GIASI RAM Vs. RAMJILAL

JUDGEMENT

(1.) In 1916 Jwala-a Hindu Jat -governed by the customary law of the Punjab sold to one Shadi, without legal necessity, a fourth share in 891 bighas 3 biswas, which was ancestral in his hands, Giani Ram son of Jwala instituted Suit No. 75 of 1920 in the Court of the Senior Subordinate Judge, Hissar, for a declaration that the sale of ancestral lands of Jwala in favour of Shadi was null and void and was ineffective against his reversionary rights. The suit was decreed by the senior Subordinate Judge Hissar. The effect of the declaratory decree was that the alienations could not enure beyond the lifetime of Jwala.

(2.) Jwala died on October 16, 1959, leaving him surviving three sons-Giani Ram, Manphool an Chandgi-his wife Rajni, and two daughters Phulwati and Chhanno. Under the Hindu Succession Act, 1956 which came into force on June 17, 1956, the estate of Jwala devolved upon his widow, his sons and his daughters in equal shares. In an action filed by the three sons of Jwala, his daughters and widow against the legal representatives of Shadi or a decree for possession of the lands alienated by Jwala the Senior Subordinate Judge, Hissar decreed the suit for a halfs are in the property claimed by the plaintiffs. The learned Judge was of the view that only the sons of Jwala could claim the benefit of the decree in Suit No. 75 of 1920 and since their share in the estate of Jwala was in the aggregate only a half, the remaining half having devolved upon the widow and the two daughters, a decree for a half share in the lands alienated could issue against the alienee.

(3.) In appeal by the plaintiff to the District Court, Hissar, the decree was modified. The learned District Judge decreed the claim in its entirety but only in favour of the three sons. In his view the sons were entitled to the ancestral property alienated by Jwala and the widow and the two daughters had no interest therein-the provisions of the Hindu Succession Act notwithstanding. Against that decree a second appeal was preferred by the heirs of Shadi. The High Court of Punjab set aside the decree passed by the District Court and restored the decree of the Trial Court. In the view of the High Court under the Hindu Succession Act, 1956, the two daughters and widow of Jwala could inherit a share in the estate of Jwala, but since by Section 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those persons could take the benefit of the declaratory decree obtained by any one of the reversioners, who could contest the alienation by the vendor, and it was a "settled rule of custom that a female heir cannot contest the sale" by a male owner, a half share in the estate of Jwala which devolved upon the sons could be claimed by them, and the widow and the daughters could not obtain benefit of the decree. The High Court also held that the suit filed by the widow and the two daughters had been dismissed by the Trial Court and the District Court and as they had not filed an appeal in the High Court or even cross objections, the order of dismissal qua them had become final, and no decree could be passed in their favour for possession of any part of the estate. With special leave the appellants have appealed to this Court.