Teja Singh and Another vs Jagat Singh and Others

D.K. Mahajan, J.—This second appeal is directed against die concurrent decision of the Courts below decreeing the Plaintiffs'' suit.

In order to appreciate the controversy in this appeal it will be proper to state the facts in some detail. Dalipa was the last male holder of the land in dispute. On his death his widow Uttam Devi succeeded. Uttam Devi gifted the estate inherited by her from her husband on 18-2-1938 to Daulat Singh and Charna. The reversioners of the husband some of whom are present Plaintiffs and the others are Defendants 7 to 14 brought a suit for the usual declaration that the land which Uttam Devi had gifted was ancestral qua them and the gift being by a limited owner would not affect their reversionary rights after the death of the widow. This suit was decreed and the declaration prayed for was granted.

After the declaratory decree, the Hindu Succession Act, 1956, came into force. On 3-6-1959 Daulat Singh made a gift of the property received by him from Uttam Devi to her. The possession of the property was also delivered to her. After Uttam Devi had got back half of the property gifted by her in 1938, she sold it to Defendants 5 and 6 and on 29-10-1959 she died.

The present suit has been filed by the Plaintiffs, who are some of the collaterals of the last male holder, for possession of the entire land which formed the subject-matter of 1938 gift. The suit was contested by the transferees, Defendants 5 and 6 and the dispute in the Courts below really related to one half of the gifted property which had been returned by one of the donees of 1938 i.e., Daulat Singh to the donor Uttam Devi. They pleaded that Uttam Devi came into possession of the property by reason of the gift dated 3-6-1959 made by Daulat Singh and she being in lawful possession of the same had become its absolute owner by reason of Section 14 of the Hindu Succession Act. She could therefore sell the property and the reversioners of her husband could not in the circumstances take any benefit of the declaratory decree qua this part of the property. It is significant that in the present suit this gift by Daulat Singh to the widow on 3-6-1959 is not challenged. The suit proceeds on the assumption that there was a valid gift by Daulat Singh to the widow. What was challenged was that Daulat Singh had no right to make a gift to her. On the pleadings of the parties, the following issues were framed:

(1) Whether the Plaintiffs and Defendants Nos. 8 to 14 are the collaterals of Dalipa deceased?

(2) Whether Mst. Uttam Devi was the absolute owner of one half of the property in suit and as such she was competent to alienate half of the suit, property in favour of the Defendants Nos. 5 and 6?

(3) Whether the suit is liable to be slaved?

(4) Relief.

These issues were found in favour of the Plaintiffs with the result that the suit was decreed. An appeal against the decision met with no success. Dissatisfied with this decision, the Defendant-vendees have come in second appeal to this Court.

The contention of the learned Counsel for the Appellants is that no doubt by reason of the gift made in 1938 the widow had ceased to be in possession of her husband''s property, but by the gift back on 3-6-1959 of part of the property she same into lawful possession of the same. The gift back undid the gill of 1938 to the extent of one half. Therefore, she acquired an absolute title to it u/s 14 of the Hindu Succession Act. This argument is sought to be met by the learned Counsel for the Respondents with the plea that the lady having parted with possession in 1938 could not acquire lawful possession thereafter particularly when the declaratory decree had intervened between the date of the first gift and gift back, of the part of the property. The contention is that in the property acquired by a Hindu widow before the Act, she must retain its possession without break right up to the date when the Act came into force. If she loses possession at any time before the Act came into force, she does not become its absolute owner at the time when the Act came into force. It hardly matters that she reacquires lawful possession of that property after the Act had come into force. The reacquisition of possession will not make her the absolute owner thereof. The entire emphasis is on the declaratory decree, which according to the learned Counsel had created certain rights which cannot be defeated in any contingency; and therefore oven lawful reacquisition of possession is of no use.

These are the rival contentions which fall for determination. Before dealing with them it will be proper to examine the nature of the Hindu widow''s estate before the Hindu Succession Act came into force. Before the Act came into force the settled proposition of law was that a Hindu widow whether governed by Hindu Law or by the customary law only acquired a limited estate in the property to which she succeeded as an heir. She could not alienate that property except for a necessary purpose. Her unauthorised alienation could be challenged by her husband''s reversioners and in certain circumstances by the next heirs. With this modification she was the owner of the properly and could enjoy its income as she pleased, She was not bound to nurse the estate for her husband''s heirs. This rule had no application qua her Stridhan property of which, she was the absolute owner and could deal with it as she pleased. See in this connection Ali Mohammad v. Mr. Mughlani AIR 1946 Lab 180 : 1948-48 Pun LR 210 (F.B).

The unauthorised alienations by a widow were subject to control by the husband''s reversioners. This control was exercised by challenging the alienation by a declaratory suit filed within the prescribed period of limitation and by obtaining a decree that the alienation in question will not affect the reversionary rights of the husband''s reversioners after the death of the widow. Where the widow died within the period prescribed for a declaratory suit, the same result could be achieved by the next heir by suing for possession.

In (his context it would be proper to consider the nature of the reversionary right and effect of the declaratory decree that is obtained by the reversioner declaring the unauthorised alienation by a widow inoperative against the rights of the reversionary body.

The interest of a reversioner is an interest expectant on the death of a limited heir. It is not a vested interest. It is a spes successions or a mere chance of succession. It cannot, therefore be sold, mortgaged or assigned, nor can it be relinquished. A transfer of a spes successions is a nullity, and it has no effect in law.

(see paragraph 175(2) of Mulla''s Principles of Hindu Law 12th Edition),

A reversioner has the right to bring, a suit for a declaration that an alienation effected by a widow is not binding on the reversion. The basis of the right is the danger to the inheritance common to all the reversioners, presumptive and contingent alike, the object being to forestall an injury which threatens the common interest of all the reversioners. Where a reversioner brings a representative suit for a declaration that an alie nation by the widow is not binding on the reversion and dies, his right of suit survives not to his personal'' heirs, but to the next presumptive reversioner The next reversione; for the time being to the estate of a deceased Hindu, expectant upon the widow''s death is not entitled to sue for a declaration that he the next reversioner.

(See paragraphs 202 and 203 of Mulla''s Hindu Law 12th Edition) Therefore, it will ho apparent from what has been stated above that the right which the law grants to a reversioner is a mere right to protect the reversion by obtaining a dee laratory decree declaring the unauthorised alienation by a widow inoperative against the reversion It does not declare the alienation void during the lifetime of the widow An alienation rcmains good alienation and binding on the widow during hcr lifetime and the alienee from the widow has the right to enjoy the property to its fullest extent in pursuance of that alienation When the widow dies the alienation against which the declaration has been obtained, becomes void and the nest heir surviving would be entitled to lake advantage of the declaratory decree and on its basic bring a suit against the alienee and recover possession thereof. The declaratory decree does not either vest the property in the reversioneir who brings the suit or declare the next heir to the estate qua which the declaration has been obtained Therefore, per se it confers no personal rights on the deeree-holder It morely removes a cloud east on the reversioner by the unauthorised act of the widow.

It is also a settled rule that the alienation by a widow would only enure so long as the lite of the widow enures Subject to this limitation a widow was treated as the full owner of the life interest and could part with the same for her lib. Even unauthorised alienations by the widow are not void ah initio but are merely voidable.

The learned Counsel for the Respondents contends that inasmuch as the gilt of 1938 was declared invalid and inoperative by the declaratory decree to which the donee and the widow were parties the gift back passed nothing or if it did, it only passed a limited estate or an estate which was subject to the declaratory decree. Counsel for tire Appellants on the other hand contends that the gift back undid the gift of 1938 with regard to half of the estate. In my view the contention of the learned Counsel for the Appellants is sound and must prevail. On principle. I see no difficulty in the matter what the alienee validly and un questionably acquires undo an unauthorised alienation from a widow is the limited interest. What he passes back is again the limited interest. So at two points of time, what the widow parted with was a limited interest and what she reacquired again was that very interest. The gift and the gift back have not and could not enlarge the widow''s limited interest. Therefore, there is no question of any declaratory decree either stepping in this situation to undo what could not be done. The declaration merely undid the gift after the death of the widow. It did not prevent the widow to undo the gift in her life time. Nor it could, for what the parties can validly do they can also by mutual consent undo it later. This course would merely make the declaratory decree inoperative for what it sought to achieve after the death of the widow is achieved in her life time, thus rendering the declaratory decree useless. I am supported in this connection by a Division Bench decision of the Lahore High Court in Muhammad Rafiq v. Faiz Ahmad AIR 1933 Lah 597 (2) where the facts were that property was sold by the last male-holder to his son-in-law. This sale was challenged by the reversioners and a declaratory decree was obtained by them. After the decree, the property was sold back by the son-in-law of the last male-holder and it was held by the Division Bench consisting of Jai Lai and Agha Haidar, JJ., repelling the contention of the reversioners that the declaratory decree had not become useless because subsequent to the decree the land was sold back by the vendee to the vendor - that the declaratory decree had become useless as the sale had been cancelled by mutual consent. It is in the light of these observations that the provisions of Section 14 of the Act have to be examined.

Section 14 says that any property possessed by a female Hindu whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as a limited owner Therefore, at both points of time that is at the point of time when she parted with the property and at the point of time when she reacquired it, she held a limited estate, and Section 14 of the Hindu Succession Act would convert that estate into a full estate if the widow is in lawful possession of it. If there was no reacquisition in fact the parting the possession in 1938 would have not conferred absolute estate on the widow because she would not be in possession or the property when the Act came into force or thereafter. I put it to the learned Counsel for the Respondents a case of the widow selling the property before the coming into force of the Hindu Succession Act and later on buying back that property after the coming into force of the Hindu Succession Act. The effect of both these two transactions put together would be that she by her own act is nullifying the alienation made by her and is making good the property to her husband''s estate In this situation could it be imagined that after reacquisition the widow will not become the full and absolute owner of it in view of the provisions of Section 14 of the Hindu Succession Act? The answer was that the widow will become the absolute owner of such property But the learned Counsel insisted that if in the meantime a declaratory decree had been obtained it would make a difference In my view the presence of the absence of a declaratory decree would make no difference. The declaratory decree avoids the alienation. It does not prevent the parties to it to put an end to it. If they do so after the declaratory decree, they arc in fact obeying the decree and giving effect to it and thus serving the purpose of the decree. The parties are thus restored back to the same position in which they were before the alienation. Therefore when the alienor dies leaving the alienated property as a part of the estate the next heirs will succeed to it irrespective of the fact that there is or is not a declaratory decree. The heirs do not succeed on the basis of the declaratory decree. The decree docs not nominate the next heir. It also does not vest the property in the decree-holder. If the alienation has not been vacated by the act of the contracting parties the declaratory decree declaring the alienation as invalid does not ipso facto put the heirs who are entitled to succeed to it into possession of the same at the time the succession opens out. The heirs will have to recover possession from the alienees within 12 years or in the ease of persons governed by the Punjab Customary Law in case of ancestral property within 3 years otherwise they will lose the property and the declaratory decree will be rendered meaningless.

Now take the case of an alienation by a widow for the duration of her life. Such an alienation cannot be objected to by the reversioners and no declaratory decree will ever be granted by any Court. In spite of this that there is no declaratory decree the widow will not become the absolute owner of the alienated property by reason of Section 14 of the Hindu Succession Act, but if she and the alienee put an end to that alienation and the widow holds the property free from the alienation and is in possession of it, she will automatically become its absolute owner u/s 14 of the Hindu Succession Act. There can be no escape from this conclusion.

The phraseology of Section 14(1) is very wide and all that has to be seen is whether the widow is in lawful possession of properly when the Act comes into force. See Kotturuswami v. Veeravva AIR 1959 SC 577. If she is, she be comes its absolute owner and can absolutely alienate it. It cannot be said in the circumstances of this case that she was not in lawful possession of her property after the Act.

Mr. Sethi strongly relied upon the observations of the Supreme Court in Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, and also on two decisions of the Madras and Calcutta High Courts in Marudakkal v. Arumugha AIR 1958 Mad 255 and Krishna Dassi Saha Vs. Akhil Ch. Saha and Another, Both these decisions were considered by the Supreme Court in Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, Therefore it will be proper to refer first to the Supreme Court decision and to the passage on which reliance has been placed. This passage occurs at page 581 of the Supreme Court decision and is in the following terms:

The provision of Section 14 of the Act has been subject of scrutiny and interpretation by various High Courts. In the case of Ram Ayodhya Missir and Others Vs. Raghunath Missir and Others, and in the ease of Mt. Janki Kuer and Others Vs. Chhathu Prasad and Others, the Patna High Court took the view that the effect. of Sections 14 and 15 of the Act was that a reversioner recognised as such under the Hindu Law was no more a reversioner as a female Hindu possessing any property whether acquired before or after the commencement of the Act, held not a limited estate but an absolute estate therein and after the coming into force of the Act he had no right of reversion or any kind of spes successionis. The High Courts of Calcutta, Andhra Pradesh and Madhya Pradesh have taken a view which does not support the view expressed by the Patna High Court in the aforesaid cases. The High Court of Madhya Pradesh in the case of Mt. Lukai and Others Vs. Niranjan Dayaram and Others, dissented from the decision of the Patna High Court in the above-mentioned cases. Indeed the Patna High Court in the case of Harak Singh Vs. Kailash Singh and Another, overruled its previous decisions referred to above and rightly pointed out that the object of the Act was to improve the legal status of Hindu women enlarging their limited interest in property inherited provided they were in possession of the property when the Act came into force and therefore in a position to take advantage of its beneficial provisions; ''but the Act was not intended to benefit alienees who with their eyes open purchased the property from the limited owners without justifying necessity'' before the Act came into force and at a time when the vendors had only a limited interest of Hindu women.

The observations which I have underlined (here into '' '') were the observations on which considerable stress was laid by Mr. Sethi. These observations are of no assistance to the learned Counsel in the present case because here the alienees took property from the widow after she had become the absolute owner and was in lawful possession of it. These observations of the Supreme Court refer to a case where the widow was not in possession of the properly at the time when the Act came into force and an argument was sought to be raised that as the provisions of Section 14 were retrospective therefore the estate at the time of its acquisition by the widow had become her absolute property by reason of Section 14 and therefore the defensible sale had become indefeasible. This argument was repelled by their Lordships of the Supreme Court on the short ground that she can only acquire absolute interest in the property if she is in possession of property at the time of the coming into force of Hindu Succession Act, 1956, or thereafter. So far as the Madras and Calcutta decisions are concerned there also a similar argument was raised and was repelled. Not a single decision has been cited by Mr. Sethi where the property gifted or sold by the widow was reacquired by her after the Act had come into force and after reacquisition had been alienated and it has been held that such an alienation can be avoided by her husband''s reversioners.

On the facts and circumstances of this case it must therefore be held that with regard to half of the property which Daulat Singh had gifted back to the lady, she was in lawful possession of it and by reason of Section 14 she had become its absolute owner and could sell it to Defendants 5 and 6 who therefore acquired a valid title to it.

The Courts below fell into error because they have treated the declaratory decree us creating title in the parties If they had understood the nature and the scope of such a decree, they would not have taken the view that they have taken of the matter.

For the reasons given above I allow this appeal set aside the judgments and decree of the Courts below and dismiss the Plaintiff''s suit with no order as to costs.

On an oral prayer made by the learned Counsel for the Respondents I certify that this is a fit case for appeal under Clause 10 of the letters Patent.