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PETITIONER: RADHA RANI BHARGAVA

       Vs.

RESPONDENT: HANUMAN PRASAD BHARGAVA

DATE OF JUDGMENT: 20/04/1965

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SUBBARAO, K. SUBBARAO, K. SHAH, J.C. SARKAR, A.K. MUDHOLKAR, J.R.

CITATION:  1966 AIR  216            1966 SCR  (1)   1  CITATOR INFO :  F          1973 SC2405  (8)  RF         1991 SC1581  (16,17)

ACT: Hindu   Law-Alienation   by   widow-Declaratory   suit    by reversioner   Coming   into  force   of   Hindu   Succession Act-Effect-Widow’s    death-Non-joinder   of   her    heirs- Continuance of suit.

HEADNOTE: A  widow  alienated  her husband’s estate  and  one  of  her daughters  in  a representative capacity on  behalf  of  the reversioners instituted a suit impleading the alienees,  the widow  and  her sister the appellant, as defendants,  for  a declaration that the alienation was null and void.  The suit was  decreed, and the alienees. preferred an appeal  to  the High  Court impleading the widow, and her two  daughters  as respondents.    During  the  pendency  of  the  appeal   the plaintiff  died and the High Court directed that her  sister the  appellant would continue to be on record in her  place. During the pendency of the appeal the Hindu Succession  Act, 1956 came into force. and the High Court allowed the appeal, holding that there were no reversioners and no  reversionary rights  after the Act came into force.  On  the  appellant’s application, certificate under Art. 133 of the  Constitution was  granted.  After the appeal was declared  admitted,  the widow  died and no order of the High Court under 0.  VXI  r. 12(a)  of the Supreme Court Rules Substituting the heirs  of the  widow in her place was obtained.  Later  the  appellant filed petition of appeal in this Court, in Which, the  widow was also impleaded as a respondent.  The alienee-respondents raised a prelicainary objection that the widow could not  be shown  as respondent in this appeal, as she was dead on  the date of the filng of the appeal, and consequently the appeal was  defectively  constituted and not  maintainable  in  the absence of the widow’s heirs. HELD:On merits the appeal must be allowed. It  is  open  to  a reversioner to maintain  a  suit  for  a

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declaration that an dienation made by a Hindu female limited owner  before the coining into orce of the Hindu  Succession Act,  was without legal necessity and was not  binding  upon the reversioners. [4 D-E] Gummalapura  Taggina  Matada Kotturuswami v.  Serra  Veeryya [1959]  Supp.  I S.C.R. 968 and Brahmadeo Singh  v.  Deomani Missir, C.A. No, 130/60, dated 15-10-62, followed. The  appeal should proceed against the other respondents  on the  footing at the widow was not a party to the appeal.  [5 E] In the case of the death of the widow during the pendency of the  declaratory  suit,  the  heirs of  the  widow  are  not necessary parties   to be suit.  Though the widow was joined as  a party to the suit, no relief was claimed  against  her personally.  On the death of the widow the entire estate  of the last full owner is represented by the plaintiff suing in a representative capacity on behalf of all the reversioners, and  the  plaintiff  can get effective  relief  against  the alienee  in  the  absence of the fires of  the  widow.   The plaintiff  is  entitled  to  continue  the  declaratory  bit without   joining the heirs of the widow as parties  to  the suit. [6 B-B] As the reversioners were not entitled to the possession.  of the  prop  it the time of the institution of the  suit,  the next reversioner could then 2 sue  for a bare declaration and the proviso to s. 42 of  the Specific  Relief Act, did not constitute a bar to the  suit. The  declaratory  suit  does not  become  defective  because during  the  pendency of the suit, the  reversioners  become entitled to further relief.  But in the absence of an amend- ment of the plaint, a decree for possession of the  property cannot be passed in the suit, and if the reversioners are to get  any  real  benefit,  they must  institute  a  suit  for possession of the property within the period of  limitation. [6 E-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 579 of 1961. Appeal  from  the judgment and decree  dated  September  25, 1957, of the Allahabad High Court in First Appeal No. 232 of 1942. Naunit Lai, for the appellant. S.   T. Desai, Rameshwar Nath and S. N. Andley, for  respon- dents Nos.  1 and 3. M.   V. Goswami, for respondent Nos. 2 and 4. S.   Murthy and B. P. Maheshwari, for respondent No. 5. The Judgment of the Court was delivered by Bachawat, J. One Kalyan Singh died sonless in the year  1918 leaving  him  surviving his widow, Mst.   Bhagwati  and  two daughters.,  Mst.   Indrawati and Mst.  Radha  Rani.   By  a deed,  dated October 10, 1919, Mst.  Bhagwati alienated  her husband’s estate in favour of certain alienees.  On  October 23, 1931, Mst.  Indrawati suing in a representative capacity on behalf of the reversioners to the estate of Kalyan Singh, instituted  the  suit in the Court of the  Additional  Civil Judge   of  Mathura,  out  of  which  this  appeal   arises. impleading  the  alienees as also Mst.   Bhagwati  and  Mst. Radha Rani as defendants and claiming a declaration that the alienation was null and void against the subsequent heirs of Kalyan  Singh and that on the death of Mst.   Bhagwati,  his next  heirs  would  be entitled to  get  possession  of  the alienated  properties.  On Angus 12, 1941, the  trial  Judge

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decreed  the  suit  and  granted  a  declaration  that   the alienation "is void beyond the lifetime of Mst Bhagwati  and does  not bind the reversions, who would be  entitled  after the death of Mst.  Bhagwati to possession over the assets of Babu  Kalyan  Singh."  On February 12,  1942,  some  of  the alienees  preferred  an appeal to the Allahabad  High  Court impleading  Mst.  Bhagwati, Mst. bidrawati and  Mst.   Radha Rani  as  respondents  to the appeal.  Three  sons  of  Mst. Indrawati  and  two  sons  of Mst.   Radha  Rani  were  also impleaded as respondent 3 Nos. 8 to 12, but by an order dated March 11, 1942, the High Court directed that those persons would not be allowed to be impleaded as respondents.  During the pendency of the appeal in the High Court, Mst.  Indrawati died.  By an order, dated May 11, 1950, the High Court directed that Mst.  Radha  Rani would continue to be on the record in place of her  deceased sister, Mst.  Indrawati, and as the next reversioner to  the estate of Kalyan Singh.  During the pendency of the  appeal, on  June 17, 1956, the Hindu Succession Act. 1956 came  into force.  At the hearing of the appeal before the High  Court, the  alienees raised the preliminary contention  that  after the  coming  into force of the Hindu Succession  Act,  1956, there are no reversioners and no reversionary rights, and  a suit for a declaration that the alienation is not binding on the reversioners is. no longer maintainable.  The High Court accepted  this contention, allowed the appeal and  dismissed the suit. the High Court did not go into the other questions raised in the appeal.  On January 2, 1958, Mst.  Radha  Rani applied  to the High Court for grant of a certificate  under Art.  133 of the Constitution of India.  On August 8,  1958, the High Court granted the certificate, and on February  27, 1959,  the High Court declared the appeal admitted.  On  May 29,  1961,  Mst.  Bhagwati died.  On or about  November  13, 1961,  the High Court despatched the records to this  Court. No  order  of  the High Court under O.XVI,  r.12(a)  of  the Supreme Court Rules substituting the heirs of Mst.  Bhagwati in  her  place was obtained, and the appeal  abated  against her.  On March 26, 1962, Mst.  Radha Rani filed the petition of  appeal in this Court.  In this petition of appeal,  Mst. Bhagwati  and  also the above-mentioned three sons  of  Mst. Indrawati and two sons of Mst.  Radha Rani were impleaded as respondents.   On August 24, 1964, respondents Nos. 1  to  3 filed Civil Miscellaneous Petition No. 2219 of 1964  raising certain preliminary objections, and praying that the  appeal be  dismissed.  This petition was posted for  hearing  along with the appeal. On the merits, the respondents have very little to say.  The High  Court took the view that the effect of ss. 14, 15  and 16  of  the Hindu Succession Act, 1956, was that  after  the coming into force of the Act, there are no reversioners  and no reversionary rights.  The Patna High Court in some of its earlier decisions took the same view, but other High  Courts took the view that s. 14 did not apply to properties in  the possession of alienees under an alienation made by the Hindu female  before  the Act came into force, and in  respect  of such  properties,  ss.  14, 15 and 16 of  the  Act  did  not abolish   the  reversioners  and  reversionary  rights.   In Gummalapura Taggina Mattada Kotturuswami v. Serta Veeravya 4 and  others(1), this Court approved of the latter view,  and this  opinion was followed by this Court in Brahmadeo  Singh and  another v. Deomani Missir and others(2).  In  the  last case, the trial Court had decreed a suit by the reversioners for  a declaration that two sale deeds executed by  a  Hindu

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widow  were  without legal necessity and  not  binding  upon them.   The  Patna  High  Court allowed  an  appeal  by  the alienees  and dismissed the suit holding that by  reason  of the provisions of s. 14 of the Hindu Succession Act, a  suit by  a reversioner for a declaration that an alienation  made by  a Hindu female is not binding on the reversioner is  not maintainable.  From the decision of the Patna High Court the reversioners preferred an appeal to this Court.  This  Court held  that the view taken by the Patna High Court  following its  earlier  decision  in Ramsaroop  Singh  and  others  v. Hiralal Singh and others(-’) and of the Allahabad High Court in Hanuman Prasad v. Indrawati(4) (the decision under appeal in  this  case)  was  incorrect, and  S.  14  of  the  Hindu Succession  Act,  1956 did not extend  to  property  already alienated by a Hindu female.  This Court accordingly allowed the appeal, and reversed the decree of the Patna High Court. The  effect  of  this  decision is that  it  is  open  to  a reversioner  to  maintain a suit for a declaration  that  an alienation  made by a Hindu female limited owner before  the coming  into force of the Hindu Succession Act.,  1956,  was without  legal  necessity  and  was  not  binding  upon  the reversioners.   It follows that the High Court was in  error in holding that the present suit was not maintainable  since the coming into force of the Hindu Succession Act, 1956. But  the  contesting respondents raise  certain  preliminary objections,  and  they  contend that the  appeal  should  be dismissed. The  first preliminary objection is that the three  sons  of Mst.   Indrawati  and the two sons of Mst.  Radha  Rani  are improperly  joined  as  respondents  Nos. 8  to  12  in  the petition  of  appeal.   Respondents Nos. 8 to  12  were  not parties  to  the appeal before the High Court, nor  was  any order  obtained  permitting their joinder in the  appeal  to this  Court.   The contesting respondents,  therefore,  pray that  the  names of respondents Nos. 8 to 12 be  struck  off from  the  record.  The appellant does not  object  to  this prayer.  We direct accordingly that the names of respondents Nos. 8 to 12 be struck off from the record. (1)  [1959] Supp.  I S.C.R. 968, 975-976. (2)  Civil  Appeal  No. 130 of 1960 decided on  October  15, 1962. (3)  A.I.R. 1958 Patna 319 (4) A.I.R. 1958 All. 304. 5 The  next  preliminary  objection is that  the  petition  of appeal  is  a nullity as Mst.  Bhagwait, a dead  person  was impleaded as a party respondent therein.  As Mst.   Bhagwati was  dead  on  the date of the filing  of  the  petition  of appeal,  she  could  not be shown as a  respondent  in  this appeal.   But  the  appeal may  proceed  against  the  other respondents  on  the footing that Mst.  Bhagwati  is  not  a party to the appeal. The  next  preliminary  objection  is  that  the  appeal  is defectively  constituted  and  is not  maintainable  in  the absence  of the heirs of Mst.  Bhagwati.  The heirs of  Mst. Bhagwati are Mst.  Radba Rani and the sons and daughters  of Mst.  Indrawati.  The appellant did not obtain any order  of Court substituting the heirs of Mst.  Bhagwati in her place. Besides  the three sons of Mst.  Indrawati who are shown  as respondents  Nos. 10, 11 and 12 in the petition  of  appeal, Mst.   Indrawati left another son, Lallu also known  as  Ram Prasad  and two daughters, Ram Dulari and Vimla.  Labu,  Ram Dulari and Vimla are not parties to the appeal.  Respondents Nos. 10, 11  and 12 were improperly added as parties in  the petition of appeal and their names must be struck off.   The

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result  is  that  none of the sons  and  daughters  of  Mst. Indrawati  are parties to the appeal.  It follows  that  all the  heirs of Mst.  Bhagwati are not parties to the  appeal, and  the  question  is whether  the  appeal  is  defectively constituted in their absence. In this connection, it is necessary to consider whether  the heirs of the widow were necessary parties to a suit  against the alienee either for a declaration that the alienation  is void beyond her lifetime or for possession of the  alienated property.   In the case of an alienation by a  Hindu  widow, without legal necessity, the reversioners were not bound  to institute  a  declaratory suit during the  lifetime  of  the widow.   They  could wait until her death and then  sue  the alienee  for possession of the alienated  property  treating the alienation as a nullity without the intervention of  any Court.  See Bijoy Gopal Mukherji v. Krishna Mahishi Debi(1). To  such  a suit by the reversioners for possession  of  the property  after  the death of the widow, the  heirs  of  the widow  were not necessary parties.  The  reversioners  could claim  no  relief against the heirs of the widow  and  could effectively obtain the relief claimed against the alienee in their absence.  Instead of waiting until her death, the next reversioner as representing all the reversioners of the last full owner could institute a suit against the alienee for  a declaration that the alienation was without legal  necessity and  was  void beyond her lifetime.  The widow  was  usually added as a party defendant to, (1)  (1907) I.L.R. 34 Cal. 329, 333 P.C. 6 such  a suit.  The widow was certainly a proper  party,  but was she a necessary party to such a suit ? On behalf of  the appellant it is suggested that the widow is not a  necessary party to the suit, and in this connection, reference is made to  Illustration  (e) to S. 42 of the Specific  Relief  Act, 1877.  For the purposes of this appeal, it is not  necessary to decide this broad question; it is sufficient to say  that in the case of the death of the widow during the pendency of the  declaratory  suit,  the  heirs of  the  widow  are  not necessary parties to the suit.  Though the widow was  joined as  a party to the suit, no relief was claimed  against  her personally.  On the death of the widow, the entire estate of the last full owner is represented by the plaintiff suing in a representative capacity on behalf of all the reversioners, and  the  plaintiff  can get effective  relief  against  the alienee  in the absence of the heirs of the widow.  In  view of the fact that on the death of the widow, the reversioners become  entitled to possession of the property, in a  proper case  leave  may  be obtained to amend  the  plaint  in  the declaratory   suit  by  ,adding  all  the  reversioners   as plaintiffs  and  by  including in the plaint  a  prayer  for possession of the property.  If the plaint were amended  and the  suit  were  converted into one for  possession  of  the property,  clearly  the  heirs of the  widow  would  not  be necessary parties to the suit.  The fact that the plaint  is not amended makes no -difference.  The plaintiff is entitled to  continue the declaratory suit without joining the  heirs of the widow as parties to the suit. As  the reversioners were not entitled to the possession  of the property at the time of the institution of the suit, the next  reversioner could then sue for a bare declaration  and the  proviso to S. 42 of the Specific Relief Act,  1877  did not constitute a bar to the suit.  The declaratory suit does not  become  defective because during the  pendency  of  the suit,  the reversioners become entitled to  further  relief. The next reversioner is entitled to continue the declaratory

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suit;  but in the absence of an amendment of the  plaint,  a decree  for possession of the property cannot be  passed  in the  suit,  and  if the reversioners are  to  get  any  real benefit,  they must institute a suit for possession  of  the property within the period of limitation. Had Mst.  Bhagwati died during the pendency of the suit, her heirs  would  not have been necessary parties to  the  suit. The  position  is  not altered because  the  suit  has  been dismissed  on  appeal  by a decree of the  High  Court,  and during  the pendency ,of the further appeal to  this  Court, Mst.  Bhagwati died, and the -appeal against her has abated. The appeal against the surviving respondents has not abated, and we think that the appeal is not 7 defectively constituted in the absence of the heirs of  Mst. Bhagwati.   In  the appeal to this Court, Mst.   Radha  Rani asks  for the identical relief which the original  plaintiff sought  in  the suit.  She can get effective relief  in  the appeal in the absence of the heirs of Mst.  Bhagwati just as the  original plaintiff could obtain the relief in the  suit in  their absence.  The fact that the suit was dismissed  by the  High Court in the presence of Mst.  Bhagwati  makes  no difference.   In  the  suit, the  plaintiff  asked  for  the necessary  relief against the alienees; Mst.   Bhagwati  was joined  as  a party to the suit, but no relief  was  claimed against  her personally.  The High Court dismissed the  suit against the alienees.  The appellant to this Court now seeks for  a reversal of the High Court decree in the presence  of the alienees.  The reversal of the High Court decree in  the absence of the heirs of Mst.  Bhagwati would not lead to the passing of inconsistent and contradictory decrees.  The High Court  did not pass any decree in favour of Mst.   Bhagwati. The  success of this appeal cannot lead to the passing of  a decree  by this Court in conflict with any decree passed  by the  High Court in favour of Mst.  Bhagwati.  The  cause  of appeal   in  this  Court  survives  against  the   surviving respondents,   and  the  appeal  can  proceed  to  a   final adjudication in the absence of the heirs of Mst.  Bhagwati. We  hold that the appeal is not defective on account of  the non-joinder  of  necessary  parties.   Civil   Miscellaneous Petition No. 2219 of 1964 is dismissed, save that we  direct that  the  names of respondents Nos. 8 to 12 be  struck  off from the record. In  the  result, the appeal is allowed,  tile  judgment  and decree, dated September 25, 1957, of the High Court are  set aside, and First Appeal No. 232 of 1942 must now be heard on the merit.-, by the High Court.  The contesting  respondents must pay to the appellant the costs in this Court. Appeal allowed. 8