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Sawaran Kaur Vs. Kishan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberRegular Second Appeal No. 2802 of 1983 and Civil Misc. No. 521-C of 1985
Judge
Reported inAIR1985P& H293
ActsPunjab Limitation (Custom) Act, 1920 - Schedule - Article 2; Punjab Customs (Power to Contest) (Amendment) Act, 1973
AppellantSawaran Kaur
RespondentKishan Singh and ors.
Cases ReferredManshan v. Teg Ram
Excerpt:
.....in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - ) on 6-12-1966, on the basis of the decree passed by the district judge, hoshiarpur, on april 24, 1963. the suit was contested inter alia on the ground that the same was barred by time as it was filed after more than three years of the date of death of harnam singh, donor, as well as from the date of the decree of the district judge, hoshirapur, dated april 24, 1963. at one stage, there was the dispute as to whether the plaintiff being a female had the locus standi to claim the possession of the suit property after the death of her father harnam..........whose suit for joint possession was decreed by the trial court, but dismissed in appeal.2. one harnam singh son of nihal singh was the owner of the suit land. he executed a gift deed in respect of the said land in favour of his grandson baldev singh and tara singh, etc., on 3-11-1959. kishan singh, son harnam singh challenged the said gift on the usual grounds under custom. though the said suit was dismissed by the trial court, the same was decreed in appeal by the district judge, hoshiarpur, on april 24, 1963, to the effect that the land measuring 24 kanals was ancestral qua kishan singh and harnam singh and that the gift to that extent was cancelled, but it was allowed to stand with respect to the rest of the land as the same was found to be non-ancestral. the donees came up in.....
Judgment:

1. This is plaintiff's second appeal whose suit for joint possession was decreed by the trial Court, but dismissed in appeal.

2. One Harnam Singh son of Nihal singh was the owner of the suit land. He executed a gift deed in respect of the said land in favour of his grandson Baldev Singh and Tara Singh, etc., on 3-11-1959. Kishan Singh, son Harnam Singh challenged the said gift on the usual grounds under custom. Though the said suit was dismissed by the trial Court, the same was decreed in appeal by the District Judge, Hoshiarpur, on April 24, 1963, to the effect that the land measuring 24 kanals was ancestral qua Kishan Singh and Harnam Singh and that the gift to that extent was cancelled, but it was allowed to stand with respect to the rest of the land as the same was found to be non-ancestral. The donees came up in second appeal to this Court which was dismissed in limine on 9-8-1963. Harnam Singh, donor, died on July 24, 1961. The present suit was filed by Swaran Kaur, daughter of the said Harnam Kaur (Singh?) on 6-12-1966, on the basis of the decree passed by the District Judge, Hoshiarpur, on April 24, 1963. The suit was contested inter alia on the ground that the same was barred by time as it was filed after more than three years of the date of death of Harnam Singh, donor, as well as from the date of the decree of the District Judge, Hoshirapur, dated April 24, 1963. At one stage, there was the dispute as to whether the plaintiff being a female had the locus standi to claim the possession of the suit property after the death of her father Harnam Singh. However, it was finally settled by the Supreme Court in Giani Ram v. Ramji Lal, AIR 1969 SC 1144 and Teg Singh v. Charan Singh, AIR 1977 SC 1699, wherein it was held that a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property ensured in favour of all persons who ultimately took the estate on the death of the alienor and that the Punjab Customs (Power to Contest) Amendment Act, 12 of 1973, did not render such a decree a nullity. Consequently, the case was remanded and one of the issues therein was whether the suit was within time. The trial Court found the suit to be within time and the same was decreed accordingly. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that the suit was barred by time as it was filed beyond three years from the date of the declaratory decree which was obtained on 9-8-1963, as well as from the date of death of Harnam Singh on July 24, 1961. The limitation in this case was held to be governed by Art. 2(b), Punjab Limitation (Custom) Act, 1920. Consequently, the plaintiff's suit was dismissed. Dissatisfied with the same, she has come up in second appeal to this Court.

3. At the time of the motion hearing, it was submitted that Art. 2 in the Schedule to the Punjab Act No. 1 of 1920 did not apply to the plaintiff as she was claiming the suit property on the basis of inheritance.

4. The learned counsel for the appellant contended that it is Art. 65, Limitation Act, 1963, which is applicable to this case and, therefore, the limitation for bringing the suit was 12 years. According to the learned counsel, after the coming into force of the Punjab Customs (Power to Contest) Amendment Act, 1973, it is Art. 65 Limitation Act, 1963, and not Art. 2 of the Schedule to Act No. 1 of 1920 (sic). A declaratory decree, argued the learned counsel, meant that the property reverted to the donor on his death and that at that time, his heirs under the Hindu Succession Act, 1956, (hereinafter called the Act), will succeed to his estate and for that purpose, the limitation will be as provided under Art. 65 Limitation Act. Because the plaintiff was claiming as the heir of the deceased Harnam Singh and not as a reversioner, it was Art. 65, Limitation Act, which applied to her case. In support of the contention, besides Giani Ram's (Air 1969 SC 1144) and Teg Singh's (AIR 1977 SC 1699) cases, (supra), the learned counsel also relied upon Manshan v. Teg Ram, AIR 1980 SC 558, wherein it was elucidated as to what was the effect of a declaratory decree obtained earlier, if the last male holder died after the coming into force of the Act.

5. After hearing the learned counsel for the parties I do not find any merit in this appeal.

6. In the abovementioned Supreme Court decisions, the only proposition of law laid down is that where a declaratory decree is obtained earlier, the property will go to the heirs of the deceased under the Act if he dies after the coming into force of the Act and not to the agnates alone as was the custom earlier. Reversioners mean heirs under the custom or the Act. The plaintiff being the daughter of the deceased Harnam Singh will be entitled to claim possession because of the declaratory decree obtained earlier because she is one of the heirs of the deceased under the Act as he had died after the coming into force of the Act. As regards the limitation for such a suit, Art. 65, Limitation Act, 1963, could not be invoked in any manner. That article is attracted only when the possession of the defendant becomes adverse to the plaintiff. In the present case, the possession of the defendant could not be said to be illegal or adverse in any manner because he is in possession of the land by virtue of the gift deed in his favour. The effect of the declaratory decree, in the present case, would be that after the death of the donor, the gifted property will revert to his heirs. The relevant article applicable for that purpose is Art. 2, in the Schedule to the Punjab Act No. 1 of 1920 which provides a period of three years if declaratory decree of the nature referred to in Art. 1 is obtained. Since the limitation applicable to the present case is governed by the said Act, the suit is barred by time and has been rightly dismissed as such by the lower appellate Court.

7. Consequently, this appeal fails and is dismissed with no order as to costs.

8. Appeal dismissed.


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