HARI KISHEN Vs. HIRA

JUDGEMENT

(1.) SALIG Ram was the last male holder of the property in dispute in this litigation. On his death his widow Mst. Puni entered into possession of this property. By sale-deed, dated the 7th June, 1946, she sold it to Rain Chand, etc. , for Rs. 5,000 and gave possession to the vendees. Sale deed mentions the necessity for this transaction as payment to previous mortgagees and requirement of money for maintenance of the vendor and for her going on tirath yatra. According to the document Rs. 3,200 were paid in cash to the vendor and Rs. 1,800 were left with the vendees for payment to trie previous mortgagees. The present suit was filed on the 21st August, 1946, by Hira, etc. , for the usual declaration that this sale would not affect their reversionary rights on the ground that it was effected without consideration and legal necessity. The vendees contested, the suit on various grounds. The suit, however, was decreed by the trial Court on the findings that parties were governed by custom in matters of inheritance and alienation, that the vendees had not paid Rs. 1,800 to the previous mortgagees and that the payment of Rs. 3,200 to the vendor was not for legal necessity. The trial Court also Held that the paintiffs were the collaterals of the last male holder and were competent to challenge the sale. The vendees appealed to the District Judge, ambala, but without success, and they have now filed this second appeal in this court.

(2.) THE learned counsel for the appellants half-heartedly urges that the findings given by the lower Courts are erroneous. These are, however, findings of fact and nothing has been urged before us to vitiate these findings. There can be no doubt that the payment of Rs. 3,200 to the vendor for the purposes of going on tirath yatra cannot be considered to be for legal necessity. The learned counsel, however, bases his arguments on the enactment of the Hindu Succession. Act (No. 80 of 1956 ).

(3.) THE learned counsel first urges that since the enactment of the Hindu succession Aft the order of succession has been changed and the plaintiffs have now very remote chance of succeeding to the property and therefore the suit should be dismissed as speculative. It is. however, conceded that at the time the suit was filed the plaintiffs were the nearest collaterals of the last male holder. It is true that Courts should in the exercise of their discretion refuse to grant a declaratory decree to the effect that an alienation by a widow shall not affect the reversionary rights after her death if the chances of the collaterals avoiding the transaction are very remote and the Court considers these chances to be merely speculative. This principle, however, is not applicable to the present case when it is conceded that the suit when filed could not be considered speculative. The persons who are now likely to succeed under the new Act could not have filed the suit to avoid the alleged alienation at the time that the present suit was filed as they had no right to succeed to the property, at that time. The declaration given in this suit will enure to the benefit of any person succeeding to the property after the death of the vendor and even if the paintiffs do not succeed to the property It cannot be said that at this stage the suit should be dismissed as speculative. I therefore reject this contention of the learned counsel.