Gurdial Singh vs Amar Singh and Others

N.K. Kapoor, J.—This is plaintiff''s regular second appeal against the judgment and decree of the Additional District Judge dated 3 9 1988 whereby the judgment and decree of the trial. Court were modified and the plaintiff was held to be entitled to the possession of the land to the extent of l/3rd share only on payment of proportionate amount i. e. l/3rd of Rs. 2000/-.

Briefly stated, the facts of the case are that the suit for possession was filed by the plaintiff on the allegation that the land measuring 132 Kanals as detailed in the heading of the plaint was allotted during the consolidation of holding in lieu of land mentioned in para 2 of the plaint which was owned and possesssed by Jaimal Singh father of the plaintiff. Jaimal Singh sold this land for an ostensible consideration of Rs. 5800/-by registered sale deed on 1.2.1952. One Anokh Singh claiming superior right of pre-emption filed suit for possession whose suit was decreed. The plaintiff filed suit for declaration to the effect that the sale deed executed by his father was without consideration and legal necessity. The suit was decreed on 29 7.1965 holding that the sale would not effect the reversionary right of the plaintiff. However, the trial Court held that a sum of Rs. 2000/- was paid to Jaimal Singh by the vendee and accordingly it was directed that the plaintiff or any other reversioner will be entitled to possession of the suit land on payment of Rs. 2000/-. This order was upheld in appeal vide order dated 21-3-1956, in the regular second appeal decided o"9-5-19ol the judgment and decree of the trial Court was maintained. Jaimal Singh died on 28-5-1984 and so his reversioner/reversloners became entitled to possession of land on payment of Rs. 2000/- as per judgment of the High Court dated 9-5-1961. Anokh Singh also died, so the present defendants succeeded to the estate of Anokh Singh. Since the defendants declined to accept the claim of the plaintiff, so the present suit was filed.

The defendants put in appearance, filed written statement and controverted the various allegations of the plaintiff. Objection was raised with regard to the locus standi of the plaintiff to file the present suit, non joinder of necessary parties, the suit having not been valued properly For the purposes of Court fee and jurisdiction and it being time barred.

On the pleadings of the parties, following issues were framed :-

Whether the plaintiff is entitled to the possession of the suit land ? OPP.

Whether the plaintiff has no locus standi to file the suit ? OPD.

Whether the suit is not properly valued for the purposes of court fee and jurisdiction ? OPD.

Whether the suit is bad for non joinder of necessary parties ? OPD.

Whether the suit is time barred ? OPD.

5-A Whether the suit is not maintainable as alleged ? OPD.

5-B. Whether the defendant No. 3 is a bona fide transferee, if so to what effect ? OPD.

Relief.

On the basis of evidence led by the parties issues No. 1, 2 and 4 were decided in favour of the plaintiff and if was so held that he is entitled to possession of the suit land. Issue No. 3 was not pressed and so it was decided against the defendants. Issues No. 5-A and 5-B were also decided against the defendants. This way the suit of the plaintiff was decreed.

Before the appellate Court, the findings in respect of issues No. 1, 2 and 4 were assailed by the appellants The first submission of the learned counsel for the appellants was that Jaimal Singh died on 28 -5-1984 leaving behind the plaintiff and two daughters, namely, Gurdiali and Aaki. Since each of the reversioners Las an independent right to file a suit, the trial Court, indeed, erred in law in decreeing the suit of the plaintiff even qua the share of Smt. Gurdiali and Aaki who have not even been impleaded in the suit. This way the judgment and decree is liable to be set aside/modified. The plaintiff in support of the conclusion of the trial Court, however, urged that the position of reversioners is some-what akin to that of a co-sharer and if construed so even one of the co -sharer can institute and maintain a suit for possession For this, reliance was placed on the law laid down in the case reported as Ajmer Singh and Ors. v. Sharmher Singh 1983 P. L. J. 585. The learned appellate Court after carefully examining the ratio of the judgment cited above came to the conclusion that the Same has hardly any applicability on the facts of the present case. It further observed that the status of reversioner cannot be equated with that of co-owner/co-sharer. reversioner''s right is a right to succeed on the death of the vendor as per stipulation in the decree. In case of reversioners, if ho suit is brought within the period of limitation or there has been non-compliance to the stipulation of the decree, the same becomes inexecutable and this way it would be wrong to suggest that the defendants status is that of a trespasser only.

Since other heirs of Jaimal Singh had notified the suit, it was held that the plaintiff was entitled to claim possession to the extent of his share alone. Resultantly, the judgment and decree of the trial Court was modified i e. holding that the plaintiff is entitled to possession of only l/3rd share on payment of proportionate amount.

Heirs of the last full owner who would be entitled to suceed to the estate of such owner on the death of a widow or other limited heir, if they be then living, are called reversioners. The interest of a reversioner is an interest expectanton the death of a limited heir. It is not a vested interest. It is spes successionist or a mere chance of succession within the meaning of Section 6 of the Transfer of Property Act. This being so, the same cannot be sold, mortgaged or assigned, nor it can be relinquished. It is also well settled that even one of the reversioners can file suit challenging such an alienation and if successful the same enures for the benefit of all the reversioners. It is also well settled that till succession opens no reversioner can claim any right to or interest in the property in possession of the limited owner. Thus it is to be seen who are the persons entitled to succeed when succession opens. In the present case, besides the plaintiff, his two sisters too became entitled on the death of their father in view of Section 8 �f the Hindu Succession Act, of course on their filing the suit within the period of limitation in conformity with the judgment and decree dated 9-5-1991. The submission of the learned counsel for the appellant that, in fact, the plaintiff brought this suit in a representative capacity being a co-sharer is devoid of any merit. The status of reversiener/reversioners cannot be equated with that of a co owner either. The reversioner right it is merely a right to succeed and has been termed as inchoate right i. e unless there has been a compliance of the decree dated 9-5-1961 and suit for possession too is filed within the period of limitation. He has no such vested right in the property.

The next submission of the learned counsel for the appellant is that status of the plaintiff is that of a co-morigagor. Even one of the mortgagor can fils suit for redemption of the property. Since in the instant case a sum of Rs. 2000/-as stipulated in the decree dated 9-5 1961 has been deposited, redemption of the property would thus enure for the benefit of his co mortgagor. Thus the counsel urged that the judgment and decree of the lower appellate Court is liable to be reversed. I find no merit in this plea of Counsel for the appellant either. A mortgage is transfer of an interest in specific immovable property for purpose of securing the payment of money advanced or to be advanced by way of loan and accepting future debt or performance and engagement which may give rise to a pecuniary liability as per Section 58 of the Transfer of Property Act. The, transferor is called a mortgagor and transferee a mortgagee In the present case, plaintiff was only granted a declaration that sale executed by his father Jaimal Singh was without legal necessity. The plaintiff thus had no right in the property till the death of Jaimal Singh and there after too he could lay claim to extent of his share incase there has been a compliance of the earlier decree and suit is instituted within the period of limitation The lower appellate Court after carefully perusing the relevant material On record and in the light of the judicial pronouncements rightly came to the conclusion that plaintiff is entitled to claim possession only to the extent of his share. The findings of the lower appellate court are perfectly legal. The appeal is thus devoid for merit and consequently the same is dismissed. No order as to costs.