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PETITIONER: GIANI RAM & ORS.

       Vs.

RESPONDENT: RAMJI LAL & ORS.

DATE OF JUDGMENT: 11/03/1969

BENCH: SHAH, J.C. BENCH: 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  clould 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

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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

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require.  [949 D]

JUDGMENT: 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

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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

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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 beep 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 wodow 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

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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. 950