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Mt. Chinto and anr. Vs. Narinjan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 16(P) of 1952
Judge
Reported inAIR1957P& H317
ActsPepsu Judicature Ordinance, 2005 - Sections 52; Pepsu High Court Rules - Rule 6; Code of Civil Procedure (CPC) , 1908; Limitation Act, 1908 - Sections 12; Evidence Act, 1872 - Sections 115
AppellantMt. Chinto and anr.
RespondentNarinjan Singh and ors.
Appellant Advocate Dalip Chand, Adv.
Respondent Advocate S.L. Gupta, Adv.
DispositionAppeal allowed
Cases Referred(sic)Kareem v. Rashiduddin
Excerpt:
.....act of the court shall prejudice no one. 15. for these reasons i am of the opi(sic)that the appeal is well within time, thatplaintiffs who are collaterals of udmi have(sic)right or interest in the property of badh(sic)that the admission of the daughters is not (sic)ing on them and that the courts are not(sic)cluded from deciding the rights of the pa(sic)on a true view of the law......of udmi are unconnected by ties of relationship with. badhawa and have no right or interest in the property of badhawa. their claim to this property is based on certain admissions which are said to have been made by the daughters of badhawa in an application presented by them to the revenue authorities on the 8th july 1944. this application runs as follows :--'mst. chinti and kartaro daughters of badhawa deceased and messrs. des raj and mangal jats of village babar who have filed objections separately concerning the property in dispute are collaterals of the donor and are entitled to the property under jaw and custom. for these reasons we acknowledge the right of des raj and mangal, and relinquish our claims in respect of the said land in favour of the said des raj and mangal. now we the.....
Judgment:

Bhandari, C.J.

1. This appeal raises the question whether it is open to a person to withdraw a gratuitous admission made by him on a pure question of law.

2. It appears that on the 4th July 1899 one Udmi, a sonless proprietor, transferred by way of gift a plot of land measuring 59 bighas 10 biswas to his pichhlag son by the name of Badhawa. The collaterals of Udmi challenged the validity of the gift but the parties came to a compromise that on the death of Udmi 1/3rd of the ancestral land was to devolve on Badhawa and the remaining 2/3rd on the collaterals. This agreement does not appear to have terminated the dispute and the matters in controversy between the parties were eventually referred to an arbitrator who gave his award on the 16th April 1914. According to his award Badhawa was to give 15 bighas of land to the collaterals immediately and was to become the exclusive owner of the remaining portion of the property. A decree in terms of the award was passed by the Council of Regency Kalsia on the 25th April 1914.

The collaterals did not take possession ofthe property to which they were entitled under the award but when Badhawa died in theyear 1943 they took possession of the entireproperty belonging to him. Chinto and Kartaro, daughters of Badhawa, objected to thehighhandedness of the collaterals in taking possession of the land belonging to their fatherand the revenue officers of the Kalsia Stateset up an enquiry as to the person or personswho were entitled to succeed to the propertyof the deceased. On the 8th July 1944 thedaughters submitted an application to the revenue authorities in which they admitted thatthe collaterals alone were entitled to succeedand that the daughters had no right or interest whatsoever in the land. The revenue officers,however, mutated 67 bighas of land in favourof the daughters on the 19th April 1946 notwithstanding the admissions made by thedaughters.

3. A few days later, that is on the 23rd April, 1946 the collaterals brought a suit for a declaration that they were entitled to remain in possession of the property. The trial Court granted a decree in favour of the collaterals on the ground that although the land which was transferred by Udmi to Badhawa in the year 1899 was non-ancestral qua the collaterals and although Badhawa had become the absolute owner thereof the daughters had re-linquished their right to this land in their application to the revenue authorities in the year 1944 and were not entitled to the property in question. The order of the trial Court was upheld by the learned District Judge and later by a learned Single Judge of the Pepsu High Court. The daughters were dissatisfied withthe orders of the Courts below and have come to this Court in appeal under Section 52 of Ordinance No. 10 of 2005 Bk.

4. The learned counsel for the collaterals raises a preliminary objection that the present appeal is barred by time. The order under appeal was passed by Passey, J. on the 21st December 1951; an application for the grant of a certificate that the case is a fit one for appeal was presented on the 21st January 1952; the certificate was granted on the 1st April 1952 and the daughters filed the present appeal the same day.

5. The question as to whether the appeal is or is not barred by time turns upon the construction of the rulers framed by the Pepsu High Court regarding applications for grant of certificates under Sub-clause (d) of Clause (9) and Clause (44) of the Patiala Judicature Far-(sic) 1999. Rule (6) which was in force when (sic) collaterals brought the suit against the daughters was in the following terms.

'(6) Every appeal preferred under Clause(44) of the Patiala Judicature Farman 1999shall be filed within sixty days from the dateof judgment, decree or order appealed fromand shall be accompanied by a copy of thejudgment or order appealed from and of thedecree, if any prepared in pursuance thereofand also of the order granting the certificateunder Rule (2) or 'Rule (5) as the case may be,provided that in computing the period of sixtydays the time spent in obtaining the copies ofjudgment, decree or order and of the certificate shall be deducted.'

6. On the 13th March 1952 this rule was replaced by a new rule which was in the following terms:--

'No memorandum of appeal preferred under Section 52 of the Patiala and East Punjab States Union Judicature Ordinance No. 10 of 2005, forwhich a certificate is required under proviso (1) of that section shall be entertained, if presented after the expiration of thirty days from the date of judgment, decree or order appealed from, unless the admitting Bench in its discretion, for good cause shown, grants further time for the presentation; such memorandum of appeal need not be accompanied by a copy of the judgment, decree or order appealed from, but most contain a declaration to the effect that the Judge who passed the judgment has certified that the case is a fit one for appeal. (sic)he time spent in obtaining this certificate from (sic)he Judge (including the date of application and the date on which the Judge passed the order) shall be excluded in computing the period of limitation.'

7. The learned counsel for the collaterals(sic)tends that the period of limitation in the(sic) case must be computed in accordance(sic) the rule which was in force when this suitas actually instituted, and that in computing(sic) period of 60 days within which the appeal(sic)ould be filed the Court is at liberty to exclude(sic) tirre which is spent in obtaining copies of thejudgment, decree or order and the certificatebut not the time which is spent in obtaining the certificate itself.

According to this rule, it is submitted, the appeal is hopelessly barred by time. The learned counsel for the daughters on the other hand argues that the period of limitation is regulated by the new rule which was promulgated on the 13th March 1952 and that the appeal is well within time.

8. The first point for decision in the present case is whether the period of limitation is to be regulated by the rule which was in force when the suit was instituted or by the rule which was in force on the 1st April 1952 when the appeal was actually filed. It is an accepted proposition of law that the rule of limitation applicable to a suit is that which is in force at the time the suit is brought Abdul Qadir Shab v. Siraj-ud-din, AIR 1937 Lah 9 (A). It is of course within the competence of the rule-making power to promulgate a new rule of limitation or to change the period of limitation previously fixed, but in the absence of express language to the contrary the new rule must be presumed, to operate prospectively and to apply only to cases arising subsequent to its promulgation.

It will be given a retrospective operationonly if it can be established that it was clearlythe intention of the rule-making power thatit should so operate. The rule which came intoforce bn the 13th March 1952 contains no wordswhich will give it a retrospective effect and itseems to me therefore that the period of limitation applicable to the present case must beregulated by the rule which was in force onthe date on which the suit was originally instituted.

9. The question now arises whether the appeal which was filed on the 1st April 1952 can be said to be barred by efflux of time. It is of the essence of the law of limitation that time begins to run under it as to a cause of action the moment the right to sue has fully accrued or the moment the right to commence an action has come into existence. If there is a condition precedent to the right of action the cause of action does not accrue, and the limitation does not begin to run, until that condition is performed.

10. Now the learned Single Judge passed an order against the daughters on the 21st December 1951 and the right to prefer an appeal accrued to them the same day. But this right was contingent on the performance of certain conditions, for the law requires that an appellant shall submit with the memorandum of appeal a copy of the judgment appealed from, and a copy of the order granting the certificate that the case is a (sic) for appeal to the Division Bench. It was not within the power of the daughters who are the appellants, in the present case to take the preliminary antecedent steps mentioned above unless the copies of the necessary documents were supplied to them. The certificate that the case was a fit one for appeal was supplied to them on the 1st April 1952 and they filed the appeal on the very same day. It seems to me therefore that the appeal must be deemed to have been presented within the period of limitation prescribed therefor.

In any case the delay which has been occasioned in the grant of the certificate was duealmost entirely to the multiplicity of businessin the Court by which the certificate was to be given and it is a well-known legal maxim that the act of the Court shall prejudice no one. When there is doubt as to the time when the limitation commences to run the doubt should be resolved in favour of the plaintiff or appellant as the case may be.

11. On the merits the collaterals do not appear to have a leg to stand on. It has been established beyond the shadow of a doubt that the property in respect of which the present controversy has arisen belonged at one time to Udmi, that this property was non-ancestral qua the plaintiffs who were collaterals of Udmi, that Udmi had full powers to dispose of the property in any way he pleased, that he transferred it by way of gift to his pichhlag son Badhawa, that Badhawa became the absolute and undisputed owner of the property and that on Badhawa's death the property devolved on the heirs of Badhawa.

The plaintiffs who are collaterals of Udmi are unconnected by ties of relationship with. Badhawa and have no right or interest in the property of Badhawa. Their claim to this property is based on certain admissions which are said to have been made by the daughters of Badhawa in an application presented by them to the revenue authorities on the 8th July 1944. This application runs as follows :--

'Mst. Chinti and Kartaro daughters of Badhawa deceased and Messrs. Des Raj and Mangal Jats of village Babar who have filed objections separately concerning the property in dispute are collaterals of the donor and are entitled to the property under Jaw and custom. For these reasons we acknowledge the right of Des Raj and Mangal, and relinquish our claims in respect of the said land in favour of the said Des Raj and Mangal. Now we the applicants have no connection with the property of our father Badhawa, nor shall we have any connection therewith in future.

The petitioners do not wish to give evidence of any kind in regard to the above objection, nor do we want to take the above land, Des Raj etc. are entitled to the reversionary rights in the said land. It is accordingly requested that the above objection petition be consigned to the Record Room.'

12. This application contains a very clear and unequivocal admission on the part of the daughters that the collaterals of Udmi are entitled to the property under law and custom, that the daughters have no right or interest in the said property and that they had no desire to take the land in question.

13. It is true that the doctrine of estoppel precludes a party from taking up a positionwhich is inconsistent with an admission(sic)he has previously made, but this (sic)comes into play only when the admission(sic)designed actually or apparently to (sic)the, conduct of the party claiming the esto(sic)and when the said party has changed his(sic)tion in reliance on the admission. It doesapply to an erroneous admission on a po(sic)law GulabChand v. Bhaiyalal, AIR 1929(sic)343 (B); Ram Bharose v. Ram Bahadur Si(sic)AIR 1948 Oudh 125 (C), or when the admi(sic)is gratuitous Mahomed Imam Alli Kha(sic) Husain Khan, ILR 26 Cal 81 (PC) (D); B(sic)Ram v. Uttamchand, AIR 1928 Lah. 726 at (sic)(E); and a party making such an admiss(sic)entitled to retract the same Sita Ram (sic)Baksh, AIR 1931 Lah. 6 (F), and to pro(sic)the admission was mistaken or untrue, (sic)Kareem v. Rashiduddin, AIR 1931 Oud(sic)(G).

14. The admission on which the colla(sic)rely in the present case was not a stateme(sic) concession of any fact, but at the most a conclusion. It was an admission as to the it was entirely gratuitous; there was no ob(sic) tion on the part of the daughters not to (sic) draw it: it was not made for the purpos(sic) fraud; there is not the slightest suggestion(sic) the daughters accepted or retained any be(sic) of the transaction in the course of which admission was made.

The admission cannot, in my op(sic) operate to prevent the daughters from que(sic) ing the validity or correctness of the state(sic) made by them. There is not an iota of(sic) dence on the record to justify the asse(sic) that this admission was made as the resu(sic) a compromise, lor there was ho arrangeme(sic) the dispute by concessions on both sides(sic) there was no compromise it cannot be said the daughters repudiated the compromis(sic) far as the terms were not favourable to (sic) and accepted the compromise so far as terms were favourable tp them.

15. For these reasons I am of the opi(sic)that the appeal is well within time, thatplaintiffs who are collaterals of Udmi have(sic)right or interest in the property of Badh(sic)that the admission of the daughters is not (sic)ing on them and that the Courts are not(sic)cluded from deciding the rights of the pa(sic)on a true view of the law. I would accord(sic)accept the appeal, set aside the order of(sic)learned Single Judge and dismiss the plain(sic)suit with costs throughout.

Tek Chand, J.

16. I agree.


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