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TMI Blog1969 (3) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... d void and was ineffective against, his reversionary rights. The suit was decreed by the Senior Subordinate Judge, Hissar. The effect of the declaratory decree was that the alienations could not enure beyond the life time of Jwala. 2. Jwala died on October 16, 1959, leaving his surviving three sons-Giani Ram, Manphool and Chandgi, his wife Rajni, and two daughters Phulwati and Chhanno. Under the Hindu Succession Act, 1956 which came into force on June 17, 1956, the estate of Jwala devolved upon his widow, his sons and his daughters in equal shares. In an action filed by the three sons of Jwala, his daughters and widow against the legal representatives of Shadi for a decree for possession of the lands alienated by Jwala the Senior Subordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a male owner, a half share in the estate of Jwala which devolved upon the sons could be claimed by them, and the widow and the daughters could not obtain benefit of the decree. The High Court also held that the suit filed by the widow and the two daughters had been dismissed by the Trial Court and the District Court and as they had not filed an appeal in the High Court or even cross objections, the order of dismissal qua them had become final, and no decree could be passed in their favour for possession of any part of the estate. With special leave the appellants have appealed to this Court. 4. A preliminary objection raised by counsel for the respondents that the suit in its entirety should have been dismissed, because by the enactme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not make the alienation a nullity-it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened. By the decree passed in suit No. 75 of 1920 filed by Giani Ram it was declared that the alienations by Jwala were not binding after his life time, and the property will revert to his estate. It is true that under the customary law the wife arid the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor. But a declaratory decree obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the widow and the daughters were not entitled to a share because only those persons can bring a suit for possession on the death of Jwala who had the right to challenge the alienation made by Jwala . In appeal the District Court granted a decree for possession of the entire property on the view that the alienee had no subsisting interest after the death of Jwala. But the District Court granted a decree for possession of the entire property alienated only in favour of the three sons, because in the view of the Court the daughters and the widow of Jwala were not entitled to any share in the property. According to the High Court if the widow and the daughters were entitled to the share in the property, they had disentitled themselves to that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case may require. 9. If the claim of the respondents to retain any part of the property after the death of Jwala is negatived, it would, be perpetrating gave injustice to deny to the widow and the two daughters their share in the property to which they are in law entitled. In our view, the case was one in which the power under Order 41, Rule 33, CPC ought to have been exercised and the claim not only of the three sons but also of the widow and the two daughters ought to have been decreed. 10. The appeal is allowed and the decree passed by the High Court is modified. There will be a decree for possession of the lands i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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