BABU Vs. GANESHA ETC

JUDGEMENT

(1.) The plaintiff, claiming to be the sister's son of Jiwa, filed a suit, out of which the present appeal has arisen, for possession of one-half share of the land and a house described h the plaint against Babu defendant and Amar Chand and Kartara, collaterals of Jiwa. The suit was filed in 1963 and in the plaint it was stated that Jiwa had died issueless about 40 years prior to the date of the institution of the suit. His widow, Smt. Bisso succeeded him. She acquired widow's estate in the property left by her husband, that is, she was to enjoy the property till her death. She made a gift of the property in suit in favour of the father of Babu defendant in 1940. Amar Chand and Kartara filed a suit for a declaration that the gift made by Smt. Bisso in favour of Babu's father would not affect their reversionary rights after her death. They were at that time the reversioners of Jiwa and entitled to challenge the alienation made by Smt. Bisso. Their suit was decreed on July 2, 1941. Smt. Bisso died on November 22, 1958, after the Hindu Succession Act had come into force on June 17, 1956. The plaintiff claimed the property in suit as heir of Smt. Bisso. It may be noted here that the plaintiff was not an heir or reversioner of Jiwa and was not entitled to challenge the alienation made by Smt. Bisso, before the Hindu Succession Act came into force. The plaintiff, as sister's son of Jiwa, became an heir to Jiwa and his widow only after the coming into force of the Hindu Succession Act. Prior thereto, Amar Chand and Kartara were reversioners entitled to succeed to the estate of Smt. Bisso. The suit was resisted by Babu defendant and the learned trial Court framed the following issues :-

(2.) Before the learned Additional District Judge, only issues No. 1 and 5 were contested. Before me, the learned counsel for the appellant has confined himself only to the decision of issue No. 1 which, in his submission, has been wrongly decided by the Courts below.

(3.) The argument of the learned counsel for the appellant is that a declaratory decree having been obtained by the reversioners in 1941, any suit for possession of the alienated property could be filed within three years of the death of Smt. Bisso, in accordance with Article 2 in the Schedule to the Punjab Limitation (Custom) Act, 1920. The suit having been filed after the expiry of three years of the death of Smt. Bisso was barred by time. Smt. Bisso had died on November 22, 1958, while the suit was filed on October 14, 1963. The question for determination is whether Article 2 in the Schedule referred to above applies to this case or not. According to Section 6 of the Punjab Custom (Power to Contest) Act, 1920, the alienation made by Smt. Bisso could only be contested by a person who had descended in male lineal descent from the great-great-grandfather of Jiwa. The plaintiff, being the sister's son of Jiwa, did not answer that description and, therefore, could not file the suit challenging the gift made by Smt. Bisso. After the coming into force of the Hindu Succession Act, he could take advantage of the decree obtained by the reversioners during the lifetime of Smt. Bisso, as has been held by their Lordships of the Supreme Court in Giasi Ram and Others v. Ramji Lal and Others,1969 PunLR 996. But the right of the plaintiff to obtain possession of that estate was not confined to the suit being filed on the basis of that declaratory decree. Ignoring that decree, the plaintiff could file the suit for possession of the estate left by Smt. Bisso as her heir. That suit would have been governed by Article 141 of the Limitation Act, 1908 and the cause of action for that suit arose only on the death of Smt. Bisso. The learned counsel for the appellant submits that Article 141 only applies to a suit by a reversioner and not to a suit by an heir. I, however, do not find any justification in this submission. Article 141 provides for a suit by a Hindu or Muhammadan entitled to the possession of immovable property on the death of a Hindu or Muhammadan female. The words used in this Article are "like suit" and, according to the learned counsel for the appellant, like suit has reference to the kind of suit mentioned in Article 140. That Article prescribes the period of limitation as twelve years for a suit by a remainderman, a reversioner (other than a landlord) or a devisee, for possession of immovable property. In my opinion, "like suit" means suit for possession of immovable property and the word "reversioner" in this Article also means the heir entitled to the possession, on the death of a person. In any case, whichever Article applies, the period of limitation for obtaining possession of immovable property on the basis of title is twelve years from the date the lawful heir is deprived of the possession. In the present case, the plaintiff shall be deemed to have been deprived of the possession on the date of the death of Smt. Bisso. From that date, the possession of Babu defendant became adverse to the plaintiff. Prior thereto, Babu and his father had permissive possession of the land in suit under the gift made by Smt. Bisso and the possession of Babu and his father during the lifetime of Smt. Bisso could not be said to have been adverse to the heirs of Smt. Bisso who acquired the right to the property only after her death and had no control over it during her lifetime.