D.B. Lal, J.
1. This second appeal has been brought by the plaintiffs Hari Ram and Ram Kishan from the decision dated 9th March, 1970 of the Additional District Judge. Kangra. wherein, agreeing with the decision of the Sub-Judge, Kangra, he has dismissed their suit for recovery of possession over 114 Kanals and 13 Marias of land situate in Tika Ghatota of Tehsil Nurpur.
2. According to plaintiffs, the disputed land originally belonged to one Bihari Rajput of Tehsil Nurpur. He died, leaving his widow Banti who gifted the disputed land under two deeds of gift dated 5-10-1938 and 25-11-1938 in favour of her only daughter Kaushalya. After the death of Kaushalya in 1940, her husband Harbans Singh got possession over hie land and the mutation No. 125 was made in his favour in the revenue papers. In the year 1943 Hari Ram and Ram Kishan. present plaintiffs, filed a suit before the Sub-Judge. Kangra, for a declaration that they were reversioners of Banti who was a limited owner and would be entitled to get the disputed land from Harbans Singh after her death. The learned Sub-Judge dismissed the suit on 14-10-1944 (Ex. DE) holding that Kaushalya was the only heir of Banti and therefore the two gifts in her favour amounted to acceleration of succession. Therefore, according to the learned Sub-Judge, no alienation was involved and hence the plaintiffs could not file a suit for declaration although they were reversioners of Bihari the deceased husband of Banti. The plaintiffs came in appeal before the learned District Judge and by his judgment dated 26-7-1945 (Ex. P-7). he allowed the appeal and set aside the decision of the learned Sub-Judge, holding that the plaintiffs could claim to be heirs of the donor Banti and as such were reversioners of Bihari. Therefore, the plaintiffs could be preferred as against Harbans Singh who could not be the heir to Bihari. The suit was accordingly decreed for a declaration that the reversioners of Bihari would be entitled to get possession of the disputed land from Harbans Singh after the death of Banti. The defendants of that case came in appeal before the Punjab High Court and by his decision dated 27-6-1947 (Ex. P-6), the learned Judge held that neither heirs of Kaushalya nor heirs of Banti were to be taken regard of. Rather the two Courts were to consider as to whether the plaintiffs were heirs of Bihari in preference over Harbans Singh. That being so. the plaintiffs were reversioners and could obtain a decree for declaration that the heirs of Bihari, whosoever these are, would be entitled to get possession of the property after the death of Banti. The suit was thus finally decreed on 27-6-1947.
3. Subsequently Harbans Singh being the defendant of the suit filed in 1943 and already held not to be entitled to the property after the death of Banti, reconveyed the same to Banti on 28th October. 1950 of which the mutation (Ex. DD) was effected in the revenue papers. Thereafter on 18-9-1961 Banti again gifted the disputed property in favour of Harbans Singh and his second wife Dina Devi, who are the two defendants in the present suit.
4. Banti died sometimes in 1965, and a few months after her death the plaintiffs Hari Ram and Ram Kishan filed the present suit against Harbans Singh and Dina Devi defendants, for recovery of possession over the disputed property which formed part of the gift by Banti on 18-9-1961 in their favour. The plaintiffs' case in that plaint was that in view of the decree obtained by them in 1947, the gift could not be legally made by Banti in 1961 in favour of the defendants. According to that decree, according to the plaintiffs, the property was to revert back to the heirs of Bihari after her death and therefore whatever subsequent gift she made was subject to that condition. The plaintiffs also urged that the parties were governed by Kan-gra custom of succession. It is significant that no other plea was taken by the plaintiffs, although at a later stage they were permitted to contend that Banti did not enlarge her estate because the subsequent gift to her of donee's rights was amenable to the restriction incurred by the donee herself whose estate could not be enlarged by Section 14 (1) of the Hindu Succession Act. 1956. The defendants in their written statement specifically pleaded that according to Kangra custom after the death of Kaushalya the property reverted to her mother Banti. This was so because Kaushalya had not left any issues of her own. The defendants further pleaded that after reversion of property In favour of Banti and subsequently after the gift back made by Harbans Singh in her favour, she got lawful possession of the limited estate which on 17-6-1956 when Section 14 (1) of the Hindu Succession Act. 1956 came into force, she enlarged and thus became absolute owner. Therefore, said the defendants, the gift made by her in 1961 was valid and conferred absolute title union them. It was also pleaded that the declaratory decree granted by the High Court In 1947 did not restrict the rights ofBanti in any manner to make the gift in favour of the defendants.
5. The learned Sub-Judge Kangra, before whom that suit was instituted, dismissed it on the ground that Banti got back her limited estate in the property after the death of Kaushalya, The gift-back of Harbans Singh also made her the owner of the property. The result was that Banti became limited owner of the property in her lawful right. She was in possession on 17-6-1956 when the Hindu - Succession Act, 1956 came into force. Her limited rights got enlarged and she became absolute owner of the disputed property. Accordingly whatever gift she made in 1961 in favour of the defendants conferred good title upon them. The suit was accordingly dismissed.
6. The plaintiffs came in appeal before the learned Additional District Judge, Kangra, and there too they did not succeed. The decision was reiterated that Banti came in lawful possession of the property as a result to the death of Kaushalya in 1940 and the gift-back made by Harbans Singh in 1950. Upon enforcement' of Section 14 (1) of the Hindu Succession Act 1956, Banti enlarged her estate. The gift which she made in favour of Harbans Singh and Dina Devi in 1961 made them absolute owners. Accordingly it was held that the suit was rightly dismissed by the learn--ed Sub-Judge.
7. The plaintiffs Hari Rani and Ram Kishan have come up against that decision in second appeal.
8. The contentions of the plaintiffs-appellants in their ground-of-appeal are, that the gift-back of 1950 was wrong and illegal and did not confer any ownership rights upon Banti. that she could not be stated to be in lawful possession on the date of the enforcement of Section 14 (1) of the Hindu Succession Act. 1956. and that Harbans Singh had only acquired limited rights as successor to Kaushalya which he transferred to Banti on 28-10-1950, and that as such Banti could not have acquired absolute title under Section 14 (1) because she suffered from the same restriction with which Harbans Singh was governed being the heir of the donee from Banti. It is also contended by the appellants, that the decree of the Punjab High Court was binding and hence the estate could not be enlarged under Section 14 (1).
9. It may be pointed out at the outset that the two Courts below have based their findings on a totally wrong conception of law. It has been held by them that in view of the decision given by the Punjab High Court in 1947, Bantiwas a lawful heir of Kaushalya and therefore the property reverted back to her. It is evident, in the declaratory suit before the High Court, the question did not arise regarding the succession to Kaushalya but the question essentially related to the heirs of Bihari who was the last male-holder. The plaintiffs were found reversioners being heirs to Bihari and were to be preferred as against Harbans Singh who could not be heir to Bihari. On this short ground, the suit was decreed and it was held that whatever alienation was made by Banti would not confer benefits to the donees beyond her lifetime. It is. therefore, manifest that the judgment of the High Court never decided about the question of succession to Kauahalya.
10. It is well settled that till succession opens out no reversioner can claim any right to or interest in the property in the possession of the limited owner. Till succession opens out. the reversionary interest is merely in the nature of spes successionis and it cannot be postulated with regard to any particular person whether at the time the estate falls into possession he would be entitled to the property. The declaratory decree obtained by a reversioner 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. Therefore, it would be wrong to state that the declaratory decree obtained by the plaintiffs in 1947 in any manner created vested right in their favour so that any subsequent alienation by the widow was prohibited. Nor could it be stated that any compliance was requir-ed to be made by Harbans Singh of that declaratory decree obtained by the plaintiffs and that the gift-back made by him in 1950 was in satisfaction of that decree. To this extent, the learned Sub-Judge as well as the learned Additional District Judge seem to have given their decision on a wrong footing. As a result to that declaratory decree neither Harbans Singh was prohibited to reconvey the property in 1950. nor Banti was estopped in making the gift of 1961 in favour of the defendants.
11. Although both the Courts below did not specifically decide about the Kangra custom of succession, yet as evident, their concurrent finding is that Banti was the heir of Kaushalya. The learned counsel for the respondents referred to a discussion made by Rattigan in his 'Digest of Civil Law for the Punjab' chiefly based on the Customary Law (Pp. 188 and 332, 14th Edition. 1966). In the case of a gift of limited estate made to a daughter the property reverts back to the donor if there is afailure of the line of descent from daughter. In other words, if no son or daughter is left by the donee, the property would revert back to the donor. The finding of the two Courts below has been that Kaushalya left no issues of her own. This is a finding of fact which cannot be set aside in second appeal. According to Kangra custom, therefore. Banti got back the property by reversion and admittedly ' she regained her life-estate which she had gifted to Kaushalya. This would lead to a merger of title in her and she' was in law-ful possession of the porperty on the date Section 14 (1) of the Act came into force.
12. Even if the aforesaid Kangra custom of succession was not applicable, the gift made by Banti conferred property upon Kaushalya which was her 'Stri Dhan'. It was definitely a gift made by mother during the period of coverture. According to Hindu Law, after death of Kaushalya, Harbans Singh was the lawful heir. In this contingency the gift-back made by Harbans Singh in 1950 again conferred limited rights upon Banti. She was again in lawful possession of the property and the limited estate was made absolute by Section 14 (1) of the Act.
13. Therefore, the contention of the appellants that the gift-back of 1950 did not confer any legal title upon Banti or that the gift of 1961 could not be legally executed by her, are devoid of any merit. The main contention of the appellants has been that reversion in favour of Banti or gift-back in her favour by Harbans Singh, could not enlarge the estate because she got the interest of her donee which could not be more than limited interest in the property. In this connection, the learned counsel for the respondents referred to several decisions and the earliest is Muhammad Rafiq v. Faiz Ahmad. (AIR 1933 Lah 597 (2)). A declaratory suit was filed by reversioners as a result to sale made by limited owner in favour of a stranger. This suit was decreed. Subsequently the land was allowed to be mutated in favour of the vendor. It was held that the sale was cancelled By mutual consent and it was open to the parties to do so. Therefore, the decree in favour of the reversioners became useless. This cancellation or annulment of transfer by mutual consent was noted in Chinnakolandai Goundan v. Thanji Gounder. (AIR 1965 Mad 497). The following observation may be useful:--
'If an alienation is made by the widow and if the same is questioned by a reversioner either in a suit or others wise, thereby casting a cloud on the title of the alienee, there is nothing inHindu Law or under the general principles of law of transfer which would prevent the alienee conveying back the property to the alienor. in the same capacity and in the same right in which it was conveyed by the widow. It cannot be disputed that when the rever-eioner files the suit, it is open to the alienee to submit to a decree. After such a declaratory decree is passed, there is nothing in Hindu law which compels or obliges the alienee to retain and keep the property himself and hand it over to the reversioner. It is certainly open to him to respect the decree and convey back the property to the widow even before her death. It is obvious that what the alienee can do after the termination of the suit can equally be done during its pendency.'
14. In Jagat Singh v. Teja Singh, (AIR 1970 Punj 309 (FB)). a declaratory decree was obtained by the reversioner, but reconveyance was made after the Hindu Succession Act, 1956 came into force. Subsequently the widow made another gift of the same property. It was held that the widow had become absolute owner by virtue of Section 14 (1) of the Hindu Succession Act. 1956 and the gift-back had actually cancelled or annulled the previous gift and the declaratory decree had become useless. There was no law prohibiting mutual annulment or cancellation of the previous gift and the gift-back made the widow in lawful possession of the property. She made her title absolute under Section 14 (1) of the Act. The learned counsel for the appellants relied upon Ganesh Mahanta v. Sukria Bewa, (AIR 1963 Orissa 167). In that case it was neither contended nor considered by the learned Judges that the previous gift was annulled or cancelled by the gift-back made subsequently and so the learned Judges held that by the gift-back only limited estate was conferred upon the widow.
In view of the Punjab Full Bench, AIR 1970 Punj 309 (FB). I do not think any reliance can be placed upon the Orissa decision. The learned counsel then relied upon Dindayal v. Ralaram. (AIR 1970 SC 1019). In that case, the facts were entirely different. The widow came in possession as trespasser and hence she had no right to possession which was a sine qua non if the conferment of title under Section 14 (1) of the Act. In these circumstances, it was held that her limited estate did not become absolute and hence a subsequent gift made by her only conferred a limited estate and not an absolute estate. In the instant case. Banti could not be stated to. be a trespasser inasmuch as she took eithar by succession or transfer whatshe had given to Kausalya. The principle decided in the Full Bench decision of Punjab (AIR 1970 Punj 309) will certainly be applicable and either the gift-back would have the effect of annulment or cancellation of the previous transfer made by the widow, or the succession in her favour of the rights of the donee would lead to a fusion of title leading to annulment 6r cancellation of the previous demise. Therefore. I have every reason to hold that Banti once again became limited owner of the disputed property in 1940 or in 1950. Sha was in lawful possession when Section 14 (1) of the Hindu Succession Act. 1956 came into operation. Her title became absolute and the subsequent gift of 1961 in favour of the defendants, conferred upon them absolute rights.
15. It would, therefore, be incorrect to say that the property having once passed from Banti in favour of Kaushalya could not be regained by her without the restriction imposed upon the donee who could not make her rights absolute under Section 14 (1) of the Act. The learned counsel for the appellants relying upon the Orissa case of 1963 (AIR 1963 Orissa 167) considers that neither fusion of title could have taken place, nor annulment or cancellation of previous demise by mutual con-sent could have taken, effect Both these conceptions are erroneous in the circumstances. I am. therefore, of opinion that Banti did not suffer from any handicap with which her donee might have suffered, and by annulment and cancellation of previous demise she regained her status as a Hindu female being lawfully possessed of immovable property and enlarged her estate under Section 14) (1) of the Hindu Succession Act. 1956. The logical inference is that the subsequent gift of 1961 made by her in favour of the defendants, conferred upon them absolute title to the property.
16. The plaintiff-appellants have thus failed to succeed, although on different grounds than what were held against them by the two Courts below. The appeal has, therefore, no force and is dismissed.
17. No order need be made as to costs, in view of special circumstances arising in the case.