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Gurbachan Singh and ors. Vs. Rajinder Kaur and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1205 of 1965
Judge
Reported inAIR1976P& H336
ActsPunjab Security of Land Tenures Act, 1953 - Sections 18 and 18(4); Transfer of Property Act, 1882 - Sections 3 and 123; Code of Civil Procedure (CPC) , 1908 - Sections 2(2); Limitation Act, 1963 - Schedule - Article 100
AppellantGurbachan Singh and ors.
RespondentRajinder Kaur and anr.
Appellant Advocate D.N. Awasthy, Adv.
Respondent Advocate Achhra Singh, Adv.
DispositionAppeal allowed
Cases ReferredSadhu Singh v. Chanda Singh
Excerpt:
.....a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....in the proceedings under section 18 of the act, gurbachan singh made an application before the assistant collector on july 9, 1958, to the effect that the amount of compensation deposited by the tenants be paid to rajinder kaur in her lifetime and after her death, to jagrup singh, her son. he also stated that he had no concern with the amount of instalments and that he would not be competent to revoke the said commitment. the assistant collector recorded the statement of gurbachan singh on the same day and passed an order to that effect. subsequently, he made an application on january 28, 1962, in which he prayed that the amount of instalments be paid to him. the assistant collector rejected the application on august 2, 1963, and directed him to file a regular suit in the civil court.....
Judgment:

Rajendra Nath Mittal, J.

1. This regular second appeal has been filed by the plaintiffs against the judgment and decree of the Additional District Judge, Hissar, dated August 17, 1965.

2. Briefly the case of the plaintiffs was that Gurhachan Singh, plaintiff, was a big landowner. The tenants made applications for the purchase of land against him, under Section 18 of the Punjab Security of Land Tenures Act (hereinafter referred to as the Act). Those applications were allowed in favour of the tenants. Gurbachan Singh had two wives, namely, Basant Kaur and Bajinder Kaur. From Basant Kaur, he had a son, Rajinder Singh and from Bajinder Kaur, he had another son, Jagrup Singh. He had also three daughters from Rajinder Kaur. In the proceedings under Section 18 of the Act, Gurbachan Singh made an application before the Assistant Collector on July 9, 1958, to the effect that the amount of compensation deposited by the tenants be paid to Rajinder Kaur in her lifetime and after her death, to Jagrup Singh, her son. He also stated that he had no concern with the amount of instalments and that he would not be competent to revoke the said commitment. The Assistant Collector recorded the statement of Gurbachan Singh on the same day and passed an order to that effect. Subsequently, he made an application on January 28, 1962, in which he prayed that the amount of instalments be paid to him. The Assistant Collector rejected the application on August 2, 1963, and directed him to file a regular suit in the Civil Court to get relief. The plaintiffs filed a suit against the defendants for declaration to the effect that Gurbachan Singh was entitled to withdraw the instalments and that the order passed by the Assistant Collector on his application was null and void. They also prayed that the defendants be restrained from realising amount of instalments from the Court of the Assistant Collector. The suit was contested by the defendants, inter alia, on the ground that it was not within limitation, that Gurbachan Singh could not back out from the commitment made by him on July 9, 1958, and that the order of the Assistant Collector was valid and binding on him. The other pleas are not relevant for the decision of the appeal. The trial Court held that the amount of instalments ordered to be given to the defendants amounted to gift and it could be made either by a registered instrument or by delivery of the money, and that no right had been vested in the defendants, since neither of the aforesaid conditions had been fulfilled. It also held that the order of the Assistant Collector was not binding on the plaintiffs. On the point of limitation, the trial Court came to the conclusion that the suit was within time. It consequently decreed the suit of the plaintiffs. The defendants went up in appeal before the Additional District Judge, Hissar, who held that the instalments could be given to the defendants by virtue of the application and the order of the Assistant Collector was valid. He, therefore, accepted the appeal and dismissed the suit of the plaintiffs. The plaintiffs have come up in second appeal to this Court. During the pendency of the appeal, Gurbachan Singh has died. It is admitted by the learned counsel for the parties that on his death, the appeal does not abate as his legal representatives are already on the record.

3. The only contention of the learned counsel for the appellants is that the amount required to be deposited by the tenants with the Assistant Collector, is not covered by the definition of 'actionable claim' and, therefore, the same could not be transferred to the respondents by an application in writing by Gurbachan Singh deceased.

4. In order to determine the question, it will be necessary to refer to a few sub-sections of Section 18 of the Act. Sub-section (2) says that a tenant desirous of purchasing land under Sub-section (1) shall make an application in writing to an Assistant Collector of the First Grade, and he after giving notice to the landlord and to all other persons interested in the land and after making such enquiry as he thinks fit, shall determine the value of the land which shall be the average of the prices obtaining for similar land in the locality during ten years immediately preceding the date on which the application is made. Sub-section (3) provides that the purchase price shall be three-fourth of the value of land as so determined. According to Sub-section (4) (a), the tenant can pay the purchase price either in a lump sum or in six monthly instalments, not exceeding ten in the manner prescribed. Clause (c) of Subsection (4) provides that if a default is committed in payment of any of the instalments, the entire outstanding balance shall, on application by the person entitled to receive it, be recoverable as arrears of land revenue. A reading of the aforesaid clause shows that if the tenant fails to pay any of the instalments, the whole balance amount can be recovered as arrears of land revenue on an application by the person entitled to receive it. 'Actionable claim' has been denned inSection 3 of the Transfer of Property Act, as follows:--

' 'Actionable claim' means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.'

Sir Dinshah Fardunji Mulla, in his commentary on the Transfer of Property Act, 1882, (6th Edition, page 804), has explained 'Actionable claims' in the following terms;--

'In English law moveable property was said to be either in possession and enjoyment and therefore a chose in possession; or out of possession, but realizable by action, and therefore a chose in action. A chose in action is in English Law a term used to describe all personal rights of property which can only be claimed or enforced by action and not by physical possession. In Colonial Bank v. Whinney, (1885) 30 Ch D 261, the Court pointed out that the term was used in different ways to include not only the right to obtain something not in possession or enjoyment but also certain classes of incorporeal personal property. It is also used to denote a document evidencing a right or title. Accordingly choses in action included debts, benefits of contract, damages for breach of contract or tort, also stock, shares and debentures and even such incorporeal rights as patents, copyrights and trade marks.'

The author at page 805, concludes the discussion with the following observations:--

'Actionable claims therefore include claims recognised by the Courts as affording grounds for relief either-

(1) as to unsecured debts or

(2) as to beneficial interests in move-able property not in possession, actual or constructive -- whether present or future, conditional or contingent.' Now it is to be seen, whether the amount due falls within the definition of 'actionable claim'. Core of the definition is that a claimant should be entitled to knock at the door of a Court and the Court should recognise the claim for granting relief to him. I have already referred to Section 18 (4) (c) of the Act wherein a summary remedy has been provided forrecovering the arrears of instalments through revenue officers and it is not necessary to institute a suit. As no suit is required to be instituted for realising the amount of instalments, it cannot be said to be an actionable claim. The amount is also not a decree, which is defined in the Civil Procedure Code as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The amount of instalments, therefore, partakes some of the traits of a decree. It has been the consistent view of the Courts that a decree is not an actionable claim but is in the nature of property. (See in this connection, M. Govindarajulu Naidoo v. H. Ranga Rao, AIR 1921 Mad 113; Afzal v. Ram Kumar Bhudra (1886) ILR 12 Cal 610 and Dagdu v. Vanji, (1900) ILR 24 Bom 502). From the above discussion it emerges, that the amount of instalments recoverable under Section 18, from the tenants, is not an actionable claim, but can be said as property.

5-6. Now it is to be determined in what way the amount of instalments can be gifted by an owner. It is not disputed that, broadly speaking, properties can be put into two categories, namely, move-able and immovable. The amount of instalment can safely be included in the former category. Moveable properties, according to Section 123 of the Transfer of Property Act, can be gifted either by registered instrument or by delivery. A gift by delivery is possible if the property is in actual or constructive possession of the donor. If it is not in his possession, it cannot be gifted by delivery. The instalments were to be paid by the tenants to Gurbachan Singh on future dates and, therefore, these were not in his possession and could not be gifted by delivery. The only method possible for making a gift of the amount of instalments was by a registered instrument.

7. The learned counsel for the respondents, has vehemently argued that a decree can be transferred by assignment and the same principle will apply for gifting the instalments. The learned counsel, in support of his contention, has placed reliance on Jaswant Rai Datta Chawdhry v. Mt. Lajwanti, AIR 1928 Lah 70, wherein it was observed that an assignment of a decree does not require registration. I regret my inability to accept the contention of the learned counsel. The transfer of decrees is governedby the Code of Civil Procedure wherein it is provided that the decree can be transferred by assignment. The Code does not apply to the proceedings under Section 18 of the Act and the amount of instalments cannot be said to be decretal amount, as already observed. In the absence of a specific provision in the Act, it cannot be held that the provisions incorporated in the Code for assigning decrees will apply in the case of instalments due under Section 18 of the Act. The observations in Jaswant Rai Datta Chawdhry's case are not applicable to this case.

8. Adverting to the facts of the present case, it is not disputed that the amount was transferred by Gurbachan Singh through an application to the Assistant Collector who accepted the same on July 9, 1958 and ordered that the amounts be paid to Smt. Rajinder Kaur. The procedure adopted by him in transferring the instalments, as stated above, is not warranted by law. He could do so by a registered document. In the circumstances, the transfer of the amount is illegal and the order of the Assistant Collector is without jurisdiction.

9. The learned counsel for the respondents, faced with this difficulty, sought to argue that the suit was not filed within limitation. He argues that the case is governed by Article 100 of the Limitation Act, 1963, and a suit should have been brought by the plaintiffs within one year from July 9, 1958, the date of the order of the Assistant Collector. He submits that as the suit in the present case was filed on August 14, 1963, it is barred by limitation. I have considered the argument of the learned counsel, but find it to be devoid of force. It is an established principle of law that if the order of the officer is without jurisdiction, then it need not be set aside. In this view, I get support from the judgment of this Court in Sadhu Singh v. Chanda Singh, AIR 1957 Punj 108. The learned Judge observed that if an act or an order of an officer is illegal or ultra vires, it does not require to be set aside and Article 14 of the Limitation Act, 1908, has no application. Article 14 of the Limitation Act, 1908, is now incorporated in Article 100 of the Limitation Act, 1963. In the case in hand, the prayer of the plaintiffs to get the impugned order set aside, is surplusage. In this situation the suit becomes one for declaration with a consequential relief that the defendants be restrained from recovering the amount from the Assistant Collector. Such a suitfalls within the purview of Article 120 ofthe Limitation Act, 1908, wherein limitation of six years is provided. The suithas been filed within six years from thedate when the cause of action arose tothe plaintiffs and is, therefore, within limitation. 10. In the end, it may be mentioned that as already stated, GurbachanSingh has died during the pendency ofthe appeal. Therefore, all his heirs shallbe entitled to the benefit of the decree,and not the remaining plaintiffs alone.

11. For the reasons recorded above I accept the appeal, set aside the decree of the appellate Court and decree the suit of the plaintiffs. I further hold that all the heirs of Gurbachan Singh, deceased, shall be entitled to the benefit of the decree. In the circumstances of this case I make no order as to costs.


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