Holding

A Hindu widow who, under Section 14 of the Hindu Succession Act, 1956, becomes an absolute owner, has full capacity to devise her property by will, and a prior gift declared ineffective does not divest her of ownership.

Summary

The widow Mst. Shem inherited her husband's property in 1942 with only a life interest. In 1943 she executed a deed of gift in favour of Shri Dhari, the father of the appellants, but a suit filed by the respondents led to a compromise decree declaring the gift ineffective and providing that the land would be divided after the widow's death. The Hindu Succession Act, 1956 came into force in 1956, converting the widow's limited estate into an absolute estate, thereby giving her full testamentary capacity. In 1959 she executed a will bequeathing all her properties to the appellants, the sons of Dhari. The High Court held that the respondents were entitled to half of the gifted land, but the Supreme Court allowed the appeal, holding that the earlier gift was ineffective, the widow became an absolute owner after 1956, and therefore her will was valid and the appellants were entitled to the property.

Issues considered

Whether the Hindu Succession Act, 1956 confers on a Hindu widow the capacity to devise her property by will after she becomes an absolute owner.
Whether the deed of gift executed in 1943, declared ineffective by the compromise decree, affects the widow's ownership and her right to bequeath the property.
Whether the High Court correctly interpreted the compromise decree and the rights of the reversioners.
Validity of the will executed by the widow in 1959.

Legislation cited

Hindu Succession Act, 1956s. 14, s. 14(1)

Subjects

Hindu Succession Actlimited ownershiplife interestwilltestamentary capacitygift deedcompromise decreereversionary rightsabsolute estatesuccession law

Judgment

GOPAL SINGH & ANR.
A
v.
1-·
DILE RAM (DEAD) BY LRS. & ORS.

OCTOBER 6, 1987

B [SABYASACHI MUKHARJI AND G.L. OZA, JJ.]

Hindu Succession Act, 1956: s.14--Properties inherited by wife y
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.
c
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
D 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 appel-
late court passed a compromise decree declaring the gift deed ineffec-
live in respect of the land. Subsequent after the enactment of the Hindu
Succession Act, the widow executed a will in respect of all her proper-
~
E ties 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,

F 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 l

2.1 When the widow inherited the properties from her husband
G 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 k~
have been competent to bequeath the properties by will. However, by
the compromise decree it was declared that the purported gift deed was
H legally invalid. The effect of that declaration was that she continued to
378
GOPAL SINGH v. DILE RAM [MUKHARJI, J.] 379

be the limited owner of the properties thereafter until 1956 when by
4 A
virtue of s. 14 of the Act her limited estate became absolute estate. She was,
therefore, competent to dispose it of when she made the will. f381G-H; 382EI

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 B
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 appellant'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 c
-} and properly executed. If that is so, then the claim of the appellants,
who are the legatees under the will, cannot be disputed. [3828]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1686
of 1978. D

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.
--1\
E
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 F
dated 27th April, 1978.
-"""-
In order to appreciate the controversy it is relevant to refer the
few facts. Prior to 1943 Mst. Shem @ Bhushehri was having life in-
terest 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 G
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. l l.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 'Yhich the gift was made
to Shri Dhari or in the alternative to get a declaration that the deed of H
380 SUPREME COURT REPORTS [1988] 1 S.C.R.

gift should be cancelled on the ground of non-fulfilment of the condi-
A tion 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. Shem
@ Bhushehari, since deceased, was the widow of Shri Thalia who had
B 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. Shem
@Bhushehari shall be ineffective against the reversionary rights of the
plaintiffs (respondents herein) after the life time Mst. Shern @
Bhushehari. On 9.6. 1950 Shri Hari Ram and Mst. Shern@ Bhushc-
c hari, 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 Com-
D promise Deed, a compromise decree was passed allowing t\Je 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
E 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. Shem @ 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.

F 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. Shern @ }r-
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.

G On 9.3.59 Mst. Shem @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 k .~
died during the life time of Mst. Shem @ Bhushehari. Mst. Shem 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
H by the Additional Subordinate Judge, Mandi. On 3.5.69 the District
GOPAL SINGH v. DILE RAM [MUKHARJ!, J.] 381

~ Judge, Mandi, dismissed the first appeal against the judgment and A
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. B

It is pertinent to note that the compromise decree reads as
follows:

"I allow the appeal of the appellants and modify the judg-
ment of the Trial Court to the extent that Gift Deed in
respect of the land measuring 21-15-17 bighas comprising C
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 D
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 E
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 F
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 th•~ 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 G
said Act her limited estate became absolute estate. The position there-
fore 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 H
382 SUPREME COURT REPORTS [1988] 1 S.C.R.

A ineffective. The effect of that declaration was that she continued to be j'-.-
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.
B It 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.LR. 1972 H.P. 69 where it was held
C 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
D 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
E 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
-
F parties will pay their own costs.

P.S.S _ Appeal allowed,