Holding

The compromise decree is binding and enforceable; remote reversioners may sue under it, and their dormant rights become operative upon the death of the nearer reversioner.

Summary

Sunder, owner of joint family property, gifted part of his land to Brij Lal. Remote reversioners (the appellants) challenged the gift and a suit was compromised, granting them a one‑eighth share after Sunder's death. After Sunder died in 1964, the appellants sued to enforce the compromise decree, but Brij Lal contended that the suit was not maintainable because Sunder's sister Lilan, a nearer reversioner, was alive. The trial court dismissed the suit, the subordinate judge and a single High Court judge upheld it, but a Division Bench set aside that order, treating the decree as merely declaratory and allowing the objection. The Supreme Court held that the compromise decree was binding, not merely declaratory, and that the appellants' rights, though dormant while a nearer reversioner lived, became operative upon her death. Exercising powers under Order 41 Rule 33 CPC and Article 142 of the Constitution, the Court allowed the appeal, restoring the single judge’s decree.

Issues considered

The suit filed by remote reversioners under a compromise decree is maintainable despite the existence of a nearer reversioner alive under the Hindu Succession Act.
Whether the compromise decree is a declaratory decree that can be set aside on the ground of benefiting a nearer reversioner.
Whether the rights of remote reversioners remain dormant while a nearer reversioner is alive and become active upon that reversioner's death.
Whether the Supreme Court may grant a decree under Order 41 Rule XXXIII CPC and Article 142 of the Constitution in such circumstances.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule XXXIII
Constitution of Indias. Article 142
Hindu Succession Act, 1956

Subjects

Hindu Succession Actreversionerremote reversionercompromise decreedeclaratory decreejoint family propertysuccessionequityOrder 41 Rule 33Article 142maintainability of suit

Judgment

SH. BAKSHI RAM AND ORS. A
v.
SH. BRIJ LAL

JULY 19, 1994

[R.M. SAHAI AND B.L. HANSARIA, JJ.] B

Hi11du Law : Hi11du Successio11 Act, 1956 :-<Jijt executed i11 favour of
a distallt collateral-Remote rei"ersioners c/Jtil/e11gi11g t/Je gift-Compromise
arrived at a11d decree obtained accordi11gly-Remote reversio11ers fili11g suit
claiming t/Je property-Objection by t/Jird party as to mai11tainabi/ity of the C
suit on tire ground that the nearer reversioners not a party-Held, cannot be
raised-Rights of remote reversioners-Held: Remained dormant during life-
l.
time of nearer reversioners and got activated after her death.

One 'S' was the owner of extensive joint family property. He executed
a gift in favour of a distant collecteral. The respondent and the appellants D
who were the remote reversioners challenged the .same by filing a suit. The
suit was compromised between the parties, as a result of which 15 Karnals
and 15 Marlas i.e., 1/8th share of the land which was gifted by 'S' in favour
of the respondent was to be given to the appellants after the death of 'S';
some· share was given to the brother of the respondent and some to the - E
respondent. The suit was decreed in terms of the compromise.

'S' died in 1964 and the appellants filed a suit for their share under
the compromise decree. Respondent resisted the claim inter alia on the plea
that 'L' the sister of 'S' was alive and so the appellants had no right to sue
or recover possession of the land in dispute. The trial Court dismissed the F
suit, but the Subordinate Judge decreed it holding that the appellant was
entitled to recover possession in terms of the compromises decree .

.Cn appeal to the High Court, a Single Judge confirmed the appellate
decree holding that 'L' was not a party to the suit and the respondent could G
not raise any objection as to the maintainability of the suit. On further
appeal the Divisfon Bench set aside the order of the Single Judge, on the
ground that since the decree obtained by the appellants was declaratory
and would also benefit 'L', it did not prevent the respondent from raising
objection that the decree being for the benefit of the entire body of
reversioners and 'L' being nearer than the appellants, the suit was liable H
795
796 SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R.

A to be dismissed. Against this decision of the Division Bench appellants
preferred the present appeal.

Allowing the appeal, this Court

HELD : 1. Admittedly the rights of the parties flowed from the com·
B promise decree. It was not a declaratory decree as ordinarily understood.
The rights acknowledged and declared were not only of the appellants but
even of brothers of the respondent who were not donees, and, as such, rank
outsider. In any cas.e the compromise decree having become final it was
binding between the parties. Respondent could not wriggle out of its bind·
C Ing effect. In equity a person drawing beneflt from a transaction Is not
ptrmltted to escape from the disadvantage if any flowing from it.
[798·G·H; 799-A-B]
2. Law bas to promote justice. The courts of equity and justice cannot
uphold an unfair stand. The respondent cannot be permitted to reprobate
to bis advantage. The binding effect of the compromise decree could not be
D taken away as It was to operate after death of the donor. May be a person
with a better right, for instance 'L' could sue the appellants and claim the
properly being nearer but that could not dilute either the effect of the
compromise decree, even though in the nature of declaratory decree, nor It
could clothe the allenee with any right to resist the claim of the remote
E reversioner for recovery of possession on the ground that the next rever·
sioner being alive the suit was not maintainable. The recovery of possession
by the appellants could even be for the benefit of all the reversioners
including the next reversioner, but it certainly did not adversely effect the
suit filed by them for recovery of pussession against a third person.
[799-C-E]
F
3. When succession opened on the death of 'S' the donor, it would
have been governed by the law in force. 'L' being sister and nearer than
the appellants could claim by virtue of the decree that the right and
interest of alienor developed on her. But if she did not claim, it could not
recoil against the appellants and in favour of stranger. [SOO·B·C]
G
Ram Chander Darak v. Ganeshdas Rathi & Ors. AIR (1984) SC 42,
distinguished.

Giani Ram & Ors. '" Ramji Lal & Ors., [1963] 3 SCR 944 referred to.
-
H 4. 'L' died during the pendency of the appeal in this Court. Therefore,
BAKSHI v. BRIJ LAL [SAHA!, J.] 797

the rights of the appellants even if they were dormant due to nearer A
reversioner being alive got activated after her death and it is appropriate
in exercise of power both under Order 41 Rule XXXIII C.P.C. and under
Article 142 of the Constitution to grant a decree in favour of appellants.
Moreover the appellants' right flowing from the compromise decree had
at no point of time been denied by 'L' during her life time. (800-C-D) B
Clv!L APPELLATE JURISDICTION: Civil Appeal Nos. 992 of
1975.

From the Judgment the Order dated 28.7.72 of the Himachal
Pradesh High Court in L.P.A. No. 249 of 1969. C

Uma Datta for the Appellants.

Sunil Kumar Dogra and P.H. Parekh for the Respondent.

The Judgment of the Court was delivered by
D
R.M. SAHA!, J. This appeal is directed against the judgment and
order of the High Court of Himachal Pradesh. Even though a certificate
was granted by the High Court under Article 133(1) of the Constitution of
India as there was no decision of this Court on the question whether the
rights of a reversioner to get a declaratory decree stands frustrated after
E
coming into force of the Hindu Succession Act the real issue is if the
appellants who were remote reversioners were competent to sue on the
compromise decree obtained by them in lifetime of the female next rever -
sioner who become owner under the Hindu Succession: Act.

It has been found by all the Courts below that one Sunder was owner - F
of extensive property which were in nature of a joint family property. He
executed a gift in favour of a distant collateral Brij Lal which was chal-
lenged by the appellants who were the remote reversions. The suit was
compromised between parties that is the appellants, Sunder the alienor and
Brij Lal, the alinee, and _his brothers. As a result of the compromise 15
Kanals and 15 Marlas i.e., 1/8th share of the land which had been the G
subject of gift by Sunder in favour of Brij Lal was to be given to the
appellants after the death of Sunder. Some share was given to the brothers
of Brij Lal as well. Other property which was the subject -matter of gift was
to go to the share of Brij Lal The compromise entered between the parties
was given shape of a decree for declaration in terms of the compromise. ti
798 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A Sunder died in 1964. The appellants, thereafter, filed this suit for their
share under the compromise decree which was resisted by Brij Lal and one
of the pleas raised by him was that Lilan, sister of Sunder being alive, the
appellants had no right to sue or recover possession of the land in dispute.
All the courts agree that Lilan was a sister of sunder and she was alive on
the date when Sunder died. But they differed on the effect in law of her
B
being alive. The Trial Court dismissed the suit whereas the Subordinate
Judge decree it. It was held that the appellant was· entitled to recover
possession in terms of the compromise decree arrived between parties. The
appellate decree was confirmed by the learned Single Judge. It was held
that the appellants were enforcing the right which was given to them as a
C result of the compromise in the earlier suit. It was further held that Lilan
was not a party to the suit and whatever may be her rights, Brij Lal, the
defendant, could not raise any objection of non-maintainability of the suit.
But the order of the learned Single Judge was set aside in further appeal
in letters Patent by the Division Bench. It was held that although the decree
D obtained by the appellants was declaratory which enured even the benefit
of Smt. Lilan it did not prevent Brij from taking the objection that the
decree being for the benefit for entire body of reversioners and Smt. Lilan
being nearer than the appellants, the suit was liable to be dismissed.

A reversioner under customary Hindu Law had a right to challenge·
E the alienation if it was not for legal necessity. Such a right vested in respect
of joint family property as well. The appellants, who were remote rever-
sioners, therefore, could file the suit against a stranger. Even the High
Court did not dispute that the suit filed by the remote reversioner was
maintainable. A decree in such suit against alienation enured for the
benefit of the entire body of reversioners and it is only a nearer reversioner
F
who can oust the remote reversioner either in the same suit or in a latter
suit. But a third person or the alinee could not claim that the suit was not
maintainable as it was filed by a distant reversioner. The appellants had,
however, been non-suited as the declaratory decree obtained by them could
not be enforced as Lilan the next reversioner was alive.
G
How far this enunciation of law is correct? Could the respondents
raise the plea of incompetency of the suit? What was not disputed was that · ·~
the rights of the parties flowed from the compromise decree. It was not a
declaratory decree as ordinarily understood. The rights acknowledged and
H declared were not only of the appellants but even of brothers of Brij Lal
, BAKSHI v. BRIJ LAL [SAHA!, J.] 799

who were not donees, and, as such, rank outsider. In any case the com- A
promise decree having become fmal it was binding between the parties.
Brij Lal could not wriggle out of its binding effect. In equity a person
drawing benefit from a transaction is not permitted to escape from the
disadvantage if any flowing from it. The respondent having prevented the
appellants from getting a declaration that the entire gift deed was invalid
B
in lieu of which they gave up, because of the compromise, their claim for
the property in dispute cannot be permitted to turn rounded now and take
the stand. "Heads I win, tails you loss". Law has to promote justice. The
courts of equity and justice cannot ·uphold snch an unfair stand. The
respondent cannot be permitted to reprobate to his advantage. The binding
effect of the compromise decree could not be taken away as it was to c
operate after death of the donor. May be a person with a better right, for
instance Lilan, could sue the appellants and claim the property being
nearer but that could not dilute either the effect of the compromise decree,
even though in nature of a declaratory decree, not it could clothe the
alinee with any right to resist the claim of the remote reversioner for D
recovery of possession on the ground that the next reversioner being alive
the suit was not maintainable. The recovery of possession by the appellants
could even be for the benefit of all the reversioners including the next
reversioner, but it certainly did not adversely affect the suit filed by them
recovery of possession against a third person.
E
Relying on Giani Ram & Ors v. Ramji Lal & Ors., [1963] 3 SCR 944,
it was urged for the respondent that the property could be restored to the
estate of the alienor only if it was filed by a reversioner who was competent
to sue. The learned counsOI urged that since the appellants were remote
reversioners they could not be considered to have competent to sue, and F
so, the decree obtained by them was not enforceable. Support_ was drawn
also from Ram Chander Darak v. Ganeshdas Rathi & Ors., AIR (1984) SC
42 wherein it was held that claim for apportionment of compensation by
reversivner of last male owner in respect of acquired property was not
maintainable as the widow of the last male owner was alive. No assistance
could be drawn from the latter decision as appointment of compensation
G
is between persons who are entitled to claim it. The widow of the last male
owner being alive the compensation could not have been paid to any other
person. It was not a case where the reversioner was claiming against a
third person and if the claim would have succeeded it would have gone-to
the benefit of aU the reversioners. The requirement under the Land Ac- H
800 SUPREME COURT REPORTS (1994) SUPP. 1 S.C.R.

A quisition Act is to pay compensation to the person entitled. Once it was
established that the widow of the last male owner was alive and that too
after coming into force of Hindu Succession Act it was she and she alone
who was entitled to compensation and any other person had not right to
it. In Giani Ram (supra), it was held by this Court that the effect of such
B a declaratory decree is that the property is reverted to alienors estate.
Therefore, when succession opened on the death of Sunder, the donor, it
would have been governed by the law in force. Lilan being sister and nearer
than the appellants could claim by virtue of the decree that the right and
interest of alienor devolved on her. But if she did not, it could not recoil
against the appellants and in favour of stranger.
c Further, Lilan undisputedly died during the pendency of the appeal
in this Court. Therefore, the rights of the appellants even if they were
dormant due to nearer reversioner being alive got activated after her death
and it is appropriate in exercise of power both under Order 41 Rule
XXXIII and under Article 142 of the Constitution to grant a decree in
D favour of appellants. May it be stated that appellants' right flowing from
the compromise decree had at no point of time been denied by Lilan
during her life time.

In the result the appeal succeeds and is allowed. The order passed
E by the Division Bench in the Letters Patent is set aside and that of the
learned Single Judge is restored.

Parties shall bear their own costs.

G.N. Appeal allowed.