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PETITIONER: GOPAL SINGH & ANR.

       Vs.

RESPONDENT: DILE RAM (DEAD) BY LRS. & ORS.

DATE OF JUDGMENT06/10/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) OZA, G.L. (J)

CITATION:  1987 AIR 2394            1988 SCR  (1) 378  1988 SCC  (1)  47        JT 1987 (4)   147  1987 SCALE  (2)795  CITATOR INFO :  D          1989 SC1179  (16)

ACT:           Hindu  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.

HEADNOTE:      The 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  donor. Allowing 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.      Allowing the appeal by special leave, ^      HELD: 1.  The effect  of the Hindu Succession Act, 1956 is that  a female  Hindu can  transfer her property by will. Since in  the instant  case, the will was subsequent to this period she had absolute estate and full capacity to make the will. [382B]         2.1 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,

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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,therefore,competent  to dispose it of when she made the will. [381G-H;382E]      2.2  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]      2.3 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]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1686 of 1978.      From the  Judgment and  order dated  27.4.1978  of  the Himachal Pradesh  High Court in Regular Second Appeal No. 59 of 1969.      Tapas Ray and S.K. Jain for the Appellants.      S.K. Bagga for the Respondents.      The 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.      In 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

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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.      On 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.      In 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.      On 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. Sheru @  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.      It is  pertinent to  note that  the  compromise  decree reads as follows:           "I 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. In 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

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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.      lt 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  donee. 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 the Will.      In 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 costs. P.S.S.                                       Appeal allowed. 383