DAYAL JAWALA Vs. BUJA BIRU

JUDGEMENT

(1.) THIS regular second appeal arises out of a suit for a declaration. Shrimati Nanki, was a limited owner of the property inherited by her from Partapa, her husband. She made a gift of the property in dispute including the agricultural land and a residential house in favour of her picnhlag son Dayal. Buja and Labhu, fourth degree collaterals of the last maleholder, instituted the present suit for a declaration that the gift of the ancestral property made by Shrimati Nanki was not binding upon their reversionary rights. The suit was resisted on several grounds by Shrimati Nanki and her son Dayal. The trial Court decreed the suit of the plaintiffs. The defendants appealed to the district Judge. The learned Additional District Judge, Patiala, by his order dated 15-12-1952 dismissed the appeal. Both the Courts found that the plaintiffs were fourth degree collaterals of the last maleholder and Shrimati Nanki being a limited owner was not competent to make the gift. The present appeal by the defendant is directed against the findings of the Courts below.

(2.) IT was argued by the learned counsel for the appellant that the position was entirely changed on account of the enforcement of the Hindu Succession Act. The gift, according to him, now cannot be challenged. Learned counsel for the appellant also argued that the change in the legislation could be taken into consideration by this Court in this second appeal. It is by now well settled and indeed universally recognised that the Hindu Succession Act confers absolute rights of ownership on widow of the last maleholder in respect of the property left by him, which was in her possession on the date of commencement of the Act, even though the husband had died long before the Act came into force. From a reading of Section 14 of this Act it is clear that it is made expressly retrospective. The widow being absolute owner, the question of reversioners in such cases does not arise. The heirs of the last full owner who would be entitled to succeed to his estate on the death of a limited heir were called reversfoners. Their interest naturally was expectant on death of a limited heir. It was not a vested interest. That being so the reversioners had a mere chance of succession, Their right to demand the preservation of the estate during its enjoyment by the limited heir was recognised. Thus they were entitled to bring a suit seeking declaration that the alienation by the limited heir was not binding on their reversionary rights. The hindu Succession Act has, however, brought a revolutionary change in the status of these reversioners. In my view the combined effect of Sections 14 and 15 of this Act is that the so-called, reversionary heirs are no more so, as the estate of a limited heir is no more a limited estate. That being so they have no vested right in the estate and no chance to succeed. In such a situation, in my opinion, they have no right to bring a suit for a declaration questioning the alienation by a full owner. Their right of reversion or any kind of spes successionis is completely ousted by this Act. This view of the matter, in my opinion, does not admit of any doubt. The following authorities abundantly support this view: Hari Kishan v. Hira, (S) AIR 1957 Punj 89, venkayamma v. Veerayya, (S) AIR 1957 Andh Pra 280, Elliah v. Gangamma, AIR 1957 Andh Pra 776, Gostha Behari v. Hari Das, AIR 1957, Cal 557, Thailambal ammal v. Kesawan Nair, AIR 1957 Kerala 86, Dhirajkunwar v. Lakhansingh, (S)AIR 1957/madh Pra 35, Ram Ayodhya Missir v. Raghunath Missir, (S) AIR 1957 Pat 480; Mt. Janki Kuer v. Chhathu Prasad, (S) AIR 1957 Pat 674 and Sm. Laxmi Debi v. Surrendra Kumar Panda. (S) AIR 1957 Orissa 1. In view of this abundant authority this position was cot challenged by the learned counsel for the respondents. He, however, submitted that the present case was distinguishable. He pointed out that Shrimati Nanki made this gift before the commencement of the Hindu Succession Act. She was thus not in possession of the property in dispute at the time of the enforcement of the Act. Therefore, she does not derive any help from the Hindu Succession Act. At the time of alienation in favour of her son she was not full owner of the property and was, therefore, incompetent to alienate it. In these circumstances it was contended that the reversioners were entitled to the declaration prayed for. From the appellant's side it was contended that the alienation before the commencement of the Act did not make any difference as the appellate Court could take into consideration the legislative changes effected during the pendency of the appeal. It was argued that the hearing or an appeal was in the nature of re-hearing and therefore the appellate Court was entitled to take into account the change in law effected after the decree appealed against. The authorities cited above are undoubtedly divided in a case of this nature where the alienation took place before the commencement of this Act. The Patna authority cited above supports the view advanced by the learned counsel for the appellant. It would be proper to cite that authority straightway. In (S) AIR 1957 pat 480 the facts were as follows:

(3.) IN the result the appeal succeeds and the suit of the plaintiffs stands dismissed. There is no order as to costs in the circumstances of this case.