HIMI Vs. HIRA DEVI WIDOW OF BUDHU RAM

JUDGEMENT

(1.) The appellants who are the heirs of one Bai Lachhmu, are the original plaintiffs whose suit for possession against the respondent-donees of suit agricultural lands claiming through the donor-Bai Utti came to be decreed by the Trial Court and which decree was confirmed by the District Court but who lost before the High Court in Second Appeal and consequently their suit for possession came to be dismissed by the High Court.

(2.) A few relevant facts leading to the present proceedings by special leave to appeal under Article 136 of the Constitution of India may be noted at the outset. The suit lands originally belonged to one Bali Ram. Said Bali Ram made a Will of his properties dividing equally the suit properties between his second wife Bai Utti and his daughter from the first wife Bai Lachhmu through whom the appellants claim. The legatees under the said Will of Bali Ram were his second wife and his daughter from the first wife who inter se were step-mother and step-daughter respectively.

(3.) Said Bali Rani died on 25th July, 1946. Thereafter Lachhmu claiming her half share in the properties on the basis of the Will of her father Bali Ram, filed a Civil Suit on 5th May, 1947 against her step-mother Utti challenging the mutation of properties in her name and for enforcing her rights under the Will and for possession of her half share in the properties as a legatee under her fathers Will. In the said suit between step-daughter plaintiff Bai Lachhmu and step-mother Bai Utti a compromise was arrived at on 6th November, 1947. Under the said compromise the defendant step-mother acknowledged the ownership of the half share of plaintiff Bai Lachhmu in the suit properties pursuant to the Will of Bali Ram. The plaintiff Bai Lachhmu on the other hand agreed that her properties comprising of the half share under her fathers Will may remain in possession of Bai Utti during her lifetime but after the death of Bai Utti, plaintff Bai Lachhmu or her heirs would be entitled to enter upon the possession of the suit properties. It was also agreed between the parties that both the parties will have equal rights in the suit properties during the lifetime of Bai Utti, the step-mother of the plaintiff. Accordingly Consent Decree was passed. We will refer to the relevant terms of the Consent Decree a little later. To resume the narration of events Bai Utti who was permitted during her lifeline to remain in possession of the properties which were accepted to be belonging to Bai Lachhmu as per the aforesaid Compromise Decree, assuming that she had become full owner of these properties which were allowed to remain in her possession during her lifetime presumably by virtue of Section 14, sub-section (1) of the Hindu Succession Act, 1956 (hereinafter referred to as the Act) donated the suit properties by two Gift Deeds dated 17th April, 1970 and 26th August, 1970 in favour of one Bellu Ram and one Budhu respectively. Under these Gift Deeds thus apart from her half share in the properties for which there was no dispute she also gifted away the other half share of the properties which belonged to Bai Lachhmu and which half share was possessed by her during her lifetime pursuant to the Consent Decree. Accordingly the respective donees entered upon possession of these properties,. Thereafter Bai Utti died on 4th September 1971. The appellants as heirs of Bai Lachhmu filed a Civil Suit against both the donees Bellu Ram and Budhu on 28th January, 1972 claiming possession of the properties which according to the appellants belonged to Lachhmu and which were illegally donated by Bai Utti to the concerned donees. The learned Trial Judge after hearing the parties passed a decree for possession on 6 th September, 1976 in favour of the appellants, holding that they are the heirs of Bai Lachhmu and that the defendants are estopped from challenging the will as they had claimed their rights under Bai Utti and they were bound by the admission made by Bai Utti relating to the validity of the will and the right, title and interest regarding the half share of Bai Lachhmu in the suit properties. The learned Trial Judge also held that Bai Utti who was possessed of these properties when the Act came into force possessed them as limited owner but not on account of any pre-existing right in these properties and that her right flowed from the Compromise Decree passed in 1947 and consequently she had a restricted estate not capable of being enlarged into absolute ownership on account of the provisions of Section 14 sub-section (2) of the Act, Appeal preferred against the said decree by the aggrieved defendant came to be dismissed by the First Appellate Court on 19th November, 1979. The aggrieved defendant thereafter carried the matter in second appeal before the High Court. A learned single Judge of the High Court took the view that as defendant Budhu was a third party and a stranger and as he was claiming dehors the Will of Bali Ram and as the said Will was not proved in the litigation between the parties and as the admission of Bai Utti regarding the validity of the Will in the Consent Decree was not binding on Budhu the suit of the appellants was liable to be dismissed and accordingly the learned single Judge of the High Court allowed the second appeal and dismissed the suit of the appellants, as noted above. The said judgment and decree of the High Court is brought in challenge by the dissatisfied plaintiff in this appeal.