2. Subject to the provisions of section 6.
(a) Limitation on suits for possession where no declaratory decree has been obtained. - No suit for the possession of ancestral immovable property on the ground that an alienation of such property or the appointment of an heir is not binding on the plaintiff according to custom shall lie if a suit for a declaration that the alienation or appointment of an heir is not so binding would be time-barred, unless a suit for such a declaration has been instituted within the period prescribed by the schedule.
(b) No suit for the possession of ancestral immovable property by a plaintiff on the ground that he is as heir appointed in accordance with custom entitled thereto shall lie if a suit for a declaration that his alleged appointment as heir was validly made according to custom would be time-barred, unless a suit for such a declaration has been instituted within the period prescribed by the schedule.
NOTES.
(i) Section 7 applies to suits for possession which are not time-barred but which are instituted at a time, when a suit for declaration has already been barred by time (4).
A suit which is based purely on the right of inheritance, and in which the alienation is set up and relied on by the defendant, cannot be considered to be a suit on the ground that the alienation is not binding on the plaintiff so as to bring it within the provisions of Section 7 (5).
(1) A.I.R. 1931 Lah. 702.
(2) A.I.R. 1927 Lah. 348; 8 Lah. 711.
(3) A.I.R. 1926 Lah. 188.
(4) A.I.R. 1935 Lah. 313.
(5) Ibid.
It is a discretionary matter to institute a declaratory suit and the failure to do so cannot prevent the heirs from claiming when succession opens out, for Section 7 does not create any statutory provision so as to confer any prescriptive title 91).
Though a will registered except the executant or his agent no one else is competent to take inspection or copies and it will be scarcely justifiable to take registration as sufficient notice for the purposes of limitation (2).
(ii) A widow was in possession of her husband’s property after her husband’s death. Application for mutation in his favour filed by a person who alleged to be the appointed heir of the deceased was dismissed; but he did not file any suit for possession of the properties as the alleged appointed heir. Subsequently the widow remarried and there was a forfeiture of her life-estate whereupon a collateral got mutation effected in his favour. But on objection of the appointed heir, mutation was effected in his favour and he got possession of the property. Thereupon the collateral filed a suit for declaring the mutation order ineffectual, but beyond six years after the appointed heir had set up right as alleged appointed heir: held, that the suit could not be regarded as one to set aside the alleged appointment of heir. As the alleged appointed heir failed to sue for possession within six years when his right as alleged adopted son was interfered with, his right became extinct and that thereafter he was merely a trespasser and as such collateral’s suit was not barred (3). Held also, that Section 28 of the Limitation Act (1908) does not in terms apply to cases under special and local laws; but the principle underlying it is of general application and can be applied to cases governed by local laws.
(iii) Reversioners cannot take possession of the land on the death of the widow without paying off the mortgage charge unless they succeed in getting a declaration that the mortgage is null and void and is binding on the reversioners (4).
(iv) A childless proprietor made an adoption and subsequently effected a gift in favour of the adopted boy. The collaterals filed a suit for a declaration that the adoption and gift were invalid. The trial court decreed the suit and the lower appellate court upheld it. In second appeal the High Court confirmed the invalidity of the gift and declined to go into the question of adoption as there was not the requisite certificate under Section 41 (3), Punjab Courts Act. On the death of the proprietor, the reversioners sued for possession of the properties. It was contended that they had to file a suit for declaration under Section 7, Limitation Act, and then only they could sue for possession. Held, that the decision of the lower appellate court regarding adoption had become final that the reversioners had alrady the declaration both as regards adoption and gift and that their suit was governed by Art. 2 (b) and not by Section 7 (5).
(1) A.I.R. 1935 Lah. 313.
(2) Ibid.
(3) A.I.R. 1935 Lah. 287.
(4) A.I.R. 1934 Lah. 229.
(5) A.I.R. 1933 Lah. 824.
(v) The limitation allowed by the Punjab Limitation (Custom) Act I of 1920, for the possession of ancestral immovable property, which has been alienated, and the alienation of which is challenged as not binding on the plaintiff according to custom, is three years from the date on which the right to sue accrues (1).
(vi) Where a declaratory decree has been obtained as to the invalidity of certain alienation and an adoption or appointment of an heir subsequently takes place and is set up as defence to the suit for possession based on the declaratory decree, the suit does not become incompetent by reason of the failure of the plaintiff to have the adoption or appointment of heir set aside (2).
(vii) In A.I.R. 1942 Lah. 114 (F.B.); 44 P. L. R. 178; 200 I.C. 131, a person governed by custom made a disposition of ancestral immovable property by a registered will of 1925, but his reversioner did not have knowledge of the execution or contents of the will till after the death of the testator in 1935. The question refereed to the Full Bench was whether his suit for possession instituted in 1937 was barred under S. 7 of Act I of 1920, because he had failed to sue for declaration within six years of the registration of the will under Art. I of the Act. It was held that the suit was not barred under S. 7 of the Act and that the word “deed” in Art. I (finally) of the Act should not be construed as equivalent to the word “document” but should be construed to have its ordinary meaning which would exclude a will.
3. Benefit of declaratory decree.
When any person obtains a decree declaring that an alienation of ancestral immovable property or the appointment of an heir is not binding on him according to custom, the decree shall ensure for the benefit of all persons entitled to impeach the alienation or the appointment of an heir.
NOTES.
(i) Section 8, Punjab Limitation (Custom) Act, does not lay down any new rule but merely gives a statutory recognition to the long-settle rule of custom that the right to control an alienation is not co-extensive with the right to succeed and that a declaratory decree ensures for the benefit of those persons only, who themselves have the right to control the alienor’s alienations of ancestral property. A declaratory decree for setting aside alienations obtained long before 1920 by the male collateral of a person govened by Customary Law would not ensure for the benefit of his widow who, though entitled to succeed, is herself not entitled to challenge the alienation (3).
(1) A.I.R. 1933 Lah. 845.
(2) A.I.R. 1932 Lah. 17 (2).
(3) A.I.R. 1937 Lah. 636; 39 P.l.R. 577.
(ii) From the words “entitled to impeach the alienation” used in S. 8 it appears that the legislature intended to include those persons only who possessed in praesenti any right to challenge that alienation and to exclude those who either possessed no such title or, having possessed it, had lost it by their own act or by the operation of law. A right once lost cannot be regained and any decree obtained by those whose right subsists cannot entitle those who have lost their right to obtain possession on the basis of that decree (1).
(iii) A daughter derives
Status dealing with Hindu law subjects will be questionable. The same is the case where a statute regulates limitation for suits under custom (A.I.R. 1949 E.P. 109). See also observations of Acchru Ram, J. in this case.
Article 6 - The word “ ancestral property” has not been defined by Act I of 1920, and in the absence of any definition it can be given only its ordinary dictionary meaning. If rights on the basis of which the plaintiff was bringing the suit happened to belong to his father, they would be ancestral qua him and would, therefore, come within the ambit of the first column of Art. 6 of that Act. The article can only apply to plaintiffs and not defendants and it is not, therefore, inapplicable merely because the property in suit was not proved to have been the defendant’s ancestral property (A.I.R. 1946 Lah. 272).
In this case on the death of an occupancy tenant, K, in 1929, the plaintiff claiming to be his adopted son asked for a mutation of these rights to be effected in his favour. This was opposed by J, the widow of a predeceased son of K, and the revenue authorities ordered mutation to be effected in her favour in 1930, disregarding the provisions of S. 59 of the Punjab Tenancy Act. The plaintiff took no steps to have the mistake rectified. The landlord- defendants were not parties to this dispute between in favour of the landlords in September 1939, in spite of the plaintiffs opposition. The plaintiff thereupon brought a suit in May 1940, for the recovery of possession of the occupancy rights, as well as for a declaration that he was entitled to recover this property as an adopted son and that the occupancy rights had not been extinguished under S. 59 of the Punjab Tenancy Act.
Held, that no fresh tenancy could be held to have come into existence in 1930, and that the effect of the decision of the revenue authorities in ordering mutation in favour of J was not that the occupancy rights were extinguished but that the plaintiffs right was, although wrongly, postponed to that of J who must be deemed to have continued the occupancy rights in the land in the suit as an heir of K. Nut when she remarried and transferred them to the defenant- landlords and thus tried to extinguish them altogether, the position became an entirely different one. Had she been in possesion of any other immovable property belonging to K legally, his reversioners would have been entitled to oust her on her re-marriage. And there is no reason why the plaintiff should not be able so to do on the assumption that he was K’s adopted son under the Hindu law and thus his nearest reversioner, being a lineal descendant within the meaning of S. 59 of the Punjab Tenancy Act. On J’s re- marriage, her rights ceased to exist and the plaintiff’s suit to recover them from the land lord defendants is based on a fresh cause of action which accrued to him on a mutation having been effected in their favour in 1939. As the suit was instituted within a year of the transfer to the defenant – landlords, it cannot be held to have been barred by limitation under Art. 6 of the Punjab Limitation (Custom) Act.
Arts. 1 and 2- In a suit of an after- born reversioner, limitation would be judged from the point of view of the rightful claimant whose existence at the material time enables him to raise the suit. The existence of a reversioner with a subsisting right does affect the question of limitation and the limitation for an after-born son suing under the Punjab Customary Law on his own account and not in conjunction with any existing reversioner to challenge an alienation made by his father or a previous male holder, is the same as laid down in Art. 1 of Art. 2, Punjab Limitation (Custom) Act, as the case may be for the reversioner in existence at the time of the alienation (A.I.R. 1943 lah. 281 (F.B.); 45 P.L.R. 345)
Art 2- A subsequent transferee stands of falls with the original alienee. If the original alienation cannot be attacked by the plaintiff, the subsequent transfer will stand. If, however, the original alienation can be attacked the subsequent transfer will be invalidated as soon as it is found that the original aluienation and in consequnce the subsequent transfer is not binding on the plaintiff according to custom. Such a case clearly falls within the express wording of Art, 2 of the Punjab Limitation (Custom) Act. If the subsequent transferee was not a party to a previous suit against the invalidity of the original alienee, the finding in that suit is not binding on the subsequent transfree. It would be incumbent on the plaintiff again to establish the invalidity of the orginal alienation in the suit against the subsequent transfree which would be governed by Art.2 of the Act and the basic cause of action in such suit is the original alienation and not the subsequent transfer (A.I.R. 1944 lah. 214; 213 I.C. 165).
Art 2 and S. 7- where a widow had alienated her husband’s ancestral land, a suit for possesion by the collaterals instituted on the widow’s death is governed not by Act. 141 of the Limitation Act but by Art 2. And S.7 of the Punjab Act I of 1920, although there is no mention of the alienation in the plaint and the suit on the face of it, is not for possession on the ground that the alienation is void under custom (43 P.L.R. 181; I.L.R. (1942) Lah. 41).
Art I- Art 1 of the schedule to the Punjab Limitation (Custom) Act is obviously intended to apply only to suits brought by a reversioner against the original alienor and not to suits against the subsequent transferees. A suit against the subsequent transferees is governed by Art. 120 of the Limitation Act, and time begins to run only from the date of the subsequent transfer (A.I.R. 1941 Lah. 304; 43 P.L.R. 419).
THE PUNJAB CUSTOM (POWER OF CONTEST)
ACT, 1920.
(Punjab
Act II of 1920)
Received
the assent of His Honour the Lieutenant Goverhor on the 6th April
1920, and that of His Excellency the Viceroy and Governor General, on the Ist
May 1920. The Governor General’s assent was first published in the “Punjab
Gazette” of the 28th May 1920.
PUNJAB ACT NO. II OF 1920
An Act to restrict the power of descendants or collaterals to contest an alienation of immovable property or the appointment of an heir on the ground that such alienation or appointment is contrary to custom.
Preamble.
Whereas it is expedient to enact certain restrictions on the power of descendants or collaterals to contest an alienation of immovable property or the appointment of an heir on the ground that such alienation or appointment is contrary to custom;
And whereas the previous sanction of the Governor-General has been accorded under Section 79 (2) of the Government of India Act, 1915, to the passing of this Act :
It is hereby enacted as follows :-
Title and
extent.
1. (1) This Act may be called the Punjab Custom (Power to Contest) Act, 1920.
(2) It extends to the Punjab.
This Act came into force on the 28th May 1920, that is, the day on which His Excellency the Viceroy and Governor-General’s assent to the Act was first published in the “Punjab Gazette” – vide Section 3, Punjab General Clauses Act, 1898, and Punjab Record No. 97 of 1905.
In this Act –
Definitions.
2. “Alienation,” includes any testamentary disposition of property.
“Appointment of an heir” includes any adoption made or purporting to be made according to custom.
Scope of Act.
3. This Act shall apply only in respect of alienations of immovable property or appointments of heirs made by persons who in regard to such alienations or appointments are governed by custom.
It follows from section 3that the Act cannot be applied to cases where the custom of appointment of heirs does not obtain amongst the parties at all, because in such cases the parties cannot be said to be governed by any custom in regard to such appointments. An adoption unknown to the personal law of the adopter which had no legal inception and did not displace or threaten to displace the right of succession of heirs does not require to be avoided (A. I. R. 1947 Lah. 49; 225 I. C. 349).
Savings.
4. 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.
Rights of females.
5. Nothing in this Act shall apply to any alienation or appointment of an heir by a female.
Limitation on the right to
contest alienations and appointments of heirs.
6. Subject to the provisions contained in Section 5 and notwithstanding anything to the contrary contained in Section 5, Punjab Laws Act, 1872, no person shall contest any alienation of ancestral immovable property or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom, unless such person is descended in male lineal descent from the great-great-grandfather of the person making the alienation or appointment.
NOTES
(a) Section 6 clearly means that no person or persons whatsoever can bring a suit for declaration, that an alienation of ancestral property made by the alienor should not affect the reversionary rights, unless he is or they are within five degrees of the alienor. There is therefore no reason to go to the preamble to interpret Section 6 (1).
(1) A. I. R. 1931 Lah. 706.
(ii) The Act has the effect of limiting the right to contest an alienation of ancestral land only to those persons who are descended in the direct male line from the great-great-grandfather of the alienor (1) – Principle of interpretation of statutes explained.
(iii) Section 6 is not a bar to a suit for possession by one heir against a defendant resisting as appointed heir (2).
(iv) It is not necessary that the great-grandfather or the alienor should be in the male line of ascent. It is enough if the person contesting alienation is in the male line of descent from the great-grandfather (3).
(v) Relationship contemplated by the Act must be through males and not females. A reversioner claiming through females cannot question an alienation (4).
(vi) Where one of the two nearest reversioners is a minor and the other has colluded with the alienor, the remoter reversioner has locus standi to maintain a suit for a declaration that the alienation would not affect his reversionary interest. The suit cannot be dismissed as being speculative (A. I. R. 1949 E. P. 210).
(vii) Section 6 of Punjab Act II of 1920 does not bar the Official Receiver from contesting a suit instituted by the insolvent’s son for a declaration that a certain property does not belong to the insolvent but to himself, having been willed to him by his grandfather. The Official Receiver is a representative of the insolvent for all purposes and he is fully entitled to resist the suit of the plaintiff on the ground that the will in his favour is not valid by virtue of S. 59 of the Provincial Insolvency Act (A. I. R. 1939 Lah. 262; 41 P. L. R. 192).
(viii) The right to contest has been taken away from persons other than those mentioned in Section 6 of Act Ii of 1920 only to the extent that they would not be able to contest the alienation of ancestral immovable property or the appointment of an heir on the ground that such an alienation or appointment was contrary to custom. The right to contest an appointment of heir or alienation on other grounds has not been taken away by that section with the result that all other places including that of limitation are still available to a party regardless of the fact whether he falls within the category of persons mentioned in Section 6 of Act II of 1920 or not (A. I. R. 1946 Lah. 272; P. L. R. 43; 222 I. C. 162).
Alienation of non-ancestral
property.
7. Notwithstanding anything to the contrary contained in Section 5, Punjab Laws Act, 1872, no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom.
(1) A. I. R. 1928 Lah. 35.
(2) A. I. R. 1924 Lah. 675=78 I. C. 123; dissented from in A. I. R. 1949 E. P. 210.
(3) A. I. R. 1929 Lah 553=119 I. C. 765.
(4) 31 P. L. R. 125=122 I. C. 226.
NOTES
(I) Section 7 is intended to, and does, debar the descendants, collaterals, or other relations of a proprietor from controlling his alienations of self-acquired or non-ancestral property, and thus deprive them of the right which, according to the custom prevailing in some tribes, they might have possessed before its enactment. It is quite immaterial, whether the contest to the alienation is raised by the descendants, collaterals or relations of the alienor in a suit instituted by them, or by way of defence to a claim brought by the alinee (1) – (Awans of Gujranwala District).
(ii) Section 7 lays down that no person shall contest the appointment of an heir to non-ancestral immovable property on the ground that such an appointment is contrary to custom; but when as a matter of fact there was no appointment of an heir at all, the section is no bar and the plaintiffs can maintain their suit for possession by successfully denying that no adoption whatsoever took place (2).
(iii) According to clauses 2 and 7 of Punjab Act 2 of 1920, no person shall contest any alienation of immovable non-ancestral property on the ground that such alienation is contrary to custom. The term “alienation” includes a testamentary disposition of property (3).
(iv) By S. 7, an alienation of non-ancestral immovable property cannot be contested on the ground that it is contrary to custom (4) – (Kambhos of Dipalpur Tahsil).
(v) Section 7 of the Punjab Act II of 1920 is simply intended to restrict the powers of reversioners to file suits to contest alienations or appointments of heirs which are contemplated by Act I of 1920 and for which that Act provides limitation. Where a suit is outside the scope of Act I of 1920, it must be held to be equally outside the scope of the restrictive provisions of Act II of 1920 (A. I. R. 1947 Lah. 49).
(1) A. I. R. 1935 Lah. 154 (2).
(2) A. I. R. 1934 Lah. 1002.
(3) A. I. R. 1933 Lah. 680.
(4) A. I. R. 1933 Lah. 697 (1).