MANGLA BALMUKUND Vs. NATHIYA GHANTOLI

JUDGEMENT

(1.) THIS second appeal is directed against the decision of the Additional District Judge Rohtak at Gurgaon reversing, on appeal, the decision of the trial Court dismissing the plaintiff's suit.

(2.) THE facts lie in a very narrow compass and there is no dispute regarding them. Ghantoli was the last male-holder of the land in dispute. On his death his widow Mst. Kalla succeeded to him on the usual widow's tenure. On the 18th November, 1952, she gifted the land to which she had succeeded to one Raghbir. Mangla brother of the last male-holder brought a suit for a declaration challenging the gift as being inoperative against his reversionary rights after the death of the widow. The donee was made a party to this suit. At the trial there was a compromise. According to the compromise one-third of the land which was the subject-matter of the gift was to remain with the donee and two-third was to immediately revert to the plaintiff Mangla. At the day when the gift was made by Mst. Kalla the Hindu Succession Act had not come into force. thus on the coming into force of the Hindu Succession Act she did not become the absolute owner of her husband's property because she was out of possession having gifted it to Raghbir. It is common ground that Ghantoli had left a daughter Mst. Nathia. The present suit was filed by Mst. Nathia on 9th March, 1959 claiming a declaration that the gift by Mst. Kalla will not affect her reversionary rights on the death of Mst. Kalla. The trial Court dismissed the suit. On appeal the lower appellate Court reversed the decision of the trial Court and decreed the suit. The result being that a declaration has been granted to Mst. Nathia that the gift made by Mst. Kalla on 18th November, 1952 will be of no consequence and will not bind the reversioner of Ghantoli. Mangla the brother of Ghantoli has come up in second appeal to this Court.

(3.) THE short question that has to be settled is whether the suit by Mst. Nathia is competent. On the day when the gift was made Mst. Kalla, had a widow's estate and thus she could not make a valid gift of the property to which she succeeded on the death of her husband. On the coming into force of the Hindu Succession Act her position vis-a-vis the property did not improve because she was out of possession of the same when the Act was enforced. The rule is firmly settled that the succession to the last male-holder, dying leaving a widow, opens on the day when the widow dies. Obviously the widow when she dies, would die after coming into force of the Hindu Succession Act and the heirs of her husband's estate would have to be determined on that date. In other words, the rule of succession will have to be determined in accordance with Hindu Succession Act. There can be no manner of doubt that the last male-holder's daughter is a preferential heir to both ancestral as well as non-ancestral property of her father. Therefore she is entitled to seek a declaration that the gift made by Ghantoli's widow Mst. Kalla would not affect her reversionary rights. The status of the widow on the date of gift being that of merely a limited owner and no change in it occurred by the enforcement of the Hindu Succession Act. It is, therefore, clear that the lower appellate Court was right in holding that Mst. Nathia was entitled to claim the declaration prayed for.