Chand Singh vs Shrimati Ind Kaur and others

Muni Lal Verma, J.—The suit, which culminated in the second appeal, was instituted by Chanda Singh for possession of land, measuring 16 Bighas 9 Biswas 2 Biswansis, described in the heading of the plaint (hereinafter called the land) and for recovery of Rs. 960.38, against the defendant-respondents.

The case of Chanda Singh was that Kola Singh and Dola Singh owned land, measuring 34 Bighas 19 Biswas 2 Biswansis, in equal shares. Kola Singh and Dola Singh were real brothers. On 6th July, 1910, Kola Singh sold one-half of the said land, that is, 17 Bighas 9 Biswas 11 Biswansis, to Ram Singh, who was father of Ind Kaur, for Rs. 800/-. Ram Singh sold one-half of the said purchased land, to Smt. Basanti and Harlal Singh deceased who was father of Smt. Dial Kaur, Jito and Bachni, respondents. Thereafter, Ram Singh and Harlal Singh sold some of that land in favour of Dola Singh. Smt. Basanti pre-empted the said sale and become its owner. Chanda Singh impeached the original sale of the land made by Kola Singh in favour of Ram Singh, under custom. He succeeded in obtaining the declaratory decree to the effect that the said sale would not effect his reversionary rights after the death of Kola Singh. Smt. Basanti was one of the defendants in the said suit and she preferred an appeal against the declaratory decree granted to Chanda Singh. Her appeal was dismissed on 25th February, 1920. She preferred second appeal to the High Court where the aforesaid declaratory decree was upheld on 9th March, 1923, though with modification that the sale would not affect the reversionary rights of Chanda Singh except to the extent of Rs. 475/-. Ram Singh died leaving behind Smt. Nihali and she to died leaving behind her daughter Ind Kaur. Smt. Basanti too died leaving behind Harlal Singh as her heir and he too died leaving behind Smt. Dial Kaur, Smt. Jito and Smt. Bachni, who are his daughters.

A small portion of the aforesaid land had been acquired by the State for construction of drainage and an amount of Rs. 1,435.38 was assessed as compensation for the same. Kola Singh died on 25th April, 1968, without widow, daughter or son. Therefore, Chanda Singh, claiming himself to be his heir being his brother''s son, brought the suit for possession of the land and also for recovery of the aforesaid amount alleging that succession to the aforesaid land and money had opened out to him on the death of Kola Singh and the sale effected by Kola Singh to Ram Singh was not binding upon him. He adjusted the amount of Rs. 475/- against the compensation amount and therefore, he claimed Rs. 960.38. The suit was contested by the defendant-respondents and they controverted the material allegations of Chanda Singh and pleaded that the suit was barred by time. So, the suit was tried on the following issues :--

(1) Whether there was declaratory decree dated 9th March, 1923 by which the alienations in favour of the predecessor-interest of the defendants were set aside except to the extent of Rs. 475/- ?

(2) Whether the plaintiff is entitled to claim Rs. 960.38 as compensation of the land obtained by the defendants ?

(3) Whether the suit is time-barred ?

(4) Relief.

The trial Court decided issue No. 3 against the defendants and findings issue Nos. 1 and 2 in favour of the plaintiff, decreed the suit in his favour. Aggrieved by the said decree, the defendants went in appeal which was allowed mainly because of the coming in force of the Punjab Custom (Power to Contest) Amendment Act, 1973, (Punjab Act 12 of 1973, hereinafter called the Amending Act) and the suit was dismissed. Dissatisfied with the said result, Chanda Singh has come to this Court in second appeal. I have heard the arguments.

The facts, that the appellant is son of Dola Singh who was real brother of Kola Singh, that the sale of the land, effected by Kola Singh, was successfully impeached by the appellant and he had obtained a decree from the High Court on 9th March, 1923, to the effect that the said sale would not affect his reversionary rights after the death of Kola Singh except to the extent of Rs. 475/- and Kola Singh died on 25th April, 1968, without widow, son or daughter, and that the land, which had been acquired by the State for drainage and for which Rs. 1,435.38 had been assessed as compensation, was out of the land which had been sold by Kola Singh, are amply borne out by the evidence present on record and are not disputed. The suit was instituted within one month after the death of Kola Singh, so, it was clearly instituted within the period of three years prescribed by Article 2 (b) of the Punjab Custom (Limitation) Act, 1920. As indicated above, the trial Court decided issue Nos. 1, 2 and 3 in favour of the appellant and the said findings were confirmed by the lower appellate Court. I too find no reason to differ from the Courts below respecting the findings of fact recorded by them on these issues. The lower appellate Court dismissed the suit thinking that the appellant had lost the right to claim possession of the land or recovery of the amount because his right to contest the sale of the land, effected by Kola Singh on 6th July, 1910, had been taken away by the Amending Act. The learned counsel for the respondents has also argued that the suit was not maintainable after coming into force of the Amending Act and that appellant had no right to claim any amount out of the compensation money. I cannot accept the said arguments and find myself unable to agree with the aforesaid approach of the lower appellate Court. True, the Amending Act has taken away the right to contest under custom an alienation of property effected by one''s collateral. But the right to contest an alienation is different from the right to succession. The Amending Act has simply taken away, the right to contest an alienation but it has neither affected the right of succession of an heir of the deceased nor it has the effect of abrogating the declaratory decree already obtained by him. To put it differently, a suit to contest under custom an alienation of ancestral land made by a collateral may notice and may not be maintainable after coming in force of the Amending Act, but it cannot be held that the declaratory decree already obtained by a reversioner in such a suit prior to the coming into force of the Amending Act, has been rendered a nullity or non-existent by the Amending Act. In the instant suit, Chanda Singh claimed possession of the land and also recovery of the amount on the basis of succession alleging himself to be the heir of Kola Singh. His instant suit was not to contest the alienation of the land effected Kola Singh. He had successfully impeached the said sale already long before the coming into force of the Amending Act. The decree declaring that the said sale would not affect his reversionary rights after the death of Kola Singh, except to the extent of Rs. 475/-, was obtained by him from the highest Court as back as on 9th March, 1923 and the said decree was final. It could not be, and was not, abrogated by the Amending Act. The sale of the land made by Kola Singh on 6 July, 1910, does not affect the right of succession which is available to the appellant being son of the brother of Kola Singh, vide clause IV (I) of the Schedule to the Hindu Succession Act, because of the aforesaid declaratory decree obtained by him from the High Court on 9th March, 1923, which as indicated above is not affected by the coming in force of the amending Act.

The land, which had been acquired by the State and for which compensation amount was assessed at Rs. 1,435.38, was from the land which had been sold by Kola Singh and the said sale had been the subject of the declaratory decree referred to above. Therefore, the aforesaid compensation money of Rs. 1,435.38 represents the said portion of the land acquired by the State and should be deemed to be included in the land which had been sold by Kola Singh and respecting which the declaratory decree, referred to above, had been passed. Therefore I, disagreeing with the learned counsel for the respondent find myself in agreement with the Courts below that the appellant was entitled to adjust Rs. 475/- which were to paid by him while claiming possession of the land, as intended by the declaratory decree, and he was entitled to claim the balance amount of Rs. 960.38 it, thus, follows from the above that the approach of the lower appellate Court that the appellant could not maintain the suit because of coming into force of the Amending Act is neither sound nor can be accepted as legal. As such, dismissal of the suit, recorded by it, cannot be upheld and the appeal succeeds.

Consequently, I allow this appeal, set aside the decree of the lower appellate Court dismissing the suit and restore the decree passed by the trial Court. The respondents will pay the costs to the appellant throughout.