Giani Ram & Ors Vs. Ramji Lal
& Ors [1969] INSC 73 (11 March 1969)
11/03/1969 SHAH, J.C.
SHAH, J.C.
GROVER, A.N.
CITATION: 1969 AIR 1144 1969 SCR (3) 944 1969
SCC (1) 813
CITATOR INFO:
F 1976 SC 634 (6) RF 1977 SC1699 (7) F 1980
SC 558 (1,5) RF 1982 SC 98 (11) RF 1991 SC1654 (27,28,29)
ACT:
Punjab Customs-Female heirs not entitled to
challenge sale by male owner-Father selling property in 1916 without legal
necessity-Son filing suit in 1920 and obtaining declaration that alienation not
to enure beyond father's life time-Hindu Succession Act 1956 giving equal
rights to female heirs- Father dying in 1959-Right of female heirs to sue for
possession of alienated property on basis of declaratory decree whether barred
by Punjab Custom (Power to Contest) Act of 1920.
Code of Civil Procedure 0. 41, r. 33-Power of
Appellate Court to grant relief to parties to suit who have not appealed or
filed cross-objections
HEADNOTE:
J, a Hindu Jat governed by the Punjab
Customary Laws, sold without legal. necessity, in 1916, a fourth share of his
ancestral land to one S. Under the Punjab, Customary Laws females could not
challenge a sale of ancestral property by a male owner. J's son G, in suit No.
75 of 1920 obtained a declaratory decree to the effect that the sale to S would
not enure beyond the life-time of J. When J died in 1959, the Hindu Succession
Act, 1956 had come into force and his three sons, daughters and widow inherited
his estate in equal shares. The three sons, the widow and the daughters then
filed a suit for possession of the aforesaid alienated land on the basis of the
decree in suit No. 75 of 1920.
Under s. 8 of the Punjab Custom (Power to
Contest) Act 1 of 1920 only those competent to contest an alienation cloud take
advantage of a decree obtained by a reversioner. The trial court passed a
decree for a half share of the suit property in favour of the sons only,
holding that the female heirs of J were not entitled to take advantage of the
decree in suit No. 75 of 1920. The District Court modified the decree by
decreeing the suit in respect of the whole property in favour of the sons. In
second appeal the High Court restored the decree of the trial court holding
that the claim of the female heirs of J could not be upheld, firstly because of
the Punjab customary law and s. 8 of Act 1 of 1920, and secondly because they
had not filed any appeals against the orders of the lower courts. In appeals by
special leave before this Court,
HELD : (i) The preliminary objections 'raised
by the alienees that the suit in its entirety should have been dismissed,
because by the enactment of the Hindu Succession Act J was to be deemed a full
owner and notwithstanding the decree of 1920 his sons had after that Act no
subsisting reversionary interest in the property, must stand rejected.
There is nothing in the Hindu Succession Act
which retrospectively enlarges the power of a holder of ancestral land or
nullifies a decree passed before the Act. [947 B-C] (ii) Under the customary
law of the Punjab the wife and the daughters of a holder of ancestral property
could not sue to obtain a declaration that the alienation of ancestral property
will not bind the reversioners after the death of the alienor. But a
declaratory decree 945 obtained in a suit instituted by a reversioner competent
to sue has the effect of restoring the property alienated to the estate of the
alienor. [947 G] The effect of the declaratory decree in the suit filed by G in
1920 was merely to delclare that by the sale, the interest conveyed to the
alienee was to enure during the life time of the alienor. The conclusion was
therefore inevitable that the property alienated reverted to the estate of J at
the point of his death and all persons who would, but for the alienation have
taken the estate were entitled to inherit the same. If J had died before the Hindu
Succession Act 1956 was enacted, the three sons would have taken the estate to
the exclusion of the widow and the two daughters. After the enactment of the Hindu
Succession Act the estate devolved, by virtue of ss. 2 and 4(1) of the Hindu
Succession Act 1956, upon the three sons, the widow and the two daughters. L947
H-948 B] The High Court was therefore in error in holding that because in the
year 1920 the wife and daughters of J were incompetent to challenge the
alienation of ancestral property by J, they could not, after the enactment, of
the Hindu Succession Act inherit his estate when succession (iii) The High
Court was equally in error in holding that because the widow and daughters had
not filed an appeal or cross-objections against the decree of the lower courts,
they were not entitled to any relief. The sons, the daughters and the widow of
J had filed the suit for a decree for possession of the entire property and
their claim was that the alienee had no subsisting interest. The District Court
accepted that claim and granted a decree in favour of the three sons for the
entire property which was alienated.
If the alienees were unable to convince the
court that they had any subsisting interest in the property in dispute after
the death of J, the court was competent under 0. 41 r.
33 of the Code of Civil Procedure to adjust
the rights between the sons, the daughters, and the widow of J in that
property. [948 E-G; 949 D] In 0. 41 r. 33 the expression 'which ought to have
been passed' means 'what ought in law to have been passed'. if the Appellate
Court is of the view that any decree which ought in law to have been passed was
in fact not passed by the 'subordinate court, it may pass or make such further
or other decree or order as the justice of the case may require. [949 D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 438 a 1966.
Appeal by special leave from the judgment and
decree dated November 18, 1963 of the Punjab High Court in Civil Regular Second
Appeal No. 254 of 1962.
Mohan Behari Lal, for the appellants.
I. M. Lall and M. L. Agarwal, for the
respondents.
The Judgment of the Court was delivered by
Shah, J. In 1916 Jawala a Hindu Jat-governed by the customary law of the Punjab
sold to one Shadi, without legal necessity, a fourth share in 891 bighas 3
biswas, which was ancestral in his hands. Giani Ram son of Jwala instituted
Suit No. 75 946 of 1920 in the Court of the Senior Subordinate Judge, Hissar,
for a declaration that the sale of ancestral lands of Jwala in favour of Shadi
was null and void and was ineffective against his reversionary rights. The suit
was decreed by the Senior Subordinate Judge, Hissar. The effect of the
declaratory decree was that the alienations could not enure beyond the life
time of Jwala.
Jwala died on October 16, 1959, leaving his
surviving three sons-Giani Ram, Manphool and Chandgi his wife Rajni, and two
daughters Phulwati and Chhanno. Under the Hindu Succession Act, 1956 which came
into force on June 17, 1956, the estate of Jwala devolved upon his widow, his
sons and his daughters in equal shares. In an action filed by the three sons of
Jwala, his daughters and widow against the legal representatives, of Shadi for
a decree for possession of the lands alienated by Jwala the Senior Subordinate
Judge, Hissar decreed the suit for a half share in property claimed by the
plaintiffs. The learned Judge was of the view that only the sons of Jwala could
claim the benefit of the decree in Suit No. 75 of 1920 and since their share in
the estate of Jwala was in the aggregate only a half, the remaining half having
devolved upon the widow and the two daughters, a decree for a half share in the
lands alienated could issue against the alienees.
In appeal by the plaintiffs to the District
Court, Hissar, the decree was modified. The learned District Judge decreed the
claim in its entirety, but only in favour of the three sons. In his view the
sons were entitled to the ancestral property alienated by Jwala and the widow
and the two daughters had no interest there in the provisions of the Hindu
Succession Act notwithstanding. Against that decree a second appeal was
preferred by the heirs of Shadi. The High Court of Punjab set aside the decree
passed by the District Court and restored the decree of the Trial Court. In the
view of the High Court, under the Hindu Succession Act, 1956, the two daughters
and widow of Jwala could inherit a share in the, estate of Jwala, but since by
s. 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those persons
could take the benefit of the declaratory decree obtained by any one of the
reversioners, who could contest the alienation by the vendor, and it was a
"settled rule of custom that a female heir cannot contest the sale"
by a male owner, a half share in the estate of Jwala which devolved upon the
sons could be claimed by them, and the widow and the daughters could not obtain
benefit of the decree. The High Court also held that the suit filed by the
widow and the two daughters had been dismissed by the Trial Court and the
District Court and as they had not filed an appeal in the High Court or even
cross objections, the order of dismissal qua them had 'become final, and no
decree could be passed in their 947 favour for possession of any part of the
estate. With special leave the appellants have appealed to this Court.
A preliminary objection raised by counsel for
the respondents that the suit in its entirety should have been dismissed,
because by the enactment of the Hindu Succession Act Jwala was to be deemed a
full owner and notwithstanding the decree passed in Suit No. 75 of 1920 his
sops had after that Act no subsisting reversionary interest in the property,
must stand rejected. The High Court has granted a decree in favour of the three
sons for a half share in the property, and the decree is not challenged in an.
appeal by the respondents. The respondents cannot now be permitted to challenge
that part of the decree. In any event there is nothing in the Hindu Succession
Act which retrospectively enlarges the power of a holder of ancestral land or
nullifies a decree passed before the Act.
The Punjab Custom (Power to Contest) Act 1 of
1920 was enacted to restrict the rights excercisable by members of the family
to contest alienations made by a holder of ancestral property. By virtue of s.
6 of the Act no person is entitled to contest an alienation of ancestral
immovable property Unless he is descended in the male line from the
great-great-grand-father of the alienor. Under the customary law in force in
the Punjab a declaratory decree obtained by the reversionary heir in an action
to set aside the alienation of ancestral property enured in favour of all
persons who ultimately took the estate-on the death of the alienor for the
object of a declaratory suit.filed by a reversionary heir impeaching an
alienation of ancestral estate was to remove a common apprehended injury, in
the interest of the reversioners. The decree did not make the alienation a
nullity-it removed the obstacle to the right of the reversioner entitled to
succeed when the succession opened. By the decree passed in suit No. 75 of 1920
filed by Giani Rain it was declared that the alienations by Jwala were not,
binding after his life time, and the property will revert to his estate. It is
true that under the customary law the wife and the daughters of a holder of
ancestral property could not sue to obtain a declaration that the alienation of
ancestral property will not bind the reversioners after the death of the
alienor. But a declaratory decree obtained in a suit instituted by a
reversioner competent to sue has the effect of restoring the property alienated
to the estate of the alienor.
The effect of the declaratory decree in suit
No. 75 of 1920 was merely to declare that by the sale interest conveyed in
favour of the alienee was to enure duuring the life time of the alienor' The conclusion
is therefore inevitable that the property alienated reverted to the estate of
Jwala, at the point of his- death and all persons who would, but. for the
allenation, have taken the estate 1 Sup. C.T./69-11 948 will be entitled to
inherit the same. If Jwala had died before the Hindu Succession Act, 1956 was
enacted the three sons would have taken the estate to the exclusion of the
widow and the two daughters. After the enactment of the Hindu Succession Act
the estate devolved, by virtue of ss. 2 and 4(1) of the Hindu Succession Act,
1956, upon the three sons, the widow and the two daughters. We are unable to
agree with the High Court that because in the year 1920 the wife and the
daughters of Jwala were incompetent to challenge the alienation of ancestral
property by Jwala, they could not, after the enactment of the Hindu Succession Act,
inherit his estate when succession opened after that Act came into force.
The second ground on which the learned Judge
has founded his judgment also does not appeal to us. The three sons, the two
daughters and the widow of Jwala had filed the suit claiming posession of the
entire property from the alienee.
That suit was decreed by the Trial Court in
favour of the sons, only to the extent of a halt share in the property
alienated. The Court held that the widow and the daughters were not entitled to
a share because "only those persons can bring a suit for possession on the
death of Jwala who had the right to challenge the alienation made by
Jwala". In appeal the District Court granted a decree for possession of
the entire property on the view that the alinee had no subsisting interest
after the death of Jwala. But the District Court granted a decree for
possession of the entire property alienated only in favour of the three sons,
because in the view of the Court daughters and the widow of Jwala were not
entitled to any share in the property. According to the High Court if the widow
and the daughters were entitled to the share in the property, they had
disentitled themselves to that right, because they had not preferred an appeal
or filed cross objections to the decree appealed from. The sons, daughters and
widow of Jwala filed a suit for a decree for possession of the entire property
and their primary claim was that the alienee had no subsisting interest. The
District Court accepted that claim and granted a decree in favour of the three
sons for the entire property which was alienated. If the alienes are unable to
convince the Court that they had any subsisting interest in the property in
dispute after the death of Jwala the Court will be competent to adjust the
rights between the sons, the daughters and the widow of Jwala in that property.
Order 41, r. 33 of the Code of Civil
Procedure was enacted to meet a situation of the nature arising in this case.
In so far as it is material, the rule provides :
"Me Appellate Court shall have power to
pass any decree and make any order which ought to have been passed or made and
to pass or make such further or 94 9 other decree or order as the case may
require, and this power may be exercised by the Court notwithstanding that the
appeal is as to part only of the decree and may be exercised in favour of all
or any of the respondents or parties, although such respondents or parties may
not have filed any appeal or objection'.
The expression "which ought to have been
passed" means "which ought in law to have been passed". If the
Appellate Court is of the view that any decree which ought in law to have been
passed, but was in fact not passed by the subordinate court, it may Pass or
make such further or other decree or order as the justice of the case may
require If the claim of the respondents to retain any part of the property
after the death of Jwala is negatived, it would, be perpetrating gave injustice
to deny to the widow and the two daughters, their share in the property to
which they are in law entitled. In our view, the case was one in which the
power under 0. 41, r. 33,. Code of Civil Procedure ought to have been exercised
and the claim not only of the three sons but- also of the widow and the two,
daughters ought to have been decreed.
The appeal is allowed and the decree passed
by the High Court is modified. There will be a decree for possession of the
lands in suit in favour of the three sons, the widow and the two daughters of
Jwala. The interest of the three sons is one-half in the Iands in suit and the
interest of the widow and the two daughters is the other half in the lands.
The plaintiffs will be entitled to mesne
profits from the date of the suit under 0. 20, r. 12, Code of Civil Procedure.
The appeal will be allowed with costs throughout.
G.C. Appeal allowed.
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