RAMSEWAK OJHA Vs. SHEOPUJAN PANDEY

JUDGEMENT

(1.) This appeal involves a controversial question with regard to the effect of Section 14 of the Hindu Succession Act, 1956, on the right of the reversioner to challenge an alienation made by the Hindu female in possession of a property as a limited owner. The plaintiff, Sheopujan Pandey, brought a suit for a declaration that two deeds of gift, dated 1-12-1948 and 31-5-1944, executed by defendant No. 3, Barta Kuer, in favour of Nema Fandey and Ramsewak Ojha, respectively, were "farzi, collusive, illegal, null and void and ineffective." They were accordingly not binding upon him, and the aforesaid deeds were illegal, false and fit to be cancelled against the plaintiff. A genealogy was appended to the plaint in support of the plaintiff's reversionary right to challenge the alienations made by Barta Kuer (defendant No. 3). The defendant resisted the suit on a number of grounds. It is, however, unnecessary to refer to those facts in detail because the learned counsel for the parties have not argued any question of fact. The Court below passed a decree in favour of the plaintiff from which defendants Ramsewak Ojha, Nema Pandey and Mt. Barta Kuer have preferred an appeal to this Court.

(2.) Learned counsel for the appellants has contended that in view of the various decisions of this Court taking the view that in terms of Section 14 of the Hindu Succession Act, 1956, such a suit by a reversioner is not maintainable, this appeal must be allowed. Learned counsel for the respondent, however, has drawn my attention to the decision of this Court in Harak Singh v. Kailash Singh, First Appeal No. 114 of 1950: (AIR 1958 Pat 581) (FB) wherein a Division Bench of this Court has thought it fit to refer the matter to a larger Bench with certain observations with regard to the soundness of the view taken by the various Benches of this Court so far. Learned Counsel for the appellants, however, has contended that the decision in First Appeal No. 14 of 1950: (AIR 1958 Pat 581) (FB) is not material in so far as the present appeal is concerned and, in the next place, he has urged that the opinion expressed by this Court in the other Division Bench decisions should be held to be correct. As to the view adopted by the Division Bench in First Appeal No. 114 of 1950: (AIR 1958 Pat 581) (FB) it may be stated that Sinha J. reconsidered his own opinion expressed in a previous judgment and concluded that since the case was not argued before him in the light of the correct meaning of the word "possessed", he had followed a previous decision of this Court in the case of Ram Ayodhya Missir v. Raghunath Missir, 1956 BLJR 734: ( (S) AIR 1957 Pat 480). Having considered the matter afresh, however, he felt that the word "possessed" referred to the possession of the properly by the widow at the time the Act came into force and could not possibly refer to the case of a widow, who, though she might be alive at the date of the enforcement of the Act had already absolutely transferred the property in question by way of sale or gift before the law was enacted and before it came into force. In Ramsaroop Singh v. Hiralal Singh, First Appeal No. 189 of 1950: (AIR 1958 Pat 319), which is a Bench decision of this Court, to which I was a party, I have gone into the matter with regard to the meaning of the word "possessed" occurring in Section 14. I have expressed the opinion that the word "possessed" cannot be confined in its operation only to the possession of the Hindu female at the date of the enforcement of the act cither on a grammatical view or even in view of the texture of the section itself. With reference to the observations in the judgment in First Appeal No. 114 of 1950: (AIR 1958 Pat 581) (FB), I think it proper to clarify the position a little further. Ordinarily, this would have been unnecessary. Since in the present case the matter is one of considerable importance, it is worthwhile to adopt this course. With regard to the use of the words ''actual possession" in that judgment, I may state that when I used the words "actual possession" I also quoted the passage from the judgment of Viswanatha Sastri, J., which is quoted in the above judgment. In fact, I emphasised at more than one place the broad sense in which the word "possessed" was construed by Viswanatha Sastri, J. At page 219 of the report (1958 BUR) : (at p. 323 of AIR), I stated the position as follows :

(3.) A Full Bench of the Calcutta High Court in the case of Umatul Mehdi v. Kulsum., ILR 35 Cal 120 at p. 128, observed thus :