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P L D 1958 (W. P.) Lahore 936

 

Before B. Z. Kaikaus and Akhlaque Husain, JJ

 

HAKMAN and others‑Defendants‑Appellants

 

versus

 

Mst. SATTO‑Plaintiff-Respondent

 

Civil Regular First Appeal No. 111 of 1952, decided on 27th March 1958, from the decree of the Court of Salah‑ud‑Din Hanif, Senior Civil Judge, Multan, dated the 15th November 1952.

 

P. Mamabi v. Acharath Parakat A I R 1916 Mad. 743 ; M. Basavayya v. Majoti Bapana Rao Sowcar A I R 1930 Mad. 173 ; Swami Kone v. Sankaravadia A I R 1936 Mad. 804 ; O. RM. O. M. Sp. Firm v. Nagappa A I R 1941‑ P C 1 and Mst. Balo v. Mst. Koklan A I R 1930 P C 270 ref.

 

Siraj-ud‑Din Ahmad for Appellants.

 

Muhammad Amin Khan and Noor Ahmad for Respondents.

 

Dates of hearing : 18th, 19th, 25th, 26th and 27th March 1958.

 

JUDGMENT

 

AKHLAQUE HUSAIN, J.‑This is an appeal against the judgment and decree passed by Mr. Salah‑ud‑Din Hanif, Senior Civil Judge, Multan; decreeing the suit of the plaintiff‑respondent Mst. Satto for possession of some agricultural land situate in Tahsil Kabirwala, District Multan, The property in dispute was owned by one Dalel, an Aujala Jat of village Bahadurpur, District Multan. He died on the 19th of September 1901, leaving surviving him two daughters, the plaintiff‑respondent Mst. Satto and Mst. Daulan, from one Mst, Sabin. On Dalel’s death his entire land was mutated in the names of his two daughters Mst. Daulan (or Mst. Daulat) and Mst. Satio on the 28th of February 1902. Mst. Daulan died in 1904 and her share in Dalel’s property was also mutated in the name of Mgt. Satto. Sometimes afterward a son Allahyar defendant‑respondent lqo. 3 was born to fist, Sabin. In 1911 Mst. Sabin managed to have the property in suit mutated in the name of her son Allahyar on, the basis of an alleged gift to him from Mst. Satto, who was admittedly a minor at the time and could not have been more than 12 or 13 years of age. It has nowhere been clearly alleged by either party as to whether this mutation in favour of Allahyar related to the entire agricultural land left by Dalel ; but it appears from the documentary evidence on the record (e.g. Exh. P. 7) that it did.

 

On the 21st of May. 1912, the reversioners of Dalel brought the usual declaratory suit against Mst. Satto, Allahyar and Mst. Sabin challenging the transfer in favour of Allahyar. In the original plaint Mst. Satto was impleaded as a major but soon afterwards the plaint was amended and she was shown as a minor under the guardianship of her mother Mst. Sabin. Th6 following five issues were struck :‑

 

(1) Is the defendant No. 5 (Mst. Sabin) the lawful wedded wife of Dalel ?

 

(2) When was defendant No. 2 (Allahyar) born and is he the legitimate son of Dalel ?

 

(3) Whether the plaintiff or the defendant No. 1 (Mst. Satto) is the reversionary heir to the land in suit ?

 

(4) Whether the whole of the land in suit is the plaintiff’s ancestral property ?

 

(5) Whether the gift dated the 16th May 1911 is a valid gift ?

 

(6) Whether the mutation of names of 1902 and 1904 were effected with the knowledge and consent of defendant No. 5 and what is their effect on this case ?

 

On the 3rd of October 1912 the plaintiffs stated before the Court : “W a admit that if the second defendant is proved to be the legitimate son of Dalel, the gift in his favour by the defendant No. 1 is valid, otherwise not. We also admit that if the defendant No. 5 is proved to have been a married wife of Dalel, she is entitled to remain in possession of, the property until her remarriage or death. Defendant No. 1 is also entitled to the possession of the property until her death or remarriage”. Thereafter Mst. Sabin made the following statement on her own behalf and on behalf of her minor daughter and son (Mst. Satto and Allahyar) : “The gift by defendant No. 1 in favour of the second defendant could be valid only if the latter is the legitimate son of Dalel otherwise the former had no right to make the gift. The gift was made only because the defendant No. 2 is the true heir of Dalel, If I am found to be the lawful widow of Dalel, I am entitled to remain in possession of the property in suit until death or remarriage”. By his judgment dated the 12th of February 1913 the Court decided only the first and second issues holding that Mst. Sabin was the lawfully wedded wife of Dalel but Allahyar was not his son. Thereupon he passed the following order in view of the parties’ statement on the 3rd of October :‑

 

“The gift, dated the 10th May 1911, in respect of the land in suit by defendant No. 1 in favour of defendant No. 2 shall be null and void on the marriage or death of defendant No. 1 and after the death of defendant No. 5.”

 

It might be noticed in passing that the order of the Court in so far as it declares that the gift shall be null and void “on the marriage or death of defendant No. 1” and on the death alone of defendant No. 5, is not in accordance with the statements of the parties, which themselves are conflicting.

 

In October 1945 Mst. Sabin died. On the 3rd of November 1945 (vide page 43 of Urdu part of the printed record) the reversroners instituted a suit for possession of the property against Allahyar. They did not implead Mst. Satto as a defendant. She alleges in para. 8 of the plaint in the present suit that she applied on the 27th of November 1945 to be made a party to the reversioners’ suit of that year but her application was rejected by the Court‑evidently on objection by the plaintiffs. This allegation is not denied in the written statement. On the 14th of March 1946 Mst: ‘ Salto filed a suit against the reversioners for a declaration that the decree of 1913 was not binding on her and for possession of the suit property. This ‘suit was dismissed under Order VII rule 11, C. P. C. on account of the plaintiff’s failure to Make up the, deficiency in Court‑fee. An appeal by Mst. Satto against the decree was dismissed by the District Judge, Multan, on the 8th of March 1948. She instituted the present suit on the 12th of June 1951 and as already stated a decree was passed in her favour on the 15th of November 1952.

 

It was conceded by the appellants’ learned counsel at the very outset that the findings of the learned trial Court that the plaintiff is a legitimate daughter of Dalel and that the property in suit is not ancestral qua the appellants are unassailable. It was also admitted by him that as the plaintiff was a minor in 1913, the decree of the 12th of February 1913 in favour of the reversioners was voidable at the instance of the plaintiff because it was based upon an agreement which was not sanctioned by the Court as required by rule 7 of the 32nd Order of the Code of Civil Procedure. He confined his argument to the following con?tentions only : (1) That under the custom applicable to the parties a daughter could not inherit even self‑acquired property ; (2) that the present suit, in so far as it asks for the setting aside of the decree of the 12th February 1913, is barred by the six years’ limitation provided for by Article 120 of the First Schedule to the Limitation Act, (3) that it was held by the decree of 1913 that the plaintiff would be entitled to remain in possession of the property in question until her death or remarriage and that finding is re.s judicata in the present suit ; and (4) that in any case that decree is binding upon her and as she has admittedly remarried she is no longer entitled to have the possession of the property. It was admitted by the appellants’ learned counsel that in case his first two contentions are not accepted, the remaining two points would not call for a decision and the appeal must be dismissed.

 

Five witnesses were examined by the defendants‑appellants on the question of custom. It is enough to say that all of them are males and, therefore, interested in deposing to the alleged custom, and that none of them has been able to cite a single instance, where a daughter may have been excluded from non‑ancestral property. In fact learned counsel himself realised this and has relied solely on the answers to questions 59 and 67 contained in the Customary Law of the Multan District prepared at the revised Settlement of 1923‑24. These questions and answers are as follows :‑

 

“Question 59.‑Do daughters take a share when there are no sons ?

 

Answer:‑*??????? *????????? *????????? *????????? *

 

11. With the exceptions noted below Muhammadan tribes ‘ say that unmarried daughters in the absence of sons and of widows succeed until marriage.

 

Exceptions :‑ * *????????? *????????? *???????? *???????? ‘”

 

The Muhammadan tribes of Kabirwala are vague.*?????? *????????? *??????????? *????????? *The general custom appears to be to allow a fair share as maintenance till marriage.

 

Question 67.‑Do the rights of daughters to succeed depend on the nature of the property ? What is the distinction, if any, between the rights to succeed to ancestral and self‑acquired, movable and immovable property ?

 

Answer.‑The rights of daughters to succession are the same whether the property be ancestral, self‑acquired, movable or immovable.

 

No instances.”

 

Mr. Emerson, who prepared this Customary Law, makes the following pertinent observations in his Introduction.:‑

 

“The accurate record of rights of daughters has perhaps given more difficulty than any other question. As far back as 1879, Mr. Roe observed that it would be tolerably correct to say that, for the greater part of the district, there is no real custom and to a considerable extent the same is true today.” * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *? * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Most Muhammadan tribes do not admit the right of married daughters to exclude collaterals and there are now fewer tribes who assert this custom than at the time. of Mr. Roe’s compilation. I doubt whether the custom can have changed so much as the two sets of replies would appear to indicate, and I think the difference is to be explained partly by the indefi?niteness of the custom both now and then * * *.

 

At the same time, it is by no means improbable that the increased value of lands has made collaterals more persistent in their claims than they were 50 years ago.”

 

Apart from the uncertainty about the custom and the fact that no instance whatever was available of a married daughter having been excluded by collaterals from inheriting a self‑acquired property, there is the striking and significant fact that the assertion in the answer to question No. 57 that the custom mentioned in the answers to the previous questions was applicable even to self‑acquired and immovable, did not find any mention in the earlier Customary Law of the District published in 1901 and, g therefore, at least until 1922, the general Customary Law of the Province that daughters inherit self‑acquired property, must have prevailed.

 

It appears from the Answer to the first Question in the Customary Law of Multan published in 1901 that at the time of the preparation of the document the .members of the Wajla (Aujla) caste were consulted. There is nothing, however, to show that they were consulted when the subsequent Customary Law of the District, relied upon by the appellants, was prepared Answer to the 12th .and 14th Questions in the earlier Customary aw show that only the collaterals within three degrees exclude daughters: while according to, the subsequent Customary Law collateral] y within four degree are entitled to inherit in preference to the daughters. The appellants in this case are admittedly fourth degree collaterals. All these considerations, in the circumstances, lead us to the conclusion that while the Customary Law of 1922‑24 is certainly a piece of evidence it cannot, in the circum?stances of this case, be deemed to be sufficient to prove the custom alleged by the appellants.

 

As regards the question of limitation it is admitted by both the parties that Article 120 applies. The limitation under that Article is six years and commences to run from the date “when the right to sue accrues”. It is contended on behalf of the appellants that in the present case the starting point of the limitation must be taken to be the 12th of February 1913 when the reversioners’ declaratory suit was decreed. Mst. Satto’s case, as laid in the plaint, was that she became aware of the decree of 1913 for the first time in November 1945 and, therefore, her right to institute the present suit accrued at the time of her knowledge in that month, This allegation was supported by her own statement in the witness‑box ; and also finds some support from the circumstance that in the suit brought by the reversioners in 1945, on the basis of the decree obtained by them in 1913, against, among others, Mst. Satto, they deliberately refrained from impleading her as a defendant in the former suit ?presumably to avoid a contest of their alleged right by her. No evidence, was led by the defendants to prove that in fact Mst. Satto had acquired the knowledge of 1913 decree, or of the suit in which it was made, earlier. One of the defendants, Allahyar, entered the witness‑box and he too did not say so. It must, therefore, be held that Mst. Satto came to know of 1913 decree only in November 1945. The question is whether limitation for the present suit would commence from that time.

 

It is true that provisions of the statutes of limitation must be applied without regard to equitable considerations. Those provisions are founded on the policy of law which, in the interests of the community as a whole, requires that there should be some point after which old and ancient disputes should not be agitated. The periods of limitation prescribed in pursuance of such a policy must necessarily, at least in some cases, be artificial and arbitrary and must be applied regardless of hardship in individual cases. These considerations, however, cannot apply to a case where a particular provision in a statute of limitation is not clear and definite. In construing such provisions considerations of justice and equity cannot be ignored. When more than one interpretation is fairly and reasonably possible, that which leads to manifest absurdity or injustice must be avoided. It would be a lamentable and intolerable state of law if it were not so The present case furnishes a striking illustration. It is the appellants’ contention that although Mst., Satto was completely ignorant of, the existence of the 1913 decree and there was nothing to put her on enquiry about it, yet her right to sue for setting it aside became barred by the law of limitation in 1919, 26 years before she became aware of it. The Courts can yield to such a preposterous contention only if so compelled by some express and unequivocal statutory commandment.

 

Fortunately there are numerous and weighty authorities which have laid down that in a case like the present the period of limitation under Article 120 commences to run only from the date of the plaintiff’s knowledge of his right to sue. It was held by the learned Judges of the Madras High Court in P. Mamabi v. Acharath Parakat (A I R 1916 Mad. 743), that limitation under Article 120 in a suit by an othidar in possession of the property runs from the date of his knowledge of the sale by the owner of the property and not from the date of the sale. The same Courcheld in M. Basavayya v. Majoti Bapana Rao Sowcar (A I R 1930 Mad. 173) : “Where in a suit falling under Article 120, the cause of action is not merely the passing of an adverse decree against the minor, but in addition to it the fact that such a decree was passed by reason of the misconduct or gross negligence of his guardian. ad litem, limitation should not begin to run the moment the decree was passed, but only when gross negligence of the guardian which, alone would entitle the minor to have the decree set aside, became known to him.” That ruling was applied in a subsequent case, Swami Kone v. Sankaravadia (A I R 1936 Mad. 804).

 

In O. R. M. O. M. Sp. Firm v. Nagappa (A I R1941 P C I), the Privy Council ruled that the right to sue a stranger to recover trust funds which had been applied in breach of trust accrues to the trustee, under Article 120, when he becomes aware ‘of the* breach and not on the date of the breach itself. After referring to the reasons given in M. Basarayya for the decision in that case, their Lordships proceeded to observe :‑

 

“Their Lordships can see some difficulties in this reasoning as a matter of interpretation of the language of the statute and had the matter been res integra they are not certain that this interpretation would have prevailed with them. But the ‘ decisions in India have established a rule of limitation under Article 120 by which the plaintiff in the cases to which the rule applies cannot be debarred of his remedy unless with knowledge of his rights he has been guilty of delay. *???? *????????? *??????????? *????????? *????????? *????????? * ???????? *

 

The subject‑matter of the present suit is somewhat different but their Lordships are prepared to follow the principle of the Indian decisions in the present case and to hold that the suit is within time.”

 

The reason for disagreement with the reasoning in Basavayya’s Ose which proceeded upon a consideration of the language employed in Articles 90, 91, 92, 95 and 96, is to be found in an earlier portion of the judgment in the following sentence “The language of Article 120 makes no reference to the knowledge of the plaintiff and is in this respect in contrast with that of other articles, e.g., 90, 91, 92, 95, 96, 114.” The next sentence, however, is significant : “On the other hand, it was recognized by the Board in Mst. Balo v. Mst. Koklan (AIR 1930 P C 270), that an infringement of the plaintiff’s right or at least a clear and unequivocal threat to infringe it is necessary before time begins to run against the plaintiff under the Article (120).”

 

It was the reasoning and the method of interpretation employed in Basavayya’s case which the Privy Council doubted ; but not the ultimate principle upon which the case was decided. That principle was also deducible from the ruling of the Privy Council in Mst. Balo. Where in case of an infringement of a right, or a threat to infringe it, the law casts upon the possessor of the right the duty to act on pain of losing his right, it would be a violation of the elementary principles of justice to hold that tile duty to act accrues even in the absence of all knowledge of the infringement or threat. There is nothing in Article 120, or in ally of the sections of the Limitation Act, to warrant the proposition that for the purposes of Article 120, the right to sue can accrue even when the plaintiff is unaware of any infringement of his right or a threat to infringe it.

 

But apart from the process of reasoning by which the result may be arrived at, the Privy Council ruling in Nagappa’s case is ‘a clear authority for the proposition that the present suit is not barred by limitation because the plaintiff was not aware of the 1913 decree (and the vice from which it suffered) more than six years before the suit. In view of the appellants’ admission that the appeal must fail if the question of limitation is decided against them, no other question remains to be decided. We accordingly dismiss this appeal with costs.

 

K. M. A.                                                              Appeal dismissed.

 

 

 

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