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indar Ram Vs. Iqbal Mohd. and ors. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana
Decided On
Reported inAIR1948P& H5
Appellantindar Ram
Respondentiqbal Mohd. and ors.
Cases ReferredRahman v. Surajmal A.I.R.
Excerpt:
.....myself in respectful agreement, are clearly applicable to this case and farmaish khan and ali mohammad plaintiffs cannot be said to have ceased to be entitled to impeach the alienation merely because they did not sue to avoid the sale within the time allowed by law a declaratory, decree in respect of the sale having actually been passed in, a suit brought by one of the three sons of the vendor the suit for possession by the other persons found entitled to succeed at the time of the succession opening out is clearly governed by clause (b) of article 2 of the schedule to article 1 of 1920 and having been brought within three years of the date of the death of the vendor the plaintiffs are clearly entitled to the decree claimed by them......in suit subject to payment of a sum of rs. 1226-13-0 which in the declaratory decree passed in the suit brought by iqbal mohammad had been held to be a valid charge on the land. the defendant appealed to the learned district judge but without success. he has come up in second appeal to this court.2. after hearing the learned counsel for the appellant, i am of the opinion that this appeal is wholly devoid of force. section 8, punjab act (1 of 1920) provides that when any person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him according to custom the decree enures for the benefit of all persons entitled to impeach the alienation. there can be no doubt as to ali mohamad and farmaish khan plaintiffs being entitled to impeach the alienation.....
Judgment:

Achhru Ram, J.

1. This second appeal has arisen under the following circumstances. Amanat Khan, the father of Iqbal Mohammad, Farmaish Khan and Ali Mohammad plaintiffs-respondents, sold, in the year 1926, 29 kanals and 5 marlas of land in dispute to Indar Ram defendant-appellant. Out of the three sons of the vendor, Iqbal Mohammad was a minor at the time of the sale. The aforesaid Iqbal Mohd, in 1988, brought a suit for a declaration to the effect that, the aforesaid sale should not affect his reversionary rights after the death of his father. At the time the suit was brought Farmaish Khan and Ali Mohammad had no subsisting right to bring a declaratory suit in respect of the sale by reason of the operation of the statutes of limitation, Iqbal Mohammad's suit was decreed. Amanat Khan vendor died on 15th November 1944. On 28th November 1944, his three sons brought a suit for possession of the land sold by him to Indar Ram basing their claim to possession on the declaratory decree obtained by Iqbal Mohammad declaring the sale to be invalid except for the lifetime of the vendor. The defenant admitted the claim of Iqbal Mohammad to a decree for possession of his one-third share in the suit land. He, however, contested the claim of the other two plaintiffs on the ground that they could not take advantage of the declaratory decree inasmuch as their own suit for a declaration that the sale should not affect their reversionary rights after the vendor's death had become barred by limitation at the time Iqbal Mohammad brought his suit. The learned trial Judge overruled this contention of the defendant and held that in view of the provisions contained in S.S. Punjab Act (1 of 1920), Farmaish Khan and Ali Mohammad plaintiffs were entitled to the benefit of the decree in spite of the fact that at the time the suit culminating in that decree was brought they had no subsisting right to bring a suit for a declaration in respect of the sale by reason of efflux of time. On this view of the case he granted the plaintiffs a decree for possession of the whole of the land in suit subject to payment of a sum of Rs. 1226-13-0 which in the declaratory decree passed in the suit brought by Iqbal Mohammad had been held to be a valid charge on the land. The defendant appealed to the learned District Judge but without success. He has come up in second appeal to this Court.

2. After hearing the learned Counsel for the appellant, I am of the opinion that this appeal is wholly devoid of force. Section 8, Punjab Act (1 of 1920) provides that when any person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him according to custom the decree enures for the benefit of all persons entitled to impeach the alienation. There can be no doubt as to Ali Mohamad and Farmaish Khan plaintiffs being entitled to impeach the alienation in question if the land was ancestral qua them and the alienation had not been made for legal necessity. That the land was ancestral qua them and that the sale was not for legal necessity except to the extent of Rs. 1226-18-0 is not disputed. Under the circumstances, their case clearly falls within the purview of Section 8. The mere circumstance that they did not bring a suit to challenge the alienation within the prescribed period of six years cannot be understood to indicate that they ceased to be entitled to impeach the alienation on the expiration of the said period. Except in cases covered by Section 28, Limitation Act, the effect of failure of a person to bring a suit for the enforcement of his right within the period of limitation allowed by the law does not involve a loss or extinguishment of the right itself but merely involves the Joss of the remedy given to him by the law for the enforcement of that right.

3. Mr. Jhanda Singh, the learned Counsel for the appellant, strenuously relied on the following observations in the judgment of a Division Bench of the Lahore High Court in Inder Singh v. Mian Singh 22 A.I.R.1935 Lah.391:

From the words entitled to impeach the alienation' used in Section 8, it appears that the Legislature intended to include those persons only who possessed in prasenti any right to challenge the alienation and to exclude those who either possessed no such title or having possessed it had lost it by their own act or by the operation of law. A right once lost cannot be regained and any decree obtained by those whose right subsists cannot entitle those who have lost their right to obtain possession on the basis of that decree. By no stretch of language, therefore, can tho word 'entitled' be taken to include those whose title is not alive. In its ordinary grammatical sense also the word 'entitled' is not equivalent to 'were entitled' or 'had been entitled' or 'may have been entitled' and it will be straining the language too far if the signification of this word is so extends d as to cover that title also which no longer exits and has been extinguished before the defore is obtained.The facts giving rise to the case in disposing of which the above observations were made were briefly these. The dispute related to the property of one Khewan Singh who had adopted one Ganda Singh as his son. Ganda Singh was succeeded by his son Bur Singh who died without issue leaving a widow Mt. Banti by name. Ganda Singh had a brother Hakim Singh whose sons took possession of the property inherited by Ganda Singh from Khewan Singh on the death of Bur Singh. Some time after this, Mt. Banti remarried. On her remarriage, the descendants of Khewan Singh's brothers sued for possession of the property left by Bur Singh on the ground that the line of the adopted eon of Khewan Singh having become extinct the property inherited by the former from the latter which was ancestral in the latter's hands qua the plaintiffs reverted to the plaintiffs as his reversioners. A part of the land in suit was found by the trial Judge to be non-ancestral qua the plaintiffs in Ganda Singh's hands. He, however, felt himself bound by a contrary decision with regard to that land in a previous suit brought by some of the plain tiffs to avoid an exchange of that land effected by Bur Singh during his lifetime. In that suit the land had been held to be ancestral qua the then plaintiffs and the exchange was accordingly declared to be invalid and inoperative against their interests. At the time the suit to avoid the exchange was brought more than six years, had expired since the date of the exchange and the plaintiffs who brought the suit had claimed exemption from the law of limitation on the ground of their minority at the time of the accrual of the cause of action. The other plaintiffs, in the suit brought after the remarriage of Mt Banti, had not joined in the suit brought to avoid the exchange for the obvious reason that they had allowed their limitation for such a suit to expire and were not in a position to claim exemption from the law of limitation on any ground. The question which the Bench was called upon to decide was whether the decision in the previous suit with regard to the character of the land, which formed the subject matter of the exchange, could operate as res juaicata in the subsequent suit for possession. The Bench was of the opinion that the rule of res judicata did not and could not operate in favour of the persons who were not parties to the previous suit and that the aforesaid suit could not be regarded as a representative suit within the meaning of Expln 6 to Section 11. The question of the interpretation to be placed on Section 8 of Punjab Act (1. of 1920) did not directly arise and therefore the observations made by them with regard to the meaning and the implications of the aforesaid section cannot but be regarded as in the nature of obiter aicta.

4. With the utmost respect for the learned Judges who constituted the Bench I find myself unable to agree with the view expressed by them with regard to the implications of and the interpretation to be placed on Section 8. Punjab Act (1 of 1920). In making the observations quoted above and in taking the view to which they gave expression in those observations the learned Judges have obviously overlooked the distinction between the loss and extinguishment of the right itself in consequence of failure to bring an action for its enforcement within the time allowed by law and the mere loss of remedy, as distinguished from the right itself in respect of which that remedy was given by the law as a result of such failure. The learned Judges seem further to have lost sight of the rule of law deducible from the pronouncements of their Lordships of the Privy Council relating to the position of reversioners and reversionary interests. It it a settled law that till succession opens out the reversionary right is a mere possibility or spes successionis. This possibility is common to all the reversioners, for it cannot be predicated who would be the nearest reversioner at the time of the succession opening out. Although the law permits the institution of suits in the lifetime of a life tenant for a declaration that an alienation made by such life tenant is not valid, the suit which must ordinarily be brought by the nearest reversioner is not for his personal benefit. The object of such suit is to remove a common apprehended injury to the interests of all the reversioners, presumptive and contingent alike. Whatever form the decree passed in such a suit may be given, in effect and in substance it is a decree declaring that the alienation is not binding against the inheritance: vide Venkatanarayana Pillai v. Subbammal. 2 A.I.R.1935 P.C.142. See also Janaki Ammal v. Narayanasami Aiyar. 3 A.I.R.1916 P.C.117. Under these circumstances there can be no justification at all for assuming as the learned Judges of the Lahore High Court appear to have done that a decree obtained in respect of an alienation by a life tenant can be regarded as a decree in favour of or benefiting only soma of the reversioners and not the entire reversionary body.

5. It is to be observed that ordinarily a reversioner although he has the right to do so, is not bound to sue to avoid the alienation by a life-holder before the succession opening out and the person entitled to succeed at the time the succession opens out can straightway bring a suit for possession of the property alleged to have been wrongfully alienated by the life holder, and normally has a period of 12 years either under Article 141 or Article 144 according as the alienor was a female or a male within which to sue for possession of such property. Punjab Act, I of 1900 for the first time imposed limitation on the rights of the reversioners by enacting that a suit for possession of ancestral property alleged to have been wrongfully alienated must be brought within 12 years of the date of the alienation except where a declaratory decree declaring the alienation to be invalid except for the life-time of the alienor had already been obtained. Punjab Act 1 of 1920 reduced this period to six years. Once a declaratory decree in respect of the alienation has been obtained this artificial limitation on the normal right of the person, who at the time of the succession opening out is found to have the right to succeed, to sue for dispossession of the party holding under a wrongful alienation, ceases to be operative, it being wholly immaterial whether he himself obtained the declaratory decree or it was some other reversioner who did so. Section 8 of the Punjab Act I of 1920 merely extends a statutory recognition to this principle which must be deemed to be otherwise implicit in the view that has been taken by the Privy Council as to the position of reversioners and reversionary interest.

6. More recently the question came up for consideration before a Full Bench of the High Court, Lahore, of which my Lord the Chief Justice of that Court was also a member and of which the judgment was written by Mahajan, J. The question that directly arose in that case was whether a son born to the alienor long after the alienation, who himself at the time of his birth, had no subsisting right to sue for a declaration in respect of the alienation made by his father, could claim the benefit of a declaratory decree obtained by a remoter reversioner. The question was answered by the Full Bench in the affirmative. The following observations in Rahman v. Surajmal A.I.R.1945 Lah.76 are quite apposite to the present case:

Another aspect of the same question is that the right ti impeach an alienation is not lost or made extinct by the expiry of the period of limitation. It is only the remedy that is lost in such a ease. Section 28, Limitation1 Act has no application whatsoever to declaratory suite of this nature. That section only governs suits for possession. That being so, the right of a reversioner; if he possesses it, and it was not denied that an after-born son does possess that right provided at the time of alienation some reversioner is in existence, cannot become extinct. All that is lost, if he is not born within the period of limitation on, is his remedy to enforce that right by suit In a case where the declaratory decree has already been obtained, by some representative of the reversionary body the Io3s 6f this remedy does not affect the after-born on. The remedy that was available to him was the same that was available to the presumptive reveraioner and relief having already been obtained concerning that single causa of action that was common to the after-born son and the presumptive reverioner no further relief regarding that matter could be given a second time The right, therefore being there and having not been lost by that expiry of limitation, on the other hand, the relief having already been obtained and the relief being of the same nature and kind which the after born son if his suit was within limitation, could have obtained, he is certainly one of the persons who is entitled to the benefit of that relief.These observations, with which I find myself in respectful agreement, are clearly applicable to this case and Farmaish Khan and Ali Mohammad plaintiffs cannot be said to have ceased to be entitled to impeach the alienation merely because they did not sue to avoid the sale within the time allowed by law A declaratory, decree in respect of the sale having actually been passed in, a suit brought by one of the three sons of the vendor the suit for possession by the other persons found entitled to succeed at the time of the succession opening out is clearly governed by Clause (b) of Article 2 of the Schedule to Article 1 of 1920 and having been brought within three years of the date of the death of the vendor the plaintiffs are clearly entitled to the decree claimed by them. For the reasons given above, the appeal fails and is dismissed with costs.


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