R.S.A.No. 1587 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1587 of 2008 Date of decision: 8.7. 2009 Attar Singh ......Appellant Versus Sher Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Amit Jain, Advocate, for the appellant. Mr.Jagat Singh, Advocate, for the respondent. **** SABINA, J. Plaintiff Sher Singh filed a suit seeking a decree for possession by way of ejectment of the defendant from the land in dispute. The suit of the plaintiff was decreed by the Civil Judge (Jr.Divn.) Charkhi Dadri vide judgment and decree dated 8.9.2005 and in appeal, the same were upheld by the Additional District Judge, (Fast Track Court) Bhiwani vide judgment and decree dated 23.4.2008. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 1587 of 2008 2 Court in para Nos. 2 and 3 of its judgment, are as under:- “Shorn of details, the claim of the plaintiff, culled out from the plaint, is that he filed a suit seeking possession of the suit land measuring 48 kanals-9 Marlas, detailed and described in the heat note of the plaint, by way of ejectment, on the allegation, that the suit land was the ancestral property of the plaintiff in the hands of his father from his forefathers and he was birth right in it. His father sold the suit land without any legal necessity to the defendant vide sale deed 662 dated 18.10.1965 and he filed a civil suit No.212 dated 19.6.1966, titled as “Sher Singh vs. Attar Singh and another” seeking declaration the sale deed, in question, was without legal necessity and not binding on the rights of the plaintiff, which was decreed vide judgment and decree dated 3.7.1969. The defendant had limited rights of use and enjoyment of the suit land till the death of father of the plaintiff, who died on 25.9.2003 and thus, the suit land has to revert to the plaintiff free from all kind of encumbrances and as such, he has become entitled to get the possession of the suit land from the defendant and entitled to get the suit land mutated in his name. The plaintiff has requested the defendant to admit his claim, which remained barren of results. All these facts and circumstances culminated in R.S.A.No. 1587 of 2008 3 the institution of the suit. 3. On notice, the defendant appeared and resisted the suit, tooth and nail, having filed a written statement, vide which, some preliminary objection viz. Locus- standi, maintainability of suit, estopped, suit being bad for non joinder and mis-joinder parties and suit being barred under Order 2 Rule 2 CPC. etc. were taken. The defendant further alleged that father of the plaintiff had sold the suit land to the defendant for a valuable consideration in the year, 1965 and since, he is continuing as owner in possession of the suit land. He denied that he has limited right in the suit land till the death of father of the plaintiff and the suit land was to be reverted back to the plaintiff after the death of his father. Denying other allegations, lastly, it was prayed that the suit deserves to be dismissed.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for decree for possession on the grounds taken in the plaint? OPP 2. Whether the plaintiff has no locus-standi to file the present suit? OPD 3. Whether the suit is not maintainable in the present form? OPD R.S.A.No. 1587 of 2008 4 4. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD 5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 6. Whether the suit is barred under Order 2 Rule 2 CPC? OPD 7. Relief. ” After hearing learned learned counsel for the parties, I am of the opinion that this appeal is devoid of any merit. Learned counsel for the appellant has submitted that since the custom stood abrogated, the suit of the plaintiff was liable to be dismissed. Learned counsel for the respondent, on the other hand, has submitted that so far as State of Haryana was concerned, the property in the hands of a successor may be held to be coparcenary property as well as ancestral property as known to Customary Law. The parties could fall back upon Hindu Law in case they failed to establish that the rule of decision is custom. In support of his arguments, learned counsel for the respondent has placed reliance on the decision of a Larger Bench of this Court in Mihan and another v. Inder and another 2008(3) PLR 354. The facts of the present case are not in dispute. The plaintiff had filed a civil suit No.212 of 19.6.1966 for declaration to the effect that the sale deed in question was without any legal necessity. R.S.A.No. 1587 of 2008 5 The said suit was decreed vide judgment and decree dated 3.7.1969. It was ordered that that the suit property would revert to the plaintiff after the death of his father. Plaintiff Sher Singh filed the present suit after the death of his father Fakir Singh. The suit was filed on 16.10.2003, whereas, Fakir Singh died on 25.9.2003. So far as State of Haryana is concerned, both under the Hindu Lal and Customary Law, the alienation made by father is open to challenge as has been held by this Court in Mihan's case (supra). In State of Haryana, the property in the hands of a successor may be held to be coparcenary property as well as ancestral property as known to Customary Law. The parties can fall back upon Hindu Law in case they fail to establish that the rule of decision is custom. It has been held by the Apex Court in Giani Ram v. Ramji Lal and others AIR 1969 SC 1144 as follows:- “5. The Punjab Custom (Power to Contest) Act I of 1920 was enacted to restrict the rights exercisable by members of the family to contest alienations made by a holder of ancestral property. By virtue of Section 6 of the Act no person is entitled to contest an alienation of ancestral immovable property unless he is descended in the male line from the great-great grandfather of the alienor. Under the customary law in force in the Punjab, a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property R.S.A.No. 1587 of 2008 6 ensured in favour of all persons who ultimately took the estate on the death of the alienor, for the object of a declaratory suit filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a common apprehended injury, in the interest of the reversions. The decree did not make the alienation a nullity it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened. By the decree passed in suit No.75 of 1920 filed by Giani Ram, it was declared that the alienations by Jwala were not binding after his life time and the property will revert to his estate. It is true that under the customary law the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioner after the death of the alienor. But a declaratory decree competent to sue has the effect of restoring the property alienated to the estate of the alienor. 6. The effect of the declaratory decree in suit No.75 of 1920 was merely to declare that by the sale interest conveyed in favour of the alienee was to ensure during the life time of the alienor. The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala at the point of his death and all persons R.S.A.No. 1587 of 2008 7 who would, but for the alienation, have taken the estate will be entitled to inherit the same. If Jwala had died before Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act, the estate developed by virtue of Sections 2 and 4(1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920 the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into force. 7. The second ground on which the learned Judge has founded his judgment also does not appeal to us. The three sons, the two daughters and the widow of Jwala had filed the suit claiming possession of the entire property from the alienee. That suit was decreed by the Trial Court in favour of the sons only to the extent of a half share in the property alienated. The Court held that the widow and the daughters were not entitled to a share because “only those persons can bring a suit R.S.A.No. 1587 of 2008 8 for possession on the death of Jwala who had the right to challenge the alienation made by Jwala.” In appeal the District Court granted a decree for possession of the entire property alienated only in favour of the three sons, because in the view of the Court the daughters and the widow of Jwala were not entitled to any share in the property. According to the HighCourt if the widow and the daughters are entitled to the share in the property, they had disentitled themselves to that right because they had not preferred appeal or filed cross- objections to the decree appealed from. The sons, daughters and widow of Jwala filed a suit for a decree for possession of the entire property and their primary claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees are unable to convince the court that they had any subsisting interest in the property in dispute after the death of Jwala the Court will be competent to adjust the rights between the sons, the daughters and the widow of Jwala in that property. In Teg Singh and others v. Charan Singh and another AIR 1977 SC 1699, the Apex Court has held as under:- R.S.A.No. 1587 of 2008 9 “7.This decision of this Court in Giani Ram v. Ramji Lal, (1969) 3 SCR 944 (AIR 1969 SC 1144) 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 alienation 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 R.S.A.No. 1587 of 2008 10 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 Bhgwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot enure for his benefit. The short answer to this contention is that the decree would ensure 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 entitled to the possession of the gifted property.” Thus, the legal position that emerges is that the effect of a declaratory decree passed in favour of the reversioners is with a view to restore the property alienated to the estate of the alienor and it is for the alienee to establish before the Court that he had any subsisting interest in the property in dispute after the death of alienor. Undisputedly, the property in dispute is covered under the sale deed which was under challenge in the earlier suit. The appellant had failed to establish that he had any subsisting interest in the suit land after the death of Fakir Singh on 25.9.2003. After the death of Fakir Singh, the plaintiff had a right to succeed to his R.S.A.No. 1587 of 2008 11 estate. In case Fakir Singh had other living legal heirs then it would be a dispute inter se between the plaintiff and other legal heirs. So far as the appellant is concerned, he is a stranger to the claim and has no right to object to the claim made by the plaintiff. In these circumstances, the Courts below had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 8, 2009 anita