Bachan Singh and another vs The Punjab State

Rajendra Nath Mittal, J.—This second appeal has been filed by the plaintiffs against the judgment and decree of the Additional District Judge, Ludhiana dated 11th January, 1971, reversing the judgment of the trial Court by which the suit had been decreed.

Briefly, the facts are that Mal Singh son of Dalbara Singh, resident of village Kanech, District Ludhiana, was involved in a case of murder alleged to have been committed on 16th July, 1938. He absconded and could not he arrested by the police. Consequently, proceedings under sections 87 and 88 of the Code of Criminal Procedure 1898 (hereinafter referred to as the Code), were taken against him and his entire land was attached on 26th February, 1939. A mutation was affected regarding that land in favour of the State Government on 23rd September, 1939. Consolidation of holding took place in the village and in lieu of that land, the land now is dispute was allotted to the Government.

3 The plaintiffs, who are reversioners filed a suit for possession of the property of Mal Singh in 1946 on the ground that he should be presumed to be dead and the attachment would not effect their reversionery rights after his death It was inter alia pleaded by them that he was not heard of for the last seven years by those who would naturally have heard of him if he had been alive. Therefore, he would be presumed to be dead u/s 108 of the Indian Evidence Act. The suit was decreed by the trial Court on 11th February, 1948. The appeal against the judgment and decree of the trial Court was dismissed by the District Judge on 19th February, 1949, vide judgment, Exhibit P. 3. The Punjab State came up in second appeal to this Court which was allowed. It was held by this Court that section 108 of the Evidence Act did not apply as Mal Singh was a fugitive from justice and, therefore, it was but natural for him not to correspond with the persons who would have naturally heard of him had he been alive.

The plaintiffs filed the present suit on 19th November, 1968, stating that since Mal Singh had not been heard of as being alive within the last thirty years it would be presumed u/s 107 of the Evidence Act that he had died. They further stated that they were governed by custom and the property was ancestral and therefore, it could not remain attached after his lifetime. They consequently filed a suit for possession of the land.

The suit was contested by the defendants who inter alia pleaded that the plaintiffs were not the heirs of Mal Singh, that the suit was barred by limitation and that the property was non ancestral.

The learned trial Court held that the plaintiffs being the brothers of Mal Singh were his heirs, that the property was ancestral qua the plaintiffs and that the suit was within time. Consequently, it decreed the suit The State went up in appeal before the Additional District Judge, Ludhiana. He held that the plaintiffs, who were challenging the attachment u/s 88 by the State, should have filed the suit for declaration within six years of the attachment under the Punjab limitation (Custom) Act (Act No. 1 of 1920), which had not been done. Therefore, he came to the conclusion that the suit was barred by time. Consequently, he accepted the appeal and dismissed the suit. The plaintiffs have come up in second appeal to this Court.

The Learned Counsel for the respondent has raised a preliminary objection that in view of deletion of section 6 and amendment of section 7 of the Punjab Custom (Power to Contest) Act (Act No. 11 of 1920), by virtue of the Punjab Custom (Power to Contest Amendment Act, 1973, the plaintiff-appellants had no right to challenge the attachment made u/s 88 of the Code of Criminal Procedure, 1898, inter alia on the ground that the property was ancestral and to claim possession of the property of Mal Singh deceased.

Faced with that situation, the Learned Counsel for the appellants sought to urge that by attachment of the property u/s 88 of Code, the title therein did not pass to the Government and after the death of Mal Singh, the property reverted to the appellants who were his brothers. He has further argued that it was not necessary for the appellants to prove that the property was ancestral and, therefore, they had interest therein.

I have considered the arguments of the Learned Counsel. I, however, find force in the contention of the Learned Counsel for the respondent and unanable to agree with the contention put forward by the Learned Counsel for the appellants. In order to determine the question, it will be relevant to refer to the plea taken by the appellants in the plaint. It is specifically averred by them in para No. 4 of the plaint that Mal Singh and the plaintiffs were governed by the custom prevalent amongst the agriculturists of Punjab according to which qua the property which was ancestral of the absconder and the plaintiffs, the absconder had a life interest and on his death the plaintiffs were entitled to recover it from the Government. From the plea, it is clear that the appellants are claiming the property on the ground that it was ancestral qua them and the Government could forfeit only the life interest of Mal Singh. The above plea, in my view, was rightly taken by the appellants as recording to the custom a male owner ?could not alienate the ancestral property except for consideration and legal necessity and if he did so, the reversioners could challenge it. In 1920, the Legislature gave statutory recognition to the above custom to some extent and provided in section 6 of Act No II of 1929 that a male lineal descendent from the great-great grandfather of the person making the alienation could only contest the alienation of the ancestral immovable property on the ground that such alienation was contrary to custom. Section 7 further provided that no person could contest any alienation of non-ancestral immovable property on the above-said ground. Now, by virtue of the Amendment Act of 1973, section 6 has been omitted and section 7 has been amended and therein the words "immovable property whether ancestral or non-ancestral" have been substituted for the words "non-ancestral immovable property". After the amendment, section 7 reads as follows:--

Notwithstanding anything to the contrary contained in section 5, Punjab Laws Act, 1872, no person shall contest any alienation of immovable property, whether ancestral or non-ancestral, or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom.

From the aforesaid amendments, it is evident that no reversioner can challenge the alienation of a male holder even qua ancestral property. It is well-settled that an appeal is continuation of a suit and the change in law during pendency of appeal is to be taken into consideration by the appellate Court. In the said view, I am fortified by my observations in Hari Singh v. Avtar Singh alias Surjit Singh 1973 Rev. L.R. 623, wherein I held that an appeal was a continuation of the suit and the change in the law during pendency of appeal could be taken into consideration at the time of hearing of the appeal. The right to contest alienations relating to ancestral property had been taken away by the Amendment Act of 1973. It was further observed that a suit to contest an alienation could be dismissed even by the High Court in an appeal pending before it. The above view was affirmed by a Division Bench of this Court in Charan Singh v. Gehl Singh (1974)76 P.L.R. 125. The following observations of the Bench may be read with advantage:--

... It is well-settled proposition of Law that appeal is a continuation of a suit and any change in law, which has taken place between the date of the decree and the decision of the appeal, has to be taken into consideration. When a suit filed by a reversioner is dismissed and he files an appeal, then before the appellate Court also he is contesting the alienation. If he does not contest or challenge the alienation, then he cannot acheive success. An argument was sought to be advanced by Mr. R.L. Aggarwal, that the right to contest comes to an end when the suit is decided and that in appeal the contest is not against the alienation but is against the decree passed by the trial Court. The argument, though ingenuous, is without any merit and the distinction sought to be drawn is without any difference. Even in appeal the contest between the parties remains with regard to the alienation. What would be argued in appeal on behalf of the reversioner would be that the alienation is bad while on behalf of the vendees the argument would be that it is valid in law. The rights of the parties do not stand determined on the date when the suit is filed. The rights are determined only when the case is finally decided. The Legislature has in unequivocal words made its intention clear that no person shall contest any alienation of immovable property whether ancestral or non-ancestral. Prior to the amendments, only ailenation with regard to the ancestral immovable property could be contested; but now in respect of both ancestral and non-ancestral properties alienations have been made immune from challenge in a Court of law. From the language employed in section 7, we have absolutely no doubt in our mind that the Legislature intended to give retrospective effect to the Amendment Act.

I am, therefore, of the view that after coming into force of the Amendment Act, 1073, the appellants who have challenged the attachment u/s 88 of the Code on the ground that the property was ancestral between Mal Singh absconder and themselves have no right to do so. It is true that the suit was filed by the appellants as far back as 1968 when Act II of 1920 was in force, but it losses all significance in view of enactment of the Amendment Act of 1073 during the pendency of the appeal, as it takes away the right of the reversioners to challenge an alienation by a male proprietor relating to the ancestral property.

The argument taken by the Learned Counsel for the appellants in this Court is a new argument which he cannot be allowed to raise in appeal. Even no such plea was taken in the plaint. However, I have examined the contention, but find no merit in it.

The question that arises for determination is whether the attachment of the property of an offender u/s 88 of the Code, if he does not appear and claim the property under its provisions, amounts to its forfeiture. In order to determine the question, it is necessary to notice sections 87 to 89 of the Code, as these stood in 1939, Section 87 inter alia provided that if any Court had reason to believe that any person against whom a warrant had been issued by it, had absconded or was concealing himself so that such warrant could not be execute ed, such Court might publish a written proclamation requiring him to appear at a specified place and at a specified ''time not less than thirty days from the date of publishing such proclamation. Section 88 relates to attachment of property of the absconder. It reads as follows:--

(1) The Court issuing a proclamation u/s 87 may at any time order the attachment of any property, movable or immovable, or both belonging to the proclaimed person.

(2) * *

to * * *

(5) * *

(6A) If any claim is preferred to, or objection made to the attachment of, any property attached under this section within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under this section, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part.

(6B) Claims or objections under sub-section (6A) may be preferred or made in the Court by which the order of attachment is issued or, if the claim or objection is in respect of property attached under an order endorsed by a District Magistrate or Chief Presidency Magistrate in accordance with the provisions of sub section (2), in the Court of such Magistrate.

(6C) Every such claim or objection shall be inquired into by the Court in which it is preferred or made.

(6D) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (6A) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute but subject to the result of such suit, if any, the order shall be conclusive.

(6E) If the proclaimed person appears within the time specified in the proclamation, the court shall make an order releasing the property from the attachment.

(7) If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of the Provincial Government but it shall not be sold until the expiration of six months from the date of attachment, and until any claim preferred or objection made under sub-section (6A) has been disposed of under that sub-section unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner, in either of which cases the Court may cause it to be sold whenever it thinks fit.

NOTE

By virtue of the adaptation of Laws Order, 1950, the words "Provincial Government" have been substituted as "State Government". In the judgment, therefor, I have used the words State Government instead of Provincial Government. From a perusal of S.88, it is clear that it prescribes complete Code for attachment, release and forfeiter of the property of a proclaimed offender. Sub-section (1) empowers the Court to order attachment of the property both movable and immovable of the proclaimed offenders. Sub-section (6A) enables other persons to file claim and subsections (6B) and (6C) empower the Court to adjudicate upon them. Sub-section (6D) entitles them to file a suit in case their claims have been rejected wholly or partly. Under sub-section (6D), even the proclaimed offender can claim the property under certain conditions. Thereafter, sub section (7) authorises the State Government to deal with the property attached under the foregoing provisions. It provides that if the proclaimed offender does not appear within the period mentioned, in the proclamation the attached property shall be at the disposal of the State Government. The words at the disposal of the State Government" are important. According to the Shorter Oxford English Dictionary (3d Edition), the word "disposal" means power or right to dispose of. Thus, a right is vested in the State Government to sell the property and retain the sale price. However, the property cannot be-sold for a period of six months from the date of attachment or in case any claim is preferred or objection made under sub-section (6) till that has been decided.

u/s 80 of the Act, the proclaimed offender can claim back the property or if it has been sold, its net proceeds after meeting the costs incurred if he appears within two years from the date of attachment and shows to the satisfaction of the Court that he did not abscond or conceal himself for the purpose of avoiding the execution of the warrant and that he had no notice of the proclamation. No other person can claim back the sale price.

It is evident from the above sections that the property of the proclaimed offender is not attached for his life only but is forfeited to the State. If that was not so, the State world not have been authorised to sell it absolutely after expiry of the specified period. I am, therefore, of the view that when the State becomes entitled to sell the property of the proclaimed offender of which he was the absolute owner, he losses all interest therein and his heirs cannot claim the property after his death.

The Learned Counsel for the appellants made reference to Sadhu Singh v. Secretary of the State for India 18 P.R. 1908 (F.B.), Niamat Ali and others v. Secretary of State for India and Hakam Singh 52 P.R. 1915, and The Secretary of State for India Vs. Ahalyabai Narayan Kulkarni, . In Sadhu Singh''s case (supra), it is held by the majority that where ancestral immovable propery held by a person subject to Punjab Customary Law is attached and sold by order of a criminal Court u/s 88 of the Code of Criminal Procedure the sale conveys the life interest of that person and does not extinguish the right of inheritance after his death of his male lineal descendants or of collaterals descended from the original holder of the property. The above case was followed in Niamat Ali''s case (supra) by a division Bench of that court and similar observations were made therein. From the above observations, it is clear that the attachments u/s 88 were considered to be void against the reversioners on the ground that the offender had only life interest in the ancestral property and therefore, the attachment could not be effected beyond their life time As already observed above, in view of the Amendment Act of 1973, the alienation cannot now be challenged by the reversioners on that ground. It is on this account that the plea was taken by the plaintiff-appellants that the property was ancestral and they were entitled to the same after the death of Mal Singh absconder. These cases do not deal with the self-acquired property of the proclaimed offender. The facts in Ahalyabai Naryan Kulkarni''s case (supra) were that Gopal was notified as a proclaied offender u/s 88 of the Code. Widow of his brother and her daughter filed a suit that the widow was entitled to maintenance and the daughter to marriage expenses from the Joint Hindu property the whole of which became the ownership property of the absconder. It was observed in that case that under the Hindu Law, if a coparcener takes the property of another co-parcener by survivorship, he takes it with the burden of maintaining the widow and the unmarried daughter of the deceased co-parcener. There cannot be any dispute about the said proposition. This case is distinguishable and the Learned Counsel cannot derive any benefit from the observations therein. I, consequently, reject the contention of the Learned Counsel for the appellants.

For the afore-said reasons, I do not find any merit in the appeal and dismiss the same with no order as to costs.