Rajaram vs Dindayal and another

P.K. Tare, J.

This is an appeal by the Plaintiff against the decree, dated 3-9-1965, passed by the First Additional District Judge, Sagar, in Civil Appeal No. 71-A of 1965, affirming the decree, dated 20-7-1964, passed by the 1st Civil Judge, Class II, Sagar, in Civil Suit No. 69-A of 1963 dismissing the Plaintiff''s suit for possession of agricultural property as also non-agriculture property consisting of a house.

The genealogy of the parties is as under:

The dispute is with respect to the property of Girdharilal, who was the last owner ; after whose death, the property came to his junior widow Mst. Ladlibahu, who died after the coming into force of the Hindu Succession Act, 1956. She made all transactions which are disputed in the present suit. Originally, the Appellant had impleaded his real sister Narbadabai, his cousins Ramnarayan and Gayaprasad, sons of Nanhibai, who are transferees from the widow. But subsequently they were discharged from the suit at the instance of the Appellant.

Mst. Ladlibahu on 30-7-1936 as per the deed Ex. P/15, had gifted certain property in favour of her daughter Nanhibai to the exclusion of the other daughter, Konsabai. Therefore, Konsabai had filed Civil Suit No. 9-A of 1937 against her mother, Mst. Ladlibahu and her sister Nanhibai challenging the gift. In that suit, as per the judgment Ex. P/8, dated 3-5-1937, and as per the decree Ex. P/9, a declaration was granted that the gift deed, dated 30-7-1936, executed by Ladlibahu in favour of Nanhibai, did not affect the Plaintiff''s right of inheritance on the death of Ladlibahu. Subsequently, Nanhibai died in the year 1941 and Konsabai also died in the year 1943.

Subsequently, Ladlibahu executed a registered sale deed, dated 27-5-1952 in favour of Rameshwar Prasad, one of the discharged Defendants, and later she executed a registered gift deed, dated 21-3 1957, in favour of the present Respondents, who may be said to be remoter reversioners than the sons or the daughters of the two daughters of Ladlibahu. But at this stage, it may be pertinent to note that in the year 1942, as is clear from the mutation record Ex. P/6, the names of Ladlibahu, Ramnarayan and Gayaprasad were mutated in the revenue papers in respect of the suit property. However, as is clear from the mutation register Ex. P/7, the names of Ramnarayan and Gayaprasad were deleted, leaving the name of Ladlibahu alone against the suit property. Similarly, the revenue records consisting of Khasras and Jamabandis, showed the names of the said parties according to the changes effected in the mutation register.

The Appellant filed the present suit alleging that after the death of Ladlibahu on 9-4-1960, he became entitled to the property on the strength of the declaratory decree, dated 3-5-1937 (Ex. P/9), and that Ladlibahu had no right or power to make a gift of the property in favour of the present Respondents. In this connection, I might observe that the action of the Appellant in discharging the other Defendants from the suit was a wrong action on his part. If his claim succeeds, he along with Ramnarayan and Gayaprasad, might be the next reversioners in preference to the present Respondents. However, in view of the fact that the other Defendants were discharged, we are required to consider the case as laid on its own merits.

The Respondents'' defence was that after the enactment of the Hindu Succession Act, 1956, Ladlibahu became an absolute owner of the property by virtue of Section 14(1) of the Act and, therefore, she was competent to execute a gift in favour of the Respondents. It was also their contention that although under the gift deed, dated 30-7-1936, the donees Ramnarayan and Gayaprasad were entitled to remain in possession during the life time of Ladlibahu, they were dispossessed by her in the year 1951 even according to the Plaintiff''s case. Therefore, Ladlibahu started prescribing a prescriptive title by adverse possession as against those donees. That prescriptive title was completed by operation of Schedule 2, Article 1 of the C. P. Tenancy Act, 1920. Therefore, at the time of the coming into force of the Hindu Succession Act, 1956, Ladlibahu had not only possession, but also right to possess on account of a prescriptive title, and for that reason, Section 14(1) of the Hindu Succession Act, 1956, was applicable.

The learned Counsel for the Appellant argued these two questions about the applicability of Section 14(1) of the Hindu Succession Act, 1956, as also the legal effect of the alleged dispossession by Mst. Ladlibahu on 1-6-1951. In addition, he also raised a pure question of law, which was not canvassed in any of the Courts below, nor has it been raised in the memorandum of appeal filed in this Court. However, that question will be subsidiary one and dependent on the main question of applicability or otherwise of Section 14 of the Hindu Succession Act, 1956. Therefore, I am of opinion that the Appellant can be permitted to raise a pure question of law at the second appellate stage, provided it is not dependent on further evidence. In the present case no further evidence would be required; and the question relating to the right of the Appellant based on Section 164 of the M. P. Land Revenue Code, 1959 before its amendment on 1-11-1961, can be considered along with the other questions. Therefore, I propose to consider the three questions mentioned above.

Before considering those questions on merits, I may mention the respective reasoning of the learned Judges of the Courts below in coming to the conclusion that the suit of the Plaintiff must fail. The trial Judge held that after the death of Girdharilal, his widow, Mst. Ladlibahu succeeded to the property. Ladlibahu had executed a gift, dated 30-7-1936 in favour of her daugher Nanhibai, that there was a litigation in which a declaration was granted to the effect that it was not binding on the Plaintiff reversioner. However, in pursuance of the said gift, Nanhibai or her sons did not obtain possession of the property. It was also found that Ladlibahu did not dispossess Ramnarayan and Gayaprasad of the entire property on 1-6-1951. Ladlibahu''s possession was held to be not adverse. However, it was found that Ladlibahu became an absolute owner by virtue of Section 14 of the Hindu Succession Act, 1956. Therefore, according to the trial Judge, the gift deed, dated 30-7-1936, was not at all acted upon; and consequently Ladlibahu was competent to execute a gift in favour of the present Respondents. It was also held that the Plaintiff is the sole reversioner; and as such he could sue for possession of the suit properties after the death of Mst. Ladlibahu.

On the other hand, the learned appellate Judge came to the conclusion that the gift, dated 30-7-1936, was acted upon; and in consequence of that, the donees were in possession. However, subsequently in the year 1951, Ladlibahu dispossessed the donees; and as such, she started prescribing adverse title. Therefore, although she may have lost title to the suit property by virtue of the gift made by her in favour of Nanhibai, she got a prescriptive title by virtue of Schedule 2, Article 1 of the C. P. Tenancy Act, 1920, as she was in possession for more than three years. Therefore, at the time the Hindu Succession Act, 1956 came into force, she had not only actual possession of the property, but also right to possess it by acquisition of prescriptive title; and as such, according to Explanation of Section 14(1) of the Hindu Succession Act, 1956, she became an absolute owner; and as such competent to execute a gift, dated 21-3-1957 in favour of the Respondents.

Coming to the first question as to the applicability of Section 14 of the Hindu Succession Act, 1956, which is the most controversial question in this appeal, it was urged by the learned Counsel for the Appellant that section 14 (2) of the Hindu Succession Act, 1956 is attracted as Ladlibahu''s right in the property was restricted by the declaratory decree, dated 3-5-1937 (Ex. P/9). Therefore, it is urged that Sub-section (1) of Section 14 of the Act is not at all attracted. In this connection, I might observe that Ladlibahu acquired interest in the property not by virtue of that decree, but by virtue of inheritance or succession to her deceased husband, Girdharilal. The decree Ex. P/9 merely granted a declaration in favour of the reversioner. For the applicability of Sub-section (2) of Section 14 of the Act, it is necessary that the will, gift, instrument, decree or order by which the property is acquired by the widow, should restrict her right so as to make it a limited Hindu woman''s interest. If her right is not restricted by the will, gift, instrument, decree or order, by which she acquires her title to a limited extent Sub-section (2) cannot at all be attracted. The said Sub-section is as follows:

Section 14 (2) -Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Section 14 Sub-section (2) of the Hindu Succession Act, 1956 evidently cannot apply, as Mst. Ladlibahu has inherited the property of her husband not on account of any gift or will or instrument or decree or order of a Civil Court or an award. What the decree declared in Civil Suit No. 9-A of 1937 was that Mt. Ladlibahu having a limited interest and the gift made by her not being for legal necessity, was not binding on the reversioners after her demise. Therefore, that decree did not become the source of her right which was independent of it. Therefore, it is clear that Section 14 Sub-section (2) is out of question. However, the further question remains whether Section 14 Sub-section (1) of the Hindu Succession Act, 1956 applies so as to better the rights of Mst. Ladlibahu after 17-6-1956. The gift deed, dated 21-3-1957, (Ex. D/1) in favour of the Respondents will be valid only if her right is bettered into an absolute estate after 17-6-1956. If not, the Appellant''s suit for possession must succeed. In this connection, attention was invited to the wording of Section 4, Sub-section (2) of the Hindu Succession Act, 1956 and it was urged that nothing in the Act will apply to any provision of law relating to tenancy rights. But it was urged that the ''Bhumiswami'' rights being tenure-rights Section 14, Sub-section (1) will be applicable; and in no case can the tenure rights be termed as tenancy rights so as to exclude the operation of the Hindu Succession Act, 1956. In this connection, attention was invited to Gopichand v. Smt. Bhagwani Devi A I R 1964 P&H 272 and Indubai Vs. Vyankati Vithoba Sawadba and Others, , wherein a distinction has been drawn between the tenure rights and tenancy rights. With due respect I may say that the distinction is very real, although a ''Bhumiswami'' may be said to be a lessee of the State. Therefore, if the tenancy legislation makes a special provision in respect of succession to tenancy rights of in respect of consolidation of holdings, by virtue of Section 4(2) of the Hindu Succession Act, 1956, the provisions of the Act will altogether be excluded and it is the provision of the Tenancy Act that will prevail. But there being a distinction between the tenure rights and tenancy rights, I am of opinion that Section 4(2) exactly may not be attracted where tenure rights are concerned. Of course they will be attracted where a person is an occupancy tenant of a ''Bhumiswami''. For this reason Section 14 of the Hindu Succession Act will be applicable to the present case. In this part the Hindu Women''s Right to Property Act, 1937 was applicable to agricultural holdings by virtue of an amendment made by the C. P. Legislature after the decision of the Federal Court AIR 1941 72 (Federal Court) . Therefore, if Section 4(2) of the Hindu Succession Act is not attracted, Section 14 will be applicable even to agricultural holdings. In this connection, I may only refer to the observations of Narasimham C. J., and Das J. in Laxmi Debi Vs. Surendra Kumar Panda and Others, and of Katju J. in Shakuntala Devi Vs. Beni Madhav, , wherein the said view has been taken.

However, the applicability of Section 14(1) of the Hindu Succession Act, 1956 in the present case will depend on certain other factors. According to their Lordships of the Supreme Court in Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, , it is necessary for a widow not only to possess the right to hold property but also she must be in possession at the time the Hindu Succession Act came into force. If either of the two requisites be absent, Sub-section (1) of Section 14 cannot be attracted so as to make her estate an absolute one. Their Lordships left open the question as to what would be the position where the property is in possession of a trespasser at the time of the coming into force of the Hindu Succession Act, 1956. Further, their Lordships have clearly laid down in S.S. Munna Lal Vs. S.S. Rajkumar and Others, , that it is the interest of a Hindu widow which will become absolute on the coming into force of the Act. For that purpose, it is not necessary that her interest should be defined. In that case a preliminary decree for partition had been passed declaring the interest of the mother without a partition by metes and bounds. The mother died after the preliminary decree. Therefore, the question arose whether her undefined interest would be an absolute one or a limited one. Their Lordships clearly laid down that the interest, even though undefined and even though not separated by a partition by metes and bounds, will become her absolute estate.

I may further observe that the facts to a great extent in the present case are similar to the facts in the case of Radha Rani Bhargava Vs. Hanuman Prasad Bhargava, , wherein their Lordships had to consider the question as to what will happen in a declaratory suit by the reversioners against the alienee if the widow died during the pendency of the suit. Their Lordships have laid down that such a suit would be tenable against an alienee. Their Lordships also re-iterated the earlier view taken in Gummalapura v. Setra Veerayya (supra). It may be relevant to scrutinise the facts of this case. One Kalyansingh died sonless in the year 1918 leaving behind his widow, Mst. Bhagwati and two daughters, Mst. Indrawati and Mst. Radha Rani. By a deed, dated 10-10-1919, Mst. Bhagwati alienated her husband''s estate in favour of certain alienees. On October 23, 1931, Mst. Indrawati suing in a representative capacity on behalf of the reversioners filed the suit out of which the appeal before their Lordships of the Supreme Court arose. She had impleaded the alienees as also Mst. Bhagwati and Mst. Radha Rani as Defendants. She had claimed a declaration that the alienation was not binding on the heirs of Kalyansingh after the demise of Mst. Bhagwati. The declaratory suit in her favour was decreed on 12-8-1941. On 12-2-1942 some of the alienees filed an appeal in the Allahabad High Court wherein they impleaded Mst. Bhagwati, Mst. Indrawati and Mst. Radha Rani as Respondents. The sons of Mst. Indrawati and Mst. Radha Rani were also impleaded. But the High Court by an order directed that those persons would not be allowed to be impleaded as Respondents. During the pendency of the appeal in the High Court, the Plaintiff Mst. Indrawati died. The High Court directed that in her place her sister, Mst. Radha Rani would continue to be on the record. During the pendency of the appeal, the Hindu Succession Act, 1956 came into force. On behalf of the alienees, a preliminary contention was raised that after the Act there being no reversioners and no reversionary right, the suit for a declaration that the alienation was not binding on the reversioners, would no longer be maintainable. Accepting the contention of the alienees, the High Court allowed the appeal and dismissed the reversioners'' suit. Their Lordships specifically overruled the view as expressed by the Patna High Court in Ramsaroop Singh and Others Vs. Hiralall Singh and Others, and reversed the view of the Allahabad High Court in the case out of which the appeal arose, holding that the suit was not affected and what was necessary was for the Plaintiff to claim possession of the property after the death of the widow either by way of an amendment of the plaint or by way of a fresh suit. In that view, their Lordships laid down that the suit would not be affected, the reasoning being that if a widow has parted with her right or interest in favour of a third person or if she is not in possession on the date of the Hindu Succession Act, 1956, her interest cannot become absolute by virtue of section 14 (1) of the Act. In this connection, I might casually mention that I had an occasion to consider this interesting question in Ananadibai v. Sundarahai 1966 MPLJ Note 179 : A1R 1965 M.P. 85 where the widow had her interest or right intact at the time of the Hindu Succession Act, 1956. But at that time she was not in possession. The property was in possession of a third person. Therefore, the question arose whether the widow''s interest would become absolute or would remain limited. Following the view of their Lordships of the Supreme Court in Gummalapura v. Setra Veerayya (supra) and S. S. Munnalal v. S. S Rajkumar (supra), I propounded the proposition that if at the time of the Act, right and possession do not co-exist, the widow''s interest cannot become absolute. But it is not necessary that they should co-exist at the time of the Act. What is necessary is that at some point of time, they should co-exist, although they may come into existence at different points of time. It is only when they co-exist that the widow''s interest will become absolute. Therefore, if on the date of the Act, a widow''s right is there and the property is in possession of a third person and she has filed a suit for obtaining possession, till she obtains possession, her interest will remain limited, But no sooner she obtains back possession from a third person or a trespasser, her interest will become absolute when her right and her actual or constructive possession co-exist. If either of the two requisites is absent, her right cannot become absolute one. Therefore, where a widow has transferred her interest in favour of some other person who may either be an alience or a donee or a vendee, one of the elements relating to her right to possession would be wanting and questions may arise whether her interest becomes absolute and at what point of time. The Explanation to Section 14(1) of the Hindu Succession Act, 1956 also mentions a prescriptive right acquired by a widow which also becomes her absolute estate by virtue of Sub-section (1). It is necessary to see as to what the prescriptive right should be.

A widow without having any right or interest in the property might acquire a prescriptive right so as to extinguish the right of the real owner. Of course, by virtue of the Explanation, that right of her''s, even though it be the limited right of a Hindu Woman, will become absolute; and for the purposes of Sub-section (1), a prescriptive right acquired by her will be sufficient to confer an absolute estate on her. But I may observe that it must be a prescriptive right acquired by her which means she may have acquired that right by adverse possession for more than the statutory period of limitation, or she must have extinguished the right of the real owner so as to defeat his suit on the ground of limitation by virtue of Article 142 or Article 144 read with Section 28 of the Limitation Act, 1908. Here, in the present case, the prescriptive right was acquired by Mst. Ladlibahu as against the donees under the gift deed dated 30-7-1936, namely, Ramnarayan and Gayaprasad, who according to the declaratory decree, would be entitled to remain in possession of the property during her life time, but after her demise it would be the reversioners, namely the sons of Konsabai and Nanhibai, who would be entitled to possession. It is to be noted that it was the Plaintiff''s own case that Mst. Ladlibahu dispossessed Ramnarayan and Gayaprasad sometime in the year 1951 and she was in possession till her death, which took place on 9-4-1960. Therefore, she certainly acquired a prescriptive right as against Ramnarayan and Gayaprasad by virtue of Schedule 2 Article 1 of the C. P. Tenancy Act, 1920, which prescribes a period of 3 years'' limitation in respect of tenancy lands. Therefore, so far as the tenancy lands were concerned, she acquired a prescriptive right as against Ramnarayan and Gayaprasad. Can it be said that that prescriptive right as against the donees who also happened to be some of the reversioners would be enough to defeat the declaratory decree granted in favour of the present appeal-lant''s mother. I may emphasise that Mst. Ladlibahu did not cancel the gift made in favour of Ramnarayan and Gayaprasad. If she had done that and also obtained back possession from the donees, there would be no doubt that her interest would become absolute one by virtue of Section 14(1) of the Hindu Succession Act. But that right to possess was not regained by her fully, but only partly in the sense that she obtained a prescriptive right of possession against the donees alone. Under such circumstances, unless she regained her right to possession in addition to actual or constructive possession, I am unable to agree with the proposition that her interest will become absolute. This is due to the fact that she had already lost her title or right to possess by virtue of the gift which stands unrevoked even till her death. Therefore, any prescriptive right acquired by her against the donees alone will not be sufficient to defeat the declaratory decree in favour of the reversioners who were not entitled to actual physical possession during her life time and who would be so entitled after her demise. Therefore, I feel that Section 14(1) of the Hindu Succession Act, 1956 cannot confer an absolute estate on her.

In this connection, it may also be relevant to see as to what kind of right or title she acquires by adverse possession as against the donees. The case of Lajwanti v. Safachand AIR 1924 PC 121, was a case where a widow, although entitled to maintenance only, entered into possession of her husband''s property as an heir of her deceased son. It was laid down by their Lordships of the Privy Council that her prescriptive right by adverse possession would only be a limited interest as a Hindu widow and not as her ''stridhan'' property.

In AIR 1947 19 (Privy Council) , a Hindu widow was holding the estate on the supposition that her husband had died, but that supposition was subsequently found to be incorrect. Their Lordships laid down that the adverse possession of the widow must be against a living person, although she might have been in possession for more than the statutory period, her. prescriptive right would not constitute adverse possession as against her husband because she was possessing the estate of her husband under a mistake as to his death. In Singhai Ajit Kumar and Another Vs. Ujayarsingh and Others, , their Lordships of the Supreme Court laid down that where a sudra left the self-acquired property and his heirs were his widow and an illegitimate son, the widow''s estate was being managed by the Court of Wards, legitimate son was entitled to half share in the property. After the management of Court of Wards ended, the widow''s adverse possession acquired by her would confer a title on her in respect of the share of the illegitimate son only but in respect of the other half she would be holding as a widow''s estate. Similarly she would be holding this illegitimate son''s share in a limited right and the result would be that after her death succession would open out and the illegitimate son as the nearest heir would succeed to the entire estate.

It is true that by acquiring a prescriptive right as against the real owner or as against a person entitled to immediate possession, the right of the real owner would be lost by the acquisition of a prescriptive right by the widow, as laid down by a Full Bench of the Nagpur High Court in AIR 1940 49 (Nagpur) . But the prescriptive right must be against the real owner or the person entitled to possession. In the present case the prescriptive right by the widow was acquired only as against the donees, and not as against the reversionary body. As such, her prescriptive right as against the reversionary body will start from 21-3-1957 when she executed another gift deed Ex. D/1 in favour of the Defendants. At that time, the M.P. Land Revenue Code, 1954 (Act No. 1 of 1955) had already come into force repealing the C. P. Tenenacy Act, 1920 altering the period of limitation from 3 years to 12 years. Therefore, any prescriptive right acquired by Mst. Ladlibahu as against the donees alone by virtue of 3 year''s adverse possession under Schedule 2 Article 1 of the C. P. Tenancy Act, 1920, will in no case amount to adverse possession or acquisition of a prescriptive right as against the present Appellant; and for that reason I am of opinion that the declaratory decree granted by the Court in favour of the reversioners in the year 1937 will be operative so as to prevent the interest of the widow becoming an absolute one u/s 14(1) of the Hindu Succession Act, 1956. It is clear that if her interest be a limited one, she was in-competent to execute a gift in favour of the present Respondents. This would dispose of the first and the third questions mentioned by me in paragraph 8 above.

Then remains the only question as to the applicability of Section 164 of the M. P. Land Revenue Code, 1959, before its amendment on 1-11-1961 by the M. P. Land Revenue Code (Amendment) Act, 1961.

In view of the finding recorded by me with reference to the applic-.ability of Section 14(1) of the Hindu Succession Act, 1956, it is exactly not necessary to decide the additional point raised by the learned Counsel for the Appellant for the first time. But I may casually mention it as also the arguments of the learned Counsel. It is urged on behalf of the Appellant that as Mst. Ladlibahu died on 9-4-1960, the question of succession was governed by Section 164 of the M.P. Land Revenue Code, 1959 prior to its amendment in the year 1961. In this section, there was a special table of heirs governing succession to agricultural property. The M. P. Land Revenue Code (Amendment) Act, 1961, which came into force with effect from 1-11-1961 abolished the special table of heirs and made the personal law of the parties applicable to the question of succession. Therefore, on behalf of the Appellant it is contended that the daughter''s sons being the next heirs, the Appellant is entitled to succeed. In this connection, I might observe that the Appellant is not the only next heir, but Ramnarayan and Gayaprasad, who were wrongly struck out from the array of Defendants would also be the next heirs in equal degree. The question, therefore, may arise whether the Appellant''s claim can be decreed in the absence of those two reversioners, who would become heirs after the death of Mst. Ladlibahu. It is suggested by the learned Counsel for the Appellant that the Appellant''s claim can be decreed as he would be obtaining possession in his representative capacity on behalf of the reversioners and as such he would become the heir after the death of Mst. Ladlibahu. At any rate, the Respondents will have no right or title to the property except on the basis of the gift deed, dated 21-3-1957 (Ex. D. 1), which would only be valid if Mst. Ladlibahu''s interest be held to have become absolute consequent upon the coming into force of the Hindu Succession Act, 1956.

On behalf of the Respondents, it is urged that the lands not being the tenancy lands and the M. P. Land Revenue Code, 1959 not being a legis-lation relating to tenancy rights, the provisions of the Hindu Succession Act, 1956 will be attracted and Section 4(2) of the Hindu Succession Act, 1956 will not be a bar to the applicability of the Act, and in this connection the distinction between the tenancy rights and tenure rights as drawn in Gopichand v. Smt. Bhagwani Devi (supra) and Smt. Indubai v. Vyankati (supra) is pointed out. As against this, the learned Counsel for the Appellant urged that by virtue of Section 164 of the M. P. Land Revenue Code, 1959, the law in force at the date of the said Act alone will have to be considered and any subsequent amendment of the general Hindu Law cannot be taken into consideration, as laid down by Vyas J. in Sitabai v. Kothulal AIR 1958 Bom. 604, wherein the learned Judge expressed the opinion that for the purposes of Section 151 of the M. P. Land Revenue Code, 1954, the phrase ''personal law'' will have to be interpreted to mean the law in force at the time the Code was enacted and it will not include any amendment of the personal law subsequently made, such as the Hindu Succession Act, 1956. This view of Vyas J. was followed by Pandey J. in Mst. Bhaguntibai v. Kumari Ramlali S. A. No. 69 of 1963 decided on the 6th April, 1965. (Reversed in Kumari Ramlali Vs. Mst. Bhagunti Bai and Others, .

However, I find that not only I took a view contrary to the view of Vyas J. in Bhondu v. Mst. Nira S. A. No. 512 of 1958, decided on the 28th Oct. 1961, but also other Judges of this Court have dissented from the view of Vyas J. I may only refer to the case of Chudaman V. Smt. Fudan S. A. No. 721 of 1964, decided on the 4th May 1966 decided by Bhargava J. as also Nathuram v. Mst. Rambati 1966 MPLJ Note 146 (S. A. No. 410 of 1961, decided on the 7th May 1966.) decided by Naik J., wherein Naik J. preferred to follow the view of Bhargava J. as also the case of Bhagatram v. Sitaram Civil Revn. No. 513 of 1961, decided on the 12th August 1959 decided by P. R. Sharma J. Moreover, the view as expressed by Vyas J. has been subsequently overruled by a Division Bench of the Bombay High Court in Smt. Indubai v. Vyankati (supra). Therefore, even if the personal law were to be applied, the relevant time will be when the succession opens and the personal law prevailing at that time will have to be applied. However, the question would only be of an academic interest and, therefore, I do not find it necessary to decide it or to refer the said question for consideration by a larger Bench in view of the conflict of opinion between the different single Bench decisions of this Court.

As a result of the discussion aforesaid, I am opinion that the present case being governed by the pronouncement of their Lordships of the Supreme Court in Badharani v. Hanumanprasad (supra), the Appellant ought to succeed in his suit for possession which will naturally be in his capacity as a representative of the reversionary body challenging the gift deed, dated 21-3-1957, executed in favour of the Respondents.

However, the question arises whether the Appellant''s suit can be decreed in the absence of the other two reversioners, Ramnarayan and Gayaprasad. No doubt, they would have been necessary parties if they had not entered into a compromise with the widow and had taken benefit as donees under the gift deed dated 30-7-1936. In view of the benefit obtained by them under the said gift-deed executed by the widow, they will be precluded from enforcing their right as reversioners as laid down by their Lordships of the Privy Council in Kanhailal v. Brij Lal and others AIR 1918 PC 70 : LR 45 I A 118. In a later case, their Lordships of the Privy Council in AIR 1927 227 (Privy Council) laid down that a reversioner who is a party to and is benefited by a transaction entered into by a Hindu widow, is precluded from questioning any part of it, and his sons cannot have it set aside specially when he did not do so in his life time. Therefore, what their Lordships have applied in these cases is the principle of estoppel against the reversioner who acquiesces in an alienation made by a widow and takes benefit under it. In pursuance of the gift, dated 30-7-1936, Mst. Nanhibai and her sons, Ramnarayan and Gayaprasad were actually in possession till the year 1951. As such, they took benefit under that alienation in respect of which a declaration was granted by the Court in favour of the reversioners. As regards the present alienation also, they did not seek an enforcement of their right as reversioners in challenging the gift, dated 21-3-1957 in favour of the present Respondents. Therefore, if they cannot be allowed to enforce their rights as reversioners in respect of the second gift, there can be no doubt that the Appellant as the remaining reversioner and heir after the death of Ladlibahu can be granted the requisite relief of possession even in the absence of Ramnarain and Gayaprasad. Therefore, the fact that the Appellant discharged them from the suit will not have any particular bearing on the case so as to defeat his suit.

Consequenly, the present appeal succeeds and is allowed by setting aside the decree passed by the Courts below and by decreeing his claim as prayed for. The Appellant shall be entitled to his costs throughout. Leave for filing Letters Patent appeal is refused.