Appeal No. 438 a 1966.
Appeal by special leave from the judgment and decree dated November 18, 1963 of the Punjab High Court in Civil Regular Second Appeal No. 254 of 1962.
Mohan Behari Lal, for the appellants.
I. M. Lall and M. L. Agarwal, for the respondents.
The Judgment of the Court was delivered by Shah, J.
In 1916 Jawala a Hindu Jat governed by the customary law of the Punjab sold to one Shadi, without legal necessity, a fourth share in 891 bighas 3 biswas, which was ancestral in his hands.
Giani Ram son of Jwala instituted Suit No. 75 946 of 1920 in the Court of the Senior Subordinate Judge, Hissar, for a declaration that the sale of ancestral lands of Jwala in favour of Shadi was null and 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.
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 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 Subordinate Judge, Hissar decreed the suit for a half share in property claimed by the plaintiffs.
The learned Judge was of the view that only the sons of Jwala could claim the benefit of the decree in Suit No. 75 of 1920 and since their share in the estate of Jwala was in the aggregate only a half, the remaining half having devolved upon the widow and the two daughters, a decree for a half share in the lands alienated could issue against the alienees.
In appeal by the plaintiffs to the District Court, Hissar, the decree was modified.
The learned District Judge decreed the claim in its entirety, but only in favour of the three sons.
In his view the sons were entitled to the ancestral property alienated by Jwala and the widow and the two daughters had no interest there in the provisions of the notwithstanding.
Against that decree a second appeal was preferred by the heirs of Shadi.
The High Court of Punjab set aside the decree passed by the District Court and restored the decree of the Trial Court.
In the view of the High Court, under the , the two daughters and widow of Jwala could inherit a share in the, estate of Jwala, but since by section 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those persons could take the benefit of the declaratory decree obtained by any one of the reversioners, who could contest the alienation by the vendor, and it was a "settled rule of custom that a female heir cannot contest the sale" 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 947 favour for possession of any part of the estate.
With special leave the appellants have appealed to this Court.
A preliminary objection raised by counsel for the respondents that the suit in its entirety should have been dismissed, because by the enactment of the Jwala was to be deemed a full owner and notwithstanding the decree passed in Suit No. 75 of 1920 his sops had after that Act no subsisting reversionary interest in the property, must stand rejected.
The High Court has granted a decree in favour of the three sons for a half share in the property, and the decree is not challenged in an.
appeal by the respondents.
The respondents cannot now be permitted to challenge that part of the decree.
In any event there is nothing in the which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act.
The Punjab Custom (Power to Contest) Act 1 of 1920 was enacted to restrict the rights excercisable by members of the family to contest alienations made by a holder of ancestral property.
By virtue of section 6 of the Act no person is entitled to contest an alienation of ancestral immovable property Unless he is descended in the male line from the great great grand father of the alienor.
Under the customary law in force in the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property enured in favour of all persons who ultimately took the estate on the death of the alienor for the object of a declaratory suit.filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a common apprehended injury, in the interest of the reversioners.
The decree did 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 Rain 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 and 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.
The effect of the declaratory decree in suit No. 75 of 1920 was merely to declare that by the sale interest conveyed in favour of the alienee was to enure duuring the life time of the alienor ' The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala, at the point of his death and all persons who would, but.
for the allenation, have taken the estate 1 Sup.
C.T./69 11 948 will be entitled to inherit the same.
If Jwala had died before the was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters.
After the enactment of the the estate devolved, by virtue of sections 2 and 4(1) of the , upon the three sons, the widow and the two daughters.
We are unable to agree with the High Court that because in the year 1920 the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the , inherit his estate when succession opened after that Act came into force.
The second ground on which the learned Judge has founded his judgment also does not appeal to us.
The three sons, the two daughters and the widow of Jwala had filed the suit claiming posession of the entire property from the alienee.
That suit was decreed by the Trial Court in favour of the sons, only to the extent of a halt share in the property alienated.
The Court held that 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 alinee 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 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 right, because they had not preferred an appeal or filed cross objections to the decree appealed from.
The sons, daughters and widow of Jwala filed a suit for a decree for possession of the entire property and their primary claim was that the alienee had no subsisting interest.
The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated.
If the alienes are unable to convince the Court that they had any subsisting interest in the property in dispute after the death of Jwala the Court will be competent to adjust the rights between the sons, the daughters and the widow of Jwala in that property.
Order 41, r. 33 of the Code of Civil Procedure was enacted to meet a situation of the nature arising in this case.
In so far as it is material, the rule provides : "Me Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or 94 9 other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection '.
The expression "which ought to have been passed" means "which ought in law to have beep passed".
If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact 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 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 wodow 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 0. 41, r. 33,.
Code of Civil Procedure 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.
The appeal is allowed and the decree passed by the High Court is modified.
There will be a decree for possession of the lands in suit in favour of the three sons, the widow and the two daughters of Jwala.
The interest of the three sons is one half in the Iands in suit and the interest of the widow and the two daughters is the other half in the lands.
The plaintiffs will be entitled to mesne profits from the date of the suit under 0. 20, r. 12, Code of Civil Procedure.
The appeal will be allowed with costs throughout.
G.C. Appeal allowed.


Summary:
J, a Hindu Jat governed by the Punjab Customary Laws, sold without legal.
necessity, in 1916, a fourth share of his ancestral land to one section Under the Punjab, Customary Laws females could not challenge a sale of ancestral property by a male owner.
J 's son G, in suit No. 75 of 1920 obtained a declaratory decree to the effect that the sale to S would not enure beyond the life time of J. When J died in 1959, the had come into force and his three sons, daughters and widow inherited his estate in equal shares.
The three sons, the widow and the daughters then filed a suit for possession of the aforesaid alienated land on the basis of the decree in suit No. 75 of 1920.
Under section 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those competent to contest an alienation clould take advantage of a decree obtained by a reversioner.
The trial court passed a decree for a half share of the suit property in favour of the sons only, holding that the female heirs of J were not entitled to take advantage of the decree in suit No. 75 of 1920.
The District Court modified the decree by decreeing the suit in respect of the whole property in favour of the sons.
In second appeal the High Court restored the decree of the trial court holding that the claim of the female heirs of J could not be upheld, firstly because of the Punjab customary law and section 8 of Act 1 of 1920, and secondly because they had not filed any appeals against the orders of the lower courts.
In appeals by special leave before this Court, HELD : (i) The preliminary objections 'raised by the alienees that the suit in its entirety should have been dismissed, because by the enactment of the J was to be deemed a full owner and notwithstanding the decree of 1920 his sons had after that Act no subsisting reversionary interest in the property, must stand rejected.
There is nothing in the which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act.
[947 B C] (ii) Under the customary law of the Punjab the wife and 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 945 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.
[947 G] The effect of the declaratory decree in the suit filed by G in 1920 was merely to delclare that by the sale, the interest conveyed to the alienee was to enure during the life time of the alienor.
The conclusion was therefore inevitable that the property alienated reverted to the estate of J at the point of his death and all persons who would, but for the alienation have taken the estate were entitled to inherit the same.
If J had died before the was enacted, the three sons would have taken the estate to the exclusion of the widow and the two daughters.
After the enactment of the the estate devolved, by virtue of sections 2 and 4(1) of the , upon the three sons, the widow and the two daughters.
L947 H 948 B] The High Court was therefore in error in holding that because in the year 1920 the wife and daughters of J were incompetent to challenge the alienation of ancestral property by J, they could not, after the enactment, of the inherit his estate when succession (iii) The High Court was equally in error in holding that because the widow and daughters had not filed an appeal or cross objections against the decree of the lower courts, they were not entitled to any relief.
The sons, the daughters and the widow of J had filed the suit for a decree for possession of the entire property and their claim was that the alienee had no subsisting interest.
The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated.
If the alienees were unable to convince the court that they had any subsisting interest in the property in dispute after the death of J, the court was competent under 0.
41 r. 33 of the Code of Civil Procedure to adjust the rights between the sons, the daughters, and the widow of J in that property.
[948 E G; 949 D] In 0.
41 r. 33 the expression 'which ought to have been passed ' means 'what ought in law to have been passed '.
if the Appellate Court is of the view that any decree which ought in law to have been passed was in fact 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.
[949 D]