Maghar Singh and Others vs Gujjar Singh and Others

Dua, J.—Facts giving rise to this second appeal may briefly be stated. Mst. Bhagi, widow of one Chanan Singh, sold 258 bighas and 8 biswas of land, which is the subject-matter of the present controversy, to Maghar Singh and others for a sum of Rs. 20,000/- by means of a registered deed on 19th February, 1955. The plaintiffs Gujjar Singh and others claiming to be the reversioners of Chanan Singh instituted the usual declaratory suit challenging the alienation and seeking a declaration that it would not affect their reversionary rights, their plea being that the parties were governed by custom in matters of alienation and Mst. Bhagi had limited interest in the suit land which was ancestral qua the plaintiffs. The sale, it goes without saying, was described to have been effected without consideration and necessity. Several issues were framed which it is unnecessary to reproduce. The trial Court decreed the plaintiffs'' suit holding the plaintiffs to have a locus standi to file the present suit on the basis of the principle that a female governed by customary law inheriting landed estate (ancestral or self-acquired) from a male holds that property on a life tenure and has no power to alienate such property except for legal necessity, and the reversionary heirs of the last male holder are entitled to contest the alienation even if the property be non-ancestral. The other findings of the trial Court are that the plaintiffs are the reversioners of Chanan Singh within the 7th or 8th degree, the land in suit is non-ancestral, the parties are governed by the customary law applicable to agricultural tribes in the matter of inheritance, and that, the sale in question was effected without legal necessity, though consideration to the extent of Rs. 14,000/- was held to have been established.

On appeal, the learned Additional District Judge affirmed the decree of the Court of first instance. As the Hindu Succession Act was enforced during the pendency of this litigation before the lower appellate Court, an additional plea was raised, namely, that in view of the new Succession Act the plaintiffs'' suit had become speculative and was, therefore, liable to be dismissed on this ground. Two additional issues were consequently framed on this plea and evidence was recorded for their adjudication. The vendees contended before the Court of first appeal that the maternal uncle of Chanan Singh was, alive and according to the Hindu Succession Act he was a preferential heir as against the plaintiffs and as such the plaintiffs'' suit was speculative. The Court, however, repelled this contention with the observation that Chanan Singh''s maternal uncle had no right to succeed to the suit property at the time of the institution of suit and that it was only after the enforcement of the Hindu Succession Act that he had become a better heir than the plaintiffs'' collaterals. For this reason Chanan Singh''s maternal uncle could not have attacked the alienation at the time the present suit was instituted, with the result that the suit when instituted could not be considered to be speculative. In support of this view the Court placed reliance on Hari Kishan v. Hira (1957) 59 P.L.R. 56. In so far as the challenge to the finding of the first Court on the question of consideration and necessity is concerned, the lower appellate Court observed that it was incumbent on the alienees from the widow to establish that her income from the property was insufficient to provide money required by her. The Court noticed evidence on the record that the widow was in possession of 258 bighas and 8 biswas of land which, according to the plaintiffs, yielded her Rs. 4000/- to Rs. 5000/- per annum. The contention that her tenants were not paying her the batai was not upheld because Arjan Singh, one of the defendants'' witnesses, had stated that as a tenant of the widow he had been paying to her batai regularly. It was observed that Mst. Bhagi was not shown to have filed any suit against her tenants for non-payment of batai. Purchase of land and house, according to the Court below, could not be considered to be a legal necessity under the customary law; besides, the Court also observed that the alienees had not established any bona fide enquiries made by them that the widow actually required a buffalo, bullocks and a cart or that it was necessary to sink a well. This observation appears to have been made apparently because there were recitals in the sale deed those sale was being effected for these purposes. Absence of purchase of land, house or buffalo etc. was also noticed by the lower Court. As observed earlier, the appeal was dismissed and the decree in favour of the plaintiffs upheld. It is against this judgment and decree that the present appeal has been preferred.

Smt. Bhagi, widow of Chanan Singh, having since died in September, 1963, an application was made in this Court u/s 151 read with Order 22. Rules 3 and 4 C.P.C., pointing out, inter alia, that Mst. Bhagi having died leaving behind Sh. Mastan Singh alias Tana Singh son of Jauhara Singh of village Bhattal, maternal uncle of her deceased husband Chanan Singh, as the only heir, according to the Hindu Succession Act, who had in the Court below impliedly consented to the alienation in dispute, the reversioners'' suit had become infructuous and deserved to be dismissed on this ground. Notice of this application was given to the counsel for the respondents. It is this application which has at the outset been strongly pressed by the learned counsel for the appellants.

On behalf of the appellants, reliance has been placed on two recent decisions of this Court, Gurmit Singh Partap Singh v. Tara Singh Sahib Singh AIR 1960 Punj. 6, a Single Bench decision of this Court, had been relied upon for the proposition that where the last male holder dies before the Hindu Succession Act and is succeeded by the widow of his predeceased son who takes the widow''s estate and dies after the enforcement of the Act, then the succession to the reversioners opens on the death of the widow but the property devolves on those who would have been the heirs of the last male holder if he had lived up to and died at the moment of the Taro Vs. Darshan Singh and Others, , a Bench decision of this Court, has also been cited in support of the same proposition. Reference has also in this connection been made to AIR 1946 173 (Privy Council)

On behalf of the respondents, it has been contended that on the date of the suit the plaintiffs were entitled to challenge the alienation and the subsequent enforcement of the Hindu Succession Act does not deprive the reversioners of their right to continue their suit, with the result that their suit cannot become infructuous or speculative now merely because the alien or has died. Reference has been made to the majority view in the Full Bench decision of this Court in Amar Singh v. Sewa Ram (1960) 62 P.L.R. 537.

On behalf of the appellants it has also been contended that even on the merits, the earlier gift by the widow in favour of her daughter was valid being a gift in lieu of services rendered by the done. On succeeding to this land on the daughter''s death, the widow became its absolute owner and, therefore, the sale qua that part was not control able by the collaterals. This last argument is based on the fact, which is not denied by the other side, that in 1936 the widow had made a gift of 146 bighas and 18 biswas of land plus 1/12th share of 21 bighas and 16 biswas of land in favour of her daughter. This gift was contested by the collaterals but their challenge was negatived. The donee daughter died in July, 1949 and the widow again succeeded to this property. In these circumstances, the widow, according to the contention, became full owner of the property to this extent.

On behalf of the respondents this argument has been met by the contention that when the daughter to whom the land had been gifted died the gifted land reverted back to the donor according to the customary rule and, therefore, it remained the estate of her deceased husband subject to the usual limitation attaching to a widow''s estate. In support of this contention reliance has been placed on a Bench decision of the Lahore High Court in Thakar Singh v. Buta Singh AIR 1934 Lah. 860. It has further been contended that the suit cannot be considered to have become speculative merely because of the enforcement of the Hindu Succession Act and of the death of the widow because the question as to who is now the actual heir entitled to succeed has not been properly tried; the contention being that it may be that some one of the reversioners who were entitled to impeach the alienation in question may be in existence and that merely because none of the plaintiffs is shown to be entitled to succeed does not justify dismissal of the suit on the ground of its being in fructuous or speculative. Hari Kishan v. Hira 1, has been cited in support of the proposition that the principle on which the Courts in their discretion refused to grant declaratory decree to the effect that an alienation by a widow shall not affect the reversionary rights of collaterals after her death if their chances of succession were remote and, therefore, speculative, is not applicable to cases where the suit when filed could not be considered speculative. In the reported case the plaintiffs, who had filed the suit, were the nearest collaterals of the last male holder and were granted a decree to the effect that the sale made by the Hindu widow being without consideration and legal necessity would not affect their reversionary rights, and on second appeal on account of the enforcement of the Hindu Succession Act which had changed the order of succession and had made the plaintiffs very much remoter heirs, it was unsuccessfully contended that the suit should be dismissed as speculative. The facts of that case according to the respondents'' learned counsel bear a close analogy to the case in hand. Reliance has also been placed on the ratio of Amar Singh''s case in support of the contention that the collaterals should be allowed to obtain the decision on the merits and their suit should not be thrown out because of the enforcement of the Hindu Succession Act.

It has further been argued that the conclusions of the lower appellate Court on the question of consideration and necessity are conclusions of facts and, therefore, immune from challenge on second appeal. It has been emphasised that the appellants cannot suffer in any way by the decree merely declaring the sale by the widow not to bind the reversioners who would be entitled to succeed, because in case the actual heir happens to be a person who was also entitled to impeach the alienation he should not be deprived of the benefit of this decree. In case, however, the actual heir cannot take advantage of this decree, the appellants would be entitled to put forth whatever defence is open to them under the law; in other words, the argument is, that the new point urged on second appeal should, in the discretion of the Court, not be allowed to be raised because to accede to it may in a possible contingency result in injustice, whereas declining to entertain it can in no conceivable circumstances cause injustice to any body.

Now the effect of the enforcement of the Hindu Succession Act is not a new point raised for the first time in this Court. This was raised in the lower appellate Court and the learned Additional District Judge actually framed two additional issues on which he examined evidence of the parties. The findings on those issues have gone in favour of the respondents and the appellants'' counsel has in his endeavour to challenge those findings not attempted to urge any new point. The only new fact which is brought to our notice is the death of the donor during the pendency of this appeal. Of this subsequent event this Court must take notice because a declaratory decree can only be granted before the succession opens; after the succession has opened it is ordinarily a suit for possession which has to be instituted by the heirs who actually succeed to the estate of the deceased, in that, succession, as has often been said, is never in abeyance. This Court must, therefore, take notice of the subsequent event and not ignore it as has been pressed on behalf of the respondents. It is not claimed by the respondents that they or any one of them can claim the right to succeed to the estate of the deceased whether this is considered to be the estate of the last male holder or of the widow. This appeal being a re-hearing according to the law of procedure, we are entitled, and indeed enjoined, to consider the question whether or not in the circumstances, as they exist at the present moment, a declaratory decree, which is after all a discretionary relief, should be granted in favour of the plaintiffs (reversioners) none of whom claim to have any right to succeed on the widow''s death. As soon as the succession opens, the estate vests in the true heir and the sole purpose of granting any declaration simpliciter would obviously disappear.

A declaratory decree, as is well settled obtained by one or more reversioners enures for the benefit of the entire reversionary body and the individual reversioners who actually happens to be the next heir at the time the succession opens, is entitled to take advantage of the decree, the sole object of which is to remove or get rid of a common apprehended injury in the interests of all the reversioners whether presumptive or contingent. The reversioner actually suing has no personal interest apart from the interest common with the entire reversionary body; this reversionary interest is a mere possibility to succeed or spes succession is a possibility common to all reversioners, it being difficult to predicate as to who would be the actual heir when the succession opens out. The declaratory decree only saves from the operation of the alienation the right of the actual reversioner entitled to succeed and it does not completely wipe out the alienation by declaring it to be wholly void in the sense of being a nullity or non-existent. Indeed, its effect is that the alienation is not binding against the inheritance and this is so irrespective of the form of the decree. The reversionary suit thus binds the entire reversionary body, the basic reason being that it is in essence a representative suit on behalf of all those who are entitled to impeach the alienation, though the ultimate benefit there from may accrue only to the actual heir, who succeeds when the inheritance falls in. This result is implicit in the nature of the reversionary interest and is regardless altogether of the. consideration whether or not in the plaint the plaintiff has purported to sue on behalf of the reversionary body.

One other aspect which may also be borne in mind in this connection is that the proper person to object to an alienation which has not become indefeasible is the nearest reversionary heir, though when inter alia he happens to be a minor, or has colluded with the alien or, or has refused, without sufficient cause, to institute proceedings, the next reversioner is considered fully competent to maintain the action assailing the alienation. This rule is based on the impossibility to predicate as to which particular individual would be entitled to the property at the time the estate falls into possession As to how far a remoter reversioner can claim the right to sue in the presence of nearer reversioner has often been described to be a matter of judicial discretion in regard to the circumstances of each case.

In view of the foregoing discussion, the question naturally arises as to what should happen if before the final declaratory decree is passed by the final Court of appeal, a situation arises that the plaintiffs cease to represent the person who is to succeed to the estate of the alienor or the last male holder, as the case may be. As at present advised, in my view, such a decree cannot enure for the benefit of a person who is not a party to the decree actually or constructively, and if that be the correct legal position, then it would be inadvisable and contrary to the recognised rules on which judicial discretion is exercised to grant a mere declaratory decree.

At this stage it is necessary to advert to one other aspect. The property in this case has not been found to be ancestral qua the plaintiffs. The statutory enactments'' dealing with the control of ancestral property subject to customary restrictions regarding alienation would thus seem to be inapplicable. It would in the circumstances be legitimate to bear in mind the proviso to section 42, Specific Relief Act, which creates a bar to the making of a declaration, when the plaintiff, being able to seek further relief than a mere declaration, omits to do so. The general principle underlying this proviso would seem to be a relevant consideration to be kept in view when exercising judicial discretion whether or not to make a declaration; and this appears to me to go against the plaintiffs.

The decisions cited on behalf of the respondents do not appear to me to be of much valuable guidance in solving the problem which faces us, for, they all deal with different situations. In deciding whether or not to follow a precedent, one must necessarily look to the facts and the proposition of law with which it is concerned. In none of those cases did the plaintiffs cease to represent the person who actually became an heir prior to the final culmination of the lis. In Hari Kishen''s case 1 on which greatest reliance has been placed, the succession had not opened, with the result that the actual heirs could not be predicted and the precise question which arises in the case in hand did not arise there. It is also not clear from the judgment whether the property there was ancestral or non-ancestral. It is accordingly not possible, nor is it necessary for our purposes to consider the arguments criticising some of the observations made therein. Suffice it to say that the ratio decided of that case is not properly attracted to the case in hand. In this view of the matter, we need not advert to the question as to the effect of the widow succeeding to the property gifted by her to her daughter on the latter''s death in 1949. It may, however, be noted that two rival contentions were raised on the basis of this circumstance. The appellants contended that the widow became absolute owner on the enforcement of the recent Hindu Succession Act, and the respondents that it was a reversion to the donor, and, therefore, the original disability continued.

For the foregoing reasons, in my view, the appeal must be allowed and the judgments and decrees passed by the two Courts below set aside and the plaintiffs-respondents'' suit dismissed. In the peculiar circumstances of the case, however, the parties are directed to bear their own costs throughout.