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Himachal Pradesh High Court · body

2015 DIGILAW 1260 (HP)

Kewal Ram dead through LRs. Jeet Ram v. Singh Ram

2015-09-07

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This regular first appeal is directed against the judgment and decree of the learned Addl. District Judge, Shimla, H.P. dated 03.10.2001, passed in Civil Suit No.52-S/I of 95/88. 2. “Key facts” necessary for the adjudication of this regular first appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs) have instituted Civil Suit bearing No. 52-S/I of 95/88, against the appellants-defendants (hereinafter referred to as the defendants) for possession and declaration. The Civil Suit bearing No. 124-S/1 of 95/93, titled as Sita Ram & ors. vrs. Singh Ram and others, was also filed. Both these suits were instituted in this Court. These suits were transferred to the Court of learned District Judge, Shimla, vide order dated 25.5.1995. Since the subject matter of dispute in both the suits was same and the main controversy inter se the parties pertains to the various alienations made by one Smt. Suni, widow of Sh. Daut, hence, these suits were consolidated by order dated 10.3.1999. Now, as far as suit No. 52-S/I of 95/88 is concerned one Daut son of Karmu was owner of the suit property as per the details given in the plaint. He died prior to 1948, leaving behind three widows, namely, Smt. Jamni, Smt. Sadho and Smt. Suno. The first two widows, namely, Smt. Jamni and Smt. Sadho, remarried and third widow Suno had become limited owner of the property left behind by Sh. Daut. Smt. Suno gifted the suit property vide a registered gift deed dated 21.4.1948 to Sh. Paras Ram, son of Sh. Parma. Later on, Paras Ram donee of the suit property situated in Chak Roni sold the same to one Sh. Singh Ram, son of Sh. Nanku. Sh. Singh Ram further sold 11-03 bighas, part of the suit property, in Chak Chamrot to Sh. Daulat Ram. These alienations were challenged by Sh. Nanku and others, claiming themselves to be the reversioners under the Hindu Law in respect of estate of Sh. Daut son of Karmu in the Court of learned Sr. Sub Judge, Mahasu, vide civil suit titled as Nanku and others vrs. Rati Ram and ors. The same was decreed on 26.4.1954 by the learned Sr. Sub Judge, Mahasu, vide judgment Ext. PW-1/1 and decree sheet Ext. PW- 1/2. Daut son of Karmu in the Court of learned Sr. Sub Judge, Mahasu, vide civil suit titled as Nanku and others vrs. Rati Ram and ors. The same was decreed on 26.4.1954 by the learned Sr. Sub Judge, Mahasu, vide judgment Ext. PW-1/1 and decree sheet Ext. PW- 1/2. The defendants preferred an appeal against the judgment and decree dated 26.4.1954 before the Judicial Commissioner, H.P. vide RFA No. 4 of 1954. The appeal was dismissed by the learned Judicial Commissioner on 31.8.1957 by upholding the judgment and decree dated 26.4.1954. Smt. Suno died on 16.5.1987 issueless. The parties in the suit are Hindus. The plaintiffs, being class-II heirs of Sh. Daut at the time when succession opened on the death of Smt. Suno on 16.5.1987, are entitled to succession of the suit property. The defendants No. 22 to 34 as arrayed in the original suit, got illegal entries in respect of Kh. Nos. 337, 361, 368, 382, 383, 384, 385, 391, 396, 397, 398, 417, 405, 418, 439, 441, 443, 444, 445 kitas 19 measuring 78-03 bighas, situated in Chak Roni, Tehsil Theog, Distt. Shimla, as per the jamabandi for the year 1984-85 in their favour. The defendant No. 30, namely, Sh. Kewal Ram, son of Basia was wrongly shown in possession of the suit land in the revenue record. The entries made in faour of defendant No. 30 were wrong, illegal and collusive. The possession of defendants No. 22 to 34, as per the cause title of the original suit over the suit land measuring 78- 03 bighas was also illegal. 3. The suit was contested by the defendants No. 1 to 10, 22 to 24, 26 to 31, 33, 34 and 57 to 61 by filing different written statements. the defendants, on merits alleged that the plaintiffs have included some of the properties in the suit, which never formed part of the holding of Sh. Daut, particularly, part of the land mentioned in para 10 of the plaint. The defendants have admitted that Sh. Daut had three widows and civil suit regarding the alienations made by the donees was also filed in the Civil Court. However, the judgment was not binding upon the defendants. Some of the tenants were already in occupation of the property prior to the gift were also not impleaded as parties to the earlier suit. Daut had three widows and civil suit regarding the alienations made by the donees was also filed in the Civil Court. However, the judgment was not binding upon the defendants. Some of the tenants were already in occupation of the property prior to the gift were also not impleaded as parties to the earlier suit. It was also denied that the plaintiffs were not legal heirs of Sh. Daut and locus standi of the plaintiffs to take the benefit of the decree was also challenged. Defendant No. 30 had become owner under the provisions of H.P. Tenancy and Land Reforms Act. Defendants No. 1 to 10, 22 to 24, 26 to 31, 33, 34 and 57 to 61 filed additional separate written statement in pursuance to order of this Court dated 30.4.1991. Defendants No. 11, 40, 63 to 66 filed separate written statement. They have admitted that Smt. Suno died on 16.5.1987 and Sh. Daut died issueless. 4. The replication was filed by the plaintiffs to the written statement filed by defendants No. 1 to 4, 5, 6 to 10, 22 to 24, 26 to 31, 33, 34, 57 to 61, 11, 40 to 63, 64, 65 and 67 by reaffirming all the allegations made in the plaint. In Civil suit bearing No. 52-S/I of 95/88, issues were framed on 16.7.1991. The issues in civil suit No. 124-S/1 of 95/93 were framed on 10.3.1999. The common evidence was led in both the civil suits. The civil suit bearing No. 52-S/I of 95/88 was partly decreed by the learned Addl. District Judge, Shimla and civil Suit No. 124-S/1 of 95/93 was dismissed by the learned Addl. District Judge, Shimla on 3.10.2001 by a common judgment. The defendants have assailed the judgment dated 3.10.2001 rendered by the learned Addl. District Judge, Shimla in civil suit No. 52-S/I of 95/88. 5. Mr. Bhupinder Gupta, Sr. Advocate, has vehemently argued that the proprietary rights were conferred upon Sh. Kewal Ram defendant No. 30 in accordance with law and there was no evidence available on record to connect respondents-plaintiffs with the estate of Sh. Daut. The learned Addl. District Judge has misread the provisions of Hindu Succession Act. The suit was bad on account of multifariousness. The issues No. 7, 16 & 17 have wrongly been decided. On the other hand, Mr. K.D. Sood, Sr. Daut. The learned Addl. District Judge has misread the provisions of Hindu Succession Act. The suit was bad on account of multifariousness. The issues No. 7, 16 & 17 have wrongly been decided. On the other hand, Mr. K.D. Sood, Sr. Advocate, has supported the judgment and decree dated 3.10.2001 rendered by the learned Addl. District Judge, Shimla. 6. I have heard learned Advocates for the parties and gone through the judgment and records of the case carefully. 7. It is settled law by now that tenancy is creature of bilateral agreement. In order to ascertain whether the tenancy has come into existence, the rent column in jamabandi is relevant. Defendant No. 30 Kewal Ram has admitted specifically that he was not paying any rent. The nonpayment of rent would negate the existence of relationship of landlord and tenant. Smt. Suno was limited owner of suit property as held by Sr. Sub Judge, Mahasu vide judgment dated 26.4.1954 Ext. PW-1/1. This judgment was upheld in RFA No. 4 of 1954 by the learned Judicial Commissioner on 31.8.1957. Since the entries were changed abruptly without any legal basis and that too in violation of principles of natural justice, the Civil Court had the necessary jurisdiction. 8. According to the plaintiffs, they are Class-II heirs of Sh. Daut and were entitled to the suit property under the provisions of Hindu Succession Act. Smt. Suno died on 16.5.1987. The plaintiff No. 1 is son of Smt. Sadho and plaintiffs No. 2 to 4 are her daughters. Similarly, defendant No. 11, 63 to 66 are successor-in-interests of Smt. Jamni. The defendant No. 62 was the brother of plaintiff No. 1 and a son of Smt. Sadhu. Late Sh. Daut has not left behind any male heir behind him. The plaintiffs have duly proved that they were successors-in-interest of late Sh. Daut. Smt. Suno, widow of late Sh. Daut had only life interest in the suit property. The plaintiffs are reversioners of late Sh. Daut. They had legal right to challenge the alienation i.e. the gift deed dated 21.4.1948 made by Smt. Suno in favour of Sh. Paras Ram. The learned Sr. Sub Judge, Mahasu, while recording the findings in judgment Ext. PW-1/1, has categorically held while deciding issue No. 2 that subsequent alienation by way of sale deed were of no legal value and would not affect the reversioners’ rights. Paras Ram. The learned Sr. Sub Judge, Mahasu, while recording the findings in judgment Ext. PW-1/1, has categorically held while deciding issue No. 2 that subsequent alienation by way of sale deed were of no legal value and would not affect the reversioners’ rights. The judgment dated 26.4.1954 has attained finality. The Hindu Succession Act, has come into force on 17.6.1956. Smt. Suno was not in possession of the suit property on 17.6.1956 after making gift and further sale of the property. 9. The learned Addl. District Judge, Shimla has rightly distinguished the judgment relied upon by the defendants titled as Smt. Shakuntala vrs. Smt. Kamla, 1998(1) Sim. L.C. 162. The suit property, after the death of Smt. Suno was to revert back to nearest reversioners, being legal heirs of late Sh. Daut, when the succession opened on 16.5.1987. The benefit of judgment and decree passed by the Sr. Sub Judge, Mahasu vide Ext. PW-1/1 and PW-1/2 would go to the nearest legal heirs and the remote legal heirs would be excluded while considering the question of succession of the suit property. 10. Now, as far as the plea raised by Mr. Bhupinder Gupta, Sr. Advocate, qua multifariousness is concerned, the plaintiffs have based their claim on the basis of previous judgment rendered by the Civil Court vide Ext. PW-1/1. The plaintiffs have arrayed affected persons as parties. The alleged tenancy was also created after the year 1961-62. In case, different civil suits had been filed, it would have created legal obligation for both the parties. The issue No. 7 has correctly been decided by the learned Addl. District Judge, Shimla, relying upon judgment rendered in the case of Sohan Lal vrs. Nihali Devi, reported in 1988 S.L.J. 485. Mr. Bhupinder Gupta, Sr. Advocate, has also argued that Sh. Daulat Ram was adopted by late Sh. Daut. In his cross-examination, DW-6 Daulat Ram has admitted that no adoption deed was prepared at the time of adoption. He also admitted that even, no ceremonies were performed. The defendants in their pleadings have not specifically pleaded any custom regarding adoption. There is nothing on record to establish that by whom, defendant No. 11 Daulat Ram was given in adoption and who was the Pandit to perform the ceremonies. He also admitted that even, no ceremonies were performed. The defendants in their pleadings have not specifically pleaded any custom regarding adoption. There is nothing on record to establish that by whom, defendant No. 11 Daulat Ram was given in adoption and who was the Pandit to perform the ceremonies. Since tenancy created in favour of defendants was illegal, the defendants No. 1 to 5 and their predecessor-in-interest had no legal right to encumber the property in any manner. Thus, the tenancy created by defendant No. 61 or any other defendants would not be binding or affect the legal rights of the plaintiffs. 11. Now, as far as the plea of making vital improvements over the suit land is concerned, suffice to observe that these were made after the judgment and decree rendered by the Sr. Sub Judge, Mahasu vide Ext. PW- 1/1 and by the learned Judicial Commissioner, H.P. dated 31.8.1957 vide Ext. PW-1/4. 12. In the case of Amar Singh and others vrs. Sewa Ram and ors. reported in AIR 1960 Punjab 530, the Full Bench of the Punjab and Haryana High Court has held that Section 14 can have no application to a case in which a female Hindu had sold the property before the Act came into force and parted with its possession at the time of the sale. It has been further held that the collaterals (reversioners) of the last Hindu male-holder are entitled to file, or, if filed already, to continue, a suit, after the enforcement of the Hindu Succession Act, challenging an alienation effected, prior to the enforcement of the Act, by an intervening female heir, who at the time of the alienation held only widow’s estate. It has been held as follows: “[7] On behalf of the appellants it was urged that in view of the provisions of the Hindu Succession Act, Sewa Ram is not entitled to the decree granted to him by the Court below, and inter alia it was urged as follows: (1) That though at the time of the alienation Mst. Rajo was a limited owner and, therefore, could convey only a limited title, she has since become a full owner by virtue of Section 14 of the Hindu Succession Act, and consequently the vendees' title has become perfect, and neither Mst. Rajo was a limited owner and, therefore, could convey only a limited title, she has since become a full owner by virtue of Section 14 of the Hindu Succession Act, and consequently the vendees' title has become perfect, and neither Mst. Rajo nor any of her heirs can successfully challenge the aforesaid alienations; (2) that even if by virtue of Section 14, the daughter cannot be said to have become an absolute owner of the property in dispute because she cannot be said to be in possession of the same on the date the Act came into force, yet taking into consideration all the provisions of the Hindu Succession Act, the reversioners have ceased to exist as a class and the alienations cannot be challenged. The first point is concluded by a Division Bench judgment of this Court reported as Hari Kishen v. Hira, (1957) 59 Pun. LR 56: ((S) AIR 1957 Punj 89). Bishan Narain and Chopra JJ. held that Section 14 of the Act could have no applicability to a case in which a female Hindu had sold the property before the Act came into force and parted with its possession at the time of the sale. The other High Courts in India also have taken a similar view and the contrary view taken by the Patna High Court in Ram Ayodhya Missir v. Raghunath (S) AIR 1957 Pat. 480 and Mt. Janki Kuer v. Chhathu Prasad, (S) AIR 1957 at. 674, and Baijnath v. Ramautar, AIR 1958 Pat. 227 , has since been overruled by a later Full Bench case of the same High Court reported as Harak Singh v. Kailash Singh, AIR 1958 Pat. 581 .” 13. In the case of Radha Rani Bhargava vrs. Hanuman Prasad Bhargava & ors., reported in AIR 1966 SC 216 , their lordships of the Hon’ble Supreme Court have held that when the alienation was prior to coming into force of Hindu Succession Act, 1956, reversioners filing declaratory suit that alienation was without legal necessity and not binding on them was maintainable. It has been held as follows: “[2] 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. It has been held as follows: “[2] 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, as 14, 15 and 16 of the Act did not abolish the reversioners and reversionary rights. In Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, 1959 Supp (1) SCR 968 at pp. 975-976: ( AIR 1959 SC 577 at p. 581), this Court approved of the latter view, and this opinion was followed by this Court in Brahmadeo Singh and another v. Deomani Missir. Civil Appeal No. 130 of 1960. D/- 15-10-1962 (SC). 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 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 v. Hiralall Singh, AIR 1958 Pat 319 , and of the Allahabad High Court in Hanuman Prasad. v. Indrawati, AIR 1958 All 304 , (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. v. Indrawati, AIR 1958 All 304 , (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.” 14. In the case of Lachhman vrs. Thunia, reported in AIR 1972 HP 69 , the Full Bench of this Court has held 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 recognize the rights of the reversionsers to the property after the death of the limited owner though the right to enjoy for a limited period remains in the donee. The Full Bench has further held that Section 14(1) of the Act had no application to the property which was not in the possession of the widow at the time when the Act came into force and the property which was gifted by the widow was not such property as could be held to be in her constructive possession. It has been held as follows: [7] Learned counsel for the defendant-appellant has urged that a declaratory decree in favour of the reversioners creates no right or title and relies upon : Jagdish v. Brahma, 1971 Him LR 16 and Gokal v. Haria, AIR 1949 EP 414. In Jagdish's case (supra) it was held :-- "It is well settled that till succession opens out no reversioner can claim any right to or interest in the property in the possession of the limited owner. In Jagdish's case (supra) it was held :-- "It is well settled that till succession opens out no reversioner can claim any right to or interest in the property in the possession of the limited owner. Till succession opens out, the reversionary interest is merely in the nature of spessuccessionis and it cannot be postulated with regard to any particular person whether at the time the estate falls into possession he would be entitled to the property. When the presumptive reversioner brings a suit for a declaration that an alienation by a limited owner should not affect his reversionary rights as the time of the succession opening out and the suit is decreed, the only effect of the decree is to declare the alienation to be invalid except for the life of the alienor. The declaratory decree does not pass any title to the presumptive reversioner and does not create any right in him in the property alienated. The title still remains in the alienee." The passage cited above enunciated a well settled principle. It is pointed out there that the decree in favour of a reversioner enures for the benefit of the whole body of reversioners. It only removes a common apprehended injury to the interests of the reversioners. The fact that the right to enjoy for a limited period remains in the alienee, does not, however, mean that the right of the reversioners to the property after the death of the limited owner is not recognised by the declaratory decree. If such could be the position, the declaratory decree would be worthless. We are unable to accept such a contention. [12] Now, the above mentioned case relates to the position which emerged from the declaration of an adoption as invalid. In the case before us, the gift by Smt. Karju was not held to be void. It was quite valid and binding upon her so long as she was alive. She had parted with the possession of it for her life-time. It cannot, in our opinion, be held that the donee was in possession on behalf of the widow. If the widow had tried to dispossess him, he could claim an Injunction against her. If she were to dispossess him he could sue her for possession and get back the property. The donee's possession is not on behalf of the donor, but in his own right. If the widow had tried to dispossess him, he could claim an Injunction against her. If she were to dispossess him he could sue her for possession and get back the property. The donee's possession is not on behalf of the donor, but in his own right. This, in our opinion, is the position even where the donation Is valid only for a limited period. On the other hand, the position of a person whose adoption is invalid is, as stated in Mulla's Hindu Law (13 Edn. 1966), that: "as a general Rule the adopted son does not acquire any rights in the adopted family nor does he forfeit his rights in his natural family". Hence, a person who is in possession of a property by reason of invalid ad- option can be a licensee or in permissive and constructive possession, but a donee would be in possession in his own right. Therefore, we do not think that the donee of Smt. Karju can benefit from Section 14 of the Act which enlarges the estate of the widow in possession but not of her donee. [19] After having surveyed all the authorities cited before us on the question that Section 14 (1) of the Act had no application to the property which was not in the possession of the widow at the time when the Act came into force and that the property which had, been donated by her was not such property as could be held to be in her constructive possession.” 15. In the case of Radhey Krishan Singh and ors. vrs. Shiva Shankar Singh & ors., reported in AIR 1973 SC 2405 , their lordships of the Supreme Court have again reiterated that reversioner is entitled to file a suit for declaration that an ailination made by a Hindu female limited owner before coming into force of the Hindu Succession Act. It has been held as under: “[8] Our courts have recognized that a reversionary heir, although having only those contingent interests which are differentiated little, if at all, from a spes succession is, has a right to demand that the estate in the hands of a limited owner be kept free from waste and free from danger, during its enjoyment by the limited owner. Courts have also recognized that the reversionary heir is entitled to a declaration that an alienation made by the widow is not binding on the body of the reversioners, the object of the suit being to remove a common apprehended injury to the interests of all the reversioners, presumptive and contingent. See Venkatanarayana Pillai v. Subbammal, 42 Ind App 125 = ( AIR 1915 PC 124 ). A reversionary heir thus appealing to the court truly for the conservation and just administration of the property does so in a representative capacity so that the corpus of the estate may pass unimpaired to those entitled to the reversion. That being the object for which the courts have permitted the next reversioner to file a suit even though the right is no more than a spes successionis, such a right to a remedy of a very substantial character cannot be taken away except by specific legislation. So far as the Hindu Succession Act, 1956 is concerned, there is nothing in it which has taken away such a right. In fact this court has held in Radha Rani Bhargava v. Hanuman Prasad Bhargava, (1966) 1 SCR 1 =( AIR 1966 SC 216 ) that a reversioner is entitled to file 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. In the present case the Hindu Succession Act came into force in 1956 and the settlements challenged were much prior to that date. Therefore, the reversioners could not be precluded from maintaining the suit for setting aside the alienation. [9] As regards the other ground on which the High Court dismissed the suit, namely, Section 6 of the Bihar Land Reforms Act, it is sufficient to point out that no such plea was raised in the written statement nor was any issue framed. It does not also appear that any argument was advanced on that basis before the Trial Court. The point seems to have been taken for the first time during the course of the argument before the High Court, and we are satisfied that the High Court was in error in entertaining that submission for the first time. It does not also appear that any argument was advanced on that basis before the Trial Court. The point seems to have been taken for the first time during the course of the argument before the High Court, and we are satisfied that the High Court was in error in entertaining that submission for the first time. It would be difficult to say if, on the alienation being set aside, defendants 1 to 3 would be still entitled to claim an interest in the property sufficient to warrant the State to settle those lands on them as occupants. We do not want to express any opinion on the point. The widow is living and the plaintiffs have not asked for possession of the land. What would be the nature of the right to the property of a reversioner after the death of defendant no. 4 would depend upon future events and it will not be right to speculate on it. The High Court was, therefore, in error in invoking the provisions of the Bihar Land Reforms Act at the present stage.” 16. In the case of Daya Singh (dead) through Lrs. vrs. Dhan Kaur, reported in AIR 1974 SC 665 , their lordships of the Hon’ble Supreme Court have held that the accepted position under the Hindu Law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day. The inevitable corollary is that it is only the law in force at the time of the death of the limited owner and not the law in force at the time of the last full owner’s death that would govern the case. It has been held as follows: “[6] Now if this proposition is correct as we hold it is, that, where a female heir succeeds to an estate, the person entitled to succeed on the basis as if the last male holder had lived up to and died at the death of the limited owner, succession to Wadhawa Singh's estate in the present case opened when his widow died and it would have to be decided on the basis that Wadhawa Singh had died in 1963 when his widow died. In that case the succession to his estate would have to be decided on the basis of Sec. 8 of the Hindu Succession Act. The various High Courts which have held otherwise seem to have been oppressed by the feeling that this amounted to giving retrospective effect to Section 8 of the Hindu Succession Act whereas it is only prospective. As the Privy Council pointed out it means no such thing. The accepted position under the Hindu Law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day. It would be reasonable to hold that in such a circumstance the law as it existed at the time when the last male holder actually died should be given effect to. If the person who is likely to succeed at the time of the limited owner's death is not, as happens very often, likely to be the person who would have succeeded if the limited owner had not intervened, there is nothing unreasonable in holding that the law as to the person who is entitled to succeed on the limited owner's death should be the law then in force and not the law in force at the time of the last full owner's death. [7] The Madras High Court thought that the decision of the Privy Council in AIR 1946 PC 173 (supra) was based upon a legal fiction and that fiction cannot be given effect to except for a limited purpose. The Mysore High Court also thought that the death referred to in section is actual death and not fictional death. In East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109 at p. 132, Lord Asquith of Bishopstone observed: "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emanicipation from the 1939 level of rents. One of those in this case is emanicipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." The observation was cited with approval by this Court in Venkatachallam v. Bombay Dyeing Mfg. Co. Ltd., 1959 SCR 703 =( AIR 1958 SC 875 ). If, therefore, succession opens and is to be decided on the basis of the last full owner dying on the date of death of the limited owner the inevitable corollary is that it is only the law in force at the time of the death of the limited owner that should govern the case. To hold that the old Hindu Law applies to such a case is to allow your imagination to boggle. In the case decided by the Privy Council in AIR 1946 PC 173 (supra) if this principle had been applied the new heirs introduced by the Hindu Law of Inheritance (Amendment) Act, 1929 could not have been come in. We are not impressed with the reasoning of the Patna High Court that because the change brought about by that Act is different from the change brought about by the Hindu Succession Act a different conclusion follows. We should consider that if even the limited change in the area of succession effected by the Hindu Law of Inheritance (Amendment) Act, 1929 is to be given effect to as the law applicable on the date of the death of the limited owner, it is all the more reason why the Hindu Succession Act which makes a much more radical change in the Hindu Law should have similar application. The Mysore High Court thought that the Hindu Succession Act not being a mere declaratory Act, retrospective effect should not be given to it so as to impair existing rights and obligations. But the reversioners right being a mere spes successions there is no question of impairing existing rights by adopting the interpretation we place on Section 8 apart from the fact that, as earlier pointed out, the interpretation does not amount to giving retrospective effect to Section 8. Of course, if the property had already vested in a person under the old Hindu Law it cannot be divested.” 17. Of course, if the property had already vested in a person under the old Hindu Law it cannot be divested.” 17. In the case of Mst. Anjanbai and ors. vrs. Ramprasad, reported in AIR 1994 MP 91 , the learned Single Judge has held that on the death of widow only nearest reversioner can challenge transfer. It has been held as follows: “[5] The powers of a widow in respect of the property inherited by her from her husband can be classified as powers of (i) enjoyment, (ii) management, (iii) representation; and (iv) alienation. A widow is not a tenant for life, but is owner of the property inherited by her with certain restriction on alienation and subject to its devolving upon the next heir of the last full owner on her death. The widow being owner of the life estate can transfer all her life interest in the property to anyone she likes. To confer absolute right in the property transferred by limited owner in the properties held as limited owner; it has to be demonstrated that such transfer was effected on account of religious or charitable purposes or other purposes amounting to legal necessity. Interest in the widow's estate vests in reversioner, the heir of the last full owner who would be entitled to succeed to the estate of such owner, and therefore, the heir of the last full owner is entitled to challenge alienation made by the limited owner i.e. widow. Everyone who may have a possibility of succeeding on the death of the widow is not competent to challenge alienation made by the widow. Right to challenge alienation by suit, rests in the first instance with the next reversioner only unless it is shown that next reversioner refuses without sufficient cause to take legal course or concurred with the act alleged or colluded with the widow in the impugned act of transfer or is being precluded by his own conduct to challenge such transfer or because of his poverty is not in a position to challenge the transfer made by the widow. (Mulla Hindu Law, Sixteenth Edition, Article 207). (Mulla Hindu Law, Sixteenth Edition, Article 207). The transfer made by a Hindu widow, a limited holder, in excess of her power is not void but only voidable at the instance of the next reversioner, in Section Shan-mugam Pillai v. K. Shanmugam Pillai, AIR 1972 SC 2069 , the Supreme Court has approved the observations made by the Madras High Court in a case reported in (Makineni Virayyav. MadamanchiBapayya, (1946) 1 Mad LJ 276, as under (at pp. 2074-75) :- "These decisions will be found on examination to proceed on the principle that an alienation by a Hindu widow without justifying necessity is not void but only voidable at the instance of the reversionary heir who may either affirm or avoid it, but will be precluded from questioning it if he does something which amounts to an affirmation of the transaction." [6] The transaction made by Satyabhama widow of Nanki, on 24- 2-1955 is in the capacity of a limited owner and, therefore, no, doubt, the right in the property transferred, is a limited estate or widow's estate, which had reverted back to the reversioner on the death of Satyabhama on 30-12-1979. It is only the reversioner who can challenge the transaction made by Satyabhama in favour of the plaintiffs, and the plaintiffs have right to defend the transfer on the grounds of the legal necessity or for the purpose charitable or religious. Transaction of sale is not void ab mitio but only voidable at the instance of the nearest reversioner. The question is whether the respondent Ramprasad is nearest reversioner of Nanki when his brother's widow is alive according to the statement of Ram Prasad. The question of nearest relation, of Nanki, husband of Satyabhama, will be adjudicated in accordance with law as it stands at the time of death of Satyabhama on 30-12-1979. When Satyabhama died on 30th December, 1979, the Hindu Succession Act, 1956, had come into force, and as per Section 8 of the said Act brother's widow is heir of Nanki, falling under Class II, Entry VI of the Schedule. Brother's widow is Class II heir; whereas uncle's son is not a heir under Class I or Class II of the Schedule. Brother's widow is Class II heir; whereas uncle's son is not a heir under Class I or Class II of the Schedule. Atmaram's widow being Class II heir under Section 8 of the Hindu Succession Act, she will exclude Ramprasad defendant/respondent, and as such, so long as Atmaram's widow is alive Ramprasad is not reversioner of Nanki, consequently he has no light to challenge the transfer made by Satyabhama in favour of the plaintiffs. As Ramprasad is not nearest reversioner of Nanki he does not get any right to remain in possession of the suit property. Further, Ramprasad being uncle's son does not get the right to challenge the transfer by institution of the suit as nearest reversioner. In any case, transfer made by Satyabhama in favour of the plaintiffs, has not been challenged by defendant Ramprasad in the present proceedings. The plaintiffs having purchased the suit property by registered sale deed dated 24-2-1955, they have right to be in possession of the suit property. Plaintiffs' dispossession by Ramprasad defendant by using force is contrary to law. Consequent thereof, the plaintiffs are entitled for a decree of possession against defendant Ramprasad, being purchaser of the suit house from Satyabhama.” 18. In the case of Naresh Kumari (dead) by LRs and another vrs. Shakshi Lal (dead) by LRs and anr. reported in (1999) 2 SCC 656 , their lordships of the Hon’ble Supreme Court have held that if alienation is without any legal necessity or is contrary to the law, the alienee would only get a transitory limited right to enjoy the property during the lifetime of the widow which is the only residuary right she possessed which could be deemed to have been transferred. Thus, after the death of the widow, such property even from the alienee would revert back to the reversioners of her husband. It has been held as follows: “[11] Within the sphere of this legal principle, now we revert to the facts of the present case. It is not in dispute that in the first leg of litigation between the parties, when Smt. Kesri, widow of Radhakishan was alive and was a party, the respondents, reversioners of Radhakishan, succeeded in their suit by getting declaration of this disputed house, that the sale deed by Smt. Kesri to Smt. Naresh Kumari was without legal necessity hence void. It is not in dispute that in the first leg of litigation between the parties, when Smt. Kesri, widow of Radhakishan was alive and was a party, the respondents, reversioners of Radhakishan, succeeded in their suit by getting declaration of this disputed house, that the sale deed by Smt. Kesri to Smt. Naresh Kumari was without legal necessity hence void. The appeal filed by the appellants was dismissed which became final. The present issue has arisen when the respondents reversioners filed their second suit for possession over the same property about which they got the decree as aforesaid. The question on these facts is, whether still appellants can claim to fall under sub-section (1) of Section 14? There could be no doubt before a benefit of sub-section (1) of Section 14, even by the widow (Smt. Kesri), could be conferred, she has to show that she is possessed of this property in dispute in lieu of her limited right of maintenance. The question is whether she was possessed of this property, to claim full right under sub-section (1) which she acquired before the 1956 Act came into force? The admitted fact is, she transferred all her right to the appellants through the said sale deed before the 1956 Act came into force. Thus, she could not be said to be possessed of this property. Thus, by her own conduct she herself relinquished all her right and even lost possession in it through the said transfer. Thus, she would not be said to be possessed of this property before coming into force the 1956 Act. Then how can she get benefit of sub-section (1) of Section 14? It may be examined from another angle. It is not in dispute that any female Hindu could only alienate her limited right in an estate prior to coming into force of the 1956 Act, which is in her possession, only for a legal necessity. If alienation is without any legal necessity or is contrary to law the alienee would only get a transitory limited right to enjoy the property, during the life-time of the widow which is the only residuary right she possessed which could be deemed to have been transferred. Thus, after the widow's death such property even from alienee would revert back to the reversioners of her husband. Thus, after the widow's death such property even from alienee would revert back to the reversioners of her husband. In Kalawatibai v. Soiryabai, (1991) 3 SCC 410 : "A Hindu widow prior to 1956 held the property fully with right to enjoy or even destroy or dispose it of or alienate it but such destruction or alienation should have been impressed with legal necessity or for religious or charitable purposes or for spiritual welfare of the husband. Necessary consequences that flowed from an alienation for legal necessity was that the property vested in the transferee or alienee, and the reversioners were produced from assailing its validity. But if prior to 1956 any alienation was made by a Hindu widow of widow's estate prohibited by law or being beyond permissible limits, it stripped the widow of her rights and she could not acquire any rights under Section 14. And so far as alienees were concerned it could utmost create temporary and transitory ownership precarious in nature and vulnerable in character open to challenge if any attempt was made to cloud reversioner's interest. The alienee's possession may be good against the world, his right in property may not be impeachable by the widow but his interest qua the reversioner was to continue in possession at the maximum till the lifetime of his donor or transferor. It was life interest, loosely, as the duration of interest created under invalid transfer came to an end not on death of donee or transferee but donor or transferor." [13] In the present case, this does not arise, as transfer already held to be void in the earlier suit. A possible argument, though not argued, that in case the transfer was bad as void, the property would be deeemd to have reverted back to Smt. Kesari and on coming into force of the 1956 Act she became full owner. Even if that be, alienee could only succeed if there be any transfer to her after this date. There is more in the present case, her claim is only through the sale deed executed when she had only limited right. On the contrary, we find that the order and decree in the first suit results into giving an alienee a restricted right. Thus, the said transfer would be circumscribed and restricted by the order passed in the first suit. On the contrary, we find that the order and decree in the first suit results into giving an alienee a restricted right. Thus, the said transfer would be circumscribed and restricted by the order passed in the first suit. Thus, even on this ground it could not be said that the alienee-appellants had unrestricted right. It is also not in dispute that the appellants received the property not in lieu of her any pre-existing right, but received right in the property for the first time through the sale deed. In view of this, the appellants' case would fall under subsection (2). Thus, the appellants' right in the said property could not be upheld.” 19. In the present case also, the widow has alienated the property by way of gift deed before coming into force of the Hindu Succession Act, 1956. Thus, the reversioners had the right to file a suit. 20. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.