Tulsi Ram Kahan Chand vs Bhag Singh Sunder Singh and Others

Chopra, J.—Tulsi Appellant had obtained a money decree against Shams and in execution thereof he got 8 Kanals and 11 Marlas of land sold in his favour. The sale was confirmed on 2-1-1980 B.k. and Tulsi was put in possession of the land. Some time thereafter he had to file a suit against Shama and one Bhag Singh, who took forcible possession of the land. Shama died in 2002 Bk., during the pendency of the suit, and Achhra Singh and others were joined as his legal representatives.

The suit was ultimately decreed on 6-12-2005 B.k. and possession of the land was once again delivered to Tulsi. Achhra Singh and others, Respondents, then instituted the present suit for possession with the allegations that the land originally belonged to their collateral Rura, that the lather adopted Shama and they brought a suit challenging that adoption, that the suit ended in a compromise according to which one-half of Rura''s estate was given to Shama for his life, that Tulsi, by means of the auction-sale In his favour, could purchase no more than the right which Shama had in the land, and that or Shama''s death the land reverted to the Plaintiffs.

The suit as resisted by Tulsi on various grounds, including those of limitation, res judicata and estoppel. The trial Sub-Judge dismissed the suit. It was decreed by District Judge, Kapurthala, with the findings that the suit was not barred by time, re judicata or estoppel, that according to the compromise Shama got only a life Interest In the land and that the right that Tulsi acquired terminated on Shama''s death, with the result that the land revert ed to the Plaintiffs. Tulsi has now come In appeal against this decision of the learned District Judge.

The points urged in this appeal are: (1) the suit was barred by limitation, (2) the Plaintiffs had failed to prove that the suit land once belonged to Rura, (3) Shama was an absolute owner of the land and the compromise did not limit his rights or his life time.

As regards limitation, Shri Dalip Chand, learned Counsel for the Appellants, relies upon the Patiala Limitation (Custom) Act, 2000 Bk, and con tends that according to Arts. 1 and 2 of the Schedule, the suit ought to have been brought within six years of the sale in favour of TuIsi or within three years of Shama''s death.

Counsel, however, forgets that the present is not a suit for possession of ancestral immovable property which has been alienated, on the ground that the alienation is not binding on the Plaintiffs according to custom, The Plaintiffs do not come under custom and they do not contest the sale on the ground that Shama had no authority to alienate the land because it was ancestral qua the Plaintiffs.

The Patiala Limitation (Custom) Act con, therefore, have no application. This is in fact a suit based upon the terms of an agreement entered into between the collaterals of Rura and the latter''s adopted son Shama, Tile right claimed by the Plaintiffs accrued on Shama''s death and the suit having been brought within twelve years of his death was rightly held to be within time.

With respect to identity of the land, Chan an Singh Qanungo prepared sun proved a precept showing that the suit land (Khasra No. 2000 of the latest settlement) Is the same as field No. 3550, entered in the name of Rura in the settlement of 1938 B.k. The witness has given the comparative numbers at which the land was mentioned in the revenue records of the subsequent settlements. The evidence stands unrebutted. It is therefore, established that the land in dispute once belonged to Rura and that it formed subject-matter of the com promise.

The compromise on which the Plaintiffs rely is dated 7th Assauj, 1947 B.k. It was entered into in the suit brought by collaterals of Rura to set aside Shama''s adoption. The present Plaintiffs are the successors-in-interest, of those Plaintiffs. Rura''s entire holding comprised 21 Ghamanns 4 Kanals and 7 Marlas of agricultural land. Ex. PWD in a copy of the composition-deed, statements of the parties and the final order of the Court in the suit.

The terms of the composition were that half of this land passed on to Shama forthwith the other half was to be inherited by the Respondents ancestors (Plaintiffs in that suit) after the death of'' Shama and his wife Mt. Ram Devi, with the proviso that Mt. Rain Devi would succeed only to one-fourth of the entire holding and that too for her life, having no right of alienation. Statements of he parties were recorded and a decree in terms of the com promise was passed in favour of the Plaintiffs the same day viz. 7th Assauj, 1947 B.k.

There is nothing in the composition deed or the decree to restrict Shama''s right in the hold for life or to place any limitation on his right if a1ienation. Shri Puran Chand, learned Counsel f or the Respondents, places his reliance on the following phrase in the composition-deed: "Rahan wa bai ka kuchh akhtiar nahin hai" his content ion is that this stipulation related to Shama and that according to it Shama had no right to alienate the land which fell to his share by the compromise.

The sequence and the actual place where the phrase appears show that it relates to the right of Mt. Ram Devi in the land which she was to inherit on Rura''s death, and not those of Shama in the land that fell to his share at once. The deed leaves no doubt that he became full owner of the land on the very date of the compromise.

The above phrase has to be read with its pre ceding sentence which says: "If Mt. Ram Devi survive Rura, she would get only one-fourth of the entire land measuring 21 Ghamauns 4 Kanals and 7 Marlas for her life", It simply qualifies her right and is not, to, be read with the very first sentence of the agreement which acknowledges Shama to be the full proprietor of one-half of the land.

It is correct that in their joint statement Harsukh and Kahna, two of the Plaintiffs in that suit, stated: "Shama will not be entitled to sell the land falling to his share, but they shall have no objection if he alienates a part of it for any particular reason."

To somewhat similar effect is a joint statement of Rura and Shama, Shri Puran Chand contends that these statements clarify the contents of the composition deed and make the stipulation quoted above relate to the right of Shama in the land, In my view, the contention has no force. In the first instance, the law does not permit a joint statement of more than one person to be recorded. It cannot he regarded as the statement of either or any of them, and has to be discarded iii its entirety. Secondly, the statements did not form part of the corn promise on which the decree was based.

Any stipulation that did not find place in the composition-deed itself could not form part of the decree. For the purpose of interpretation also the statements are of no help, The statements go beyond and run contrary to the terms embodied in the'' deed. To quote another instance, according to the agreement Shama'' was to get half of the laud forth with, hut according to the joint statement of the Plaintiffs he too was to get the land on the death of Rura and his wife Ram Devi.

The statements could not vary or modify the terms of the deed and as a matter of fact they did not form part of the decree. No mention of any such restriction on Shama''s right was made in the mutation sanctioned in his favour or any other re venue record. Lastly, the statements do not maintain that the position of Shama was to be that of a life or that in no case he would have the right to alienate.

On the other hand, the statements recognise that Shama would have the right to alienate a part of the land for necessity, The land in dispute Is less than 1/10th of Shama''s share and that too was sold in execution 01'' a decree against him.

In any case, the stipulation did not amount to a condition, precedent or subsequent, to any grant. It was not a quality annexed to the estate and imposed by the grantor. At the most, it was simply a covenant between the two parties to the suit, by which either of them pledged himself to the other that something would or would not be done.

The non-performance or breach of the covenant will not affect the land, though it may give rise to an action in damages, Tulsi Appellant was not privy to the contract, nor has he been shown to have any knowledge of it. He purchased the land in a Court-sale in execution of his decree. He can not, therefore, be held to be bound by the agreement.

Moreover an agreement preventing alie(SIC)ation in perpetuity or for an indefinite period is opposed to public policy and would be invalid and unenforceable on the general principles of law. The compromise acknowledges full proprietary right of Shama to one-half of Rura''s land. The perpetual restriction On his power of alienation cannot be regarded as valid or binding on a bona fide purchaser for value. Looked from any angle, the compromise or any stipulation therein would not affect the right acquired, through a Court-sale in his favour, by Tulsi Appellant.

In the result, the appeal Is accepted with costs, the decree of the District Judge is set aside and that of the trial Court restored.