Case: Radha Rani Bhargava Vs. Hanuman Prasad Bhargava

1. One Kalyan Singh died sonless in the year 1918 leaving him surviving his widow, Mst. Bhagwati and two daughters, Mst. Indrawati and Mst. Radha Rani. By a deed dated October 10, 1919, Mst. Bhagwati alienated her husbands estate in favour of certain alienees. On October 23, 1931, Mst. Indrawati suing in a representative capacity on behalf of the reversioners to the estate of Kalyan Singh, instituted the suit in the Court of the Additional Civil Judge of Mathura, out of which this appeal arises, impleading the alienees as also Mst. Bhagwati and Mst. Radha Rani as defendants and claiming a declaration that the alienation was null and void against the subsequent heirs of Kalyan Singh and that on the death of Mst. Bhagwati, his next heirs would be entitled to get possession of the alienated properties. On August 12, 1941 the trial Judge decreed the suit and granted a declaration that the alienation "is void beyond the life-time of Mst. Bhagwati and does not bind the reversioners, who would be entitled after the death of Mst. Bhagwati to possession over the assets of Babu Kalyan Singh." On February 12, 1942, some of the alienees preferred an appeal to the Allahabad High Court impleading Mst. Bhagwati, Mst. Indrawati and Mst. Radha Rani, as respondents to the appeal. Three sons of Mt. Indrawati and two sons of Mst. Radha Rani were also impleaded, as respondents Nos. 8 to 12, but by an order dated March 11, 1942, the High Court directed that those persons would not be allowed to be impleaded as respondents. During the pendency of the appeal in the High Court, Mst. Indrawati died. By an order dated May 11 1950, the High Court directed that Mst. Radha Rani would continue to be on the record in place of her deceased sister, Mst. Indrawati and as the next reversioner to the estate of Kalyan Singh. During the pendency of the appeal, on June 17, 1956the Hindu Succession Act, 1956 came into force. At the hearing of the appeal before the High Court, the alienees raised the preliminary contention that after the coming into force ofthe Hindu Succession Act, 1956, there are no reversioners and no reversionary rights, and it suit for a declaration that the alienation is not binding on the reversioners is no longer maintainable.The High Court accepted this contention, allowed the appeal and dismissed the suit. The High Court did not go into the other questions raised in the appeal. On January 2, 1958. Mst. Radha Rani applied to the High Court for grant of a certificate under Art. 133 of the Constitution of India. On August 8, 1958, the High Court granted the certificate, and on February 27, 1959, the High Court declared the appeal admitted. On May 29, 1961. Mst. Bhagwati died. On or about November 13, 1961, the High Court despatched the records to this Court. No order of the High Court under O. XVI. R. 12(a) of the Supreme Court Rules substituting the heirs of Mst. Bhagwati in her place was obtained, and the appeal abated against her. On March 26, 1962. Mst. Radha Rani filed the petition of appeal in this Court. In this petition of appeal, Mst. Bhagwati and also the above-mentioned three sons of Mst. Indrawati and two sons of Mst. Radha Rani were impleaded as respondents. On August 24, 1964, respondents Nos. 1 to 3 filed Civil Miscellaneous Petition No. 2219 of 1964 raising certain preliminary objections, and praying that the appeal be dismissed. This petition was posted for hearing along with the appeal.

Reasoning:
7. In this connection, it is necessary to consider whether the heirs of the widow were necessary parties to a suit against the alienee either for a declaration that the alienation is void beyond her life-time or for possession of the alienatedthe case of an alienation by a Hindu widow without legal necessity, the reversioners were not bound to institute a declaratory suit during the life-time of the widow. They could wait until her death and the nsue the alienee for possession of the alienated property treating the alienation as a nullity without the intervention of any Court. See Bijoy Gopal Makherji v. Krishna Mahishi Debi, ILR 34 Cal 329 (333) (PC). To such a suit by the reversioners for possession of the property after the death of the widow, the heirs of the widow were not necessary parties. The reversioners could claim no relief against the heirs of the widow and could effectively obtain the relief claimed against the alienee in their absence. Instead of waiting until her death, the next reversioner as representing all the reversioners of the last full owner could institute a suit against the alienee for a declaration that the alienation was without legal necessity and was void beyond her life-time. The widow was usually added as a party defendant to such a suit.The widow was usually added as a party defendant to such a suit. The widow was certainly a proper party, but was she a necessary party to such a suit? On behalf of the appellant it is suggested that the widow is not a necessary party to the suit, and in this connection, reference is made to Illustration (e) to S. 42 of the Specific Relief Act, 1877.For the purposes of this appeal, it is not necessary to decide this broad question; it is sufficient to say that in the case of the death of the widow during the pendency of the declaratory suit, the heirs of the widow are not necessary parties to the suit. Though the widow was joined as a party to the suit, no relief was claimed against her personally. On the death of the widow, the entire estate of the last full owner is represented by the plaintiff suing in a representative capacity on behalf of all the reversioners, and the plaintiff can get effective relief against the alienee in the absence of the heirs of the widow. In view of the fact that on the death of the widow, the reversioners become entitled to possession of the property, in a proper case leave may be obtained to amend the plaint in the declaratory suit by adding all the reversioners as plaintiffs and by including in the plaint a prayer for possession of the property. If the plaint were amended and the suit were converted into one for possession of the property, clearly the heirs of the widow would not be necessary parties to the suit. The fact that the plaint is not amended makes no difference. The plaintiff is entitled to continue the declaratory suit without joining the heirs of the widow as parties to the suit.8. As the reversioners were not entitled to the possession of the property at the time of the institution of the suit, the next reversioner could then sue for a bare declaration and the proviso to S. 42 of the Specific Relief Act, 1877 did not constitute a bar to the suit. The declaratory suit does not become defective because during the pendency of the suit, the reversioners become entitled to further relief. The next reversioner is entitled to continue the declaratory suit; but in the absence of an amendment of the plaint, a decree for possession of the property cannot be passed in the suit, and if the reversioners are to get any real benefit, they must institute a suit for possession of the property within the period of limitation.9.Had Mst. Bhagwati died during the pendency of the suit, her heirs would not have been necessary parties to the suit. The position is not altered because the suit has been dismissed on appeal by a decree of the High Court, and during the pendency of the further appeal to this Court, Mst. Bhagwati died, and the appeal against her has abated.The appeal against the surviving respondents has not abated, and we think that the appeal is not defectively constituted in the absence of the heirs of Mst. Bhagwati. In the appeal to this Court, Mst. Radha Rani asks for the identical relief which the original plaintiff sought in the suit. She can get effective relief in the appeal in the absence of the heirs of Mst. Bhagwati just as the original plaintiff could obtain the relief in the suit in their absence. The fact that the suit was dismissed by the High Court in the presence of Mst. Bhagwati makes no difference. In the suit, the plaintiff asked for the necessary relief against the alienees: Mst. Bhagwati was joined as a party to the suit, but no relief was claimed against her personally. The High Court dismissed the suit against the alienees. The appellant to this Court now seeks for a reversal of the High Court decree in the presence of the alienees. The reversal of the High Court decree in the absence of the heirs of Mst. Bhagwati would not lead to the passing of inconsistent and contradictory decrees. The High Court did not pass any decree in favour of Mst. Bhagwati. The success of this appeal cannot lead to the passing of a decree by this Court in conflict with any decree passed by the High Court in favour of Mst. Bhagwati. The cause of appeal in this Court survives against the surviving respondents, and the appeal can proceed to a final adjudication in the absence of the heirs of Mst. Bhawati.10. We hold that the appeal is not defective on account of the non-joinder of necessary parties. Civil Miscellaneous Petition No 2219 of 1964 is dismissed, save that we direct that the names of respondents Nos. 8 to 12 be struck off from the record.