RSA No.2388 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2388 of 1989 Date of Decision: 5.3.2009 Subhan Khan ..Appellant Vs. Issab Khan ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.C.B.Goel, Advocate, for the appellant. Mr.Jaspal Singh, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. This regular second appeal is directed against the judgment and RSA No.2388 of 1989 2 decree dated 20.9.1989 passed by the learned Additional District Judge, Gurgaon vide which suit filed by the plaintiff/appellant for possession stands dismissed. The appellant/plaintiff filed a suit for possession that Rehman son of Majid Khan son of Zeleba died leaving behind his widow Mst.Farukhi who performed kareva marriage. The estate of Nasib Khan was inherited by Rehman and after the death of Rehman the estate of Rehman came in the hands of Mst.Farukhi as life estate. During her life time Mst.Farukhi performed kareva marriage so the estate which she took as widow of Rehman came to Mehmoodi as widow of Nasib Khan son of Zaleba. Mehmoodi also died. It is the case of the plaintiff that he and said Nasib Khan are Meos by caste and governed by agricultural customs in the matter of alienation and succession prevalent in the District Gurgaon of Haryana State. According to the agricultural customs after the death of husband and in the absence of son the estate goes to widow, only as life estate and she can with the consent of her husband's relative alienate by sale, gift or mortgage the immovable property which devolved upon her as widow of husband. It is also the custom that if the widow of pre-deceased son performed kareva marriage in the absence of any other son, the mother of predeceased son gets the property of son's widow as life estate and the mother of predeceased son has no right to effect sale, gift, mortgage in respect of said property except for necessity and consideration and that too with the consent of nearest relation of her husband. RSA No.2388 of 1989 3 Nasib Khan was the owner of agricultural land as detailed in the plaint and after the death of Nasib Khan property was inherited by his son Rehman and after the death of Rehman the estate land came to his widow Mst.Farukhi who performed kareva marriage so the estate land came to Mehmoodi being widow of Nasib Khan as life estate. Mst.Mehmoodi effected sale of estate land vide sale deed dated 29.4.1982 in favour of the defendant for ostensible consideration of Rs.10,000/- with an ulterior motive to deprive the plaintiff to inherit the suit land though Mehmoodi has no legal necessity or right to alienate the suit land. The sale by Mehmoodi was said to be illegal and not binding upon the reversionary right of the plaintiff and was said to be against agricultural custom. The case of the plaintiff/appellant is that after the death of Mehmoodi the plaintiff being the only near relation of said Nasib Khan filed a suit for possession as the defendant refused to admit his claim. On notice the suit was contested by raising several preliminary objections i.e. plaintiff has no locus standi to file the suit; suit is bad for misjoinder of necessary parties and that the suit was not within limitation. It was asserted that the plaintiff is estopped from filing the suit by his own act and conduct. On merit stands was taken that Smt.Mehmoodi was full owner of the land in suit as the land came to her by way of gift deed dated 3.8.1970 executed by Mst.Farukhi. It was denied that the parties were governed by agricultural custom of Gurgaon district in the matter of alienation and succession. It was also the case of the defendant/respondent that RSA No.2388 of 1989 4 Mst.Farukhi filed suit regarding the land in suit against Smt.Mehmoodi in the court of Sub Judge, Gurgaon on 19.11.1975 where she filed the compromise deed vide which she abandoned her all rights if any from the estate land and admitted that Mehmoodi was full owner of land in suit and gift was valid. In the replication pleas raised in the plaint were reiterated and that of written statement were denied. On the pleadings of the parties learned trial court was pleased to frame the following issues:- 1. Whether the parties are governed by custom in matters of alienation and succession. If so what that custom is? OPP 2. Whether the land in dispute is ancestral property of plaintiff qua Rehman as alleged? OPP 3. Whether the plaintiff is the nearest reversioner of the husband of Smt.Mehmoodi vendor? If so to what effect? OPP 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the suit is bad for non-joinder of necessary parties? OPD 6. Whether the plaintiff is barred from filing the present suit by his own act, conducts and acquisence? OPD 7. Whether the suit is not within time? OPD 8. Whether the sale in question is illegal, against custom, RSA No.2388 of 1989 5 void without legal necessity and consideration? OPP (onus objected to) 9. Relief. The parties led evidence in support of their respective pleas. The learned trial court on appreciation of evidence on issue No.1 held that the parties were governed by custom in the matter of alienation and succession of Gurgaon District. On issue No.2 the court held that the land in dispute is ancestral property of the plaintiff/appellant qua Rehman. Issue No.3 was also decided in favour of the plaintiff/appellant and he was held to be the nearest reversionary of the husband of Mehmoodi, the vendor. Issues No.4 to 7 were decided against the defendant being not pressed. Issue No.8 was also decided in favour of the plaintiff and against the defendant/respondent and it was held that the sale in question was illegal, against customs, void and without legal necessity. Consequently the suit was decreed. The defendant/respondent preferred an appeal against the judgment and decree passed by the learned trial court. In the appeal the only point raised was that the suit was barred by limitation and was liable to be dismissed on this sole ground. Learned lower appellate court was pleased to reverse findings on issue No.7 by recording as under:- “10. The facts are not much in dispute particularly the facts relevant for the decision of the present controversy. The suit RSA No.2388 of 1989 6 land was originally owned by Nasib Khan. On his death his son Rehman inherited the land. Said Rehman died issue-less and Mst.Farukhi inherited life estate as per custom of Meos of District Gurgaon, which is applicable to the parties. The fact that Mst.Farukhi executed a gift deed in favour of Smt.Mehmoodi stands established by the deed of gift dated 3.8.1970, which is a registered document and which has been exhibited as Ex.D.2. The learned trial court never held that the gift by Mst.Farukhi in favour of Smt.Mehmoodi was not proved. The findings have not been challenged before me by learned counsel for the respondent. Even otherwise, there is abundant evidence on record to prove the transaction of gift. It was effected vide the registered deed Ex.D.2 and the attesting witness and the scribe thereof were also examined and there is absolutely no infirmity in their evidence. 11. Thus the position that emerges is that although Smt.Farukhi inherited a life estate but she gifted the suit land to Smt.Mehmoodi. The latter did not succeed to the suit land so she by dint of the gift, became absolute owner. Of course a transaction of alienation like gift can be challenged under custom. The law is rather well settled that such transactions are only voidable and not void. Article 1 of the Punjab Limitation (Custom) Act, 1920 lays down a period of six years for challenging such an alienation. The gift in this case took place RSA No.2388 of 1989 7 in the year 1970. To date the gift was never challenged. So much so that the transaction of gift has not been challenged even in the present suit. The plaintiff trained its guns on the transaction of sale by Smt.Mehmoodi in favour of defendants Isab Khan evidenced by sale deed Ex.D.1. It was for a consideration of Rs.10,000/-. 12. Lal Din Vs. Mt.Sardar Bibi and others, AIR 1930 Lahore 129, is an authority of great import for the decision of the present controversy. The facts of the said case were like this:- “B gifted certain land to his daughters who in turn sold it to R. B's reversioner instituted a suit to contest the gift against B and S. The suit was decreed; R was not made a party to the suit. Later on, the reversioner instituted a second suit against B.S. and R for declaration that the sale by S to R was invalid.” It was held as under:- “That the suit was in fact to set aside the gift made by B in favour of S and being brought after the period of limitation had expired was time barred. The reversioner was in fact challenging the gift by B. The decree in former suit was of no avail to the reversioner and R not being made a party to the suit the decree was not binding on R.” 13. What will further clinch the matter is a recently reported RSA No.2388 of 1989 8 decision of our own Hon'ble High Court, Jagir Singh and others Vs. Smt. Ajmero and others, 1988 (1) Punjab Law Reporter 51.Wherein it was held that where the alienation is made by a widow having a limited estate and the parties are governed by custom, then it is the Punjab Limitation (Custom) Act, 1920 which will be applicable, and not the Indian Limitation Act, as such. It is well settled that the alienation made by the widow is not a nullity but a voidable transaction. The transaction could be avoided by the reversioners who were competent to do so. Having failed to challenge the same within the time prescribed, the daughters were not entitled to challenge the same in the suit filed after the death of their mother. 14. For facts of that case one Smt. Pohlan, widow of Gurditta, had made a gift of the suit land in favour of Gurbaksh Singh, the son of her deceased daughter, in January, 1954. At that time she had the widow's estate as she inherited the same from her husband. Later on the donee Gurbaksh Singh sold the land to Wadhawa Singh, defendant and Wadhwa Singh in turn sold it to Jagir Singh defendant. That sale was pre-empted by defendant-appellant Jagir Singh and others. Smt.Pohlan died on 3.2.1961. Her three daughters filed the suit on 24.4.1968 for possession of their share on the death of their mother alleging that Smt.Pohlan was a limited owner and the gift made in favour of Gurbaksh Singh was not binding. It was pleaded that RSA No.2388 of 1989 9 parties were governed by custom, according to which widow had no right to alienate the suit property. The suit was held to be within limitation under Article 141 of the old Limitation act by the learned trial court. No suit for declaration was filed by any of the reversioners within the time prescribed under the Punjab Limitation (Custom) Act, 1920. 15. The aforesaid set of facts is very much similar to the facts obtaining in the present case. The gift in the present case was never challenged within the prescribed period of limitation. Only the subsequent transaction of sale by the donee Smt.Mehmoodi to the defendant has been challenged. The authorities cited above apply on all fours and there cannot remain any manner of doubt that the present suit having not been filed within the prescribed period under the Punjab Limitation (Custom) Act, 1920, is, hopelessly barred by limitation. 16. Learned trial court fell in serious error while making a short work of the controversy relating to the bar of limitation. It decided issues No.4, 5, 6 and 7 in jiffy.” Consequently the appeal was accepted and the suit filed by the plaintiff/appellant was ordered to be dismissed. Mr.C.B.Goel, learned counsel for the appellant raised the following substantial questions of law for consideration in this appeal: 1. Whether the learned lower appellate court erred in law in RSA No.2388 of 1989 10 applying the provisions of Punjab Limitation (Custom) Act, 1920 by ignoring the general law of limitation? 2. Whether the judgment and decree passed by the learned lower appellate court is perverse in law? In support of the first substantial question of law, learned counsel for the appellant placed reliance on the Division Bench judgment of this court in the case of Babu Vs. Parkash and others 1973 Revenue Law Reporter, 659, wherein the Hon'ble Division Bench of this court was pleased to law down as under:- “ Can it be said, on the basis of section 7 of Punjab Limitation (Custom) Act, 1 of 1920, that, if the plaintiff does not take advantage of bringing a suit for possession, because he did not bring any suit for declaration within the time prescribed? Clause (a) of section 7 relates only to ancestral immovable property. But this conception of ancestral property is relevant only in the case of male-holders, because it is only their case that the reversioners can challenge an alienation of property which is ancestral qua them. They cannot challenge an alienation of property which is not ancestral. So far as a widow is concerned, whatever property she inherits from her husband, irrespective of the fact, whether the property in the hands of the husband was ancestral or otherwise qua the plaintiff who is challenging the alienation, the alienation, unless it is for consideration and legal necessity or for religious RSA No.2388 of 1989 11 or charitable purpose, would be bad. The claim which is being made by the plaintiff, is not on the ground that the property ancestral qua him. His claim is very simple and is to the effect that he is the owner. The alienation made in 1940 could not enure beyond the lifetime of the widow. There is no provision of law which makes it obligatory on him to challenge this alienation. He can wait and at the death of the widow when he finds himself to be the nearest heir, he can bring a suit for possession thereof treating the gift as non-existing. If that be so, then Schedule to Punjab Act 1 of 1920 will not be applicable, because neither he is a reversioner, who has obtained a declaratory decree, nor a person who is claiming under the decree or on the basis of the decree. He is claiming independently of the decree.” Learned counsel for the appellant contended that the judgment and decree passed by the learned lower appellate court deserved to be set aside as in the facts and circumstances of the case general law of Limitation was to be applied and the suit was within limitation. Learned counsel for the appellant also contended that in Riwaj-j-am of Gurgaon District, the powers of alienation of widow are restricted in respect of both ancestral and non-ancestral properties. Widow can alienate by gift, sale or mortgage, the immovable property inherited by her from her husband only with the consent of her husband's relatives. The collaterals of the last male holder are entitled to challenge the gift made by RSA No.2388 of 1989 12 the widow. Brother of first male holder is better heir than the latter's daughter. In support of this contention reliance was placed on the judgment of this court in the case of Shmt.Hussainy Bai Vs. Kalu and others 1969 P.L.R, 819. Mr.Jaspal Singh, learned counsel appearing on behalf of the respondent, on the other hand, also placed reliance on the judgment of this court in the case of Kanwar Khan and others Vs. Khatoni and others 2005 (3) RCR (Civil) 243, wherein this court has been pleased to lay down as under:- “8. Still further, this Court has held in the judgment reported as Mohammad Yunis Vs. Malooki Widow of Nabi Khan and others, 2004 (1) RCR (Civil) 476 (P&H): 2004 (1) PLR 330 B that restricting rights of a woman existing in pre- Constitution era cannot be recognised by the Court unless it meet the approval of equality clause of the Constitution. Reliance was placed upon John Vallamattom Vs. Union of India, 2003 (3) RCR (Civil) 691 (SC): 2003 (6) Supreme Court Cases 611 B and B C.Masilamani Mudaliar V. The Idol of Sri Swaminathaswami Thirukoli, 1996 (2) RRR 161 (SC): AIR 1996 SC 1697. In view of the said judgment, the restrictive right to woman to deal with the property inherited from her husband negates the right of equality before law. The plaintiffs are fifth degree collaterals depriving the widow the right to enjoy the fruits of the property inherited by her RSA No.2388 of 1989 13 husband is concept of remote past. Such principle does not satisfy the touchstone of equality and fair play under the Constitution of India.” The first contention of learned counsel for the appellant is thus rejected in view of law laid down in Kanwar Khan and others Vs. Khatoni and others (supra). It was also the contention of the learned counsel for the appellant that once the ground of limitation was not pressed before the learned trial court it was not open to the learned lower appellate court to have reversed the findings of the learned trial court on the ground of limitation. However, this plea also cannot be accepted in view of the law laid down by Hon'ble Supreme Court in the case of Padmanath Goswami Vs. Banamali Das alias Banoramdas (2004) 13 Supreme Court Cases 651, wherein Hon'ble Supreme Court has been pleased to lay down that whether a title suit was barred by limitation and as to which article of Limitation Act would be attracted is a substantial question of law which deserves to be decided by the court at any stage. Again in the case of Narne Rama Murthy Vs. Ravula Somasundaram and others (2005) 6 Supreme Court Cases 614, Hon'ble Supreme Court was pleased to lay down that when the limitation is the pure question of law and from the pleadings itself it becomes apparent that the suit is barred by limitation, then it is the duty of the court to decide limitation at the outset even in the absence of a plea. RSA No.2388 of 1989 14 In the present case it may be noticed that from the pleadings itself it was proved on record that Punjab Limitation(Custom) Act, 1920 was applicable and not general law and the suit was barred by limitation. The substantial questions of law, therefore, are answered against the plaintiff appellant. The finding of learned lower appellate court on the question of limitation is affirmed. Resultantly, this appeal is dismissed but with no order as to costs. 5.03.2009 (Vinod K.Sharma) rp Judge