Singh & ANR Vs. Dile Ram & Ors  INSC 272 (6 October 1987)
SABYASACHI (J) MUKHARJI, SABYASACHI (J) OZA, G.L. (J)
1987 AIR 2394 1988 SCR (1) 378 1988 SCC (1) 47 JT 1987 (4) 147 1987 SCALE
INFO : D 1989 SC1179 (16)
Succession Act, 1956: s.14-Properties inherited by wife from husband in
1942-Limited ownership upto 1956-Thereafter absolute estate-Whether competent
to transfer the properties by will-Gift of property by widow having life interest
declared ineffective-Effect of.
predecessors-in-interest of the parties were co- reversioners of the testator,
a Hindu widow. Prior to 1943 she executed a deed of gift in favour of the
father of the appellants of certain properties in which she had life interest.
Decreeing the suit filed by the respondent/plaintiffs the trial court made a
declaration that the gift of the land in favour of the defendant/appellants was
ineffective against reversionary rights of the plaintiffs after the death of
the appeal, the appellate court passed a compromise decree declaring the gift
deed ineffective in respect of the land. Subsequent after the enactment of the
Hindu Succession Act, the widow executed a will in respect of all her
properties in favour of the appellants. The suit and the appeal against it were
dismissed. But the High Court found the resondents entitled to claim possession
of half of the share of the land earlier gifted away.
the appeal by special leave, ^
1. The effect of the Hindu Succession Act, 1956 is that a female Hindu can
transfer her property by will.
in the instant case, the will was subsequent to this period she had absolute
estate and full capacity to make the will. [382B]
When the widow inherited the properties from her husband in 1942 she had only
life interest in the said properties. She was a limited owner upto 1956 when
the Act came into force. If she had gifted away her properties during that
period she would not have become absolute owner after coming into operation of
the Act and would not have been competent to bequeath the properties by will.
However, by the compromise decree it was declared that the purported gift deed
was legally invalid. The effect of that declaration was that she continued to
379 be the limited owner of the properties thereafter until 1956 when by virtue
s. 14 of Act her limited estate became absolute estate. She was, there fore, competent
to dispose it of when she made the will. [381G-H;382E]
It cannot be said that the father of the respondents did not challenge the gift
till the life time of the widow, and that he filed the said suit only for the
purpose of avoiding operation of the gift after her lifetime. The compromise
decree should be construed as that the parties agreed that the properties would
be enjoyed by the widow till her lifetime and the gift made by her in favour of
the apellant's father would remain operative till the lifetime of the widow but
not beyond that. [381E-F]
The lower courts on facts have held that the will was genuine and properly
executed. If that is so, then the claim of the appellants, who are the legatees
under the will, cannot be disputed. [382B]
Appellate Jurisdiction: Civil Appeal No. 1686 of 1978.
the Judgment and order dated 27.4.1978 of the Himachal Pradesh High Court in
Regular Second Appeal No. 59 of 1969.
Ray and S.K. Jain for the Appellants. S.K. Bagga for the Respondents.
Judgment of the Court was delivered by 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.
order to appreciate the controversy it is relevant to refer the few facts.
Prior to 1943 Mst. Sheru @ Bhushehri was having life interest in the properties
mentioned in Paragraph 1 of the Plaint in Civil Case No. 159 dated 19.7.63. 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 clause
l(f) of the Plaint. On 26.11.48 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 380 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 brother, Shri Thalia, since
deceased. Mst. Sheru @ Bhushehari, since deceased, was the widow of Shri Thalia
who had no issue. On 31.5.50 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- plaintiff and made a declaration that the gift of
the land in suit in favour of Shri Dhari made by Mst. Sheru @ Bhushehari shall
be ineffective against the reversionary rights of the plaintiffs (respondents
herein) after the life time Mst. Sheru Bhushehari. On 9.6.1950 Shri Hari Ram
and Mst. Sheru @ 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 1974.
27.7.1950 the appeal was compromised in terms of a Compromise Deed, a
compromise decree was passed allowing the appeal of the appellants (Shri Dhari
and Mst. Sheru @ 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 @
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.
1956, the Hindu Succession Act, 1956 came into force w.e.f. 17.6.56. With the
coming into force of the said Act Mst. Sheru 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.
9.3.59 Mst. Sheru @Bhushehari executed a will in respect of all her properties
in favour of Shri Gopal Singh, Shri Jagdish, Shri Bhup Singh and Shri Kirat Ram
all sons of Shri Dhari. Shri Hari Ram died during the life time of Mst.
@ Bhushehari. Mst. Sheru died on 20.3.60. 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 381 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 entitled 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 @ Bhushehari to Shri Dhari in the year 1943.
is pertinent to note that the compromise decree reads as follows:
allow the appeal of the appellants and modify the judgment of the Trial Court
to the extent that Gift Deed in respect of the land measuring 21-15- 17 bighas
comprising Khata Khatauni No. 3/16 to 27 bighas situated in village Barsu
Ballah is hereby rejected and declared ineffective. The aforesaid land
alongwith the other land shall be divided in equal shares after the death of
Sheru Bhushehari and Dhari shall himself give due share to Hari Ram in
accordance with the aforementioned order." The effect of the aforesaid was
that the gift was ineffective and Smt. Bhushehari continued to enjoy the right
and benefit she had during her limited ownership until 1956.
the premises and in the facts and circumstances of the case, the High Court was
not justified in construing or interpreting the compromise decree in Suit No.
63 of 1948 in the manner it did and in holding that the suit was one in which
Hariram did not challenge the gift till the lifetime of Bushehari and that he
filed the said suit only for the purpose of avoiding operation of the gift
after the lifetime of Bushehari. The compromise decree should be construed as
that the parties agreed that the properties would be enjoyed by Bushehari till
her lifetime and the gift made by her in favour of Dhari would remain operative
till the lifetime of Bushehari but not beyond that. When Bushehari inherited
the properties from her husband in 1942 she had only life interest in the said
properties. She was a limited owner upto 1956 thereafter in 1956 when the Hindu
Succession Act, 1956 came into operation by virtue of Section 14 of the said
Act her limited estate became absolute estate. The position therefore was that
if she had gifted away her properties when she was limited owner Smt. Bushehari
would not have become absolute owner after coming into operatin of the 1956 Act
and would not have been competent to bequeath the properties by Will. In the
instant case, however, by the Compromise Decree it was declared that the gift
was 382 ineffective. The effect of that declaration was that she continued to
be the limited owner of the properties there- after until 1956. The effect of
the Hindu Succession Act, 1956, was that a female Hindu can transfer her
property by Will. Since the Will was subsequent to this period she had absolute
estate and full capacity to make the Will.
has been held by the Courts of facts that the Will was genuine and properly
executed. If that is so, then the claim of the appellants who are the legatees
under the Will cannot be disputed. We are, therefore, unable to sustain the
views of the High Court. Our attention was drawn to a decision of the Himachal
Pradesh High Court in the case of Lachhman v. Thunia, A.I.R. 1972 H.P. 69 where
it was held that where a Hindu widow makes a gift of the property belonging to
her deceased husband before the passing of the Hindu Succession Act and the
reversioners obtain a declaratory decree that their rights are intact despite
the alienation by the widow, the declaratory decree does recognise the rights
of the reversioners to the property after the death of the limited owner though
the right to enjoy for a limited period remains in the done. Section 14(1) of
the Hindu Succession Act, 1956, had no application to the property. It was held
that it was not in the possession of the widow at the time of the death. We are
of the opinion that the ratio of the said decision cannot be made applicable to
the facts of this case. Since in this case after the purported gift, it was
held that the gift was legally valid, Mst. Bushehari remained the owner of the
property in question, therefore, was competent to dispose it of when she made
that view of the matter and in the facts and circumstances of this case the
appeal must be allowed. The judgment and order of the High Court are set aside.
In the facts and circumstances of the case the parties will pay their own