Harnam Singh and another vs Hira Singh and others

Mehar Singh, J.—This is a revision from the appellate decree, dated 26-5-1951, of the Subordinate Judge First Class at Bamala, which confirms the decree, dated 29-12-2006 Bk, of the Subordinate Judge Third Class at Barnala, dismissing the suit of the plaintiffs on the sole ground that the Civil Court has no jurisdiction to try the claim and suit of the plaintiffs.

Bakhtawar Singh of Chhiniwal was convicted of murder, sentenced to death and a fine of Rs. 500/- and hanged. His land measuring 4 bighas and 4 biswas was sold on 22-5-2000 Bk (7-9-1943) by the Collector for realization of the amount of fine imposed upon him. The purchaser was Hira Singh defendant.

The plaintiffs, Harnam Singh and Banal Singh, claim that they are reversionary of Bakhtawar Singh deceased and as the land is ancestral qua them and the deceased so after the death of Bakhtawar Singh they are entitled to possession of it under Customary Law. The main defendants to the suit are Hira Singh purchaser and the State of Pepsu.

A number of defenses have been taken by them but the one defence material for the purposes of the decision of this revision is that the Civil Court has no jurisdiction to entertain and try the claim and suit of the plaintiffs.

The Courts below have concurred in finding in favour of the defendants upon this defence and have dismissed the suit. The plaintiffs have come up in revision to question the correctness of the decision of the Courts below.

In the trial Court practically no evidence has been led upon the facts alleged by the plaintiffs, so far the purposes of the decision of the question of jurisdiction the facts as alleged by the plaintiffs will be assumed as such, in other words, the decision proceeds on the allegations of the plaintiffs that they are reversionary of Bakhtawar Singh deceased and the land is ancestral qua them and the deceased of course at the trial it will still be for the plaintiffs to establish those facts.

The section of the Penal Code bearing on the question of the liability of the property of an offender for the fine imposed upon him is S. 70, which provides that-

The death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts.

What has to be seen is whether after the death of Bakhtawar Singh the ancestral land left by him is legally liable for his debts? The answer is provided by a Pull Bench decision of the Punjab Chief Court in - ''Jagdeep Singh v. Bawa Narain Singh'', 4 Pun Re 1913 (FB) (A), in which it has been held that

where a male proprietor, governed by customary rules, has contracted a just debt and dies leaving ancestral landed property, such property is not liable in the hands of the next holder in respect of such debts, unless the debts had been expressly charged on the property.

There is no question of the fine imposed upon Bakhtawar Singh deceased having been charged upon the ancestral landed property left by him. So that the ancestral landed property left by him is not liable in the hands of the plaintiffs in respect of the amount of fine imposed upon Bakhtawar Singh deceased because such property is not liable in their hands for the debts of Bakhtawar Singh deceased.

The question also came pointedly before another Pull Bench of the Punjab Chief Court in - ''Sadhu Singh v. Secretary of State'', 18 Pun Re 1908 (FB) (B), and the majority of the learned Judges held that where ancestral immoveable property held by a person subject to Punjab Customary Law is attached and sold by order of a Criminal Court under S. 88, Criminal P.C. the sale conveys the life-interest of that person only and does not extinguish the right of inheritance after his death of his male lineal descendants or of his collaterals descended from the original holder of the property. It is pertinent to refer to the conclusion reached by Clark C.J., who observes:

The conclusion that I arrive at is that the reversionary has such definite interest in the ancestral property, that the owner in possession cannot by his crime or absconding cause that interest to be forfeited, and only his life interest can be forfeited.

The learned Chief Justice then refers to a passage from Mayne''s Criminal Law of India, at page 26, in the commentary under S. 61, and in that passage appear the following remarks of the learned author:

It is to be observed too, that forfeiture under the Code has not the effect of corrupting the blood and extinguishing its power of transmitting inheritable rights. The moment the sentence has expired, the strain of inheritance flows on unimpeded. It is only the personal rights of the convict which are transferred to Government by a sort of statutory conveyance, but I conceive that Government Lakes nothing which he could not have assigned away.

It follows that in realization of fine when the ancestral property of a convict is put to sale what is transferred to the Government, or rather to the purchaser through the Government, are the personal rights of the convict in the property and nothing which he could not have assigned away. In the case of ancestral immovable property the present holder according to Customary Law cannot transfer such property except for necessity and such a statutory conveyance as is referred to by the learned author cannot be taken to have been made by a convict for necessity.

Thus upon sale of the ancestral land in this case what passed to the Government, or rather through it to Hira Singh defendant, were only the personal rights, that is the life-interest, of Bakhtawar Singh deceased in it and nothing more. The Full Bench case has been followed in - ''Niamat Ali v. Secretary of State''. AIR, 1915 Lah 12 (C): ''Ghanaya v. Hazara Singh'', AIR 1922 Lah 224 (2) (D), and AIR 1925 629 (Lahore)

Indeed the learned Advocate-General, who has appeared for the defendant, has not contested the soundness of the legal position. The land in suit, upon the allegations of the plaintiffs, being ancestral property left by Bakhtawar Singh deceased, what could be sold in realization of fine imposed upon Bakhtawar Singh deceased was his life-interest in that property, and upon his death that property would pass by inheritance to his next reversionary heir, who the plaintiffs claim to be.

In the Courts below an argument founded on the provisions in the Farman-i-Shahi, No. 3 of January 2, 1940, has prevailed that the Civil Court has no jurisdiction to try the claim and suit of the plaintiffs. The learned Advocate-General has been only half-hearted in supporting this argument. The part of the Farman-i-Shahi material for the purposes of the decision of this case is-

Now therefore, we are hereby pleased to order that henceforth, notwithstanding any Hidayat or Rule of procedure to the contrary, suits by private individuals against the State, or any State Officer in respect of any act purporting to be done by such State Officer in his official capacity shall be maintainable subject, however, to the reservation that no suit shall be instituted by any private individual against the State or any State Officer in respect of any act which may have been done or intended to have been done in good faith, or, which may have been done in pursuance of the provisions of any enactment Hidayat, Ijlas-i-Khas order, or rules and regulations framed by a competent authority or in respect of which remedy may be available to such individual through the executive authority and, specially in respect of the causes of action arising with reference to:

(1) An Act of State.

(2) State property, Jagirs and other grants.

(3) Rights to the offices connected with religious or charitable institutions under State control.

(4) Dismissal from State service.

The Learned Counsel on both sides agree that this case does not fall within the ambit of any of the four special items listed in the Farman-i-Shahi as above. The first part of the Farman-i-Shahi reiterates the general rule that a private individual can maintain a suit against the State or any State Officer in respect of any thing purporting to be done by such State Officer, in his official capacity, and the second part provides three exceptions or reservations to that general rule.

Those exceptions and reservations are that no suit shall be instituted by any private individual against the State or any officer of the State in respect of any act:

(a) which may have been done or intended to have been done in good faith, or,

(b) which may have been done in pursuance of the provisions of any enactment, Hidayat, Ijlas-i-Khas order, or rules and regulations framed by a competent authority, or,

(c) in respect of which remedy may be available to such individual through the executive authority.

It is nobody''s case that the plaintiffs have a remedy under the third exception or reservation and indeed the learned Advocate-General said as much that they have no such remedy. In so far as exceptions or reservations (a) and (b) are concerned the position on behalf of the plaintiffs, at this stage, is that, assuming for the sake of argument that the act of the Collector in putting to sale the land of Bakhtawar Singh deceased was done in good faith and also in pursuance of a provision of law, what the Collector could sell under the law was nothing more than the life interest of Bakhtawar Singh deceased in the land.

He did not, and could not, sell their interest in that land, and so, in so far as their interest in that land is concerned, there is no question of the Collector having done anything in good faith or in pursuance of a provision of law, the fact being that lie has done nothing as regards then-interest in the land.

It has already been pointed out that the personal rights or the life interest of Bakhtawar Singh deceased in the ancestral land came to an end with his death and after his death the ancestral land must devolve upon the next reversionary heir according to Customary law unencumbered and unobstructed by any consequences because of any crime committed by Bakhatwar Singh deceased.

Section 70 of the Penal Code also provides that property of a deceased convict is available for realization of fine only when legally liable for his debts after his death. The Collector could realize the fine from the land of Bakhatwar Singh deceased which was legally liable for his debts. The amount of the fine could not be realized from his ancestral property devolving, upon his death, upon the plaintiffs.

What the plaintiffs pray for in their suit is possession of the land in pursuance of their right of inheritance to which right the liability of Bakhtawar Singh deceased to pay fine cannot be fastened under Customary Law. The Collector, therefore, could not under the law effect sale of the rights of the plaintiffs in the land and indeed he has not purported to de so.

All that he could do was to sell the rights of the deceased convict in it The plaintiffs have no objection to the sale of the rights of the deceased convict, but what they claim is the enforcement of their own rights, which obviously, have not been sold by the Collector. It follows that neither of the exceptions or reservations (a) and (b) as above apply to this case.

The jurisdiction of the Civil Court to entertain and try the claim and suit of the plaintiffs 1 is thus not barred by any provision in the Farman-i-Shahi.

In the view taken, the revision petition succeeds and the decree of the Court below is set aside. The suit is remitted to the trial Court for trial according to law. Costs in this revision will abide the event. The parties, through their counsel, have been directed to appear in the trial Court on 8-8-1955.

Gurnam Singh J.

I agree.