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Narotam Chand and anr. Vs. Mst. Durga Devi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H109
AppellantNarotam Chand and anr.
RespondentMst. Durga Devi
Cases ReferredMuhammad Din v. Fatteh Mohd
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....mahajan, j.1. regular second appeal no. 979 of 1946 had been referred to a full bench of five judges to settle two questions of law, the decision of which would result in the decision of the appeal itself. the first question is whether act (1 [1] of 1920)(punjab limitation (custom) act) governs suits brought by female heirs or other cognate relations to challenge alienations made by a widow who is in possession of the property of her husband and which had descended to him from his ancestors, the other question is whether the property of a maternal grandfather in the hands of the grandson can be treated ancestral qua his son, and can be regarded as such while it is in the hands of the daughter, in other words, whether any property in the hands of a female heir can be regarded as ancestral.....
Judgment:

Mahajan, J.

1. Regular Second Appeal No. 979 of 1946 had been referred to a Full Bench of five Judges to settle two questions of law, the decision of which would result in the decision of the appeal itself. The first question is whether Act (1 [1] of 1920)(Punjab Limitation (Custom) Act) governs suits brought by female heirs or other cognate relations to challenge alienations made by a widow who is in possession of the property of her husband and which had descended to him from his ancestors, The other question is whether the property of a maternal grandfather in the hands of the grandson can be treated ancestral qua his son, and can be regarded as such while it is in the hands of the daughter, in other words, whether any property in the hands of a female heir can be regarded as ancestral immovable property within the meaning of the term as usually understood in Customary Law.

2. In the decision of this question, the correctness of the Full Bench decision of the Punjab Chief Court in Lehna v. Mt. Thakri 32 P.R.1895 and of the Full Bench decision of the Lahore High Court in Mt. Attar Kaur v. Nikkoo A.I.R.1924 Lah.538 has to be examined.

3. The facts leading to this reference have been stated in my reference order of 24th June 1948, and may shortly be recapitulated. In the suit giving rise to this second appeal, Mt. Durga Devi, the daughter of one Kalu from Mt. Gauran, challenged two gifts made by her mother in favour of one Mangtu, daughter's son of the same Kalu from his second wife Mt. Kauri. Property described as A in the plaint WBS gifted by her on 5th August 1902 by means of a registered deed of gift, while property B was orally gifted on 7th June 1905 and mutation concerning this gift is Ex. P-9. What is described as property C in the plaint is shamilat land appertaining to the properties described as A and B in the plaint. Mr. Gauran died on 17th August 1942. The present suit was instituted on 12tb April 1943 for recovery of one-half share in the gifted property on the allegation that the plaintiff's mother had no power to make the gift and deprive one of her daughters of the 'inheritance of her father. The suit was resisted on a number of pleas by the donees. Inter alia it was pleaded that it was barred by limitation.

4. The trial Judge dismiesed the suit on the finding that it was governed by Act (I [1] of 1920) the property alienated being ancestral of Kalu. This decision was reversed on appeal by the learned District Judge who expressed the view that qua, the daughter i.e., the plaintiff in the case the property could not be held ancestral as it had not descended to her in the male line of descent from the common ancestor. In view of this finding, the plaintiff's suit was decreed in respect of half of the property in suit. Against this decision, donee's son Narotam Chand and his mother Mt. Kauri preferred a second appeal to this Court which was heard in the first instance by me sitting in a Single Bench. As the question involved was one of considerable importance, I directed that the appeal should be referred to a, Division Bench. In accordance with this reference, the matter came up before a Division, Bench consisting of myself and my brother Achhru Ram. Before us the correctness of the two Full Bench decisions referred to above was. challenged and though it was not denied that the appeal stood decided by our judgment in Regular Second Appeal No. 194 of 1945 but it was said that, that decision was given, on an erroneous, interpretation of Act (I [1] of 1920).

5. In these circumstances, we submitted the matter to the Hon'ble the Chief Justice for constituting a larger Bench for the decision of this appeal and for an authoritative pronouncement on the two questions above enunciated. Shortly stated, the point for decision in the appeal is whether the suit brought by Mt. Durga Devi, daughter of Kalu, to challenge the two alienations in dispute made by her mother falls within the purview of Act (I [1] of 1920) and is thus barred by limitation as it was instituted more than six years after the date of the alienations in question which had admittedly been made in the years 1902 and 1905. It was not disputed that if the suit was not governed by this Act then the plaintiff's suit having been instituted within 12 years of Mt. Gauran's death was within limitation. The suit brought by Mt. Durga Devi being one for possession if it falla within the scope of Act (I [l] of 1920) it would be governed by Article 2 of the Schedule. This article runs thus:

Description of Suit. Period of limitation. Time from which period

begins to run.

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2. A suit for possession

of ancestral immovable

property which has been

alienated on the ground

that the alienation is

not binding on the

plaintiff according to

custom.

(a) If no declaratory decree

of the nature 6 years As above.

referred to in

Article 1 is obtained,

(b) If Buch declaratory

decree is obtained, 3 years The date on which the

right to sue accruer,

or the date on which

the declaratory decree

is obtained whichever

is later.

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In this case, no declaratory decree of the nature referred to in Article 1

was obtained and reference, therefore, has to be made to that article which

is in these terms:

----------------------------------------------------------------------------

1. A suit for a declaration 6 years Firstly.--If the alienation

that an alienation of is by a registered that an

ancestral immovable deed the date of registration

property will not according of such deed.

to custom, be binding on the Secondly.--If the alienation

plaintiff after the death is notby a registered deed,

of the alinor or (if the lienor (a)If and entry regarding the

is a female) after her death or alienation in the Register of

forfeiture of he intersest in Mutations has been attested by

the property. Revenue Act, Officer under the

Punjab Land Revenue Act, 1887 the

date on wich the entry is attested

(b)If such entry has not beenattested

the date on which the alienee takes

Physical possession of the wholeor any

part of the property alienated in

pursuance of such alienation.

(c)In all other cases, the date on which the

alienation comes to the knowledge

of the plaintiff.

6. In order to bring a suit within the ambit of the Act it is, therefore, necessary that it must relate to an alienation of ancestral immovable property which alienation will not be binding on the plaintiff according to custom after the death of the alienor and in the case of a female alienor after her death or forfeiture of her life interest. The question for determination is the meaning of the phrase 'ancestral immovable property' as used in various parts of Act (I[1] of 1920) and in the articles referred to above and it has also to be found whether suits brought by female heirs or other cognate relations are within the contemplation of the statute and fall within the description of suits contemplated by Articles 1 and 2 of the Schedule annexed to it.

7. In order to find a correct answer to the questions above mentioned, it is necessary to set out the state of the law antecedent to the enactment of this statute and to discover the kind and character of suits for which it provided not only a period of limitation but concerning which it also laid down certain limitations and also stated the effect that has to be given to decrees passed in suits of this nature.

8. Article 59 of Rattigan's Digest of Customary Law (which book has been described as one of unquestioned authority in the PunJab by their Lordships of the Privy Council in Mt. Subhani's case A.I.R. (28) 1941 P.C. 21 states the principle on which suits of the description mentioned in Act (I [1] of 1920) are governed. It says that.

ancestral immovable property is ordinarily inalienable,, except for necessity or with the consent of male descendants, or, in the case of a sonles3 proprietor, of his male collaterals. Provided that a proprietor can alienate ancestral immovable property at pleasure if there is at the date of such alienation neither a male descendant nor a male collateral in existence.

Explanation 1 to this article gives a definition of ancestral immovable property with which the article deals. This definition is in these terms:

Ancestral property within the meaning of this section means, as regards sons, property inherited from a direct male ancestor, and, as regards collaterals, property inherited from a common ancestor.

It is obvious that on this definition no property can be regarded as ancestral immovable property once it has gone out of the agnatic group and has descended to a daughter or a daughter's son who under the strict theory of custom are regarded as strangers and are not considered members of a village community. The rule laid down in Article 59 of Rattigan's Digest is based on the leading Full Bench decision of the Punjab Chief Court in Gujar v. Sham Das and Anr. 107 P.R.1887 Sir Meredyth Plowden in that cage observed that.

the prevailing sentiment in this province among agriculturists ascertained by the experience of the Courts and of Settlement Officers, and in compendious records of custom, is that in respect of ancestral immovable property in the hands of any individual, there exists some sort of residuary interest in all the descendants of the first owner or body of owners, however remote and contingent may be the probability of some among such descendants ever having the enjoyment of the property, the owner in possession is not regarded as having the whole and sole interest in the property, and power to dispose of it so as to defeat the expectations of those who are deemed to have a residuary interest, and who would take the property if the owner died without disposing of it.

It was further observed that the presumption is that a sonless land owner 'has not an unrestricted power of disposition over ancestral immovable property except in cases when there is no person who is entitled to control him. The matter was examined again by another Full Bench in Ramji Lal and Ors. v. Tej Ram and Ors. 73 P.R.1895 and it was held that the power of. alienation is at its origin a restricted power in respect of ancestral land in village communities and it was said that where the land which the owner for the time being seeks to alienate is found to have come to him from his ancestors as his share of the land held by them as members of a village community, the holder for the time being exercises a restricted power of alienation in respect of such property and can only do so for necessity or with the consent either of male lineal descendants or in their absence of his near collaterals. The suits by male lineal descendants or by collaterals to control the acts of the male holder for the time being in respect of ancestral immovable property were governed by the general law of limitation till the year 1900. On 26th May 1900, Punjab Act (I [1] of 1900) received the assent of the Viceroy and Governor. General and regulated the period of limitation in respect of suits arising out of alienations of ancestral land by persons subject to custom in the Punjab. Article 1 of this Act laid down a period of twelve years for suits under the Customary Law of the Punjab by a son or reversioner of a male proprietor to have an alienation of ancestral land made by such proprietor declared void except for the life of the alienor. Regarding suits for possession of a similar character, it again laid down a period of twelve years if no declaratory decree had been obtained, but in case a declaratory decree had been obtained the terminus a quo for limitation was the date of the alienor's death. An explanation was appended to the schedule saying that it was immaterial whether declaratory decree was obtained by the plaintiff or any other reversioner.' This statute did not deal with cases where the alienor was a female. It obviously did not have any application to a suit by a female because such suits were wholly outside the Customary Law. No female had any power under custom or even to-day has any power to challenge an alienation made by a male. The description of the suits given in the schedule to this Act clearly denotes that the Legislature by this enactment provided a period of limitation for suits which could be brought in view of the rule laid down by the Full Bench of the Punjab Chief Court in Gujar v. Sham Das 107 P.R.1887 . and which has been enunciated with great clarity in Article 59 of Rattigan's Digest of Customary Law. When the power of control conferred in respect of ancestral immovable property on the sons and collaterals of a male proprietor had to be exercised by means of a suit this statute laid down the period of limitation for such a suit. The Explanation appended to the Schedule and the question of the effect of a decree obtained in such a suit was the subject-matter of discission in a Bench decision of the Punjab Chief Court in Muhammad Din v. Fatteh Mohd. 24 P.R.1906 and it was held that a declaratory decree obtained by a reversioner against an alienor and alienee to the effect that after the alienor's, death his heirs would be entitled to get back the property alienated on payment of a certain amount, enures for the benefit of whoever may be the person entitled to succeed when the inheritance falls in, provided that such heir is himself a descendant of the common ancestor of himself and the alienor who alienated the land. In this case it was observed that the right to inherit land and the right to protect that land from improper alienation do not stand on the same footing under Customary Law. The former is derived through the immediately preceding ancestor but the latteris a right which accrues to every descendant of the original owner of the land. In other words, such a decree enures for the benefit of all collaterals i.e., the descendants of the ancestor who held the land alienated. This decree-could certainly not enure for the benefit of any female heirs because they were outside the agnatic group and, as already stated, had no power of control over the acts of a male holder. The rule laid down in this decision was given statutory shape in Section 8 of Act (I [1] of 1920) and the period of limitation laid down for suits of this nature by Act (I [1] of 1900) was also curtailed by this statute. A new provision was introduced in the schedule making it applicable to cases of alienations by a female. The description of the suit for which period of limitation was provided by this amending and consolidating statute was not in any way affected. This description is the same as in the earlier Act of 1900 with of c6urse the addition regarding the cases of alienations by a female. The power of control to be exercised by instituting the suits described in the Schedule is in respect of ancestral immovable property the rule regarding which was laid down in Gujar v. Sham Das 107 P.R.1887 and is stated in Article 59 of Rattigan's Digest of Customary Law. The mention of a female alienor in the Schedule to an Act which prescribes a period of limitation regarding suits of the nature above mentioned has given rise to ?umber of difficulties in view of fact that in an alienation made by her it is wholly unnecessary to prove the ancestral character of the property and further that under custom as well as under Hindu law a female*s alienation can be contested by another female heir though she is in compent to impugn an alienation made by a male. In view of these propositions, it can be contended that the article can have no application where the plaintiff is a female because qua her there is no property which can be described as ancestral immovable property, i.e., which is ancestral qua her and was also ancestral in the hands of the last owner. Moreover, in such cases, the ground of the claim cannot be the ancestral character of the property but the basis of such suits is an inherent defect in the title of the female holder herself. Article 64 of Rattigan's Digest of Customary Law is to the effect that no female in possession of immovable property acquired from her husband, father, grandfather, son or grandson otherwise than as a free and absolute gift can permanently alienate such property. It was laid down by their Lordships of the Privy Council in The Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 M.I.A.629 that the restrictions on a Hindu widow's power of alienation are inseparable from her estate, and their existence does not depend on that of heirs capable of taking on her death and that in case of want of heirs the right to the property passes to the Crown which has the same power which an heir would have of protecting its interests by impeaching any unauthorised alienation by the widow. In Gobinda v. Nandu A.I.R.1922 Lah.217 a Bench of the Lahore High Court held that the estate of a widow under Customary law is subject to the same restrictions as that of a widow under Hindu law. In view of the rule laid down in these decisions, it becomes essential to define the nature of the suits instituted to contest an alienation by a female which would be governed by the phraseology employed in Article 1 of Act (I [1] 1920) because the article clearly speaks of a female alienor, The suit before it falls within the ambit of the Act must &e; in respect of ancestral immovable property and it must be grounded on the allegation that the alienation is not binding on the plaintiff under custom. The only kind of suit that I can think of can possibly come within the purview of the Article is a suit in which a collateral of the husband of the widow or in the case of an alienation by a mother a collateral of the son of the alienor seeks to avoid the alienation under custom on the ground of want of necessity and alleges that the property alienated was ancestral of the last male owner and of the plaintiff. In other words, the true nature of the suits described in Act (I [1] of 1920) and in Act (I [1] of 1900) is the same with this further extension in Act (I [l] of 1920) that it applies also to cases where ancestral immovable property has descended to a widow or a mother or even to a daughter and the same is alienated by her and the control is sought to be exercised by a member of the agnatic group, i.e., by a person who claims that' the property alienated was ancestral qua him and qua the husband, the son or the father of the female alienor. Within the scope of this Article, I cannot include a suit by a cognate relation or by a daughter or a widow to challenge an alienation of another female because such a suit is based not on the allegation that the property is ancestral immovable property qua that plaintiff, and the alienation is not binding in custom. On the other hand, the basis of such a suit is the rule laid down by their Lordships of the Privy Council in The Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 M.I.A.529 and adopted under Customary law by the decision in Gobinda v. Nandu A.I.R.1922 Lah.217). The nature of such a suit is quite different from the suit the basis of which is the joint ownership of the plaintiff in the alienated property with the last male holder on the ground that both the plaintiff and that holder are descendants of a common ancestor and have a residuary interest in the land that was once held by a village community. One suit is based on the defective title of the alienor which is inherent in the character of her estate, while the other suit is based on the rule that ancestral immovable property is inalienable except with the consent of male lineal descendants or of male collaterals and if it is alienated in violation of this rule, then the male lineal descendants and the collaterals can impugn that alienation as the alienor has not full disposing power on the property. This rule is operative only for the benefit of the members of the agnatic group. In their absence, the male holder even in regard to ancestral immovable property has an absolute power of disposal. On the other hand, so far as a female alienor is concerned anybody including the Crown can question her acts not because of the fact that plaintiff claims any joint owner, ship with the female in the land alienated but because of the fact that he is entitled to inherit that land and the widow's own estate is an incomplete one and she enjoys no power of alienation on that estate once she has succeeded to it as an heir irrespective of the character of the nature of the property. Just as the article would not apply to suits by female heirs or cognate relations, it will not cover cases by collateral heirs qua where the property alienated by the female is not ancestral i.e., is not ancestral of the plaintiff and the last male holder. In this case also, the property not being ancestral qua the plaintiff, the article has no application.

9. The view that I have expressed above as to the scope of Article 1 of Act (I [1] of 1920) is fully borne out not only by the historical background of the legislation which I have stated above, but is also borne out by the internal evidence contained within the Act itself. Section 7 of the Act reads thus:

No suit for the possession of ancestral immovable property on the ground that an alienation of such property or the appointment of an heir is not binding on the plaintiff according to custom shall lie if a suit for a declaration that the alienation or appointment of an heir is not so binding would be time-barred, unless a suit for such a declaration has been instituted within the period prescribed by the schedule.

In unambiguous language the section speaks of a suit for possession of ancestral immovable property on the ground that an alienation is not binding on the plaintiff. It does not speak of a suit in which the ground of the claim cannot possibly be that the property is ancestral immovable property qua the plaintiff. The way that the section is drafted clearly excludes suits which cognate relations, or female heirs and even collaterals qua when property is not ancestral may be allowed to maintain in order to safeguard their rights of succession against acts of alienation by female heirs in possession. The ground of action in such cases is the defective title of the alienor, and the only qualification for the plaintiff to maintain such a suit is the allegation that he or she is in the line of heirs. In such a suit, the nature of the property in the hands of the female and qua the plaintiff is not relevant. The suit is based on heirship and not on the right of custom vesting in the reversionary body under custom in view of the rule laid down in Article 59 of Rattigan's Digest of Customary Law. It is true that a collateral qua whom the property alienated is ancestral need not necessarily allege that fact in the case of a widow alienation. He can succeed even without the allegation like other heirs but his suit comes within the language of the statute; it is governed by it. I am alive to the fact that such 'an interpretation of the Act creates an anomaly. It would give a 6 years' period of limitation to challenge alienations of females to near collaterals while it would give a larger period for the same purpose to remote collaterals and female-heirs, etc. This anomaly has been created by including cases of female alienors within the ambit of an Act which dealt with suits of a different character and it is for the legislature to cure this anomalous state of affairs. It would be best to bring this Act in line with Act (II [2] of 1920) and exclude alienations of females from its scope or else to deal with such alienations separately and describe the suits brought to counter them precisely.

10. Section 8 of the Act is in these terms:

When any person obtains a decree declaring that an alienation of ancestral immovable property or the appointment of an heir is not binding on him according to custom, the decree shall enure for the benefit of all persons entitled to impeach the alienation or the appointment of an heir.

The explanation that was appended to the schedule in Act I [l] of 1900 has been enlarged and enacted in this section. This section came up for? interpretation before a Full Bench of the Lahore High Court in Rahman v. Suraj Mal A.I.R.1915 Lah.76 and it was held that the whole object of Section 8 was to give the benefit of a declaratory decree to those descendants of the common ancestor who would eventually inherit his estate when succession opens out; and that the words 'persons who had a right to impeach alienations of a male proprietor' were intended to be descriptive of the word 'reversioner' as understood in the Customary law meaning all those males who claim through males and can say that the land is ancestral qua them. In view of this interpretation of Section 8, it has to be held that any declaration obtained in a suit contemplated by Act I [1] of 1920 enures only for the benefit of the body, of collaterals who can say that the land alienated was ancestral qua them and the benefit of this therefore, cannot be claimed by any cognates who may one day inherit the property in dispute or by any females or remote collaterals who may happen to be in the line of heirs in absence of male lineal descendants or of collaterals qua when the land is ancestral. It is difficult to place a different interpretation on the language of the article from the language employed in Section 8. The phraseology employed in the article and the section is in identical terms so far as the description of the suit is concerned. The article provides the limitation for the suit described therein and Section 8 states the effect of the decree passed in such a suit. If the benefit of the decree given in such a suit can only be claimed by the collaterals qua when the land is found ancestral or by male lineal descendants then the limitation laid down in the article must be said to have been laid down for suits by this body of persona and not by any others. It is immaterial whether the alienation was made by a male or a female but it must be of ancestral immovable property qua the plaintiff and the husband or the son of the alienor. In this view of the case, the suit to challenge alienations of a female by daughters or their sons or sisters or their sons or other cognate relations or even by collaterals qua where the property is not ancestral will be outside the four corners of this Act.

11. It may be mentioned that Act II [2] of 1920 which restricts the power of descendants or collaterals to contest an alienation of immovable property on the ground that such alienation is contrary to custom is obviously in pari materia with Act I [1] of 1920. The object of Act I [1] of 1920 was to curtail the period of limitation for suits concerning ancestral immovable property when brought by the collaterals qua where property is ancestral or by male lineal descendants, while the object of Act n [2] of 1920 was to limit the right of such collaterals to contest alienations and appointment of heirs. This right was limited by Section 6 to collaterals related within five degrees to the last male holder. It is true that Act II [2] of 1920 has no application to alienations by a female but that does not in any way affect the proposition that to find out the nature of the suits governed by Act I [1] of 1920 the language employed in Act II [2] of 1920, which is similar may legitimately be considered. It was not denied that Act II [2] of 1920 did not cover within its ambit suits brought by females and cognate relations, to challenge alienations made by other females.

12. My opinion as to the scope of Act I [1] of 1920 and the nature of the suits governed by it finds support from a Bench decision of the Lahore High Court in Regular Second Appeal No. 194 of 1945. In that case, it was held that the application of Act I [l] of 1920 is restricted only to cases of persons entitled to impeach the alienations by a male holder, and, in case the alienor be a widow, the alienations by her of her husband's property on the ground of the property alienated being ancestral in the hands of the alienor or the alienor's husband, as the case may be, qua the person or persons seeking to contest the validity of such an alienation and not to other cases. In that case, it was further observed that the word 'ancestral immovable property' employed in the Act was used in the sense as it has been defined in Bxpln. 1 to Article 59 of Rattigan's Digest of Customary Law. In the above-mentioned case the suit was brought by daughter's sons to contest an alienation made by a widow and the application of Act I [1] of 1920 to such a suit was negatived. The suit out of which this appeal has arisen has been brought by a female to challenge an alienation by another female and on the reasoning employed in the above decision this suit is clearly outside the scope of Act I [1] of 1920.

13. Mr. Shambu Lal Puri for the appellant contested the correctness of the above decision on a number of grounds. He argued that as the definition of 'ancestral property' under custom had been enlarged by the Full Bench decision in Lehna v. Mt. Thakri 32 P.R.1895 , therefore, it must be ruled that the Legislature in using that expression in Act I [1] of 1920 had the definition given by the Full Bench in view. I am unable to accede to this contention for the simple reason that the argument is not consistent with the historical back ground of this legislation. All that the decision in Lehna v. Mt. Thakri 32 P.R.1895 laid down was that the property of a maternal grandfather in the hands of the grandson was ancestral qua his son and, therefore, be could challenge an alienation made by his father on the ground that the alienation* concerned ancestral immovable property. By this decision, the power of control was conferred on the descendants of the daughter's son in respect of the alienations made by him. This rule has nothing to do with the rule laid down in Gujar v. Sham Das 107 P.R.1887 or the rule enunciated in Article 59 of Rattigan's Digest of Customary Law. As said already, the suits which arose out of the breach of this fule were first governed by Act I [1] of 1900 and are now governed by Act I [1] of 1920 with the addition that even where the alienor is a widow but the property is of the nature that was considered in Gujar v. Sham Das 107 P.R.1887 . In such situations alone the Act would have application.

14. The following observations in Regular Second Appeal No. 194 of 1945 were criticised by Mr. Puri:

The suit must be for possession of ancestral immovable property on the ground that an alienation of such, i.e..., ancestral immovable property is not sanctioned by the custom applicable to the parties. Unless the suit is for possession of ancestral property as such and unleas it is brought on the ground that the alienation being of ancestral property was opposed to custom, the application of the aforesaid provision is not attracted. If the plaintiff can maintain a suit for possession of the property alienated without being required to allege and prove the same to be ancestral, and ii its ancestral character is not the foundation of the suit, this provision does not apply and his suit cannot be said to be barred.... The provisions of Articles 1 and 2 of the Schedule also, in my opinion, apply only where the plaintiff has, in order to succeed, to allege and prove the property which is the subject-matter of the transfer to be ancestral qua him. In order to attract either of these articles the suit must be one in which relief is claimed by the plaintiff on the ground of the alienor being incompetent to transfer ancestral immovable property in his or her hands except for his or her life and of his being not bound by any such transfer after the alienor's death.

It was urged by Mr. Pari that the plaintiff could not by omitting to make certain allegations in the plaint change the character of the suit and take it outside the ambit of Act I [1] of 1920. Reference in this connection was made to a number of decisions of the Lahore High Court and particular emphasis was laid on certain observations made by Tek Chand, J., in Barkat v. Mohammad Shafi and Ors. I.L.R. (1942) Lah. 41. In that case it was held that.

the plaintiff could not, by ignoring the sale or suppressing all mention of it in the plaint, get over the statutory bar created by Act I of 1920 and that the true test to determine the period of limitation for a suit is to seethe true effect of it, not its formal or verbal description and that a litigant merely by attaching a label to his suit cannot bring it under a different article of the Limitation Act from that under which it would come on a true interpretation of the nature of the suit.

The proposition enunciated in the above decision is unexceptional. The plea of limitation is a plea in bar and a defendant is entitled to plead that the suit brought by the plaintiff is within the ambit of Act I [1] of 1920 because of the fact that it concerns ancestral immovable property and the real claim of the plaintiff is that the alienation made in respect of that property is not binding on him under custom because the property is ancestral qua him. The defendant can also say that though the alienation is by a female, yet so far as plaintiff's title is concerned his real suit is that the widow has dealt with the property which is ancestral qua him and therefore the Act has application. The plaintiff's omission to plead the character of the property cannot deprive the defendant of the defence of limitation. It is open to the defendant to bring out the true character of the plaintiff's suit and once it is found by the Court that the true character of the plaintiff's suit is of the description given in the Schedule to Act I [1] of 1920 then undoubtedly, in my opinion, the provisions of the Act would be attracted to such a suit. But if, on the other hand, it is proved that the true character of the suit is different and the property is not ancestral qua the plaintiff and that it is really a suit by an heir to safeguard himself or herself against the unlawful act of a limited owner whose title to alienate is inherently defective and the suit is not governed by the agnatic theory then clearly the Act would have no application to such a case. The decision of Tek Chand, J., therefore, in the above-mentioned case does not in any way conflict with the decision in Regular second Appeal NO. 194 of 1945. It may be that certain observations made in R.S.A. No. 194 of 1945 shorn of the context be subject to the criticism that the plaintiff is the arbitrator of the applicability of the Article of Limitation Act. That was never the object of my decision though some expression employed may not have been very precise and petty.

15. Mr. Shamu Lal Puri laid great emphasis on a decision of their Lordships of the Privy Council in Mt. Sat Bharai v. Barkhudar Shah A.I.R.1934 P.C.48 and contended that this decision was conclusive on the point that had been referred to the Full Bench. In this case, a suit by a step-daughter to challenge an alienation of another female, namely, her step-mother was held governed by Article 1 of Act I [1] of 1920 and the plaintiff's suit was dismissed on the ground that it was barred by limitation. The decision of the High Court on this point was affirmed. Before the High Court, it was admitted by both the parties that the property was ancestral of the contestants in that case. On the basis of this admission, Article 1 of Act I [1] of 1920 was applied to that case by the High Court without any further discussion. It is obvious that if both parties conceded that the property in dispute must be regarded as ancestral of the plaintiff and the alienor, then there was no escape from the provisions of Act I [I] of 1920 and the limitation laid in the Act had to be applied to the case on the basis of that admission. Neither in the High Court nor before their Lordships of the Privy Council it was urged that qua the step-daughter the property in dispute could not be regarded as ancestral immovable property or that the property in the hands of the widow could not bear that description. The matter was neither argued nor discussed. It cannot be said that their Lordships gave any decision on a point which was not debated before them. The decision was based on an assumption and cannot be considered as a binding precedent. The matter would have been different if the point was raised that property claimed by the step-daughter was not ancestral qua her and therefore the article had no application to the suit or it was contended in that suit and decided that the article applies to cases of suits by cognates challenging alienations of females. As an instance this decision certainly supports the contention of Mr. Puri, but, in my opinion, it is not operative as a binding precedent and therefore has only persuasive value. In Section 58 of Salmond's Jurisprudence (1947 Edition) it is stated that where a particular question though involved in the case was not argued or considered, the decision (called a precedent sub silentio) is merely of persuasive authority. In Halsbury'a Edition of Laws of England by Lord Hailsham at p. 252 of vol. 19 it is said that when a previous case has not laid down any new principle, but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to erect a previous decision into a governing precedent merely because it contains what is simply resemblance of circumstances. In my opinion, therefore, the decision of their Lordships of the Privy Council in Sat Bharai's case does not in any way conclude this question.

16. As regards the question whether property of a maternal grandfather in the hands of a grandson can be described as ancestral or that such property in the hands of a daughter can be given that description considerable reliance was placed by Mr. Puri on the Full Bench decision in Lehna v. Mt. Thakri 32 P.R.1895 and on the other Full Bench decision in Mt. Attar Kaur v. Nikkoo A.I.R.1924 Lah.538. Reliance was also placed on a Single Bench decision reported in Ram Sarup v. Mt. Jai Devi A.I.R.1946 Lah.272. In my opinion, all these decisions now stand overruled by the decision of their Lordships of the Privy Council in Muhammad Hussain Khan v. Babu Keshava Nandan Sahai . At the time when the Full Bench decisions were given there was a conflict of opinion on the question whether property of a maternal grandfather in the hands of a grandson was ancestral qua his son under Hindu law. The Madras High Court had taken the view that it was ancestral while the Allahabad High Court had expressed a different opinion. In the above-mentioned case their Lordships of the Privy Council finally settled the matter and said that this matter should no longer be left in a state of uncertainty. The view of the Allahabad Court was accepted and that of the Madras Court was overruled and it was held that such property was not ancestral under Hindu law in the hands of a grandson. While dealing with the various authorities cited before their Lordships, a reference was made to Atar Singh v. Thakar Singh 42 P.R.1910, a case under Punjab custom. In respect of this case the following observations were made:

There are, on the other hand, observations in a later judgment of the Board in Atar Singh v. Thakar Singh 35 I.A.206 which are pertinent here. It was stated in that judgment that unless the lands came 'by descent from a lineal male ancestor in the male line, they are not deemed ancestral in Hindu law.' This case, however, related to the property which came from male collaterals and not from maternal grandfather, and it was governed 'by the custom of the Punjab,' but it was not suggested that the custom differed from the Hindu law on the issue before their Lordships. The rule of Hindu law is well-settled that the property which a man inherits from any of his three immediate paternal ancestors, namely, his father, father's father and 'father's father's father is ancestral property as regards his male issue.

From the above quotation it is quite clear that their Lordships held that the definition of 'ancestral property' in Hindu law was the same as under custom and if that definition is followed, then it is clear enough that the property of the maternal grandfather cannot be regarded as ancestral in the hands of the grandson and the rule of law laid down in Lehna v. Mt. Thakri 32 P.R.1895 and in Mt. Attar Kaur v. Nikkoo A.I.R.1924 Lah.538 cannot be said to lay down the law correctly on this point.

17. I have examined carefully the ratio decidendi of both the Full Bench decisions and have reached the conclusion (I speak with great respect) that both of them were not correctly decided. In Lehna v. Mt. Thakri 32 P.R.1895 Rivaz and Roa, JJ. took one view while Chatterji, J. expressed a contrary opinion. Rivaz, J. while holding that the property of a maternal grandfather in the hands of a grandson was ancestral based his decision on the following observations:

It seems to me that in a village community where a daughter succeeds either in preference to, or in default of, heirs male, she simply acts as a conduit to pass on the property as ancestral property to her sons and their descendants and does not alter the character of the property, because she happens to be a female would custom recognize the daughter's sons as free to deal with the property as self-acquired, and alienate it to strangers, without any power being left in the collaterals of the last male owner to object, I think certainly not, the reason being that on failure of the daughter's lineal descendants the property would revert to the distant collaterals, as the ultimate-heirs of the daughter's father, and this again would be so, because the property had never ceased to be ancestral, even in the hands of the daughter's sons.

Though the case in which that decision was given had to be decided as proof of custom, it was conceded that no proof of such a custom was forthcoming and no enquiry into custom was made. Merely on a priori reasoning and grounds of convenience it was held that such property should be regarded as ancestral. There was no justification for making a definition of 'ancestral property' which was neither warranted by Hindu law nor by custom. Chatterji, J. gave four reasons against the proposition enunciated by Rivaz, J. After a careful consideration of this decision, I am in respectful agreement with the reasons given by the learned Judge in holding that such property could not be regarded as ancestral. Mr. Shambu Lai in a very halfhearted manner tried to support the decision of the majority of the Full Bench in this case but he could advance no valid arguments to controvert the reasoning of Chatterji, J. and he wag not able to justify the grounds on which the majority of the Full Bench ruled that the property was ancestral in the hands of the maternal grandsons. The correctness of this decision was challenged and the matter was referred in the Lahore High Court to a Bench of five judges. The judgment of the Court was delivered by the learned Sir Shadi Lal, C.J. and he observed as follows:

Now, I do not propose to examine the arguments which may be urged in support of the respective contentions, and I concede that there is a good deal to be said in favour of the proposition that, unless the land came to a person by descent from a lineal male ancestor in the male line, it should not be treated as ancestral. The decision of the question close not depend upon any evidence relating to custom on the subject, nor did the learned judges who dealt with the case of Lehna and Anr. v. Mt. Thakri and Anr. 32 P.R.1895 base their conclusions on any evidence. There can be no doubt that the majority as well as the minority invoked what they considered to be the general principles of the customary law in support of their respective views, and that the majority also relied upon the argument ab inconvenienti. It does not appear that there was any definite pronouncement on the subject prior to 1895, but the rule laid down by the majority of the judges has since been accepted as the correct exposition of the law and has been followed in a long course of decisions. I do not think that it is desirable to upset the law which has been followed for nearly 30 years, especially when I find that, even under the Hindu law, which was relied upon by Chaterji, J., there is a conflict of opinion as to whether the property inherited by a daughter's son from his maternal grandfather is to be deemed ancestral property.... The doctrine of stare decisis is a salutary principle to be applied to the law relating to property; and I would be reluctant to overrule a decision, upon which many persons may have acted, unless I am convinced that it is clearly wrong. I am not prepared to say that the rule laid down in Lehna and another v. Mussamat Thakri and Anr. (32 P.R.895. has been shown to be manifestly erroneous and I would accordingly decline to disturb the law which has been followed by the Courts during the last thirty years.

The result of this decision is that on the ground of stare decisis the decision in Lehna v. Mt.Thakri 32 P.R.1895 which the learned Chief Justice considered was erroneous was maintained, particularly in view of the fact that there was conflict of opinion even in Hindu law on the subject. I have already stated that their Lordships of the Privy Council have now settled this conflict and have held that under Hindu Law such property cannot be considered as ancestral. The question is whether the rule of stare decisis was correctly applied in this case and whether titles of any persons are based on the rule enunciated by the Full Bench in Lehna v. Mt. Thakri 32 P.R.1895 . This rule has been enunciated in Section 60 of Salmond's Jurisprudence in the following terms:

Valuable property may have been dealt with in reliance on it; important contracts may have been made on the strength of it; it may have become to a great extent a basis of expectation and the ground of mutual dealings. Justice may therefore imperatively require that the decision, though founded in error, shall stand inviolate none the less.

In Halsbury's edition of Laws of England by Lord Hailsham at page 257 of volume 19 it is observed that:

The Supreme appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside a statute and outside the common law, when no title and no contract will be Bhaken, no person can complain, and no general course of dealing be altered by the remedy of a mistake.

The point to consider is whether by reversing the decision in Lehna v. Mt. Thakri (32 P.R. 1895 F.B. and in holding that the property of a maternal grandfather in the hands of grandsons is not ancestral qua sons any rights in property that have come into existence will be affected or in other words, any title in immovable property will be disturbed or any expectations on the basis of which certain contracts may have been entered into will be affected. It seems to me that by reversing this decision none of these consequences would follow. The only effect of the decision is that it confers a power of control on the son of the maternal grandson in respect of alienations made by his father. This power of control entitles him to bring a suit to challenge such an alienation. Such a power of control is not right in property. It is only an option to avoid an alienation, and the right to bring a suit to safeguard the reversionery rights being not an interest in immovable property if that right is taken away, it would not disturb any title in immovable property.

18. At best the reversal of the decision will, only affect some pending suits and suits that may in future be brought by such persons to control the alienation made by their fathers. The titles of the alinees in such properties, on the other hand, become secure. Instead of disturbing their titles the overruling of this decision would confirm those titles and make them absolute. The decision in Lehna v. Mt. Thakri 32 P.R.1895 has otherwise no effect on any immovable property. So far as the question of limitation is concerned, the rule of stare decisis is wholly inapplicable because of the fact that there is no course of decision on this point in favour of the appellants' case. The only decision cited was in Sat Bharai v. Barkhudar Shah and that, as I have already explained, was given on the basis of an assumption and so far as I know has not been followed in any other case in the Lahore High Court or in this Court. So there is no cursus curiae in favour of the appellants' contention so far as the question of limitation is concerned, Moreover, the Law of Limitation is a law of procedure and the rule of stare decisis has no application to a wrong decision given on such a matter. With great respect, therefore, I am of the opinion that when the Full. Bench in Mt. Attar Kaur v. Nikkoo A.I.R.1921 Lah.538) maintained the decision in Lehna v. Mt. Thakri 32 P.R.1895 . on the ground of stare decisis it did not (sic) being apprehend the scope of that rule, and the effect of that decision in relation to rights in property or as effecting titles in property. The matter was not argued in that light before their Lordships and the rule of stare decisis was applied without considering all the implications of the rule.

19. Mr. Puri argued that since the decision in Mt. Attar Kaur v. Nikkoo A.I.R.1924 Lah. 538 . a period of over twenty-five years has elapsed and that by lapse of time the decision in Lehna v. Mt. Thakri (32 P.R.1895 .) has become inviolable and must be respected. I am not in favour of perpetuating an erroneous decision, particularly in view of fact that as I have already stated, it stands really overruled by the decision of their Lordships of the Privy Council in Muhammad Hussain Khan v. Babu Keshava Nandan Sahai and also in view of the fact that by overruling that decision no misfortune of any kind will fall to anybody. On the other hand, the restrictions placed on the powers of alienations of certain persons by this decision will stand renewed and the titles to property will become more secure than before and this artificial right conferred on certain persons to control the alienations made by their fathers will be taken away.

20. For the reasons given above, I am of the opinion that the decisions in Lehna v. Mt. Thakri 32 P.R.1895 and in Mt. Attar Kaur v. Nikkoo A.I.R.1924 Lah.538 should be held as not laying down a correct rule of law, and it should be held that property of a maternal grandfather in the hands of a daughter or of a grandson is not ancestral qua his descendants and therefore Act I of 1920 has no application to suits brought by such persons to challenge alienations by female owners. I am further of the opinion that the scope of Act I of 1920 is limited only to those binds of suits which are brought to safeguard rights by collaterals in respects of ancestral immovable property on the rule laid down in Article 59 of Rattigan's Digest of Customary Law and that the definition of 'ancestral property' given in Explanation 1 of Article 59 of Rattigan's Digest of Customary Law is the definition in which that expression is used in Act I of 1920. It now remains to consider the decision in Ram Sarup v. Mt. Jai Devi A.I.R.1946 Lah 272 where it was held that the word 'ancestral property' has not been defined in Act I of 1920 and in the absence of any definition the ordinary dictionary meaning is to be given to it and if the rights on the basis of which the plaintiff was claiming the property happened to belong to his father, it would be ancestral qua him and would, therefore, come within the ambit of col. 1 of Article 6. With great deference to the learned Judge, I am bound to observe that this decision is not very intelligible. The facts of the case were that the plaintiff sued the landlords of a certain tenancy claiming that as an adopted son under Hindu law he was a male lineal descendant of the last occupancy tenant and was entitled to succeed to the tenancy in view of the provisions of Section 59, Punjab Tenancy Act. On those allegations I fail to understand how could Act 1 of 1920 be made applicable to that suit, the claim being based under Hindu law. Moreover, the Act would have no application to such a suit brought against the landlords of a tenancy under the provisions of the Punjab Tenancy Act. In view of the observations made above, it is not necessary to consider this decision at any great length. In my view, it does not help any of the contentions raised by Mr. Puri. It may be observed that the dictionary meaning of ancestral immovable property cannot legitimately be considered in determining the meaning of that term in a statute which regulates the period of limitation for suits permitted by Punjab custom. Under custom, the term 'ancestral immovable property' has been understood in the sense in which it has been defined in Explanation 1 to Article 59 of Rattigan's Digest of Customary Law and under all canons of construction of statutes it will not be permissible to resort to the dictionary in preference to this definition. The term has a technical meaning in Hindu law and any use of the dictionary meaning of the term in construing statutes dealing with Hindu law subjects will be questionable. The same is the case where a statute regulates limitation for suits under custom.

21. The result, therefore, is that this appeal fails and is dismissed but in the circumstances of the case I would make no order as to costs.

Ram Lall, C.J.

22. I have had the advantage of reading the judgment recorded by my brother Mahajan, J. and I agree with him. I have nothing to add.

Achhru Ram, J.

23. I agree with the judgment proposed to be delivered by my brother Mahajan in this appeal. I also agree generally with the conclusions reached by him. I must, however, with the utmost respect, confess my inability to subscribe to his view that Articles 1 and 2 of Punjab Act 1 of 1920 would apply to any suit brought by the collaterals of the last male-holder to set aside an alientation by the widow of such holder of property which is ancestral qua such collaterals. In this respect I still adhere to the view expressed by me in Regular Second Appeal No. 194 of 1945 that the operation of these Articles is limited only to cases in which the plaintiff has, whether he is a collateral of the last male-holder or not to allege and prove the property alienated to be ancestral qua him in order to succeed.

24. Before the enactment of Punjab Act 1 [I] of 1900, also called the Punjab Custom (Limitation) Act, declaratory suits in respect of alienations by male proprietors were governed by Article 120, Limitation Act. A declaratory suit in respect of an alienation by a female was governed by Article 125 or Article 120 according as the plaintiff in the particular case was the immediate or a remoter reversioner. However, after the death of the alienor, whether a male or a female, the reversioner entitled to possession of the property left by the propositus had 12 years under Article 144 if the propositus was a male and under Article 141 if she was a female, within which to sue for possession of the property alienated, provided such reversioner was entitled to impeach the alienation otherwise, and the alienation was on its merits invalid, and this even though no declaratory suit had been brought by anyone during the alienor's lifetime within the period of limitation allowed for such a suit. Thus, regardless of the time when the alienation took place, it could always be contested within a period of 12 years of the death of the alienor. Indeed where the alienor was a male and left a widow or widows surviving him the time for contesting the alienation was further extended and would not begin to run till after the extinction of the life-estate or life-estates intervening between the alienor and the reversioner entitled to challenge the alienation. This was considered to be a very unsatisfactory state of affairs because it had the effect of keeping apparently good titles in suspense for long periods of time, in some cases extending over even half a century or more. It was with the object of removing this suspense and insecurity and of conferring marketability on titles to lands purchased from persons whose powers of disposition were subject to the customary restrictions defined in Gujar v. Sham Das 107 P.R.1887 and Ramji Lal v. Tej Ram 78 P.R.1895 after the lapse of a reasonable time that Punjab Act 1 of 1900 was enacted. The effect of it was to prescribe an outside limit of 12 years for suits to avoid alienations by male proprietors. Inasmuch as the Act was confined in its operation to alienations by male proprietors, and in as much as it was well settled that restriction on a male's powers of alienation applied only to ancestral property, the application of the Act was expressly limited to such property.

25. Some years later, it was discovered that in cases where custom imposed restrictions on alienations of ancestral immoveable property, even the 12 years limitation for suits to enforce the right to avoid such alienations was much too long. Besides this in the actual working of the Act, it was found that by reason of its unhappy phraseology its application could not be extended to a case where the alienor had at the time he died a widow living. Such a case was held to still fall within the purview of Article 141, Limitation Act, and a suit for possession of the land alienated, after setting aside* the alienation, could be brought within 12 years of the death of the widow: vide Miran Bahhsh v. Ahmad 145 P.R.1907; Sohnu v. Labha 62 P.R.1910, Ganesha Ram v. Panju Singh A.I.R.1919 Lah.448 and Hiru v. Sohnun A.I.R.1920 Lah.435. It was further discovered that the Act left untouched cases where the impuged alienation was not an alienation inter vivos but took the form of a will or an* appointment of an heir. An appointment of an heir had always been regarded as irrevocable in its nature and it had been further understood that the incidents of such an appointment and a gift were very nearly identical, except that in. the former case, the passing of title was postponed till after the death of the appointer. It was accordingly felt that the period of limitation for a suit to challenge the title of a person claiming under such an appointment should not be larger than that prescribed for a suit to impugn the title of a person claiming under a gift. Their Lordships of the Judicial Committee, had already, in Jagadamba v. Dakhina Mohirn Roy 13 Cal.308 emphasized the need of providing a moderate period for contesting an adoption irrespective of the nature of the suit in which it came to be contested.

26. It had also come to be realised that in view of the changed circumstances of the society, it was necessary to impose some limit on the degree of relationship within which collaterals of a male-holder should be allowed to exercise the right of veto, on an alienation by such holder given by the Full Bench in Gujar v. Sham Das 107 P.R.1837 to all descendant of the common ancestor from whom the property had descended. It was conceded that if full effect was given to the principles laid down in the above mentioned Full Bench judgment, all agnates had to be held to have a locus standi to question the power of a limited male owner to alienate ancestral land and that there could be no limit beyond which collaterals could be held to be incompetent to contest alienations of ancestral property by male proprietors. However, feeling that it was not quite reasonable that very remote collaterals should be able to prevent a male holder from alienating ancestral land according to his will, the Judges in some cases had taken the view that a collateral related to the alienor beyond a certain degree should not be allowed to impugn an alienation of ancestral land by him except on proof of a special custom. For example, in Surjan v. Jodha 34 P.R.1891 and Ali Bakhsh v. Buta 79 P.R.1891, 7th degree was considered to be the limit beyond which a collateral was to be required to prove a special custom in order to establish a locus standi to contest an alienation of ancestral property. It was, however, generally felt that where descent from a common ancestor in the male line could be clearly established it was impossible, upon any a priori principles, to lay down any general rule that a collateral within a certain degree may object and one beyond that may not: vide Sher Jang v. Ghulam Mohi-ud-din 22 P.R.1904. It had accordingly been suggested that the Legislature should by law fix a limit of collateral relationship within which an alienation of ancestral property by a male could be contested. The question of fixing any limit in cases of alienations by widows 'did not of course arise because, as pointed out by my learned brother, a widow's estate is essentially an incomplete one and she enjoys no power of alienation over that estate in any circumstances, so much so that in the event of failure of all other heirs even the Grown can question her acts with reference to the property inherited by her from her husband.

27. In 1920, the Provincial Legislature took in hand simultaneous legislation to give effect to this suggestion and also to cure the defects that had been discovered in the Punjab Custom (Limitation) Act of 1900. The Punjab Act II [2] of 1920, also called the Punjab Custom (Power to Contest) Act, was intended to give effect to the said suggestion and Punjab Act 1 of 1900 was intended to cure the said defects. The operation of both the Acts was expressly confined to alienations of ancestral property or appointments of heirs to such property, a will also being included in the definition of the term 'alienation'. Alienations or appointments by females were expressly excluded from the operation of Act II of 1920. The language of Article 1 of the schedule to Act 1 of 1920, however, shows that it may also apply to an alienation by a female. In my opinion, it will apply to such an alienation only if, like the alienation by a male, it is liable to be impugned as opposed to custom and only if the property alienated is ancestral qua the plaintiff. The latter has the right to avoid the particular alienation even though the property is not ancestral qua him, in my judgment, the application of the article is not attracted even though the property may in fact be ancestral qua him. I consider this to be implicit in the phraseology of the article. I think that, while prescribing a period of limitation for a suit for a declaration that an alienation of an ancestral immovable property will not according to custom be binding on the plaintiff after the death of the alienor, or where the alienor is a female, after the forfeiture of her interest in the property, the legislature must be deemed to have in its mind a case where according to custom an alienation of ancestral immovable property is not binding on the plaintiff and not referring to a case where the alienation is not so binding regardless altogether of the character of the property alienated. There are undoubtedly cases in which an alienation even by a female cannot be contested as being opposed to custom unless the property is ancestral qua the plaintiff.

28. One such case is where the property has been inherited by her from someone claiming under a gift or an adoption or from some descendant of the donee or the adoptee and the person contesting the alienation is a descendant or collateral, of the donor or adoptee suing on the ground of being entitled to reversion on the extinction of the donee's or the adoptee's line. It is obvious that he can have no locus standi to maintain the suit unless the property is ancestral qua him, because there is no right of reversion in case of non-ancestral property. Another case in point is where the female alienor herself got the property by means of a gift from her father and the plaintiff suing to impeach the alienation is a collateral of such father. It has been held that gift by a father to his daughter of his self-acquired property should be presumed to be an absolute gift within the meaning of para. 64 of Rattigan's, Digest of Customary Law while a contrary presumption should be made, where the property-gifted was ancestral in the donor's hands. In the former case, the daughter gets an absolute estate in the subject-matter of the gift while she gets only a limited estate in the latter case. Another case in which an alienation by a female cannot be contested unless the land alienated is ancestral qua the plaintiff is that of occupancy rights inherited by a widow or a mother. Though an alienation of occupancy rights by the widow or the mother is void as provided in Section 59, Punjab Tenancy Act, the collaterals of the last male tenant have no right to succeed and, therefore, can have no locus standi to challenge an alienation by the female holder, unless the land is shown to have been held by a common ancestor. This instance is only relevant as indicating that there are cases in which the collaterals of the last male-holder cannot contest an alienation even by a widow except on proof that the land alienated was ancestral qua them. It must otherwise be admitted that the ban on a widow's or a mother's right to alienate occupancy rights is a statutory and not a customary bar and that a suit in respect of an alienation by one or the other will in no circumstances fall within the purview of Punjab Act 1 of 1920. Another instance in which a plaintiff must Ipse his suit unless he can prove the land alienated by the widow to be ancestral qua himself is one where the land has been transferred to a daughter or a daughter's son, who, according to the custom governing the parties' tribe have a recognised right of succession to the non-ancestral estate of the last holder as against collaterals. In the first two and the last mentioned instances, the plaintiff has to allege and prove the land alienated to be ancestral qua himself and in case he does not do so the alienee may move the Court to dismiss the suit as incompetent on the plaintiff's own allegations. The alienee may also, where the suit has been brought after the period of limitation prescribed by Act 1 of i920, in respect of alienations of ancestral property, plead the ancestral nature of the land alienated in bar of the suit. I do not consider that any question of a plaintiff being able to avoid the provision of the law of limitation really governing his suit by giving to the suit a particular label arises in such a case. If in case of an alienation by a female such alienation is liable to be attacked by the plaintiff as being opposed to custom regardless of the character of the land alienated and the plaintiff has not alleged the land to be ancestral qua him, on my view of the Act, the defendant cannot, by pleading that the land is ancestral qua the plaintiff, improve his case in any manner. If, on the other hand, the plaintiff has a right to avoid the alienation as opposed to custom only if the land alienated is ancestral qua him and fails to allege that it is so, the defendant has two alternative courses open to him where the suit has not been brought within the period of limitation provided by the Act. He can either plead that in the absence of an allegation as to the land being ancestral the suit cannot proceed, or he can himself aver that the land is ancestral and accordingly the suit is barred by time. Article 1 of the Act refers to a suit for a declaration that an alienation of ancestral immovable property will not according to the custom be binding on the plaintiff after the alienor's death and, in my view, is intended to cover only cases in which the alienation is not binding on the plaintiff according to custom on| the ground of its being ancestral qua him. In any case, I am clearly of the view that the interpretation suggested by me is at least a possible interpretation which does no violence to the language of the statute. Inasmuch as this interpretation removes the anomaly which my learned brother admits must arise on his interpretation of the Act, I consider that, according to the accepted canons of the interpretation of statutes, the interpretation suggested by me is to be preferred over the other possible interpretation which seems to have appealed to my learned brother.

29. In the view I take of the scope of Arts, 1 and 2 of Punjab Act 1 of 1920, the decision as to the present suit being not governed by the said Act can be based on a much broader ground.

30. I wish also to make a few observations regarding the scope and the implications of Section 8 of Punjab Act 1 of 1920. The question does not directly arise in the present case and anything I may say in respect thereof cannot possibly affect the decision of the appeal. However, I feel that certain remarks made by my learned brother with reference to this section are susceptible of being misunderstood and misapplied, and, therefore, I consider some clarification of the subject to be necessary and called for.

31. The section reads as follows:

When any person obtains a decree declaring that an alienation of ancestral immovable property or the appointment of an heir is not binding on him according to custom, the decree shall enure for the benefit of all persons entitled to impeach the alienation or the appointment of an heir.

My learned brother is of the view the at this section does no more than reproduce the rule laid down by a Bench of the Punjab Chief Court in Muhammad Din v. Fateh Mohd 11 P.R.1906. It was held in that case that a declaratory decree obtained by a reversioner in respect of an alienation enures for the benefit of whoever may be the person entitled to succeed when the inheritance falls in, provided always that such heir is himself a descendant of the common ancestor of himself and the alienor who alienated the land.

32. I must confess that I find it somewhat difficult to accept the proposition that the section does no more than reproduce the rule laid down in the above judgment. In the first place, it is to be observed that the Chief Court judgment stated but imperfectly and partially the rule even as applicable to the cases of the type before it because of its omission to say that the benefit of the declaratory decree in the circumstances could be claimed only by descendants of a common ancestor to whom the property alienated was traceable. Section 8 by confining the benefit of the declaratory decree expressly to persons themselves entitled to impeach the alienation has supplied this omission because no agnate can impeach an alienation of non-ancestral land by a male proprietor. However, in this matter Section 8 can only be said to clarify the rule laid down by the Chief Court and not to enlarge or curtail its scope because it had all along been clearly understood, despite the somewhat vague language used in Muhammad Din v. Fateh Mohd 24 P.R.1906, and much vaguer language used in the explanation to Article 2 of the Schedule in Punjab Act 1 of 1900, that the benefit of a declaratory decree obtained by a reversioner in respect of an alienation by a male could be claimed only by such agnates qua ;whom the land alienated could be shown to be aneestral. There are, however, other considerations which show that the rule embodied in the section is not wholly identical with that laid down by the Chief Court and that while the operation of the former is narrower than that of ; the latter in certain respects it may justly be regarded as wider in other respects.

33. Section 6 of Act II of 1920 restricts the right to control alienations of ancestral property by male proprietors to agnates descended from the great-great grandfathers of the alienors. It therefore follows that a declaratory decree obtained by a reversioner in respect of any such alienation can, under Section 8, enure only for the benefit of collaterals related to the alienor within the 5th degree and not of all collaterals descended from the common ancestor. In this respect the operation of the rule regarding the declaratory decree obtained by one reversioner enuring for the benefit of the reversioner entitled to possession at the time of the succession opening out must be deemed to have been made narrower by Section 8.

34. While dealing with the question under what circumstances an alienation by a widow can attract the application of Articles 1 and 2 of the Schedule to Act 1 of 1920, I have pointed out that where a widow alienates land which her husband or some ancestor of his had got by means of a gift from a relation or by means of adoption, in the absence of the descendants of the adoptee or the donee, the descendants or agnatic heirs of the donor or the adopter may sue to set aside the alienation provided that the land was ancestral in the hands of the donor or the adopter qua them. Before Act II of 1920 came into force, such descendants or agnatic heirs had even the right to control an alienation by a male proprietor holding such land. That right has, however, been impliedly taken away by Section 6 of the said Act. Inasmuch as that Act does not apply to alienations by females, the right of such descendants or agnatic heirs to object to an alienation of such land by a widow still exists. I see no reason why the provisions of Section 8 should not apply to a declaratory decree obtained in respect of such an alienation and why a declaratory decree obtained by the descendants or agnatic heirs of the donor or the adopter to whom the land would have reverted if the widow had died immediately before the alienation should not enure for the benefit of the person or persons who is or are found entitled to the reversion at the time the widow actually dies and the estate falls into possession. Such a case is clearly covered by the language of Section 8, although not by that of Muhammad Din v. Fatteh Mohd 24 P.R.1906. In this respect, therefore, the scope of the rule laid in the Section seems to be wider than that of the rule formulated by the Chief Court.

35. In fact both the section and the Chief Court judgment furnish only particular illustrations of the application, in certain sets of circumstances, of a much wider rule which has long since been recognised as the law of the land, and neither of them can be regarded as an exhaustive statement of the circumstances in which a decree obtained by one reversioner in respect of an alienation by an owner with restricted power of disposition can be availed of by another reversioner. Under Hindu law, as well as under custom, a reversioner has no personal interest in the property. The actual reversioner may be a person different from the presumptive reversioner or his heirs. The right given to the presumptive reversioner to bring an action to prevent an invasion of the reversioners' interests or to avoid alienation of the property Joy the holder for the time being who holds the same with a restricted power of disposition has always been regarded as a right existing and exercisable in the interest and for the benefit of the entire reversionary body. As pointed out by their Lordships of the Privy Council in Venkata Narayana Pillai v. Subhammal A.I.R.1915 P.C.124 the act complained of in such a case is to the common detriment of all the reversioners and the relief sought is for their common benefit. As a necessary corollary of this, any decree passed in an action brought by the presumptive reversioner must bind or enure for the benefit of the entire reversionary body. As far back as 1877, Boulnois, J. pointed out that a declaration in a suit brought to avoid an alienation by a widow sets the estate free in favour of him who actually may be the heir: Mehtab Khan v. ML Mehtab Bibi 24 P.R.1877. There is a long course of judicial decisions holding a reversioner's suit to avoid an alienation by the life tenant to be a representative suit within the meaning of Expln. 6 to Section 11, Civil P.C. Under Hindu law, a reversioner is a person entitled to succeed to the property of the last male holder on the death of one or more life tenants who come before him in the order of succession and may be a male or female and may be related to the last male holder in the agnatic or the cognatic line. A person having the right to succeed to a male holder direct without the intervention of any life estate is never called a reversioner. The only alienations which a reversioner can challenge are those by the life tenant or life tenants intervening between him and the last male holder. The restriction on the powers of alienation of the life tenants being absolute and the alienation by any life tenant being voidable at the instance of whoever happens to be the reversioner at the time of the estate falling into possession, a declaratory decree obtained by any reversioner in respect of such an alienation can be availed of by whoever is the actual reversioner at the material time.

36. In custom the expression 'reversioner' has a much more extended signification and also includes the sons and agnatic heirs of the last male holder who have a right to succeed to him direct, without the intervention of a life estate provided the property is ancestral qua them. In such a case, such heirs are deemed to derive their right to such property not from such holder but from the common ancestor. In the very nature of things, an alienation by a male proprietor under custom was at all times challengeable only by an agnatic heir descended from a common ancestor shown to have held the land. In case of widows or other life tenants, the agnatic heirs of the last male holder were always recognised as having the right to control alienations by such life tenants. However, the question of the right of non-agnatic heirs of the last male holder to challenge alienations by the life tenants remained in a fluid condition and in a state of uncertainty till 1924, conflicting views having been taken at different times by different judges of the Chief Court. In Muhammad Din v. Fatteh Mohd 24 P.R.1906, the alienor was a male and the question of a declaratory decree obtained in respect of the alienation made by him by one reversioner enuring for the benefit of anyone excepting a descendant of an ancestor common to the alienor and himself could not possibly arise, because only a person so related to him could be regarded as a reversioner and that also provided the land forming the subject-matter of the dispute had descended from the common ancestor. The rule laid down in that judgment, therefore, covered only the cases of alienations by male proprietors. In 1924 the right of non-agnatic heirs of the last male holder to challenge alienations by life tenants was finally recognised. If such an heir had successfully sued to avoid such an alienation but at the time of the succession opening out another non-agnatic heir was found entitled to succeed, I have no doubt that in spite of the restricted language used by the Chief Court in Muhammad Din v. Fatteh Mohd 24 P.R.1906 on general principles and in view or Expln. 6 to Section 11, Civil P.C., the right of the latter to avail of the decree could not be disputed. Inasmuch as under certain circumstances a suit to avoid an alienation by a female is also to be governed by Act I [1] of 1920. Section 8 has been designedly so framed as to extend the benefit of a declaratory decree obtained by one person to all persons having themselves, the right to impeach the alienation, including, in case of decrees in respect of alienations by females, non-agnatic reversioners of the last male holder whose case could not fall within the purview of the rule laid down by the Chief Court in Muhammad Din v. Fatteh Mohd 24 P.R.1906. The Act being confined only to suits in relation to alienations of ancestral immovable property, the operation of Section 8 also is confined to such cases. I have, however no doubt that where a declaratory decree has been obtained in respect of an alienation by a female of the non-ancestral property of the last male holder such decree shall, quite independently of the provisions of the section, enure for the benefit of whoever at the time of the succession opening out is found entitled to the possession of the property of the last male holder held by such female. Subject to the above observations, I would, in agreement with my learned brother, dismiss the appeal leaving the parties to bear their own costs.

Khosla, J.

37. I agree and have nothing further to add.

Falshaw, J.

38. I agree and have nothing to add.


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