Jangir Singh vs Rulia and Others

Teja Singh, C.J.—R.F. As. Nos. 24 and 25 of 1950 arise out of the same suit and they will be disposed of by one order.

The suit property which consists of agricultural land and a house belonged originally to one Hardit Singh. . On Hardit Singh''s death the property devolved upon his widow Mst. Harnam Kaur, who mortgaged some of the land in favour of different persons at different times. On 27-9-2003 Mst. Harnam Kaur adopted Jangir Singh as son to her late husband and executed and got registered a regular deed of adoption in his favour. Harnam Kaur died only a few days after the last incident, i.e. on 4-10-2003. On 11-1-2004 the Plaintiffs who claimed to be the collaterals of Hardit Singh brought a suit for possession of the land as well as the house, against Jangir Singh and the mortgagees. As regards Jangir Singh their allegation was that he was never adopted by Mst. Harnam Kaur and that the transaction evidenced, by the deed of adoption was fictitious. It was mentioned in the deed of adoption that Hardit Singh had authorised Harnam Kaur to adopt a son to him. The Plaintiffs denied this fact and urged that even if Harnam Kaur had in fact adopted Jangir Singh, the adoption was opposed to the custom by which they were governed and consequently did not affect their reversionary, interest.

As regards the mortgages the Plaintiffs'' position was that they were all without consideration and legal necessity and the property being ancestral qua them they were entitled to take it back from the mortgagees on Mst. Harnam Kaur''s death without being called upon to pay anything in lieu of the alleged mortgages. The Plaintiffs impleaded one Charanji Lal also as a Defendant in the suit on the allegation that he was in possession of the house unlawfully and without any right.

All the Defendants resisted the suit. Jangir Singh pleaded that his adoption being according ''to the wishes of Mst. Harnam Kaur''s late husband, could not be legally challenged by the Plaintiffs. The mortgagees denied that the land was ancestral qua the Plaintiffs and further pleaded that they were all for consideration and necessity. Chiranji Lal admitted that he was in possession of the house but pleaded that his possession was by virtue of a sale that Mst. Harnam Kaur had made in his father''s favour on 22-3-1989. In addition the Defendants urged that the suit was barred by time.

The trial Judge at first framed the following six issues:

Whether the Plaintiffs are collaterals of Hardit Singh deceased and the land in dispute is ancestral qua the Plaintiffs?

Whether the suit is within limitation?

Whether Kishori Lal is a necessary party to the suit and if so, wha.t is its effect? (Kishori Lal was said to be one of the heirs of the person in whose favour according to Chiranji Lal Mst. Harnam Kaur sold the house),

Was Jangir Singh Defendant No. X adopted by Mst. Harnam Kaur deceased'' and if so, was the adoption valid according to law and custom?

Whether the alienations in question were effected for consideration and, legal necessity?

In case Issue No. 4 is proved in favour of Defendant No. l, have the Plaintiffs a locus stand to maintain this suit so far as other Defendants are concerned?

It appears that one of the Plaintiffs namely Harchand Singh and one of the Defendants ''namely Inder Singh died during the pendency of the proceedings in the trial Court. Applications to bring their respective legal representatives on the record were made, but it was contended that they were not within time. On this the following two issues were added:

Is the application to implead the legal representative of Harchand Singh deceased within time?

What is the effect of not bringing the legal representative of Inder Singh Defendant deceased on the file?

Both the additional issues were found in the Plaintiffs'' favour. As regards other issues the trial Court held that the Plaintiffs were Hardit Singh''s collateral in the fourth degree, that the land in dispute was not ancestral, that the house was ancestral qua, the Plaintiffs, that the suit regarding house was barred by time while it was within time so far as the land was concerned, that Jangir Singh''s adoption was not proved nor was it valid according to custom, that out of the mortgages only one, i.e. which related to property mentioned in Clause (3j) and was dated 11-8-1987 . was with consideration and necessity and that the Plaintiffs had the locus stand to challenge the adoption as well as the alienations. In the result the suit was decreed in respect of the land but was dismissed in so far as it related to the house and the mortgage of 11-8-1087. The first appeal (No. 24) is by Jangir Singh Defendant while the second (No. 25) is by the Plaintiffs.

Before adverting to the various points urged before us, I cannot help observing that the judgment of the learned Subordinate Judge particularly that part of it which relates to the question of limitation, was highly unsatisfactory. He started by discussing the effect of the Patiala Custom Act 2000 and being of the view that it applied to suits where the property was alleged or proved to be ancestral, held that the suit relating to the agricultural land was within limitation. It is curious that while coming to this finding the learned Judge did not say a word either regarding the date of adoption or the various alienations that were the subject-matter of the suit nor the date of the suit.

As I have mentioned above Jangir Singh was adopted or was alleged to be adopted by Mst. Harnam Kaur by a registered deed on 27-9-2003. Harnam Kaur died on 4-10-2003 and the Plaintiffs brought a suit out of which these appeals have arisen on 11-1-2004. Now even if I agree with the Sub Judge that because the property was alleged by the Plaintiffs to be ancestral and though the Defendants joined issue with them on this point, no evidence was adduced by either side and consequently the property was ancestral, the suit for possession of the property on the ground that the adoption was invalid would be governed by Article 4, Patiala Limitation (Custom) Act which lays down that where no declaratory decree is obtained, limitation period would be six years from the date on which the alleged adoption becomes known to the Plaintiff and if such declaratory decree is obtained the period is three years from the date on which the tight to sue accrues or the date on which the declaratory decree is obtained, whichever is later.

Now in this case mere reference to the dates in question would go to show that the suit was instituted within less than a year of the adoption and within less than three years of the death ot Mst. Harnam Kaur. This means that in whatever way the matter may be looked at, the question of limitation did not arise and the suit in so far as it related to adoption was well within time.

As regards the mortgages since the plain tiffs did not obtain declaratory decrees in respect of them limitation for the suit would be governed by Article 2 which is to the effect that if no declaratory decree is obtained limitation is six years from the date of the registration of the document if the alienation is evidenced by a document or from the date of mutation or possession as the case may be and if such declaratory decree is obtained three years from the date of the registration of the document etc. as in the case of a suit for declaration or from the date on which the right to sue accrued to the Plaintiff or the date on which the declaratory decree is obtained, whichever is later.

Now in order to find out in respect of which of the alienations the suit was hit by this article, it was necessary for the learned Subordinate Judge to take into consideration the date of each alienation, but this he did not consider necessary to do and merely held that the fields which were the subject-matter of the various mortgages were ancestral qua the Plaintiffs. According to the allegations contained in the plaint the suit was within time. How he came to this conclusion is not clear from the record, but the question is not material for the purposes of the appeals before us because none of the mortgagees has appealed and the decree in so far as it relates to them has become final.

All that we have to decide now in Jangir Singh''s appeal is whether the suit qua his adoption is within time and as I have already observed, on this point there is not the slightest doubt. In fact Mr. Atma Ram, learned Counsel for Jangir Singh himself conceded this point. Mr. Atma Ram at first made an effort to show that the adoption of Jangir Singh by Harnam Kaur was made in pursuance of the authority that her husband had given to her during his life time, but later on he admitted that the evidence against him was so overwhelming that he could not reasonably challenge the decision of the trial Court on this point.

Coming now to the Plaintiffs'' appeal. This is confined to the mortgage of 11-8-1987 Sam vat the consideration for which was Rs. 1000/-. The trial Court has given good reasons for coming to the conclusion that the legal necessity for this transaction has been established and Mr. Sunder Lal who argued the appeal on behalf of the Plaintiffs had to concede that he could not successfully challenge, that finding.

The other point urged by Mr. Sunder Lal was that the suit in respect of the house was within time. The trial Court in coming to the conclusion that this part of the suit was barred by time referred to an unregistered document dated 22-3-1989 Samvat which was relied upon by Chiranji Lal Defendant. The document showed that the house was sold by Mst. Harnam Kaur to Amin Chand father of Chiranji Lal for Rs. 500/-. This being the case the document was compulsorily reglsterable and could not be proved with a view to establishing title. The trial Court has observed that since Amind Chand and after him Chiranji Lal had been in possession, doctrine of part performance would apply and the Plaintiffs had only six years to bring a suit for declaration that the sale was not binding upon them and the suit not having been instituted within time the suit for possession was beyond time.

In my opinion this argument is the outcome of confused thinking and there is absolutely no scope for applying the doctrine of part performance in the present case. By turning to Article 1 of the Act it will be seen that it applied to a suit for declaration .that an alienation of ancestral immovable property will not according to custom foe binding upon the Plaintiff. The present is not a suit of that description and accordingly the said Article did not govern the case. Nor can the suit come within the ambit of Article 2 which relates to suits for possession of ancestral immovable property on the ground that the alienation is not binding upon the Plaintiff according to custom. I need not emphasize that with a view to seeing whether or not a particular Article of Limitation Act can apply it is the allegation in the plaint that has to be looked at and not the nature of the defence. As the present suit in so far as it related to the house was merely based ion the allegation that the Defendant Chiranji Lal was in unlawful possession of the house and the Plaintiffs neither in clear words nor by implication wanted any relief regarding the alleged sale by Mst. Harnam Kaur in Amin Chand''s favour, the trial Court was wrong in relying upon either of the Articles. The suit as framed clearly came within the ambit of Article 141 on the ground that the house was in the possession of Mst. Harnam Kaur and was wrongfully taken possession of by Chiranji Lal.

In my opinion the only provision of law that could be considered in the light of the allegations made by the Defendants is Section 28, Limitation Act which lays down that

at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

As I have already mentioned Chiranji Lal''s case was that the house had been sold by Mst. Harnam Kaur to his ancestors on 22-3-1989. If he had succeeded in proving this fact it could be urged on his behalf that the Plaintiffs had only 12 years from the date of the alienation to set aside the sale and since they had not done so, the sale had become final against them and it was no longer open to them to challenge it. Now before this plea could be taken successfully Chiranji Lal had to. establish two things: one that there was a sale in favour of his ancestor by Mst. Harnam Kaur on 22-3-1989 and second that the Plaintiffs had ''ailed to have the sale set aside by a suit within the time allowed to them by Article 2 of the Patiala Limitation (Custom) Act. So far as the sale is concerned, since it was alleged to have been evidenced by a document, it could be established only by proving that document, but as the document in this case was not registered it could not be admitted in evidence, nor could the Plaintiffs adduce any secondary evidence of such a document.

As regards the plea of part performance, It (Should be remembered that the doctrine of part performance is an equitable doctrine and it can only be availed of by parties to the transaction, which is alleged to have been performed partly or their representatives-in-interest. It is true that Chiranji Lal claims to be a successor-in-interest of the vendee, but the Plaintiffs cannot be regarded as the representatives of the alleged vendor, i.e. Mst. Harnam Kaur. In fact their interests are adverse to those of Mst. Harnam Kaur because they deny Mst. Harnam Kaur''s right to sell the property. In addition the Plaintiffs unlike Chiranji Lal do not lay claim to the property on the basis of the sale. On the other hand they impugn the very existence and the validity of the transaction. The other important fact which must be realised is that the Plaintiffs derive their interest not from Mst. Harnam Kaur but from the common ancestor from whom they and Harnam Kaur''s husband had descended. For all these reasons the doctrine of part performance can have no application to the present case.

Before I conclude this discussion I wish to Observe that even in a case where the Court comes to the conclusion that there has been part performance of a contract of sale it cannot use that finding as a proof of the factum of sale. The legislature has given effect to the equitable doctrine of part performance by amending Section 49, Registration Act and adding Section 53A to the T.P. Act. The proviso to Section 49 which was added by the amendment lays down that an unregistered document affecting immovable property and required by the Act or the T.P. Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53A, T. P. Act, 1882, or as evidence of any collateral transaction not required to be affected by registered instrument.

The relevant part of Section 53A reads as follows:

Where any person contracts to transfer for consideration any immovable property by writing and the transferee has in part;

performance of the contract, taken possession of the property or any part thereof and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession other than a right expressly provided by the terms of the contract.

A mere perusal of these Sections would show that neither of them hits the present case, i.e. neither of them could be relied upon in support of the finding that there was a legal and complete sale by Mst. Harnam Kaur in favour of Chiranji Lal''s ancestor and consequently the Plaintiffs had a right to bring a suit under Article 2 of the Patiala Limitation (Custom) Act for having that sale voided. In my judgment therefore Section 28, Limitation Act could not come into operation in this case either and the Plaintiffs'' suit in so far as it related to the house having been brought within a year of Mst. Harnam Kaur''s death, was within time.

The result is that R. P. A. No. 24 is dismissed- and R. F. A. No. 25 is accepted in part and the Plaintiffs'' suit for possession of the house is also decreed. Because of the peculiar circum- stances of the case, I would leave the parties to Lear their own costs throughout.

Gurnam Singh, J.

I agree.