Harnam Singh and others vs Bishan Singh and others

Pritam Singh Pattar, J.—This is an appeal filed by Harnam Singh and others defendants against the judgment dated 30.h August, 1966, of Shri Sukhdev Singh Sidhu. D strict Judge, Barnala, passed for possession of area measuring 10 Kanals 7 Mirlas of land oat of Khasra No. 230 situate in the area of Patti Sekhwan and for an area measuring 43 Kanals 2 Mirlas situate in the area of Barnala details of which are given in the judgment.

The facts of this case are that Nand Singh was owner of 31 Bighas 16 Biswas of land, one eighth share of 5 Bighas and one-sixth share of 6 Bighas 16 Biswas of land situate in the area of Barnala and 10 Kanals 7 Marias of land situate in village Patti Sekhwad, as per details given in the heading of the plaint. Bishan Singh plaintiff was adopted by Nand Singh in accordance with the Punjab Agricultural Custom and executed a registered deed of adoption dated 16th October, 1935, in his favour Thereafter Nand Singh treated Bishan Singh plaintiff as his son and the plaintiff rendered him service and he treated Nand Singh as his father. Nand Singh died on 22nd August 1956. Bishan Singh plaintiff is the sister''s son of Nand Singh and was a resident of village Ghunas and taking advantage of his absence Harnam Singh, Ishar Singh, Jiwan Singh, Mst. Gurdev Kaur, Gurbachan Singh, Mst. Bhajan Kaur, Mst. Sujit Kaur and Mst. Bachan Kaur defendants took unlawful possession of this land left by Nand Singh and got mutation orders sanctioned in there favour from the revenue authorities. The plaintiff, therefore, filed this suit for possession of this land in suit on 6th July, 1964, alleging that he being the adopted son of Nand Singh deceased was entitled to inherit the land in suit and the defendants were in its unlawful possession and therefore decree for possession may be passed in his favour against them. The Consolidation of Holdings took place in Barnala and in lieu of the land left by Nand Singh the land in suit mentioned in the plaint was allotted. After the land in suit was (sic) in the names of the defendants they sold some area of the disputed land situate in Barnala to Sham Kaur and Balwant Singh defendants Nos. 9 and 10, and sold the entire land measuring 10 Kanals 7 Marlas situate in Patti Sekhwan to defendants 11 to 14 and therefore these defendants 9 to 14 were made parties to the suit as the sales in there favour were ineffective and invalid qua the plaintiff and they were not entitled to retain possession thereof. Defendants Nos. 1 to 8 in there written statements denied that the plaintiff was the validly adopted son of Nand Singh. It was pleaded--that on the basis of a registered d(ed Exhibit D-1, dated 17th July, 1951, Nand Singh repudiated and revoked the adoption deed, Exhibit P-l and that the plaintiff was not entitled to his property and they being his next heir were in rightful possession of the land. On these pleadings of the parties (he following issues were framed by the trial Court:--

Whether the plaintiff is the adopted son of Nand Singh ?

If issue No. 1 is pro\\ed, whether the plaintiff is entitled to get possession of the suit land ?

The Senier Subordinate Judge held that the plaintiff was the validity accepted son of Nand Singh deceased and was entitled to take possession of the suit land and he decided issue Nos. 1 and 2 accordingly. As a result decree for possession was passed in favour of the plaintiff against the defendants. Feeling aggrieved Harnam Singh, lshar Singh, Jeon Singh, Gurbachan Singh and Bhajan Kaur filed an appeal in the Court of the District Judge, Barnala, who modified the decree of the trial Court holding that the area of the land in suit in Barnala was 43 Kanals 2 Marlas and not 51 Kanals 11 Marlas, with this modification the appeal of the defendants Harnam Singh and others was dismissed, but the parties were left to bear their own costs. Feeling aggrieved Harnam Singh and other defendants filed this appeal alleging that the decision of the lower Courts was wrong and incorrect. It was alleged that the suit was barred by limitation under Article 6 of the Schedule of the Punjab Limitation (Custom) Act, 1920, and the Courts below had no jurisdiction to entertain the suit.

The decision of the lower appellate Court on issues Nos. 1 and 2 was not contested before me, by the learned counsel for the appellants and no arguments were addressed on these issues. The counsel for the appellants contended that this suit filed by Bishan Singh was governed by Article 6 of the Schedule of the Punjab Limitation (Custom) Act, 1920, hereinafter called Punjab Act 1 of 1920, and the plaintiff had six years period of limitation to file the suit from the date of death of Nand Singh which took place on 22nd August, 1956, but the suit which was filed on 6th August, 1964, was barred by time. The learned counsel for the respondents took an objection that this plea of limitation was neither taken in the written statement nor in the grounds of appeal in the lower appellate Court and therefore it should not be allowed to be taken for the first time in the second appeal. This contention is devoid of force. The question of limitation is a question of law and can be taken in the second appeal for the first time. In Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari, it was held that a question of law can be raised at any stage of the case and also in the final Court of appeal. Similar was the law laid down in Chanan Singh v. Gurbaksh Singh (1967) 69 PLR 1021. Section 5 of Punjab Act No, 1 of 1920, lays down that subject to the provisions contained in sections 4 to 25 (inclusive) of the Indian Limitation Act, 1908, and notwithstanding anything to the contrary contained in the first schedule of the said Act every suit, of any description specified in the schedule annexed to this Act, instituted after the period of limitation prescribed therefore in the schedule shall be dismissed, although limitation has not been set up as a defence. To the same effect are the provisions of section 3 of the Limitation Act, 1963 (Act 36 of 1963). Therefore the question of limitation is permitted to be raised for the first time in second appeal.

In the plaint it was alleged that the parties were governed by agricultural custom and it is mentioned in the deed, Exhibit P-1 date 16th October, 1935, that Nand Singh adopted Bishan Singh respondent according to the agricultural custom Article 6 of the schedule of the Punjab Limitation (Custom) Act, 1920, (Punjab Act 1 of 1920), reads as under:--

"Description of suit Period of limitation Time from which period begins to run.

A suit for possession of ancestral immovable property by a Plaintiff on the ground that he is an heir appointed in accordance with custom entitled thereto-

(a) if no declaratory decree of the nature referred to in article 5 is obtained. 6 years The date when his rights as such heir are interfered with.

(b) if such declaratory decree is obtained. 3 years The date of the death of the person making the appointment or if (such person is a female) of her death or of the forfeiture of her interest in the property or the date on with the declaratory decree is obtained which ever is latter.

In this case no declaratory decree had been obtained as mentioned in the above-said article and consequently this suit is governed by clause (a) of the above-mentioned article 6 of the Schedule of Act No. 1 of 1920.

The learned counsel for the appellant contended that according to this article the period of limitation for this suit started with effect from 22nd August, 1956, when Nand Singh died and the defendant-appellants took possession of this land and this suit which was filed on 6th July, 1964, was therefore barred by limitation. The learned counsel also referred to para No. 7 of the plaint wherein it was mentioned that the cause of action for this suit arose on 22nd August, 1956, when Nand Singh died and also in July, 1957 when the mutation order pertaining to this land was sanctioned by the revenue authorities in the names of the defendants.

The learned counsel for the respondent-plaintiff however, argued that this Article 6 of the schedule of Punjab Act 1 of 1920, applies only to ancestral immovable property and since the property could not be ancestral qua Bishan Singh plaintiff, and there was no such plea in the plaint to that effect, therefore, the suit was not governed by Article 6 of the schedule of Punjab Act 1 of 1920. In order to repeal this contention the learned counsel for the appellants relied upon AIR 1946 272 (Lahore) , where in it was held as under:--

The word ancestral property has not been defined in the Act and in the absence of any definition the ordinary dictionary meaning is to be given to it. If the rights on the basis of which the plaintiff was bringing the suit happened to belong to his father, they would be ancestral qua him and would, therefore, come within the ambit of column 1 of Article 6. (of the schedule of the Punjab Act 1 of 1920)

If Article 6 has to be applied, the property must be found to be ancestral property before the provisions of the article can be attracted. Obviously the article can apply only to plaintiffs and not to defendants. Therefore, it cannot be contended that the article will not apply as long as the properly was not proved to have been the ancestral property of the defendant.

The question whether the property of a maternal-grand-father in the hands of grand-son can be treated ancestral qua his sons and can be regarded as such and what is the meaning of the word ancestral property as used in Act 1 of 1920 came upto for consideration before a Full Bench of five Judges of this Court in AIR 1949 109 (P & H.) , wherein it was held:--

The property of a maternal grandfather in the hands of a daughter or of a grandson is not ancestral qua his descendants and therefore Act 1 of 1920, has no application to suits brought by such person to challenge alienation by female owners. The scope of Act 1 of 1920 is limited to those kinds of suits which are brought to safeguard rights by collaterals in respect of ancestral immovable property on the rule laid down in Article 59 of Rattigan''s Digest of Customary Law and the definition of ''ancestral property'' given in Explanation 1 of Article 59, of Rattigan''s Digest of Customary Law, is the definition in which that expression is used in Act, 1 of 1920. The dictionary meaning of ancestral immovable property cannot legitimately be considered in determining the meaning of that term in a statute which regulates the period of limitation for suits permitted by Punjab custom The term has a technical meaning in Hindu Law and any use of the dictionary meaning of the term in construing statutes dealing with Hindu Law subjects will be question role The same is the case where a statute regulates limitation for suits under custom.

In this ruling Ram Sarup''s case (supra) also come up for consideration. Mahajan J. who spoke for the Full Bench observed as under (at page 119, column 2):--

With great deference to the learned Judge, I am bound to observe that this decision is not very intelligible. The facts of the case were that the plaintiff sued the landlords of a certain tenancy claiming that as an adopted son under Hindu law he was a male lineal descendant of the last occupancy tenant and was entitled to succeed to the tenancy in view of the provisions of section 59, Punjab Tenancy Act. On those allegations I fail to understand how could Act 1 of 1920 be made applicable to that suit, the claim being based under Hindu law. Moreover, the Act would have no application to such a suit brought against the landlords of a tenancy under the provisions of the Punjab Tenancy Act. In view of the observations made above, it is not necessary to consider this decision at any great length.

Thus Rom Sarup''s case (supra) relied upon by the counsel for the appellants was commented upon in this authority.

Para 59 of Rattiganss Digest of Customary Law which book has been described as a book of unquestioned authority in the Punjab by their Lordships of the Privy Council in AIR 1941 21 (Privy Council) , states the principle on which suits of the description mentioned in Act 1 of 1920, are governed. It says that "ancestral immovable property is ordinarily inalienable, except for necessity or with the consent of male descendants, or, in the case of a sonless proprietor, of his male collaterals. Provided that a proprietor can alienate ancestral immovable property at pleasure if there is at the date of such alienation neither a male descendant nor a male collateral in existence." Explanation 1 to this article gives definition of ancestral immovable property in these terms:--

Ancestral property within the meaning of this section means, as regards sons, property inherited from a direct male ancestor, and as regards collaterals, property inherited from a common ancestor.

In AIR 1937 233 (Privy Council) , it was held that the property of a maternal grand father in the bands of a grandson cannot be held to be ancestral property.

For the reasons given above it is held that the scope of Act 1 of 1920, is limited to those kinds of suits which are brought to safeguard rights of collaterals in respect of ancestral immovable property on the rule laid down in para 59 of Rattigan''s Digest of Customary Law and the definition of "ancestral property" given in Explanation 1 of para 59 of the Rattigan''s Digest of Customary Law, is the definition in which the expression is used in Act 1 of 1920. The dictionary meaning of ancestral immovable property cannot legitimately be considered in determining the meaning of that term in a statute which regulates the period of limitation for suits permitted by Punjab custom. In order to make Article 6 of the Schedule of Punjab Act 1 of 1920, applicable it must be shown that the property in suit is ancestral qua the plaintiff and unless this is done the ordinary rules of limitation as laid down in the Limitation Act are to apply. In the instant case there is no allegation, much less any proof on the file that the property in suit is ancestral qua the plaintiff and therefore Article 6 of the Schedule of Punjab Act 1 of 1920, does not apply and the suit is governed by the Limitation Act, 1963 (Act No. 36 of 1963) and Article 65 of that Act prescribes 12 years period of limitation from the date when the possession of the defendant becomes adverse to the plaintiff Nand Singh deceased was admittedly in possession of this land till 22nd August, 1956, and this suit which was filed on 6th July, 1964, was clearly within limitation. For the above reasons it is held that the contention of the learned counsel for the appellants that the suit was barred by limitation is incorrect and is rejected.

Before concluding the judgment I may mention that Nand Singh deceased was himself the adopted son of one Dalel Singh of Barnala. The defendants appellants did not allege that the land in suit was ancestral qua them Consequently they could not contest the appointment of an heir under the Customary Law by Nand Singh. Moreover it is admitted and is also proved from the contents of Exhibits P-1 and D-l, and the oral evidence of the parties that Bishan Singh plaintiff is sister''s son of Nand Singh deceased and consequently according to section 8 of the Hindu Succession Act, 1956, and the schedule of that Act he is a preferential heir of Nand Singh deceased than the defendants-appellants who are his collaterals.

No other point was urged before me. There is no force in this appeal and I dismiss the same. In view of the point of law involved the parties are left to bear their own costs.