JANGIR SINGH Vs. DAYA KAUR

JUDGEMENT

(1.) THE dispute in this second appeal relates to the estate of one Anokha. He gifted his property on the 18th of October, 1937, to his borther's daughter's sons, balwant Singh and others. This gift was challenged by his fourth-degree collaterals on the usual ground that the property was ancestral and the gift would not affect their reversionary rights after the death of Anokha. These collaterals are the present appellants. Their suit was decreed and the necessary declaration was granted. This decision was affirmed right up to the High Court. In the year 1944 anokha died. Daya Kaur, his brother's widow, claimed the property of Anokha by the rule of collateral succession. This claim was contested by the present appellants in the revenue Court. The Collector decided in favour of the collaterals. The Collector decided in favour of the collaterals. On appeal by Daya Kaur, the executive Council decided in her favour. A review application to the Council by the collaterals also failed with the result that on 17th January, 1945, the mutation of Anokha's estate which he had gifted to his brother's daughter's son was entered in favour of Daya Kaur, and from that date onwards, she had remained in possession till she made a gift of this property on the 21st of November, 1957, too the mother of erstwhile donees. This led to the present suit by the present appellants to challenge the gift by Daya Kaur. The trial court dismissed the suit on the short ground that after the coming into force of the Hindu Succession Act Daya Kaur had become the absolute owner of the property and, therefore, could make a gift of it. The appeal of the collaterals against this decision also failed, and they have now come up in second appeal to this Court.

(2.) THE first contention raised by the learned counsel for the appellants is that the declaratory decree granted to these collaterals merely enured for the benefit of the collaterals, in other words it enured for the benefit of those persons who could impeach the alienation. Therefore, the decree did not enure for the benefit of Daya kaur, and on the death of Anokha, Daya Kaur could not take benefit of the decree and succeed to Anokha's estate. This argument is only partially correct. It is no doubt true that Daya Kaur could not take benefit of this declaratory decree (see inter alia Mst. Basso v. Harnam Singh, AIR 1937 Lah 636 and Rahman v. Suraj mal, AIR 1945 Lah 76 (FB ). But she did not cease to be the natural heir of Anokha. She asserted her claim to Anokha's property as such heir. The only persons who could defeat her claim were the doness, but they did not contest her claim, with the result that she succeeded to the property of Anokha as his heir. Therefore, having succeeded as an heir and having remained in possession as such till the coming into force of the Hindu Succession Act, she must be deemed to be the absolute owner of that property by virtue of that Act. In this connection reference may be made to section 14 of the Hindu Succession Act. Mr. Babu Ram, learned counsel, further argued that Daya Kaur was not an heir at all. If she was not an heir at all then the plaintiffs were entitled to succeed to the estate of Anokha on his death, and they did not sue under the declaratory decree to obtain possession of the estate but instead allowed Daya Kaur to remain in possession of that estate for more than twelve years. They have lost their right to the estate of Anokha by reason of Daya Kaur's adverse possession.

(3.) THERE is another way of looking at the matter. In the declaratory decree that was granted to the appellants, it was clearly mentioned, that the property did not belong to the common ancestor. The gift was set aside on the ground that the property came to Anokha from his father who had acquired it and, according to the hidayats in Nabha, the power of gift was only available to a proprietor who had himself acquired the property. That being so, the gift by Anokha of his property, which he had inherited from his father was set aside, but that does not make the property ancestral qua the appellants. As a matter of fact, there is a clear finding that the property was never held by the common ancestor of Anokha and the appellants. In view of this finding, the provisions of the Punjab Acts 1 and 2 of 1920 have no applicability to the facts of this case. Therefore, the argument based on the provisions of that Statute which, I am told, was made applicable to Nabha, cannot hold water. In whatever manner the matter is looked at, I am clearly of the view that the Courts below were right in dismissing the plaintiff's suit. I, accordingly dismiss this appeal but in the circumstances, would make no order as to costs.