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PUNJAB & HARYANA HIGH COURT
D.K.Mahajan and Pritam Singh Pattar JJ.
Harchand Singh
Versus
Jaswant Singh
Letter Patent Appeal No. 343 of 1973,
Decided On : APRIL 25, 1974
HINDU SUCCESSION ACT, 1956 - SECTION 8, 12 - CONSENT TO ALIENATION - SALE BY VENDEE TO REVERSIONERS AFTER DECLARATORY DECREE - NO CONSENT TO ALIENATION - TITLE VESTS IN REVERSIONERS AFTER DEATH OF ALIENOR - DECREE FOR ONE-HALF OF THE LAND IN DISPUTE - ERROR IN DECREE SHEET - OPERATIVE PART OF DECREE CONTROLS - SUIT FOR 1/4TH SHARE - DECREED TO THE EXTENT OF 1/4TH - NO CROSS-OBJECTIONS FILED BY CO-PLAINTIFF - JUDGMENT QUA CO-PLAINTIFF FINAL.
Fact of the Case:
Puran Singh mortgaged his land to Mehma Singh. His collaterals filed a declaratory suit challenging the mortgage as without consideration and necessity. The suit was decreed, and it was held that the mortgage was for necessity only to the extent of Rs. 2,170.00. Puran Singh sold the land to Sawan Singh. The same collaterals filed a suit for declaration that the sale will not affect their reversionary rights. The suit was decreed, and it was held that the sale will not affect their reversionary rights after the death of the alienor except to the extent of Rs. 3,500.00. Sawan Singh died, and the decree was passed against his son Inder Singh. Inder Singh sold the land to the collaterals. Harchand Singh and Gurdev Singh, sons of Inder Singh, brought a suit for possession by pre-emption of the land sold by Inder Singh. The suit was decreed. Puran Singh died, and his reversioners filed three suits for possession of the land left by Puran Singh. One suit was filed by Hans Raj son of Kehar Singh, second by Gopi Singh, and the third by Munshi Singh and Joginder Singh sons of Gokha Singh. Each of the branches of the reversioners claimed 1/4th share of the land. Gopi Singh's suit was decreed, that of Hans Raj was dismissed and so also the suit of Munshi Singh and Joginder Singh. Joginder Singh did not appeal, but Munshi Singh did. His appeal was rejected by the Lower Appellate Court. Munshi Singh then came up to this Court in second appeal. The learned Single Judge accepted his appeal. Harchand Singh and Gurdev Singh sons of Inder Singh being dissatisfied with the decree passed by the Single Judge in favor of Munshi Singh have come up in appeal under Clause X of the Letters Patent.
Finding of the Court:
The sale by Inder Singh to the reversioners of Puran Singh, after they had obtained the declaratory decree, does not amount to consent to the sale. Consent cannot be inferred from the mere fact that the reversioners purchased the property after the declaratory decree. The learned Single Judge was justified in coming to the conclusion that from the mere fact that after the declaratory decree the land was sold by the vendees to the reversioners, no consent to the sale, which had been challenged, could be spelt out. The title vests in the reversioners after the death of the alienor. Inheritance never remains in abeyance and as soon as succession opens, the estate vests in the next heir. The decree for one-half of the land in dispute has been drawn up by this Court is an error in the decree sheet. The operative Part of the decree controls. Munshi Singh sued for 1/4th share of the estate of the deceased though he was entitled to 1/2 share in the estate in view of Section 8 read with Section 12 of the Hindu Succession Act, 1956. Joginder Singh's share cannot be decreed as he did not appeal and no cross-objections have been filed.
Issues: Whether the sale by Inder Singh to the reversioners of Puran Singh, after they had obtained the declaratory decree, amounts to consent to the sale.
Ratio Decidendi: Consent cannot be inferred from the mere fact that the reversioners purchased the property after the declaratory decree. The title vests in the reversioners after the death of the alienor. Inheritance never remains in abeyance and as soon as succession opens, the estate vests in the next heir. The decree for one-half of the land in dispute has been drawn up by this Court is an error in the decree sheet. The operative Part of the decree controls. Munshi Singh sued for 1/4th share of the estate of the deceased though he was entitled to 1/2 share in the estate in view of Section 8 read with Section 12 of the Hindu Succession Act, 1956. Joginder Singh's share cannot be decreed as he did not appeal and no cross-objections have been filed.
Final Decision: The appeal is dismissed. There will be no order as to costs.
1. This appeal under Clause X of the Letters Patent must fail. The facts are simple. One Puran Sinsh mortgaged his land in favour of Mehma Singh for a sum of Rs. 3,500.00 in the year 1983 Bk. Gopi Singh, Munshi Singh, Kehar Singh and Gokha Singh, his near collaterals, filed a declaratory suit under the customary law challenging the mortgage as without consideration and necessity. This suit was decreed and it was held that the mortgage was for necessity only to the extent of Rs. 2,170.00 . Thereafter, Puran Singh sold the land, which was the subject-matter of the mortgage to one Sawan Singh, for Rs. 3,700.00 . Again, the same collaterals filed a suit for declaration that the sale will not affect their reversionary rights as the same was not for consideration and necessity. This suit was decreed and it was held that the sale will not affect their reversionary rights after the death of the alienor except to the extent of Rs. 3,500.00 . During the course of the declaratory suit, Sawan Singh had died and the decree was passed against his son Inder Singh, who has been impleaded as his legal representative. Inder Singh sold the land to the aforesaid collaterals for Rs. 3,600.00 . Later on, Harchand Singh and Gurdev Singh sons of Inder Singh brought a suit for possession by pre-emption of the land sold by Inder Singh. This suit was decreed. Puran Singh died on the 20th January, 1960. His reversioners filed three suits for possession of the land left by Puran Singh on the basis of the declaratory decree. One suit was filed by Hans Raj son of Kehar Singh, second by Gopi Singh, and the third by Munshi Singh and Joginder Singh sons of Gokha Singh. Each of the branches of the reversioners claimed 1/4th share of the land. It is not disputed that Gopi Singh s suit was decreed, that of Hans Raj was dismissed and so also the suit of Munshi Singh and Joginder Singh. Joginder Singh did not appeal. but Munshi Singh did. His appeal was rejected by the Lower Appellate Court. Munshi Singh then came up to this Court in second appeal. The learned Single Judge accepted his appeal. The basis for the rejection of Mushi Singh s appeal in the Lower Appellate Court and the dismissal of his suit in the trial Court was that the Courts below inferred from the sale by Inder Singh to the reversioners that they had consented to the alienation. The learned Single Judge has taken the view that the sale by the vendee to the reversioners after the declaratory decree does not amount to consent to the alienation. Harchand Singh and Gurdev Singh sons of Inder Singh being dissatisfied with the decree passed by the Single Judge in favour of Munshi Singh have come up in appeal under Clause X of the Letters Patent.
2. Mr. S. L. Ahluwalia, learned Counsel for Harchand Singh and Gurdev Singh, contends that sale by Inder Singh to the reversioners of Puran Singh, after they had obtained the declaratory decree, amounts to consent to the sale. We are unable to agree with this contention. Consent cannot be inferred from the mere fact that the reversioners purchased the property after the declaratory decree. To hold this would be contradiction in terms. They were merely purchasing the right of the vendee to possess the land during the lifetime of the vendor, and therefore, the learned Single Judge was perfectly justified in coming to the conclusion that from the mere fact that after the declaratory decree the land was sold by the vendees to the reversioners, no consent to the sale, which had been challenged, could be spelt out. Mr. Ahluwalia stressed the fact that the declaratory decree does not confer title on the reversioners. There can be no quarrel with this proposition, but this does not in any manner affect the decision of the present appeal. We are not concerned here whether the title vested in the reversioners after the declaratory decree, because we are dealing with the matter after the death of the alienor. After his death, the title does vest in the reversioners.
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