BAKSHI RAM Vs. BRU LAL

JUDGEMENT

(1.) This appeal is directed against the judgment and order of the High Court of Himachal Pradesh. Even though a certificate was granted by the High Court under Article 133(1) of the Constitution of India as there was no decision of this Court on the question whether the rights of a reversioner to get a declaratory decree stands frustrated after coming into force of the Hindu Succession Act, the real issue is if the appellants who were remote reversioners were competent to sue on the compromise decree obtained by them in lifetime of the female next reversioner who became owner under the Hindu Succession Act.

(2.) It has been found by all the Courts below that one Sunder was owner of extensive property which were in nature of a joint family property. He executed a gift in favour of a distant collateral Brij Lal which was challenged by the appellants who were the remote reversioners. The suit was compromised between parties that is the appellants, Sunder the alienor and Brij Lal, the alienee, and his brothers. As a result of the compromise 15 Kanals and 15 Marlas i.e. 1/8th share of the land which had been the subject of gift by Sunder in favour of Brij Lal was to be given to the appellants after the death of Sunder. Some share was given to the brothers of Brij Lal as well. Other property which was the subject-matter of gift was to go to the share of Brij Lal. The compromise entered between the parties was given shape of a decree for declaration in terms of the compromise. Sunder died in 1964. The appellants, thereafter, filed this suit for their share under the compromise decree which was resisted by Brij Lal and one of the pleas raised by him was that Lilan, sister of Sunder being alive, the appellants had no right to sue or recover possession of the land in dispute. All the Courts agree that Lilan was a sister of Sunder and she was alive on the date when Sunder died. But they differed on the effect in law of her being alive. The trial Court dismissed the suit whereas the Subordinate Judge decreed it. It was held that the appellant was entitled to recover possession in terms of the compromise decree arrived at between parties. The appellate decree was confirmed by the learned single Judge. It was held that the appellants were enforcing the right which was given to them as a result of the compromise in the earlier suit. It was further held that Lilan was not a party to the suit and whatever may be her rights, Brij Lal, the defendant, could not raise any objection of non-maintainability of the suit. But the order of the learned single Judge was set aside in further appeal in Letters Patent by the Division Bench. It was held that although the decree obtained by the appellants was declaratory which enured even for the benefit of Smt. Lilan it did not prevent Brij from taking the objection that the decree being for the benefit for entire body of reversioners and Smt. Lilan being nearer than the appellants, the suit was liable to be dismissed.

(3.) A reversioner under customary Hindu Law had a right to challenge the alienation if it was not for legal necessity. Such a right vested in respect of joint family property as well. The appellants, who were remote reversioners, therefore, could file the suit against a stranger. Even the High Court did not dispute that the suit filed by the remote reversioner was maintainable. A decree in such suit against alienation enured for the benefit of the entire body of reversioners and it is only a nearer reversioner who can oust the remote reversioner either in the same suit or in a later suit. But a third person or the alienee could not claim that the suit was not maintainable as it was filed by a distant reversioner. The appellants had, however, been non-suited as the declaratory decree obtained by them could not be enforced as Lilan the next reversioner was alive.