MOHINDER SINGH Vs. LACHHMAN SINGH

JUDGEMENT

(1.) THERE is not dispute of facts Plaintiff Mohinder Singh and others filed a suit against Lachhman Singh and Mehar Singh for a declaration that the sale of the land in dispute by Mst. Attri widow of Roda would not affect their reversionary rights after the death of the alienor. Mst Attri sold the Alan in dispute on 22nd of may, 1953, by a registered deed for a sum of Rs. 2,000. The money was raised for the going abroad of the son-in-law. The sale was consented to by her daughter karmi and her husband. On the 21 of May, 1955 Mst. Attri died. Her next heir admittedly is her daughter Mst. Karmi. The present suit is by Mst. Karmi's sons. The trial Court decreed the suit. The lower appellate Court on appeal reversed the decision of the trial Court. It was held that the present suit was not competent in view of the fact that Mst. Karmi had consented to the impugned alienation. The declaration if granted would ensure for her benefit and therefore it will be of no use as she cannot take the impugned alienation. This matter is really concluded by the Full Bench decision of the Lahore High Court in Ali Mohammad v. Mughlani, a. I. R. 1946 Lah 180. This is a judgment by a Bench of five Judges. The leading judgment was delivered by Mahajan J. , (as he then was) and in the concluding portion of the judgment it is observed:--

(2.) MR. Lakhanpal, who appears for the plaintiffs, contends, on the other hand, that in view of 3. 14 of the Hindu Succession Act, Mst. Karmi is not to be considered at all because she is not in possession of the estate. This argument losses sight of the fact that Mst. Karmi is not out of possession of the estate by her own act but by the act of her mother. Her right to the estate comes into being on the death of the mother when the succession opens out. The succession opened out in the year 1955 and at that time Mst. Karmi was precluded by her own consent from succeeding to her mother. She could only succeed if she could undo the sale made by her mother. But for her consent she could impeach the alienation. Now by reason of her consent she cannot do so. The plaintiffs who are her sons derive title through her. They do not derive title through Mst. Attri. Therefore, they will be equally bound by the consent given by Mst. Karmi. What their mother cannot do, they themselves also cannot do.

(3.) THE lower appellate Court also went on another matter, namely, that the money raised by the sale by Mst. Attri was for legal necessity. Mr. Lakhanpal's contention is that this finding cannot be supported in law because the raising of money for going abroad of a son-in-law is not a necessary purpose. It is not necessary to examine this matter any further in view of my decision on the main matter namely that the plaintiffs have no locus stand in the circumstances of the case to impeach the alienation by Mst. Attri, their maternal grandmother.