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1992 DIGILAW 14 (HP)

ROMEL SINGH v. CHINTI DEVI

1992-03-05

KAMLESH SHARMA

body1992
JUDGMENT Kamlesh Sharma, J. —Both the Courts below have concurrently held that sale made by Gittu, original defendant in respect of his land measuring 22 kanals 3 marlas, situated in village Garli, Tehsil Dehra, District Kangra, as described in part-A of the beading of the plaint, in favour of original respondents-defendants S/Shri Man Singh, Hukam Singh, Sant Ram, Bhagat Ram and Hans Raj, was without legal necessity and not binding on the appellant-plaintiff and on the right of other reversioners. (S/Shri Man Singh and Hukam Singh, original respondents/defendants have died during the pendency of this appeal and their legal representatives have been brought on record). But the suit was dismissed and decree of declaration was refused on the ground that on the death of Gittu, which occurred on 17-1-1974 during the pendency of the suit, right to possession had accrued to the nearest reversioner and the suit for mere declaration was forbidden under proviso to section 34 of the Specific Relief Act. Hence, by way of present Regular Second Appeal, the appellant-plaintiff has challenged the decree and judgment dated 19th May, 1979 passed by the District Judge, Kangra at Dharamshala, whereby the decree and judgment dated 26-7-1976 of Sub-Judge 1st Class, Dharamshala was affirmed. 2. I have heard learned Counsel for the parties and gone through the record. Shri D. K. Khanna. learned Counsel for the appellant-plaintiff has urged that both the Courts below have not examined the case from another angle that without decree for declaration the suit for possession had become time barred and could not be filed by near reversioner In support of his argument, he has drawn my attention to sections 5, 6, 7 and 8 of Punjab Limitation (Custom) Act, 1920 (hereinafter called the Act of 1920) Under section 5 of the Act of 1920, suit of the description specified in the schedule annexed to the Act of 1920, is liable to be dismissed if it is filed after the period of limitation prescribed in the said schedule, even if limitation has not been set up as defence. This section is subject to the provisions contained in sections 4 to 24 of the Indian Limitation Act of 1963 and notwithstanding anything to the contrary contained in the first schedule of the said Act. This section is subject to the provisions contained in sections 4 to 24 of the Indian Limitation Act of 1963 and notwithstanding anything to the contrary contained in the first schedule of the said Act. Under section 6 of the Act of 1920, provision has been made for suits for which the period prescribed is shorter than that prescribed by the Indian Limitation Act or the Punjab Limitation Act. Section 7 of the Act of 1920 is subject to section 6 of the Act and its sub-section (a) provides as under : - "(a) 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.” 3. Under this provision for bringing within limitation, the suit for possession of ancestral immovable property on the ground that alienation of such property is not binding on the plaintiff according to custom, suit for declaration is required to be filed within the period prescribed in the schedule annexed to the Act i.e. 6 years from the date of registration of sale deed. In other words, section 7 (a) of the Act of 1920 puts bar of limitation for filing suit for possession if the suit for declaration is not instituted within the period prescribed by the schedule i e 6 years from the date of registered sale deed. Further, under section 8 of the Act of 1920, it is provided that the benefit of declaratory decree that alienation of ancestral immovable property is not binding according to custom enures for the benefit of all persons entitled to impeach the alienation. 4. After examining these provisions, I find that the argument of Mr. Khanna is misconceived. The bar of limitation as provided under section 7 (a) of the Act of 1920 does not apply in the present case as the suit for declaration had already been filed within the period of 6 years as prescribed in the schedule attached to the said Act. Khanna is misconceived. The bar of limitation as provided under section 7 (a) of the Act of 1920 does not apply in the present case as the suit for declaration had already been filed within the period of 6 years as prescribed in the schedule attached to the said Act. Bar of limitation applies to suit for possession of ancestral immovable property on the ground that alienation of such property is not binding on the plaintiff according to custom if suit for such a declaration is not instituted within limitation prescribed in the schedule to the Act of 1920 and passing of decree of such a declaration is not required as argued by Mr. Khanna. There cannot be any other interpretation of section 7 (a) of the Act of 1920 in view of its unambiguous language. The authorities AIR 1946 Lahore 180, 1958 PLR 603 and 1967 PLR 459 cited by him in support of his arguments are not relevant and need not be referred to. 5. The real question for determination in the present case is whether on the death of Gittu, original defendant No. 1, the vendor, the suit of plaintiff-appellant became defective as nearest reversioner became entitled to further relief of possession and was liable to be dismissed as has been done by both the Courts below. By now it is well settled that a declaratory decree obtained by one or more reversions enures for the benefit of entire reversionary body and the individual reversioner who actually happens to be the next heir at the time the succession opens, is entitled to take advantage of the decree. The reversioner actually suing has no personal interest apart from the interest common with the entire reversionary body. By declaratory decree, the alienation is not declared to be wholly void and non-existent, but it is declared to be inoperative against the right of actual reversioner, who is entitled to succeed. As such, the reversionary suit is in essence a representative suit on behalf of all those who are entitled to impeach the alienation, though the ultimate benefit therefrom may accrue only to the actual heir, who succeeds when the inheritance falls in. Such a suit is in fact not against the alienor as no relief is sought against him. As such, the reversionary suit is in essence a representative suit on behalf of all those who are entitled to impeach the alienation, though the ultimate benefit therefrom may accrue only to the actual heir, who succeeds when the inheritance falls in. Such a suit is in fact not against the alienor as no relief is sought against him. He may not be even a necessary party and on his death, it may not be necessary to implead his legal heirs if he is arrayed as defendant in the declaratory suit. The relict is against the alienees and they are the necessary party in a declaratory suit. In this view of the matter, on the death of the alienor, the suit does not become defective and can proceed despite the prohibition under proviso to section 34 of the Specific Relief Act. For holding this, I have been guided by the judgment of the Supreme Court in Radha Rant Bhargava v. Hanuman Prasad Bhargava, AIR 1966 Supreme Court 216. 6. While dealing with the point whether the heirs of widow were necessary parties to a suit against the alienee for a declaration that the alienation is void beyond her life time or for possession of alienated property, the Supreme Court in Radha Rani Bhargava v. Hanuman Prasad Bhargava (supra) observed that : "The reversioners could claim no relief against the heirs of the widow and could effectively obtain the relief claimed against the alienee in their absence. Instead of waiting until her death, the next reversioner as representing ail the reversioners of the last full owner could institute a suit against the alienee for a declaration that the alienation was without legal necessity and was void beyond her life-time. The widow was usually added as a party defendant to such a suit. The widow was certainly a proper party, but was she a necessary party to such a suit ? On behalf of the appellant it is suggested that the widow is not a necessary party to the suit, and in this connection, reference is made to Illustration (e) to section 42 of the Specific Relief Act, 1877. The widow was certainly a proper party, but was she a necessary party to such a suit ? On behalf of the appellant it is suggested that the widow is not a necessary party to the suit, and in this connection, reference is made to Illustration (e) to section 42 of the Specific Relief Act, 1877. For the purposes of this appeal, it is not necessary to decide this broad question ; it is sufficient to say that in the case of the death of the widow during the pendency of the declaratory suit, the heirs of the widow are not necessary parties to the suit. Though the widow was joined as a party to the suit, no relief was claimed against her personally. On the death of the widow, the entire estate of the last full owner is represented by the plaintiff suing in a representative capacity on behalf of all the reversioners, and the plaintiff can get effective relief against the alienee in the absence of the heirs of the widow. In view of the fact that on the death of the widow, the reversioners become entitled to possession of the property, in a proper case leave may be obtained to amend the plaint in the declaratory suit by adding all the reversioners as plaintiffs and by including in the plaint a prayer for possession of the property If the plaint were amended and the suit were converted into one for possession of the property, clearly the heirs of the widow would not be necessary parties to the suit. The fact that the plaint is not amended makes no difference. The plaintiff is entitled to continue the declaratory suit without joining the heirs of the widow as parties to the suit." 7. Further observations in the said judgment in respect of the bar of bare declaration in the declaratory suit after the succession opens on the death of alienor are again material for the purpose of present case and these are t~ "As the reversioners were not entitled to the possession of the property at the time of the institution of the suit, the next reversioner could then sue for a bare declaration and the proviso to section 42 of the Specific Relief Act, 1877 did not constitute a bar to the suit. The declaratory suit does not become defective because during the pendency of the suit, the reversioners become entitled to further relief. The next reversioner is entitled to continue the declaratory suit; but in the absence of an amendment of the plaint, a decree for possession of the property cannot be passed in the suit, and if the reversioners are to get any real benefit. they must institute a suit for possession of the property within the period of limitation." 8. Applying the principles laid down by the Supreme Court in the case of Radha Rani v. Hanuman Prasad to the present case, I have no hesitation to hold that after the death of Gittu, original defendant No. 1, the alienor, the suit of appellant-plaintiff could proceed, decree for declaration could be passed and proviso to section 34 (old section 42) of the Specific Relief Act is no bar to if. The argument that the legal heir of one Shri Paras Ram, in whose favour the mutation of inheritance of deceased Shri Gittu was attested as his legal heir was not made party and another person Shri Roshan Lal was impleaded as his legal representative being the nearest reversioner, who has not been arrayed as respondent either before the First Appellate Court or before this Appellate Court is of no effect Had the plaint been amended and the next reversioner, who was entitled to inherit the land in dispute been made plaintiff, decree of possession could be passed in his favour in this suit itself, but in the absence of such an amendment, decree of declaration can be passed in favour of appellant-plaintiff and to get its benefit the nearest reversioner might file suit for possession subject to limitation. The judgment of Division Bench of Punjab High Court in Maghar Singh v. Gujjar Singh, 1964 PLR 865, relied upon by the trial Court, is of no consequence in view of the latter judgment of the Supreme Court which is referred to hereinabove and in which contrary view has been taken. No other point is raised on behalf of parties. 9. No other point is raised on behalf of parties. 9. In view of the above discussion, the present appeal is allowed and the decree and judgment dated 19-5-1979 passed by the District Judge, Kangra at Dharamshala as well as the decree and judgment dated 26-7-1976 of Sub-Judge 1st Class, Dharamshala are set aside and the suit of appellant-plaintiff is decreed for declaration that the sale of land measuring 22 kanals 3 marlas situated in village Garli, Tehsil Dehra, District Kangra as described in part-A of the heading of the plaint, by Gittu in favour of the original respondents-defendants S/Shri Man Singh, Hukam Singh, Sant Ram, Bhagat Ram and Hans Raj, is inoperative against the right of revcrsioners after his death on 17-1-1974. There is no order as to costs. Appeal allowed.