Gurdit Singh & Ors Vs. Munsha
Singh & Ors [1976] INSC 307 (29 November 1976)
SINGH, JASWANT SINGH, JASWANT RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION: 1977 AIR 640 1977 SCR (2) 250 1977
SCC (1) 791
ACT:
Limitation Act, 1908--S. 14--Applicability
of--Punjab Limitation (Customs) Act, 1920,4rt. 2 of Schedule--Accrual of the
right to use--Meaning of.
HEADNOTE:
The appellants filed three suits (the
earliest of the three suits was filed on December 18, 1945) for possession of
lands claiming that K, the last owner of the lands died on August 15, 1945.
Those suits were dismissed on August 3, 1951, as premature on the ground that
the fact of the death of K had not been established.
The appellants again instituted three suits
in October 1952, December 1952 and May 1953 for the same relief as in the
previous suits alleging that the right to sue had accrued after August 16,
1952, that is, after a period of seven years, under s. 108 of Evidence Act;
that K died three years before the date. of the filing of the suits; and that
they were within time under art. 2(b) of the. Schedule annexed to the Punjab
Limitation (Customs) Act, 1920 which provides that the period of limitation for
a suit for possession of ancestral immovable property which has been alienated,
is three years, if a declatory decree has been obtained, and that period
commences from the date on which the right to sue accrues.
On appeal, a single Judge of the High Court
decreed the suits holding that K having been treated as alive by the High Court
when it passed the previous decree in 1951, the conclusion of the lower courts
that he had been dead for seven. years before the institution of the suits
could not be sustained and also excluded the time spent on the previous
litigation from 1945 to 1951 under s. 14(1) of the Limitation Act. On Letters
Patent appeal, the Division Bench held: (1) that the single Judge was in error
in excluding the time spent on the previous litigation by applying s. 14(1) of
the Limitation Act; (ii) that the words "or other cause of a like
nature" occurring in s. 14(1) had to be read ejusdem generis with the
preceding words "relating to the defects of jurisdiction" and that it
was not possible to give the benefit of that provision to the plaintiffs.
Dismissing the appeal to this Court (per A.N.
Ray, C.J.. and Jaswant Singh, J)
HELD: (1) Under art. 2(b) of the Schedule to
the Punjab Limitation (Customs) Act, 1920 in order to be able to succeed the
plaintiffs must bring their suits within three years of the accrual of the
right to sue (which according to well settled judicial opinion means the
accrual of the right to seek relief), namely within three years of the death of
K. They had to prove affirmatively that the death of K took place within three
years of the institution of the suits. Granting that K has to be presumed to be
dead, it cannot be overlooked that under s. 108 of the Evidence Act, the
precise time of the death is not a matter of presumption but of evidence and
the onus of proving that the death took place at any particular time within
seven years lies upon the person who claims the right for the establishment of
which the proof of that fact is essential.
The plaintiffs had not only, therefore, to
prove that K had not been heard of for a period of seven years and was to be
taken to be dead, but it also lay heavily on them to prove the particular point
of time within seven years when K's death occurred. This they have failed to
prove. In the absence of such proof, it cannot be held that the present suits
had not been brought within three years of the accrual of the right to sue.
[263 D-G] 251 Nepean v. Doe D. Knight (1837) 2 M & W 894; 7 L J Ex 335,
Jayawant Jivarao Deshpande v. Ramachandra Narayan Joshi (A.1.R. 1916 Born.
300), Lalchand Marwari v. Ramrup. Gir (LIII I.A.24; A.I.R. 1926 P.C. 9), Jiwan
Singh v. Kuar Reoti Singh & Anr. (A.I.R. 1930 All. 427), Kottappalli
Venkateswarla v. Kottapalli Bapayya & Ors. (A.I.R. 1957 A.P. 380), Punjab
and Ors. v. Natha & Ors. (A.I.R. 1931 Lah. 582) and Ram Kali & Ors. v.
Narain Singh (A.I.R. 1934 Oudh 298 F.B.) referred to.
(2) If K had died beyond three years, from
the date of the suits, the suits would be barred by limitation because the
appellants cannot claim the benefit of s. 14 of the Limitation Act 1908. The
three important requirements of the section are: (1) that the plaintiff must
have prosecuted the earlier civil proceeding with due diligence; (2) the former
proceeding must have been prosecuted in good faith in a court which from defect
of jurisdiction or other cause of a like nature was unable to entertain it and
(3) the earlier proceeding and the later proceeding must be based on the same
cause of action. [265 D] (3) The contention that the appeals had been rendered
untenable as a result of the amendment made to s. 7 of the Punjab Customs Power
to Contest) Act 1920 by the Amending Act 12 of 1973 has no force and must be
rejected. Section 4 of the Act provides that the Act shall not affect any right
to contest any alienation or appointment of an heir made before the Act came
into force. This section has been left untouched by the Amending Act of 1973.
In the instant case, the alienation was made before the 1920 Act came into
force and was not affected by that Act. [261 F-H] (4) The words "or other
cause of a like nature" in s.
14(1) take their colour from the preceding
words "defect of jurisdiction" according to the rule of ejusdem
generis.
Therefore, the defect must be of a character
analogous to jurisdiction barring the Court from entertaining the previous suit.
In the instant case, the Court which tried and dismissed the previous suits as
premature did not suffer from inability or incapacity to entertain the suits on
the ground of lack of jurisdiction or any other ground analogous to the defect
of jurisdiction. The exclusion of the period during which the previous suits
were pending, could not, therefore, be allowed to the plaintiffs while
computing the period of limitation. [265 E; I-1; 266 A] Bhai lai Kishan Singh
v. People Bank of Northern India, I.L.R. [1944] Lah 136, Dwarkanath Chakravarti
v. Atul Chandra Chakravarti (I.L.R. 46 Cal. 870) and Palla Pattabhiramayya
& Ors. v. Velga Narayana Rao (A.I.R. 1960 A.P. 625) referred to.
[Obiter: The causes of action in the previous
suits and in the present suits are also different. And hence the appellants
cannot press s. 14 into service.] Beg, .J. (Dissenting) The Division Bench of
the High Court was wrong in ignoring the effect of the finding of the single
Judge that a new cause of action had arisen within three years before the
filing of the plaintiffs' suits. [281 C] The question of time bar or its
removal by resorting to s. 14(1) of Limitation Act postulates that a point of
time from which limitation could run had been ascertained. As that point could
not be the date of the death of K, which was unknown the suits could not be
dismisses on that ground.
[281 D] (1) The single Judge had sufficiently
indicated that the cause of action in the previous litigation was different
from the one in the later inasmuch as the facts proved in the later case
showing that K must be presumed to be dead could not be and were not set up in
the earlier suits. The cause of action had not accrued in 1945. The effect of
the judgment in the former suits was that these suits were premature, which is
not the case in the suits in appeal.
The plaints in the later cases set out the
case founded on new facts not in existence at the time of the earlier litigation
and expressly stated why the plaintiffs rely on the presumption of death of K.
If the previous suits were dismissed on the ground that they were premature,
the cause of action could only, be said to have accrued after their
institution. [268 G; 269 C] 252 The findings of the single Judge showed that
the. plaintiffs were entitled to the benefit of the presumption laid down by s.
108 of the Evidence Act. He found that till August 3, 1951 when the judgment of
the High Court in the previous suits was delivered, the position was that the
death of K had not been established. This meant that on new facts asserted and
proved, K could be presumed dead when the subsequent suits were instituted in
1952 and 1953. This presumption of death having become available to the plaintiffs
within. three years of the suits and not before, no occasion for applying s. 14
of the Limitation Act could arise. The evidence sought to be given in the
previous suits was that K had died on a particular date but the evidence in the
subsequent suit was not that he had died on a particular date but that he had not
been heard of from August 5, 1945 upto the time of filing of the subsequent
suits. [269 H; 270 H] Modi Khalil Khan v. Mahboob Ali Mian, A.I.R. 1949 PC 78
at 86 referred to.
(2) (a) If causes of action differ from suit
to suit, the accrual of the cause of action can also not be tied down to a
particular kind of fact such as the date of actual death of the holder of the
property. Once it is held that the causes of action differ for purposes of
their accrual, their accrual could not be made to depend on facts of one type
only. Facts denoting their accrual must differ from case to case. Proof of date
of actual death is conclusive.
But, where the basis of the right to sue is
presumption of death, the. date; of accrual of the right is the date on which
that presumption matures. [271 C] Indian Electric Works Ltd. v. James Montosh
& ,Anr. [1971] (2) SCR 397 followed.
Mst. Rante Surno Moyee v. Shooshee Mokhee
Burmonia & Ors. 12 Moore's I.A. 244, State of Madras v.V.P. Agencies &
Anr. AIR 1960 SC 1309 at 1310 and Mst. Chand Kour v. Partap Singh, 15 Ind. App.
156, referred to.
(b) The expression "cause of
action" has sometimes been employed to convey the restricted idea of facts
or circumstances which constitute either the infringement or the basis of a
right and no more. In a wider and more comprehensive sense it has been used to
denote the whole bundle of material facts which a plaintiff must prove in order
to succeed. These are all those essential facts without the proof of which the
plaintiff must fail in his suit. [272 G] (c) Applying these tests, in the
instant case, the causes of action in the earlier and later litigations would
be materially different. No cause of action had arisen at all if it is assumed
that K had not died at all. K's death was an essential part of the cause of
action. It had to be proved to enable the plaintiffs to put forward their
claims to succeed. But proof of the date of death was not essential or
indispensable for that purpose. It could only become material in deciding
whether the right accrued had been extinguished by the law of limitation. Both
the narrow and wider sense of the term "cause of action' would include all
those facts and circumstances on the strength of which the plaintiffs urged
that they were entitled to the benefit of the obligatory presumption of law
contained in s. 108 of the Evidence Act. As these were not available to the
plaintiffs before the expiry of seven years from August 5, 1945, it was not
possible to urge that this cause of action had arisen more than three years
before the filing of the suits.
Therefore, the date of its accrual could not
lie a day earlier than seven years after August 5, 1945 when K was last heard
of. [272 G-H; 273 A-B] (d) It was for the defendants to establish that K was
either alive or had died more than three years before the suits were filed. The
presumption under s. 107 of the Evidence Act could not come to the aid of the
defendants when the plaintiffs had established facts necessary to raise the
presumption under s. 108 of the Evidence Act. [273 E] (e) The suits are not
barred by limitation. The plaintiffs discharged their burden as to when the
accrual of their cause of action was within the prescribed period of limitation.
If the "media" upon which the plaintiffs rest their cases 253 are
different in the previous and subsequent litigations, the causes of action are
different. If the alleged date of death of K was the date of accrual of the
previous cause of action, the date of accrual of the second could only be
something other than the date of death of K, it could not possibly be the same.
The other date of accrual could only be subsequent to August 5, 1945 because it
was held in the previous suit that the suit was premature on the ground that
seven years since K was last heard of had not elapsed then.
Since the evidence was that he was last heard
of on August 5, 1945, the only possible date of accrual of the subsequent cause
of action could be seven years after the date. The suits were filed within
three years of that date. [273 H; 274 A-C] (3)(a) The term 'right to sue'
occurring in art. 2 of Schedule to the Punjab Limitation (Customs) Act 1 of
1920 must be equated with cause of action." The "date of death"
cannot be substituted for the date of accrual of the "right to use".
In the Limitation Act the accrual when intended to be tied to the date of some
event is specified as the date of that event. In this case, it is not so. It
cannot be held that the date of accrual in both sets of suits is one and the
same, that is to say, the actual date. of death.
[274 D] (b) Wherever the accrual of a right
or commencement of a period of limitation, within which a suit must be shown by
the plaintiffs to have been brought, could only be established by proving the
date of a person's death, that duty must be discharged by the plaintiffs or the
suit will fail. But to carry the doctrine beyond that and to lay down that the
date of death must invariably be proved, whenever the question of limitation is
raised in such cases must result in stultifying or defeating legal right and
wiping out the effects of a statutory presumption. The accrual of a cause of
action based on untraceability of the owner could not be said to depend at all
on proof of either actual death or the date of actual death of the owner. It
accrues as soon as death can be presumed and not a day earlier. [278 D-F] (c)
It is not in every suit for possession that the commencement of the date of
dispossession must be established by the plaintiffs. It is only in a suit for
possession based on the allegation by the plaintiff of his own dispossession
that the burden is governed by Art, 142 of the Limitation Act. [274 G] (d) In
the instant ease, the plaintiffs were never in possession and, therefore, there
was no question of their dispossession. It was a pure and simple suit for
possession on the basis of title against which the defendants had not even
alleged adverse possession. Therefore, there is no need to bring in the actual
date of death constructively, as the date of the presumed dispossession or
adverse possession has not been asserted anywhere. [275 B] (e) The plaintiffs
have asserted and proved that the period of seven years when K was last heard
of by those who would in the natural course of events have heard of or about
him if he was alive, had elapsed and that their cause of action matured within
three years of their suits. Assuming that the concept of adverse possession of
the defendants was to be introduced, the legal position is that possession of
defendants could not be adverse to K's reversioners even before K could be
presumed to be dead. The defendants themselves had set up. the plea that he
must be still deemed to be alive. The plaintiffs could only be required to
prove K's death but not the date of his death or the date of the plaintiffs'
dispossession. Neither cases dealing with recovery of possession on the
plaintiffs' allegation of their own dispossession nor those where proof of date
of death was a necessary statutory duty for showing that the suit was within
time; are applicable in these cases. [275 E-F] Nepean v. Doe D. Knight (English
Reports 150 Exchequer p. 1021), Jayawant Jivanrao Deshpande v. Ramachandra
Narayan Joshi, AIR 1916 Bom. 300 & 301., Lal Chand Marwari v. Mahant Ramrup
Git & Anr. AIR 1926 PC 9, Jiwan Singh v. Kuar Reoti Singh & Anr. AIR
1930 All. 427, Kottapalli Venkateswarlu v. Kottapalli Bapayya & Ors. AIR
1957 AP 380 Punjab v Natha AIR 1931 Lab. 582 (FB) & Ram Kali & Ors v.
Naraian Singh AIR 1934 Oudh 298 & 299-300, refrered to.
254 (f) It is neither a part of the case of
any plaintiff in these cases nor necessary for the success of his case to prove
that K died on a particular date or that K died before or after somebody else.
The plaintiffs cannot be saddled with the responsibility to prove this date.
[279 ,B] (4) The suits were not barred by limitation because the causes of
action in the previous litigation and the litigation now are different and the
subsequent cause of action has arisen within three years before the filing of the
suits. Assuming that the suits were filed beyond the period of limitation on
the actual basis of their claims the plaintiffs are entitled to succeed because
this is a fit case in which s. 14(1) Limitation Act could come to the aid of
the appellants. They had been asserting repeatedly that the basis of their
claim was that although the actual date of death of K could not be proved, yet,
he has not been heard of for seven years. That basis having emerged within
three years before the filing of the suits, their suits could not be barred by
time. If the causes of action did not arise no question of its exceeding by the
law of limitation, could emerge. [280 G] The previous suits did not fail for
want of jurisdiction. The delay in bringing the present suits was due to the
fact that no court could decree the claim before the cause of action matured.
Therefore, the cause of action of a "like nature" to a defect of
jurisdiction is present in these cases, since the provision has to be liberally
construed. The defect revealed by the evidence in the latter litigation was
that the suits did not lie at all as they were premature. This was a defect
reasonably comparable to a want of jurisdiction. [280 A-C] India Electric Works
Ltd. v. James Mantosh & Anr. [1971] (2) S.C.R. 397, followed.
(5)(a) If no cause of action could accrue at
all unless and until the date of actual death of K was established, there could
be no commencement of a period of limitation.
The only possible point from which limitation
could start framing in these, cases is the date on which seven years expired
from the date on which K was last heard of. This was within three years before
filing of the suits. [280 D] (b) The issue in the earlier litigation was
whether K was actually shown to have died on a particular date. This was quite
different from the issue decided now, which was whether K's whereabouts had
remained unknown for seven years so that he could be presumed to be dead. [280
F] ARGUMENTS For the appellants:
The legal presumption under Section 108 was
not sought to be raised in the prior suits. It was for the first time raised in
the subsequent group of suits instituted in October, 1952 based on the
allegation that Kishan Singh was not heard of since 15th August, 1945.
This submission opens the questions (i) when
is the presumption of death to be raised and (ii) whether for the purpose of
proceedings in which it is raised or any prior proceedings. The presumption is
to be raised in the proceedings where the question has been raised i.e. the
second group of suit. However, there is no presumption as to the time of death
of the person whose death is accepted as a result of presumption.
The two are distinct matters--(i) the legal
presumption of death and (ii) the time of death preceding the period when
presumption is drawn. The death may be at any time during the preceding period
of 7 years----the period that has enabled the court to draw presumption of
death.
The law requires that if one has to establish
the precise period during these 7 years at which such person died he must do so
by evidence.
255 The conclusion of the court of presumption
of death based upon disappearance from 15th August, 1945 cannot be ignored.
Death at any time on or after 15th August,
1945 does not in any manner adversely affect the case of the appellants,
inasmuch as the parties had instituted suits (of course premature) on 18th
December 1945 (other suits some time later decided by a common judgment). If
the parties are held entitled to the benefit of deduction of time from 18th
December 1945 to 3rd August, 1951, the death of Kishan Singh even if it took
place between 15th August, 1945 to any date before 3rd August, 1951 the suit
are not barred by limitation.
On the pleading of the parties it cannot be
assumed that the presumption of death would justify acceptance of date of
death, any time prior to 15th August, 1945.
The period of limitation for the suit for
possession was 3 years The defendants had not pleaded in the prior suit that
the suit was. barred by limitation as instituted.
In other words it was not alleged that he had
died at any time 3 years prior to the institution of the suit (18th December,
1945). Actually death has not been admitted even on 15th August, 1945.
The trial Court and the District Judge held
the suit to be time barred not on the ground that his death had taken place at
a period exceeding 3 years from the date of the institution of the first suit.
They have apparently not ignored the possibility of death having taken place
during the period between 18th December, 1945 to 3rd August., 1951.
They have held the. suit to be time barred
because it was considered that the appellants are not entitled to deduct the
stated period spent in the prior suits.
Even if it is considered that death had taken
place during this period or any time after 15th August, 1945 or during the 3rd
August to 31st October, 1952 the suits are not time barred.
Preliminary objection was raised by the
respondents as to the effect of the Punjab Customs (Power to Contest) Amendment
Act, 1973 (Punjab Act 12 of 1973). It was urged that the Act had come into
force on 23rd January, 1973, it has retrospective operation and bars all suits
to contest alienation also including the suits for possession of the property
following a declaratory decree. It was urged that the appeals are barred as a
consequence of repeal of the provisions of Punjab Act II of 1920.
The contention as to the effect of Act 12 of
1973 is not correct. The previous law on the subject of right to contest alienation
of immovable property and the limitation of suits relating to alienation
of-ancestral immovable property is regulated by two Acts.
(1) Punjab Act II of 1920--Described an Act
to restrict the powers of the descendents or collaterals to contest an alienation
of immovable property; and (2) Punjab Act I of 1920 Described as an Act to
amend and consolidated the law governing the limitation of suits relating to
alienations of ancestral immovable property etc.
The present Act 12 of 1973 repeals s. 6 of
Act II of 1920. It also amends s. 7 of the aforesaid Act. Effect of the repeal
of s. 6 and amendment of s. 7 merely is that the right to. contest vesting in
the collaterals up to 5th degree has been done away with and the suit to
contest alienation of ancestral property has been taken away.
Under the previous existing law an alienation
of non-ancestral property could not be contested.
Act I of 1920 has also not been repealed.
The limitation provided for a suit for
possession i.e. 3 years is still an existing provision of the Act. It is
obvious that the legislature has retained 256 Act I of 1920 unrepealed so that
the benefit of the decrees may be available to all persons under s. 8 of the
Act and the period of limitation may be retained as before.
The effect of the declaratory decree in that
the alienation is not binding against the inheritance. The succession never
remains in abeyance. A person entitled to succeed to the last male holder is
entitled to sue for possession on the basis of right to succession to the
property.
For the respondent:
The principle of res judicata would be
immediately attracted if the plaintiffs allege the "same cause of action"
and seek the exclusion of the time because the earlier suit was tried on merits
by a competent court having jurisdiction and was dismissed holding that
'plaintiff failed to prove that Kishan Singh died on 15th August, 1945. This
finding would be binding between the parties in the subsequent suits as they
have been given after recording the evidence and a full trial by, the competent
court having jurisdiction.
Therefore, the plaintiff is barred by
principles of res judicata from alleging the accrual of right to sue before the
filing of the earlier suits as the same would be res judicata. The plaintiff is
estopped from alleging the accrual of same cause of action, therefore, no
question of exclusion of time inasmuch as the principle of s. 14 of exclusion
of time arises only if the cause of action is the same. Section 14 uses the
words "the proceeding is founded upon the same cause of action". The
language of s. 14 of the Limitation Act by using the words "same cause of
action" makes it very clear that time can be excluded for the same cause
of action only if the earlier suit is dismissed because of defect of
jurisdiction or other cause of a like nature. On the interpretation of s. 14
also the time cannot be excluded for the reason that the earlier suit was dismissed
as premature and the new suit was filed on a new cause of action, namely, Alla
Singh and his line became extinct on the death of Kishan Singh on 15th of
August, 1952 i.e. after the expiry of' seven years from 15th August, 1945.
Since a new cause of action was alleged after the dismissal of previous suit,
s. 14 cannot be attracted.
The words "is unable to entertain
it" mean that it is not able to admit the matter for consideration on
merits i.e.. the. inability is of a formal nature but it does not mean
inability to grant relief.
From the decisions one principle is deducible
that s. 14 of the Limitation Act has to be construed harmoniously with s. 11
C.P.C. Section 11 C.P.C. bars the filing of a fresh suit on the same cause of
action whereas s. 14 of Limitation Act allows time to be. excluded in the
previous litigations was "founded on the same cause of action''.
Section 12 says that if plaintiff is barred
under s. 11 C.P.C. to file suit for any cause of action then plaintiff cannot
file suit for a such cause of action in any court to which C.P.C. applies.
If both. s. 14 of Limitation Act and
principles of res judicata are to operate then, it should be held that to apply
s. 14 the earlier suit had been dismissed on a technical ground of
jurisdiction, or other cause of a similar nature, court is unable to entertain
it without going into the merits of the case. In the present case earlier suits
were dismissed because the plaintiff failed to prove the death of Kishan Singh
and the extinction of line of Alia. The words used by the High Court at page
302 line 37 are:
"The suit had been rightly dismissed as
premature" do not mean that Kishan Singh was alive but it means that
plaintiffs have not proved the accrual on cause of action namely the extinction
of line of Alia. In these circumstances it is submitted that the suits were not
dismissed on the ground of defect of jurisdiction or other cause of similar
nature. for which the court was unable to entertain it. Section 14 of the
Limitation Act does not apply. Plaintiffs have failed to prove the date of
death of Kishan Singh and the extinction of line of Alla within 3 years of the
filing of the suit. Suits are therefore time barred.
257 Sections 107 and 108 of the Evidence Act
do not help the appellants. Rule of evidence in s. 107 is that it is for the
plaintiff to prove the death of a person if he was alive within 30 years and s.
108 says that burden of proving that a man was ,dive is on the person who
alleges he is alive if it is proved that he has not been heard of for seven
years by those who would naturally have heard of him if he had even alive. In
this case the plaintiffs-appellants have alleged that Kishan Singh was last
heard of on 15th August, 1915 and singe then he is not heard of. The onus is,
therefore, on the plaintiff-appellant under s. 107 of Evidence Act 10 prove as
to when Kishan Singh died. It is; Submitted that Kishan Singh may have died on
any date either before 15th August, 1945 or immediately thereafter. There is no
presumption that he died on the expiry of 7 years from the date he was last
heard. The date of death is thus required to prove by the plaintiff like any
other fact.
The suits are, therefore, barred by time and
should be dismissed plaintiffs' failure to prove death of Kishan Singh within
three years of the filing of suits.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1944-1946/ 67.
(From the Judgments and Decrees dated the
20th July, 1964 of the Punjab High Court in L.P.As. Nos. 23 to 25 of 1960).
M.L. Sethi and Harder Singh, for the
appellants.
S.K. Mehta and S. Ranga Raju, for Respondents
No.s. 1--5.
The Judgment of A.N. Ray, C.J. and Jaswant
Singh J. was delivered by Jaswant Singh, J.M.H. Beg, J. gave a dissenting
opinion.
JASWANT SINGH, J. These three Appeals Nos.
1944, 1945 and 1946 of 1967 by certificate which are directed against the
common judgment and decree dated July 29, 1964 of a Division Bench of the High
Court of Punjab and Haryana at Chandigarh involving a question of limitation
shall be disposed of by this judgment.
The facts leading to these appeals are:
As appears from the pedigree table referred
to in the judgment under appeal, Chuhar Singh, a descendant of Amrika, son of
Har Lal, sold land admeasuring 167 kanals and 10 marlas situate in village
Dhugga, Tahsil Hoshiarpur, to Bhagwan Singh, the grandfather of defendants Nos.
1 to 6, for Rs.23/8/vide a registered sale deed dated June 20, 1885. After the
aforesaid alienation, one Hamira, a collateral of Chuhar Singh, filed a suit
for possession by preemption of 52 kanals, 13 marlas out of the aforesaid area
which was decreed in his favour on April 29, 1889 on payment of 671/-. The
mutation in respect of the remainder of the land admeasuring 114 kanals and 17
marlas was attested in favour of Bhagwan Singh on May 4, 1890. Hamira did not
retain the property which he secured by pre-emption and sold it back to Bhagwan
Singh on September 20, 1890, with the result that Bhagwan Singh again became
the owner of the entire land which was originally sold tO him by Chuhar Singh
who died in 1896. On July 19, 1898, Jiwan, Bela, Jawahar and Jawala,
descendants of Bharimian, another son of Har Lal, filed a representative suit
for declaration to the effect that the aforesaid sale by Chuhar Singh in favour
of Bhagwan Singh would not affect their reversionary rights as the aforesaid
land was ancestral and the sale thereof was without 18--1458sc//76 258
consideration and legal necessity. A Division Bench of the Punjab Chief Court
finally disposed of the said suit by judgment dated July 29, 1902 declaring
that upon the death of Alla Singh, adopted son of Chuhar Singh, and extinction
of his line, the aforesaid sale of 1885 would not affect the reversionary
interests of Bela and Jawahar. This declaration was made subject to the
condition that before these plaintiffs or their successors-in-interest would take
possession of their share of the laud sold, they would pay to Bhagwan Singh or
his successors-in-interest a sum bearing the same proportion of Rs.1611/i.e.
Rs.2378 minus 767/-) as their share in the land sold bore to the Whole area
sold. On the death of Alia Singh, Kishan Singh, his only sou, succeeded him. On
December 18, 1943, Jawahar Singh and Bela Singh brought a suit for possession
of land admeasuring 113 kanals and 18 marlas situate in village Dhugga alleging
that Kishan Singh having died on August 15, 1945, and the line of Alia Singh
having become extinct, they were entitled to possession of the land in
accordance with the aforesaid decree of the Punjab Chief Court. This suit was
followed by two more suits of identical nature for the remainder of the land by
two other sets of collaterals of Bhagwan Singh, one by Waryam Singh and his
three brothers who claimed half of the entire holding and the other by Khazan
Singh and Jagat Singh, who claimed one fourth share of the holding. The Trial
Court consolidated all these three suits and proceeded to try them together,
Eventually it decreed the first two suits in favour of the plaintiffs pursuant
to the aforesaid decree of the Chief Court of Punjab holding that Kishan Singh
had died on August 15, 1945. It, however, dismissed the suit brought by Khazan
Singh and Jagat Singh on the ground that they being the successors-in-interest
of Hamira, who had brought the aforesaid pre-emption suit, were stopped from
claiming possession of the land. On appeal, the District Judge, Hoshiarpur,
dismissed all the three suits as premature holding that the factum of Kishan
Singh's death not been established. The decision of the District Judge was
affirmed in appeal by a Single Judge of the Punjab High Court by his judgment
and decree dated August 3, 1951. The plaintiff's in the last mentioned suits,
viz. Waryam Singh and his three brothers, Jawahar Singh and Bela Singh, and
Khazan Singh and Jagat Singh again instituted three separate suits (out of
which the present appeals have arisen) on October 28, 1952, December 16, 1952,
and May 12, 1953, respectively for the same relief which was sought by them in
the previous suits. In these suits, the plaintiffs averted as follows with
regard to the cause of action :-"5. After Alia, adopted son of Chuhar
Singh, deceased, his son Kishan Singh became his heir and representative. Now
the whereabouts of Kishan Singh aforesaid, have not been traceable for more
than seven years.
Since the 15th Aug., 1945, no information or
intimation that he is alive has been received by any of his relative or any
other concerned person. Hence. he is considered as dead and his suit is being
filed. The line of Alia has become extinct. Under these circumstances, the
plaintiffs being collaterals of Chuhar Singh, deceased vide the pedigree-table
given 259 above, are entitled to get possession of the laud of half share, the
sale of which has been cancelled vide the decree granted by the Chief Court,
subject to payment of Rs.805/8/of their proportionate share.
Hence, we have filed this suit. The parties
are governed by the Zamindara custom in the matters of succession.
6. Prior to it, the plaintiffs had filed a
suit for possession of this property (land) on the 18th December, 1945, in the
Civil Court at Hoshiarpur, alleging that Kishan Singh, son of Alia who was the
last man of the line of Alia, has died on 15th August, 1945 .....
7. The suit of the plaintiffs, detailed in
para No. 6 above was based upon the factum of the death of Kishan Singh. The
plaintiffs had no personal knowledge about this fact, rather it was based on
mere hearsay, but this event of the 15th of August, 1945, came out to be false
and such a decision was passed in the previous suit between the parties and the
parties are bound by the same. But the whereabouts of Kishan Singh, aforesaid,
have not been traceable since the 15th August, 1945, according to the above
facts mentioned in para No. 5. After the 15th of August, 1952, (1945 ?) the
event of his death is to be determined according to law (under section 108) and
facts (under section 114) Evidence Act. Accordingly, Kishan Singh is to be
considered as dead after the 15th of August 1952(?) and he is not alive. Two
months prior to the 15th of August, 1945, he had been residing sometime at
Mauza Dhugga, District Hoshiarpur and sometime at Mauza Sonion, District
Jullundur, permanently. Thereafter, he went outside towards Ahmedabad for
searching some job and earning his livelihood. The last information about his
presence in Ahmedabad was received on the 5th of August, 1945 and since then
his whereabouts have not been available.
".. 10. The right to sue has accrued
against defendants Nos. 1 to 6 within the jurisdiction of his district after
the 16th of August, 1952, in the beginning of the months of October, 1952 viz.,
after a period of seven years since the whereabouts of Kishan Singh have not
been traceable and since he is considered to be dead according to law and so
the Civil Court of this District is competent to try this suit ...... At any
rate, Kishan Singh died within a period of three years from the date of filing
the suit and so this suit is within time. At any rate, the entire aforesaid
period mentioned in para No. 6 from 18-12-45 to 3-8-51 is liable to be deducted
according to law and facts." These suits which were resisted by the
contesting defendants on a number of grounds, were eventually dismissed by the
Trial Court as time barred with the finding that though Kishan Singh had not
been heard for 'seven years before the institution of the suits, the actual
date 260 of this death had not been proved. The trial Court, however, held that
the decree of the Punjab Chief Court enured for the benefit of the entire body
of reversioners and not exclusively for the benefit of Jawahar Singh and Bela
Singh. On appeal, the District Judge upheld the dismissal of the suits adding
that Hamira having successfully brought a suit for pre-emption in respect of a
portion of the sale precluded not only himself but his successors as well from acquiring
the property. In this view of the matter, he opined that Jagat Singh and Khazan
Singh were not entitled to any share at all in the land. On further appeal, a
Single Judge of the Punjab High Court decreed all the three suits by his
judgment dated October 28, 1959, holding that Kishan Singh having been treated
as alive by. the High Court when it passed the previous judgment dated August
3, 1951, the conclusion of the courts below that Kishan Singh had been dead
seven years before the institution of the present suits could not be sustained.
While computing the period of limitation, the Single Judge also excluded the
time spent on the previous litigation from 1945 to 1951 under section 14(1) of
the Limitation Act. It would be advantageous to reproduce the observations made
in this behalf by the. Single Judge:
"Till 3rd of August, 1951, when the
judgment (of the High Court in the previous suits) was delivered, the position
was that the death of Kishan Singh had not been established.
Admittedly, the whereabouts of Kishan Singh
are still not known and, in my opinion, there can be no escape from the
conelusion on these facts that the death of Kishan Singh must be presumed under
section 108 of the Indian Evidence Act as he had not been heard of for a period
of seven years,. The present suits were brought between 28th of October, 1952
and 12th of May, 1953. The correct approach to reach a solution of the present
problem is to give allowance to the plaintiffs, if found necessary, for the
period which they spent in previous litigation that is to say, from the years
1945 to 1951. Under sub-section (1) of section 14 of the Indian Limitation Act,
the time during which the plaintiff has been prosecuting with due diligence
another civil-proceeding, whether in a court of first instance or in a court of
appeal, against the defendant, shall be excluded, where the proceeding is found
upon the same cause of. action and is prosecuted in good faith in a court
which, from defect of jurisdiction or other cause of a like nature, is unable
to entertain it ..... Both the previous litigation and the present are found on
the same cause of action. The previous litigation ended with the judgment of
the Punjab High Court in which it was held that the suit was premature, the plaintiffs
having failed to establish the death of Kishan Singh .....
The plain fact of the matter is that no proof
is forthcoming of Kishan Singh continued existence since 1945. Since the
judgment of the High Court in 1951, where it was held that the death of Kishan
Singh had not been proved 8 years have elapsed. There can be no escape from the
conclusion 261 now that Kishan Singh's death must be presumed. The decision of
the High Court in 1951 should provide a suitable ground for extension of time
under provisions of section 14 of the Indian Limitation Act. The whole basis of
the judgment of the courts below, in my opinion, is erroneous. It is not a
requirement of section 108 of the Indian Evidence Act that the date of death of
the person whose death is to be presumed must be established. All that is said
is that if a person is not heard of for a period of seven years, his death
maybe presumed." The contesting defendants then took the matter in Letters
Patent Appeal to a Division Bench of the High Court which by its Judgment dated
July 29, 1964 set aside the afore Said judgment and decree of the Single Judge
holding that the Single Judge was in error in excluding the time spent on the
previous litigation by the plaintiffs by applying section 14(1) of the Limitation
Act. Relying on the decision of the Full Bench of the Lahore High Court in Bhai
Jai Kishan Singh v. People Bank of Northern India, I.L.R.
1944 Lah. 136, the Division Bench held that
the words. "or other cause of a like nature" occurring in section
14(1) of the Limitation Act had to be read ejusdem generis with the preceding
words "relating to defect of jurisdiction" and that it was not
possible to give the benefit of that provision to the plaintiffs as it could
not be regarded that the court was unable to entertain the previous suits
because of any defect of jurisdiction or other cause of a like nature merely
because of the fact that the court came to the conclusion that the cause of
action had not yet arisen. Aggrieved by this judgement, the plaintiffs have
come up in appeal to this Court as already stated.
Before adverting to the contentions raised
before us on behalf of the appellants, we must first dispose of the preliminary
objection raised by Mr. Mehta, counsel for the contesting respondents,
regarding the maintainability of the appeals. According to Mr. Mehta, the said
appeals have been rendered untenable and have to be dismissed in view of the
amendment introduced in section 7 of the Punjab Custom (Power to Contest) Act,
1920 (Act 2 of 1920) by the Punjab Custom (Power to Contest) Amendment Act,
1973 (Act 12 of 1973) which has been given a retrospective operation by
sub-section (2) of section 1 of the Amending Act. This contention is, in our
opinion, wholly misconceived and cannot be allowed to prevail as it overlooks
the savings clause contained in section 4 of the Punjab Custom (Power to
Contest) Act, 1920 (Act 2 of 1920) which has been left untouched by the Punjab
Custom (Power to Contest) Amendment Act, 1973 (Act 12 of 1973) and runs thus:
"4. Savings--This Act shall not affect
any right to contest 'any alienation or appointment of an heir made before the
date on which this Act comes into force." The alienation in question was
admittedly made by Chuhar Singh in favour of Bhagwan Singh in 1885 i.e. long
before the 28th day of May, 1920--the date on which the Punjab Custom (Power to
Con262 test) Act 1920 (Act 2 of 1920) came into force. It was, therefore, not
at all affected by Act 2 of 1920. In this view of the matter, it is not necessary
to go into the other contention raised by Mr. I Sethi, counsel for the
appellants, to the effect that in any event the preliminary objection raised by
Mr. Mehta is not tenable as the Punjab Custom (Power to Contest) Amendment Act,
1973 (Act 12 of 1973) had not the effect of abrogating the declaratory decree
already obtained by predecessors-in-interest of his clients prior to the coming
into force of the Amending Act.
Having disposed of the preliminary objection,
we now proceed to consider the contentions that have been pressed for our
consideration by Mr. Sethi, counsel for the appellants. He has strenuously
urged that section 14(1) of the Limitation Act was applicable to the facts and
circumstances of the present case and that the Division Bench of the High Court
has grossly erred in not giving the benefit of the provision to the appellants
which would have entitled them to the exclusion of the time from October 10,
1945 to August 3, 1951 spent in prosecuting with due diligence and in good faith
the previous suits in the court of first instance and in the courts of appeal
which expressed their inability to entertain the suits on the ground that they
were premature.
There is no force in these contentions.
It cannot be and has not been disputed that
the present suits are governed by Article 2 of the Schedule annexed to the
Punjab Limitation (Customs) Act, 1920 (Act 1 of 1920) which provides as follows
:--Description of suit Period of Time from which period limitation begins to
run
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 6 years First :--If the alienation nature referred is by a
registered deed, to in Article 1 is the date of registration obtained of such
deed.
Secondly--If the alienation is not by a registered
deed-(a) if an entry regarding the alienation in the Register of Mutation has
been attested by a Revenue Officer under the Punjab Land Revenue Act, 1887, the
date on which the entry is attested.
263 (1) (2) (3) (b) if such entry has not
been attested, the date on which the alienee takes physical possession of the
whole or 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.
(b) if such declaratory 3 years The date on
which the decree is obtained. right to sue accrues or the date on which declaratory
decree is obtained, whichever is later As the plaintiffs had already obtained a
declaratory decree, they had to, in order to be able to succeed, bring their
suits within three yers of the accrual of the right to sue (which according to
the well settled judicial opinion means the accrual of the right to seek
relief) viz. within three years of the death of Kishan Singh when the line of
Alia Singh became extinct. They had to prove affirmatively that the death of
Kishan Singh took place within three years of the institution of the suits. The
contention of counsel for the plaintiffs is, however, that Kishan Singh not
having been heard of for more, than seven years since August 15, 1945, a
presumption of the factum or his death has to be drawn at the expiration of
seven years from that date in terms of section 108 of the Evidence Act. We find
it difficult to accept this contention. Granting that Kishan Singh has to be
presumed to be dead, it cannot be overlooked that under section 108 of the
Evidence Act, the precise time of the death is not a matter of presumption but
of evidence and the onus of proving that the death took place at any particular
time within seven years lies upon the person who claim a right for the
establishment of which the proof of that fact is essential. The plaintiffs had
not only, therefore, to prove that Kishan Singh had not been heard of for a
period of seven years and was to be taken to be dead, but it also lay heavily
on them to prove the particular point of time within seven years when Kishan
Singh's death occurred.
This they have miserably failed to prove. In
the absence of such proof, it cannot be held that the present suits had been
brought within three years of the accrual of the right to sue. We are supported
in this view by a catena of authorities. In Nepean v. Doe D. Knight (1837) 2 M
& W 894:
7L J Ex 335 Lord Denman delivering the
judgment of the Court observed :"The doctrine laid down is, that where a
person goes abroad, and is not heard of for seven years, the law presumes the
fact that such person is dead, but not that he died at the beginning or the end
of any particular period 264 during those seven years; that if it be.
important to anyone to establish the precise
time of such person's death, he must do so by evidence of some sort, to be laid
before the jury for that purpose, beyond the mere lapse of seven years since
such person was last heard of. Such inconveniences may no doubt arise, but they
do not warrant us in laying down a rule, that the party shall be presumed to
have died on the last day of the seven years, which would manifestly be
contrary to the fact in almost all instances." This case was followed by a
Division Bench of the Bombay High Court as far back as 1916 in Jayawant
Jivanrao Deshpande v. Ramchandra Narayan Joshi (A.I.R. 1916 Bom. 300) A similar
view was taken by the Privy Council in Lalchand Marwari v. Ramrup Gir (LIII
I.A. 24: A.I.R. 1926 P.C. 9) where it was observed :"Under the Indian
Evidence. Act, 1872, s. 108, when the-Court has to determine the date of the
death of a person who has not been heard of for a period of more than seven
years, there is no presumption that he died at the end of the first seven
years, or at any particular date." Another case in point is jiwan Singh v.
Kuar Reoti Singh & Anr. (A.I.R. 1930 All.
427), where it was held :"The
presumption raised by section 108 is confined to the factum of death and not
the exact time when death may have occurred.
Where a party affirms that a certain person
died on or before a particular date, that fact has to be established by
positive evidence." Similar view was expressed in Kottapalli Venkateswarlu
v. Kottapali Bupayya & Ors. (A.I.R. 1957 A.P. 380). In Punjab & Ors.v. Natha
& Ors. (A.I.R. 1931 Lab. 582). a Full Bench of the Lahore High Court
observed :"Where a person has not been heard of for seven years when a
suit is instituted, s. 108 comes into operation and raises a presumption that
at the institution of the suit he was dead, but no presumption arises as to the
date of his death, which has to be proved in the same way as any other relevant
fact in the case." Again in Ram Kali & Ors. v. Narain Singh (A.I.R.
1934 Oudh 298 F.B.) it was laid down:
"If a person has not been heard of for
seven years, there is a presumption of law that he is dead: but at what time
within that period he died is not a matter of presumption but of evidence and
the onus of proving that the death took place at any particular time within the
seven years lies upon the person who claims a right to the establishment of
which that fact is essential." 265 In the instant cases, assuming that
Kishan Singh died within seven years of the institution of the suits out of
which the present appeals have arisen, even then the benefit of the section 14
cannot be allowed to the appellants. This provision in so far as it is material
for our purpose runs as follows :"14(1). In computing the period of
limitation prescribed for any suit the time, during which the plaintiff has
been prosecuting with due diligence another civil proceeding, whether in a
court of first instance or in a Court of Appeal, against the defendant shall be
excluded, where the proceeding is founded upon the same cause of action and is
prosecuted in good faith in a Court which, from defect of jurisdiction, or
other cause of a like nature, is unable to entertain it ............ " It
would be noticed that three important conditions have to be satisfied before
the section can be pressed into service. These three conditions are--(1) that
the plaintiff must have prosecuted the earlier civil proceeding with due
diligence; (2) the former proceeding must have been prosecuted in good faith in
a court which from defect of jurisdiction or other cause of a like nature was
unable to entertain it and (3) the earlier proceeding and the later proceeding
must be based on the same cause of action.
Now the words "or other cause of a like
nature" which follow the words "defect of jurisdiction" in the
above quoted provision are very important. Their scope has to be determined
according to the rule of ejusdem generis. According to that rule, they take
their colour from the preceding words "defect of jurisdiction" which
means that the defect must have been of an analogous character barring the
court from entertaining the previous suit. A Full Bench of the Lahore High
Court consisting of Hatties C.J., Abdur Rahman, J and Mahajan J. (as he then
was) expressed a similar view in Bhai Jai Kishan Singh v. People Bank of
Northern India (supra).
In the instant cases, it is not denied by
the' plaintiffs that the Court which tried the previous suits was not precluded
from entertaining them because of any defect of jurisdiction. We have,
therefore, only to see whether the said court was unable to entertain the
former suits on account of any defect of an analogous character. Even a most
liberal approach to the question does not impel us to hold that the court
trying the earlier suits was unable to entertain them on any ground analogous
to the defect of jurisdiction.In Dwarkanath Chakravarti v. Atul Chandra
Chakravarti (I.L.R. 46 Cal. 870) where the court trying the previous suit had
refused to entertain a claim for rent because it was premature, it was held
that in a subsequent suit for the aforesaid rent, the plaintiff could not rely
upon the provisions of section 14(1) of the Limitation Act and say that the
time did not run against him while those proceedings were being prosecuted.
Again in Palla Pattabhiramayya & Ors. v. Velaga Narayana Rao (A.I.R. 1960
A.P. 625) it was held that the fact that the previous suit was dismissed as the
plaintiff had no cause of action was not a ground which was covered by section
14 (1).
266 Thus it could not be held that the court
which tried the previous suits but eventually threw them out as. premature
suffered from inability or incapacity to entertain the suits on the ground of
lack of jurisdiction or any other defect of the like character. Accordingly the
exclusion of the period from December 18, 1945 to August 3, 1951 sought by the
appellants cannot be legitimately allowed to them while computing the period of
limitation.
There is also another factor which prevents
us from granting the benefit of section 14(1) of the Limitation Act to the
appellants. It would be seen that in the previous suits, the plaintiffs had
averted that the cause of action accrued to them on the death of Kishan Singh
which had occurred on August 15, 1945. They have, however, as already indicated
by reference to the averments made in paragraphs 5, 6, 8, 9, and 10 of the
petition of plaint based the present suits on a different cause of action. It
is, however, not necessary to dilate upon this aspect of the matter in view of
our categoric finding that the earlier suits did not suffer from any defect of
jurisdiction or any other defect of the like character which could have precluded
the court from entertaining them.
It is also significant that the protection of
section 14(1) of the Limitation Act was not claimed by the plaintiffs either in
the Trial Court or in the first appellate court.
Assuming, therefore, that Kishan Singh died
within seven years of the institution of the suits. out of which the present
appeals have arisen even then the protection of section 14(1) cannot be allowed
to the appellants and. the suits have to be dismissed as time barred in terms
of section 5 of the Punjab Limitation (Customs) Act, 1920, (Act 1 of 1920)
which is reproduced below for facility of reference :"5. Dismissal of
suits of the description specified in the act if instituted after the period of
limitation herein prescribed has expired. Subject to the provisions contained
in sections 4 to. 25 (inclusive) of the Indian Limitation Act 1903, and
notwithstanding anything to the contrary contained in the first schedule of the
said Act, every suit, of any description specified in the schedule annexed to
this Act, instituted after the period of limitation prescribed therefore in the
schedule shall be dismissed, although limitation has not been set up as a
defence." As a result of the foregoing discussion, the appeals fail and
are hereby dismissed. In view, however, of the circumstance of the case, the
parties are left to pay and bear their own costs in these appeals.
BEG, J.--The question before us is: Were the
three suits, the first instituted on 21st October, 1952, the second on 18th
December, 1952, and the third on 5th May, 1953, tried and heard together, cut
of which the three appeals before us arise, filed within time, and if they were
filed beyond time, whether the plaintiffs in each suit were entitled to the
benefit of Section 14 of the Limitation Act ? 267 Plaintiffs in the three suits
instituted in circumstances explained fully by my learned brother Jaswant
Singh, included all those persons who could sue as reversioners of Kishan Singh
if it was proved that he was dead or presumed to be dead; and, they are all
appellants before us. It is evident from a bare statement of the case set up in
each of the identically similar plaints in the suits now before us that, as three
previous suits filed by these very plaintiffs in 1945 for the same reliefs had
failed against the same defendants for want of proof of date of death of Kishan
Singh, the suits now before us were based on somewhat different allegations
setting up a new cause of action. Otherwise obviously, they would have been
barred by res judicata.
As the learned Single Judge, before whom the
three cases now before us first came up in the High Court, had pointed out, the
earlier suits had failed because they were held to. be pre-mature so. far as
the cause of action now before us is concerned and for want of proof of the
date of death of Kishan Singh so far as the actual cause of action set up there
was concerned. We also indicated, quite clearly, how the causes of action in
the earlier and later sets of litigation were quite different. and why the new
cause of action arose within three years before the filing of the suits.
Considerable confusion seems to have been
caused by the prolixity of pleadings in the case so that, although the
plaintiffs asserted clearly the accrual of a new cause of action, with the aid
of a presumption, they were saddled with the responsibility to discharge
another onus tied to the proof of a particular date which had been abandoned by
them after their dismal failure in the earlier litigation to prove the actual
date of death of Kishan Singh who. had disappeared. Could they fail again for
the same reason although the cause of action they set up is fresh and different
and arose within three years before filing of the suits ? That is the real
question we have to answer.
Perhaps the way in which I look at the
question and have stated it makes. an answer in the negative unavoidable.
Hence, my inability, with great respect, to
concur with another view put forward by my learned brother Jaswant Singh.
I think that the learned Single Judge,
dealing with the question of limitation in the High Court, had correctly
summarised the. whole position and found as follows even without going into the
question of burden of proof of date of death of Kishan Singh:
"All the three sets of plaintiffs have
come up in second appeal to this Court and Mr. M.L. Sethi has addressed a very
persuasive argument on the question of limitation which in reality is now the
only substantial matter in dispute. He has pointedly brought to my notice the
anomalous and baffling situation in which the plaintiffs have been placed.
According to the judgment of the High Court
of 3rd August, 1951, it was found that the death of Kishan Singh had not been
proved. In other words, Kishan Singh was deemed to have been alive at the time
when the High Court decree was passed on 3rd of August, 1951. If that position
is accepted, as indeed it must, the conclusion of the 268 Courts below, that
Kishan Singh had been dead seven years before the institution of the present
suits, cannot be sustained. To this position there is the added complication of
the defendant's own admission that Kishan Singh was alive at the time when the
statement was made by their counsel Milkhi Ram on 27th of April, 1953. I find
myself unable to assent to the proposition on which both the, courts below have
founded their conclusions that suits must be. regarded as barred by time as the
date of death of Kishan Singh had not been proved. The District Judge has
arrived at his conclusion because in the previous suits it was asserted that
Kishan Singh had died on 15th of August, 1945. As the death of Kishan Singh had
not been proved, the suits were dismissed up in the High Court being premature.
It passes my comprehension how it can now be said that Kishan Singh died sometime
before 1945 and the suits having been brought more than three years after his
death are now barred by statute. The previous suits filed by the three different
sets of plaintiffs were founded on the allegation that Kishan Singh had died in
Ahmedabad somewhere in August 1945. A good deal of oral and documentary
evidence was led in support of Kishan Singh's death. The conclusion of the
learned District Judge (Mr. Chhakan Lal) was that the plaintiffs had not
succeeded in establishing the death of Kishan Singh and it could not, there, be
held that the line of Alia had become extinct. In the judgment, in second
appeal, of Harnam Singh J., the only question which, was discussed was whether
the death of Kishan Singh had been proved. It is pertinent to observe' that in
the High Court it was common ground between both the parties that the: case did
not fall under section 108 of the Indian Evidence Act. Like the District Judge,
Harnam Singh J.. discussed the oral and documentary evidence, which had been
adduced by the parties and agreed with the finding of the lower appellate
Court. Till 3rd of August, 1951, when the judgment (of the HC-in the previous
suits) was delivered. the. position was that the death of Kishan Singh had not
been established".
It seems to me that the learned Single Judge
had sufficiently indicared that the cause of action in the previous litigation
was different from the one now before us inasmuch as the facts now proved
indisputably, showing that Kishan Singh must be presumed to be dead, could not
be and were not set up in the. earlier suits. In 1945, this cause of action had
not accrued. As the learned Single Judge held, the effect of the judgment in
the formed suits was that those suits were premature. This could not be said of
the suits now before us in appeal.
It is true that the learned Single Judge had
thought that, alternatively, Section 14 of the Limitation Act could apply
inasmuch as the causes of action in the previous litigation as well as in the
present litigation were identical. In so far as the learned Single Judge
postulated though for a limited purpose, an identity of causes of action of the
previous and the present sets of suits, the assumption was inconsis269 tent
with his own emphatically expressed opinion revealing the difference in the
causes of action. The plaints in the suits before us set out the history of the
whole litigation and clearly set up a case founded on new facts, not in
existence at the time of the earlier litigation, and expressly state why the
plaintiffs now rely on the presumption of death of Kishan Singh.
The identically similar plaints of the
plaintiffs now before us were not based upon any assertion or plea of their own
dispossession. For such suits the period oil limitation was given in Article 2
to the schedule of the Punjab Limitation (Customs) Act of 1920. The provisions
are set out in the judgment of my learned brother Jaswant Singh. The period of
limitation for such suits is three years from "the date on which right to
sue accrues or the date on which declaratory decree is obtained, whichever is
later". If the previous suits were dismissed, as it seems to me that they
were, on the ground inter alia, that they were premature, the cause of action
could only be said to have accrued after their institution.
It seems to me that the learned District
Judge, the fianl Court of facts in the suits now before us, had failed to
determine the question whether Section 108 of the Evidence Act could come to
the aid of the plaintiffs on the erroneous assumption that, in any case, the
plaintiffs' suits would be barred by time as the plaintiffs had not proved when
Kishan Singh had died. The learned District Judge seemed to hold the view that
not only would the plaintiffs' suits be barred by limitation, because the
plaintiffs could not prove the actual date of Kishan Singh's death, but also
that the presumption under section 108 itself will not be available to a party
which could not prove the date of death of the person to be presumed to be
dead. At any rate, the learned District_ Judge was far from clear on the question
whether Section 108 would apply to the case. He recorded his conclusion as
follows:
"So, it is clear from the above
discussion that the plaintiffs appellants have failed to show that their suits
are within time from the date of the death of Kishan Singh. No doubt the
presumption is there that Kishan Singh is not heard of for the last 7 years but
the date of death was very necessary to be proved and this has not been done by
any of the witnesses".
If the date of death of Kishan Singh had to
be proved by the plaintiffs, no question of invoking the aid of a presumption
to prove death could arise. Proof of death would dispense with the need reply
on any mere presumption of death. The result of the District Judge's failure
was that the Single Judge of the Punjab High Court had to record essential
findings of fact on this crucial question. of availability of the presumption
of death. These indicated, beyond the shadow of doubt, that the plaintiffs were
entitled to the benefit of the presumption laid down by Section 108 of the
Evidence Act. This meant that, on new facts asserted and proved, Kishan Singh
could be presumed to be dead when the suits now before us were instituted in
270 1952 and 1953. And, this presumption of the death of Kishan Singh having
become available to the plaintiffs within three years of the suits and not
before, no occasion for applying Section 14 Limitation Act could arise.
The defendants, while pleading the bar of
limitation to the suits had, quite inconsistently, also tried to suggest that
Kishan Singh was either alive or must be assumed to be alive. The plaintiffs
could not be expected, on their plea that, proof of date of death of Kishan
Singh being absent, they were relying only on the presumption of death, to lead
evidence Of any date of death. All that could be reasonably expected from them
was to show that the presumption became available to them within three years
before the filing of their suits. The learned Single Judge of the High Court
had, in my opinion correctly, recorded the following finding which made the
presumption of death of Kishan Singh available to the plaintiffs:
"The plain fact of the matter is that no
proof is forthcoming of Kishan Singh continued existence since 1945. Since the
judgment of the High Court in 1951, where it was held that the death of Kishan
Singh had not been not proved, 8 years have elapsed. There= can be no. escape
from the conclusion now that Kishan Singh's death must be presumed".
The learned Single Judge had also observed:
"The decision of the High Court in 1951
should provide a suitable ground for extension of time under provisions of
Section 14 of the Indian Limitation Act. The whole basis of the judgment of the
Courts below, in my opinion, is erroneous. It is not a requirement of section
108 of the Indian Evidence Act that the date of death of the person whose death
is presumed must be established. All that is said is that if a person is not
heard of for a period of seven years, his death may be presumed. There is no
presumption as to the time of death at any particular time within that
period".
As I have already indicated, there was no
need here to seek the aid of the provisions of Section 14 Limitation Act.
In Mohd. Khalil Khan v. Mohboob Ali Mian,(1)
it was laid down: "A rough test, although not a conclusive one, as to
whether the cause of action in a subsequent suit is the same as that in the
former suit, is to see whether the same evidence will sustain both suits, and
regard should be had to the allegations in the two suits, and not the facts
found by the Court in the former suit". On the facts of the cases before
us, we find the evidence sought to be given in the previous suits was that
Kishan Singh had died on a particular date (i.e. 15th. August, 1945), but, the
evidence in the subsequent suits (now before us for decision) was not that he
had died on a particular date but that he had not been heard of from 5th
August, 1945, up to the time of the filing of new suits. This evidence could
not be given in the previous suit's. Hence, the above test is satisfied.
(1) A.I.R. 1949 P.C. 78, 86.
271 In Smt. Mahadevi v. Kaliji Birajman,(1)
it was held that, if certain additional facts had to be proved for the success
of the subsequent suit, the causes of action would differ. It did not matter if
there is a certain common ground to be covered by the evidence in both sets of
cases.
This test would also be satisfied in cases
before us now because the additional facts show that Kishan Singh had not been
heard of by those who would have otherwise heard of him in the course of seven
years. This evidence could not be led at all in the previous suits as they were
filed very soon after the alleged date of death of Kishan Singh.
If causes of action differ from suit to suit,
the accrual of the cause action can also not be tied down to a particular kind
of fact such as the date of actual death of the holder of the property. Once it
is held that the causes of action differ for purposes of their accrual, their
accrual could not be made to depend on facts of one type only. Facts denoting
their accrual must differ from case to case. Of course, proof of date of actual
death is conclusive. But, where the basis of the right to sue is presumption of
death the date of accrual of the right is the date on which that presumption
matures.
I have set out above the reasoning which
appeals to me and makes the decision of this Court in India Electric Works Ltd.
v. James Mantosh & Anr.,(2) applicable to the cases now before us. In that
case, the appellant before this Court was a defendant tenant in a suit for
recovery of damages with interest and costs. In a previous suit the
predecessor-in-interest of the plaintiff had sued the defendant for ejectment,
but the defendant had continued in occupation of the premises as the suit was
compromised. The accommodation was requisitioned on 2nd February, 1945. After
the accommodation was released by the Govt. on 21st November, 1945, the
plaintiff filed two suits against defendant one for the recovery of damages
upto 1st February, 1944, and another for damage's from 22nd November, 1945,
upto the date of recovery of possession although there was no suit for
possession. When the matter came up before the High Court in appeal, the High
Court disallowed the claim for future mesne profits on the ground that it
"was a pure money suit and not a suit for recovery of possession of
immovable property and for mesne profits under Order 20, Rule 12, Civil
Procedure Code". The plaintiff then filed a third suit on 5th November,
1956, for recovery of Rs.28,650/ as damages with interest thereon for a period
from 22nd November, 1948, to 5th November, 1956. The benefit of Section 14 of
the Limitation Act was claimed for the amount claimed for the period beyond
three years. Two of the learned Judges of this Court, Shah and Grover, JJ.,
held that, although the claim for future mesne profits, not having been
satisfied by the money suit of 1948, in which the decree of the Trial Court was
Set aside on 30th June, 1955, by the High Court, a fresh cause of action arose
from 30th June, 1955, yet, it was unnecessary to decide the case on that
principle because the Court was satisfied that, in any event, Section 14(1) of
the Limitation (1) 1969 All L.J. 896. (2) [1971] (2) S.C.R. 397.
272 Act, which had to be construed liberally,
would cover the period for which the claim was said to be barred by limitation.
Though, the third learned Judge, Hegde, J., seemed to be of the opinion that
Section 24(1) of the Li,mitation Act could not help the plaintiff, yet,
following the decision of the Judicial Committee in Mst. Ranee Surno Moyee v. Shooshee
Mokhee Burmonla & Ors. (1) which had governed later decisions of the Privy
Council and various High Courts a new cause of action, arising within the
period of limitation, would , ensure to the benefit of the plaintiffs.
It seems to me that the lines on which the
case of India Electric Works (supra) was decided enable us to correctly decide
whether a new cause of action had accrued in favour of the plaintiffs in the
suits before us, which were filed within three years of the accrual of this
cause of action, as well as on the question whether, if this be not the correct
position, Section 14(2) of the Limitation Act could be invoked by plaintiffs.
Indeed, the view accepted by the three Judges of this Court, that it is enough
to institute proceedings within the prescribed period from the accrual of the
fresh cause of action, appears to me to provide the common view we cannot
reject. This view would apply if we agree, as my learned brother Jaswant Singh
does, that a cause of action had arisen here.
In State of Madras v.V.P. Agencies &
Anr.,(2) Das, C..J., referred to various expositions of the meanings of the
term "cause of action", including that by Lord Watson, in Mst. Chand
Kour v. Partap Singh,(3) where we find (at p.
1310):
"Now the cause of action, has no relation
whatever to the defence which may be set up by the defendant, nor does it
depend upon the character of the relief prayed for by the plaintiff. If refers
entirely to the grounds set forth in the plaint as the cause of action, or, in
other words, to the media upon which the plaintiff asks the court to arrive at
a conclusion in his favour".
The expression "cause of action"
has sometimes been employed to convey the restricted idea of facts or circumstances
which constitute either the infringement or the basis of a right and no more.
In a wider and more comprehensive sense, it has been used to denote the whole
bundle of material facts which a plaintiff must prove in order to succeed.
These are all those essential facts without the proof of which the plaintiff
must fail in his suit. Now, whether we use the expression in the narrower or in
the wider sense, in the case before us, the death of Kishan Singh was certainly
an essential part of the cause of action. It had to be proved to enable the
plainttiffs to put forward their claims to succeed at all. But, proof of the
date of death was not essential or indispensable for that purpose. It could
only become material in deciding whether the right which had accrued had (1)12
Moore's I.A. 244. (2) A.I.R. 1960 S.C. 1309 at 1310.
(3) 15 Ind. App. 156.
273 been extinguished by the law of
limitation. Both the narrower and the wider sense of the term "cause of
action" would certainly include all those facts and circumstances on the
strength of which the plaintiffs urged that they were entitled to the benefit
of the obligatory presumption of law contained in Section 108 of the Evidence
Act. As these were not available to the plaintiffs before the expiry of seven
years from 5th August, 1945, it does not seem to be possible to urge that this
cause_ of action had arisen more than three years before the filing of the
suits now before us.
Applying the tests stated above, the causes
of action in the earlier and later litigations would, in my opinion, be materially
different. We could only hold that no cause of.
action had arisen at all if we assume that
Kishan Singh had not died at all. And, how could we assume that without
disregarding Section 108 Evidence Act ? If we cannot do that, the cause of
action could only accrue when we could presume that he is dead, And, the date
of its accrual could not possibly lie a day earlier than 7 years after 5th August,1945,
when Kishan Singh was last heard of.
As indicated above, the identity of the
relief asked for in the earlier and later suits does not matter. It also does
not matter that the defendant in both sets of suits have. attempted to suggest
that Kishan Singh is still alive.
It iS they who had asserted that the
plaintiffs' rights were extinguished by the operation of the law of limitation.
Therefore, strictly speaking, it appears to
me that it was for the defendants to establish, if they could, that Kishan
Singh was either alive or had died more than three years before the 'suits were
filed. There is no proof of either of these here, The presumption under Section
107 of the Evidence Act could not. come to the aid of the defendants when the
plaintiffs had established facts necessary to raise the presumption under
Section 108 of the Evidence Act.
There seemed to be irrefutable evidence that,
after a letter of Kishan Singh, received at Ahmedabad on 5th August, 1945,
nothing had been beard or was known about him. Hence, the plaintiffs relied on
the presumption under Section 108 Evidence Act 'because 'they could not prove
the actual date of death which had a bearing only on the bar of limitation set
up by the defendants. As has been pointed out sometimes, the function of a
presumption is to fill a gap in evidence. In these circumstances, it seems to
me that the defendants should have been called upon to show, before relying
upon the bar of limitation, how the death of Kishan Singh took place on a date.
beyond three years of the filing of the suit before the question of applying
Section 14 Limitation Act could arise at all.
The plaintiffs could only be required to show
the accrual of their cause of action within the prescribed period of
limitation. They had, obviously, discharged that burden. If the
"media", to use the term employed by Lord Watson, quoted earlier,
upon which the plaintiffs rest their cases, are different in the previous and
subsequent litigations, the causes of action are different, as held by ray
learned brother Jaswant Singh also. And, if the two causes of action are
different, each with a different date of accrual--that being the
basic-difference between the two sets of suits--we have only to determine the
date 19--1458SCI/76 274 of accrual of the second cause of action. If the
alleged date of death of Kishan Singh was the date of accrual of the previous
cause of action, the date of accrual of the second could only be something
other than this date of death of Kishan Singh. It could not possibly be the
same. And, that other date of accrual could only be subsequent to 5th August,
1945, because, as indicated above, it was held in the previous suit that ,the
suit was premature on the ground that seven years since Kishan Singh was last
heard of on 5th August, 1945, had not elapsed then. Since the evidence was that
he was last heard of at Ahmedabad on 5th August, 1945, the only possible date
of accrual of the subsequent cause of action here could be seven years after
that (i.e. 6th August, 1952). The suits before us were flied within three years
of that date. Therefore, I fail to see how the suits before us could possibly
be held to be barred by Limitation.
We must not forget that Article 2 of Schedule
to the Punjab Limitation (Customs) Act 1 of 1920, lays down that limitation for
a suit for possession, which applies to the case before us, commenced from
"the date on which the right to sue accrues" and not from the date of
death of the holder of property. The term "fight to sue" must, I
think, be equated with "cause of action", unless the context
indicates otherwise. The choice of words used must be presumed to be
deliberate. I do not think that we can substitute "the date of death"
for the date of accrual of "the right to sue'. In the Limitation Act, as
well as in other statutes, the accrual when intended to be tied to the date of
some event, is specified as the date of that event. Here, it is not so.
We cannot, without an obvious inconsistency
with our findings that the causes of action in the previous and subsequent
limitations were different, hold that the date of accrual in both sets of suits
is one and the same, that is to say, the actual date of death. Such a view
could, I think, be contrary also to the plaintiffs' pleading where the
difference in the causes of action must be found. The solution to the
difficulty before us emerges automatically if we answer two questions
correctly: What was the difference between the two causes of action? What is
the effect of that difference upon the date of accrual of the subsequent and
different cause of action? It is well established that it is not in every suit
for possession that the commencement of date dispossession must be established
by the plaintiff. It is only in a suit for possession, based on the allegation
by the plaintiff of his own dispossession, that the burden has been held to be
governed by Article 142 of the repealed Limitation Act (See Ram Gharib v.
Bindhiyachal(1), and the plaintiff is required to prove the date of his
dispossession within limitation.
Its equivalent, the present Article 64 of the
Limitation Act of 1963, places the position beyond the region of every
conceivable doubt.:
"64. For possession of Twelve years The.
date of immovable property dispossession.
based on previous possession and not on
title, when the plaintiff while in possession of the property has been dispossessed.
(1) A.I.R. 1934 All. (ST.) 993.
275 Objects and Reasons Articles 142 and 144
of the existing Act have given rise to a good deal of confusion with respect to
suits for possession by owners of property. Article 64 as proposed replaces
Art.
142, but is restricted to suits based on
possessory title so that an owner of property does not lose his right to the
property unless the defendant in possession is able to prove adverse
posesssion". (See: Chitaley & Rao--the Limitatian Act 1903--Vo1. II).
There is no suggestion whatsoever in the
suits before us that the plaintiffs were ever in possession so that no question
of their dispossession could possibly arise. It was a pure and simple suit for
possession on the basis of title against which the defendants had not even
alleged adverse possession. Hence, there was, it seems to me, no room here for
bringing in the actual date of death, constructively, as the date of some
presumed dispossession or adverse possession which has not been asserted anywhere.
As pointed out earlier, the defendants seem to have cleverly drafted theft
pleadings so that a Division Bench of the High Court, which had erroneously
allowed the defendants' appeals, had been misled into placing a burden upon the
plaintiffs which, according to law, as I see it, could not rest there at all.
The Division Bench applied decisions on Section 14 of the Limitation Act when
this provision could not, as explained below, be invoked at all.
The plain and simple question which arose on
the pleadings was whether seven years had elapsed since Kishan Singh was last
heard of by those who would, in the natural course of events, have heard from
or about him if he was alive, and if so, did this happen within three years
before the filing of the suits ? The plaintiffs have asserted and proved that
this period of seven years had elapsed. According to them, their cause of
action matured within three years of their suits. Even if, by some stretch of
imagination, the concept of adverse possession of the defendants were to be
introduced in this litigation, when neither the plaintiffs nor the defendants
have pleaded it, it is abundantly clear that the legal position is that the
possession of defendants could not conceivably be adverse to Kishan Singh's
reversioners even before Kishan Singh could be presumed to be dead. Indeed, the
defendants had themselves set up the plea that he must be still deemed to be
alive.
On these pleadings, the plaintiff could only
be required to prove Kishan Singh's death but not the date of his death or the
date of the plaintiff's dispossession which can occur only after a previous
possession of the plaintiffs followed by the adverse possession of the
defendants. Neither cases dealing with recovery of possession on the plaintiff's
allegation of his own dispossession nor those where proof of date of death was
a necessary part of either the cause of action or the plaintiff's statutory
duty, for showing that the suit was within time, are really applicable here. We
have a simple case before us where the cause of action seems to me to have
clearly been shown to have arisen within three years before the filing of the
suits. Nevertheless,I will deal here with some authorities which are relied
upon by my learned brother Jaswant Singh.
The first of these is: Nepean v. Deo D.
Knight(1). Inthis case, an action for ejectment was brought, apparently on an
allegation (1) English Reports 150 Exchequer p. 1021.
276 of dispossession of the plaintiff by the
defendants. It was pointed out here that the terms of a statute, applicable in
the case, having done away with the doctrine of "adverse possession",
except in certain cases specially provided for, the question of adverse
possession was unimportant. It was, however, held that there was a statutory duty
cast upon the plaintiff to bring his suit within twenty years of the accrual of
the right of entry. The date of this accrual, therefore, became essential to
prove as a statutory duty.
On the terms of statutory provisions to be
construed and the facts of the particular case, Denman C. J. said: (at p. 1029):
"It is true the law presumes that a
person shewn to be alive at a given time remains alive until the contrary be
shewn, for which reason the onus of shewing the death of Matthew Knight lay in
this case on the lessor of the plaintiff. He has shewn the death by proving the
absence of Matthew Knight, and his not having been heard of for seven years,
whence arises, at the end of those seven years, another presumption of law,
namely, that he is not then alive; but the onus is also cast on the lessor of
the plaintiff of shewing that he has commenced his action within twenty years
after his right of entry accrued, that is, after the actual death of Matthew
Knight".
This was really a case in which it was not
enough to invoke the presumption of death, but, the right to sue itself
depended on commencing the suit within 20 years of the date of accrual of the
right to entry which was held to be the actual date of death of Matthew Knight
who had disappeared In the case before us, I think that the accrual of the
right to sue arises only seven years after Kishan Singh was last heard of. If
Nepean's case (supra) could or did lay down anything applicable to the cases
before us, I am unable, with great respect, to accept it as correct law which
we could follow. In my opinion, the facts as well as the applicable provisions
of law in the case before us are very different from those in Nepean's case
(supra) which could, in any event, not be more than an authority of some persuasive
value in this Court.
In Jaswant livanrao Deshpande v. Ramchandra
Narayan Joshi,(1) in a suit governed by Article 141 Limitation Act, it was held
(at p. 301):
"Art. 141 Lira. Act, is merely an extension
of Art. 140, with special reference to persons succeeding to an estate as
reversioners upon the cessation of the peculiar estate of a Hindu widow.
But the plaintiff's case under each article
rests upon the same principle. The doctrine of non-adverse possession does not
obtain in regard to such suits and the plaintiff suing in ejectment must prove,
whether it be that he sues as a remainderman in the English sense or as a
reversioner in the Hindu sense, that he sues within 12 years of the (1) A.I.R.
1916 Bom. 300 @ 277 estate failing into possession, and that onus is in no way
removed by any presumption which can be drawn according to the terms of S.
108,Evidence Act. The exact point for the
purpose of Art. 140, and also, in our opinion, of Art. 141, has been decided
many years ago in England soon after the passing of the English Law of
Limitation regarding Real Property in Nepean v. Deod. Knight (1973) 2 M & W
894-7 L.J. Ex. 335".
It is evident that here the cause of action
laid down by the statute itself arises from actual date of death. This case,
like the previous one, turns on the special meaning of the statutory provisions
prescribing a person's actual death as the point of time from which the period
of limitation is to commence. In the cases before us the statute explicitly
makes a different provision. We are not concerned at all here with anything
more than an accrual of a right to sue which must be shewn to arise within the
prescribed period.
No question of any accrual of a right of
re-entry or one arising from adverse possession or the date on which such
rights could conceivably arise is before us at all.
In Lal Chand Marwari v. Mahant Ramrup Gir
& Anr. (1) the suit seems to have been based on an allegation by the plaintiff
of his own dispossession by the defendant. Hence, it.
was governed by Article 142 of the former
Limitation Act, the equivalent of which is Article 64 of the Limitation Act of
1963. It seems to me that Article 144 of the old Limitation Act is mentioned by
mistake in the body of the judgment here. In any event, the statement of facts
showed that the plaintiff had pleaded his own dispossession, or, at least, the
plaint could be so construed as to imply that. Hence, a case of this. type is
distinguishable.
In Jiwan Singh v. Kaur Reoti Singh &
Anr,(2) a decree in a previous suit brought against a person alleged to be
insane as well as not heard of for more than seven years had been assailed on
several grounds: that, the defendant was insane; that, the defendant was
unheard of for more than seven years, and, therefore, should have been deemed
to be dead; that, the decree was obtained by fraud. As the High Court upheld
the plea of fraud, it did not consider it necessary to decide on other grounds.
Nevertheless, it pointed out, quite correctly, that the presumption under
Section 108 of the Evidence Act only enables the Court to presume the factum of
death but not the date of death. No question of limitation arose at all in this
case.
In Kottapalli Venkateswarlu v. Kottapalli'
Bapaya & Ors,(3) reliance was placed, Inter alia, on Punjab v.
Natha,(4) which, in my opinion, was wrongly
decided.
Venkateswarlu's case (supra), however. arose
on facts and circumstances in which the proof of date of death was necessary to
determine as the question was whether a legatee had (1) A.I.R. 1926 P.C. 9. (2)
A.I.R. 1930 All. 427.
(3) A.I.R. 1957 AP. 380. (4) A.I.R. 1931 Lah.
582 (F.B.).
278 survived the testator. In such a case,
proof of date of death is necessarily a part of the cause of action.
In Ram Kali & Ors. v. Narain Singh,(1) it
was held that:
(at s. 299-300):
"Before the plaintiff can succeed in
approving himself to be the nearest reversionary heir, he must prove in
sequence that Harpal Singh and after him Pahalwan Singh and after him Sheo
Ghulam Singh and after him Kali Singh predeceased Ram Lal. The exact date of
Ram Lal's death is important from the point of view of the success of the
plaintiff's case, because it was only then that succession opened out, and it
is only by proving the exact date of Ram Lal's death that the plaintiff can
succeed in establishing his claim to be the nearest reversionary heir of Ram
Lal".
This, in my opinion, is the type of case in
which the date of death is an essential part of the plaintiff's cause of action
so that the failure to prove it would involve the failure of the plaintiff's
suit. Incidentally, it may be observed that this also seemed to be a case in
which the plaintiff appears to have come to the Court with a suit for
possession on the allegation of his own dispossession.
Hence, it became necessary for the plaintiff
to prove the date of commencement of the defendant's adverse interest. It seems
to me that wherever the accrual of a right or commencement of a period of
limitation, within which a suit must be shewn by the plaintiff to have been
brought, can only be established by proving the date of a person's death that
duty must be discharged by the plaintiff or the suit will fail. But, to carry
the doctrine beyond that and to lay down that the date of death must invariably
be proved whenever the question of limitation is raised in such cases must
result in stultifying or defeating legal rights and wiping out the effects of a
statutory presumption. An accrual of a cause of action based on untraceability
of the owner cannot be said to depend at all on proof of either actual death or
the date of the actual death of the owner.
It accrues as soon as death can be presumed
and not a day earlier.
I may point out that the rule laid down in re
Phene's Trusts(2), which has been repeatedly followed by the Privy Council and
by our. High Courts, was enunciated in the circumstances of a case in which it
was absolutely essential for the success of the claim before the Court that a
legatee claimant must be shown to have survived a testator. It was a case in
which there was a competition between claimants which could only be resolved by
a decision of the question as to who died first. It is in such circumstances
that the onus of proving the date of death also would properly and squarely lie
upon the plaintiff claimant. The general principles were thus enunciated in
this case(at p. 144):
"First: That the law presumes a person
who has not been heard of for seven years to be dead, but in the absence (1)
A.I.R. 1934 Oudh 298 @ 289,300.
(2) 5 Chancery Appeal cases p. 139 @ 144.
279 of special circumstances draws no
presumption from that fact as to the particular period at which he died.
Secondly: That a person alive at a certain period of time is, according to the
ordinary presumption of law, to be presumed to be alive at the expiration of
any reasonable period afterwards. And, thirdly:
That the onus of proving death at any particular
period within the seven years lies with the party alleging death at such
particular period".
It is neither a part of the case of any
plaintiff before us nor necessary for the success of his case to prove that
Kishan Singh died on a particular date or that. Kishan Singh died before or
after somebody else. I, therefore, fail to see, with great respect, how the
plaintiffs can be saddled with the responsibility to prove this date in the
suits now before us. It was nobody's case that Kishan Singh died long ago and
that the defendants have been in open hostile adverse possession against Kishan
Singh and whoever may be his heirs or feversioners. In the earliest litigation,
the defendants claimed as transferees of the rights of Kishan Singh. The
declaratory decree restricted their rights to the life time of Kishan Singh.
Their rights could not extend beyond the point of time when Kishan Singh must
be presumed to be dead. That is the farthest limit of their rights. They knew
this after the litigation which terminated in 1902. That is why, in the suit's
now before us, they took up the alternative case, though rather obliquely, that
Kishan Singh must be or at least deemed to be alive, so that they may benefit
from the declaration in 1902 that their rights were limited to the life-time of
Kishan Singh.
If, even after litigating for such a long
period, the plaintiffs are still to be denied their rights to Kishan Singh's
property, to which they were declared entitled to succeed, they would be really
deprived of the benefit of the presumption under section 108 of the Evidence
Act on the ground that they could not prove the date of his death when they
have been asserting repeatedly that the basis of their present claim is that
although the actual date of death of Kishan Singh cannot be proved, yet, he has
not been heard of for seven years and that they had to wait seven years more for
this claim to mature. That it could and did mature in 1952 follows logically
from the judgment of the High Court in 1951 which is binding inter partes. The
plaintiffs are, in my opinion, on the actual basis of their claims, entitled to
succeed. That basis having emerged within three years before the filing of the
suits, their suits could not possibly be barred by time. If the right to sue
had not been proved to have accrued at all, due to want of proof of date of
death of Kishan Singh, the suits could perhaps, more logically be held to be
still premature or infructuous. But, I fail to see how, even on such a view, we
could hold them to be barred by time. If the cause of action itself does not
arise no question of the extinguishment by the law of limitation could emerge.
If, for some reason, we could still hold that
the plaintiffs' claims were made beyond the period of Limitation. I think that
this would be a fit case in which Section 14(1) of the Limitation Act could 280
come to the aid of the plaintiffs provided there was identity of issues to be
tried. The previous suits did not fail for want of jurisdiction. Nevertheless,
the provision has to be liberally construed as this Court has to be a period of
time, shown to-have elapsed since the expiry of the present suits was certainly
due to the fact that no Court could decree the claim before the cause of action
matured. This was, certainly beyond the control of the plaintiffs. Therefore, a
cause of "like nature" to a defect of jurisdiction seems to me to be
there. Indeed, it could be urged that it is a stronger ground in equity than a
lack of jurisdiction which can be foreseen with sufficient deligence.. It is
far more difficult to predict the outcome of a suit depending largely on oral
evidence. The defect revealed by the evidence in he earlier litigation was that
the suits did not lie at all as they were "premature". This was, in
my opinion, a defect reasonably comparable to want of jurisdiction.
I, however, find it very difficult to attempt
to apply Section 14 Limitation Act to the cases before us for two reasons.
Firstly, there has to be a period of time, shown to have elapsed since the
expiry of the period of limitation, which could be excluded under section 14.
If the cause of action does not accrue at all there is no point of time from
which any period of limitation could run. Hence, if no cause of action could
accrue at all unless and until the date of actual death of Kishan Singh is
established, there could be no commencement of a period of limitation. If that
be the correct position, where is the question of excluding any time in
computing it ? The only possible point from which limitation could start
running here is the date on which seven years expired from the date on which
Kishan Singh was last heard of. This was within three years before filing of
the suits as pointed out above. Secondly, Section 14 provides that the time to
be excluded spent in proceedings prosecuted in good faith must relate to
"the same matter" as is "in issue" in the subsequent
proceeding. It seems to me that the issue in the earlier litigation was whether
Kishan Singh was actually shown to have died on a particular date. This was
quite different from the issue decided in the cases now before us. This is
whether Kishan Singh's whereabouts had remained unknown for seven years so that
he could be presumed to be dead. I, therefore, rest my judgment solely on the
ground that, the causes of action in the previous litigation and the litigation
now before us being different, and the subsequent cause of action having arisen
within three years before the filing of the suits before us, the suits were not
barred by limitation.
The Division Bench of the Punjab High Court
had proceeded on the obviously erroneous assumption that the learned Single
Judge had decided the appeals only by giving the appellants the benefit of
Section 14, sub. s (1) of the Limitation Act.
It had overlooked completely the very first
ground of decision of the learned Single Judge and also the condition imposed
by the learned Judge on the application of Section 14 by. using the words:
"if found necessary". The learned Judge had held:
281 "Admittedly,. the whereabouts of
Kishan Singh are still not known and, in my opinion, there can be no escape
from the conclusion on these facts that the death of Kishan Singh must be
presumed under Section 108 of the Indian Evidence Act as he had not been heard
of for a period of seven years. The present suits were brought between 21st of
October, 1952 and 5th of May, 1953. The correct approach to reach a solution of
the present problem is to give allowance to the plaintiffs, if found necessary.
for the period which they spent in previous litigation that is to say, from the
years 1945 to 1951".
The Division Bench had thus completely
ignored the effect of the finding of a new cause of action arising within three
years before the filing of the plaintiffs suits. In my opinion, this finding of
the learned Single Judge was enough to dispose of these appeals. And, as I have
pointed out above, question of either a time bar or its removal by resorting to
Section 14(1) Limitation Act postulates that a point of time from which lirai,
ration can run has been ascertained. As that point, on the findings of every
Court, including this Court, could not be the date of Kishan Singh's death,
which is unknown, the suits could not possibly be dismissed on that ground.
They could conceivably be dismissed on the finding that the date of death of
Kishan Singh, being an indispensable part of the cause of action, the plaints
do not disclose a cause of action at all, and, therefore, should have been
rejected. But, the defendants have not taken any such plea directly. Nor was
this argued on heir behalf.
For the reasons given above, I regret to have
to respectfully differ from the view adopted by my learned brother Jaswant
Singh. I am unable to accept an interpretation of the relevant provision
prescribing limitation which would confine the accrual of a cause of action
only to cases of direct proof of death, on a particular date. Such a view
implies that suits based on a presumption of death are devoid a cause of action
which could support a suit by a reversioner. I do not think that the provision
we have to interpret was meant to define or restrict a right of suit or a cause
of action in this fashion at all. The object of a "statute of repose"
is only to extinguish rights of the indolent but not to demolish the causes of
action of those who have not been shewn lacking in vigilance in any way
whatsoever.
Consequently, I would allow these appeals,
set aside the judgment and decrees of the Division Bench of the High Court and
restore those of the learned Single Judge and leave parties to bear their own
costs throughout.
P.B.R. Appeals dismissed.
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