PETITIONER:
TEG SINGH AND OTHERS
Vs.
RESPONDENT:
CHARAN SINGH AND ANOTHER
DATE OF JUDGMENT23/03/1977
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION:
1977 AIR 1699 1977 SCR (3) 365
1977 SCC (2) 732
ACT
(i) Punjab Customs (Power to contest) Act, 1920 S. 7 as
amended by s. 3 of the Punjab Customs (Power to contest)
Amendment Act (Act 12) 1973--Construction and effect
of--(ii) Punjab Limitation (Custom) Act, 1 of 1920, S. 8
scope of.
HEADNOTE
S. 7 of the Punjab Customs (Power to Contest) Act, 1920
provided that no person shall contest any alienation of
non-ancestral immovable property on the ground that such
alienation is contrary to custom. S. 3 of the Amendment Act
12 of 1973 amended s. 7 with the .result that no challenge
could be made to the alienation of any immovable property,
whether ancestral or non-ancestral, on the ground that it is
contrary to custom.
A gift-deed was executed by one Mula, in favour of
appellant No. 13 Bhagwati Deyi, on December 3, 1964. Appel-
lants 1 to 12 claiming to be potential reversioners obtained
a decree on May 31, 1966 in a suit flied against the donor
and the donee for a declaration that under the Punjab Cus-
toms (Power to Contest) Act Z of 1920 the gift-deed was not
binding on them and that decree was confirmed in appeal on
October 16, 1967. On July 10, 1966, Mula adopted the re-
spondent. On March 11, 1970 appellant No. 13 executed in
favour of appellants 1 to 12,, a lease in respect of the
property which was the subject matter of the gift. Mula
died on August 23, 1971. On December 13, 1971, respondent
filed a suit for possession of certain properties including
the property which Mula had gifted to appellant No. 13. The
suit was decreed on January 20, 1971 and that decree was
confirmed in appeal by the District Court and the High
Court.
In appeal by special leave., the appellants contended
(i) In decreeing the suit the Courts below had over-looked
the relevant provisions of the Punjab Customs (Power to
Contest) Amendment Act, 1973 by virtue of which the legali-
ty of the gift made by Mula to appellant No. 13 could not be
contested and (ii) since the respondent was not entitled to
impeach the gift in favour of Bhagwati Devi, having been
adopted after the date of the gift, the decree obtained by
appellants 1 to 12 cannot enure for his benefit, under s. 8
of the Punjab Limitation (Custom) Act, of 1920.
Dismissing the appeal, the Court--
HELD: (1 ) That a declaratory decree obtained under the
Punjab Customs (Power to Contest) Act by a reversioner to
the effect that an alienation would not bind them after the.
alienor’s death, had the effect of restoring the property
alienated to the estate of the alienor and therefore, all
persons who are heirs to the deceased were entitled to
obtain possession of the alienated property. [367 E-F]
(ii) The decree obtained by appellants 1 to 12 on May
31, 1966 would enure for the benefit of all persons who are
entitled to a share in the property of the. deceased as it
existed at the moment of his death. Since Mula’s property
stood freed from the encumbrance of the, gift at the moment
of his death, respondent as the adopted son would be en-
tiled to the possession of the gifted property. [367 H,
368-A]
Giani Ram v. Ramji Lal (1969) 3 SCR 944, relied on to;
Chand Singh v. bid Kaur (1974) 1 PLR 226 approved.
(iii) It is true that, if it became necessary after the
amending Act of 1973 to contest the gift executed by Mula in
favour of Bhagwati Devi, s. 7 of the Act of 1920 would
operate as a bar to such a contest. But in the instant
case, the basis on which the respondent has asked for the
relief is that upon the death of Mula in 1971, the gift
ceased to be operative by reason of the decree passed in
suit No. 143/1965. He has not and indeed he need not have
contested the validity of the gift-deed since the question
was decided finally in the aforesaid suit. [367 B-D]
366
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 686 of 1976.
(Appeal by Special leave from the Judgment and Order
dated 13-2-1976 of,the Punjab and Haryana High Court in
R.S.A. No. 249 of 1976).
P.P. Juneja, for the appellants.
S.K. Mehta, K.R. Nagaraja and P.N. Puri, for respondent No.
1
The Judgment of the Court was delivered by
CHANDRACHUD, J. (1) One Mula executed a registered
gift deed in favour of appellant No. 13, Bhagwati Devi, on
December 3, 1964. On April 29, 1965, appellants 1 to’12
claiming to be potential reversioners filed Suit No. 143 of
1965 against the donor and the donee for a declaration that
under the Punjab Custom (Power to Contest) Act, 1920, the
gift-deed was not binding on them. The suit was decreed by
the trial court on May 31, 1966 and that decree was con-
firmed in appeal on October 16, 1967.
(2) In between, on July 10, 1966 Mula adopted the re-
spondent. On March 11, 1970, appellant No. 13 executed in
favour of appellants 1 to 12 a lease in respect of the
property which was the subject matter of the. gift. Mula
died on August 28, 1971.
(3) On December 13, 1971 respondent filed the present
suit against the appellants for possession of certain
properties including the property which Mula had gifted to
appellant No. 13. The suit was decreed by the trial court
on January 29, 1971 and the decree was confirmed in appeal
by the District Court and the High Court.
(4) On June 3, 1976 appellants filed a special leave
petition in this Court challenging the High Court judgment.
They raised, inter alia, a new contention (ground No. B)
that in decreeing the suit, the courts below had overlooked
the relevant provisions of the Punjab Customs (Power to
Contest). Amendment Act of 1973, by virtue of which the
legality of the gift made by Mula in favour of Bhagwati Devi
could not be contested. On June 11, 1976 this Court granted
special leave to the appellants limited to the aforesaid
Ground (B) of the special leave petition.
(5) We have heard an interesting argument from Mr.
Juneja, who appears on behalf of the appellants, as regards
the true construction and effect of the Punjab Customs
(Power to Contest) Act, 1920, as amended in 1973, but we are
of the opinion that the argument lacks basis and cannot,
therefore, be accepted. The contention, sought to be
raised for the first time by the learned counsel, is founded
on the assumption that by reason of the Amendment Act of
1973, the gift-deed executed by Mula cannot be challenged by
the respondent. The assumption on which the argument is
founded is fallacious, because the respondent does not seek
by his plaint, as indeed he need not have sought, to chal-
lenge the gift-deed executed by Mula in favour of Bhagwati
Devi. That gift was challenged by appellants 1
367
to 12 in Suit No. 143 of 1965, and they succeeded in obtain-
ing a declaration in that suit that the gift was not binding
on the reversioners. That decree became final, with the
result that as on August 28, 1971, when Mula-died, the
property which he had sought to gift away to Bhagwati Devi,
was free from the encumbrance of the purported gift. By the
present suit, the respondent merely asks for possession of
the property in respect of which Mula had executed the deed
of gift. The basis on which he has asked for that relief is
that upon the death of Mula in 1971, the gift ceased to be
operative by reason of the decree passed in Suit No. 143 of
1965. It seems to us plain that he has not and he need not
have contested the validity of the gift-deed since that
question was decided finally in the aforesaid suit.
(6) Section 7 of the Punjab Custom .(Power to Con-
test) Act, 1920 provided initially that no person shall
contest any alienation of non-ancestral immovable property
on the ground that such alienation is contrary to custom.
This section was amended by s. 3 of the Punjab Custom
(Power to Contest) Amendment Act, 12 of 1973, as a result of
which no challenge could be made to the alienation of any
immovable property, whether ancestral or non-ancestral, on
the ground that it is contrary to custom. It is, therefore,
true that if it became necessary after the Amending Act of
1973 to contest the gift executed by Mula in favour of
Bhagwati Devi, s. 7 of the Act of 1920 would operate as a
bar to such a contest. However, as we have stated earlier,
it was not necessary for the respondent, in view of the
decree passed in suit No. 143 of 1965, to contest the valid-
ity of the gift.
(7) The decision of this Court in Giani Ram v. Ramji
Lal(1) may, with advantage be referred to on this point.
Under the customary law of the Punjab, the wife and daugh-
ters of a holder of ancestral property could not sue to
obtain a declaration that the allegation of ancestral
property will not bind the reversioners after the death of
the alienor. But the reversioner who was entitled to chal-
lenge that alienation could obtain a declaratory decree that
the alienation will not bind the reversioners after the
alienor’s death. It was held by this Court that such a
declaratory decree had the effect of restoring the property
alienated to the estate of the alienor and therefore all
persons, including the wife and the daughters of the de-
ceased, were entitled to the benefit of that restoration.
Since the property alienated had reverted to the estate of
the alienor at the point of his death, the widow and daugh-
ters, who also became heirs along with the sons under the
Hindu Succession Act, 1956 were held entitled to obtain
possession of the ancestral property. Mr. Juneja attempted
to get over the effect of this decision by invoking the
provisions of s. 8 of the Punjab Limitation (Custom) Act, 1
of 1920, which provides that when a person obtains a decree
declaring that an alienation of ancestral immovable property
is not binding on him, according to. custom, the decree
shall enure for the benefit of all persons entitled to
impeach the alienation. Counsel argues that since the
respondent was not entitled to impeach the gift in favour of
Bhagwati Devi, having been adopted after the date of the
gift, the decree obtained by appellants 1 to 12 cannot
ensure for his benefit. The short answer
(1) [1969] (3) S.C.R. 944.
9---436 SCI/77
368
to this contention is that the decree would ensure for the
benefit of all persons who are enitled to a share in the
property of the deceased as it existed at the moment of his
death. Since Mula’s property stood freed from the encum-
brance of the gift at the moment of his death, respondent as
the adopted son would be entitled to the possession of the
gifted property.
(8) Another facet of the same question can be seen in
Chand Singh v. Ind Kaur.(1) A learned Single JUdge of the
Punjab and Haryana High Court held therein that though a
suit to contest, under the customary law, an alienation of
immovable property may not lie after the coming into force
of the Amending Act of 1973, a declaratory decree already
obtained by a reversioner would continue to be operative as
the Amending Act does not render such a decree a nullity.
(9) There is thus no substance in the contention raised
by the appellants and their appeal must fail. Appellants 1
to 12 shall pay the respondent’s ’costs of the appeal.
S.R. Appeal dismissed.
(1) (1974) 1 P.L.R. 226.
369