Sawan Mal and Others vs Smt. Gita Devi and Others

Harbans Singh, J.—This second appeal has arisen from the following circumstances. One Lakhu was the last male-holder after whose demise the property, in dispute, which is land measuring 16 kanals 14 marlas, was inherited by Mst. Kaulan. She made a gift of this property on 14th of March, 1950, to her daughter Mst. Gita. In 1951 Mst. Kaulan died. Mst. Gita Devi continued to be in possession of the gifted property. On 7th of March, 1956, the suit, out of which the present appeal has arisen, was filed by 7 plaintiffs alleging that they alongwith defendants 2 to 7 were the collaterals of the last male-holder and as such entitled to inherit the property in preference to the daughter, whether the same was ancestral or non-ancestral. During the pendency of the suit, out of defendants 2 to 7, Bhagat Ram defendant No. 3, Sidhu Ram defendant No. 4, Thakar Dass defendant No. 5 and Urbi Dhar defendant No. 6 were transposed as plaintiffs. Thus, the suit became on behalf of 11 plaintiffs including the original defendants 3 to 6. Some of the khasra numbers given in paragraph 16 of the trial Court''s judgment were found to be non-ancestral while the remaining property was found to be ancestral. The suit of the plaintiffs was dismissed qua the non-ancestral property, daughter being held to be a preferential heir, while the suit of the plaintiffs with regard to the remaining property which was found to be ancestral was decreed. The appeal filed by Mst. Gita Devi was accepted by the lower appellate Court. The finding qua the land, which was found to be ancestral or non-ancestral, was, however, confirmed, but it was held that in as much as on the date of the coming into force of the Hindu Succession Act, the daughter was in actual pos�session, consequently, following a Single Judge''s judgment reported as Mst. Prito v. Mst. Gurdas (1958) 60 P. L. R. 194, it was held that she became an absolute owner by operation of section 14. In view of the above, the suit of the plaintiffs was dismissed. Out of the 11 plaintiffs, in whose favour the decree had been granted by the trial Court and upset by the lower appellate Court, only ten, i.e., all the plaintiffs except Thakar Das, filed the present appeal,

It is conceded that in view of the Full Bench decision in Amar Singh and Others Vs. Sewa Ram and Others, the decision in Mst. Prito''s. case is no longer good law. According to this Full Bench decision, the possession of a female, which would have the effect of ripening the estate into full estate, must be lawful possession. The argument of the learned counsel for, the respondent, however, was that in the present case the possession of Mst. Gita Devi should be treated to be lawful at the time of the enforcement of the Hindu Succession Act and, consequently, it was urged that the decision in the Full Bench case would not be applicable and the estate of Mst. Gita Devi must be taken to have been enlarged. The argument was that a gift made by a widow is not only valid during her lifetime but is not even void as against the reversioners and is only voidable. The Hindu Succession Act came into force on I5th of June, 1956, and the decree in the present case was granted by the trial Court on 17th of February, 1957. It was, therefore, contended that on the date of the enforcement of the Hindu Succession Act, the gift had not been set aside and, therefore, the possession of Mst. Gita Devi must be taken to be under a lawful title. I feel that there is a fallacy in this argument. Reliance for this argument was placed on Mulla''s Hindu Law, paragraph 185(2), which runs as follows :

Even as regards reversioners it is not absolutely void, but voidable at their option. They may affirm it, or treat it as a nullity without the intervention of a Court, and they show their election to do the latter by commencing an action to recover possession of the property, In such a case they are entitled to mesne profits for a period before the exercise of the election.

In the present case, the gift was made in 1950, and inasmuch as this was a gift by a widow, it was not necessary for the reversioners to have a declaration of its invalidity from a Court of law as they would have been bound to in case the alienation was by a male. As is stated in paragraph 185(2) of Mulla''s Hindu Law, reproduced above, reversioners can exercise the option of treating the alienation as void without the intervention of the Court. They could have straightaway filed a suit for possession anytime after the death of Mst. Kaulan. She died in 1951 and they could have Shown their intention to treat the gift as void any time thereafter by filing a suit for possession. This they did on 7th of March, i.e., several months before the enforcement of the Hindu Succession Act. Consequently, by filing this suit, the reversioners treated the alienation as not binding on them and if ultimately it is found that they are entitled to possession then it cannot be held that during the pendency of the suit the possession of Mst. Gita Devi was under any claim or title. As soon as they exercise their option to treat the alienation as void, if in law they are entitled to do so and claim possession, i.e., if the property is ancestral, the possession of Mst. Gita Devi donee must be treated as that of a trespasser and not under any claim. That being so, the Full Bench decision would be fully applicable and her estate cannot be enlarged because there is, in fact, no estate.

In view of the above, therefore, I feel that the judgment of the lower appellate Court cannot be sustained and it must be held that the reversioners are entitled to possession of the land which has been found to be ancestral.

It is, however, clear that they can claim possession of that share of the property to which they are entitled. There are only ten appellants before me and it is obvious that they cannot get a decree for more than their own share. It was urged on behalf of the appellants that a decree should be passed in their favour and in favour of respondent Thakar Das, in whose favour as a plaintiff a decree was granted by the trial Court, as well as in favour of Bihari Lal defendant No. 2 and Danoo defendant No. 7, who did not get themselves transposed as plaintiffs. It was urged that powers under Order 41, Rule 43, Civil Procedure Code, may be exercised in their favour.

Here, there were a many as 13 claimants to the property. Each one of them could have brought a separate suit for his own share and it was open to any one of them not to bring any such suit or not to file an appeal if the decision had gone against him. The present suit was only by 11 out of these 13 and the decision having gone against all of them, the present appeal is only on behalf of 10 and it must, therefore, be taken that the other three did not care to exercise the right to ask for possession of their share. There is no case for granting a decree to the existing appellants for more than their own share and so far as those who either did not join as plaintiffs or having joined did not file an appeal, are concerned, claim in respect of them cannot be granted.

Copy of the jamabandi of the year 1953-54, Exhibit P. 7, is on the record and gives the respective shares of the various appellants and respondents. The three persons who have not filed this appeal are Bihari Lal, son of Perman defendant No. 2, Danoo, son of Prakam defendant No. 7 (who were not transposed as plaintiffs) and Thakar Das defendant No. 5, (who was transposed as plaintiff and got a decree by the trial Court but filed in the Lower appellate Court but has not filed an appeal here). It is agreed between the counsel for the parties that the share of these non-appellants comes to 520/1390-nds and that of the appellants 872/1392-nds I therefore, accept this appeal modify the decree granted by the Court below and grant a decree to the plaintiff-appellants for 872/139-2nds share out of the land found to be ancestral. In view of the partial success, the parties will bear their own costs in this Court as well as in the Courts below.