JUDGMENT V. Bhargava, J.
1. This is a defendant-appellant's appeal arising out of a suit brought by the plaintiff-respondent for recovery of possession of certain property against the defendants.
2. The findings of fact given by the lower court show that the plaintiff-respondent was the transferee of the rights in the property in suit from Srimati Dhiraj Kunwar daughter of Ram Bux Singh who was the last male owner of the property. Srimati Dhiraj Kunwar died and the defendants took possession of the property without coming to court It has also been found that the defendants are the reversioners of Ram Bux Singh so that, on the death of Srimati Dhiraj Kunwar and on their repudiation of the transfer made by her in favour of the plaintiff-respondent, they were the owners of this property.
The trial court dismissed the suit holding that the plaintiff respondent was not entitled to take back possession from the defendants who had dispossessed him. The lower appellate court held that the plaintiff was entitled to a decree for possession on the ground that dispossession of the plaintiff by the defendants without bringing a suit for cancellation of the transfer made by Srimati Dhiraj Kunwar in favour of the plaintiff was illegal. It appears that in this case the learned Judge of the lower appellate court did not correctly appreciate the points that arose for decision.
The question that arose for decision really should have been put in this form. The defendants, after the death of Srimati Dhiraj Kunwar, are the persons entitled to the property as reversioners of Ram Bux Singh. They have already dispossessed the plaintiff who had obtained possession by virtue of a transfer made by Srimati Dhiraj Kunwar, which transfer was valid for her life but was voidable on her death at the option of the reversioners. Can the plaintiff now claim to be put back in possession?
It is clear that the defendants, who are the reversioners, exercised their right of repudiating the transfer after the death of Srimati Dhiraj Kunwar by dispossessing the plaintiff. This act of theirs amounted to a repudiation of that transfer. They had an alternative remedy of giving effect to this repudiation by bringing a suit against the plaintiff. The fact that they had such a right to bring a suit did not, however, bar their exercising the right without the intervention of any court, provided of course that they could do so without committing any criminal offence.
In the present case, the defendants did dis-nossess the plaintiff peacefully. Now that the rightful owners are in possession, the plaintiff, who has no title in the property, cannot obtain the aid of court to dispossess the rightful owners. The leading case on the point which has been referred to by the learned Judge of the lower appellate court also, is that of Bijoy Gopal Mukerji v. Krishna Mahishi Debi, ILR 34 Gal 329 (PC), in which their Lordships of the Privy Council expressed the following view: "A Hindu widow is not a tenant for life, but is owner of her husband's property subject to cer tain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death.
But she may alienate it subject to certain conditions being complied with. Her alienation is not, there fore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession or the property."
This view expressed by the Privy Council shows that a reversioner can repudiate a transfer made by a widow and treat it as a nullity "without the in tervention of any court." Of course, there must be such specific act committed by him which would show that he has exercised this right of election vested in him. In the present case, as I have said earlier, the defendants showed the exercise of their right of election by dispossessing the plaintiff peace fully without the intervention of a Court. Once they did so, their possession became rightful pos session over this property. The plaintiff had no title to the property and, on the basis of mere pos sessory title, he could not come to court against the rightful owners though he could have done so against all other persons who had no title in the property. The decisions of the Allahabad High Court and the Judicial Commissioner's Court of Oudh relied upon by the learned Judge of the lower appellate court which are reported in Kandhya v. Mt Raj Kunwar, AIR 1923 All 367 (2) and Bahadur Singh v. N. S. Sultan Hussain Khan, AIR 1022 Oudh 171, in no way affect the view expressed by me above and have not been correctly interpret ed by the learned Judge. The result is that this appeal succeeds.
3. The appeal is allowed, the decree passed by the lower appellate court is set aside and the suit of the plaintiff is dismissed with costs in all the courts.