Labhu Singh and others vs Mst. Nihal Kaur and others

P.C Pandit, J.—The following pedigree table will be helpful in understanding the facts of this case:

Sunder Singh was the last male-holder of the land in dispute measuring 173 Bighas 1 Biswa situate in village Dhaula District Sangrur. This village previously was in Nabha State. Out of this land an area measuring -58 Bighas 8 Biswas was under mortgage with possession with Labh Singh and Ors. defendants for Rs. 1200/-. Sunder Singh died in 1925 and thereupon his widow Premo succeeded to his estate Premo died in October, 1955. After her death, the defendants took forcible possession of the unencumbered land as well, in May, 1958 Nihal Kaur and Ram Kaur, daughters of Sunder Singh and Premo brought a suit, out of which the present second appeal has arisen, for possession of the entire land measuring 173 Bighas 1 Biswa. As regards 58 Bighas 8 Biswas they sought possession by redemption of the mortgage and with regard to the remaining area they claimed its possession on the ground that they were the heirs of Sunder Singh.

The suit was resisted by the defendants who interalia pleaded that the plaintiffs were not the daughters of Premo to succeed her that the suit was barred by limitation and that the land in dispute was ancestral qua them and Sunder Singh.

On 30th June, 1959 the trial Court dismissed the suit holding that it was time-barred regarding the mortgaged land, but within limitation in respect of the other land; that the land was non-ancsestral; that although the plaintiffs were the daughters of Sunder Singh and Premo, they were not entitled to succeed to the land in question in view of the law which was in force, in the erstwhile Nabha State, at the time of the death of Sunder Singh and that the Civil Court had jurisdiction to entertain the suit.

Aggrieved by this decision the plaintiffs went in appeal before the learned District Judge, Barnala. The same was accepted by him on 22nd June, 1960, on the findings that the suit was within limitation both regarding the mortgaged land as well as the unencumbered land; that the plaintiffs were the daughter of Promo from Sunder Singh and were entitled to succeed and that the land in dispute was non-ancestral. As a result of these findings the plaintiffs'' suit was decreed.

Thereafter the defendants came to this Court in second appeal which came up for hearing before fewatia J Two contentions were raised before. The first was that out of the defendants two namely Narain Singh and Smt. Sahibo died on 1st October, 1958 and 6th November, 1958, respectively, when the suit was pending before the trial Court. No objection was, however, taken regarding this matter before the said Court. When the plaintiffs filed an appeal before the learned District Judge, they impleaded the legal representatives of Sahibo, but regarding Narain Singh they stated that he had left no issue or w dew and only his brothers were his legal representatives and they were already on the record. At the tune of the hearing of the appeal by the learned District Judge an objection was raised by the defendants that by the non-impleading of the legal representatives of the two deceased defendants the suit had abated. By his order dated 7th March, 1966 the learned District.Judge repelled this contention observing that the plaintiffs had succeeded in explaining the delay in bringing on record the legal representatives of Sahibo deceased This finding of the District Judge was challenged before the learned Single Judge.

The second contention of the appellants was that the plaintiffs had not established their right to succeed to the land in dispute which belonged to their father Sunder Singh. According to them, the succession opened on the date when Sunder Singh and not his widow Premo died. In 1925 on the death of Sunder Singh, according to Hidayats (Adoption, Right of pre-emption, Succession and Maintenance) of 1987, of erstwhile Nabha State, the plaintiffs who were the daughters of Sunder Singh would have no right to succeed even to the non ancestral property of their father. Only his widow succeed him and that also for her life time.

Regarding the second contention the position taken up by the plaintiffs was that on the death of Sunder Singh his widow Premo succeeded to a life estate. It is only on her death in 1955 that one had to look for the next heir and the property would devolve on the next heir of the last male-holder, Sunder Singh, in accordance with the law prevailing on the date of the death of widow. In 1948 Nabha along with some other States, had merged in Pepsu and according to the Pepsu General Provisions (Administration) Ordinance (16 of 2005 BK ) all the Patiala laws become applicable to all the States which had so merged and according to that law daughters succeeded to the self-acquired property of the father. On the death of Premo, therefore, the plaintiffs became entitled to the land in dispute.

Before the learned Single Judge two Division Bench decisions of the Lahore High Court were cited, the first was AIR 1943 219 (Lahore) and the other was Bui alias Bnr Singh and other v. Bela Singh AIR 1947 Lah. 233, Ir Syed Roshan Ali''s case it was held -

that succession to the estate held by the widow must be taken to have opened on the death of the last male holder and would be governed by the law that was applicable on the date of the last male holders death and not by what came to be in force during the lifetime of the limited estate holders...

In Bui alias Bur Singh''s case, however, a contrary view was taken. Since conflicting views had been expressed by the two decisions, refe rred to above, the learned Single Judge thought it. desirable "to have an authoritative decision on this important question of 1aw." Accordingly, he directed that the papers of this case be place before the learned Chief Justice for constituting a larger Bench. That is how the matter has been placed before us.

It is common ground that only the question of law mentioned in the second contention, noted above, has been referred to us for decision, although no question of law has been formulated by the learned Judge. It is mentioned by the learned Single Judge that the counsel appearing for either party had stated before him that there was an other authority on the point except the two Bench decisions of the Lahore High Court, noticed above But before us a number of decisions have been cited by the counsel for the plaintiffs and in face of them it is difficult to take a contrary view.

In Bui alias Bui Singh''s case, Harries C.J. and Mahajan J. held -

The question of custom has to be examined with reference to the date when succession opened out the estate of Attra. It is quite clear that this took place at the time when the life-estate which vested in Mt. Indi terminated As already stated, she died in the year 1942, The simple issue for determination is what was the rule of custom governing succession to the estate amongst the Hundal Jats of the Gurdaspur district in the year 1942 irrespective of the rule that may have prevailed at any antecedent period of time.

In Mst. Taro v. Darshan Singh AIR 1966 P&H. 195, Gosain and Harbans Singh JJ. observed -

The other question raised by the learned counsel for the respondents was that after the demise of Mst. Achhari, the next heir of the last male holder should be determined according to the law that was in force at the time of the demise of the last male holder, because the succession opened out at that time, and that at the time of the demise of Ganga Singh in the year 1941, the Hindu Suceession Act was not in force and according to the law by which the parties were governed, reversioners were preferential heirs qua the ancestral property as against the daughter. We, however, cannot agree with this argument. Succession really opens on the demise of the intervening female heir and it is wrong to say that the succession opens out on the death of the last male-holder. As is stated in Paragraph 176 of Mulla''s Hindu Law-

a widow or other limited heir... is owner of the property inherited by her subject to certain restrictions on alienation, and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her and she represents it completely.

It is only on the demise of the widow that we have to look for the next heir and not prior to that. The only difference is that on the demise of the widow, the property is to devolve upon the next heir of the last full owner and not on the next heir of the widow. It is, however, obvious that the next heir of the last male-holder is to be determined at the time of the demise of the widow because till then she fully represents the estate of the last male-holder.

It is the case of the reversioners themselves that if there had been no will the property would have been inherited by the widow.

Mst. Achhari, who is still alive, and leaving out the effect of Section 14 of the Hindu Succession Act as regards the enlargement of her estate to an absolute estate, the next heir to her husband is to be determined in accordance with the law prevailing on the date of the death of the widow and not in accordance with the law prevailing at the time of the death of her husband. It was not denied that if this be so, the daughter, according to the Hindu Succession Act, is a preferential heir. Even if Mst. Achhari had inherited the property in the absence of any will, Mst. Taro would be the next heir both to her husband Ganga Singh as well as to the widow herself.

In Mangla Balmukund Vs. Nathiya Ghantoli and Others, D.K. Mahajan J. held-

that it is firmly settled that the succession to the last male-holder, dying leaving a widow, opens on the day when the widow dies. When the widow who had not become full owner, being out of possession at the time of the commencement of the Hindu Succession Act dies, the heirs of her husband''s estate would have to be determined on that date and the rule of succession will have to be determined in accordance with the Act.

The Privy Council in Janaki Ammal v. Narayanaswami Aiyer AIR 1916 P.C. 117, observed-

The suit was brought with reference to the estate of one Rama-swami Iyer, of Konerirajapuram, who died intestate on the 24th June, 1906. It is not disputed that the widow holds the property under the Hindu Law as "a widow''s estate.'''' The mother of the late owner is the person entitled to succeed should she survive this widow. On the expiry of these lives the estate will descend to the next reversionary heir of the deceased....

The law as to the situation of the preversionary heirs is also in substance quite clear: there is, as stated, no vesting as at the date of the husband''s death, and it follows that the question of who is the nearest reversionary heir or what is the class of reversionary heirs, fall to be settled at the date of the expiry of the ownership for life or lives; that is to say, in the present case, at the death of the survivor of the appellant and her late husband''s mother....

In a later Privy Council ruling in AIR 1946 173 (Privy Council) the position of law mentioned in Janaki Ammal''s case was reaffirmed and it was held -

There is no vesting as at the date of the husband''s death, and it follows that the questions of who is the nearest reversionary heir or what is the class of reversionary heirs, fall to be settled at the date of the expiry of the ownership for life or lives. (43 I.A. 207 at p. 209 - Janaki Ammal''s case). The death of a Hindu female owner opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility or spes successions, but this possibility is common to them all for, it cannot be predicated who would be the nearest reversioner at the time of her death....

Learned counsel for the defendants placed reliance on two deisions-(1) Syed Roshan Ali''s case and (2) an unreported ruling given by Mehar Singh J. in Sucha Singh v. Baggu Singh alias Bagga Singh R.S.A. No. 552 of 1953, decided on 3rd December, 1958. In the former authority Monroe and Abdur Rahman JJ. held-

that succession to the estate held by the widow must be taken to have opened on the death of the last male holder and would be governed by the law that was applicable on the date of the last male holder''s death and not by what came to be in force during the lifetime of the limited estate-holders. As the plaintiff reversioner had a right before ''937 to bring a suit for a declation that the alienation by the widow was not binding on him within six years of the date of the alienation (i.e., 17th February, 1932) that right could not be said to have been taken away by the enactment of the Muslim Personal Law (Shariat) Application Act, 1937, subsequently. There was nothing in the Act which would show that it was to have retrospective action either expressly or by necessary implication.

In Sucha Singh''s case Mehar Singh J merely followed the Bench decision in Syed Ali''s case.

Both these authorities were considered by G.L. Chopra J, in Gurmit Singh Partap Singh Vs. Tara Singh Sahib Singh, there it was held -

No retrospective effect is given to the provisions of the Hindu Succession Act; they are applied to a succession which opened after the Act came into force. Therefore, where the last male holder died before the Hindu Succession Act. 1956 and was succeeded by the widow of his predeceased son who took the widow''s estate and died after the Act came into force, the succession to the reversioners will open on the death of the latter and not on the death of the last male holder.

Upon her death the property descends to those who would have been the heirs of the male holder if he had lived up to and died at the moment of her death, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility or spes succession''s, but this possibility is common to them all; for it cannot be predicted who would be the nearest reversioner at the time of her death.

While deciding this case Chopra J made a reference to the two decisions relied upon by the counsel for the defendants and observed-

...The facts in AIR 1943 219 (Lahore) , were somewhat different.

There a mortgage effected by one Rehmat Bibi, widow of Hassan Ali Shah, on 17th February, 1932, in favour of her two daughters was challenged by a nephew of Hassan Ali Shah, the last male owner The suit had been dismissed because of the Muslim Personnel Law (Shariat) Application Act. 1987, having come into force on 7th October, 1937. It was recognised that according to the Customary Law then in force, by which the parties were governed "she (Rehmat Bibi) would have remained in possession of the whole of that property during her lifetime and inheritance would have opened to the collaterals of her husband only after her death and as she happened to have two daughters, after their death.

The question to be decided was whether Rehmat Bibi''s rights in the property could be found to have undergone any change by reason of the Muslim Shariat Law having been brought into operation and could she be regarded, since then, a full owner of 1/8th share in the property as provided by the Mohammendan Law of Inheritance instead of the limited owner that she had been after Hassan Ali Shah''s death Since there was nothing in the Muslim Shariat Act which could show that it was to have retrospective action either expressly or by necessary implication, the question was answered by the Letters Patent Bench in the negative, and the plaintiff''s right to bring a suit for declaration that the alienation would not be binding on him was not held to have been taken away by the said Act One of the reasons for coming to this conclusion was stated by Abdur Rehman J. as follows:

The expression that succession opens to the reversioners on the death of the last of the limited holders is unexceptionable but that would not show that the succession to the last male-holder had not opened before and had not remained in a state of abeyance for as long as the estate remained temporarily in the possession of the limited owner with the object of its being taken back to the time when the life of the last full owner came to a close and of allowing it to devolve permanently on his nearest relation in existence at the time of the limited owner''s death except to the extent that it was reduced by her for consideration and justifiable necessity.

The observation is not based upon any reasoning and seems to be contrary to the well-settled view referred to above. I have not been able to convince myself to accept the proposition that there can be any splitting of a succession. If the succession has once opened to the reversioners on the death of the last male holder, that would be an end of the matter; it would not open once again on the death of the last of the limited holders.

The second decision relied upon by the learned counsel is that of Mehar Singh J. in "S.A No. 552 of 1953. (decided on 3rd December, 1958). The decision is merely based upon the view taken in Syed Roshan Ali''s case, AIR 1913 Lah 219 referred to above.

In view of the two Privy Council decisions and the one Bench decision of this Court it is not possible to follow Syed Roshan Ali''s case even if it be said that it had taken a contrary view than the one expressed in Bui alias Bur Singh''s case.

I would, therefore, hold that on Premo''s death in 1955, the land in dispute would devolve upon the plaintiff''s who were the next heirs of Sunder Singh in accordance with the law prevailing on the date of the death of Premo.

The case will now go back to the learned singie Judge for deciding the other points arising in it. There will be no order as to costs.

S.S. Sandhawaiia, J.

I agree.