the said Act, whereas the compromise decree was passed in the year 1947. She cannot be said to have relinquished some thing which she never had and of which she was not even aware.

(13) Relinquishment is a conscious act. One gives up or relinquishes something of which one is aware. The same applies to esloppel.

(14) According to section 8 of the Hindu succession Act, Smt. Manshan was the nearest heir as compared to the plaintiff. This. right was given to her by the statute. She could not, thereforee, be estopped from challenging the plaintiff's locus standi to defeat her newly acquired rights by reason of any agreement made by her in the past when she did not have any such right. The agreement bound her only with respect to what she had at the time she entered into it. There is nothing in that agreement to suggest that she agreed to forego whatever rights she might obtain in the property in future. She agreed to forego a portion of what she got under the gift, and not what the statute which came into operation 9 years later, gave, her. There is thus no question of estoppel. She could, thereforee, ignore the decree and assert her own right not in the character of a donee from the limited owner but as the nearest heir of the last male holder when Smt. Janki died in 1965.

(15) In support of his case learned counsel for the appellant relied upon a decision of H. R. Khanna J. (as his Lordship then was) in Brij Lal v. Bakshi and others (RSA No. 55 of 1969) decided on 8-7-1967. The facts in that case were entirely different. Brij Lal in whose favor a gift of ancestral land was made by Sunder Lal and his action was challenged by the plaintiffs who were his collaterals by a suit in which a compromise decree was passed, did not acquire any fresh rights in the property except what he had obtained under the gift. It was, thereforee, held that he was bound by the compromise decree. On behalf of the restpondents it was no doubt urged that the decree enured for the benefit of all the reversioners of Sunder Lal and that Sunder Lal had a sister named Lilan. But it was sad that Lilan was not a party to suit and whatever must be her rights, so for as Brij Lal was concerned he could not legally resist the suit in view of the compromise which was binding on him.

(16) Learned counsel for the respondents tried to support the decision H of the courts below by advancing one other argument also. He submitted that after the passing of the Hindu Succession Act, 1956, there was no longer in existence a limited Widow's estate nor any reversionary interest in respect of the properties, inherited by her After 1956 thereforee Smt. Janki became the full owner of the property. There could be no reversion and a reversionary interest in respect of the property held by her as full .owner. The terms of the compromise, even if they were embodied in a decree, could, thereforee, no longer operate after the Act of 1956. Reliance for this argument was placed on Lalchand Bhur and another v. Smt. Sushila Sundari Dassi and others : AIR1962Cal623 , Marudakkal and another v. Arumugha Goundar A.I.R. 1958 Mad 255, Bhabani Prosad Saha v. Smt. Sarat Sundari Choudhurani : AIR1957Cal527 and B. Hanuman Prasad and others v. Smt. Indrawati and others : AIR1958All304 .

(17) It was argued that if the compromise did not operate against Smt. Janki and she died intestate the succession on her death would be to her estate and not to the estate of her husband. Surely, the plaintiff could by no means claim to be an heir to the estate or Smt. Janki, regardless of the fact whether Smt. Manshan was her heir or not.

(18) It is true that Smt, Janki did not get the property in any of the ways mentioned in sub-section (2) of section 14, but the condition necessary for the application of sub-stection (1) of section 14 is that the Hindu female should be in possession of the property at the time the Act came into force although she may have acquired the property before the commencement of the Act. In the present case, it is not clear on the record whether the possession of the property which she alienated was delivered by her to the alienees in 1945. It is more probable that she did part with possession in favor of the defendants. In that case the provisions of section 14 may not be attracted to the case. I am also not quite sure if the effect of the compromise decree to which Smt. Janki was also a party could be obliterated by the operation of the Hindu Succession Act propro vigore without any action having been taken by Smt. Janki to have the decree set aside. No opinion need, however, be expressed on that part of the counsel's argument.

(19) The result of the foregoing disicussion is that the appeal fails and is dismissed with costs.


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