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Mt. Brikmu and anr. Vs. Jodha - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 63 of 1951
Judge
Reported inAIR1953HP73
ActsHindu Law; ;Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 1
AppellantMt. Brikmu and anr.
RespondentJodha
Appellant Advocate I.D. Abrol, Adv.
Respondent Advocate Kedar Ishwar, Adv.
DispositionRevision dismissed
Cases ReferredMt. Bigna Kuer v. Radha Prasad
Excerpt:
- .....daughter is a preferential heir. in fact, he went further and remarked that it was conceded by the learned counsel for the parties that neither of these points need be decided. the dist. judge thenobserved that the main question calling for decision was whether mt. brikmu was entitled to make the gift of her husband's estate. as to this it was held by him that even under the hindu law (which, according to the defendants, was to govern the rights of the parties in the present case) a widow has only a limited estate in property inherited by her from herhusband and she is not entitled to make a gift of it, irrespective of nature of the property in the hands of the husband. a new point was urged before the learned district judge on behalf of the defendants-petitioners, and he allowed it to.....
Judgment:
ORDER

Chowdhry, J.C.

1. This is an application in revision by the two defendants Mt. Brikmu and her daughter Mt. Shankru against the judgment and decree of the learned Dist. Judge, Mandi,dated 25-7-1951 dismissing their appeal andupholding the judgment and decree of the trial Court granting to the plaintiff-respondent Jodha a declaration that a gift made by Mt. Brikmu in favour of Mt. Shankru would not fee valid against the reversionary rights of theplaintiff after the donor's death.

2. The trial Court held that the parties were governed by custom. It did not decide the question whether a daughter was a preferential heir to a collateral. It further decid-ed that the property was not ancestral qua the plaintiff. It however granted the aforesaid declaratory relief to the plaintiff on the finding that Mt. Brikmu as a Hindu widow was not entitled to make the gift in question.

3. On the defendants' appeal, the Dist. Judge was of the opinion that it was not necessary to go into the question whether the parties were governed by custom or Hindu Law or the question whether a daughter is a preferential heir. In fact, he went further and remarked that it was conceded by the learned counsel for the parties that neither of these points need be decided. The Dist. Judge thenobserved that the main question calling for decision was whether Mt. Brikmu was entitled to make the gift of her husband's estate. As to this it was held by him that even under the Hindu Law (which, according to the defendants, was to govern the rights of the parties in the present case) a widow has only a limited estate in property inherited by her from herhusband and she is not entitled to make a gift of it, irrespective of nature of the property in the hands of the husband. A new point was urged before the learned District Judge on behalf of the defendants-petitioners, and he allowed it to be taken. That was that the property in suit was a self-acquisition of the widow Mt. Brikmu. This was decided against the appellants. In the result he dismissed the appeal of the defendants, and they have now come up in revision to this Court.

4. It was contended by the learned counsel for the defendants-petitioners that the Dist. Judge was in error in leaving the aforesaid two questions undecided, namely, the questions relating to custom and the ancestral nature of the property. This argument was really not open to the learned counsel for the petitioners in view of the remark of the learned Dist. Judge that the said two points were left undecided by common consent. Even if it be supposed that the present petitioners are not bound by the said consent, the view of the lower appellate Court that it was not necessary to record any finding on either of the two questions was correct. As regards custom, the learned counsel for the defendants-petitioners urged that the finding of the trial Court on that point was erroneous, his contention being that the parties were governed by the Hindu Law. Let that position be accepted. The only effect of that position would be that; whether the last male-holder of the property was Mt. Brikmu's husband or her son, the plaintiff would be a remoter reversioner as compared with the donee Mt. Shankru. That, as I shall presently show, has however no effect on the merits of the case. As regards the question whether the property was ancestral qua the plaintiff, that is a notion derived from the customary law of the Punjab. It is quite irrelevant in a case like the present under the Hindu Law. As already stated, it was the Hindu Law on which the defendants-petitioners relied. Under the Hindu Law, quite irrespective of whether the property in suit was ancestral qua the plaintiff, he would be entitled, subject to other conditions being fulfilled, to challenge the alienation as a reversioner. It follows therefore that the defendants-peti-tioners could not validly have any grievance against the said two points having been left Undecided by the lower appellate Court.

5. The next, and the main, point urged by the learned counsel for the defendants-petitioners was that the plaintiff being a remoter reversioner as compared to the donee, Mt. Shankru, was not entitled to impugn the alienation. That, however, is not true in every case. There is no doubt, that the right to challenge an unauthorised alienation by a Hindu widow vests in the first instance in the nearest reversioner, but there are circumstances in which a remoter reversioner may challenge the alienation. One such circumstance is that the nearest reversioner has precluded himself or herself from suing by his own act. In the present case, Mt. Shankru, the daughter of the donor and the nearest reversioner to the estate of the last male-holder, has clearly so precluded herself from challenging the alienation by reason of the fact that she herself is the donee. That being so, it is manifest that Jodha plaintiff was fully entitled to challenge the alienation. The learned counsel for the defendants-petitioners cited a contrary view of this Court in-- 'ParashottamRam v. Mst. Pattu', F. A. No. 8 of 1951 (Him. P.), I must say at once that the view expressed in that case is erroneous.

6. The learned counsel for the defendants-petitioners further cited a number of rulings.Almost all of them are on the point that in thepresence of a nearer reversioner one more remote is not entitled to challenge an alienation.That general proposition admits of no doubt,but I have pointed out that in certain circumstances even a remoter reversioner may challenge an alienation, one such circumstancebeing that the nearest reversioner has precluded himself or herself from suing by his ownact or conduct. This view is well founded andfinds expression in Section 207 (i) of Mulla's HinduLaw. The said rulings therefore need not beconsidered. There is one ruling cited by thelearned counsel for the defendants-petitionerswhich however needs being considered, andthat is-- 'Mt. Bigna Kuer v. Radha Prasad',AIR 1940 Pat 585 (B). That was a case wherean alienation by a widow was challenged by aremote reversioner, the nearer reversionershaving been impleaded as defendants. Theplaintiff however did not describe them asnearer reversioners but as strangers, and hedid not allege in the plaint that they hadcolluded with the widow. In view of these circumstances, it was held that the plaintiff wasnot entitled to the declaration prayed for byhim. It was further held that in view of thesecircumstances his claim could not be read asbeing one on the footing that though he wasnot the reversionary heir he was entitled tosue for a declaration because the nearest reversionary heirs had colluded with the widow.It was therefore argued by the learned counsel for the defendants-petitioners before methat as the plaintiff had not alleged jn hisplaint any circumstance entitling him to getthe declaratory decree in question as a remoter reversioner, his suit should have beenthrown put. The factum of the gift by Mt.Brikmu in favour of Mt. Shankru has howeverbeen clearly alleged in the plaint. And thatis the only circumstance which, as adverted toabove, entitled the plaintiff to file the presentsuit on the view that the nearest reversioner,the donee, had precluded herself from suing.There was nothing further that the plaintiffneed have alleged in the plaint. This was not a case of collusion about which any detailsmight have been set forth in the plaint. All that needed averment was merely the making of the gift, and that, as just stated, was clearly alleged.

7. The revision is dismissed with costs and the judgment and decree of the lower appellate Court are affirmed.


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