Full Judgment Text
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PETITIONER:
SHIV DASS & ORS.
Vs.
RESPONDENT:
SMT. DEVKI & ORS.
DATE OF JUDGMENT07/03/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1995 SCC Supl. (2) 658 JT 1995 (3) 577
1995 SCALE (2)562
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1. This appeal by special leave arises from the judgment
of the single Judge of the Punjab & Haryana High Court made
in RSA 295/68 dated 14.2.78. The property belongs to one
Mela Ram who left behind him his mother-Radha. The suit
property consists of -
(a) One pacca 2 and 3 storeyed house bounded
on the North: Shop of Abanshi Ram previously
of Vir Bhar, on the South: Khola of Nanak
Singh and others on East: House of Nanak
Singh, on the West: Kucha Sarbasta and house
of Harnam Singh and others as shown in the
plan filed herewith by letters ABCDEFG, situ-
ated in village Kahnuwan, Teh. & Distt.
Gurdaspur.
(b) One pacca shop with verandha and Thara
bounded as follow:-
North: Thoroughfare, South: Shop of Sohan
Lal previously of Lal Singh, East: Shop of
Shri Mulk Raj previously of Mohan Lal, West:
Shop of Hukum Chand previously of Shri Durga
Dass shown in the map filed herewith by
letters ABCD situated in village Kahnuwan,
Tehsil and Distt. Gurdaspur.
(c) One pacca shop bounded on the North: Thara
building on the South: thoroughfare. On the
East: Shop of Chajju Ram previously of Nand
Lal, West: Shop of Sat Pal previously of
Bishan Dass situated in the village Kahnuwan,
Tehsil and Distt. Gurdaspur.
(d) Land measuring 123 kanals 15 marlas
situated in village Chak Yaqub as given in the
Jamabandi for 1959-60 which copy is filed
herewith; khata No. 1, 2, 13, 19, 16, 3, 4, 8,
7, 18, 11, 12, 119, 120, 122, 111, 125, 124,
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123, 116, 117, Khatoni Nos. 1,2, 14, 20,
19,4,5,9,8,19,IZI3,124,125,127,116,130,129,128,
121, 122, Rect. 19 Killa No.20/2 Rect. No. 40
Kila No. 20 Rect. Nil Killa No. 3/3 Rect.
No.4, Kila Nos. 17, 24, 25, Rect. No.20 Kila
Nos.9/2, 12 Rect No.31 Killa Nos. 1 1/2, 12/1,
19/2, Rect Nos.40 Killa Nos. 22/2, 23/1, Rect
No.42 Killa No.3/1 Rect No.30 Killa No. 1/4
Rect. No.20 Killa No.15/3, Rect No.30 Kill
NO. 1/3 Rect. No. 19 Killa No. II/ 1, Rect.
No.20, Killas No. 15/4 Rect.No.30 Killas
No.1/2, 11/2, 1/2.3 Rect No.17 Killas Nos.
4/2, Rect.No.24, Killas No.2/1 Rect No.40
Killas Nos. 19/3, 22/3, 42/2, Rect. No.41
Killas No.6/2, Rect No.20, Killas Nos. 13/2,
14/1, 17/4, 18/4, Rect No.20 Killa No. 13/1,
Khasra Nos.118, 1015, 430, 743, 881, situated
in village Chak Yaqub Tehsil Gurdaspur as
entered in Jamabandi 1959-60.
(e) Land measuring 27 kanals 9 marlas Khata
No.6, 18, Khatauni Nos. 12, 39 Rect. No. 24
Killas Nos. 15, 16, 5,6, situated in village
Daowal, Teh. & Distt Gurdaspur as entered in
Jamabandi 1959-60.
2. Radha, by a deed of gift dated February 28, 1922,
gifted the property items 1,2 & 3 to her grand son by name
Shiv Dass, the appellant herein, son of Durga Devi, one of
the two daughters of Radha. She also bequeathed item No.4
by a will Ex.D-2. It would appear that the
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collaterals had challenged the gift which was the subject-
matter of the decision of the Division Bench of the Lahore
High Court in Shiv Das v. Nand Lal, AIR 1932 Lahore 361.
The High Court held that grand son of Radha had a
preferential claim over the collaterals as a reversioner
and, therefore, by operation of Punjab Act 2 of 1929, gift
of the property to him was held to be valid.
3. It would appear that mother of Shiv Dass died in 1924.
Radha died on December 21, 1960. Devki Devi, other daughter
of Radha, filed the suit for declaration on March 12, 1965,
that the gift deed dated February 28, 1922 was invalid and
inoperative; so were the alienations made by Shiv Dass,
which did not bind her. The trial court decreed the suit in
1967. On appeal, the Addl. District Judge, by judgment and
decree dated 3.2.68, affirmed the decree of the trial court
and dismissed both the appeals of the appellant as also of
Devki Devi. The second appeal was dismissed. Thus this
appeal by special leave.
4. Shri S.M. Ashri, learned counsel appearing for the
respondents, raised a preliminary objection that the suit
had abated as against Devki Devi and, therefore, this appeal
had stood dismissed on that ground. We find no force in the
contention. It Is now clear from the record that the High
Court heard the second appeal on 4.1.78 and delivered the
judgment on 14.2.78. In the meanwhile, Devki Devi died in
January 1978. The special leave petition was filed in this
court on 13.3.78. The only question would be whether the
appeal was properly laid. It is now settled law that when
one of the parties dies, after the appeal was heard but
before the judgment was pronounced, the aggrieved person
need not file an application in the High Court under Order
22 Rule 3 or 4 CPC to bring on record’ the legal
representatives of the deceased-appellant or respondent, as
the case may be. It is enough that the legal
representatives of the deceased party are impleadcd co-
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nomince in the appeal filed against the judgment to
represent the estate of the deceased respondcnt/appellant.
Though the appellants did not implead in the appeal the
legal representatives of Devki Devi as party respondents,
since admittedly, the respondents did make an application in
this court to bring them on record as heirs of Devki Devi
and on April 6,1979, the application was allowed, whatever
initial defect that crept in laying the appeal, the same got
cured by an order of this Court at the instance of the
respondents. In that view, the question of abatement does
not arise. The appeal, therefore, was validly laid in the
backdrop of the facts and circumstances of this case.
5. It is contended by Shri V.K. Mahajan, learned senior
counsel, that since Radha died on 21.12.60, by operation of
s. 14 of Hindu Succession Act, 1956, (for short, ’the Act’),
she became absolute owner of the properties. She having
died intestate after the Act came into force, appellant-Shiv
Dass has become class ’A’ heir of his mother and that,
therefore, he is entitled to half share in the property.
This contention is not totally correct. It Is seen that
when the Act came into force, she was not in possession of
the property. Therefore, s. 14(1) of the Act is not
attracted and she did not become absolute owner. As she did
not die intestate, s. 1 5 of the Act cannot be applied.
6. The crucial question is whether
580
Devki Devi is entitled to challenge the gift and bequest by
will made by Radha in favour of Shiv Dass. It is seen that
Radha is only limited owner and is entitled only to enjoy
the properties during her life-time. Therefore, any
alienation or gift of the property or will made by Radha to
anybody even to her grand son, arc invalid, inoperative and
do not bind the reversioners or the legal representatives of
Mela Ram. The succession stood opened in 1923 when Mela Ram
died. Durgi Devi and Devki Devi are sisters of Mela Ram.
Therefore, they are nearer in degree to Shiv Dass, the
grand-son of Radha. Though the rights of Shiv Dass qua
collaterals were upheld in Shiv Dass v. Nand Lai (supra) by
the Division Bench, that does not have any bearing on the
rights of Devki Devi, since Durga Devi and Devki Devi are
entitled to the estate left by their brother Mela Ram. Then
both of them are entitled to succeed the estate of Mela Ram
in equal moiety. Devki Devi and her legal representatives
are entitled to half the estate left by Mela Ram and any
alienation made by either Radha by her will or gift or
alienation by Shiv Dass or anybody by derivative title arc
invalid, inoperative and do not bind Devki Devi and the
respondents in the appeal.
7. The decree of the trial court is accordingly confirmed
and the same may be treated as a preliminary decree
declaring the rights of the par-ties. On an application
made to it, it would proceed further in the matter to pass
final decree. If properties in excess of the half share of
the respondents stood alienated, the respondents would be
entitled to recover possession of the properties allotted to
their share, from the purchasers with mesne profits. The
alienated properties should, however, as far as possible, be
allotted to the share of the appellant to the extent of
their half share.
8. The appeal is accordingly disposed of In the
circumstances, parties are directed to bear their own costs.
645