DAYA SINGH DEAD Vs. DHAN KAUR

JUDGEMENT

(1.) The property in dispute in this appeal belonged to Wadhawa Singh, the father of the respondent. After his death in the year 1933 his widow, who succeeded to the estate, made a gift of the property in favour of her daughter, the respondent, in April 1933. The appellants filed a suit as reversioners to the estate of Wadhawa Singh questioning the gift. The suit was decreed and the decree was confirmed on appeal. After coming into force of the Hindu Succession Act on 17-6-1956 the widow again made a gift of the same lands to the respondents. She died in 1963. The appellants then filed the suit, out of which this appeal arises, for possession of the lands alleging but the second gift was void. The Trial Court decreed their suit but on appeal the respondent succeeded in the first Appellate Court as well as the High Court on second appeal.

(2.) There is no doubt that Wadhawa Singh's widow had no right to make a gift of the property which she inherited from her husband in 1933 and the decree obtained by the appellants, who were reversioners to her husband's estate would bind the respondent who was also a party to that suit. The question then is whether the coming into force of the Hindu Succession Act and the subsequent gift made by the widow in favour of the respondent make any difference. Had not the widow made the gift to the respondent in 1933, she would have become an absolute owner of the property as a result of Section 14 of the Hindu Succession Act and the gift made by her subsequently in favour of the respondent could not have been questioned. But having made the gift in 1933 she was not in possession of the property inherited by her from her husband and, therefore, did not become a full owner with the result that the subsequent gift made by her in favour of the respondent was of no effect. This point that unless the limited owner is in possession of the property Section 14 does not apply has now been settled by decisions of this Court beyond dispute.

(3.) What then is the effect of the provision of Section 8 of the Hindu Succession Act in the circumstances of this case The Punjab High Court in its decisions in Banso v. Charan Singh, AIR 1961 Punj 45, and Kuldip Singh v. Karnail Singh, AIR 1961 Punj 573, where the facts were similar to the present case, has taken the view that when a widow dies after the coming into force of the Hindu Succession Act the next heir to her husband is to be determined in accordance with the law prevailing on the date of the death of the widow and not in accordance with the law prevailing at the time of the death of her husband and held that the daughter succeeded in preference to the reversioners. The Mysore High Court on the other hand in Kempiah v. Girigamma, AIR 1966 Mys 189 has held that on the death of the widow succession would be governed by the Hindu Law which was in force when the last male holder actually died. The Patna High Court in Renuka Bala v. Aswini Kumar, AIR 1961 Pat 498 was disposed to take a similar view though the case before it was concerned with succession to the property of a female under Section 15. The Madras High Court in Sampathkumari v. Lakshmi Ammal, AIR 1963 Mad 50 also took the view that in such circumstances Section 8 of the Hindu Succession Act would not apply. But the case before that Court was on where two widows who had succeeded to the estate of their husband were in possession, and therefore, Section 14 was applicable. Lastly, we have the decision of this Court in Eramma v. Verrupanna, (1966) 2 SCR 626 . In that case this Court after setting out the provisions of Sec. 6 of the Hindu Succession Act, observed: