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Brij Lal Vs. Bakshi Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtHimachal Pradesh High Court
Decided On
Case NumberL.P.A. No. 24 of 1969
Judge
Reported inAIR1973HP4
ActsHindu Succession Act, 1956 - Sections 2 and 4
AppellantBrij Lal
RespondentBakshi Ram and ors.
Appellant Advocate P.N. Nag and; O.P. Sharma, Advs.
Respondent Advocate Anand Sarup and; Romesh Chand, Advs.
DispositionAppeal allowed
Cases ReferredJagdish v. Brahma
Excerpt:
- .....had been arrived at between the parties whereunder it was agreed that one-forth share in the suit land without any share in the shamilat shall be given to the plaintiffs and the same shall become operative after the death of sunder defendant no. 1 and one-fourth share of the land was agreed to he given to defendants nos. 3 to 7 and this part of the agreement was also to be operative after the death of sunder defendant no. 1. it was also provided therein that at the time of partition, the khasra no. 3961/1307 shall also be given to defendants nos. 3 to 7 and the remainder area both in abadi and under the houses which were in possession of sunder defendant no. 1 would be the property of brii lal as before and brij lal was also held entitled to one-half share in the land and the.....
Judgment:

Chet Ram Thakur, J.

1. This Letters Patent Appeal is directed against the judgment and decree, dated July 8, 1969. passed by a learned Single Judge of the Delhi High Court, Himachal Bench, Simla, whereby the appeal of the defendant was dismissed and the order of the District Judge reversing the judgment and decree of the trial Court dismissing the suit was affirmed.

2. The facts relevant for the decision of this case may be stated as under-

Sunder a resident of Amner village in Tehsil Hamirpur died on 24th January, 1964. On his death Sarvshri Bakshi Ram, Ganga Ram and Chandu Bam filed a suit for possession of 1th portion of land which had been gifted by Sunder in favour of Brij Lal in the year 1949. The present plaintiffs who alleged themselves to be the collaterals of Sunder had filed an usual declaratory suit in 1950 that the gift of the land made by Sunder shall not be binding as against their reversionary rights as the land was ancestral and Sunder had no right under custom to alienate the land. In that suit a compromise had been arrived at between the parties whereunder it was agreed that one-forth share in the suit land without any share in the Shamilat shall be given to the plaintiffs and the same shall become operative after the death of Sunder defendant No. 1 and one-fourth share of the land was agreed to he given to defendants Nos. 3 to 7 and this part of the agreement was also to be operative after the death of Sunder defendant No. 1. It was also provided therein that at the time of partition, the Khasra No. 3961/1307 shall also be given to defendants Nos. 3 to 7 and the remainder area both in Abadi and under the houses which were In possession of Sunder defendant No. 1 would be the property of Brii Lal as before and Brij Lal was also held entitled to one-half share in the land and the Shamilat area. The Court in that suit accordingly on the basis of the statement of the parties and their counsel and the compromise passed a decree as stated above.

3. The plaintiffs, therefore, on the strength of the decree (Ex. P-2) dated 14th January. 1953. filed the suit for possession of land which they had been awarded under the decree of 1953.

4. The defendants resisted the suit. Firstly, on the ground that it being a declaratory decree in favour of the reversioners enured for the entire reversionary body. Therefore, the plaintiffs had no locus standi to file the present suit on the death of Sunder as the nearest heir of Sunder was his sister Smt, Lila. Secondly. Sunder had made a will of his entire property in favour of the defendant as also Smt Lila and on that account also the plaintiffs were not entitled to possession of the property.

5. The trial Court found that Smt. Lila was the sister of Sunder and in her presence the plaintiffs had no locus standi to file the suit On the point of will it was found that the same was not proved. On appeal to the Senior Subordinate Judge the iudgment and decree were reversed. It was found by the appellate Court that Smt. Lila was the sister of Sunder deceased and in so far as the will was concerned the same stood fully proved. Further it was held that it was not a declaratory decree which enured for the benefit of the reversioners rather it was a decree on the basis of a compromise and the parties were bound by the terms of the compromise. According to the terms of the compromise decree, the plaintiffs were entitled to one-fourth share of the property.Hence, the plaintiffs had a right to sue for the possession of the same. On second appeal preferred by the defendant, only one Point was agitated before the learned Single Judge that in the presence of Smt Lila who had been proved to be the sister of Sunder, the plaintiffs had no locus standi and that the decree was a declaratory decree which enured for the benefit of the entire reversionary body but this point did not find favour with the learned Single Judge and he repelled the contention of the appellant and dismissed the appeal The cross-objections filed by the respondents were not pressed before him. Hence, the same were also dismissed. Therefore, this Letters Patent appeal.

6. The first point that has been argued by the learned counsel for the defendant-appellant is that the plaintiffs had no locus standi in the presence of Smt. Lila who was the sister of Sunder, It has been held by the trial Court as also by the first Appellate Court that Smt. Lila is the sister of Sunder. She is admittedly the heir under the Hindu Succession Act in the absence of any other heirs to succeed to the estate of Sunder. It is a well-settled principle that a declaratory decree obtained by the resversioners challenging the alienation by anyone of the collaterals of the ancestral property enures for the benefit of the entire reversionary body and the nearest heir to the alienor on the date of his death who is entitled to succeed will set the benefit of that decree. In Giani Ram v. Ramji Lal, (AIR 1969 SC 1144) their Lordships of the Supreme Court, laid down that:--

'Under the customary law in force In the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property enured in favour of all persons who ultimately took the estate on the death of the alienor. The decree obtained by a competent reversioner did not make the alienation a nullity it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened and restored the property alienated to the estate of the alienor'.

7. This proposition Is not denied by the learned counsel for the respondents. The only contention is that this was not a usual declaratory decree setting aside the alienation which enured for the benefit of the reversionary body rather it was a compromise decree whereunder the entire course of succession was changed. It is not disputed by the learned counsel for the appellant that a compromise had been arrived at between the parties in the declaratory suit filed by the present plaintiffs in tine year 1953, But according to him the decree in respect of one-fourth share which was agreed to be given to the plaintiffs under the terms of the compromise was to take effect alter the death of Sunder. In other words what he meant was that on the basis of the terms of the compromise the suit stood dismissed qua the share of the property given to Brij Lal and qua that share of the property agreed to be given to the plaintiff., the suit was decreed. It was a declaratory decree which was to take effect after the death of Sunder, the alienor and, there-lore the plaintiffs could not take advantage of that decree. But it was Smt. Lila who was the nearest heir entitled to succeed on the death of Sunder when the succession opened. Under Section 8 of the Hindu Succession Act she being the nearest their of Sunder is entitled to succeed and therefore, the plaintiffs have got no locus standi.

8. We have given careful consideration to the arguments advanced bv the learned counsel for the parties and have also perused the decree (Ex. P-2) and the pleadings of the parties.

9. The learned Single Judge held that the compromise which was arrived et between the parties on January 14, 1953, clearly stated that-

'After the death of Sunder. Bakshi Ram, Ganga Ram and Chandu Ram plaintiffs would be entitled to one-eighth of the gifted land. The aforesaid compromise is binding upon the parties. As Sunder had died the three plaintiffs in accordance with the compromise are entitled to recover possession of the land in suit from Brij Lal. The fact that Sunder has a sister Lila would not, in my opinion, stand in the way of the plaintiffs recovering the possession of the land in dispute from Brij Lal. It is significant that the decree granted on January 14, 1953. was not a usual declaratory decree in a reversionary suit to challenge alienation. It was a compromise decree and provided for the devolution of the gifted land after the death of Sunder. The plaintiffs are merely enforcing the rights which were granted to them as a result of the earlier suit. Lila is not a party to the present suit and whatever may be her rights, so far as Brij Lal defendant is concerned he cannot legally resist the suit brought by the plaintiff-respondents'.

10. The plaintiffs have come to the Court to enforce their rights for possession on the basis of the decree granted on January 14 1953, which they have styled as a declaratory decree as is apparent from Para 4 of the plaint. The compromise-deed (Ex. P-5/A), dated January 15, 1953, which was entered into between the present plaintiffs and the defendant shows that Brij Lal donee was given the rights of absolute ownership in one-half of the suit land whereas it was agreed that the plaintiffs shall get one-fourth share of the suit land after the death of Sunder and further it was stated in the compromise that a declaratory decree in favour of the plaintiffs be given to that extent. It is in other wards meant that the alienation to the extent of one-fourth share of the gifted land was cancelled or set aside although the decree in so many words did not state it so. But the effect of the decree was to cancel or nullify the effect of the gift in respect of one-fourth share. Thereafter the parties and their counsel made their statements in the Court and the Court passed an order that in accordance with the statements the compromise was recorded and a decree in terms thereof is passed and the copy of this order is Ex. P-3. Therefore, there can be no escape from these documents that the decree was only a declaratory decree although based on a compromise. It did not. give any immediate right for possession to the plaintiffs and it was to be effective only after the death of Sunder. The plaintiffs who had brought that suit had only a contingent right to succeed and they could not claim themselves to be the nearest reversioners so as to entitle them to succeed to the property and it is evident that their suit was in the capacity of representatives and the benefit of such a suit was to go to whosoever was after donor's death the nearest heir. We are supported by Jagdish v. Brahma, (1971 HLR 16) in this behalf. So that means that it being a declaratory decree did enure for the benefit of Smt. Lila.

11. But one thing that requires consideration is whether the defendant who was a party to the compromise whereunder this decree was Passed can take up this objection. In our view. Brii Lal can take up this objection when this decree enures for the benefit of the en-tire body of reversioners and Smt. Lila is one of the nearest heirs entitled to succeed. There is no doubt that Smt. Lila is not a party and she can exercise her right for possession within the statutory period if so advised. There is no question that defendant Brij Lal is bound by the compromise because this compromise is in respect of the property in which the plaintiffs had no right when they filed the suit and they filed the same in the representative capacity and now they are not entitled to recover the possession on the basis of that decree the advantage of which can only be availed of by Smt. Lila.

12. The further question raised is that there was a will made by Sunder in respect of his property in favour of his sister Smt. Lila and Brij Lal defendant end on that account also the plaintiffs were not entitled to recover possession of the land. We have seen the will (Ex. D-1). This will relates to the property other than the gifted property or which was not the subject-matter of the previous suit. So this will has got no bearing on the suit property. Moreover, Sunder could not make any will in respect of a property of which he was no longer the owner. He had parted with the property as soon as he made a gift in favour of Brij Lal and thereafter be was not competent to make a will in respect of the property. Therefore, it is futile on the part of the learned counsel for the appellant to contend that Sunder had made a will of the gifted property to Smt. Lila and Brij Lal. Consequently this point has got no force.

13. We have held that the decree enured for the entire reversionary body and Smt. Lila, being the sister entitled to succeed on the opening of the succession, the plaintiffs, therefore, have got no locus standi. In view of this the appeal succeeds the judgment and decree of the learned Single Judge and the Senior Subordinate Judge are set aside and the judgment and decree of the trial Court dismissing the suit are restored. No order as to costs.


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