Chopra, J. - (1.) THIS is an appeal by Amar Chand Plaintiff joints the judgment and decree of Sub -Judge 1st Class, Patiala dismissing his suit for possession of a house sold by his father Jiwan Singh to Dogar Mal Respondent. The house comprises three separate sites one of was sold by Jiwan Singh for Rs. 1910/ - by a registered deed dated 4 -10 -1995. Only two days v. i.e., on 6 -10 -95 Anr. portion of it was Sold to Dogar Mal and Benarsi Das for Rs. 900/ - Benarsi Dass subsequently transferred his rights ' favour of Dogar Mal. The third one was sold Anr. registered deed dated 13 -10 -1995 for Rs. 690/ - to Dogar Mal. Jiwan Singh died somewhere the year 1998 or 1999. On 30 -4 -2005 Amar Chand son of the alien or, instituted the present suit alleging that he was the sole heir of the deceased alien or, that the house in dispute was ancestral, that the alien or was licentious and a notorious spendthrift and that the sales which were without consideration and necessity were void and ineffective against his reversionary rights. The Plaintiff claimed possession because the suit was brought after the alien or death. Dogar Mal vendee denied every one of the assertions and the pleadings gave rise to the following issues: 1. Is the suit within time? O.P. IS the Plaintiff the son and sole heir of the vendor Jiwan Singh? O.P. Is the property in suit ancestral qua the Plaintiff? O.P. IS the suit properly valued for Jurisdiction and: court -fee? O.P. WERE the sales in dispute effected" for necessity and consideration? O.D. Has the Plaintiff 'locus standi' to file the present suit? O.P. Deficiency in court fees was made good. The trial Judge deciding all the issues, except No. 6 in favour of the Plaintiff held that the suit was within time, the Plaintiff was the son of Jiwan Singh vendor, the house in dispute was ancestral qua the Plaintiff and that there was no necessity for the sales. On issue No. 6 he was of the opinion that since the law on which the Plaintiff's claim -was based had been repealed he had no locus standi' to bring the suit. He consequently dismissed the suit and directed the parties to bear their own costs.
(2.) SHREE Lachhman Das, learned Counsel for the Appellants contends that the decision of the trial Judge on the only issue decided against the Plaintiff was against the general principles of interpretation of statutes and should, therefore, be set aside. In this connection it may here be mentioned that Jiwan Singh was an Agarwal by caste and used to run a shop at Nabha. Ordinarily therefore he should be presumed to be governe -3 by his personal law. It was alleged that he contracted intimacy with a Muhammad an girl whom he had engaged as a nurse for his son Amar Chand because of the death of his wife soon after the latter's birth and that he turned a Muslim android as such. But that is a matter which need not be gone into in this case because neither under Hindu nor Mohammedan law by which Jiwan Singh might have been governed, the Plaintiff was entitled to bring the suit in its present, form. The personal law of the subjects of Nabha State with regard to certain matters such as succession, alienation, adoption etc., was abrogated by certain Hidayats which had the force of law and governed persons of every caste and creed in the State. Section 1 of the Nabha Hidayat on succession provides that 'sons are the first entitled to the inheritance whether the deceased was joint with Ors. of not? The Plaintiff was thus the first heir of and entitled to succeed to Jiwan singh on the latter's dying intestate. Section 9 of Anr. Hidayat of the State (regarding Alienations) reads as follows : Self -acquired property whether movable or immovable, is alienable according to the will and' pleasure of the last male owner. Ancestral immovable property is inalienable except for legal necessity or with the consent of male lineal descendants and in case of a sonless proprietor of his. Male collaterals within the 5th degree. Amar Chand brought the present suit alleging that the sales which related to ancestral movable property and were affected without consideration and necessity were void under the laws of the State - and therefore did not affect his reversionary rights. It may also be remembered that the suit was brought after the death of the alien or. Section 9 of the said Hidayat was repealed by notification No. 1610 -GD -7934E issued by the Nabha Government and published in the Government Gazette on 20 -12 -2003 BK (2nd April 1947). The Hidayat was thus repealed after the death of Jiwan Singh but before the suit was instituted. The learned trial Judge is of the view that the alienations were only avoidable at the option of the Plaintiff and that he simply had a right to bring a suit to avoid them. He describes this right as a 'chose in action or spessuccessionis and holds that the repeal of S. 9 under which the suit was brought, had the effect of depriving him of that right and that the Plaintiff therefore, had no 'locus standi' to bring the suit. The Appellant's contention that a subsequent re -peal of the law could not deprive the Plaintiff of v. the right that had already accrued to him has not been controverted even by Shree Jagan Nath, learned Counsel for the Respondents, and the latter irankly concedes that on Jiwan Singh's death his son the Plaintiff, acquired proprietary rights in the property left by him and also the right to ignore or avoid alienations made beyond his powers. The statute law of the State placed certain restrictions on the right of an owner to alienate his ancestral property and this created a right in his heir to inherit on his death property alienated m violation of those restrictions. The limitations were -to apply to all alienations made, when the Act was in force and its subsequent repeal could not have the effect of legalizing those alienations. At "the. same time the right of an heir to ignore or to get avoided an -alienation of ancestral immovable property made beyond his powers by the last male holder and to inherit the same gets vested in him on the farmer's death. If a person not having authority to alienate any property, or having such authority under certain circumstances which did not exist, alienates that property it is not necessary for persons who are not bound by it to sue to set aside the alienation because it cannot be effective against them. They may treat it as non -existent and sue for their right as if it did not exist. The alienation may not be a void transaction but only avoidable at the instance of the reversionary heir, still the reversionary is not bound to - institute a suit to set aside or cancel the same before he claims the relief which he wants and to which he is entitled. He may elect to avoid it without the intervention of the Court. The repeal or amendment of an Act does not affect a right already in existence unless a contrary intention is made out expressly or by necessary intendment. Every statute which takes away the vested rights acquired under existing law must be construed strictly and can be given a retrospective effect only if it is so clearly expressed. In other words if a right has once been acquired by virtue Jot some statute, it cannot be taken away by the mere repeal of that statute. As already observed 'Plaintiff's rights in the estate of Jiwan Singh ac crude to him on the latter's death, these could not be taken away by a subsequent repeal of the law under which they were acquired.
(3.) ON the question of limitation the learned trial Judge was of the opinion that Article 144, Limitation Act applied and that the suit brought within 12 years of the death of Jiwan Singh was within time. He further observed that even if the suit fell under the Punjab Limitation (Custom) Act (Act 1 of 1920) it was within time as the Plaintiff was minor at the time of the alienations and became major within three years of its institution. Shree Jagan Nath addressed lengthy arguments with a view to show that the Plaintiff had not succeeded in proving the actual date of his birth am and hence the fact that he became major within three years of the suit He took us through the entire evidence on the point and stressed that en -tries in the school registers which were relied upon by the trial Judge to determine the Plaintiffs date of birth, were not admissible in evidence miss that the oral evidence was indefinite vague and un I reliable But I fail to understand how these question at all arise in this case it is admitted on the both sides that the Plaintiff was born before art was in existence when the alienations were effect ed. Plaintiff's right to sue accrued on the detach of the alien or regarding which again there is dispute that it took place in 1998 or 1999 and the suit was brought in. 2005. Article 144, Limitation Act provides 12 years limitation for such a suit, counted from the date when the possession of the aliened' becomes adverse to the Plaintiff, which this case would be the date of the aileron's death The suit, would thus be within time irrespective of the date when the Plaintiff was boom. The question as to when the Plaintiff became major would, however, be important only if The case was governed by the Punjab Limitation (Custom) Act and the suit was to be brought within six years of the alienations as provided by Article 2 of the Schedule appended to the Act. Now nobody's case: that the alien or the Plaintiff' governed by, custom or that the suit was brought under the genera customary law of the Punjab The Punjab Limitation (Custom) Act was enacted to amend the law governing the limitation of suit relating to alienations of ancestral immovable property by persons who follow custom in the Punjab and its preamble reads as follows: Whereas it is expedient to amend and consolidate the law governing the limitation of suits relating to alienations of ancestral immovable property and appointment of heirs by persons who follow custom in the Punjab; This Act, as is clear from its very name and the preamble has no application to suits relating to alienations by persons who are not governed by custom. It has to be remembered that the pre -sent suit was brought under a statute law, and the said Act therefore, would have no applies ion to it. Counsel for the Respondent did not contest the findings of the trial Judge on other issues which were decided in favor of the Plaintiff. The, trial Court has held that the first sale dated 4 -10? 1995 was for necessity only to the extent of Rs. 1250/ - and that necessity for any of the items consideration of the other two sales was not pre ed, This finding is not contested by the Appellant either.;