Raghubir Singh vs Amar Nath

R.S. Thakur, J.—This Regular Second Appeal against the judgment and decree of the learned District Judge, Kangra at Dharamsala, dated June 9, 1975, has been referred to this Division Bench by the learned single Judge (Pathak, C.J. as he then was) vide order dated March 9, 1977, the relevant portion whereof is extracted as follows:

After bearing learned Counsel for the parties it appears that an important question of law deserving the consideration of a larger Bench arises in this case. The question is whether the enactment of Section 14 of the Hindu Succession Act, 1956, enlarged the estate enjoyed by Smt. Sahbo notwithstanding a declaratory decree passed earlier on a reversioner�s suit. The case is accordingly referred to a larger Bench for decision.

The facts which give rise to this appeal are not in dispute. One Shri Rajoo was the last male holder of certain land which was inherited by his widow Smt. Jainti on the death of said Rajoo some time prior to the year 1943. In the year 1943, said Smt. Jainti alienated this land inherited from her husband in favour of Smt. Sahbo the daughter of her husband�s brother Inder through a gift. Respondent Amar Nath and his brother Bachiter, Rattan and Man Chand then challenged this gift in favour of Smt. Sahbo as reversioners of said Rajoo through a suit wherein both the donor Smt. Jainti and the donee Sahbo were made Defendants and obtained a declaratory decree on March 1, 1944 to the effect that the gift made by Smt. Jainti in favour of Smt. Sahbo would not affect their revisionary rights to the estate of said Rajoo on the death of the donor Smt. Jainti. Smt. Sahbo then died some time in the year 1956 and this land gifted in favour of Smt. Sahbo was mutated in favour of her son Shri Raghubir, the Appellant herein. In the year 1961 there was consolidation of holding proceedings in that area as a result of which some other land was allotted in favour of the Appellant in lieu of that gifted land. Smt. Jainti the donor then died on January 18, 1966 and after her death, the Respondent herein Shri Amar Nath who was the only surviving reversioner of Rajoo, filed a suit against the Appellant in the Court of the Sub-Judge, Kangra, for possession of the land which was allotted in his favour in the consolidation proceedings in lieu of the gifted land which has been described in para-2 of the impugned appeal on the basis of the declaratory decree in his favour dated March 1, 1944. This suit was decreed by the first Court and that decree was affirmed by the first appellate Court which judgment has now been impugned in this Court.

During the course of arguments before us, it was not disputed that Shri Rajoo was the last male holder of the land in dispute which was inherited by Smt. Jainti on the death of Rajoo some time prior to the year 1943. Smt. Jainti then gifted this land in favour of Smt. Sahbo, the daughter of her husband�s brother, Inder in the year 1943 and thereafter a declaratory decree was obtained by the Respondent and his brOrs. (since deceased) to the effect that the gift in favour of Smt. Sahbo would not bind the reversionary rights of the Respondent and his brOrs. after the death of the donor Smt. Jainti and that the Respondent is a reversioner of said Rajoo.

The law by now is quite clear in cases of this nature, and was not disputed by any of the parties to the appeal, namely:

(i) That prior to the.coming into force of the Hindu Succession Act, 1956, a male holder dying intestate was inherited by the widow but her rights qua the estate were of the nature known in the legal parlance as the Hindu widow�s estate and her powers of alienation qua such an estate were of very limited nature and� if those limits were exceeded the re-versioners of her husband had a right to obtain a declaratory decree to the effect that such an alienation being illegal, was not binding on their reversionary rights;

(ii) The rights under the declaratory decree of the reversioner were inchoate inasmuch as the reversioners had only spes successions and the decree would come into operation only at the time of the death of the widow alienor and at that time it has to be seen as to who is entitled to the estate in question the nearer heirs excluding the distant ones;

(iii) The widow alienor not being in legal possession of the alienated land, her rights would not ripen or enlarge into full proprietary rights qua the alienated land even after the coming into operation of the Hindu Succession Act, 1956 u/s 14 thereof;

(iv) In the face of a declaratory decree obtained prior to the coming into force of the Hindu Succession Act, with regard to the alienation, there is no question of alienee becoming full owner of the estate alienated in her favour by the widow even if the alienee is female in possession of the estate at the time of enforcement of the Hindu Succession Act and it will have to be seen only at the time of the death of the widow whether such an alienee has any right to this property under the declaratory decree which enures to the benefit of all the heirs of the last male holder, the nearer one(s) excluding the distant one(s);

(v) By fiction of law the last male holder is deemed to have died at the time of the death of the widow alienor and it has to be seen as to who is entitled to his estate at that time as his heir or reversioner.

Now applying these principles of law to the case in hand, it will be seen that the gift in favour of Sahbo became ineifective by virtue of the decree obtained by the Respondent and his brother on March 1, 1944. Even if Smt. Sahbo the donee from Smt. Jainti was in possession of this gifted land at the time when the Hindu Succession Act came into force, that is, of no consequence and the decree was binding on her and she did not become full owner by virtue of the said Act and the decree in favour of the Respondent had to be given effect to at the time of death of the donor Smt. Jainti. Admittedly, Smt. Jainti died on January 18, 1966 and thus succession to the estate of Rajoo opened on this said date and we have to see as to who was entitled to the land in suit on this date. Indisputably Section 8 of the Hindu Succession Act, 1956, comes into operation. It is apparent that none of the parties to this appeal is covered either by clause (a) or clause (b) of the said Section. The Respondent, however, being the agnate of the last male holder becomes entitled to this land under clause (c). The Appellant being son of the last male holder Janoo�s brother Inder�s daughter Smt. Sahbo is a mere cognate who comes under clause (d) only of the said Section and is thus excluded by the Respondent and it has, therefore, to be held that it is the Respondent who is entitled to the land in suit which was the estate of the last male holder Rajoo in the hands of his widow Smt. Jainti when it was gifted in favour of Smt. Sahbo, the mother of the Appellant in the year 1943 which gift was held as not binding upon the reversionary rights of the Respondent by virtue of a decree in his favour obtained on March 1, 1944.

The learned single Judge referred this matter to a larger Bench perhaps under the impression that the donee Smt. Sahbo in this case is the real daughter of Smt. Jainti from the loins of Rajoo and that she being in possession of the gifted land at the time of coming into force of the Hindu Succession Act, her rights were enlarged by virtue of Section 14 of the said Act irrespective of the declaratory decree in favour of the Respondent. This, however, is not the case here. In fact if this were the case even the Appellant at the time of death of Smt. Jainti would have been held entitled to the land as he would have been heir to the estate of Rajoo of Class I. The legal position, however, is that since the Respondent and his brOrs. had obtained a declaratory decree in the year 1944 qua the gift in favour of Smt. Sahbo, even if said Smt. Sahbo were the real daughter of Rajoo and had died after coming into force of the Hindu Succession Act but pre-deceased Smt. Jainti, the Appellant would have been entitled to the estate of Rajoo at the time of the death of Smt. Jainti not by virtue of the fact that the estate of Smt. Sahbo had been enlarged by virtue of the Hindu Succession Act but by virtue of his being Rajoo�s daughter�s son, as after the declaratory decree the alienation whether by way of sale, gift or any other means becomes ineffective and thereafter the alienee as has been held by Courts is a mere trespasser on the alienated land but even if not a trespasser the alienee has only a right to remain in possession of the alienated property till the death of alienor. In the instant case, however, obviously said Smt. Sahbo, was Rajoo�s brother�s daughter and as such the status of the Appellant becomes that of a cognate only.

The learned Counsel for the Appellant during the course of the arguments also mildly contended that the Respondent in the first Court failed to establish as to whether the land in suit was the land allotted in lieu of the land which was gifted by Smt. Jainti in favour of Smt. Sahbo and that it was quite probable that Smt. Sahbo had in her ownership some other land apart from the gifted land and both types of lands might have been taken as a unit for the allotment of Anr. land in favour of the Appellant during the consolidation of holding operations.

We feel that this question being a question of fact could not be argued with any justification in this Court after the two lower courts had given categorical finding thereon to the effect that the land in suit is the one which was allotted in favour of the Appellant under the consolidation proceedings in lieu of the land which was gifted by Smt. Jainti in favour of Smt. Sahbo. However, in order to do complete justice between the parties this Court gave an opportunity to the learned Counsel for the Appellant to show from any revenue record as to whether the deceased Smt. Sahbo at the time of her death was owner of any other land besides the gifted land as in that case although this circumstance could not non-suit the Respondent but this Court would have framed a proper issue in the matter and asked thelower Court to give a finding on thispoint. The learned Counsel despite having obtained long adjournment on this score, however, was not able to show us any such record and we, therefore, hold that the suit land is the one which was allotted to the Appellant in lieu of the land gifted by Smt. Jainti in favour of Smt. Sahbo and as such the Respondent is entitled to possession of this land.

In view of the above, the appeal fails and the same is dismissed while the judgment and decree of the lower courts are affirmed. The parties are, however, left to bear their own costs.