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Ujagar Singh Piehhlag Vs. Kehar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 362 of 1958
Judge
Reported inAIR1967P& H420
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47; Punjab Limitations (Customs) Act, 1920 - Schedule - Article 1
AppellantUjagar Singh Piehhlag
RespondentKehar Singh and ors.
Appellant Advocate H.S. Gujral and; S. Malhotra, Advs.
Respondent Advocate D.N. Aggarwal, Maluk Singh and; G.R. Majithia, Advs.
DispositionAppeal dismissed
Cases ReferredSohan Singh v. Jagir Singh
Excerpt:
.....there is no disposition though there may be an intention to dispose and therefore the date on which the alienation comes to the knowledge of the plaintiff might still be after the date of the death of the testator and not before, even though th.....holding that the same was within time and, thirdly, that in the presence of the sister's son, the suit of the plaintiffs was speculative.2. so far as the first point is concerned, it is admitted that at the time when the suit was brought, the only relief that was open to the plaintiffs was to file a suit for declaration that the wills will not affect their reversionary rights. during the pendency of the suit mst. indo died and ft was certainly open to the plaintiffs to amend the suit and seek the relief for possession but they were certainly not bound to do so. in the plaint the plaintiffs claimed themselves to be brothers' sons of bishan singh. this was denied. the only point put in issue was whether they were the collaterals. so the matter as to in how many degrees of ascent they were.....
Judgment:

Harbans Singh, J.

1. Three points were urged: first, that inasmuch as Mst. Indo has died, only a suit for possession could lie; secondly, that the suit was, in any case, barred by time and the Courts below were wrong in holding that the same was within time and, thirdly, that in the presence of the sister's son, the suit of the plaintiffs was speculative.

2. So far as the first point is concerned, it is admitted that at the time when the suit was brought, the only relief that was open to the plaintiffs was to file a suit for declaration that the wills will not affect their reversionary rights. During the pendency of the suit Mst. Indo died and ft was certainly open to the plaintiffs to amend the suit and seek the relief for possession but they were certainly not bound to do so. In the plaint the plaintiffs claimed themselves to be brothers' sons of Bishan Singh. This was denied. The only point put in issue was whether they were the collaterals. So the matter as to in how many degrees of ascent they were connected with the last maleholder was not put in issue. From the pedigree-table. Exhibit P. 6 on the record ft is clear that plaintiff No. 1 is the son of Hira Singh, who was certainly a brother of Bishan Singh. The other plaintiffs 2 to 5 claim to be the sons of Rur Singh but their names are not given in the pedigree-table.

However, it is clear that plaintiff No. 1 has a right to inherit under the Hindu Succession Act along with the sister's son. The sister's son cannot challenge an alienation, and in any case, the presence of sister's son is no bar in the way of plaintiff No. 1 at least seeking a declaratory decree of the type which has been granted to the plaintiffs. In the present case if the suit is converted to one for possession, the entire matter shall have to be reopened as to whether the remaining plaintiffs are the brother's sons or whether there are other heirs of equal degree or not. The present is, therefore, a case in which a declaratory decree would be the proper relief and it will be then open to the heirs to claim shares to which they are entitled.

On behalf of the appellants reference was made to a Division Bench judgment of this Court reported in Maghar Singh v. Gujjar Singh, 1964-66 Pun LR 865. This, however, is no authority for the proposition that a declaratory decree cannot be granted if the suit was maintainable in that form at the time when it was brought. No doubt, the Court would be disinclined to grant a declaratory decree if, as a result of the death of the intervening heir, somebody else is the next heir and the person, who has brought the suit, does not represent the immediate heir and in view of the changed circumstances the suit brought by the plaintiff has become speculative. That is not, the case here because, as stated above, plaintiff No. 1 at least is one of the next heirs though it is not possible to say what his share is. In view of the above, therefore. 1 feel that there is no force so far as the first and the last points are concerned.

3. This now brings us to the question of limitation. Article 1 of the Schedule to Punjab Act 1 of 1920 runs as under:--

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Description Period of Time from which

of suit limitation period begins to run.

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A suit for a declare- 6 years Firstly:-- If the alienation

tion that an alienation is by a registered deed, the

of ancestral immovable date of registration of

property will not, accord- such deed.

tag to custom, be binding Secondly:-- If the alienation

on the plaintiff after the is not by a registered

death of the alienor ** *. deed----

(a) it an entry regarding the alienation

in the Register of Mutations has been

attested by a Revenue Officer under the

Punjab Laud Revenue Act, 1887, the

date on which the entry is attested.

(b) it such entry has not been

attested, the date on which the alienee

takes physical possession of the whole

or 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.'

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The Full Bench decision of the Lahore High Court in Sohan Singh v. Jagir Singh, AIR 1942 Lah 114 has settled the controversy that in case of a will 'firstly' does not apply because the will is not a deed. Obviously, therefore, 'secondly' will apply. Mutation in this case was attested on 3rd of April, 1956, and physical possession of the property or part thereof could not have been taken under the will before the death of Bishan Singh. On behalf of the appellant it was urged that Clause (c) of 'secondly' will apply and that there was no evidence on the record to show that the plaintiffs did not have knowledge prior to the date of the death of Bishan Singh. The main contention was that it was for the plaintiffs to show that the suit was within time and in the absence of any evidence as to when the plaintiffs got the knowledge, the suit should be treated to be barred by time because it was brought six years after the date of the execution of the will. In the aforesaid Full Bench case this is what was observed by Dalip Singh, J. at p. 117 (Column 1):--

'But a will is not, as a rule, anything but ambulatory until the death of the testator. No title is passed until the death takes place and it is difficult to see why the Legislature should not have intended such alienations to be challenged at the only time when normally speaking they could be challenged, namely, after the death of the testator had revealed, his intention to dispose of his property in any particular manner x x x x x x .

I would, however, like to point out that, without expressing any final opinion on it, so far as wills are concerned, whereas Article 1 (secondly) (a) and (b) might well apply to the terminus a quo of limitation in such cases, (c) would present some difficulty for, as I have pointed out above, while 'alienation' amy, by the Act, include testamentary disposition yet until the death of the testator there is no disposition though there may be an intention to dispose and therefore the date on which the alienation comes to the knowledge of the plaintiff might still be after the date of the death of the testator and not before, even though the plaintiff was aware of the execution and the contents of the will. This point however, it is unnecessary to decide and I have therefore merely stated it leaving it to be decided subsequently if and when the point becomes necessary to decide.'

The point whether a will can be treated as an alienation was not decided in this reported case. However, I am in respectful agreement with the observations of the learned Judge in the above case. A will can be torn off revoked or modified any time during the lifetime of the testator. Therefore, it cannot really be treated as an alienation. It is only an intention to alienate. It becomes actual alienation immediately on the demise of the testator. Consequently the terminus a quo cannot be earlier than the death though in some cases it may be long after the date of the death that a person may come to know of such an alienation. In the present case, the suit was brought within a year of the death and, therefore, the question of knowledge is irrelevant. In view of the above, therefore, I feel that the suit was correctly held to be within time and the declaratory decree in the present case was properly granted. As I have already stated, the question as to what share of the estate the plaintiffs or other collaterals are entitled will have to be determined in a suit for possession, when and if filed.

4. For the reasons given above, I find no force in this appeal and dismiss the same with no order as to costs.


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