Gurdit Singh and Ors. Etc. v. Munsha Singh and Ors. Etc. (1976)

PETITIONER:
GURDIT SINGH AND ORS. ETC.
Vs.
RESPONDENT:
MUNSHA SINGH AND ORS. ETC.
DATE OF JUDGMENT29/11/1976
BENCH:
SINGH, JASWANT
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1977 AIR 640 1977 SCR (2) 250
1977 SCC (1) 791

ACT

Limitation Act, 1908--S. 14--Applicability of--Punjab

Limitation (Customs) Act, 1920,4rt. 2 of Schedule--Accrual

of the right to use--Meaning of.

HEADNOTE

The appellants filed three suits (the earliest of the

three suits was filed on December 18, 1945) for possession

of lands claiming that K, the last owner of the lands died

on August 15, 1945. Those suits were dismissed on August 3,

1951, as premature on the ground that the fact of the death

of K had not been established.

The appellants again instituted three suits in October

1952, December 1952 and May 1953 for the same relief as in

the previous suits alleging that the right to sue had ac-

crued after August 16, 1952, that is, after a period of

seven years, under s. 108 of Evidence Act; that K died three

years before the date. of the filing of the suits; and

that they were within time under art. 2(b) of the. Schedule

annexed to the Punjab Limitation (Customs) Act, 1920 which

provides that the period of limitation for a suit for pos-

session of ancestral immovable property which has been

alienated, is three years, if a declatory decree has been

obtained, and that period commences from the date on which

the right to sue accrues.

On appeal, a single Judge of the High Court decreed the

suits holding that K having been treated as alive by the

High Court when it passed the previous decree in 1951, the

conclusion of the lower courts that he had been dead for

seven. years before the institution of the suits could not

be sustained and also excluded the time spent on the previ-

ous litigation from 1945 to 1951 under s. 14(1) of the

Limitation Act. On Letters Patent appeal, the Division

Bench held: (1) that the single Judge was in error in ex-

cluding the time spent on the previous litigation by apply-

ing s. 14(1) of the Limitation Act; (ii) that the words "or

other cause of a like nature" occurring in s. 14(1) had to

be read ejusdem generis with the preceding words "relating

to the defects of jurisdiction" and that it was not possible

to give the benefit of that provision to the plaintiffs.

Dismissing the appeal to this Court (per A.N. Ray, C.J..

and Jaswant Singh, J)

HELD: (1) Under art. 2(b) of the Schedule to the

Punjab Limitation (Customs) Act, 1920 in order to be able

to succeed the plaintiffs must bring their suits within

three years of the accrual of the right to sue (which ac-

cording to well settled judicial opinion means the accrual

of the right to seek relief), namely within three years of

the death of K. They had to prove affirmatively that the

death of K took place within three years of the institution

of the suits. Granting that K has to be presumed to be

dead, it cannot be overlooked that under s. 108 of the

Evidence Act, the precise time of the death is not a matter

of presumption but of evidence and the onus of proving that

the death took place at any particular time within seven

years lies upon the person who claims the right for the

establishment of which the proof of that fact is essential.

The plaintiffs had not only, therefore, to prove that K had

not been heard of for a period of seven years and was to be

taken to be dead, but it also lay heavily on them to prove

the particular point of time within seven years when K’s

death occurred. This they have failed to prove. In the

absence of such proof, it cannot be held that the present

suits had not been brought within three years of the accrual

of the right to sue. [263 D-G]

251

Nepean v. Doe D. Knight (1837) 2 M & W 894; 7 L J Ex

335, Jayawant Jivarao Deshpande v. Ramachandra Narayan Joshi

(A.1.R. 1916 Born. 300), Lalchand Marwari v. Ramrup. Gir

(LIII I.A.24; A.I.R. 1926 P.C. 9), Jiwan Singh v. Kuar Reoti

Singh & Anr. (A.I.R. 1930 All. 427), Kottappalli Venkates-

warla v. Kottapalli Bapayya & Ors. (A.I.R. 1957 A.P. 380),

Punjab and Ors. v. Natha & Ors. (A.I.R. 1931 Lah. 582) and

Ram Kali & Ors. v. Narain Singh (A.I.R. 1934 Oudh 298 F.B.)

referred to.

(2) If K had died beyond three years, from the date of

the suits, the suits would be barred by limitation because

the appellants cannot claim the benefit of s. 14 of the

Limitation Act 1908. The three important requirements of

the section are: (1) that the plaintiff must have prosecuted

the earlier civil proceeding with due diligence; (2) the

former proceeding must have been prosecuted in good faith in

a court which from defect of jurisdiction or other cause of

a like nature was unable to entertain it and (3) the earlier

proceeding and the later proceeding must be based on the

same cause of action. [265 D]

(3) The contention that the appeals had been rendered

untenable as a result of the amendment made to s. 7 of the

Punjab Customs Power to Contest) Act 1920 by the Amending

Act 12 of 1973 has no force and must be rejected. Section 4

of the Act provides that the Act shall not affect any right

to contest any alienation or appointment of an heir made

before the Act came into force. This section has been left

untouched by the Amending Act of 1973. In the instant

case, the alienation was made before the 1920 Act came into

force and was not affected by that Act. [261 F-H]

(4) The words "or other cause of a like nature" in s.

14(1) take their colour from the preceding words "defect of

jurisdiction" according to the rule of ejusdem generis.

Therefore, the defect must be of a character analogous to

jurisdiction barring the Court from entertaining the previ-

ous suit. In the instant case, the Court which tried and

dismissed the previous suits as premature did not suffer

from inability or incapacity to entertain the suits on the

ground of lack of jurisdiction or any other ground analogous

to the defect of jurisdiction. The exclusion of the period

during which the previous suits were pending, could not,

therefore, be allowed to the plaintiffs while computing the

period of limitation. [265 E; I-1; 266 A]

Bhai lai Kishan Singh v. People Bank of Northern India,

I.L.R. [1944] Lah 136, Dwarkanath Chakravarti v. Atul Chan-

dra Chakravarti (I.L.R. 46 Cal. 870) and Palla Pattabhira-

mayya & Ors. v. Velga Narayana Rao (A.I.R. 1960 A.P. 625)

referred to.

[Obiter: The causes of action in the previous suits and

in the present suits are also different. And hence the

appellants cannot press s. 14 into service.]

Beg, .J. (Dissenting)

The Division Bench of the High Court was wrong in ignor-

ing the effect of the finding of the single Judge that a new

cause of action had arisen within three years before the

filing of the plaintiffs’ suits. [281 C]

The question of time bar or its removal by resorting to

s. 14(1) of Limitation Act postulates that a point of time

from which limitation could run had been ascertained. As

that point could not be the date of the death of K, which

was unknown the suits could not be dismisses on that ground.

[281 D]

(1) The single Judge had sufficiently indicated that the

cause of action in the previous litigation was different

from the one in the later inasmuch as the facts proved in

the later case showing that K must be presumed to be dead

could not be and were not set up in the earlier suits. The

cause of action had not accrued in 1945. The effect of the

judgment in the former suits was that these suits were

premature, which is not the case in the suits in appeal.

The plaints in the later cases set out the case founded on

new facts not in existence at the time of the earlier liti-

gation and expressly stated why the plaintiffs rely on the

presumption of death of K. If the previous suits were

dismissed on the ground that they were premature, the cause

of action could only, be said to have accrued after their

institution. [268 G; 269 C]

252

The findings of the single Judge showed that the. plain-

tiffs were entitled to the benefit of the presumption laid

down by s. 108 of the Evidence Act. He found that till

August 3, 1951 when the judgment of the High Court in the

previous suits was delivered, the position was that the

death of K had not been established. This meant that on new

facts asserted and proved, K could be presumed dead when the

subsequent suits were instituted in 1952 and 1953. This

presumption of death having become available to the plain-

tiffs within. three years of the suits and not before, no

occasion for applying s. 14 of the Limitation Act could

arise. The evidence sought to be given in the previous

suits was that K had died on a particular date but the

evidence in the subsequent suit was not that he had died on

a particular date but that he had not been heard of from

August 5, 1945 upto the time of filing of the subsequent

suits. [269 H; 270 H]

Modi Khalil Khan v. Mahboob Ali Mian, A.I.R. 1949 PC

78 at 86 referred to.

(2) (a) If causes of action differ from suit to suit,

the accrual of the cause of action can also not be tied down

to a particular kind of fact such as the date of actual

death of the holder of the property. Once it is held that

the causes of action differ for purposes of their accrual,

their accrual could not be made to depend on facts of one

type only. Facts denoting their accrual must differ from

case to case. Proof of date of actual death is conclusive.

But, where the basis of the right to sue is presumption of

death, the. date; of accrual of the right is the date on

which that presumption matures. [271 C]

Indian Electric Works Ltd. v. James Montosh & ,Anr.

[1971] (2) SCR 397 followed.

Mst. Rante Surno Moyee v. Shooshee Mokhee Burmonia &

Ors. 12 Moore’s I.A. 244, State of Madras v.V.P. Agencies &

Anr. AIR 1960 SC 1309 at 1310 and Mst. Chand Kour v. Partap

Singh, 15 Ind. App. 156, referred to.

(b) The expression "cause of action" has sometimes been

employed to convey the restricted idea of facts or circum-

stances which constitute either the infringement or the

basis of a right and no more. In a wider and more compre-

hensive sense it has been used to denote the whole bundle of

material facts which a plaintiff must prove in order to

succeed. These are all those essential facts without the

proof of which the plaintiff must fail in his suit. [272 G]

causes of action in the earlier and later litigations would

be materially different. No cause of action had arisen at

all if it is assumed that K had not died at all. K’s death

was an essential part of the cause of action. It had to be

proved to enable the plaintiffs to put forward their claims

to succeed. But proof of the date of death was not essen-

tial or indispensable for that purpose. It could only

become material in deciding whether the right accrued had

been extinguished by the law of limitation. Both the narrow

and wider sense of the term "cause of action’ would include

all those facts and circumstances on the strength of which

the plaintiffs urged that they were entitled to the benefit

of the obligatory presumption of law contained in s. 108 of

the Evidence Act. As these were not available to the plain-

tiffs before the expiry of seven years from August 5, 1945,

it was not possible to urge that this cause of action had

arisen more than three years before the filing of the suits.

Therefore, the date of its accrual could not lie a day

earlier than seven years after August 5, 1945 when K was

last heard of. [272 G-H; 273 A-B]

(d) It was for the defendants to establish that K was

either alive or had died more than three years before the

suits were filed. The presumption under s. 107 of the

Evidence Act could not come to the aid of the defendants

when the plaintiffs had established facts necessary to raise

the presumption under s. 108 of the Evidence Act. [273 E]

(e) The suits are not barred by limitation. The plaintiffs

discharged their burden as to when the accrual of their

cause of action was within the prescribed period of limita-

tion. If the "media" upon which the plaintiffs rest their

cases

253

are different in the previous and subsequent litigations,

the causes of action are different. If the alleged date of

death of K was the date of accrual of the previous cause of

action, the date of accrual of the second could only be

something other than the date of death of K, it could not

possibly be the same. The other date of accrual could only

be subsequent to August 5, 1945 because it was held in the

previous suit that the suit was premature on the ground that

seven years since K was last heard of had not elapsed then.

Since the evidence was that he was last heard of on August

5, 1945, the only possible date of accrual of the subsequent

cause of action could be seven years after the date. The

suits were filed within three years of that date. [273 H;

274 A-C]

(3)(a) The term ’right to sue’ occurring in art. 2 of

Schedule to the Punjab Limitation (Customs) Act 1 of 1920

must be equated with cause of action." The "date of death"

cannot be substituted for the date of accrual of the "right

to use". In the Limitation Act the accrual when intended to

be tied to the date of some event is specified as the date

of that event. In this case, it is not so. It cannot be

held that the date of accrual in both sets of suits is one

and the same, that is to say, the actual date. of death.

[274 D]

(b) Wherever the accrual of a right or commencement of a

period of limitation, within which a suit must be shown by

the plaintiffs to have been brought, could only be estab-

lished by proving the date of a person’s death, that

duty must be discharged by the plaintiffs or the suit will

fail. But to carry the doctrine beyond that and to lay down

that the date of death must invariably be proved, whenever

the question of limitation is raised in such cases must

result in stultifying or defeating legal right and wiping

out the effects of a statutory presumption. The accrual of

a cause of action based on untraceability of the owner could

not be said to depend at all on proof of either actual death

or the date of actual death of the owner. It accrues as

soon as death can be presumed and not a day earlier. [278

D-F]

mencement of the date of dispossession must be established

by the plaintiffs. It is only in a suit for possession

based on the allegation by the plaintiff of his own dispos-

session that the burden is governed by Art, 142 of the Limi-

tation Act. [274 G]

(d) In the instant ease, the plaintiffs were never in pos-

session and, therefore,there was no question of their dis-

possession. It was a pure and simple suit for possession on

the basis of title against which the defendants had not even

alleged adverse possession. Therefore, there is no need to

bring in the actual date of death constructively, as the

date of the presumed dispossession or adverse possession

has not been asserted anywhere. [275 B]

(e) The plaintiffs have asserted and proved that the period

of seven years when K was last heard of by those who would

in the natural course of events have heard of or about him

if he was alive, had elapsed and that their cause of action

matured within three years of their suits. Assuming that

the concept of adverse possession of the defendants was to

be introduced, the legal position is that possession of

defendants could not be adverse to K’s reversioners even

before K could be presumed to be dead. The defendants them-

selves had set up. the plea that he must be still deemed to

be alive. The plaintiffs could only be required to prove

K’s death but not the date of his death or the date of the

plaintiffs’ dispossession. Neither cases dealing with recov-

ery of possession on the plaintiffs’ allegation of their own

dispossession nor those where proof of date of death was a

necessary statutory duty for showing that the suit was

within time; are applicable in these cases. [275 E-F]

Nepean v. Doe D. Knight (English Reports 150 Exchequer

p. 1021), Jayawant Jivanrao Deshpande v. Ramachandra Narayan

Joshi, AIR 1916 Bom. 300 & 301., Lal Chand Marwari v. Mahant

Ramrup Git & Anr. AIR 1926 PC 9, Jiwan Singh v. Kuar Reoti

Singh & Anr. AIR 1930 All. 427, Kottapalli Venkateswarlu v.

Kottapalli Bapayya & Ors. AIR 1957 AP 380 Punjab v Natha

AIR 1931 Lab. 582 (FB) & Ram Kali & Ors v. Naraian Singh AIR

1934 Oudh 298 & 299-300, refrered to.

254

(f) It is neither a part of the case of any plaintiff in

these cases nor necessary for the success of his case to

prove that K died on a particular date or that K died before

or after somebody else. The plaintiffs cannot be saddled

with the responsibility to prove this date. [279 ,B]

(4) The suits were not barred by limitation because the

causes of action in the previous litigation and the litiga-

tion now are different and the subsequent cause of action

has arisen within three years before the filing of the

suits. Assuming that the suits were filed beyond the period

of limitation on the actual basis of their claims the

plaintiffs are entitled to succeed because this is a fit

case in which s. 14(1) Limitation Act could come to the aid

of the appellants. They had been asserting repeatedly that

the basis of their claim was that although the actual date

of death of K could not be proved, yet, he has not been

heard of for seven years. That basis having emerged within

three years before the filing of the suits, their suits

could not be barred by time. If the causes of action did not

arise no question of its exceeding by the law of limitation,

could emerge. [280 G]

The previous suits did not fail for want of jurisdic-

tion. The delay in bringing the present suits was due to

the fact that no court could decree the claim before the

cause of action matured. Therefore, the cause of action of a

"like nature" to a defect of jurisdiction is present in

these cases, since the provision has to be liberally con-

strued. The defect revealed by the evidence in the latter

litigation was that the suits did not lie at all as they

were premature. This was a defect reasonably comparable to a

want of jurisdiction. [280 A-C]

India Electric Works Ltd. v. James Mantosh & Anr. [1971]

(2) S.C.R. 397, followed.

(5)(a) If no cause of action could accrue at all unless

and until the date of actual death of K was established,

there could be no commencement of a period of limitation.

The only possible point from which limitation could start

framing in these, cases is the date on which seven years

expired from the date on which K was last heard of. This

was within three years before filing of the suits. [280 D]

(b) The issue in the earlier litigation was whether K

was actually shown to have died on a particular date. This

was quite different from the issue decided now, which was

whether K’s whereabouts had remained unknown for seven years

so that he could be presumed to be dead. [280 F]

ARGUMENTS

For the appeliants:

The legal presumption under Section 108 was not sought

to be raised in the prior suits. It was for the first time

raised in the subsequent group of suits instituted in Octo-

ber, 1952 based on the allegation that Kishan Singh was not

heard of since 15th August, 1945.

This submission opens the questions (i) when is the

presumption of death to be raised and (ii) whether for the

purpose of proceedings in which it is raised or any prior

proceedings. The presumption is to be raised in the pro-

ceedings where the question has been raised i.e. the second

group of suit. However, there is no presumption as to the

time of death of the person whose death is accepted as a

result of presumption.

The two are distinct matters--(i) the legal presumption

of death and (ii) the time of death preceding the period

when presumption is drawn. The death may be at any time

during the preceding period of 7 years----the period that

has enabled the court to draw presumption of death.

The law requires that if one has to establish the pre-

cise period during these 7 years at which such person died

he must do so by evidence.

255

The conclusion of the court of presumption of death

based upon disappear ance from 15th August, 1945 cannot be

ignored.

Death at any time on or after 15th August, 1945 does not in

any manner adversely affect the case of the appellants,

inasmuch as the parties had instituted suits (of course

premature) on 18th December 1945 (other suits some time

later decided by a common judgment). If the parties are

held entitled to the benefit of deduction of time from 18th

December 1945 to 3rd August, 1951, the death of Kishan Singh

even if it took place between 15th August, 1945 to any date

before 3rd August, 1951 the suit are not barred by limita-

tion.

On the pleading of the parties it cannot be assumed that

the presumption of death would justify acceptance of date of

death, any time prior to 15th August, 1945.

The period of limitation for the suit for possession

was 3 years The defendants had not pleaded in the prior

suit that the suit was. barred by limitation as instituted.

In other words it was not alleged that he had died at any

time 3 years prior to the institution of the suit (18th

December, 1945). Actually death has not been admitted even

on 15th August, 1945.

The trial Court and the District Judge held the suit to

be time barred not on the ground that his death had taken

place at a period exceeding 3 years from the date of the

institution of the first suit. They have apparently not

ignored the possibility of death having taken place during

the period between 18th December, 1945 to 3rd August., 1951.

They have held the. suit to be time barred because it was

considered that the appellants are not entitled to deduct

the stated period spent in the prior suits.

Even if it is considered that death had taken place

during this period or any time after 15th August, 1945 or

during the 3rd August to 31st October, 1952 the suits are

not time barred.

Preliminary objection was raised by the respondents as

to the effect of the Punjab Customs (Power to Contest)

Amendment Act, 1973 (Punjab Act 12 of 1973). It was urged

that the Act had come into force on 23rd January, 1973, it

has retrospective operation and bars all suits to contest

alienation also including the suits for possession of the

property following a declaratory decree. It was urged that

the appeals are barred as a consequence of repeal of the

provisions of Punjab Act II of 1920.

The contention as to the effect of Act 12 of 1973 is

not correct. The previous law on the subject of right to

contest alienation of immovable property and the limitation

of suits relating to alienation of-ancestral immovable

property is regulated by two Acts.

(1) Punjab Act II of 1920--Described an Act

to restrict the powers of the descendents or

collaterals to contest an alienation of

immovable property; and

(2) Punjab Act I of 1920 Described as an

Act to amend and consolidicate the law govern-

ing the limitation of suits relating to alien-

ations of ancestral immovable property etc.

The present Act 12 of 1973 repeals s. 6 of Act II of

1920. It also amends s. 7 of the aforesaid Act. Effect of

the repeal of s. 6 and amendment of s. 7 merely is that the

right to. contest vesting in the collaterals upto 5th

degree has been done away with and the suit to contest

alienation of ancestral property has been taken away.

Under the previous existing law an alienation of non-ances-

tral property could not be contested.

Act I of 1920 has also not been repealed.

The limitation provided for a suit for possession i.e. 3

years is still an existing provision of the Act. It is

obvious that the legislature has retained

256

Act I of 1920 unrepealed so that the benefit of the decrees

may be available to all persons under s. 8 of the Act and

the period of limitation may be retained as before.

The effect of the declaratory decree in that the

alienation is not binding against the inheritance. The

succession never remains in abeyance. A person entitled to

succeed to the last male holder is entitled to sue for

possession on the basis of right to succession to the

property.

For the respondent:

The principle of res judicata would be immediately

attracted if the plaintiffs allege the "same cause of ac-

tion" and seek the exclusion of the time because the earlier

suit was tried on merits by a competent court having

jurisdiction and was dismissed holding that ’plaintiff

failed to prove that Kishan Singh died on 15th August,

1945. This finding would be binding between the parties in

the subsequent suits as they have been given after recording

the evidence and a full trial by, the competent court having

jurisdiction.

Therefore, the plaintiff is barred by principles of res

judicata from alleging the accrual of right to sue before

the filing of the earlier suits as the same would be res

judicata. The plaintiff is estopped from alleging the

accrual of same cause of action, therefore, no question of

exclusion of time inasmuch as the principle of s. 14 of

exclusion of time arises only if the cause of action is the

same. Section 14 uses the words "the proceeding is founded

upon the same cause of action". The language of s. 14 of

the Limitation Act by using the words "same cause of action"

makes it very clear that time can be excluded for the same

cause of action only if the earlier suit is dismissed be-

cause of defect of jurisdiction or other cause of a like

nature. On the interpretation of s. 14 also the time cannot

be excluded for the reason that the earlier suit was dis-

missed as premature and the new suit was filed on a new

cause of action, namely, Alla Singh and his line became

extinct on the death of Kishan Singh on 15th of August, 1952

i.e. after the expiry of’ seven years from 15th August,

1945. Since a new cause of action was alleged after the

dismissal of previous suit, s. 14 cannot be attracted.

The words "is unable to entertain it" mean that it is

not able to admit the matter for consideration on merits

i.e.. the. inability is of a formal nature but it does not

mean inability to grant relief.

From the decisions one principle is deducible that s. 14

of the Limitation Act has to be construed harmoniously with

s. 11 C.P.C. Section 11 C.P.C. bars the filing of a fresh

suit on the same cause of action whereas s. 14 of Limitation

Act allows time to be. excluded in the previous litiga-

tions was "founded on the same cause of action’’.

Section 12 says that if plaintiff is barred under s. 11

C.P.C. to file suit for any cause of action then plaintiff

cannot file suit for a such cause of action in any court to

which C.P.C. applies.

If both. s. 14 of Limitation Act and principles of res

judicata are to operate then, it should be held

that to apply s. 14 the earlier suit had been

dismissed on a technical ground of jurisdiction, or other

cause of a similar nature, court is unable to entertain it

without going into the merits of the case. In the present

case earlier suits were dismissed because the plaintiff

failed to prove the death of Kishan Singh and the extinction

of line of Alia. The words used by the High Court at page

302 line 37 are:

"The suit had been rightly dismissed as premature" do

not mean that Kishan Singh was alive but it means that

plaintiffs have not proved the accrual oj cause of

action namely the extinction of line of Alia. In these

circumstances it is submitted that the suits were not dis-

missed on the ground of defect of jurisdiction or other

cause of similar nature. for which the court was unable to

entertain it. Section 14 of the Limitation Act does not

apply. Plaintiffs have failed to prove the date of death

of Kishan Singh and the extinction of line of Alla within 3

years of the filing of the suit. Suits are therefore time

barred.

257

Sections 107 and 108 of the Evidence Act do not help the

appellants. Rule of evidence in s. 107 is that it is for the

plaintiff to prove the death of a person if he was alive

within 30 years and s. 108 says that burden of proving that

a man was ,dive is on the person who alleges he is alive if

it is proved that he has not been heard of for seven years

by those who would naturally have heard of him if he had

even alive. In this case the plaintiffs-appellants have

alleged that Kishan Singh was last heard of on 15th August,

1915 and singe then he is not heard of. The onus is, there-

fore, on the plaintiff-appellant under s. 107 of Evidence

Act 10 prove as to when Kishan Singh died. It is; Submit-

ted that Kishan Singh may have died on any date either

before 15th August, 1945 or immediately theereafter. There

is no presumption that he died on the expiry of 7 years from

the date he was last heard. The date of death is thus

required to prove by the plaintiff like any other fact.

The suits are, therefore, barred by time and should be

dismissed plaintiffs’ failure to prove death of Kishan Singh

within three years of the filing of suits.

JUDGMENT

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1944-1946/

67.

(From the Judgments and Decrees dated the 20th July,

1964 of the Punjab High Court in L.P.As. Nos. 23 to 25 of

1960).

M.L. Sethi and Harder Singh, for the appellants.

S.K. Mehta and S. Ranga Raju, for Respondents No.s. 1--5.

The Judgment of A.N. Ray, C.J. and Jaswant Singh J. was

delivered by Jaswant Singh, J.M.H. Beg, J. gave a dissenting

opinion.

JASWANT SINGH, J. These three Appeals Nos. 1944, 1945

and 1946 of 1967 by certificate which are directed against

the common judgment and decree dated July 29, 1964 of a

Division Bench of the High Court of Punjab and Haryana at

Chandigarh involving a question of limitation shall be

disposed of by this judgment.

The facts leading to these appeals are:

As appears from the pedigree table referred to in the judg-

ment under appeal, Chuhar Singh, a descendant of Amrika,

son of Har Lal, sold land admeasuring 167 kanals and 10

marlas situate in village Dhugga, Tahsil Hoshiarpur, to

Bhagwan Singh, the grandfather of defendants Nos. 1 to 6,

for Rs.23/8/- vide a registered sale deed dated June 20,

1885. After the aforesaid alienation, one Hamira, a collat-

eral of Chuhar Singh, filed a suit for possession by pre-

emption of 52 kanals, 13 marlas out of the aforesaid area

which was decreed in his favour on April 29, 1889 on payment

of 671/-. The mutation in respect of the remainder of the

land admeasuring 114 kanals and 17 marlas was attested in

favour of Bhagwan Singh on May 4, 1890. Hamira did not

retain the property which he secured by pre-emption and sold

it back to Bhagwan Singh on September 20, 1890, with the

result that Bhagwan Singh again became the owner of the

entire land which was originally sold tO him by Chuhar Singh

who died in 1896. On July 19, 1898, Jiwan, Bela, Jawahar and

Jawala, descendants of Bharimian, another son of Har Lal,

filed a representative suit for declaration to the effect

that the aforesaid sale by Chuhar Singh in favour of Bhagwan

Singh would not affect their reversionary rights as the

aforesaid land was ancestral and the sale thereof was with-

out

18--1458sc//76

258

consideration and legal necessity. A Division Bench of the

Punjab Chief Court finally disposed of the said suit by

judgment dated July 29, 1902 declaring that upon the death

of Alla Singh, adopted son of Chuhar Singh, and extinction

of his line, the aforesaid sale of 1885 would not affect the

reversionary interests of Bela and Jawahar. This declaration

was made subject to the condition that before these plain-

tiffs or their successors-in-interest would take possession

of their share of the laud sold, they would pay to Bhagwan

Singh or his successors-in-interest a sum bearing the same

proportion of Rs.1611/- i.e. Rs.2378 minus 767/-) as their

share in the land sold bore to the Whole area sold. On the

death of Alia Singh, Kishan Singh, his only sou, succeeded

him. On December 18, 1943, Jawahar Singh and Bela Singh

brought a suit for possession of land admeasuring 113 kanals

and 18 marlas situate in village Dhugga alleging that Kishan

Singh having died on August 15, 1945, and the line of Alia

Singh having become extinct, they were entitled to posses-

sion of the land in accordance with the aforesaid decree of

the Punjab Chief Court. This suit was followed by two more

suits of identical nature for the remainder of the land by

two other sets of collaterals of Bhagwan Singh, one by

Waryam Singh and his three brothers who claimed half of the

entire holding and the other by Khazan Singh and Jagat

Singh, who claimed one fourth share of the holding. The

Trial Court consolidated all these three suits and proceeded

to try them together, Eventually it decreed the first two

suits in favour of the plaintiffs pursuant to the aforesaid

decree of the Chief Court of Punjab holding that Kishan

Singh had died on August 15, 1945. It, however, dismissed

the suit brought by Khazan Singh and Jagat Singh on the

ground that they being the successors-in-interest of Hamira,

who had brought the aforesaid pre-emption suit, were stopped

from claiming possession of the land. On appeal, the Dis-

trict Judge, Hoshiarpur, dismissed all the three suits as

premature holding that the factum of Kishan Singh’s death

not been established. The decision of the District Judge

was affirmed in appeal by a Single Judge of the Punjab High

Court by his judgment and decree dated August 3, 1951. The

plaintiff’s in the last mentioned suits, viz. Waryam Singh

and his three brothers, Jawahar Singh and Bela Singh, and

Khazan Singh and Jagat Singh again instituted three sepa-

rate suits (out of which the present appeals have arisen) on

October 28, 1952, December 16, 1952, and May 12, 1953,

respectively for the same relief which was sought by them in

the previous suits. In these suits, the plaintiffs averted

as follows with regard to the cause of action :--

"5. After Alia, adopted son of Chuhar

Singh, deceased, his son Kishan Singh became

his heir and representative. Now the where-

abouts of Kishan Singh aforesaid, have not

been traceable for more than seven years.

Since the 15th Aug., 1945, no information or

intimation that he is alive has been received

by any of his relative or any other concerned

person. Hence. he is considered as dead and

his suit is being filed. The line of Alia has

become extinct. Under these circumstances, the

plaintiffs being collaterals of Chuhar Singh,

deceased vide the pedigree-table given

259

above, are entitled to get possession of the

laud of half share, the sale of which has

been cancelled vide the decree granted by the

Chief Court, subject to payment of

Rs.805/8/- of their proportionate share.

Hence, we have filed this suit. The parties

are governed by the Zamindara custom in the

matters of succession.

6. Prior to it, the plaintiffs had filed

a suit for possession of this property (land)

on the 18th December, 1945, in the Civil Court

at Hoshiarpur, alleging that Kishan Singh, son

of Alia who was the last man of the line of

Alia, has died on 15th August, 1945 .....

7. The suit of the plaintiffs, detailed

in para No. 6 above was based upon the factum

of the death of Kishan Singh. The plaintiffs

had no personal knowledge about this fact,

rather it was based on mere hearsay, but this

event of the 15th of August, 1945, came out to

be false and such a decision was passed in the

previous suit between the parties and the

parties are bound by the same. But the where-

abouts of Kishan Singh, aforesaid, have not

been traceable since the 15th August, 1945,

according to the above facts mentioned in para

No. 5. After the 15th of August, 1952, (1945

?) the event of his death is to be determined

according to law (under section 108) and facts

(under section 114) Evidence Act. According-

ly, Kishan Singh is to be considered as dead

after the 15th of August 1952(?) and he is not

alive. Two months prior to the 15th of Au-

gust, 1945, he had been residing sometime at

Mauza Dhugga, District Hoshiarpur and sometime

at Mauza Sonion, District Jullundur, perma-

nently. Thereafter, he went outside towards

Ahmedabad for searching some job and earning

his livelihood. The last information about

his presence in Ahmedabad was received on the

5th of August, 1945 and since then his where-

abouts have not been available.

".. 10. The right to sue has accrued

against defendants Nos. 1 to 6 within the

jurisdiction of his district after the 16th of

August, 1952, in the beginning of the months

of October, 1952 viz., after a period of seven

years since the whereabouts of Kishan Singh

have not been traceable and since he is con-

sidered to be dead according to law and so the

Civil Court of this District is competent to

try this suit ...... At any rate, Kishan

Singh died within a period of three years from

the date of filing the suit and so this suit

is within time. At any rate, the entire

aforesaid period mentioned in para No. 6 from

18-12-45 to 3-8-51 is liable to be deducted

according to law and facts."

These suits which were resisted by the contesting de-

fendants on a number of grounds, were eventually dismissed

by the Trial Court as time barred with the finding that

though Kishan Singh had not been heard for ’seven years

before the institution of the suits, the actual date

260

of this death had not been proved. The trial Court, however,

held that the decree of the Punjab Chief Court enured for

the benefit of the entire body of reversioners and not

exclusively for the benefit of Jawahar Singh and Bela

Singh. On appeal, the District Judge upheld the dismissal

of the suits adding that Hamira having successfully

brought a suit for pre-emption in respect of a portion of

the sale precluded not only himself but his successors as

well from acquiring the property. In this view of the

matter, he opined that Jagat Singh and Khazan Singh were not

entitled to any share at all in the land. On further appeal,

a Single Judge of the Punjab High Court decreed all the

three suits by his judgment dated October 28, 1959, holding

that Kishan Singh having been treated as alive by. the High

Court when it passed the previous judgment dated August 3,

1951, the conclusion of the courts below that Kishan Singh

had been dead seven years before the institution of the

present suits could not be sustained. While computing the

period of limitation, the Single Judge also excluded the

time spent on the previous litigation from 1945 to 1951

under section 14(1) of the Limitation Act. It would be

advantageous to reproduce the observations made in this

behalf by the. Single Judge:

"Till 3rd of August, 1951, when the judgment

(of the High Court in the previous suits) was

delivered, the position was that the death of

Kishan Singh had not been established.

Admittedly, the whereabouts of Kishan

Singh are still not known and, in my opinion,

there can be no escape from the conelusion on

these facts that the death of Kishan Singh

must be presumed under section 108 of the

Indian Evidence Act as he had not been heard

of for a period of seven years,. The present

suits were brought between 28th of October,

1952 and 12th of May, 1953. The correct ap-

proach to reach a solution of the present

problem is to give allowance to the plain-

tiffs, if found necessary, for the period

which they spent in previous litigation that

is to say, from the years 1945 to 1951. Under

sub-section (1) of section 14 of the Indian

Limitation Act, the time during which the

plaintiff has been prosecuting with due

diligence another civil-proceeding, whether in

a court of first instance or in a court of

appeal, against the defendant, shall be ex-

cluded, where the proceeding is found upon the

same cause of. action and is prosecuted in

good faith in a court which, from defect of

jurisdiction or other cause of a like nature,

is unable to entertain it ..... Both the

previous litigation and the present are found

on the same cause of action. The previous

litigation ended with the judgment of the

Punjab High Court in which it was held that

the suit was premature, the plaintiffs having

failed to establish the death of Kishan

Singh .....

The plain fact of the matter is that no

proof is forthcoming of Kishan Singh continued

existence since 1945. Since the judgment of

the High Court in 1951, where it was held that

the death of Kishan Singh had not been proved

8 years have elapsed. There can be no escape

from the conclusion

261

now that Kishan Singh’s death must be pre-

sumed. The decision of the High Court in 1951

should provide a suitable ground for extension

of time under provisions of section 14 of the

Indian Limitation Act. The whole basis of the

judgment of the courts below, in my opinion,

is erroneous. It is not a requirement of

section 108 of the Indian Evidence Act that

the date of death of the person whose death is

to be presumed must be established. All that

is said is that if a person is not heard of

for a period of seven years, his death maybe

presumed."

The contesting defendants then took the matter in Let-

ters Patent Appeal to a Division Bench of the High Court

which by its Judgment dated July 29, 1964 set aside the

afore Said judgment and decree of the Single Judge holding

that the Single Judge was in error in excluding.the time

spent on the previous litigation by the plaintiffs by apply-

ing section 14(1) of the Limitation Act. Relying on the

decision of the Full Bench of the Lahore High Court in Bhai

Jai Kishan Singh v. People Bank of Northern India, I.L.R.

1944 Lah. 136, the Division Bench held that the words. "or

other cause of a like nature" occurring in section 14(1) of

the Limitation Act had to be read ejusdem generis with the

preceding words "relating to defect of jurisdiction" and

that it was not possible to give the benefit of that provi-

sion to the plaintiffs as it could not be regarded that the

court was unable to entertain the previous suits because of

any defect of jurisdiction or other cause of a like nature

merely because of the fact that the court came to the con-

clusion that the cause of action had not yet arisen. Ag-

grieved by this judgement, the plaintiffs have come up in

appeal to this Court as already stated.

Before adverting to the contentions raised before us on

behalf of the appellants, we must first dispose of the

preliminary objection raised by Mr. Mehta, counsel for the

contesting respondents, regarding the maintainability of the

appeals. According to Mr. Mehta, the said appeals have

been rendered untenable and have to be dismissed in view of

the amendment introduced in section 7 of the Punjab Custom

(Power to Contest) Act, 1920 (Act 2 of 1920) by the Punjab

Custom (Power to Contest) Amendment Act, 1973 (Act 12 of

1973) which has been given a retrospective operation by

sub-section (2) of section 1 of the Amending Act. This

contention is, in our opinion, wholly misconceived and

cannot be allowed to prevail as it overlooks the savings

clause contained in section 4 of the Punjab Custom (Power

to Contest) Act, 1920 (Act 2 of 1920) which has been left

untouched by the Punjab Custom (Power to Contest) Amendment

Act, 1973 (Act 12 of 1973) and runs thus:

"4. Savings--This Act shall not affect

any right to contest ’any alienation or ap-

pointment of an heir made before the date on

which this Act comes into force."

The alienation in question was admittedly made by Chuhar

Singh in favour of Bhagwan Singh in 1885 i.e. long before

the 28th day of May, 1920--the date on which the Punjab

Custom (Power to Con-

262

test) Act 1920 (Act 2 of 1920) came into force. It was,

therefore, not at all affected by Act 2 of 1920. In this

view of the matter, it is not necessary to go into the

other contention raised by Mr. I Sethi, counsel for the

appellants, to the effect that in any event the preliminary

objection raised by Mr. Mehta is not tenable as the Punjab

Custom (Power to Contest) Amendment Act, 1973 (Act 12 of

1973) had not the effect of abrogating the declaratory

decree already obtained by predecessors-in-interest of his

clients prior to the coming into force of the Amending Act.

Having disposed of the preliminary objection, we now

proceed to consider the contentions that have been pressed

for our consideration by Mr. Sethi, counsel for the appel-

lants. He has strenuously urged that section 14(1) of the

Limitation Act was applicable to the facts and circumstances

of the present case and that the Division Bench of the High

Court has grossly erred in not giving the benefit of the

provision to the appellants which would have entitled them

to the exclusion of the time from October 10, 1945 to August

3, 1951 spent in prosecuting with due diligence and in good

faith the previous suits in the court of first instance and

in the courts of appeal which expressed their inability to

entertain the suits on the ground that they were premature.

There is no force in these contentions.

It cannot be and has not been disputed that the present

suits are governed by Article 2 of the Schedule annexed to

the Punjab Limitation (Customs) Act, 1920 (Act 1 of 1920)

which provides as follows :---

Description of suit Period of Time from which period

limitation begins to run

2. A suit for poss-

ession of ancestral

immovable property

which has been

alienated on the

ground that the

alienation is not

binding on the pla-

intiff according to

custom--

(a) if no declar-

atory decree of the 6 years First :--If the alienation

nature referred is by a registered deed,

to in Article 1 is the date of registration

obtained. of such deed.

Secondly--If the aliena

tion is not by a regis

tered deed--

(a) if an entry regarding

the alienation in the

been attested by a Revenue

Officer under the Punjab

Land Revenue Act, 1887, the

date on which the entry is

attested.

263

(1) (2) (3)

(b) if such entry has

not been attested,

the date on which

the alienee takes

physical posses-

sion of the whole

or part of the

property alienated

in pursuance of

such alienation.

the date on which

the alienation co-

mes to the know-

ledge of the

plaintiff.

(b) if such declaratory 3 years The date on which the

decree is obtained. right to sue accrues or

the date on which de-

claratory decree is ob-

tained, whichever is later

As the plaintiffs had already obtained a declaratory decree,

they had to, in order to be able to succeed, bring their

suits within three yers of the accrual of the right to sue

(which according to the well settled judicial opinion means

the accrual of the right to seek relief) viz. within three

years of the death of Kishan Singh when the line of Alia

Singh became extinct. They had to prove affirmatively that

the death of Kishan Singh took place within three years of

the institution of the suits. The contention of counsel for

the plaintiffs is, however, that Kishan Singh not having

been heard of for more, than seven years since August 15,

1945, a presumption of the factum or his death has to be

drawn at the expiration of seven years from that date in

terms of section 108 of the Evidence Act. We find it diffi-

cult to accept this contention. Granting that Kishan Singh

has to be presumed to be dead, it cannot be overlooked

that under section 108 of the Evidence Act, the precise time

of the death is not a matter of presumption but of evidence

and the onus of proving that the death took place at any

particular time within seven years lies upon the person who

claim a right for the establishment of which the proof of

that fact is essential. The plaintiffs had not only, there-

fore, to prove that Kishan Singh had not been heard of for a

period of seven years and was to be taken to be dead, but it

also lay heavily on them to prove the particular point of

time within seven years when Kishan Singh’s death occurred.

This they have miserably failed to prove. In the absence of

such proof, it cannot be held that the present suits had

been brought within three years of the accrual of the right

to sue. We are supported in this view by a catena of au-

thorities. In Nepean v. Doe D. Knight (1837) 2 M & W 894:

7L J Ex 335 Lord Denman delivering the judgment of the

Court observed :-

"The doctrine laid down is, that where a

person goes abroad, and is not heard of for

seven years, the law presumes the fact that

such person is dead, but not that he died at

the beginning or the end of any particular

period

264

during those seven years; that if it be.

important to anyone to establish the precise

time of such person’s death, he must do so by

evidence of some sort, to be laid before the

jury for that purpose, beyond the mere lapse

of seven years since such person was last

heard of. Such inconveniences may no doubt

arise, but they do not warrant us in laying

down a rule, that the party shall be presumed

to have died on the last day of the seven

years, which would manifestly be contrary to

the fact in almost all instances."

This case was followed by a Division Bench of the Bombay

High Court as far back as 1916 in Jayawant Jivanrao Desh-

pande v. Ramchandra Narayan Joshi (A.I.R. 1916 Bom. 300)

A similar view was taken by the Privy Council in

Lalchand Marwari v. Ramrup Gir (LIII I.A. 24: A.I.R. 1926

P.C. 9) where it was observed :-

"Under the Indian Evidence. Act, 1872,

s. 108, when the-Court has to determine the

date of the death of a person who has not been

heard of for a period of more than seven

years, there is no presumption that he died at

the end of the first seven years, or at any

particular date."

Another case in point is jiwan Singh v.

Kuar Reoti Singh & Anr. (A.I.R. 1930 All.

427), where it was held :-

"The presumption raised by section 108

is confined to the factum of death and not the

exact time when death may have occurred.

Where a party affirms that a certain person

died on or before a particular date, that fact

has to be established by positive evidence."

Similar view was expressed in Kottapalli

Venkateswarlu v. Kottapali Bupayya & Ors.

(A.I.R. 1957 A.P. 380). In Punjab & Ors.v.

Natha & Ors. (A.I.R. 1931 Lab. 582). a Full

Bench of the Lahore High Court observed :-

"Where a person has not been heard of

for seven years when a suit is instituted, s.

108 comes into operation and raises a presump-

tion that at the institution of the suit he

was dead, but no presumption arises as to the

date of his death, which has to be proved in

the same way as any other relevant fact in the

case."

Again in Ram Kali & Ors. v. Narain Singh

(A.I.R. 1934 Oudh 298 F.B.) it was laid down:

"If a person has not been heard of for

seven years, there is a presumption of law

that he is dead: but at what time within that

period he died is not a matter of presumption

but of evidence and the onus of proving that

the death took place at any particular time

within the seven years lies upon the person

who claims a right to the establishment of

which that fact is essential."

265

In the instant cases, assuming that Kishan Singh died

within seven years of the institution of the suits out of

which the present appeals have arisen, even then the benefit

of the section 14 cannot be allowed to the appellants. This

provision in so far as it is material for our purpose runs

as follows :-

"14(1). In computing the period of

limitation prescribed for any suit the time,

during which the plaintiff has been prosecut-

ing with due diligence another civil proceed-

ing, whether in a court of first instance or

in a Court of Appeal, against the defendant

shall be excluded, where the proceeding is

founded upon the same cause of action and is

prosecuted in good faith in a Court which,

from defect of jurisdiction, or other cause of

a like nature, is unable to entertain

it ............ "

It would be noticed that three important conditions have

to be satisfied before the section can be pressed into

service. These three conditions are--(1) that the plaintiff

must have prosecuted the earlier civil proceeding with due

diligence; (2) the former proceeding must have been prose-

cuted in good faith in a court which from defect of juris-

diction or other cause of a like nature was unable to enter-

tain it and (3) the earlier proceeding and the later pro-

ceeding must be based on the same cause of action.

Now the words "or other cause of a like nature" which

follow the words "defect of jurisdiction" in the above

quoted provision are very important. Their scope has to be

determined according to the rule of ejusdem generis. Ac-

cording to that rule, they take their colour from the pre-

ceding words "defect of jurisdiction" which means that the

defect must have been of an analogous character barring the

court from entertaining the previous suit. A Full Bench of

the Lahore High Court consisting of Hatties C.J., Abdur

Rahman, J and Mahajan J. (as he then was) expressed a simi-

lar view in Bhai Jai Kishan Singh v. People Bank of Northern

India (supra).

In the instant cases, it is not denied by the’ plaintiffs

that the Court which tried the previous suits was not pre-

cluded from entertaining them because of any defect of

jurisdiction. We have, therefore, only to see whether the

said court was unable to entertain the former suits on

account of any defect of an analogous character. Even a

most liberal approach to the question does not impel us to

hold that the court trying the earlier suits was unable to

entertain them on any ground analogous to the defect of

jurisdiction.In Dwarkanath Chakravarti v. Atul Chandra

Chakravarti (I.L.R. 46 Cal. 870) where the court trying the

previous suit had refused to entertain a claim for rent

because it was premature, it was held that in a subsequent

suit for the aforesaid rent, the plaintiff could not rely

upon the provisions of section 14(1) of the Limitation Act

and say that the time did not run against him while those

proceedings were being prosecuted. Again in Palla Pattabhi-

ramayya & Ors. v. Velaga Narayana Rao (A.I.R. 1960 A.P. 625)

it was held that the fact that the previous suit was dis-

missed as the plaintiff had no cause of action was not a

ground which was covered by section 14 (1).

266

Thus it could not be held that the court which tried the

previous suits but eventually threw them out as. premature

suffered from inability or incapacity to entertain the

suits on the ground of lack of jurisdiction or any other

defect of the like character. Accordingly the exclusion of

the period from December 18, 1945 to August 3, 1951 sought

by the appellants cannot be legitimately allowed to them

while computing the period of limitation.

There is also another factor which prevents us from

granting the benefit of section 14(1) of the Limitation Act

to the appellants. It would be seen that in the previous

suits, the plaintiffs had averted that the cause of action

accrued to them on the death of Kishan Singh which had

occurred on August 15, 1945. They have, however, as

already indicated by reference to the averments made in

paragraphs 5, 6, 8, 9, and 10 of the petition of plaint

based the present suits on a different cause of action. It

is, however, not necessary to dilate upon this aspect of the

matter in view of our categoric finding that the earlier

suits did not suffer from any defect of jurisdiction or any

other defect of the like character which could have preclud-

ed the court from entertaining them.

It is also significant that the protection of section

14(1) of the Limitation Act was not claimed by the plain-

tiffs either in the Trial Court or in the first appellate

court.

Assuming, therefore, that Kishan Singh died within seven

years of the institution of the suits. out of which the

present appeals have arisen even then the protection of

section 14(1) cannot be allowed to the appellants and. the

suits have to be dismissed as time barred in terms of sec-

tion 5 of the Punjab Limitation (Customs) Act, 1920, (Act 1

of 1920) which is reproduced below for facility of reference

"5. Dismissal of suits of the descrip-

tion specified in the act if instituted after

the period of limitation herein prescribed has

expired. Subject to the provisions con-

tained in sections 4 to. 25 (inclusive) of the

Indian Limitation Act 1903, and notwithstand-

ing anything to the contrary contained in the

first schedule of the said Act, every suit, of

any description specified in the schedule

annexed to this Act, instituted after the

period of limitation prescribed therefor in

the schedule shall be dismissed, although

limitation has not been set up as a defence."

As a result of the foregoing discussion, the appeals

fail and are hereby dismissed. In view, however, of the

circumstance of the case, the parties are left to pay and

bear their own costs in these appeals.

BEG, J.--The question before us is: Were the three

suits, the first instituted on 21st October, 1952, the

second on 18th December, 1952, and the third on 5th May,

1953, tried and heard together, cut of which the three

appeals before us arise, filed within time, and if they were

filed beyond time, whether the plaintiffs in each suit were

entitled to the benefit of Section 14 of the Limitation Act

267

Plaintiffs in the three suits instituted in circum-

stances explained fully by my learned brother Jaswant Singh,

included all those persons who could sue as reversioners of

Kishan Singh if it was proved that he was dead or presumed

to be dead; and, they are all appellants before us. It is

evident from a bare statement of the case set up in each of

the identically similar plaints in the suits now before us

that, as three previous suits filed by these very plaintiffs

in 1945 for the same reliefs had failed against the same

defendants for want of proof of date of death of Kishan

Singh, the suits now before us were based on somewhat dif-

ferent allegations setting up a new cause of action. Other-

wise obviously, they would have been barred by res judicata.

As the learned Single Judge, before whom the three cases now

before us first came up in the High Court, had pointed out,

the earlier suits had failed because they were held to. be

pre-mature so. far as the cause of action now before us is

concerned and for want of proof of the date of death of

Kishan Singh so far as the actual cause of action set up

there was concerned. We also indicated, quite clearly, how

the causes of action in the earlier and later sets of liti-

gation were quite different. and why the new cause of action

arose within three years before the filing of the suits.

Considerable confusion seems to have been caused by the

prolixity of pleadings in the case so that, although the

plaintiffs asserted clearly the accrual of a new cause of

action, with the aid of a presumption, they were saddled

with the responsibility to discharge another onus tied to

the proof of a particular date which had been abandoned by

them after their dismal failure in the earlier litigation to

prove the actual date of death of Kishan Singh who. had

disappeared. Could they fail again for the same reason

although the cause of action they set up is fresh and dif-

ferent and arose within three years before filing of the

suits ? That is the real question we have to answer.

Perhaps the way in which I look at the question and have

stated it makes. an answer in the negative unavoidable.

Hence, my inability, with great respect, to concur with

another view put forward by my learned brother Jaswant

Singh.

I think that the learned Single Judge, dealing with the

question of limitation in the High Court, had correctly

summarised the. whole position and found as follows even

without going into the question of burden of proof of date

of death of Kishan Singh:

"All the three sets of plaintiffs have

come up in second appeal to this Court and Mr.

M.L. Sethi has addressed a very persuasive

argument on the question of limitation which

in reality is now the only substantial matter

in dispute. He has pointedly brought to my

notice the anomalous and baffling situation

in which the plaintiffs have been placed.

According to the judgment of the High Court of

3rd August, 1951, it was found that the death

of Kishan Singh had not been proved. In other

words, Kishan Singh was deemed to have been

alive at the time when the High Court decree

was passed on 3rd of August, 1951. If that

position is accepted, as indeed it must, the

conclusion of the

268

Courts below, that Kishan Singh had been dead

seven years before the institution of the

present suits, cannot be sustained. To this

position there is the added complication of

the defendant’s own admission that Kishan

Singh was alive at the time when the statement

was made by their counsel Milkhi Ram on 27th

of April, 1953. I find myself unable to

assent to the proposition on which both the,

courts below have founded their conclusions

that suits must be. regarded as barred by time

as the date of death of Kishan Singh had not

been proved. The District Judge has arrived

at his conclusion because in the previous

suits it was asserted that Kishan Singh had

died on 15th of August, 1945. As the death of

Kishan Singh had not been proved, the suits

were dismissed up in the High Court being

premature. It passes my comprehension how it

can now be said that Kishan Singh died some-

time before 1945 and the suits having been

brought more than three years after his death

are now barred by statute. The previous suits

filed by the three different sets Of plain-

tiffs were founded on the allegation that

Kishan Singh had died in Ahmedabad some where

in August 1945. A good deal of oral and

documentary evidence was led in support of

Kishan Singh’s death. The conclusion of the

learned District Judge (Mr. Chhakan Lal) was

that the plaintiffs had not succeeded in

establishing the death of Kishan Singh and it

could not, there, be held that the line of

Alia had become extinct. In the judgment, in

second appeal, of Harnam Singh J., the only

question which, was discussed was whether the

death of Kishan Singh had been proved. It is

pertinent to observe’ that in the High Court

it was common ground between both the parties

that the: case did not fall under section 108

of the Indian Evidence Act. Like the District

Judge, Harnam Singh J.. discussed the oral and

documentary evidence, which had been adduced

by the parties and agreed with the finding of

the lower appellate Court. Till 3rd of Au-

gust, 1951, when the judgment (of the HC-in

the previous suits) was delivered. the. posi-

tion was that the death of Kishan Singh had

not been established".

It seems to me that the learned Single Judge had suffi-

ciently indicared that the cause of action in the previous

litigation was different from the one now before us inasmuch

as the facts now proved indisputably, showing that Kishan

Singh must be presumed to be dead, could not be and were not

set up in the. earlier suits. In 1945, this cause of action

had not accrued. As the learned Single Judge held, the

effect of the judgment in the formed suits was that those

suits were premature. This could not be said of the suits

now before us in appeal.

It is true that the learned Single Judge had thought

that, alternatively, Section 14 of the Limitation Act could

apply inasmuch as the causes of action in the previous

litigation as well as in the present litigation were identi-

cal. In so far as the learned Single Judge postulated

though for a limited purpose, an identity of causes of

action of the previous and the present sets of suits, the

assumption was inconsis-

269

tent with his own emphatically expressed opinion revealing

the difference in the causes of action. The plaints in the

suits before us set out the history of the whole litigation

and clearly set up a case founded on new facts, not in

existence at the time of the earlier litigation, and ex-

pressly state why the plaintiffs now rely on the presumption

of death of Kishan Singh.

The identically similar plaints of the plaintiffs now

before us were not based upon any assertion or plea of their

own dispossession. For such suits the period oil limitation

was given in Article 2 to the schedule of the Punjab Limita-

tion (Customs) Act of 1920. The provisions are set out in

the judgment of my learned brother Jaswant Singh. The

period of limitation for such suits is three years from "the

date on which right to sue accrues or the date on which

declaratory decree is obtained, whichever is later". If the

previous suits were dismissed, as it seems to me that they

were, on the ground inter alia, that they were premature,

the cause of action could only be said to have accrued after

their institution.

It seems to me that the learned District Judge, the

fianl Court of facts in the suits now before us, had failed

to determine the question whether Section 108 of the Evi-

dence Act could come to the aid of the plaintiffs on the

erroneous assumption that, in any case, the plaintiffs’

suits would be barred by time as the plaintiffs had not

proved when Kishan Singh had died. The learned District

Judge seemed to hold the view that not only would the plain-

tiffs’ suits be barred by limitation, because the plaintiffs

could not prove the actual date of Kishan Singh’s death, but

also that the presumption under section 108 itself will not

be available to a party which could not prove the date of

death of the person to be presumed to be dead. At any rate,

the learned District_ Judge was far from clear on the ques-

tion whether Section 108 would apply to the case. He re-

corded his conclusion as follows:

"So, it is clear from the above discussion

that the plaintiffs appellants have failed to

show that their suits are within time from the

date of the death of Kishan Singh. No doubt

the presumption is there that Kishan Singh is

not heard of for the last 7 years but the date

of death was very necessary to be proved and

this has not been done by any of the witness-

es".

If the date of death of Kishan Singh had to be proved by

the plaintiffs, no question of invoking the aid of a pre-

sumption to prove death could arise. Proof of death would

dispense with the need reply on any mere presumption of

death. The result of the District Judge’s failure was that

the Single Judge of the Punjab High Court had to record

essential findings of fact on this crucial question. of

availability of the presumption of death. These indicated,

beyond the shadow of doubt, that the plaintiffs were enti-

tled to the benefit of the presumption laid down by Section

108 of the Evidence Act. This meant that, on new facts

asserted and proved, Kishan Singh could be presumed to be

dead when the suits now before us were instituted in

270

1952 and 1953. And, this presumption of the death of Kishan

Singh having become available to the plaintiffs within three

years of the suits and not before, no occasion for applying

Section 14 Limitation Act could arise.

The defendants, while pleading the bar of limitation to

the suits had, quite inconsistently, also tried to suggest

that Kishan Singh was either alive or must be assumed to be

alive. The plaintiffs could not be expected, on their plea

that, proof of date of death of Kishan Singh being absent,

they were relying only on the presumption of death, to lead

evidence Of any date of death. All that could be reasonably

expected from them was to show that the presumption became

available to them within three years before the filing of

their suits. The learned Single Judge of the High Court

had, in my opinion correctly, recorded the following finding

which made the presumption of death of Kishan Singh avail-

able to the plaintiffs:

"The plain fact of the matter is that no

proof is forthcoming of Kishan Singh continued

existence since 1945. Since the judgment of

the High Court in 1951, where it was held that

the death of Kishan Singh had not been not

proved, 8 years have elapsed. There= can be

no. escape from the conclusion now that Kishan

Singh’s death must be presumed".

The learned Single Judge had also observed:

"The decision of the High Court in 1951

should provide a suitable ground for extension

of time under provisions of Section 14 of the

Indian Limitation Act. The whole basis of the

judgment of the Courts below, in my opinion,

is erroneous. It is not a requirement of

section 108 of the Indian Evidence Act that

the date of death of the person whose death is

presumed must be established. All that is

said is that if a person is not heard of for a

period of seven years, his death may be pre-

sumed. There is no presumption as to the time

of death at any particular time within that

period".

As I have already indicated, there was no need here to seek

the aid of the provisions of Section 14 Limitation Act.

In Mohd. Khalil Khan v. Mohboob Ali Mian,(1) it was laid

down: "A rough test, although not a conclusive one, as to

whether the cause of action in a subsequent suit is the same

as that in the former suit, is to see whether the same

evidence will sustain both suits, and regard should be had

to the allegations in the two suits, and not the facts found

by the Court in the former suit". On the facts of the cases

before us, we find the evidence sought to be given in the

previous suits was that Kishan Singh had died on a particu-

lar date (i.e. 15th. August, 1945), but, the evidence in the

subsequent suits (now before us for decision) was not that

he had died on a particular date but that he had not been

heard of from 5th August, 1945, up.to the time of the filing

of new suits. This evidence could not be given in the

previous suit’s. Hence, the above test is satisfied.

(1) A.I.R. 1949 P.C. 78, 86.

271

In Smt. Mahadevi v. Kaliji Birajman,(1) it was held

that, if certain additional facts had to be proved for the

success of the subsequent suit, the causes of action would

differ. It did not matter if there is a certain common

ground to be covered by the evidence in both sets of cases.

This test would also be satisfied in cases before us now

because the additional facts show that Kishan Singh had not

been heard of by those who would have otherwise heard of him

in the course of seven years. This evidence could not be

led at all in the previous suits as they were filed very

soon after the alleged date of death of Kishan Singh.

If causes of action differ from suit to suit, the accrual of

the cause action can also not be tied down to a particular

kind of fact such as the date of actual death of the holder

of the property. Once it is held that the causes of action

differ for purposes of their accrual, their accrual could

not be made to depend on facts of one type only. Facts

denoting their accrual must differ from case to case. Of

course, proof of date of actual death is conclusive. But,

where the basis of the right to sue is presumption of death

the date of accrual of the right is the date on which that

presumption matures.

I have set out above the reasoning which appeals to me

and makes the decision of this Court in India Electric

Works Ltd. v. James Mantosh & Anr.,(2) applicable to the

cases now before us. In that case, the appellant before

this Court was a defendant tenant in a suit for recovery of

damages with interest and costs. In a previous suit the

predecessor-in-interest of the plaintiff had sued the de-

fendant for ejectment, but the defendant had continued in

occupation of the premises as the suit was compromised. The

accommodation was requisitioned on 2nd February, 1945. After

the accommodation was released by the Govt. on 21st Novem-

ber, 1945, the plaintiff filed two suits against defendant

one for the recovery of damages upto 1st February, 1944, and

another for damage’s from 22nd November, 1945, upto the date

of recovery of possession although there was no suit for

possession. When the matter came up before the High Court

in appeal, the High Court disallowed the claim for future

mesne profits on the ground that it "was a pure money suit

and not a suit for recovery of possession of immovable

property and for mesne profits under Order 20, Rule 12,

Civil Procedure Code". The plaintiff then filed a third

suit on 5th November, 1956, for recovery of Rs.28,650/ as

damages with interest thereon for a period from 22nd Novem-

ber, 1948, to 5th November, 1956. The benefit of Section 14

of the Limitation Act was claimed for the amount claimed for

the period beyond three years. Two of the learned Judges of

this Court, Shah and Grover, JJ., held that, although the

claim for future mesne profits, not having been satisfied by

the money suit of 1948, in which the decree of the Trial

Court was Set aside on 30th June, 1955, by the High Court,

a fresh cause of action arose from 30th June, 1955, yet,

it was unnecessary to decide the case on that principle

because the Court was satisfied that, in any event, Sec-

tion 14(1) of the Limitation

(1) 1969 All L.J. 896. (2) [1971] (2) S.C.R. 397.

272

Act, which had to be construed liberally, would cover the

period for which the claim was said to be barred by limita-

tion. Though, the third learned Judge, Hegde, J., seemed to

be of the opinion that Section 24(1) of the Li,mitation Act

could not help the plaintiff, yet, following the decision of

the Judicial Committee in Mst. Ranee Surno Moyee v.

Shooshee Mokhee Burmonla & Ors. (1) which had governed later

decisions of the Privy Council and various High Courts a new

cause of action, arising within the period of limitation,

would , ensure to the benefit of the plaintiffs.

It seems to me that the lines on which the case of India

Electric Works (supra) was decided enable us to correctly

decide whether a new cause of action had accrued in favour

of the plaintiffs in the suits before us, which were filed

within three years of the accrual of this cause of action,

as well as on the question whether, if this be not the

correct position, Section 14(2) of the Limitation Act could

be invoked by plaintiffs. Indeed, the view accepted by the

three Judges of this Court, that it is enough to institute

proceedings within the prescribed period from the accrual of

the fresh cause of action, appears to me to provide the

common view we cannot reject. This view would apply if we

agree, as my learned brother Jaswant Singh does, that a

cause of action had arisen here.

In State of Madras v.V.P. Agencies & Anr.,(2) Das,

C..J., referred to various expositions of the meanings of

the term "cause of action", including that by Lord Watson,

in Mst. Chand Kour v. Partap Singh,(3) where we find (at p.

1310):

"Now the cause of action, has no rela-

tion whatever to the defence which may be set

up by the defendant, nor does it depend upon

the character of the relief prayed for by the

plaintiff. If refers entirely to the grounds

set forth in the plaint as the cause of ac-

tion, or, in other words, to the media upon

which the plaintiff asks the court to arrive

at a conclusion in his favour".

The expression "cause of action" has sometimes been

employed to convey the restricted idea of facts or circum-

stances which constitute either the infringement or the

basis of a right and no more. In a wider and more compre-

hensive sense, it has been used to denote the whole bundle

of material facts which a plaintiff must prove in order to

succeed. These are all those essential facts without the

proof of which the plaintiff must fail in his suit. Now,

whether we use the expression in the narrower or in the

wider sense, in the case before us, the death of Kishan

Singh was certainly an essential part of the cause of ac-

tion. It had to be proved to enable the plainttiffs to put

forward their claims to succeed at all. But, proof of the

date of death was not essential or indispensable for that

purpose. It could only become material in deciding whether

the right which had accrued had

(1)12 Moore’s I.A. 244. (2) A.I.R. 1960 S.C. 1309 at 1310.

(3) 15 Ind. App. 156.

273

been extinguished by the law of limitation. Both the nar-

rower and the wider sense of the term "cause of action"

would certainly include all those facts and circumstances on

the strength of which the plaintiffs urged that they were

entitled to the benefit of the obligatory presumption of law

contained in Section 108 of the Evidence Act. As these were

not available to the plaintiffs before the expiry of seven

years from 5th August, 1945, it does not seem to be possible

to urge that this cause_ of action had arisen more than

three years before the filing of the suits now before us.

Applying the tests stated above, the causes of action in the

earlier and later litigations would, in my opinion, be

materially different. We could only hold that no cause of.

action had arisen at all if we assume that Kishan Singh had

not died at all. And, how could we assume that without

disregarding Section 108 Evidence Act ? If we cannot do

that, the cause of action could only accrue when we could

presume that he is dead, And, the date of its accrual could

not possibly lie a day earlier than 7 years after 5th Au-

gust,1945, when Kishan Singh was last heard of.

As indicated above, the identity of the relief asked for

in the earlier and later suits does not matter. It also

does not matter that the defendant in both sets of suits

have. attempted to suggest that Kishan Singh is still alive.

It iS they who had asserted that the plaintiffs’ rights were

extinguished by the operation of the law of limitation.

Therefore, strictly speaking, it appears to me that it was

for the defendants to establish, if they could, that Kishan

Singh was either alive or had died more than three years

before the ’suits were filed. There is no proof of either

of these here, The presumption under Section 107 of the

Evidence Act could not. come to the aid of the defendants

when the plaintiffs had established facts necessary to raise

the presumption under Section 108 of the Evidence Act.

There seemed to be irrefutable evidence that, after a letter

of Kishan Singh, received at Ahmedabad on 5th August, 1945,

nothing had been beard or was known about him. Hence, the

plaintiffs relied on the presumption under Section 108

Evidence Act ’because ’they could not prove the actual date

of death which had a bearing only on the bar of limitation

set up by the defendants. As has been pointed out some-

times, the function of a presumption is to fill a gap in

evidence. In these circumstances, it seems to me that the

defendants should have been called upon to show, before

relying upon the bar of limitation, how the death of Kishan

Singh took place on a date. beyond three years of the filing

of the suit before the question of applying Section 14

Limitation Act could arise at all.

The plaintiffs could only be required to show the accru-

al of their cause of action within the prescribed period of

limitation. They had, obviously, discharged that burden. If

the "media", to use the term employed by Lord Watson, quoted

earlier, upon whiCh the plaintiffs rest their cases, are

different in the previous and subsequent litigations, the

causes of action are different, as held by ray learned

brother Jaswant Singh also. And, if the two causes of

action are different, each with a different date of

accrual--that being the basic-difference between the two

sets of suits--we have only to determine the date

19--1458SCI/76

274

of accrual of the second cause of action. If the alleged

date of death of Kishan Singh was the date of accrual of the

previous cause of action, the date of accrual of the second

could only be something other than this date of death of

Kishan Singh. It could not possibly be the same. And, that

other date of accrual could only be subsequent to 5th Au-

gust, 1945, because, as indicated above, it was held in the

previous suit that ,the suit was premature on the ground

that seven years since Kishan Singh was last heard of on 5th

August, 1945, had not elapsed then. Since the evidence was

that he was last heard of at Ahmedabad on 5th August, 1945,

the only possible date of accrual of the subsequent cause of

action here could be seven years after that (i.e. 6th Au-

gust, 1952). The suits before us were flied within three

years of that date. Therefore, I fail to see how the suits

before us could possibly be held to be barred by Limitation.

We must not forget that Article 2 of Schedule to the

Punjab Limitation (Customs) Act 1 of 1920, lays down that

limitation for a suit for possession, which applies to the

case before us, commenced from "the date on which the right

to sue accrues" and not from the date of death of the holder

of property. The term "fight to sue" must, I think, be

equated with "cause of action", unless the context indicates

otherwise. The choice of words used must be presumed to be

deliberate. I do not think that we can substitute "the date

of death" for the date of accrual of "the right to sue’. In

the Limitation Act, as well as in other statutes, the

accrual when intended to be tied to the date of some event,

is specified as the date of that event. Here, it is not so.

We cannot, without an obvious inconsistency with our find-

ings that the causes of action in the previous and subse-

quent limitations were different, hold that the date of

accrual in both sets of suits is one and the same, that is

to say, the actual date of death. Such a view could, I

think, be contrary also to the plaintiffs’ pleading where

the difference in the causes of action must be found. The

solution to the difficulty before us emerges automatically

if we answer two questions correctly: What was the differ-

ence between the two causes of action ? What is the effect

of that difference upon the date of accrual of the subse-

quent and different cause of action ?

It is well established that it is not in every suit for

possession that the commencement of date dispossession must

be established by the plaintiff. It is only in a suit for

possession, based on the allegation by the plaintiff of his

own dispossession, that the burden has been held to be

governed by Article 142 of the repealed Limitation Act (See

Ram Gharib v. Bindhiyachal(1), and the plaintiff is required

to prove the date of his dispossession within limitation.

Its equivalent, the present Article 64 of the Limitation Act

of 1963, places the position beyond the region of every

conceivable doubt.:

"64. For possession of Twelve years

The. date of

immovable property

dispossession.

based on previous

possession and not

on title, when the

plaintiff while in

possession of the

property has been

dispossessed.

(1) A.I.R. 1934 All. (ST.) 993.

275

Objects and Reasons

Articles 142 and 144 of the existing Act have

given rise to a good deal of confusion with

respect to suits for possession by owners of

property. Article 64 as proposed replaces Art.

142, but is restricted to suits based on

possessory title so that an owner of property

does not lose his right to the property

unless the defendant in possession is able to

prove adverse posesssion". (See: Chitaley &

Rao--the Limitatian Act 1903--Vo1. II).

There is no suggestion whatsoever in the suits before us

that the plaintiffs were ever in possession so that no ques-

tion of their dispossession could possibly arise. It was a

pure and simple suit for possession on the basis of title

against which the defendants had not even alleged adverse

possession. Hence, there was, it seems to me, no room here

for bringing in the actual date of death, constructively,

as the date of some presumed dispossession or adverse pos-

session which has not been asserted anywhere. As pointed

out earlier, the defendants seem to have cleverly drafted

theft pleadings so that a Division Bench of the High Court,

which had erroneously allowed the defendants’ appeals, had

been misled into placing a burden upon the plaintiffs

which, according to law, as I see it, could not rest there

at all. The Division Bench applied decisions on Section 14

of the Limitation Act when this provision could not, as

explained below, be invoked at all.

The plain and simple question which arose on the

pleadings was whether seven years had elapsed since Kishan

Singh was last heard of by those who would, in the natural

course of events, have heard from or about him if he was

alive, and if so, did this happen within three years before

the filing of the suits ? The plaintiffs have asserted and

proved that this period of seven years had elapsed. Accord-

ing to them, their cause of action matured within three

years of their suits. Even if, by some stretch of imagina-

tion, the concept of adverse possession of the defendants

were to be introduced in this litigation, when neither the

plaintiffs nor the defendants have pleaded it, it is abun-

dantly clear that the legal position is that the possession

of defendants could not conceivably be adverse to Kishan

Singh’s reversioners even before Kishan Singh could be

presumed to be dead. Indeed, the defendants had themselves

set up the plea that he must be still deemed to be alive.

On these pleadings, the plaintiff could only be required to

prove Kishan Singh’s death but not the date of his death or

the date of the plaintiff’s dispossession which can occur

only after a previous possession of the plaintiffs followed

by the adverse possession of the defendants. Neither cases

dealing with recovery of possession on the plaintiff’s

allegation of his own dispossession nor those where proof of

date of death was a necessary part of either the cause of

action or the plaintiff’s statutory duty, for showing that

the suit was within time, are really applicable here. We

have a simple case before us where the cause of action

seems to me to have clearly been shown to have arisen within

three years before the filing of the suits. Nevertheless,I

will deal here with some authorities which are relied upon

by my learned brother Jaswant Singh.

The first of these is: Nepean v. Deo D. Knight(1). Inthis

case, an action for ejectment was brought, apparently on an

allegation

(1) English Reports 150 Exchequer p. 1021.

276

of dispossession of the plaintiff by the defendants. It was

pointed out here that the terms of a statute, applicable in

the case, having done away with the doctrine of "adverse

possession", except in certain cases specially provided for,

the question of adverse possession was unimportant. It was,

however, held that there was a statutory duty cast upon the

plaintiff to bring his suit within twenty years of the

accrual of the right of entry. The date of this accrual,

therefore, became essential to prove as a statutory duty.

On the terms of statutory provisions to be construed and the

facts of the particular case, Denman C. J. said: (at p.

1029):

"It is true the law presumes that a

person shewn to be alive at a given time

remains alive until the contrary be shewn,

for which reason the onus of shewing the death

Matthew Knight lay in this case on the lessor

of the plaintiff. He has shewn the death by

proving the absence of Matthew Knight, and his

not having been heard of for seven years,

whence arises, at the end of those seven

years, another presumption of law, namely,

that he is not then alive; but the onus is

also cast on the lessor of the plaintiff of

shewing that he has commenced his action

within twenty years after his right of entry

accrued, that is, after the actual death of

Matthew Knight".

This was really a case in which it was not enough to invoke

the presumption of death, but, the right to sue itself

depended on commencing the suit within 20 years of the date

of accrual of the right to entry which was held to be the

actual date of death of Matthew Knight who had disappeared

In the case before us, I think that the accrual of the right

to sue arises only seven years after Kishan Singh was last

heard of. If Nepean’s case (supra) could or did lay down

anything applicable to the cases before us, I am unable,

with great respect, to accept it as correct law which we

could follow. In my opinion, the facts as well as the

applicable provisions of law in the case before us are very

different from those in Nepean’s case (supra) which could,

in any event, not be more than an authority of some persua-

sive value in this Court.

In Jaswant livanrao Deshpande v. Ramchandra Narayan

Joshi,(1) in a suit governed by Article 141 Limitation Act,

it was held (at p. 301):

"Art. 141 Lira. Act, is merely an exten-

sion of Art. 140,

with special reference to persons succeeding

to an estate as reversioners upon the cessa-

tion of the peculiar estate of a Hindu widow.

But the plaintiff’s case under each article

rests upon the same principle. The doctrine

of non-adverse possession does not obtain in

regard to such suits and the plaintiff suing

in ejectment must prove, whether it be that he

sues as a remainderman in the English sense or

as a reversioner in the Hindu sense, that he

sues within 12 years of the

(1) A.I.R. 1916 Bom. 300 @

277

estate failing into possession, and that onus

is in no way removed by any presumption which

can be drawn according to the terms of S.

108,Evidence Act. The exact point for the

purpose of Art. 140, and also, in our opinion,

of Art. 141, has been decided many years ago

in England soon after the passing of the

English Law of Limitation regarding Real

Property in Nepean v. Deod. Knight (1973) 2

M & W 894-7 L.J. Ex. 335".

It is evident that here the cause of action laid down by

the statute itself arises from actual date of death. This

case, like the previous one, turns on the special meaning of

the statutory provisions prescribing a person’s actual death

as the point of time from which the period of limitation is

to commence. In the cases before us the statute explicitly

makes a different provision. We are not concerned at all

here with anything more than an accrual of a right to sue

which must be shewn to arise within the prescribed period.

No question of any accrual of a right of re-entry or one

arising from adverse possession or the date on which such

rights could conceivably arise is before us at all.

In Lal Chand Marwari v. Mahant Ramrup Gir & Anr. (1) the

suit seems to have been based on an allegation by the plain-

tiff of his own dispossession by the defendant. Hence, it.

was governed by Article 142 of the former Limitation Act,

the equivalent of which is Article 64 of the Limitation Act

of 1963. It seems to me that Article 144 of the old Limita-

tion Act is mentioned by mistake in the body of the judgment

here. In any event, the statement of facts showed that the

plaintiff had pleaded his own dispossession, or, at least,

the plaint could be so construed as to imply that. Hence, a

case of this. type is distinguishable.

In Jiwan Singh v. Kaur Reoti Singh & Anr,(2) a decree in

a previous suit brought against a person alleged to be

insane as well as not heard of for more than seven years had

been assailed on several grounds: that, the defendant was

insane; that, the defendant was unheard of for more than

seven years, and, therefore, should have been deemed to be

dead; that, the decree was obtained by fraud. As the High

Court upheld the plea of fraud, it did not consider it

necessary to decide on other grounds. Nevertheless, it

pointed out, quite correctly, that the presumption under

Section 108 of the Evidence Act only enables the Court to

presume the factum of death but not the date of death. No

question of limitation arose at all in this case.

In Kottapalli Venkateswarlu v. Kottapalli’ Bapaya &

Ors,(3) reliance was placed, Inter alia, on Punjab v.

Natha,(4) which, in my opinion, was wrongly decided.

Venkateswarlu’s case (supra), however. arose on facts and

circumstances in which the proof of date of death was neces-

sary to determine as the question was whether a legatee had

(1) A.I.R. 1926 P.C. 9. (2) A.I.R. 1930 All. 427.

(3) A.I.R. 1957 AP. 380. (4) A.I.R. 1931 Lah. 582 (F.B.).

278

survived the testator. In such a case, proof of date of

death is necessarily a part of the cause of action.

In Ram Kali & Ors. v. Narain Singh,(1) it was held that:

(at s. 299-300):

"Before the plaintiff can succeed in

approving himself to be the nearest reversion-

ary heir, he must prove in sequence that

Harpal Singh and after him Pahalwan Singh and

after him Sheo Ghulam Singh and after him Kali

Singh predeceased Ram Lal. The exact date of

Ram Lal’s death is important from the point

of view of the success of the plaintiff’s

case, because it was only then that succession

opened out, and it is only by proving the

exact date of Ram Lal’s death that the plain-

tiff can succeed in establishing his claim to

be the nearest reversionary heir of Ram Lal".

This, in my opinion, is the type of case in which the date

of death is an essential part of the plaintiff’s cause of

action so that the failure to prove it would involve the

failure of the plaintiff’s suit. Incidentally, it may be

observed that this also seemed to be a case in which the

plaintiff appears to have come to the Court with a suit for

possession on the allegation of his own dispossession.

Hence, it became necessary for the plaintiff to prove the

date of commencement of the defendant’s adverse interest. It

seems to me that wherever the accrual of a right or com-

mencement of a period of limitation, within which a suit

must be shewn by the plaintiff to have been brought, can

only be established by proving the date of a person’s death

that duty must be discharged by the plaintiff or the suit

will fail. But, to carry the doctrine beyond that and to

lay down that the date of death must invariably be proved

whenever the question of limitation is raised in such cases

must result in stultifying or defeating legal rights and

wiping out the effects of a statutory presumption. An

accrual of a cause of action based on untraceability of the

owner cannot be said to depend at all on proof of either

actual death or the date of the actual death of the owner.

It accrues as soon as death can be presumed and not a day

earlier.

I may point out that the rule laid down in re Phene’s

Trusts(2), which has been repeatedly followed by the Privy

Council and by our. High Courts, was enunciated in the

circumstances of a case in which it was absolutely essential

for the success of the claim before the Court that a legatee

claimant must be shown to have survived a testator. It was

a case in which there was a competition between claimants

which could only be resolved by a decision of the question

as to who died first. It is in such circumstances that the

onus of proving the date of death also would properly and

squarely lie upon the plaintiff claimant. The general

principles were thus enunciated in this case(at p. 144):

"First: That the law presumes a person who

has not been heard of for seven years to be

dead, but in the absence

(1) A.I.R. 1934 Oudh 298 @ 289,300.

(2) 5 Chancery Appeal cases p. 139 @ 144.

279

of special circumstances draws no presumption

from that fact as to the particular period at

which he died. Secondly: That a person alive

at a certain period of time is, according to

the ordinary presumption of law, to be pre-

sumed to be alive at the expiration of any

reasonable period afterwards. And, thirdly:

That the onus of proving death at any partic-

ular period within the seven years lies with

the party alleging death at such particular

period".

It is neither a part of the case of any plaintiff before

us nor necessary for the success of his case to prove that

Kishan Singh died on a particular date or that. Kishan Singh

died before or after somebody else. I, therefore, fail to

see, with great respect, how the plaintiffs can be saddled

with the responsibility to prove this date in the suits now

before us. It was nobody’s case that Kishan Singh died long

ago and that the defendants have been in open hostile ad-

verse possession against Kishan Singh and whoever may be his

heirs or feversioners. In the earliest litigation, the

defendants claimed as transferees of the rights of Kishan

Singh. The declaratory decree restricted their rights to

the life time of Kishan Singh. Their rights could not

extend beyond the point of time when Kishan Singh must be

presumed to be dead. That is the farthest limit of their

rights. They knew this after the litigation which terminat-

ed in 1902. That is why, in the suit’s now before us, they

took up the alternative case, though rather obliquely, that

Kishan Singh must be or at least deemed to be alive, so that

they may benefit from the declaration in 1902 that their

rights were limited to the life-time of Kishan Singh.

If, even after litigating for such a long period, the

plaintiffs are still to be denied their rights to Kishan

Singh’s property, to which they were declared entitled to

succeed, they would be really deprived of the benefit of the

presumption under section 108 of the Evidence Act on the

ground that they could not prove the date of his death when

they have been asserting repeatedly that the basis of

their present claim is that although the actual date of

death of Kishan Singh cannot be proved, yet, he has not been

heard of for seven years and that they had to wait seven

years more for this claim to mature. That it could and did

mature in 1952 follows logically from the judgment of the

High Court in 1951 which is binding inter partes. The

plaintiffs are, in my opinion, on the actual basis of their

claims, entitled to succeed. That basis having emerged

within three years before the filing of the suits, their

suits could not possibly be barred by time. If the right to

sue had not been proved to have accrued at all, due to want

of proof of date of death of Kishan Singh, the suits could

perhaps, more logically be held to be still premature or

infructuous. But, I fail to see how, even on such a view, we

could hold them to be barred by time. If the cause of

action itself does not arise no question of the extinguish-

ment by the law of limitation could emerge.

If, for some reason, we could still hold that the plain-

tiffs’ claims were made beyond the period of Limitation. I

think that this would be a fit case in which Section 14(1)

of the Limitation Act could

280

come to the aid of the plaintiffs provided there was identi-

ty of issues to be tried. The previous suits did not fail

for want of jurisdiction. Nevertheless, the provision has to

be liberally construed as this Court has to be a period of

time, shown to-have elapsed since the expiry of the present

suits was certainly due to the fact that no Court could

decree the claim before the cause of action matured. This

was, certainly beyond the control of the plaintiffs. There-

fore, a cause of "like nature" to a defect of jurisdiction

seems to me to be there. Indeed, it could be urged that it

is a stronger ground in equity than a lack of jurisdiction

which can be foreseen with sufficient deligence.. It is far

more difficult to predict the outcome of a suit depending

largely on oral evidence. The defect revealed by the evi-

dence in he earlier litigation was that the suits did not

lie at all as they were "premature". This was, in my opin-

ion, a defect reasonably comparable to want of jurisdiction.

I, however, find it very difficult to attempt to apply

Section 14 Limitation Act to the cases before us for two

reasons. Firstly, there has to be a period of time, shown

to have elapsed since the expiry of the period of limita-

tion, which could be excluded under section 14. If the cause

of action does not accrue at all there is no point of time

from which any period of limitation could run. Hence, if no

cause of action could accrue at all unless and until the

date of actual death of Kishan Singh is established, there

could be no commencement of a period of limitation. If that

be the correct position, where is the question of excluding

any time in computing it ? The only possible point from

which limitation could start running here is the date on

which seven years expired from the date on which Kishan

Singh was last heard of. This was within three years before

filing of the suits as pointed out above. Secondly, Section

14 provides that the time to be excluded spent in proceed-

ings prosecuted in good faith must relate to "the same

matter" as is "in issue" in the subsequent proceeding. It

seems to me that the issue in the earlier litigation was

whether Kishan Singh was actually shown to have died on a

particular date. This was quite different from the issue

decided in the cases now before us. This is whether Kishan

Singh’s whereabouts had remained unknown for seven years

so that he could be presumed to be dead. I, therefore, rest

my judgment solely on the ground that, the causes of action

in the previous litigation and the litigation now before us

being different, and the subsequent cause of action having

arisen within three years before the filing of the suits

before us, the suits were not barred by limitation.

The Division Bench of the Punjab High Court had proceeded on

the obviously erroneous assumption that the learned Single

Judge had decided the appeals only by giving the appellants

the benefit of Section 14, sub. s (1) of the Limitation Act.

It had overlooked completely the very first ground of deci-

sion of the learned Single Judge and also the condition

imposed by the learned Judge on the application of Section

14 by. using the words: "if found necessary". The

learned Judge had held:

281

"Admittedly,. the whereabouts of Kishan

Singh are still not known and, in my opinion,

there can be no escape from the conclusion on

these facts that the death of Kishan Singh

must be presumed under Section 108 of the

Indian Evidence Act as he had not been heard

of for a period of seven years. The present

suits were brought between 21st of October,

1952 and 5th of May, 1953. The correct ap-

proach to reach a solution of the present

problem is to give allowance to the plain-

tiffs, if found necessary. for the period

which they spent in previous litigation that

is to say, from the years 1945 to 1951".

The Division Bench had thus completely ignored the

effect of the finding of a new cause of action arising

within three years before the filing of the plaintiffs

suits. In my opinion, this finding of the learned Single

Judge was enough to dispose of these appeals. And, as I

have pointed out above, question of either a time bar or its

removal by resorting to Section 14(1) Limitation Act postu-

lates that a point of time from which lirai, ration can run

has been ascertained. As that point, on the findings of

every Court, including this Court, could not be the date of

Kishan Singh’s death, which is unknown, the suits could

not possibly be dismissed on that ground. They could con-

ceivably be dismissed on the finding that the date of death

of Kishan Singh, being an indispensable part of the cause of

action, the plaints do not disclose a cause of action at

all, and, therefore, should have been rejected. But, the

defendants have not taken any such plea directly. Nor was

this argued on heir behalf.

For the reasons given above, I regret to have to re-

spectfully differ from the view adopted by my learned broth-

er Jaswant Singh. I am unable to accept an interpretation

of the relevant provision prescribing limitation which would

confine the accrual of a cause of action only to cases of

direct proof of death, on a particular date. Such a view

implies that suits based on a presumption of death are

devoid a cause of action which could support a suit by a

reversioner. I do not think that the provision we have to

interpret was meant to define or restrict a right of suit

or a cause of action in this fashion at all. The object of

a "statute of repose" is only to extinguish rights of the

indolent but not to demolish the causes of action of those

who have not been shewn lacking in vigilance in any way

whatsoever.

Consequently, I would allow these appeals, set aside the

judgment and decrees of the Division Bench of the High Court

and restore those of the learned Single Judge and leave

parties to bear their own costs throughout.

P.B.R. Appeals dis-

missed.

282