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Himachal Pradesh High Court
M. H. BEG,D. B. LAL CHET RAM THAKUR
Lachhman - Appellant
Versus
Thunia - Respondent
Decided On : 08/25/1971
HINDU SUCCESSION ACT - SUCCESSION - REVERSIONERS - DECLARATORY DECREE - WIDOW'S GIFT - SECTION 14 - SECTION 15 - SECTION 16 - SECTION 8 - APPLICABILITY - INTERPRETATION - RETROSPECTIVE EFFECT - HINDU LAW - SHASHTIC HINDU LAW - POSSESSION - CONSTRUCTIVE POSSESSION - ACTUAL POSSESSION - FULL OWNER - LIMITED OWNER - SPES SUCCESSIONIS - REVERSIONARY RIGHT - ABSOLUTE OWNER - LIFE ESTATE HOLDER - DEEMED DEATH - SUCCESSION OPENING - NEAREST HEIR - ENLARGED RIGHTS - VALIDITY OF GIFT - DECLARATORY SUIT - LIMITATION - ADOPTION - INVALID ADOPTION - CUSTOMARY LAW - PUNJAB CUSTOMARY LAW - PRECEDENTS - BINDING PRECEDENTS - FULL BENCH DECISION - RATIO DECIDENDI - OBITER DICTA - CONFLICTING AUTHORITIES - INTERPRETATION OF STATUTES - RETROSPECTIVE OPERATION - PROSPECTIVE OPERATION - ABROGATION OF RULES - SAVING CLAUSE - INTENTION OF LEGISLATURE - Preamble - OBJECT OF THE ACT - CODIFICATION OF LAW - INTENT OF THE ACT - CONSTRUCTION OF STATUTES - HARMONIOUS CONSTRUCTION - AVOIDANCE OF FICTION - LEGAL FICTION - HUSBAND AND WIFE AS ONE - EVOLUTION OF LAW - LEGISLATIVE DEVELOPMENT - DIRECT DEVELOPMENT OF LAW - STATUTORY PROVISIONS - SUFFICIENCY OF STATUTORY PROVISIONS - REMOVAL OF OBSTRUCTION - TIME OF SUCCESSION OPENING - ERRONEOUS ASSUMPTION - RETROSPECTIVE OPERATION OF LAW - AVOIDANCE OF RETROSPECTIVE EFFECT - APPLICATION OF LAW - OPERATIVE LAW - SUCCESSION OPENING AFTER ENFORCEMENT OF ACT - APPLICABILITY OF ACT - SECTION 4 OF THE ACT - ABROGATION OF RULES OF LAW - APPLICABILITY OF ACT TO ALL CASES - STATUS OF DECEASED - TIME OF DEATH - IRRELEVANCE OF TIME OF DEATH - INTENT OF SECTION 8 - APPLICABILITY OF SECTION 8 TO ALL CASES - IRRELEVANCE OF DATE OF ACTUAL DEATH OF LAST MALE HINDU OWNER - DESCRIPTION OF STATUS OF DECEASED - NO REFERENCE TO TIME OF DEATH - INTENTION OF LEGISLATURE - AVOIDANCE OF RETROSPECTIVE EFFECT - APPLICATION OF ACT TO SUCCESSION OPENING AFTER ENFORCEMENT OF ACT - APPLICABILITY OF SECTION 8 TO CASE - NEAREST HEIR ENTITLED TO SUCCEED - DECREE IN FAVOUR OF PLAINTIFF - DISMISSAL OF APPEAL WITH COSTS.
Fact of the Case:
The plaintiff, Thunia Ram, filed a suit for possession of the property in dispute on the ground that he was entitled as a reversioner and the nearest heir. The trial Court repelled the plea of the defendant-appellant, Lachhman denying the right of Thunia as the reversioner and nearest heir to Sihnu. It also rejected Lachhman's claim to the house properties put forward on the allegation that the constructions had been made by Lachhman. Lachhman had also set up his own right to Shamilat land. The trial court decreed the plaintiff's suit for possession except with regard to one-third share of the Shamilat land. So far as the constructions were concerned, the trial court had held that, although they were involved to the previous suit, the claim to these had been dismissed in that suit on the ground that they were not the subject-matter of the gift so that no declaration could be given to the plaintiff at that time with respect to these.
Finding of the Court:
The Court held that the succession to the property inherited by Smt. Karju as life-estate holder opened on her death. But, it was succession to property of which her deceased husband was the last male owner. Succession to that property of her deceased husband of which she had not become an absolute owner will be regulated by Section 8 of the Act irrespective of the date of death of the last male owner because the succession, which the law is to govern, opens after the Act. As the Act was operative when Smt. Karju, the widow, died. Section 4 of the Act makes it incumbent on us to apply to provisions of Section 8 to the case. In our opinion, the contention that, by doing so, we would be applying Section 8 retrospectively is erroneous. Upon an application of Section 8 to a situation which arose after the passing of the Act, we find that Thunia, the plaintiff, is the nearest heir entitled to succeed. The courts below had, therefore, rightly decreed the plaintiff's suit.
Issues: 1. Whether the rights of the reversioners who had obtained a decree declaring that their rights were intact despite an alienation made by a widow, prior to the passing of the Hindu Succession Act,1956, (hereinafter referred to as the Act), were affected by the provisions of the Act? 2. Whether the gift made by the widow could bind the plaintiff after the death of Smt. Karju? 3. Whether the house property was in the possession of Smt. Karju when the Act came into force? 4. Whether Smt. Karju became its full owner under the provisions of Section 14 of the Act? 5. Whether the succession to this property will be governed by the provisions of Section 15 of the Act? 6. Whether the donee of Smt. Karju can benefit from Section 14 of the Act which enlarges the estate of the widow in possession but not of her donee? 7. Whether the widow's alienation itself was a nullity as it was without legal necessity? 8. Whether the word "possessed" under Section 14(1) is generally used in its widest connotation and stands for possession which may be either actual or constructive or in any form recognized by law? 9. Whether the property which was the subject-matter of the declaration had been reconveyed by the donee to the widow before the enforcement of the Act? 10. Whether the succession to the property on the death of the widow is to be governed by the old Hindu Law or succession takes place in accordance with the provisions of the Act prevailing at the time of the death of the widow? 11. Whether the successor to the estate of the last male holder has to be found in accordance with the law prevailing at the time of the death of the widow, that is to say, as laid down in the Act?
Ratio Decidendi: 1. The rights of the reversioners are not governed by the provisions of the Act, but by the law prevailing before the commencement of the Act. 2. A declaratory decree in favour of the reversioners creates no right or title and does not pass any title to the presumptive reversioner and does not create any right in him in the property alienated. 3. The donee of a Hindu widow, who is in actual possession in his own right, although only for the widow's lifetime, cannot benefit from Section 14 of the Act which enlarges the estate of the widow in possession but not of her donee. 4. The succession to the property on the death of the widow is to be governed by the provisions of the Act prevailing at the time of the death of the widow and not by the old Hindu Law. 5. The successor to the estate of the last male holder has to be found in accordance with the law prevailing at the time of the death of the widow, that is to say, as laid down in the Act.
Final Decision: Appeal dismissed with costs.
CHET RAM THAKUR, J.:- This second appeal has been referred to a Full Bench as one of the questions which arose, when it came up for hearing before one of us, was whether the rights of the reversioners who had obtained a decree declaring that their rights were intact despite an alienation made by a widow, prior to the passing of the Hindu Succession Act,1956, (hereinafter referred to as the Act), were affected by the provisions of the Act. A Full Bench of the Punjab High Court in Amar Singh v. Sewa Ram, 62 Pun LR 537 : (AIR 1960 Punj 530 FB) had, it was submitted, held that the rights of reversioners are not governed by the provisions of the Act, but by the law prevailing before the commencement of the Act. This question arose, on the facts found by the lower courts, as detailed below.
2. On the death of Shihnu, the last male holder of the property in dispute, his widow, Smt. Karju, succeeded as a limited owner of the estate left. On 22-5-1946, she gifted the land in dispute, which included her share in Shamilat land, to Lachhman defendant appellant. Thunia Ram, respondent and two others, claiming to be the collaterals of the last male owner, filed suit No.407 of 1946 for possession of the property consisting of land, a house, a kitchen, a cow-shed, and some share in Shamilat deh. The plaintiff's in that suit denied that Smt Karju was the widow of Sihnu, so that she had no right to make any gift in favour of Lachhman. They claimed the property left by Sihnu to be theirs as his collaterals, irrespective of whether she had made a gift or not. In the alternative, the plaintiff's set up the case that, if Smt. Karju was the widow of Sihnu, the gift made by her could not bind the plaintiff's after the death of Smt. Karju and prayed for a declaration to that effect. The plaintiffs failed on the first plea so that their suit for possession could not be decreed, but the alternative case was accepted so that a declaration was given that the plaintiffs were reversioners of Sihnu and that the gift made by Smt. Karju was not binding on them after her death.
3. After the death of Smt. Karju, in February, 1966. Thunia, plaintiff-respondent, filed the suit, out of which the second appeal before us has arisen, for possession of the property in dispute on the ground that he was entitled as a reversioner and the nearest heir. The trial Court repelled the plea of the defendant-appellant, Lachhman denying the right of Thunia as the reversioner and nearest heir to Sihnu. It also rejected Lachhman's claim to the house properties put forward on the allegation that the constructions had been made by Lachhman. Lachhman had also set up his own right to Shamilat land. The trial court decreed the plaintiff's suit for possession except with regard to one-third share of the Shamilat land. So far as the constructions were concerned, the trial court had held that, although they were involved to the previous suit, the claim to these had been dismissed in that suit on the ground that they were not the subject matter of the gift so that no declaration could be given to the plaintiff at that time with respect to these.
4. The lower appellate court had observed that the defendant-appellant did not either question the right of the plaintiff to buildings or the finding of the trial court that the buildings in dispute were the subject-matter of the former suit. The defendant-appellant had conceded that the buildings were also claimed in the previous suit, but they pointed out that the previous suit had been dismissed in respect of these. The ground of this dismissal, however, was that the claim of the reversioners was premature and that no declaration could be granted in respect of these as they were not the subject-matter of the gift. Affirming the findings of the trial court the lower appellate court had dismissed the defendant's appeal.
5. In this Court, the first objection taken by the defendant-appellant is that the plaintiff cannot succeed on the ground tha
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