PARAS RAM Vs. KEHAR SINGH

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the Additional District Judge, Ludhiana, dated March 27, 1963.

(2.) The facts giving rise to the present litigation are that Kishan Singh was the last male-holder of the property in dispute who exchanged the same with Paras Ram, defendant for some land and Rs. 2,000/. The plaintiff who is a collateral of Kishan Singh deceased instituted the usual declaratory suit challenging the exchange on the ground that the property in dispute was the ancestral property, that the exchange was without consideration and necessity and that the same will not affect his reversionary rights. The matter went up to the High Court in which the plaintiff was given a declaration on February 13, 1933, that the exchange would not affect his reversionary rights after the death of the alienor and that if the alience paid the amount of Rs. 400/- during the life time of Kishan Singh alienor of the plaintiff, the alienee shall have a charge to that extent on the property in dispute. It is an admitted case of the parties that the defendant-alienee did not pay Rs. 400/. Kishan Singh died on April 13, 1941, leaving behind his widow, Shrimati Bhagwanti. She died in the year 1960. Kehar Singh plaintiff, instituted a suit for possession of the land in dispute against the defendant on the basis of the declaratory decree, dated February 13, 1933. The suit was dismissed by the trial Court. The plaintiff went up in appeal before the District Judge who reversed the decree of the trial Court and decreed the suit. The defendant having felt aggrieved from the judgment and decree of the first appellate Court, has come up in appeal to this Court.

(3.) The learned counsel for the appellant argues that the coming into force of the Punjab Custom (Power to Contest) Amendment Act, 1973 (hereinafter referred to as the Amending Act), Section 6 of the Punjab Custom (Power to Contest) Act, 1920 (hereinafter referred to as the Principal Act) has been omitted and Section 7 has been amended by which a right to contest an alienation regarding ancestral property has been taken away. He submits that the reversioners in whose favour a decree for declaration has been granted, that the alienation of a male proprietor will not affect their reversionary rights, get right to institute a suit for possession after the death of the alienor. He further contends that the effect of declaration is that the nearest reversioners become entitled to get the property when the succession opens. According to the learned counsel, the reversioners have also to file a suit for possession after the death of alienor, otherwise the alienee continues to remain in possession as owner of that property. He also states that by virtue of a decree, only an inchoate right is created in the body of the reversioners as the reversioners who got the declaration may not succeed to the property at all after the death of the alienor, inspire of the decree. He further submits that the respondent admittedly could not challenge the alienation after coming into force of the Amending Act as that right had been taken away by it. In the circumstances, Mr. Jawanda states that if, on the date of passing the decree in a suit for possession, the reversioners have got no right to challenge the alienation, the suit for possession is liable to be dismissed. He has placed reliance on Jagat Singh and others v. Teja Singh and others, 1970 2 ILR(P&H) 369, where in it is observed as follows :-