Kartar Singh Hira Singh vs Mal Singh Surjan Singh and Others

Teja Singh, C.J.—In order to be able to appreciate the facts of this appeal a reference to the following pedigree-table will be helpful:

NODH SINGH | ____________________________________________ | | | Jiwan Singh Khewan Singli Jhaba | | Surjan ______________ | | | | | Biru Mangal Chetu =Mst. Chahdo | (widow) Mal singh

On 7-3-1973 Samvat, Mst. Chando along with Surjan, Biru, Mangal and Chetu sold their respective lands to Hira Singh and his son Kartar Singh by means of a deed of sale in which were mentioned the land sold by each vendor and the consideration that she and they received for it. On 21-8-2003 Mai Singh son of Surjan Singh filed the usal suit for a declaration that the sale made in Kartar Slnsh''s favour being without consideration and necessity would not affect his reversionary interests. It may here be mentioned that by the date of the suit of the three sons of Khewan Singh, Mangal had died and so had Mst. Chando. Surjan died about Phagan 2004 when Mai Singh''s suit was still pending in the trial Court. On this the Plaintiff applied for permission to claim possession for the entire land sold by his father and1 half of the land sold by Mst. Chando instead of the declaration that he had claimed originally and for amending the plaint to this extent. This application of his was accepted and he was allowed to amend the plaint. The vendee joined issue with the Plaintiff on almost every point and further pleaded that the Plaintiff had no locus standi to maintain the action and that the suit was barred by time. As regards the Plaintiff being the son of Surjan Singh there was no dispute between the parties. The trial Court held that he was the reversioners of the other vendors. it further held that the suit was within time, the property was ancestral qua the Plaintiff and he was entitled to maintain the action. The following were the particulars relating to the land sold and the, consideration received by the different vendors.

-Surjan Singh sold 49 bighas and 13 biswas for Rs. 859-5-3, Biru, Chetu and Mangal sold 27 bighas and 10 biswas for Rs. 913/14/6 and Mst. Chando sold 97 bigh.as and 8 biswas for Rs. 1274/10/3. The finding of the trial Court was that consideration and necessity for these sales had been established to the following extent: The sale by Surjan for Rs. 248/5/3, the sale by Biru, Mangal and Chetu for Rs. 248/5/3 and the sale by Mst. Chando for Rs. 1083/10/3. In the result the trial Court granted the Plaintiff a decree for possession of the entire land alienated by Surjan on payment of Rs. 248/5/3 and for possession of half the land alienated by Mt. Chando on pay-ment of Rs. 541/10/6. As regards the land sold by Biru, Chetu and Mangal he dismissed the Plaintiff''s suit on the ground that it was specula�tive. Against this decree Kartar Singh preferred an appeal to the District Judge while the Plaintiff put in cross-objections. The District Judge dis�missed Kartar Singh''s appeal but accepted the cross-objections and decreed the Plaintiff''s suit in entirety. Kartar Singh is now the Appellant before us.

Two questions were urged before us, one that of limitation and the other that of consideration and necessity for the sale. I would like to deal with the second question first.

The point that the Appellant''s counsel stressed before us was that since the alienation took place more than 30 years ago and the suit had been instituted after a very long time, it was wrong on the part of the lower Courts to expect direct and meticulous evidence on each and every item forming consideration for the sale and to penalise the Appellant for not producing that kind of evidence. Counsel argued that the result of the delay in suit was that not only the Appellant''s father who initiated the transaction and paid the sale-money was dead but even the scribe, and the attesting witnesses of the sale-deed were no more. Counsel argued that Kartar Singh Appellant''s name was also mentioned as a co-vendee with his father, but he was just a child then and by the very nature of things he could not depose to any circumstances relating to the sale from his personal knowledge. In addition counsel emphasised the following points:

(i) Though Mst. Chando was a limited owner the immediate reversioners of her husband not only consented to the sale by her but sold their own lands along with her.

(ii) Surjan vendor''s son, i.e., Mal Singh Plaintiff, was alive at the time of the sale and it is not even alleged that either Surjan was addicted to evil habits or he had any motive to injure his son by throwing away his property for nothing. On the other hand the evidence examined in the case establishes that the father and son had always been living amicably and together,

(iii) The sale was evidenced by a registered document and mention was made in the document of the necessity of some of the items constituting the consideration,

(iv) The Plaintiff is now about 40 years old and he has not been able to explain why he did not consider it necessary to challenge the validity of the sale for all these years,

(v) Of the vendors Biru and Chetu are still alive but the Plaintiff did not have the courage of putting any one of them in the witness-box.

(vi) Hiru has a son who was born sometime after the sale; but no suit to challenge the sale has been made even on his behalf.

(vii) Hira Singh, father of Kartar Singh Appellant, was not a money lender. He was a Jat and was employed in the Army and there is nothing to show that he did or could take advantage of the vendors'' position..

(viii) It is in the evidence of Mt. Jasmer Kaur, mother of Kartar Singh Appellant, that Ralla, her husband''s Mukhtar who used to keep his accounts is dead and the books of account have been eaten up by white ants.

(ix) That Mal Singh Plaintiff himself did not come in the witness-box.

I must admit that some of "these points are quite weighty and it can be reasonably said that very slight evidence produced by the Appellant to establish consideration and necessity for the sale should be accepted in fact I was so much impressed by the above points that, but for a very glaring defect disclosed by the sale-deed itself, I would have gone to the length of presuming every fact mentioned in the sale-deed regarding the payment of consideration and the necessity thereof as correct. Counsel for the Plaintiff-Respondent argued that since the suit was within time no presumption whatsoever should be raised against his clients merely because he waited for thirty years before bringing the suit. In my opinion the question of limitation is altogether different from the effect of delay on the merits of the case. Thus when a suit is instituted within time even though a Plaintiff is guilty of laches it cannot be dismissed as barred by limitation, but when the result of the delay is that almost every bit of evidence that would have been available to an aliened had the suit, been brought promptly disappears in the meanwhile, the Court would be justified in holding. that the onus to prove necessity and consideration for the sale which lies upon the aliened is very light and, in an appropriate case, even in finding that mere recitals in the deed of alienation as regards necessity and payment of consideration are sufficient to discharge that onus. The difficulty in the present case however is that it is not possible to apply the above principle to it and it appears to me that the document itself affords inherent evidence on the point that what is stated in the sale deed regarding the payment of the different items forming consideration in respect of their sales is incorrect.

As regards Surjan Singh''s land which was 49 big has and 3 bis was in area the consideration of Rs. 859/5/3 was made up as follows:

i. Rs. 233-5-3 due to the vendee on account of the previous mortgage,

ii. Rs,. 15-0-0 on account of charge of registration etc.

iii. Rs. 11-0.0 paid for repairing the well,

iv. Rs. 500-0-0 on account of a bahi debt due to the vendor and

v. Rs. 100.0.0 said to have been paid before the Sub. Registrar.

The necessity for the sale was said to be the redemption of the previous mortgage and the payment of debts.

The consideration of the sale by Biru and his two brOrs. i.e. Rs. 913/14/G consisted of the following items:

i. Ks. 233-5-3 on account of previous mortgage,

ii. Rs. 15-0-0 for registration expenses.

iii. Rs. 24-0-0 for payment of arrears of land revenue,

iv. Rs. 11-0-0 paid for repairing the well,

v. Rs. 230-9-0 on account of bahi debt due to the vendee,

vi. Rs. 250-0-0 received for payment to one Kharg Singh who is alleged to be a previous creditor and

vii. Rs. 150-0-0 paid before the Sub-Registrar.

Mst. Chando was alleged to have been paid Rs. 1274/10/3, and the amount was made up of the following items:

i. Rs. 1073-10-3 on account of previous mortgages,

ii. Rs. 10- 0-0 paid before the Sub-Registrar and

iii. Rs. 191- 0-0 about which the document is altogofcher silent.

it cannot be said whether the omission was accidental or intentional.

As regards the previous mortgages their existence have been properly proved and it is not denied that the items that relate to them are for necessity, but what is argued is that the sale cannot be held to be for necessity, unless the necessary character of the items other than those required for redeeming previous mortgages is also established. This argument is in my opinion well founded. Now what is important to note is that one of the previous mortgages related to 80 big has and 8 bis was of land and the charge on this land was Rs. 699/15/9. This land was owned by different branches of vendors in equal shares. This means that Surjan and Mst. Chando had one-third share each in it while the remaining one-third share was that of Biru, Chetu and Mangal. The item of Rs. 233/5/3 which is common to the amounts said to have been paid to Surjan and Khiwan Singh''s sons represents one third share of the amount due on account of the said mortgage. The parties are agreed that the amount of Rs. 1073/10/3 which relates to the previous mortgages out of the amount said to have been paid to Mst. Chando also includes the amount of Rs. 233/5/3. The other important thing to be noted is that the land sold by Khiwan Singh''s sons was confined to their share of the land that was the subject-matter of the above mortgage. On the other hand the land sold by Surjan and Chando included 22 bighas and 21/2 biswas in the case of the former and 69 big has and 17 bis was in the case of the latter over and above their shares of the mortgaged land but the consideration paid to Surjan was less than that said to have been paid to Biru and his brOrs. while that paid to Mst. Chando was only Rs. 361/- more than the amount paid ta Biru and his brOrs. . The Appellant''s counsel argued that the land that was included in Mst. Chan do''s sale over and above the land that formed part of the mortgaged land was not worth anything. Let us assume that this fact is correct. What I cannot understand is why Surjan Singh should have been paid only Rs. 859/- odd for 49 bighas 13 bis was while Biru and his brOrs. got Rs. 913/- odd for 27 big has and 10 bis was. The Appellant''s counsel was unable to offer any explanation for this anomalous state of affairs and the conclusion to which I arrive is that the items paid for the three different sales except those that related to previous mortgages were not genuine and has been mentioned in the sale-deeds just to bolster up the amounts. In the circumstances only those items should be treated for necessity about which the Appellant was able to adduce positive and reliable evidence, and I agree with the District Judge that such evidence exists only in respect of the items which he has held proved.

Coming now to the question of limitation. Counsel for both sides are agreed that the suit for declaration was within time. They are further agreed that at the time the Plaintiff applied for converting the suit for declaration into that for possession so far as it related to the lands sold" by Mst. Chan do and his father Surjan, the suit for possession was barred by time. The reason why the suit for possession stood on a different footing from that of declaration so far as the question of limitation is concerned, is that while period for limitation for declaratory suits was extended by the Amending Act 11 of 2002, suits for possession continued to be governed by the original Limitation Act (Patiala Limitation Custom Act 2000). The law on this point was recently discussed by a Full Bench to which I was a member in - ''Sahib Ditta v. Mangal Singh'' AIR 1951 Pepsu 41 (P. B.) (A). The only argument that the Plaintiff''s counsel advanced in support of his contention that the suit for possession was not barred by time is that his suit as originally put in Court was within time and the circumstances which made him claim the relief of possession, were beyond his control. I agree that it was because of his father''s death that the Plaintiff had to change (the form of his suit but even if we treat the amended suit as having been instituted on the day on which the original suit was put in Court, it will still be barred by time for the simple reason that limitation for a suit for possession under Article 2 of the Patlala Limitation (Custom) Act 2000 was only six years to be coated from the date on which the deed of sale was registered. As mentioned above the deed was registered on 7-3-1973 while. The suit was instituted on 21-8-2003. This aspect of the case was entirely ignored by the District Judge and he overlooked the fact that whether the amended suit for possession should be taken to have been instituted on the day the amended plalnt was put in or on the day on which the suit was instituted originally it was barred by time.

Realising this difficulty S. Tehal Singh counsel for the Plaintiff-Respondent prayed that he toe allowed to withdraw the application that he made in the trial Court and by which he prayed that the suit for declaration be converted into one for possession and that a decree be granted to him in the terms of the original plaint. Mr. Jagan Nath counsel for the vendee-Appellant opposed this prayer. His argument was that after having once amended his plaint with the permission of the; port it is not open to the Plaintiff to revert to the original plaint.. Learned Counsel also argued that since the Plaintiff''s father died during the pendency of the case, it was no longer open to the Plaintiff to go on with the suit for declaration. This contention appears to me to be without force, because Mr. Jagah Nath concedes that had the Plaintiff not applied for amendment and ignored his father''s death which took place while the suit was pending in the trial Court, he could have gone on. with the original suit for declaration and the trial Court would have been competent to grant a declaratory decree in his favor in spite of the fact that owing to his father''s death the Plaintiff could seek further relief by way of possession. It was further argued by Mr. Jagan Nath that the prayer made by the Plaintiff''s counsel is tantamount to his request for further amendment of the plaint and this is clearly not a stage at which this amendment can be allowed. In the first place I do not agree with learned Counsel in construing the prayer of the Plaintiff''s counsel in the manner he. does and I regard it only as a prayer that his application for amendment of the plaint made in the trial Court and the amended plaint that he later on put in should be disregarded. Secondly even if it be regarded as a prayer for further amendment, there is no bar to its acceptance at this stage. As has been observed times out of number the rules of procedure are meant to enable Courts to do justice between parties and not to stand, in their way and as it appears to us that the, step taken by the Plaintiff''s counsel in the trial Court was wrong and was based upon the erroneous assumption that the suit for possession would be within time because the original suit for declaration was within time, it is only fair that we should allow him to retrace it, Moreover by accepting the prayer made to us we are only restoring the conditions as they stood in the trial Court and as has boon conceded by the Plaintiff''s counsel it was not at all necessary for the Plaintiff''s counsel to have his suit amended in the manner it was done.

As regards the sales made by the Plaintiff''s father and Mst. Chan do the Plaintiff was entitled to a declaratory decree because the entire amount said to have been paid for consideration was not proved to be for necessity. As regards, the sale made by Biru and his two brOrs. , the trial Court took the view that the suit in respect of it was speculative for the reason that Biru''s son was alive and the Plaintiff''s chances to succeed to the three brOrs. were remote. The learned District Judge set aside this view of the trial Judge because Biru''s I son was minor. It is true that when the immediate reversionary of the alien or happens to be a minor! it is open to the remoter reversionary to bring a suit for challenging the alienation, but the suit can still be dismissed because of being speculative if it is found, as we do in the present case, that the chances of the Plaintiff''s succession to the suit property are remote and the decree, if granted, will be altogether futile.

The result in my opinion is that the appeal be allowed in part and the decree granted by the District Judge be modified to the following extent: (i) As regards the sale made by Biru and his brOrs. the Plaintiff''s suit should stand dismissed and (ii) As regards the sale of 49 big has 13 biswas made by the Plaintiff''s father and the sale of 97 big has 8 bits was made by Mst. Chan do, Plaintiff be granted a decree for declaration that the said sale would not affect his reversionary rights except to the extent of Rs. 248/5/3 in the case of the former sale and Rs. 1083/10/3 In the case of the latter sale and that he would be entitled to the possession of the whole land sold by his father on payment of Rs. 248/5/3 and half of the land sold by Mst. Chan do on payment of Rs. 541/10/6 on his father''s death. I am aware of the fact that the Plaintiff''s father has already by died but the decree is being granted in this form because we are taking into consideration only the conditions that existed at the time the Plaintiff brought the original suit. In the peculiar circumstances of the case I would direct that the parties shall bear their own costs throughout.

Chopra, J.

I agree.