Holding

Radha was only a limited owner; her gifts and alienations are invalid and do not bind the reversionary heirs, who are entitled to half the estate each.

Summary

Mela Ram died leaving his mother Radha in possession of his property. Radha, a life‑tenant, later gifted and bequeathed portions of the property to her grandson Shiv Dass. The other daughter, Devki, challenged these alienations, claiming that she and her sister Durga were the reversionary heirs entitled to equal halves of Mela Ram's estate. The Punjab High Court had earlier upheld the gift, but the Supreme Court held that Radha was only a limited owner and could not transfer ownership; thus the gift and subsequent alienations were invalid and did not bind the reversionary heirs. The succession opened in 1923, giving Durga and Devki each a half‑share, and the trial court's decree declaring these rights was confirmed. The appeal was dismissed and the parties were ordered to bear their own costs.

Issues considered

Whether Radha became an absolute owner of the property upon her death in 1960 under Section 14 of the Hindu Succession Act, 1956.
Whether the gift deed and will executed by Radha in favour of her grandson Shiv Dass are valid and binding on the other daughter Devki.
Whether the appeal remains maintainable despite the death of a party before the judgment.
Whether the earlier decision in Shiv Dass v. Nand Lal is applicable to the present dispute.

Legislation cited

Code of Civil Procedures. Order 22 Rule 3, s. Order 22 Rule 4
Hindu Succession Act, 1956s. 14, s. 15

Subjects

Hindu Succession Actlife estatelimited ownershipgift deedreversionary heirssuccessionproperty alienationcivil appealspecial leave

Judgment

SHIV DAS AND ORS. A
v.
SMT. DEVKI (DEAD) BY LRS. AND ORS.

MARCH 7, 1995

[K. RAMASWAMY AND B.L. HANSARIA, JJ.) B

Hindu Law-Succession.

Mother succeeding to the estate of son-<Jifting the properties to son of
daughter i.e. grandson-Suit filed by other daughter challenging the gift and C
subsequent alienations-Held: succession opened to the sisters and challenge
valid-Gift deed and alienations not to bind the sister who filed the suit, as
both sisters entitled to equal moiety.

M died and his mother R inherited certain properties which she later
gifted/bequeathed to her grandson and son of one of her two daughters. D
The collaterals challenged the gift. The High Court held that the grand
son had a preferential claim over the collaterals and upheld the validity
of the gift deed.

Appellants' mother died in 1924 and R died in 1960. D, the other
daughter of R filed a suit for declaration that the said gift deed was invalid E
and inoperative, as also the alienations made by the appellant. The appel·
late court affirmed the decree. Second appeal was dismissed by the High
Court. Hence this appeal.

Appellant contended that since R died in 1960, by operation .of
section 14 of the Hindu Succession Act, 1956~ she became the absolute F
owner of the properties; and that she having died intestate after the Act
came into force, appellant being class 'A' heir of his mother, he was entitled
to half share in the property.

Disposing of the appeal, this Court
G
HELD: 1. R was only limited owner and is entitled only to enjoy the
-~
properties during her life-time. Therefore, alienations or gift of the property
or will made by R to anybody even to her grandson, are invalid, inoperative
and do not bind the reversioners or the legal representatives of M. The
succession stood opened in 1923 when M died. The two sisters of M were H
589
J'
590 SUPREME COURT REPORTS (1995) 2 S.C.R.

A nearer in degree to the appellant, the grandson of R. Though the rights of
the appellant qua collaterals were upheld in Shiv Dass v. Nand Lal, AIR
(1932) Lahore 361, by the Division Bench, that does not have any bearing on
the rights of respondent since both the sisters were entitled to the estate left
by their brother M. Then both of them are entitled to succeed to the estate
B of M in equal moiety. Respondent and her legal representatives are entitled
to half the estate left by Mand alienations made by.either R by her will or
gift or alienation by the appellant or anybody by derivative title are invalid,
inoperative and do not bind the respondents. (593-E-G]

2. The decree of the trial court is confirmed and the same may be
C treated as a preliminary decree declaring the rights of the parties. On an
application made to it, the trial court 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 purchaser
with mesne profits. The alienated properties should, however, as far as
D possible, be allotted to the share of the appellant to the extent of their half
share. (593-H, 594-A] .

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 606 of
1978.
E -
From the Judgment and Order dated 14.2.78 of the Punjab and
Haryana High Court in Regular Second Appeal No. 295 of 1968.

V.C. Mahajan and Ms. S. Janani for the Appellants.

S.M. Ashri for the Respondents.
F
The following Order of the Court was delivered :

This appeal by special leave arises from the judgment of the single
Judge of the Punjab and Haryana High Court made in RSA 295/68 dated
G 14.2.78. The property belongs to one Mela Ram who left behind him his
mother-Radha. The suit property consist 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
H West: Kucha Sarbasta and house of Harnam Singh and others as
-1
S. DASS v. DEVKI(D)BYLR.S. 591

shown in the plan filed herewith by letters ABCDEFG, situated in ·A
village Kahnuwan, Teh; and 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, B
West: Shop of Hukum Chand previously of Shri Durga Dass shown
in the map filed herewith by letters ABCD situated in village
A Kahnuwan, Tehsil and Distt. Gurdaspur.
- {' (c) One pacca shop bounded on the North: Thara building on the
South: thoroughfare. On the East: Shop of Chaiju Ram previously
c
,..,
-
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 D
herewith; Khata No. 1, 2, 13, 19, 16, 3, 4, 8, 7, 18, 11, 12, 119, 120,
122, 111, 125, 124, 123, 116, 117, Khatoni Nos. 1, 2, 14, 20, 19, 4,
5, 9, 8, 19, 12, 13, 124, 125, 127, 116, 130, 129, 128, 121, 122, Rect.
19 Killa Nos. 20/2 Rect. no. 40 Kila No. 20 Rect. Nil Killa No. 3/3
Rect. No. 4, Kita Nos. 17, 24, 25, Rect. No. 20 Kita Nos. 9/2, 12
Rect No. 31 Killa Nos. 11/2, 12/1, 19/2, Rect Nos. 40 Killa Nos.
E
22/2, 23/1, Rect No. 42 Killa No. 3/1 Rect No. 30 Killa No. 1/4
Rect. No. 20 Killa No. 1513, Rect No. 30 Killa No. 1/3 Rect. No.
19 Killa No. 11/1, Rect No. 20, Killas No. 15/4 Rect. No. 30 Killas
I
No.1/2, 11/2, l/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 F
No. 6/2, Rect. No. 20, Killas No. 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
G
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.

Radha, by a deed of gift dated February 28, 1922, gifted the property H
592 SUPREME COURT REPORTS (1995] 2 S.C.R.

A items 1, 2 and 3 to her grandson by name Shiv Dass, the appellant herein,
son of Durga Devi, one of the two daughters of Radha. She also be-
queathed item No. 4 by a will, Ex.D-2. It would appear that the 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
B preferential claim over the collaterals as a reversioners and, therefore, by
operation of Punjab Act 2 of 1929, gift of the ·property to him was held to
be valid. ~

It would appear that mother of Shiv Dass died in 1924. Radha died
C 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,
D 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.

Shri S.M. Ashri, learned counsel appearing for the respondents,
E 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
F 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 by 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
G be. It is enough that the legal representatives of the deceased party are
impleaded eo-nominee in the appeal filed against the judgment to repre-
sent the estate of the deceased respondent/appellant. Though the appel-
lants did not impleaded in the appeal the legal representatives of Devki
Devi as party respondents, since admittedly, the respondents did make an
H application in this court to bring them on record as heirs of Devki Devi
S. DASS v. DEVKI (D) BY L.R.S. 593

and on April 6, 1979, the application was allowed. Whatever initial defect A
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 ~ackdrop of
the facts and circumstances of this case.
B
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 proper-
ties. She having died intestate after the Act came ~to 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. C
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.15 of the Act cannot
be applied.
D
The crucial question is whether Devki Devi is entitled to challenge
the gift and bequest by will made by Radha in favour1 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, are E
invalid, inoperative and do not bind the reversioners or the legal repre-
sentatives of Mela Ram. The succession stood opened in 1923 when Mela
Ram died. Durga Devi and Devki Devi are sister 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
Lal (supra) by the Division Bench, that does not have any bearing on the F
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 G
Dass or anybody by derivative title are invalid, inoperative and do not bind
Devki Devi and the respondents in the appeal.

The decree of the trial court is accordingly confirmed and the same
· may be treated as a preliminary decree declaring the rights of the parties. H
594 SUPREME COURT REPORTS (1995) 2 S.C.R.

A o{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 respon- ·
dents stood alienated, the respondents would be entitled to recover pos-
session of the properties allotted to their share, from the purchaser with
mesne profits. The alienated.properties should, however, as far as possible,
B be allotted to the share of the appellant to the extent of their half share.

The appeal is accordingly disposed of. In the circumstances, parties
are directed to bear their own costs.

G.N. Appeal disposed of.