Mehar Singh and another vs Kartar Singh and another

Teja Singh, C.J.—This second appeal arises out of a suit brought by the sons of one Arjan Singh that the mortgage and sale of agricultural land made by their father was without consideration and necessity and since Arjan Singh''s power to alienate ancestral property was limited the alienations did not affect their reversionary rights. The vendees resisted the suit and pleaded, inter alia, that the land in suit was not ancestral qua the plaintiffs, that the suit was barred by time and the entire consideration for the sale and the mortgage was taken for a necessary purpose. The trial Sub Judge held that no part of the land had been proved to be ancestral. He further held that the mortgage as well as the sale were for necessity and the suit was barred by time. Accordingly he dismissed the plaintiffs'' suit. On appeal the District Judge came to the conclusion that the land in suit with the exception of three fields, viz., fields Nos. 529, 530 and 531, was ancestral and that necessity had been proved only to the extent of Rs. 675/- and consequently granted the plaintiffs a decree for possession of the land, other than the fields which he held to be non-ancestral, on payment of Rs. 675/-. As regards the question of limitation the judgment of the District Judge was altogether silent, about it. The vendees are the appellants before us.

The first point that has been argued before us by the appellants'' counsel is that of limitation. Both sides are agreed that the Punjab Limitation (Custom) Act of 1920 was applicable to the erstwhile Nabha State where the plaintiffs'' suit was filed and that since the suit was filed within six years of the date of sale which took place on 9-2-1996, it is within time in so far as it relates to the sale. It is, however, contended by the appellants'' counsel that the plaintiffs'' suit regarding the mortgage was barred by time. The Notification of the Nabha Government making the Punjab Limitation (Custom) Act (No. 1 of 1920) applicable to the State was published in the Nabha Government Gazette of 27th March, 1946 which corresponds to 14th Chet, 2002. The relevant part of the notification reads as follows:

whereas certain Acts, rules, regulations and notifications, having the force of law, enacted, issued or promulgated by the Punjab Government are being acted upon in the Nabha State but there are no formal orders of the Nabha Government making them applicable to the Nabha State and whereas it is expedient now to declare which of the said Acts, etc. shall be deemed to have been in force in and shall henceforth apply to the Nabha State, it is hereby notified that the following Acts, etc. as amended from time to time, in so far as they are not inconsistent with any law or Hidayat, for the time being in force in the Nabha State, shall be deemed to have been in force in the Nabha State and shall henceforth apply, mutatis mutandis, to the Nabha State.

The Punjab Limitation (Custom) Act, No. 1 of 1920, is one of the Acts mentioned therein. Relying upon the words of the Notification, the appellants'' counsel argued that the said Act should be deemed to have been applicable in Nabha State from the very date it was enacted by the Punjab Government and consequently it applied to the plaintiffs'' suit in so far as it related to the mortgage. In spite of the faulty language of the notification I am inclined to think that this contention must prevail. To start with it may be noted that the notification recognised the fact that the Act in question, as also the other Acts mentioned in the notification, had been followed in Nabha State even though they were not expressly made applicable. Then the notification says that the Acts should be deemed to have been in force. of course it is not stated from when they should be deemed to have been in force but reading the entire notification together I have no hesitation in coming to the conclusion that what was meant was that they should be deemed to have been in force from the respective dates on which they were first enacted by the Punjab Government. Then even if the Acts came in force in the Nabha State on the day the notification was published in the Gazette in view of the words of the notification they had a retrospective effect. In the view that I take I hold that the Punjab Limitation (Custom) Act applied to the present suit as it was instituted about 10 months before the publication of the notification. It is admitted that no suit was brought by the plaintiffs for a declaration in respect either of the mortgage or of the sale. So the case was governed by Art. 2 of the schedule to the above-mentioned Act according to which limitation for the suit was six years and time ran from the date on which the mortgage-deed was registered. Since the suit was instituted on 9-2-2002 and the mortgage was registered on 24-3-1994 it was barred by time vis-a-vis that transaction.

I may here mention that the plaintiffs'' counsel made an effort to show that even though the suit was instituted more than six years after the date of the mortgage it was within time because three of the plaintiffs were minors at the time of the mortgage and limitation period did not begin to run against them. The difficulty, however, is that no mention of this fact was made in the plaint nor was it proved that the plaintiffs other than Ajmer Singh and Hari Singh were in existence at the time the mortgage was effected. Now it is well recognised that before a plaintiff can be allowed to take advantage of the saving provisions of the Limitation Act he must allege in the plaint that his case comes within one of them and then prove the facts on the strength of which he is entitled to rely upon those provisions. Applying this rule to the present case it was the plaintiffs'' duty to allege that some of them were in existence at the time of the mortgage and were minors and hence the suit was within time but they made no such allegations in the plaint nor did they produce any evidence to prove this. Learned counsel drew our attention to a copy of the birth entry from the Register of Births of village Dhanna in which it was mentioned that Kartar Singh was born on 7-8-92, but not only this entry was not formally proved but no evidence was examined to show that it related to Kartar Singh plaintiff. In the circumstances no exemption from law of limitation can be granted to the plaintiffs on the ground that two of them were minors. As regards Ajmer Singh and Hari Singh it may be mentioned that they both withdrew their suit, Ajmer Singh made three applications, Exs. DB, DC and DD, wherein it was definitely stated that he gave up his claim against the vendees and Hari Singh plaintiff made a statement in Court which was to the same effect and was accepted by the trial Sub Judge. This means that even if the suit could be regarded as within time qua Ajmer Singh and Hari Singh, no relief could be granted to them because they had withdrawn from it.

The only other question which has to be decided is that of necessity. The sale was made for Rs. 2300/- and the consideration was made up as follows: Rs. 1200/- due to the vendees on account of the previous mortgage. Rs. 150/- taken at home as earnest money, Rs. 900/- to be paid before the Register at the time of the registration of the document and Rs. 50/- representing the cost of stamp paper and registration etc. As regards the item of Rs. 1200/- both sides are agreed that it represented the amount of the previous mortgage and since the plaintiffs'' suit has been held to be barred by time in respect of it no question of its being for necessity arises. Out of the remaining Rs. 1100/- the District Judge found that Rs. 625/-were expended by Arjan Singh for buying a pair of bullocks which he needed for cultivating his land and accordingly it was held that this amount was for necessity. The District Judge also allowed the item of Rs. 50/- representing the cost of registration etc., that is to say, he held Rs. 675/-out of the total amount of Rs. 1100/- for necessity. The plaintiffs'' counsel made an effort to convince us that this finding of the District Judge was erroneous and referred to the evidence of certain witnesses who deposed that Arjan Singh was a spendthrift and given to waste his property. (After considering the evidence and holding that all that could be said was that Arjan Singh probably did not do any work with his own hands and that in the matter of drinking he merely acted as an average village rustic, his Lordship proceeded:) The plaintiffs'' counsel also drew our attention to a revenue paper from which it appeared that Arjan Singh left about 700 bighas of land when he died and argued from this fact that the income from his land should have been sufficient and consequently there was no necessity for him to sell the land. Since, however, there is no evidence regarding the exact income of the land it is very difficult to base any definite conclusion merely on the fact that the land owned by Arjan Singh was about 700 bighas. What is significant is that the sale by Arjan Singh was assented to by one of his sons, viz. Hari Singh and this fact by itself should be sufficient to raise the presumption that the alienation had not been made as an act of waste or with a view to injuring the interest of his sons. This being the case and the bulk of the consideration for the sale as apart from the amount that was due to the vendee on the footing of the previous mortgage having been proved for necessity the transaction must be upheld.

In the result. I would allow the appeal, set aside the judgment and the decree of the District Judge and dismiss the plaintiffs'' suit. As regards costs I think this is a fit case in which the parties should be left to bear their own costs first because two of the plaintiffs withdrew from their suit and secondly because the remaining two were minors, and I would order accordingly.

Gurnam Singh, J.

I agree.