Teg Singh & Ors Vs. Charan Singh
& ANR [1977] INSC 95 (23 March 1977)
CHANDRACHUD, Y.V.
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION: 1977 AIR 1699 1977 SCR (3) 365 1977
SCC (2) 732
ACT:
(i) Punjab Customs (Power to contest) Act,
1920 S. 7 as amended by s. 3 of the Punjab Customs (Power to contest) Amendment
Act (Act 12) 1973--Construction and effect of--(ii) Punjab Limitation (Custom)
Act, 1 of 1920, S. 8 scope of.
HEADNOTE:
S. 7 of the Punjab Customs (Power to Contest)
Act, 1920 provided that no person shall contest any alienation of non-ancestral
immovable property on the ground that such alienation is contrary to custom. S.
3 of the Amendment Act 12 of 1973 amended s. 7 with the .result that no
challenge could be made to the alienation of any immovable property, whether
ancestral or non-ancestral, on the ground that it is contrary to custom.
A gift-deed was executed by one Mula, in
favour of appellant No. 13 Bhagwati Deyi, on December 3, 1964. Appellants 1 to
12 claiming to be potential reversioners obtained a decree on May 31, 1966 in a
suit flied against the donor and the donee for a declaration that under the
Punjab Customs (Power to Contest) Act Z of 1920 the gift-deed was not binding
on them and that decree was confirmed in appeal on October 16, 1967. On July
10, 1966, Mula adopted the respondent. On March 11, 1970 appellant No. 13
executed in favour of appellants 1 to 12,, a lease in respect of the property
which was the subject matter of the gift. Mula died on August 23, 1971. On
December 13, 1971, respondent filed a suit for possession of certain properties
including the property which Mula had gifted to appellant No. 13. The suit was
decreed on January 20, 1971 and that decree was confirmed in appeal by the
District Court and the High Court.
In appeal by special leave., the appellants
contended (i) In decreeing the suit the Courts below had over-looked the
relevant provisions of the Punjab Customs (Power to Contest) Amendment Act,
1973 by virtue of which the legality of the gift made by Mula to appellant No.
13 could not be contested and (ii) since the respondent was not entitled to
impeach the gift in favour of Bhagwati Devi, having been adopted after the date
of the gift, the decree obtained by appellants 1 to 12 cannot enure for his
benefit, under s. 8 of the Punjab Limitation (Custom) Act, of 1920.
Dismissing the appeal, the Court-
HELD: (1 ) That a declaratory decree obtained
under the Punjab Customs (Power to Contest) Act by a reversioner to the effect
that an alienation would not bind them after the.
alienor's death, had the effect of restoring
the property alienated to the estate of the alienor and therefore, all persons
who are heirs to the deceased were entitled to obtain possession of the
alienated property. [367 E-F] (ii) The decree obtained by appellants 1 to 12 on
May 31, 1966 would enure for the benefit of all persons who are entitled to a
share in the property of the. deceased as it existed at the moment of his
death. Since Mula's property stood freed from the encumbrance of the, gift at
the moment of his death, respondent as the adopted son would be entiled to the
possession of the gifted property. [367 H, 368-A] Giani Ram v. Ramji Lal (1969)
3 SCR 944, relied on to;
Chand Singh v. bid Kaur (1974) 1 PLR 226
approved.
(iii) It is true that, if it became necessary
after the amending Act of 1973 to contest the gift executed by Mula in favour
of Bhagwati Devi, s. 7 of the Act of 1920 would operate as a bar to such a
contest. But in the instant case, the basis on which the respondent has asked
for the relief is that upon the death of Mula in 1971, the gift ceased to be
operative by reason of the decree passed in suit No. 143/1965. He has not and
indeed he need not have contested the validity of the gift-deed since the
question was decided finally in the aforesaid suit. [367 B-D] 366
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 686 of 1976.
(Appeal by Special leave from the Judgment
and Order dated 13-2-1976 of the Punjab and Haryana High Court in R.S.A. No.
249 of 1976).
P.P. Juneja, for the appellants.
S.K. Mehta, K.R. Nagaraja and P.N. Puri, for
respondent No. 1 The Judgment of the Court was delivered by CHANDRACHUD, J. (1)
One Mula executed a registered gift deed in favour of appellant No. 13,
Bhagwati Devi, on December 3, 1964. On April 29, 1965, appellants 1 to'12
claiming to be potential reversioners filed Suit No. 143 of 1965 against the
donor and the donee for a declaration that under the Punjab Custom (Power to
Contest) Act, 1920, the gift-deed was not binding on them. The suit was decreed
by the trial court on May 31, 1966 and that decree was confirmed in appeal on
October 16, 1967.
(2) In between, on July 10, 1966 Mula adopted
the respondent. On March 11, 1970, appellant No. 13 executed in favour of
appellants 1 to 12 a lease in respect of the property which was the subject
matter of them. gift. Mula died on August 28, 1971.
(3) On December 13, 1971 respondent filed the
present suit against the appellants for possession of certain properties including
the property which Mula had gifted to appellant No. 13. The suit was decreed by
the trial court on January 29, 1971 and the decree was confirmed in appeal by
the District Court and the High Court.
(4) On June 3, 1976 appellants filed a
special leave petition in this Court challenging the High Court judgment.
They raised, inter alia, a new contention
(ground No. B) that in decreeing the suit, the courts below had overlooked the
relevant provisions of the Punjab Customs (Power to Contest). Amendment Act of
1973, by virtue of which the legality of the gift made by Mula in favour of
Bhagwati Devi could not be contested. On June 11, 1976 this Court granted
special leave to the appellants limited to the aforesaid Ground (B) of the
special leave petition.
(5) We have heard an interesting argument
from Mr.
Juneja, who appears on behalf of the
appellants, as regards the true construction and effect of the Punjab Customs
(Power to Contest) Act, 1920, as amended in 1973, but we are of the opinion
that the argument lacks basis and cannot, therefore, be accepted. The
contention, sought to be raised for the first time by the learned counsel, is
founded on the assumption that by reason of the Amendment Act of 1973, the
gift-deed executed by Mula cannot be challenged by the respondent. The
assumption on which the argument is founded is fallacious, because the
respondent does not seek by his plaint, as indeed he need not have sought, to
challenge the gift-deed executed by Mula in favour of Bhagwati Devi. That gift
was challenged by appellants 1 367 to 12 in Suit No. 143 of 1965, and they
succeeded in obtaining a declaration in that suit that the gift was not binding
on the reversioners. That decree became final, with the result that as on
August 28, 1971, when Mula-died, the property which he had sought to gift away
to Bhagwati Devi, was free from the encumbrance of the purported gift. By the
present suit, the respondent merely asks for possession of the property in
respect of which Mula had executed the deed of gift. The basis on which he has
asked for that relief is that upon the death of Mula in 1971, the gift ceased
to be operative by reason of the decree passed in Suit No. 143 of 1965. It
seems to us plain that he has not and he need not have contested the validity
of the gift-deed since that question was decided finally in the aforesaid suit.
(6) Section 7 of the Punjab Custom. (Power to
Contest) Act, 1920 provided initially that no person shall contest any
alienation of non-ancestral immovable property on the ground that such
alienation is contrary to custom.
This section was amended by s. 3 of the
Punjab Custom (Power to Contest) Amendment Act, 12 of 1973, as a result of
which no challenge could be made to the alienation of any immovable property,
whether ancestral or non-ancestral, on the ground that it is contrary to
custom. It is, therefore, true that if it became necessary after the Amending
Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, s.
7 of the Act of 1920 would operate as a bar to such a contest. However, as we
have stated earlier, it was not necessary for the respondent, in view of the
decree passed in suit No. 143 of 1965, to contest the validity of the gift.
(7) The decision of this Court in Giani Ram
v. Ramji Lal(1) may, with advantage be referred to on this point.
Under the customary law of the Punjab, the
wife and daughters of a holder of ancestral property could not sue to obtain a
declaration that the allegation of ancestral property will not bind the reversioners
after the death of the alienor. But the reversioner who was entitled to challenge
that alienation could obtain a declaratory decree that the alienation will not
bind the reversioners after the alienor's death. It was held by this Court that
such a declaratory decree had the effect of restoring the property alienated to
the estate of the alienor and therefore all persons, including the wife and the
daughters of the deceased, were entitled to the benefit of that restoration.
Since the property alienated had reverted to
the estate of the alienor at the point of his death, the widow and daughters,
who also became heirs along with the sons under the Hindu Succession Act, 1956
were held entitled to obtain possession of the ancestral property. Mr. Juneja
attempted to get over the effect of this decision by invoking the provisions of
s. 8 of the Punjab Limitation (Custom) Act, 1 of 1920, which provides that when
a person obtains a decree declaring that an alienation of ancestral immovable
property is not binding on him, according to. custom, the decree shall enure
for the benefit of all persons entitled to impeach the alienation. Counsel
argues that since the respondent was not entitled to impeach the gift in favour
of Bhagwati Devi, having been adopted after the date of the gift, the decree
obtained by appellants 1 to 12 cannot ensure for his benefit. The short answer
(1) [1969] (3) S.C.R. 944.
9---436 SCI/77 368 to this contention is that
the decree would ensure for the benefit of all persons who are enitled to a
share in the property of the deceased as it existed at the moment of his death.
Since Mula's property stood freed from the encumbrance of the gift at the
moment of his death, respondent as the adopted son would be entitled to the
possession of the gifted property.
(8) Another facet of the same question can be
seen in Chand Singh v. Ind Kaur.(1) A learned Single Judge of the Punjab and
Haryana High Court held therein that though a suit to contest, under the
customary law, an alienation of immovable property may not lie after the coming
into force of the Amending Act of 1973, a declaratory decree already obtained
by a reversioner would continue to be operative as the Amending Act does not
render such a decree a nullity.
(9) There is thus no substance in the
contention raised by the appellants and their appeal must fail. Appellants 1 to
12 shall pay the respondent's 'costs of the appeal.
S.R. Appeal dismissed.
(1) (1974) 1 P.L.R. 226.
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