NANHEYLAL AND ANOTHER Vs. BANWARI AND ANOTHER

JUDGEMENT

(1.) The following question has been referred by a learned single Judge of this Court:

(2.) Since then, the Supreme Court has delivered judgment in another case, Brahmdeo Singh Vs. Deomani Missir, Civil Appeal No. 130 of 1960 decided on Oct. 15 1962 . That was an appeal which arose out of a suit in Bihar by the reversioners for a declaration that two sale deeds executed by a Hindu widow were without legal necessity and, therefore, not binding upon them. The trial court decreed the suit and granted the declaration upon the finding that the transfers were not for legal necessity. In appeal, however, the Patna High Court followed the view taken by it earlier in Ramsaroop Singh Vs. Hiralall Singh, AIR 1958 Patna 319 and held that by reason of the provisions of Sec. 14 of the Hindu Succession Act, 1956 a suit by the reversioners was no longer maintainable. From the decision of the Patna High Court the reversioners preferred an appeal to the Supreme Court. The Supreme Court expressed the opinion that the view taken by the Patna High Court in Ramsaroop Singh's case, AIR 1958 Patna 319 was incorrect and held that the provisions of S. 14 could not be extended to apply to property already alienated by a Hindu widow even though without legal necessity. The Supreme Court accordingly allowed the appeal and reversed the decree of the Patna High Court. It may be pointed out that a Full Bench of the Patna High Court subsequently in Harak Singh Vs. Kailash Singh, AIR 1958 Patna 581 doubted the correctness of the decision in Ramsaroop Singh's case, AIR 1958 Patna 319 . To our mind, the decision of the Supreme Court must be interpreted to mean that it was open to a reversioner to maintain a suit for a declaration that an alienation by a Hindu widow without legal necessity was not binding upon him if such alienation was effected before the Hindu Succession Act, 1956, came into force. That being so, we hold that it is open to the next reversioners of the limited owner to challenge the validity of an alienation made by her without legal necessity before the operation of the Hindu Succession Act.

(3.) There can be no question of a suit by the widow's prospective heirs because, in our judgment, the provisions of Sec. 15 of the Hindu Succession Act would not apply to such a case. Sec. 15 contemplates that the property in question must be "the property of a female Hindu dying intestate," that is, property which belongs absolutely to the female Hindu at the time of her death. Following the dictum of the Supreme Court in Brahmdeo Singh's case, Civil Appeal No. 130 of 1960 decided on Oct. 15 1962 that, "an alienation made by a widow or other limited heir of property inherited by her, without legal necessity and without the consent of the next reversioner's, though not binding on the reversioners, is nevertheless binding on her so as to pass her own interest (i.e. life interest) to the alienee," we hold that the property in question in this case cannot be said to have belonged to the widow at the time of her death, and therefore cannot pass from her to her heirs.