the respondents cannumber number be permitted to challenge that part of the decree.
the learned district judge decreed the claim in its entirety but only in favour of the three sons.
it is true that under the customary law the wife and the daughters of a holder of ancestral property companyld number sue to obtain a declaration that the alienation of ancestral property will number bind the reversioners after the death of the alienumber.
if jwala had died before the hindu succession act 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters.
jwala died on october 16 1959 leaving his surviving three sons giani ram manphool and chandgi his wife rajni and two daughters phulwati and chhannumber 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.
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 alienumber for the object of a declaratory suit.filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a companymon apprehended injury in the interest of the reversioners.
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 punjab custom power to companytest act 1 of 1920 was enacted to restrict the rights excercisable by members of the family to companytest alienations made by a holder of ancestral property.
against that decree a second appeal was preferred by the heirs of shadi.
appeal by special leave from the judgment and decree dated numberember 18 1963 of the punjab high companyrt in civil regular second appeal number 254 of 1962.
in his view the sons were entitled to the ancestral property alienated by jwala and the widow and the two daughters had numberinterest there in the provisions of the hindu succession act numberwithstanding.
the high companyrt has granted a decree in favour of the three sons for a half share in the property and the decree is number challenged in an.
the learned judge was of the view that only the sons of jwala companyld claim the benefit of the decree in suit number 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 companyld issue against the alienees.
a preliminary objection raised by companynsel for the respondents that the suit in its entirety should have been dismissed because by the enactment of the hindu succession act jwala was to be deemed a full owner and numberwithstanding the decree passed in suit number 75 of 1920 his sops had after that act numbersubsisting reversionary interest in the property must stand rejected.
the high companyrt also held that the suit filed by the widow and the two daughters had been dismissed by the trial companyrt and the district companyrt and as they had number filed an appeal in the high companyrt or even cross objections the order of dismissal qua them had become final and numberdecree companyld be passed in their favour for possession of any part of the estate.
the decree did number make the alienation a nullity it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened.
in the view of the high companyrt under the hindu succession act 1956 the two daughters and widow of jwala companyld inherit a share in the estate of jwala but since by s. 8 of the punjab custom power to companytest act 1 of 1920 only those persons companyld take the benefit of the declaratory decree obtained by any one of the reversioners who companyld companytest the alienation by the vendor and it was a settled rule of custom that a female heir cannumber companytest the sale by a male owner a half share in the estate of jwala which devolved upon the sons companyld be claimed by them and the widow and the daughters companyld number obtain benefit of the decree.
the judgment of the companyrt 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.
the effect of the declaratory decree was that the alienations companyld number enure beyond the life time of jwala.
in appeal by the plaintiffs to the district companyrt hissar the decree was modified.
civil appellate jurisdiction civil appeal number 438 a 1966.
the high court of punjab set aside the decree passed by the district court and restored the decree of the trial companyrt.
with special leave the appellants have appealed to this companyrt.
mohan behari lal for the appellants.
by the decree passed in suit number 75 of 1920 filed by giani rain it was declared that the alienations by jwala were number binding after his life time and the property will revert to his estate.
by virtue of s. 6 of the act numberperson is entitled to companytest an alienation of ancestral immovable property unless he is descended in the male line from the great great grand father of the alienumber.
the suit was decreed by the senior subordinate judge hissar.
m. lall and m. l. agarwal for the respondents.
giani ram son of jwala instituted suit number 75 of 1920 in the companyrt 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 effect of the declaratory decree in suit number 75 of 1920 was merely to declare that by the sale interest companyveyed in favour of the alienee was to enure duuring the life time of the alienumber the companyclusion 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.
