Mani Ram and others vs Dharam Singh and others

P.C. Pandit, J.—On 28th August, 1953 Raghbir Singh sold the land in dispute to Mani Ram and three others for Rs. 8.000/-. The sale deed was, however, registered on 26th March, 1954. On 27th October, 1960, Dharam Singh minor, son of the vendor, brought a declaratory suit challenging the alienation made by his father on the usual grounds, namely that the parties were governed by custom, that the property sold was ancestral and that the sale had been effected neither for consideration nor for necessity and the same was, consequently, not binding on him.

The suit was contested by the vendees, who pleaded that the land was not ancestral, that the sale was for consideration and legal necessity, that the plaintiff had no locus stand to bring the suit, because he was not born on the date when the sale-deed was executed and that the suit was barred by limitation.

The trial Court decreed the suit holding that the land was ancestral, that the plaintiff had locus standi to file the suit, because he was conceived on 28th August, 1953, when the sale took place, that the suit was within time and necessity to the extent of only Rs. 2,000/- had been established. The learned Judge, however, did not give any finding on the point of consideration.

When the matter went in appeal before the learned Additional District Judge, Ambala, he modified the decree passed by the trial Court and granted the plaintiff a decree for possession of the land on payment of Rs. 1.200/-, because this was the amount, which he found to be for necessity The learned Judge, did not give any finding regarding locus standi of the plaintiff to sue, but he hold that the suit was within limitation. He also found that the land was ancestral and consideration for the sale had proved so the extent of Rs. 7,000/- only. Aggrieved by this decision the vendees have come here in second appeal.

The first question argued by the learned counsel for the appellants is that the plaintiff in the instant case had no locus standi to challenge the alien don.

It is common ground that if this point is decided in favour of the vendees-appellants, the suit must fail and no other point will arise for decision. It is come what unfortunate that the learned Additional District Judge has not given any finding regarding this matter and after mentioning this point, he observed that although it has been argued before him at great length, it need not be gone into what prompted him to say this is under stable. As I have already said, immediately after making a reference to this point, he discussed the question of limitation and held that the plaintiff''s suit was within limitation. Before I discuss this matter, it should be borne in mind that the question of locus standi should not be confused with the point of limitation. If a parson has no locus standi to file the suit, the same will be dismissed on that ground alone and the question of limitation'' and held'' that the plaintiff''s suit was within limitation. Before I discuss this matter, it should be borne in mind that the question of locus standi should not be confused with the point of limitation. If a person has no locus standi to file the suit, the same will be dismissed on that ground alone and the question of determining whether the suit is within limitation or not will not arise for decision. The two points are quite independent of each other. (See in this connection Kehar Singh and others v. Hazara Singh 14 IC 60).

Another point on which there does not seem to be any dispute Is that an after born son can contest an alienation by his father, if there was a collateral entitled at the date of transfer to object and If such collateral had not ratified the alienation prior to the birth.

In the present case, however admittedly, there was no other collateral when the plaintiff was born, who could have challenged this alienation and, consequently, the question as to whether such a collateral had ratified the said alienation does not some in for discussion. So the sole point to be determined Is whether the plaintiff In the present ease had locus standi to challenge the alienation made by his father.

There is no dispute about the fact that the plaintiff was born on 30th November, 1953. The sale deed by his father, as already mentioned above, was executed on 28th August, 1953 and the same was registered on 26th March, 1954. The first point which requires decision is whether the locus standi of the plaintiff to challenge the alienation has to be seen on the date of the execution of the sale deed or the date on which the said sale deed was registered. u/s 47 of the Indian Registration Act a registered document will operate from the time from which it would have commenced to operate. If no registration thereof had been required or made, and not from the time of its registration That being so, even though the sale deed in the Instant case was registered on 26th March, 1954, it would operate from 28th August, 1953, when it was actually executed The relevant date, on which the locus standi of the plaintiff is to be seen, in my opinion, therefore, will be the date when the sale deed was executed, namely, 28th August, 1953. This view of mine finds support in a decision of the Privy Council. In AIR 1927 42 (Privy Council) . In that case, the question that arose for decision was whether an adoption of a son by a Hindu made after the execution and delivery of a deed of gift but before it was registered, rendered the deed void as against the adopted son. There also the gift-deed would not have been operative. If the same had not been registered. After discussing the law on the subject, the Privy Council came to the conclusion that although the gift-deed was registered subsequently, but since after the registration, the deed would take effect from the date when it was executed, the adopted son would have no right to challenge the same, because he had been adopted after the execution of the deed. Applying the same analogy to the instant case, although the sale-deed had been registered en 26th March 1954, it would be operative from 28th August, 1953 and this would be the relevant date to determine the locus standi of the plaintiff to excellence the alienation.

The next question to be considered is should the plaintiff be actually born on that date in order to clothe him with the right to challenge the alienation or would it be enough even if he was conceived and not actually born on the said date?

This question has (sic) in the instant case, because admittedly, the plaintiff was not actually born on the said date, but there is no doubt that he was in (sic) on that date. This question has been answered in favour of the plaintiff by a Division Bench of the Lahore High Court in AIR 1929 254 (Lahore) , where it was held :

For certain purposes a child on ventre la mere is to be considered as born and the right of a son to take objection to the alienation made by his father dates not from the hour of his birth, but from that of his conception.

I hold that the plaintiff had the locus standi to challenge this alienation, because admittedly, he was conceived when the alienation, took place on 28th August, 1953. Even assuming for the sake of argument that the date for finding out the locus standi of the plaintiff was the date of the registration of the document, namely 26th March, 1954, as argued on behalf of the plaintiff, he would have a right to sue because he was actually born much before the date of registration.

The second question argued by the learned counsel is that the suit in the instant case was filed beyond limitation. It was contended that the plaintiff was not born on 28th August, 1953, and therefore, he could not take the benefit of his minority. For this, he relied on a Bench decision of the Lahore High Court in AIR 1939 290 (Lahore) , where it was observed:--

Although under certain system of law, such as Hindu law, a child on ventre so mere is by legal fiction and for certain purposes considered to be born in the sense that he has a right of inheritance In his father''s property, such a fiction does not govern the rule laid down by the law of limitation. Under the law of limitation, minority begins at the date of birth and not at the date of conception.

After hearing the counsel, I find that there is no merit in this contention. In the instant case, the limitation of six years for challenging the alienation in question is given in articles I of the Punjab Limitation (Custom) Act I of 1920. There it is mentioned that if the alienation is by a registered deed, the limitation of six years will commence from the date of the registration of such deed. Article I relates to a suit for a declaration that an alienation of ancestral property will not be binding on the plaintiff after the death of the alienor. Admittedly the present case was one which was governed by this Article. That means the limitation for filing such a suit had to commence from the date when the sale deed in the instant case was registered. As I have already mentioned above, the sale-deed though executed on 28th August, 1953, was actually registered on 26th March, 1954 and the limitation had to commence from the latter date. On that date, admittedly, the plaintiff was actually born and was in existence. That being so, the Bench decision of the Lahore High Court in Firm Chuni Lal-Rati Rum''s case, relied on by the learned counsel for the appellants, would not apply.

It was then submitted by the learned counsel that the date of registration should be taken to be 28th August, 1953 when the sale deed was actually presented before the Sub Registrar for registration. For this submission, he relied on the minority decision of Ram Saran Lall and Others Vs. Mst. Domini Kuer and Others, I am, however, bound by the majority decision on this point given in that very ruling, where it was observed that the sale-deed would not be complete unless the same had been registered and the registration would be completed only when the document had been copied out in the record of the registration office as provided u/s 61 of the Registration Act. It was so done on 26th March, 1954, in the present ease. The result is that the limitation for the suit would start from that date. The plaintiff was admittedly, a minor on that date and, therefore, he could take the benefit of his minority u/s 6 of the Limitation Act.

The last point that was argued was that the entire sale in the instant case was for necessity and the plaintiff should have been nonsuited on that ground

The trial Court held that necessity to the extent of Rs. 2,000/- only had been established. The lower appellate Court, on the other hand, observed that only Rs. 1,200/- were found to be for necessity and it, consequently, gave a decree for possession of the land in dispute after the death of the alienor on payment of Rs. 1,200/- to the vendees. It was contended by the learned counsel for the appellants that it was proved on the record that the alienor was a Lambardar and a Member of the Panchayat, who owned 225 Bighas and 10 Biswas of land, out of which he had sold only 37 Bighas and 10 Biswas. Most of the land was barren and at the time when the alienation took place, the alienor had no son and, consequently, when a representation from such a person was made to the alienees that the money was required for agricultural purposes and purchase of bullocks, they believed him and purchased the land from him. A mere representation could have been accepted and under these circumstances, the sale should have been upheld. For this submission, he placed his reliance on the Privy Council decision in AIR 1938 77 (Privy Council)

While dealing with this matter, the learned Additional District Judge, has observed :

Lal Ram D.W.2 who is one of the attesting witnesses of the sale deed stated that the sale was made by Raghbir Singh as he required the money for the purchase of bullocks, repair of a well and the Installation of a tube well. According to him the alienor purchased two bullocks for Rs. 1200/- and also spent Rs. 500/- or Rs. 700/- on the repair of a well. Mangal Ram D.W. also stated that the alienor made the sale for the purchase of bullocks, sinking of a well and fixing of a door to his house. A reference to the sale deed will show that no such necessity has been mentioned therein. It has simply been stated that the alienor required money for his agricultural pursuits and also for the purchase of bullocks. If the alienor and the alienees knew that the money was required for the sinking or the repairing of a well or the fixing of a door, it must have found a mention in the sale deed itself. There is nothing on the record to show that the alienees made any enquiries about the existence of necessity for the sale under attack. Raghbir Singh alienor was examined as P.W. 8. He denied that he sunk any well, or installed a tube well or constructed any house. He however, did not deny the purchase of bullocks. In the circumstances, the sale cannot be said to have been made for legal necessity except to the extent of Rs. 1200/- which were spent for the purchase of bullocks.

On the present record, there is no evidence to show that the purchasers made any enquiries about the existence of necessity. In the sale-deed also, the items of necessity had not been mentioned and all that was stated was that the money was required for agricultural purposes and purchase of bullocks. The learned Judge had allowed Rs. 1,200/- with regard to the purchase of bullocks. In the Privy Council case, relied on by the learned counsel, it was held :

The onus lies on the alienee to prove either that there was legal necessity in fact which would justify the alienation or that he made a proper and bona fide enquiry into the alleged necessity and satisfied himself as to the existence of such necessity. If he fails to prove that there was a necessity in fact, alienation may still be upheld if he proves that he made enquiry as to the existence of the alleged necessity, and that the facts represented to him wars such as if true, would have justified the transaction. If he discharges this burden, he is not bound to see that the money paid by him is actually applied by the alienor to meet the necessity.

It would be apparent from what has been quoted above that even if the alienor is unable to prove actual legal necessity for the sale he could be protected, if he could show that he nude an enquiry as to the existence of the alleged necessity and that the facts represented to him were such as would have justified the sale Mere representation, therefore, was not enough. One has to go further and prove that the alienee did make an enquiry as to the existence of the alleged necessity end also that the facts represented to him were such which could have justified the transaction. If this burden is discharged, then, obviously, the alienee has not to lock to the application of the money. In the circumstances of this case. I am not inclined to disturb the finding of the learned Additional District Judge on this point.

The result is that this appeal fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.