BRIKMU Vs. JODHA
LAWS(HPH)-1952-12-4
HIGH COURT OF HIMACHAL PRADESH
Decided on December 20,1952

Brikmu Appellant
VERSUS
JODHA Respondents

JUDGEMENT

CHOWDHRY, J. - (1.) THIS is an application in revision by the two defendants Mt. Brikmu and her daughter Mt. Shankru against the judgment and decree of the learned Dist. Judge, Mandi, dated 25 7 1951 dismissing their appeal and upholding the judgment and decree of the trial Court granting to the plaintiff respondent Jodha a declaration that a gift made by Mt. Brikmu in favour of Mt. Shankru would not fee valid against the reversionary rights of the plaintiff after the donor's death.
(2.) THE trial Court held that the parties were governed by custom. It did not decide the question whether a daughter was a preferential heir to a collateral. It further decid ed that the property was not ancestral qua the plaintiff. It however granted the aforesaid declaratory relief to the plaintiff on the finding that Mt. Brikmu as a Hindu widow was not entitled to make the gift in question. On the defendants' appeal, the Dist. Judge was of the opinion that it was not necessary to go into the question whether the parties were governed by custom or Hindu Law or the question whether a daughter is a preferential heir. In fact, he went further and remarked that it was conceded by the learned counsel for the parties that neither of these points need be decided. The Dist. Judge then observed that the main question calling for decision was whether Mt. Brikmu was entitled to make the gift of her husband's estate. As to this it was held by him that even under the Hindu Law (which, according to the defendants, was to govern the rights of the parties in the present case) a widow has only a limited estate in property inherited by her from her husband and she is not entitled to make a gift of it, irrespective of nature of the property in the hands of the husband. A new point was urged before the learned District Judge on behalf of the defendants petitioners, and he allowed it to be taken. That was that the property in suit was a self acquisition of the widow Mt. Brikmu. This was decided against the appellants. In the result he dismissed the appeal of the defendants, and they have now come up in revision to this Court.
(3.) IT was contended by the learned counsel for the defendants petitioners that the Dist. Judge was in error in leaving the aforesaid two questions undecided, namely, the questions relating to custom and the ancestral nature of the property. This argument was really not open to the learned counsel for the petitioners in view of the remark of the learned Dist. Judge that the said two points were left undecided by common consent. Even if it be supposed that the present petitioners are not bound by the said consent, the view of the lower appellate Court that it was not necessary to record any finding on either of the two questions was correct. As regards custom, the learned counsel for the defendants petitioners urged that the finding of the trial Court on that point was erroneous, his contention being that the parties were governed by the Hindu Law. Let that position be accepted. The only effect of that position would be that; whether the last male holder of the property was Mt. Brikmu's husband or her son, the plaintiff would be a remoter reversioner as compared with the donee Mt. Shankru. That, as I shall presently show, has however no effect on the merits of the case. As regards the question whether the property was ancestral qua the plaintiff, that is a notion derived from the customary law of the Punjab. It is quite irrelevant in a case like the present under the Hindu Law. As already stated, it was the Hindu Law on which the defendants petitioners relied. Under the Hindu Law, quite irrespective of whether the property in suit was ancestral qua the plaintiff, he would be entitled, subject to other conditions being fulfilled, to challenge the alienation as a reversioner. It follows therefore that the defendants peti tioners could not validly have any grievance against the said two points having been left Undecided by the lower appellate Court.;


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