Appeal No 686 of 1976
Appeal by Special leave from the Judgment and Order dated 13 2 1976 ofthe Punjab and Haryana High Court in RSA No 249 of 1976
PP Juneja for the appellants
SK Mehta KR Nagaraja and PN 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 con firmed in appeal on October 16 1967
2 In between on July 10 1966 Mula adopted the re spondent
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 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 chal lenge 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 obtain ing 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 Con test 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 section 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 section 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 valid ity of the gift
7 The decision of this Court in Giani Ram vs Ramji Lal1 may with advantage be referred to on this point
Under the customary law of the Punjab the wife and daugh ters 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 chal lenge 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 de ceased 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 daugh ters who also became heirs along with the sons under the 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 section 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  9 436 SCI77 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 encum brance 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 vs Ind Kaur1 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
SR Appeal dismissed


Summary:
section 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
section 3 of the Amendment Act 12 of 1973 amended section 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
Appel lants 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 Cus toms 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 re spondent
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 legali ty 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 section 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 en tiled to the possession of the gifted property
367 H 368 A Giani Ram vs Ramji Lal   relied on to Chand Singh vs bid Kaur 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 section 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 1431965
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