Bhajan Singh vs Raghbir Singh and Others

D.S. Tewatia, J.—The plaintiff Bhajan Singh filed the present suit on 9th January, 1980 seeking a declaration that the decree dated 13th February, 1979 obtained by Raghbir Singh, respondent No 1 herein, against Gurpal Singh, Joga Singh, Hardial Singh, sons of Kehar Singh, and Mohinder Singh son of Nishabar Singh, was sham and collusive and not binding on the plaintiff, petitioner herein.

Plaintiff Bhajan Singh, hereinafter referred to as the petitioner, sought certain amendments in the plaint, whereby, inter-alia, he sought to seek the possession of the land in dispute by way of preemption.

The trial Court, while allowing certain amendments declined to accede to the prayer of the petitioner insofar as it concerned the relief of possession by way of pre-emption and the other consequential amendments on the ground that such a relief had become barred by limitation.

It has been canvassed on behalf of the petitioner that the trial Court had taken incorrect view in regard to the limitation for filing the pre emption suit pertaining to the matter of the present kind. It has been urged that the present case shall be governed by article 113 of the Schedule of Limitation Act,- 1963, and not by article 97 thereof or by section 30 of the Punjab Pre-emption Act, 1913, hereinafter referred to as the Act. In support of his submission the learned counsel for the petitioner placed reliance on a Full Bench decision of this Court reported in Kharati Ram v Ram Lal A. I. R. 1951 P&H. 45, and a Division Bench judgment of the Rajasthan High Court reported in Mohan Lal Vs. Rasula and Others, .

Before dealing with the legal proposition, a little background of the case deserves to be recapitulated which is not in dispute. Kashmir Singh and Raghbir Singh entered into an agreement of sale Exhibit P. 2 dated 2nd June, 1978. with the aforementioned three sons of Kchar Singh and Mohinder Singh son of Nishabar Singh, hereinafter referred to as the vendors. The vendors executed sale-deed Exhibit P.-1 dated 29th June, 1978 in favour of Kashmir Singh, which sale has since been pre-empted by the petitioner, herein. Raghbir Singh, instead of following the direct course of purchasing his share in the land covered by the agreement of sale aforesaid adopted a circuitous course. He sought to get his share through civil suit by obtaining the consent decree dated 15th February, 1979, which has been impugned in the present suit as collusive and fraudulent.

The said decree, through on the face of it, is not a sale, but the Court, in view of the provisions of section 4 of the Act, can unmask a given transaction and hold that an alienation purporting to be other than a sale is, in fact, a sale.

Assuming that the Court, in the present, case, was to find that the transaction covered by the collusive decree in question amounted to an alienation by way of sale, then within what period such a sale can be pre-empted ? The trial Court, as already observed, was of the opinion that. the provisions of section 30 of the Act were attracted to this case and period of limitation was only one year, which had expired before the filing of the application seeking amendment of the plaint.

Section 30 of the Act is in the following terms :

30- In any case not provided for, by article 10 of the Second Schedule of the Indian Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre-emption under the provisions of this Act- shall, notwithstanding anything in article 120 of the said schedule become year-

(1) in the case of a sale of agricultural land or of village immoveable property, from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property: whichever date shall be the earlier;

(2) in the cast of a foreclosure of the right to redeem village immoveable property or, urban immoveable property from the date

description of suit

Period

of

limitation

Time from which period

begins to run

To enforce a right to

pre-emption whether

the right is founded

on law or general

usage or on special

contract.

One year

When the purchaser takes

under the sale sought to be im-

peached, physical possession

of the whole or part of the pro-

perty sold, or, where the sub-

ject matter of the sale does not

admit of physical, possession of

the whole or part of the pro-

perty, when the instrument of

sate is registered.

It may be observed that sub-section (1) of section 30 of the Act fixes the starting point of limitation in the case of a sale of agricultural land or of village immoveable property, firstly, from the date of the attest ion of mutation by the Revenue Officer in the register of mutations and, secondly, from the date of the taking of physical possession by the vendee of any part of the land, subject-matter of the sale; subsection (2) of section 30 fixes as the starting point of limitation in the case of foreclosure of the right to redeem village immoveable property or urban immoveable property from the date on which the title of the mortgagee of the property becomes absolute, while subsection (3) of Section 30 fixes the date on which the vendee takes under the sale physical possession of any part of the property in the case of sale urban immoveable property as the date for the starting of the limitation for filing the pre-emption suit.

A Division Bench of this Court in Kashmir Singh v. Mehar Chand 1971 Cri. L. J. 169, has held that a share in an undivided property does not admit of physical possession.

In Kharati Ram''s case (supra) the facts were that on 18th January, 1934 Nasir Din and Mohammad Haji mortgaged with possession the house in suit for Rs. 1,400/- to Ganga Singh and Ram Lal on the foot of the deed of mortgage. On the same date, the mortgagors executed a rent deed in favour of the mortgagees under which they took the house on lease from the mortgagees on an annual rent of Rs. 36/-, with the result that the actual possession of the house remained with the mortgagors. Ganga Singh mortgagee gifted his mortgagee rights to his daughter Mst. Sardhi. Nasir Din mortgagor died and on 11th August, 1939, Mohammad Haji and Mst. Fazal Bibi widow of Nasir Din on the foot of unregistered sale-deed sold the equity of redemption in the house for Rs. 50/- in favour of Mst. Sardhi and Ram Lai, the two co mortgagees. By the purchase of the equity of redemption, Ram Lal and Mst. Sardhi became full owners of the house in suit. Later, on, on 29th April, 1940, Mst. Sardhi sold her share in the house to Ram Lal for Rs. 700/- on the foot of document Exhibit D. 2 Thus Ram Lal became the absolute owner of the house on 29th April, 1940. On 16th August, 1944, Kharati Ram plaintiff instituted a suit for possession of the house by pre-emption on payment of Rs. 1,450/-. Ram Lal defendant-vendee resisted the suit on a number of pleas, one of such being was the suit within time? The trial Court decreed the suit with costs. The first appellate Court sustained the judgment and decree of the trial Court. Ram Lai defendant-vendee then took recourse to the second appeal in the High Court. The learned Single Judge allowed the appeal and dismissed the suit. He, however, gave permission to file Letters Patent Appeal and the Division Bench formulated the following formal question and referred it to the Full Bench,-

Whether a suit to enforce aright of pre-emption in the case of a sale of an equity of redemption of urban immovable property when the pre-emptor pre-empts the immoveable property treating the sale of equity of redemption to the mortgagee in possetion as being a sale of the property itself comes within sub-section (3), section 30 of the Punjab Pre-emption Act, 1913 ?

Waston, C.J, who delivered the opinion for the Bench on his own behalf as also on behalf of Khosla, J, as he then was, while discussing the import of article 10 of Schedule II, Limitation Act, 1908, observed that for the application of the first part of the last column, it must have been possible for physical possession to have been given at the time of the sale and that sale of property (not by registered instrument), which was subject to mortgage, would also be within the operation of article 10. Execution of a mortgage of immoveable properly did not transfer to the mortgagee all interest in the property, leaving the mortgagor only with an incorporeal equity of redemption. The mortgagor remained owner of the property subject to the mortgage and his right to redeem was not an equity but a statutory right under the Act. When there had been a simple mortgage of property followed later by a sale by the mortgagor, it may well be that no impediment existed to the purchaser from the mortgagor taking under the sale immediate physical possession of the whole of the property which naturally would include the ''whole of the property sold.'' If this was so and if in fact possession was so taken, article 10 had obvious application However, in most cases, where the property was subject to usufructuary mortgage, physical transfer of possession under the later sale would not be possible. But there may be instances, for example, where possession under the usufructuary mortgage had not been taken by the mortgagee, when immediate physical recession under the later sale deed was possible and to such instances article 10 might apply.

While dealing with the import of sub-section (3) of section 30 of the Act, the learned Chief Justice observed that :

The wording suggests the desire of the Legislature to make section 30 a residuary clause, excluding so far as possible article 120, Schedule II, with its six year period. But clearly if the taking of physical possession of any part of the property in consequence of the sale is not possible or is not effected, section 30(3) can have no application. The principle underlying both article 10 and section 30 is that of the notice afforded to the pre-emptor by the transfer of physical possession or by the registration of the sale-deed. If the transaction of sale is effected in such manner that such notice has not occurred, resort to the residuary article 120 is unavoidable.

In Mohan Lal''s cast (supra), the question was at to whether to the facts of that case the provisions of article 10 or of article 120, Schedule II, were attracted That was a case of mortgage by conditional sale winch came into existence on 16th March, 19-3 According to a stipulation in the mortgage deed, the property was to be deemed to have been sold to the mortgagees if it was not redeemed within two years. The period of two years expired on 16th March, 1945. It was accordingly urged in that case that since the suit had not been filed within one year from that date, that is, 16th March, 1945, as envisaged by article 10 and the suit, in fact, being filed on 12th August, 1947, the same was barred by time. It was argued that the condition in the mortgage-deed should be deemed to have be come absolute automatically on 16th March, 1945, when the period of two years stipulated in the mortgage deed expired. Nawal Kishore, J, who delivered the opinion for the Bench, repelled the contention with the following observations :

This, however, is not a correct view inasmuch as in order to convert the mortgage into a sale, it is incumbent on the mortgagee to resort to some overt acts in the nature of a suit etc. and until this is done, the mortgage cannot definitely be said to have, terminated and until that happens, the period of limitation for the institution of a suit for pre-emption will not start running In this case, the overt act on the part of the mortgagee to which the mortgagors seem to have submitted was the obtaining of a patta on 6th June, 1947 and counting the period of limitation from that date, the suit is within time. To such a case it is article 120, Limitation Act, which will apply and not article 10 as held by the learned District Judge. Accordingly, in our opinion, the suit has rightly been held to be within time.

Sub-section (3) and paragraph 2 of sub-section (1) of section 30 of the Act, insofar as they relate to the fixing of the starting point of limitation, are pari materia with each other and identical and, therefore, observations of the Full Bench of this Court in Kharati Ram''s case (supra) in regard to the matter, in which the sarting point was fixed by sub-section (3) of section 30 of the Act, would be attracted to a case where the starting point of limitation is fixed by the latter paragraph of sub-section (1) of section 30 of the Act.

The learned counsel for the respondent, however, urged that since the amendment sought by the petitioner, which was declined by the trial Court, was to result in injustice to the respondent, as he could not be placed in the position after amendment in which he was before the amendment if the amendment was allowed, particularly when the relief that the petitioner sought had become barred by limitation, so the amendment in question was rightly disallowed by the said Court. In support of his submission, he cited Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, and Haridas Aildas Thadani and Others Vs. Godrej Rustom Kermani,

There is no quarrel with the proposition enunciated by their Lordships of the Supreme Court but the propositions enunciated in those cases do not disentitle the present petitioner from seeking the amendment in question. Moreover, on fact, there is no merit in the contention of the learned counsel for the respondent. In view of the Full Bench decision of this Court in Kharati Ram''s case (supra), as already observed, the period of limitation for filing a pre-emption suit was still there when the application in question for amendment of the plaint was filed. In a situation of this kind where a fresh suit was competent the effort should be to avoid multiplicity of suits by permitting the plaintiff to seek the additional relief in the very suit, particularly in a case where the other relief can only be granted after the collusive decree is set aside and it is held that the given transaction, in fact, amounted to a sale.

Admittedly, the land in question forms part of an undivided Khewat, that is, the decree covered merely the share of the vendors of the undivided Khewat A transferee from a co-sharer is not entitled to the immediate physical possession of the share of the transferor in an undivided Khewat without seeking partition thereof, as has been held by a Division Bench of this Court in Kashmira Singh''s case (supra). In this view of the matter, the ratio of Kharati Ram''s case (supra) is straightaway attracted to the facts of the present case and the limitation in the present case would be governed by article 113, Schedule to the Limitation Act, 1963, which is equivalent to article 120 of the Limitation Act, 1908, and not by the provisions of article 97, which is equivalent to article 10 of Limitation Act, 1908, nor by the provisions of section 30 of the Act.

In view of the above, the impugned order is modified by allowing the amendments which the trial Court by the said order had declined and direct the trial Court to proceed in accordance with law on the, assumption that the suit was not only a declaratory one but was also for granting relief by way of pre-emption and fix the date for the deposit of one-fifth of the alleged sale price indicated by the petitioner. The revision petition stands disposed of accordingly with no order as to costs.