HARBHAJ Vs. MOHAR SINGH

JUDGEMENT

(1.) SO far as the facts of this second appeal are concerned, there is no dispute. It will be proper to set out genealogical table of the parties. On the death of her son Pokhar, Smt. Phusa succeeded to him in the estate. On the 18th October, 1954, she sold 6 Bighas and 16 Biswas of land to Harbhuj, her husband's brother's son. This sale was challenged by the grandsons of her husband's brother Partap on the usual ground that the sale was without consideration and necessity and would not affect their reversionary rights after the death of Mst. Phusa. The trial Court decreed the suit and on appeal by Harbhuj, the lower appellate Court affirmed the decision of the trial Court. Harbhuj, who is dissatisfied with this decision, has come up in second appeal to this Court.

(2.) MR. M. D. Aggarwal, learned counsel for the appellant, has contended that Smt. Phusa died on the 18th of September, 1956, that is at the time when the lower appellate Court decided the appeal she was dead. According to the learned counsel, the lower appellate Court should have dismissed the declaratory suit because Harbhuj vendee was the next heir. This very argument, is now pressed before me in second appeal. Before dealing with the merits of this contention, I may mention that Ramji Lal, the real brother of Harbhuj, is alive and is a respondent in the appeal.

(3.) THE rule of law is now well settled. A female in possession of immovable property either inherited from the husband or from the son was a limited owner thereof before the coming into force of the Hindu Succession Act. After the coming into force of the said Act, if such a female is in possession of the property she becomes its absolute owner, but if she had parted with the property before the coming into force of the Hindu Succession Act, she does not become its absolute owner and the succession to that property has not to be traced from her, but it has to be traced from the last male-holder. The question, however, remains whether in such circumstances when she had already parted with the property before the coming into force of the said Act and died after the coming into force of the said Act, is the succession to be governed by the Hindu Succession Act or by the law as it prevailed before this provision was enacted? It is not disputed that all rules of Hindu law, which are contrary to the rules laid down in the Hindu Succession Act, have been abrogated by the Act. So far as the succession is concerned, the Act is a complete code and all rules of succession known to the Hindu law have been abrogated. It is not disputed, and indeed it could not be, that a widow, who had parted with the property before the coming into force of the Hindu Succession Act, the succession to that property would not be governed by Section 15 of the Hindu Succession Act, the reason being that she did not acquire an interest in that property under Section 14 of the said Act. The question remains whether the succession to that property would be governed by Section 8 of the Act which is the only other provision, dealing with the succession? The settled rule of Hindu law prior to the Hindu Succession Act was that whenever a widow succeeded to property she succeeded as representing the husband and the husband is deemed to die when the widow dies. In other words, the succession in all such cases opens on the death of the widow. In this connection, reference may be made to Duni Chand v. Mt. Anar Kali, AIR 1946 PC 173, and for other propositions, which I have already set out above, reference may usefully be made to Amar Singh v. Sewa Ram, AIR 1960 Punj 530 (FB); Smt. Banso v. Charan Singh, AIR 1961 Punj 45; S. Kuldip Singh v. Karnail Singh bakhshish Singh, AIR 1961 Punj 573; Gurmit Singh Pratap Singh v. Tara Singh Sahib Singh, AIR 1960 Punj 6; and Mst. Taro v. Darshan Singh, AIR 1960 Punj 145.