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Lal Singh, Nihal Singh Vs. Punjab Singh Anup Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal Nos. 186 and 189 of 1951
Judge
Reported inAIR1957P& H69
ActsSoldiers (Litigation) Act, 1925 - Sections 11; Code of Civil Procedure (CPC) , 1908 - Sections 11
AppellantLal Singh, Nihal Singh
RespondentPunjab Singh Anup Singh and ors.
Appellant Advocate K.L. Gosain, Adv.
Respondent Advocate I.D. Dua, Adv.
DispositionAppeal allowed
Cases ReferredSundar v. Salig Ram
Excerpt:
.....whether the compromise did or did not have the effect of improving the widow's estate as regards the property left to her and also, what is important for the purpose of the present case, it was held that the principle that in respect of ancestral land, succession is a right derived from the common ancestor who first acquired the land, is not one which interferes with the ordinary application of the principles of res judicata, limitation and the like......the suits. | | ________________________________________|______ sher singh | | | (defendant no.2) nihal singh bhagwan singh dhian singh | (died on 18-12-1026) (died on 28-9-1933) (died issueless) lal singh (defendant no.1)the present appellant lal singh is said to have been adopted, by nihal singh and his wife mst. ratno while still a young child, the adoption being embodied in a registered deed dated the 15th of may 1923 though the actual adoption was said to have taken place some years before. the original deed was said to have been lost but proof by secondary evidence was allowed.nihal singh died on the 18th of december 1926 and his wife died a few days later on the 29th of december 1926. although mst. ratno had died so soon after her husband nihal singh's death, his land was at.....
Judgment:

Falshaw, J.

1. These two appeals (Regular Second Appeal No. 186 of 1951 and Regular Second Appeal No. 189 of 1951) have arisen in the following circumstances. First of all it is necessary to set out the following pedigree-table to show the relationship between the parties:--

BAGHEL SINGH

___________________________________________|__________________________________________

| | | | |

Buta Singh Jassa Sing Fateh Singh Anup Singh Maluk Singh

(Died issueless) | |

Khushal Singh Ancestors of the plaintiffs in both the suits. |

| ________________________________________|______

Sher Singh | | |

(Defendant No.2) Nihal Singh Bhagwan Singh Dhian Singh

| (Died on 18-12-1026) (Died on 28-9-1933) (Died issueless)

Lal Singh

(Defendant No.1)

The present appellant Lal Singh is said to have been adopted, by Nihal Singh and his wife Mst. Ratno while still a young child, the adoption being embodied in a registered deed dated the 15th of May 1923 though the actual adoption was said to have taken place some years before. The original deed was said to have been lost but proof by secondary evidence was allowed.

Nihal Singh died on the 18th of December 1926 and his wife died a few days later on the 29th of December 1926. Although Mst. Ratno had died so soon after her husband Nihal Singh's death, his land was at first mutated in her name in February 1927, but Lal Singh got the land mutated in his name as the adopted son of Nihal Singh in May 1927.

Before the end of that year Bhagwan Singh, the brother of Nihal Singh, brought a suit challenging the alleged adoption of Lal Singh and claiming Nihal Singh's estate. This suit, however, was compromised on the 8th of May 1928, a decree being passed on the basis of the statement of Bhagwan Singh In which he admitted Lal Singh to be the adopted son of Nihal Singh on the condition that Bhagwan Singh was to be allowed to remain in possession of Nihal Singh's land during his lifetime, and also that in the event of any son being born to Bhagwan Singh the said son should be the owner of one half share of Nihal Singh's land.

On the other hand if Bhagwan Singh died without leaving any son, Lal Singh was to be recognized as the owner of both Nihal Singh's and Bhagwan Singh's land.

2. Bhagwan Singh died without leaving any son on the 28th of September 1933 and about a year later his land was mutated in the name of Lal Singh, who thus became the owner of the whole of the land formerly held by Nihal Singh and Bhagwan Singh. .

3. The first of the two suits from which these appeals have arisen, i. e., Civil Suit No. 305 of 1946, was instituted by Ishar Singh etc., on the 28th of November 1946 claiming possession of 19/54 share of the land standing in the name of Lal Singh, whose natural father Sher Singh, is apparently still alive and was Impleaded as defendant No. 2, six other reversioners of Bhagwan Singh and Nihal Singh also being impleaded as pro forma defendants.

It was conceded in the plaint that the suit was brought about one year and two months beyond the period of 12 years following Bhagwan Singh's death, but each of the plaintiffs claimed an extension of limitation on the ground that he had been serving in the Army under war time conditions for periods which in each of their cases considerably exceeded one year and two months. They thus claimed the benefit of Section 11 of the Indian Soliders (Litigation) Act IV of 1925.

It was claimed that the land was ancestral qua themselves and Bhagwan Singh and that under custom they were entitled to the proportion mentioned above.

4. The suit was contested by Lal Singh alone on every possible ground, even the relationship of the plaintiffs being denied. Limitation was pleaded and the ancestral nature of the land was denied, and apart from alleging that he had inherited the land of Nihal Singh as his adopted son, Lal Singh also claimed to have been appointed as his heir by Bhagwan Singh in the compromise in the suit when Bhagwan Singh had challenged his adoption by Nihal Singh and he claimed that in any case as the adopted son of Nihal Singh he was entitled to inherit the land of Bhagwan Singh.

5. Before this suit was decided the six other persons impleaded pro forma as reversioners in the suit of Ishar Singh, etc., also instituted a suit (No. 82 of 1948) in which, on the same grounds as Ishar Singh, etc., they claimed to be entitled to a 17/54 share of the same land. None of these plaintiffs claimed any military service, but they sought to obtain the benefit as regards limitation of the military service of the other set of plaintiffs on the basis of the wording of Section 11 of the Indian Soldiers (Litigation) Act.

The two suite were decided together and the findings of the trial Court wore that the land was ancestral except for two Khasra numbers, that the suits were within time as regards the land of Bhagwan Singh but barred as regards the land of Nihal Singh, that Lal Singh was the adopted son of Nihal Singh but not the appointed heir of Bhagwan Singh, and that under the custom governing the parties Lal Singh as the adopted son of Nihal Singh was hot entitled to succeed to the land of Bhagwan Singh.

The suit was, however, dismissed on the finding that the plaintiffs were bound by the compromise decision in the suit brought by Bhagwan Singh challenging Lal Singh's adoption, which must be deemed to have been brought by Bhagwan Singh on behalf of the reversionary body as a whole.

6. In the appeals filed by the plaintiffs the learned District Judge agreed with most of the findings of the trial Court although he added an area of 50 kanals 2 marlas to the 20 Kanals 11 Marias comprised in two Khasra numbers out of the land in suit held not to be ancestral. Where he disagreed principally with the trial Court was on issue No. 3-A on which he held that the compromise decree passed in Bhagwan Singh's case against Lal Singh in 1928 was not binding on the present plaintiffs.

He therefore accepted the appeals to the extent of granting the plaintiffs decrees for possession of 19/54 and 17/54 of the land formerly held by Bhagwan Singh, excluding the land held by him to be non-ancestral. Lal Singh has filed the present appeals against this decision.

7. One of the first points raised on behalf of the appellant was that, apart from any other considerations, the suit instituted in 1948 by six plaintiffs who had been impleaded as pro forma defendants In the suit brought by Ishar Singh, etc., in 1846, and who did not claim any extension of limitation on account of their own military service, was obviously barred by time. The words of Section 11 of the Soldiers (Litigation) Act are-

'11. In computing the period of limitation prescribed by Sub-section (2) of Section 10 of this Act, the Indian Limitation Act. 1908, or any other law for the time being in force, for any suit, appeal or application to a Court, any party to which is or has been an Indian soldier, or is the legal representative of an Indian soldier, the period during which the soldier has been serving under any special conditions, and. If the soldier has diedwhile so serving, the period from the date of his death to the date on which official intimation thereof was sent to his next of kin by the authorities in India, shall be excluded.'

Then follows a proviso making an exception in the case of a suit for pre-emption. The Courts below have held the suit to be within time on the strength of the use of the words 'any party to which is or has been an Indian soldier' and it is contended that by impleading the previous set of plaintiffs as pro forma defendants in their suit the second set of plaintiffs are entitled to the extension of limitation furnished by the military service of these pro forma defendants.

8. Although, however, the section is capable of bearing this interpretation, I do not consider that in the light of the objects of the statute as a whole such an interpretation was ever intended. The Legislature has every right to have statutes construed in a reasonable manner and it is clear that the object of this statute is to give any one who has served in the Army on the war time conditions the benefit of this period of service in any litigation on which he wishes to embark and also to any party having a claim against a soldier and it can surely never have occurred to the mind of the legislators that any plaintiff who himself never served in the Army could, by Impleading an ex-soldier as a proforma defendant extend the time of limitation of his suit by claiming the benefit of the military service of such a defendant. The matter has in fact come before the Supreme Court in -- 'Kura v. Jag Ram', AIR 1954 SC 369 (A), which deals with a case in which a suit was instituted by one of two brothers named Kura challenging under custom an alienation by his father, and at first his brother Sawan was impleaded as a defendant but subsequently was transposed as a plaintiff.

On the matter of limitation Kura was in a position to claim an extension of the period of limitation on account of his military service but Sawan had no such qualification. The matter was dealt with in the following manner by Bose J., delivering the judgment of the Court:

'Before we go further we may say at once that it was conceded that Sawan who was transposed as a plaintiff can in no event be given a decree. Any rights he had In the property are long time-barred and they cannot revive simply because his brother, who was under a personal disability, was enabled to sue after the normal period of limitation had expired.

The plaintiff Kura was on military service and as such obtained an extended period of limitation. That is not disputed. But the privilege is a personal one and his brother cannot take advantage of it.'

The suit of Punjab Singh, etc., must therefore be held to be barred by time even as regards the property of Bhagwan Singh.

9. The learned counsel for the appellant has not attempted to challenge the correctness of the findings of the Courts below that Lal Singh was not adopted or appointed as heir by Bhagwan Singh in any form recognized by custom or that, as the adopted son of Nihal Singh, Lal Singh would have been entitled under the custom governing the parties to succeed collaterally to the estate of his uncle Bhagwan Singh.

He has, however, argued that even the plaintiffs in the first suit are bound by the compromise decree between Bhagwan Singh and Lal Singh, as was held by the trial Court. It is contended that any suit brought by a reversioner tochallenge the appointment of an heir is brought in a representative capacity on behalf of the reversionary body as a whole, whether the remoter reversioners are impleaded or not, and remoter reversioners are bound by the decision in such a suit even when it is based on compromise.

A number of decisions of the Chief Court and the High Court at Lahore to this effect are mentioned on page 838 of Om Parkash Aggarawala's edition of Rattigan's Digest of Customary Law and, although these cases in general refer to challenges of alienations, at least one of them appears to lay down a principle which is applicable in the present case and is an answer to the argument of the learned counsel for the respondents that the decision in the suit brought by Bhagwan Singh alone against Lal Singh is not binding on the present plaintiff's because they were not parties to that suit and that because although they are claiming the estate of Bhagwan Singh, their right to claim the estate of Bhagwan Singh derives not from the latter himself but from the common ancestor.

This case is -- 'Devi Dial v. Utam Devi', 37 Pun Re 1907 (B), a decision by Robertson and Lal Chand JJ. In that case an alienation by a widow had been challenged by a suit brought within time by a number of reversioners and the case was compromised by giving the plaintiffs immediate possession of certain land, which they would not have been entitled to during the widow's lifetime, and recognizing her as the absolute owner of some other land. About 30 years later, the sons of one of the original plaintiffs and two of the original plaintiffs, themselves again challenged the alienation.

It was held that the suit was barred as res judicata and under rules of estoppel and that it was quite immaterial whether the compromise did or did not have the effect of improving the widow's estate as regards the property left to her and also, what is important for the purpose of the present case, it was held that the principle that in respect of ancestral land, succession is a right derived from the common ancestor who first acquired the land, is not one which interferes with the ordinary application of the principles of res judicata, limitation and the like.

10. Reliance was also placed on the decision of Teja Singh and Khosla JJ. in -- 'Laxmi Narain V. Mohd. Shafi', AIR 1949 EP 141 (C), in which it was held that a consent decree has to all intents and purposes the same effect as res judicata and in raises an estoppel as much as a decree passed in invitum. To the same effect was the decision of Broomfield and Wadia JJ., In -- 'Basangouda Giriyeppagouda v. Basalingappa Mallangouda', AIR 1930 Bom 301 (D), which is an extreme case as it was held that the plea of estoppel by res judicata may prevail even when the result of giving effect to it will be to sanction what is illegal in the sense of being prohibited by statute.

Apparently under the compromise decree relied on in that case certain hereditary rights had been transferred in contravention of the provisions of a statute called the Hereditary Offices Act.

11. This extreme view was not shared by a Full Bench of the Lahore High Court consisting of Harries C. J., Din Mohammad and Abdur Rahman JJ., in -- 'Prem Parkash v. Mohan Lal', AIR 1943 Lah. 268 (E), which was relied on, on behalf of the respondents. The view taken in that case was that where a decree is passed in consequence of a compromise and is a mere record of the will of the parties, it cannot be regarded as havingacquired any greater sanctity than the compromise itself on the ground that it was adopted by the Judge or that the command of the Judge was not called on to consider the validity or legality of the compromise, and in the absence of any determination of those questions a decree in such cases is liable to the same attack and suffers from the same infirmities which the compromise is open to or subject to.

Beyond this, however, this decision does not seem to me to help the respondents' case as the point being considered was to what extent a Court in execution can go behind the decree and it was held that the executing Court could go behind a compromise decree where the terms of the compromise contravened the provisions of Section 60, Civil P. C.

12. It does not seem to me that the other case cited on behalf of the respondents, the decision of the Full Bench in -- 'Sundar v. Salig Ram', 26 Pun Re 1911 (F), has any applicability to the present case as it related to the period of limitation for a suit challenging an alienation which had been left unchallenged by the nearest reversioner during his lifetime. On these matters the law has in any case changed since the enactment of the Punjab Limitation (Custom) Act I of 1920

13. In my opinion the present plaintiffs are debarred from challenging the compromise decree under which Lal Singh ultimately Inherited not only the land of Nihal Singh but also of Bhagwan Singh. There is nothing to show that there was any mala fide intention. In any case the compromise decree should have been challenged in a proper suit within time by the reversioners if they did not wish to be bound by it.

As a matter of fact they might ultimately have benefited under the compromise since, according to its terms, if Bhagwan Singh had produced a son, the son on Bhagwan Singh's death would have been entitled not only to Bhagwan Singh's land but also to half of Nihal Singh's estate, and if the son had died issueless all this land would have gone to Bhagwan Singh's reversioners, who would undoubtedly not have been too slow to take advantage of the compromise decree if events had turned out that way.

In the circumstances I am of the opinion that even the plaintiffs whose suit could otherwise have been in time cannot claim any of the lands of Bhagwan Singh and I accept both the appeals and dismiss the plaintiffs' suits with costs throughout. The cross objections of the respondents are also dismissed.


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