Rattan Singh and others vs Ram Parkash and others

D.S. Tewatia, J.—This Regular Second Appeal which had been amitted to Division Bench has arisen out of a suit for possession by way of redemption filed by Rattan Singh and Puran Singh sons of one Vakilo. The trial Court dismissed the suit and on appeal the lower appellate Court sustained the judgment and decree of the trial Court.

The facts are not in dispute and these can be stated thus :--

Vakilo enjoying occupancy tenancy rights in the land in dispute sold the said rights on 7th July, 1934 to predecessor-in-interest of the defendant-respondents, Vakilo died on 19th January, 1977 and thereafter the plaintiffs became his sole successors and legal representatives on the basis of a valid will dated 7th December, 1966 registered on 9th December, 1966. Rattan Singh plaintiff herein appellant challenged the said alienation on the part of his father on the ground that occupancy rights in the property being ancestral in nature, the same could not have been alienated and that alienation was without consideration as also without legal necessity. The trial Court decreed the suit on 17th October, 1945 and held the alienation of the occupancy tenancy rights as invalid qua the plaintiff i. e. Rattan Singh and the reversioners by holding that the rights in the suit land i.e. the occupancy rights were ancestral in character; that the alienation was without consideration and was without legal necessity and also that it was not an act of good management.

On an appeal the appellate Court vide its order dated 23rd January, 1946, sustained the finding of the trial Court regarding the ancestral nature of the rights in the alienated property as also in regard to the fact that the alienation was not for legal necessity nor was it an act of good management. The lower appellate Court, however, held that alienation was for a consideration of Rs. 2,900/-. The appellant Court further observed that it was more equitable if the sale of the occupancy rights in the land by Vakilo is converted into mortgage for Rs. 2,900/- which was made to become operative on the death of Vakilo whereafter Rattan Singh or the legal reversionary would be entitled to redeem the mortgage on paymnnt of Rs. 2,900/-.

The Courts below have taken the view on the strength of a Division Bench of this Court in Khushi Ram v. Jaswant Rai (1966) 68 P.L.R. 922, that as a result of coming into force of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act 8 of 1953, alienee from Vakilo, father of the plaintiff-appellant herein became proprietor of the suit land and the mortgagee rights and the mortgage stood extinguished.

Another Division Bench judgment in Jiwan Singh v. Ram Kishan (1966) 68 P.L.R. 629, which was cited before the Courts below, which has taken the contrary view was not followed by the Courts below. The decision in Khushi Ram''s case (supra) was followed by the Courts below for the reason that the same was later in point of time and that Narula, J. as he then was, who had delevered the opinion for the Bench had distinguished Jiwan Singh''s case (supra) by observing that the rilevants observations of Mahajan, J. in that case were in the nature of obiter dicta.

We are of the opinion that observations of Mahajan, J. which has been termed as obiter dicta in Khushi Ram''s case (supra) appear to lay down correct law. We, instead of recording an opinion dissenting from the view which Narula, J., as he then was, had taken in Khushi Ram''s case (supra), consider it proper in order to avoid confusion that this case in which the finding of fact are not in dispute be decided by a larger Bench. We, therefore, direct that the papers of this case be placed before the Hon''ble Acting Chief Justice for constituting the larger Bench.

SA./- Surinder Singh, J.

JUDGEMENT OF THE FULL BENCH

Prem Chand Jain, Act. C. J.--In order to appreciate the controversy, certain salient features of the case may be noticed :--

One Vakilo was the last male owner of land measuring 163 Kanals. He sold his occupancy rights on 7th July, 1934, in respect of the said land for a consideration of Rs. 2,900/- through a registred sale-deed to Lachhman Dass father of Ram Parkash respondents No. 1 and Mehar Chand, prede-cessor-in-interest of respondents Nos. 2 to 5. Rattan Chand, plaintiff-appellant, who was minor at that time, filed a declaratory suit, challenging sale made by his father, on the pleas that the land was ancestral and the sale was not for legal necessity. The suit was decreed by the trial Court on 17th October, 1945, and the alienation was held to be not binding on the decendants of Vakilo, after his death. Lachhman Dass, Vendee, preferred an appeal, which was accepted to this extent that the sale of the occupancy rights was converted into mortgage, which was made to beceme operative on the death of Vakilo, whereafter Rattan Singh or the legal reversioners would be entitled to redeem the mortgage on payment of Rs. 2,900)/-. This decree passed by the Appellate Court became final as the matter was not carried any further. Vakilo died on 19th January, 1977, with the result Rattan Singh and Puran Singh sons of Vakilo filed a suit for possession by way of redemption of the land in dispute. The suit was contested by the respondents.

One of the pleas raised by the respondents with which we are concerned in this appeal is that Lachhman Dass who had purchased the occupancy rights had become the owner of the suit land during the life time of Vakilo by virtue of the Punjab Occupancy Tenants (Vesting of Proprietory Rights) Act, 1953 (hereinafter referred to as the Act) and as such the plaintiffs-appellants were not entitled to any relief, as the rights sold by their father to Lachhman Dass had ceased to exist. On consideration of the entire matter, the trial Court decided this point in favour of the defendants-respondents and it was held that by operation of law the respondents had become the owners of the land in dispute. Consequently, the suit of the plaintiffs was dismissed.

Feeling agrieved from the judgment and decree of the trial Court, the plaintiffs preferred an appeal, but did not succeed. Still dissatisfied, the present appeal has been preferred by the plaintiffs.

On 27th January, 1982 the appeal came up for motion hearing before a learned Single Judge of this Court, who admitted the same to hearing by a Division Bench. Thereafter, the appeal came up for hearing before a Division Bench. As is evident from the referring order, the Bench found that there was a conflict between the two Division Bench judgments of this Court in Jiwan Singh v. Ram Kishan2 and Khushi Ram v. Jaswant Rai1 and found that the controversy deserved to be resolved by a larger Bench. Consequently the matter was referred for decision by a larger Bench and that is how we are seized of the matter.

The only point that needs determination in this case is whether Lachhman Dass in whose favour Vakilo had sold the occupancy rights had become the owner of the land by operation of law. It was contended by Mr. Sarin, learned counsel for the appellant that as the tale in favour of Lachhman Dass had been converted into a mortgage, Lachhman Dass couid not become the owner of the land in dispute in view of the provisions of Section 3 of the Act. It was further submitted by the learned counsel that the sale of the occupancy rights was held to be not binding oa the reversioners, that Lachhman Dass during the life time of Vakilo could only enjoy the usufruct of the land in dispute, that Lachhman Dass could not be treated as an occupancy tenant of the land in dispute and that he could not by operation of law be deemed to have become the owner of the land in dispute. In the alternative it was submitted by the learned counsel that even if Lachhman Dass became the occupancy tenant and by virtue of the provisions of Section 3 of the Act had become owner of the property in dispute, then also, the effect of the decree passed in favour of the reversioners could not be taken away and that in case after the death of the alienor, a suit for possession is filed, then possession of the estate has to be given back to the reversioners.

On the other hand, it was submitted by Thakur Maluk Singh, learned counsel for the respondents, that after the sale, Lachhman Dass had become the occupancy tenant of the land in dispute, that on the appointed date, possession of Lachhman Dass was that of a occupancy tenant, that in view of the provisions of Section 3 of the Act, Lachhman Dass would be deemed to have become the owner of the land in dispute, that under the decree passed in favour of the reversioners the only right available to them was to succeed to the estate of Vakilo, that after the coming into force of the Act, the estate to which they could succeed ceased to exist, with the result that the decree would be deemed to have become infructuous and that the defendants who by virtue of the sale had become the occupancy tenants, would be deemed to have become the owners of the land in dispute. It was also submitted by the learned counsel tbat the conversion of the sale into mortgage by the District Judge, on appeal would have no bearing so far as the ripening of the right into full ownership of Lachhman Dass under the Act is concerned.

I have given my thoughtful consideration to the entire matter and find considerable force in the contentions of the learned counsel for the appellant. As is evident from the facts, Vakilo had transferred his occupancy rights in favour of Lachhman Dass but that alienation was successfully challenged by the reversioners and a declaration was granted in their favour that after the death of Vakilo they would be entitled to redeem the land on payment of Rs. 2,900/-. The result of that declaratory decree was that the sale of occupancy rights was held to be invalid, vis-a vis the plaintiffs and the defendants, However, the reversioners would take the benefit of the decree only after the death of alienor when the succession would open. So far as the interest of the defendants was concerned, it had become merely contingent, i.e. that on the death of Vakilo they were to lose that interest in the event of the reversioners filing a suit for possession within the period limitation. The right and title of the alienee to the estate would enure for the life time of the alienor. Section 3 of the Act has only enlarged the estate, which according to the decree is to go back to the reversioners on thiir filing a suit for possession. In my view the effect of the decree connot be taken away merely for this reason that as a result of the provisions of Section 3 of the Act, the rights of the occupancy tenants stand enlarged. The alienee, though by operation of law, may have become the owner of the estate, yet this right of theirs'' is precarious, as the estate of which they have become the owner is to go back to reversioners after the death of the alienor. On this aspect of the matter, with respect, I commend the view enunciated: by the Bench in Subedar Jiwan Singh''s case (''supra) and with respect unable to subscribe to the view on this question in Khushi Rani''s case (supra). The relevant observations from Subedar Jiwan Singh''s case (supra), on the point in issue, read as under:

It is common ground now before us that the creation of occupancy rights in ancestral land could only stand if it was justified by necessity. The declaratory decree declared the creation of such a tenancy invalid vis-a vis the plaintiffs and the defendents. The plaintiffs could only take the benefit of the decree at the time when the succession would open out and if they were the heirs at law to the subject matter of the declaratory decree. It is a settled rule of custom as well as of Hindu Law that a male owner lives so long his widow lives and the succession only opens out on the death of the widow. But if there is no widow left by the last male holder, the succession does open out at the time of the death of the last male-holder. In the present case, the succession opened out on the death of Gurdevi. The defendents interest in land had become merely contingent i. e. on the death of Gurdevi they will loss that interest. As soon as Gurdevi died, they were left with no interest in the land. The question then arises whether the coming into force of the Punjab Act No. VIII of 1953 does make any difference. In our opinion, it does not. Whether the law diminished those rights or increased those rights will not matter because the basis for the increase or the decrease were the five transactions which had been declared void as between the plaintiff and the defendants. The learned counsel for the respondents at this stage pressed into service the decision in Harnam Kaur v. Sawan Singh I.L R. 1959 P&H. 2333) for the proposition that the ownership rights, are not accretion to the occupancy rights, when by operation of law such rights are annihilated. The proposition was laid down while determining the question whether the vesting of proprietary rights in the widow, who before the Act was merely an occupancy tenant, kept the ancestral character of those rights. It was not the case where the question, as has arisen in the present case, fell for determination. Those observations must, therefore, be confined to the facts of that case.

In the present case, the alienees acquired occupancy rights. Those rights not only became precarious but also became void by reason of the declaratory decree. The decree kept alive those rights so long the alienor lived. They had to come to an end on his death and in case he left a widow, on her death. Therefore, whatever comes by reason of those rights will form part and parcel of the same and will suffer from the same infirmity with which those rights did suffer. The larger estate created by the Act will not vest in the alienees for whatever title they get to the land under the Act will ensure for the life time of the alienor in terms of the decree and on his death their rights in land would come to an end. Therefore, it hardly matters that the defendants acquired the proprietary rights. They could only hold those proprietary rights up to the death of the widow and after the death of the widow, those rights would pass on to the reversionary heirs. Moreover, section 3 does not deal with decrees. It does not nullify decrees whether they are declaratory or otherwise. The decree cannot be equated with custom as the learned Judge seem to have done. Custom merely gives a right to obtain a decree but it cannot be said that the decree is custom or usage. The decree had set at naught the alienation so far as the plaintiffs and the defendants are concerned. The decree binds them unless its binding force is taken away by law.

In whatever perspective the matter is examined, we are clearly of the view that the defendants could not defeat the plaintiffs'' suit. Their title was precarious and it enured only so long as the life of the alienor enured. Whether that life came to an end with his own death or with the death of his widow, did not matter. The alienation was non est so far as the plaintiffs are concerned. It was voidable at their instance and moment they avoided it, it became void. Therefore, as between the plaintiffs and the defendants it is futile for the defendants to urge that they are occupancy tenants and thus become the full proprietors of their occupancy tenancy.

In view of the afforesaid discussion, I hold that the plaintiffs are entitled to a decree for possession on payment of Rs. 2,900/.

It is further held that the view in Khushi Ram''s case (supra) does not lay down the correct law and, is, consequently, over-ruled.

No other point arises for determination.

For the reasons recorded above, we allow this appeal, set aside the judgments and decrees of the Courts below and pass a decree for possession in favour of the plaintiffs and against the defendants on payment of Rs. 2,900/-, In the circumstances of the case, we make no order as to costs-

D. S. Tewatia, J.

I agree.

(Sd.)/- I. S. Tiwana, J.