Manraju Devi (deleted) and Rajbhoran Singh and Others vs Ramanuj (delted) and Badrivishal and Another

P.C. Agarwal, J.

It is a second appeal by the defendants/purchasers from a Hindu widow before advent of Hindu Succession Act, 1956 (to be called as ''Act'' only) against whom both the Courts below have decreed the suit by reversioners and a decree for delivery of possession of the lands purchased after removal of the construction thereupon has been passed.

Late Gayadeen had three sons. Late Ramprapanna, Ramanuj and late Shobhnath. Late Smt. Suvraniya was widow of late Shobhnath who died about 40 years before the institution of suit. Lands Khasra Nos. 46, area 1.10 acre, Khasra No. 24, area 0.17 acre, Khasra No. 25, area 0.86 acre and Khasra No. 26, area 0.80 acre, in all 2.93 acres of land situate in village Rajgarh (to be called as ''suit land'') was entered in names of late Ramprapanna, Ramanuj and late Smt. Suvraniya on 1.5.55. Late Smt. Suvraniya executed a sale deed on 20.7.55 of the suit lands in favour of late Vishram Singh (whose legal representatives are appellants No. 2 to 5). Late Vishram Singh sold Khasra No. 46 to late Bankraj Singh (who died during the pendency of first appeal-his legal representatives are appellants 1 (a) to 1 (e)). Appellants No. 6 to 10 have constructed a house on Khasra No. 24, 25 and 26 with the permission of Narendra Singh @ Anil Singh (A-3).

Ramanuj (since deceased-his name is deleted from the cause-title) a brother of late Shobhnath and Badrivishal (R-1) a nephew of late Shobhnath and son of late Ramprapanna claiming themselves to be reversioners, filed a civil suit challenging the sale dated 20.7.55 by late Smt. Suvraniya, the Hindu widow and further the sale by late Vishram Singh in favour of late Bankraj Singh on the ground that the Hindu widow had no right of title to sell the suit land and thus the sale-deeds are null and void against their interest. It was also claimed that mutations in name of late Bankraj Singh or late Vishram Singh or their heirs are not binding against them, construction of house by appellants No. 6 to 10 is also unauthorised and thus a declaration of title and possession after demolition of the house and mesne profits @Rs. 1000/- per annum were claimed.

In their joint written statement, the suit was contested on the ground that late Smt. Suvraniya had absolute title to the suit land, her name was mutated with the consent of all the family members, late Smt. Suvraniya had died in year 1969, she had inherited the land u/s 48 of the Rewa Land Revenue and Tenancy Code, 1935, she had acquired rights under Hindu women''s Right To Property Act, 1937 and u/s 14 of the Hindu Succession Act, 1956. Late Smt. Suvraniya was allotted the suit land exclusively. She was able to transfer possession of suit land to late Vishram Singh. Either late Ramanuj or Badrivishal (R-1) did not get possession of the suit land. Thus, the civil suit by reversioners on 12.2.86 being filed after more than 12 years of death of late Smt. Suvraniya was barred by limitation. It was claimed that late Vishram Singh was a bonafide purchaser for valuable consideration. A plea of perfection of title by long adverse possession was also taken by the appellants.

The trial Court held that late Smt. Suvraniya had only a limited interest in the suit property and sale by her did not bind the reversioners. Plea of adverse possession by appellants was negatived. Late Smt. Suvraniya had died on 25.6.74 and thus the Civil suit was within limitation. Late Smt. Suvraniya had sold the suit land without any legal necessity and thus the civil suit was decreed in favour of reversioners. District Judge, Rewa in first appeal confirmed the judgment and decree of the learned trial Court. According to him, as late Smt. Suvraniya had already sold the suit land on 20.7.55 she was not in possession of these suit lands on advent of Hindu Succession Act, 1956 on 17.6.56 and thus she did not acquire absolute rights in such lands as an effect of Section 14(1) of the said Act relying upon Mt. Lukai and Others Vs. Niranjan Dayaram and Others, , Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, ), Jagannathan Pillai Vs. Kunjithapadam Pillai and Others, ), Munshi Singh and Others Vs. Sohan Bai and Others, ) and Gulwant v. Mohinder Singh ( 1987 MPLJ 623 (S.C.). According to him, advent of the Hindu Succession Act, 1956 does not better the rights of purchaser from a Hindu widow by a sale-deed executed before advent of such Act. He further held that late Smt. Suvraniya had died on 25.6.74, as held by the trial Court and, thus, the civil suit was within limitation.

This second appeal was admitted on 24.9.91 on following substantial questions of law:

(i) Whether the transfer by Mst. Suvrania was for legal necessity and as such valid?

(ii) Whether the learned first appellate court erred in coming to a conclusion that the plaintiffs are reversioners and whether Mst. Sugani being the daughter of Mst. Suvrania will be the person entitled to inherit the suit property, despite transfers made by the widow before coming into force of Hindu Succession Act, 1956?

(iii) Whether the first appellate court erred in granting decree of possession instead of granting decree of damages as a pucca house is standing on the suit property?

Having heard advocates of both the parties and perused the records and judgments of both the Courts below, I proceed to decide these questions.

Second Question - This question relates to locus standi of late Ramanuj, the brother and Badrivishal (R-1), the nephew of the late Shobhnath, the husband of late Smt. Suvraniya to file a suit to challenge the transfer by the widow and thus needs to be decided first. It is not in dispute that Sugani (PW3) is a daughter of late Smt. Suvraniya and late Shobnath. Sugani (PW3) and Badrivishal (PW 1 - R-1) in their written statements (see paragraphs 3, 11 and 13 of latters''s statement) Clearly admit that Sugani is daughter of late Smt. Suvraniya and late Shobhunath.

It was for the plaintiffs, i.e., late Ramanuj and Badrivishal, that they were the nearest reversioners even though the daughter of late Smt. Suvraniya and late Shobhnath was alive. Sheshrao v. Sheshrao (1957 MPLJ 817). Actually, they should have pleaded and proved that either Saguni (PW 3) had colluded with her mother or had refused without sufficient cause to institute the proceedings or was not in a position to sue due to her poverty or herself a limited heir. However, Saguni (PW 3) has been examined as a witness by the respondents and her statement clearly show that she has not been in collusion with the limited owner, her mother.

It is true that this question of not impleading Saguni (PW 3) as a party to the suit was not raised at the earliest stage of the civil suit. Actually, question of maintainability of the suit by late Ramanuj and Badrivishal (R-2) was never raised in the Courts below. Obviously, it is not a case of either including or non-including a necessary party so that provision of Order 1 rule 9 CPC could be applied that such an objection should have been raised at the earliest stage. It is a question of maintainablity of civil suit by late Rananuj and Badrivishal (R-2) as reversioners in the presence of the nearest reversioner Saguni, the daughter of last male owner and the widow.

The main contention of the respondent was based on Manrajua v. Gulab Ram (1977 RN 416) that late Shobhnath had died when Rewa Land Revenue and Tenancy Code, 1935 was in force and thus the widow had inherited Pattedari rights to the exclusion of daughter. Obviously, it was not in dispute that u/s 48 (1) (b) of the said Code widow stood second in order of succession and excluded a daughter. Such widow had to hold the land till her death or her remarriage. The rights of Hindu widow are best defined in Gogula Gurumurthy and Others Vs. Kurimeti Ayyappa, ) in these words:-

A Hindu widow is entitled to the full beneficial enjoyment of the estate. So long as she is not guilty of willful waste she is answerable to no one. Her estatesnt a life estate, nor an estate held in trust for, reversioners. During her lifetime she represents the whole inheritance and a decisiokn in a suit by or against her is binding on the reversioners. It is the death of the female owner that opens the inheritance to the reversioners.

Thus, after death of Smt. Suvraniya, her daughter Saguni (P.W. 3) suceeds her being the nearest heir of late Shobhnath. Obviously, to decide the question who is the reversioner pertinent date has been not the date of death of late Shobhnath nor the date of impugned alienation by late Smt. Suvraniya but the date of death of late Smt. Suvraniya when the successor of last male owner inherits the property as a reversioner.

Section 175 (1) of the Principles of Hindu Law defines the word reversioners in following words:

The heirs of the last full owner, who would be entitled to succeed to the estate of such owner on the death of a widow or other limited heir, if they be then living, are called ''reversioners''. A reversioner may be a male or a female.

Under Section 175 (3) reversioners derive their title from last full owner. u/s 175 (2) such interest is an interest expectant on the death of a owner. It is not a vested interest. It is a spes successionis or a mere chance of succession. u/s 202 a reversioner has a right to demand that the estate be kept free from danger during its enjoyment by the widow or other limited heir. He may therefore, sue to restrain a widow or other limited heir from committing waste or injuring the property. u/s 205, he may institute a suit for declaration that any alienation by the widow is not binding on the reversioner -

Futher Section 207 reads as follows :

207 Who may sue for injunction or for declaratory decree - It is not the law that any who may have a possibility of succeeding on the death of a widow or other limited heir can maintain a suit for an injunction or for a declaratory decree; for otherwise every one in the line of succession however remote, would have a right to sue. The right to sue rests in the first instance with the next reversioner.

The reversioner next after him is not entitled to sue unless:

(i) The next reversioner refuses without sufficient cause to institute proceedings or has concurred in the act alleged to be wrongful, or has colluded with the limited heir, or is precluded from suing by his own act or conduct, or is from poverty not in a position to sue; or

(ii) according to the Calcutta, Madras and Patna decisions, the next reversioner is herself a female and entitled to a limited interest only. The same view has been taken by the Allahabad High Court in some cases; in other cases it has been held that the mere fact that the next reversioner is a female does not give any right of suit to the more distant reversioner, unless it be shown that she was acting in collusion with the widow or other limited heir whose act is impeached.

Further u/s 209 Reversioner''s should file a suit for his possession of immovable property from an alienee from widow or limited heir within 12 years from her death. (See Article 65, 109 and 113 of the Limitation Act, 1963).

In Mayne''s Hindu Law and Usage 14th Edition at page 1031 holds that "Under the Hindu Law, the death of the female owner opens the inheritance to the reversioners and the one most nearly related at the time to the last full owner becomes entitles to possession. In her lifetime, however, the reversionary right is a mere possibility or spes successioni. But this possibility is common to them and all, for it cannot be predicated who would be the nearest reversioner at the time of her death. The law, however, permits the institution of suits in the lifetime of the female owner for a declaration that an adoption made by her is not valid, or an alienation effected by her is not binding against the inheritance. As a general rule such suits must be brought by the presumptive reversioner, that is to say, by the person who would succeed if the widow were to die at that moment. The rule is subject to certain exceptions. Such a suit may however be brought by a more distant reversioner if those nearer in succession are in collusion with the widow, or have precluded themselves from interfering. If the near reversionary heir refuses, without sufficient cause, to institute proceedings, or if he has precluded himself by his own act orconduct from suing, or has colluded with the widow, or concurred in the act alleged to be wrongful, the next presumptive reversioner would be entitled to sue. In such a case, the Court must exercise a judicial discretion in determining whether the remote reversioner is entitled to sue, and would probably require the nearer reversioner to be made a party to the suit.

The controversy as to who among the reversioner is entitled to challenge any alienation has been set at rest by Daya Singh (Dead) through Lrs. and Another Vs. Dhan Kaur, . The Supreme Court has held that only those who would be the heirs of the husband at the time of death of the widow according to the law in force at such date would be entitled to maintain the suit and not those who would have been heirs of the husband according to the law in force at the time of his death.

In the words of the Apex Court itself at page 665 and 666;

The accepted position under the Hindu Law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day. The inevitable corollary is that it is only the law in force at the time of the death of the limited owner and not the law in force at the time of the last full owner''s death that would govern the case. There is no reason either in principle or on authority why this principle should not apply after the coming into force of the Act.

The Apex Court had applied this principle in a case of a Hindu widow governed by the customary law of Punjab who had succeeded to the estate of her husband in 1933 died after the coming into force of the Hindu Succession Act, but was not than in possession of the estate the succession to the estate was held to be governed by Section 8 of the Act and not by the customary Law of Punjab which was in force at the time of her husband''s death. This case applies to the facts of this case with full force.

Thus, when Saguni (PW3), the daughter of last male owner is alive who is entitled to inherit his property independently, late Ramraj, the brother or Badrivishal, the nephew of the last male owner were not entitled to challenge the sale by the widow Smt. Suvraniya. Obviously, there was no justification for not adding Saguni as a party to the suit and thus clearly the suit was not maintainable. The question is answered accordingly.

First question: In these facts and circumstances of the case the question whether sale by late Smt. Suvraniya was for legal necessity or not does not arise at all. Though of course a declaratory suit that alienation was made without legal necessity and was not binding could lie. Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, ) and Radha Rani Bhargava Vs. Hanuman Prasad Bhargava, ). However, there has been no pleading in the plaint that the impugned sale was without any legal necessity. The appellants had also not claimed in their joint written-statement that such sale was for legal necessity. Of course, P.M. Kavade v. A.B. Bokil ( AIR 1971 SC 228) relates to a sale by the manager of the family and not to a sale by the limited owner. Obviously, the burden to prove that the impugned sale was for legal necessity lay heavily on the appellants yet there was no pleading, no issue was framed, no evidence was led by either party on the point. The learned trial Judge has made merely a stray remarks about legal necessity though there was no pleading or evidence on this point. Question of legal necessity was not raised in first appeal also.

Of course impugned sale deed was an old document of 1955. Certain recitals had been there about legal necessity. However, such recitals were not conclusive in absence of any oral evidence in support of them. Ram Krishna vs. Vithal Rao (1978 JLI 450), based on Smt. Rani and Another Vs. Smt. Santa Bala Debnath and Others, ). However, as this civil suit was not filed by the nearest or presumptive reversioner of the last male owner i.e. Saguni who only could succeed to him, the suit was bad and incompetent Thus, these questions do not arise at all. The question is answered accordingly.

Third Question : As Saguni (PW3) was the only reversioner being a class I heir of the last male owner and she had chosen not to file a civil suit challenging the impugned sale and Late Ramanuj and Badri Vishal (R.2) were not competent or entitled to challenge the sale by Late Smt Suvraniya. They had been unable to explain why Saguni (PW3) was not added as a party. They could not show that they could file the civil suit without Saguni (P W3) and thus the civil suit was not competent and no decree could be granted against the appellants. No decree for possession could be given in favour of Late Ramanuj, the brother and Badri Vishal (R.2) the nephew of last male owner Late Shobhanath when his daughter his Saguni (PW3) was alive who could only be entitled to such decree for possession. Of course Late Ramanuj and Badri Vishal had not filed this suit as a representative of Sagnui (PW3). Grant of any decree by the learned Courts below has been wholly unjustified. The question is answered accordingly.

Thus, this appeal is allowed with costs. Civil suit by Late Ramanuj and Badri Vishal (R2) is hereby dismissed with costs. Advocate''s fee as per schedule.