Judgement

SABYASACHI MUKHARJI, J. :- This appeal by special leave is from the judgment and order of the High Court of Himachal Pradesh dated 27th April, 1978.

2. In order to appreciate the controversy it is relevant to refer the few facts. Prior to 1943 Mst. Sheru alias Bhushehari was having life interest in the properties mentioned in Paragraph 1 of the Plaint in Civil Case No. 159 dated 19-7-1963. She executed a deed of Gift in favour of Shri Dhari, predecessor-in-interest of the appellant in respect of 43-14 bighas of land and a building mentioned in Cl. l(f) of the plaint. On 26-11-1948 Shri Hari Ram filed a Civil Suit No. 63 of 1948 in the Court of Senior, Subordinate Judge, Mandi for possession of the property in terms of the alleged compromise pursuant to which the gift was made to Shri Dhari or in the alternative to get a declaration that the deed of gift should be cancelled on the ground of non-fulfilment of the condition of the compromise deed. Shri Hari Ram, since deceased, the father of the respondents herein and Shri Dhari, since deceased, father of the appellants herein were cousin brothers. Late Rattan and late Keshav had another brothers, Shri Thalia, since deceased. Mst. Sheru alias Bhushehari, since deceased, was the widow of Shri Thalia who had no issue. On 31-5-1950 the Senior Subordinate Judge, Mandi, decreed the suit in favour of the respondents herein, and ordered that the gift is not binding on the respondents-plaintiffs and made a declaration that the gift of the land in suit in favour of Shri Dhari made by Mst. Sheru alias Bushehari shall be ineffective against the reversionary rights of the plaintiffs (respondents herein) after the lifetime of Mst. Sheru alias Bhushehari. On 9-6-1950 Shri Hari Ram and Mst. Sheru alias Bhushehari, both since deceased, filed Civil Appeal No. 26 of 1950 against the judgment and decree of the Senior Subordinate Judge, Mandi in Civil Suit No. 63 of 1948.

3. On 27-7-1950 the appeal was compromised in terms of a Compromise Deed, a compromised decree was passed allowing the appeal of the appellants (Shri Dhari and Mst. Sheru alias Bhushehari, both since deceased) and modified the judgment of the trial court to the extent that the gift deed made in respect of the land measuring 21-15-17 bighas comprising Khata Khatani No. 3/16-27 and Rauda Kheratar Khata Khatani 13/46-17 measuring 21-15-17 bighas situated in village Barsu Ballah was rejected and declared ineffective. It was declared that the aforesaid land would be divided in equal shares after the death of Mst. Sheru alias Bhushehari and Shri Dhari would himself give due share to Shri Hari Ram in accordance with the aforementioned order. The one storeyed slate roof house was to remain with Shri Dhari.

4. In 1956, the Hindu Succession Act. 1956 came into force w.e.f. 17-6-1956. With the coming into force of the said Act Mst. Sheru alias Bhushehari became absolute owner in respect of all her properties including those which were the subject matter of the said Civil Suit No. 63 of 1948.

5. On 9-3-1959 Mst. Sheru alias Bhushehari executed a will in respect of all her properties in favour of Shri Gopal Singh, Shri Jagdish, Shri Bhup Shing and Shri Kirat Ram all sons of Shri Dhari. Shri Hari Ram died during the lifetime of Mst. Sheru alias Bhushehari. Mst. Sheru died on 20-3-1960. Shri Dhari died on 26-6-63. The plaintiffs filed the present suit on 8-7-63 (respondents herein). On 21-7-67 the suit was dismissed by the Additional Subordinate Judge, Mandi. On 3-5-69 the District Judge, Mandi, dismissed the first appeal against the judgment and decree in the suit. On 27-4-78 the High Court allowed the appeal and altered the decree passed by the learned District Judge holding that the plaintiffs (respondents herein) were found entitleld to claim the possession of half of the share in 43.14 bighas of land situated at village Barsu Ballah and gifted away by Mst. Sheru alias Bhushehari to Shri Dhari in the year 1943.

6. It is pertinent to note