- (1.) The following pedigree-table gives the relationship of the parties- On 29th May 1928 Jowahar Singh executed a will in favour of Bhagta who was his pichhlag son. On 29th July, 1932 Jowahar Singh died and mutation of his property was made with the consent of his widow Mst Kishno in favour of Bhagat and was attested on 22nd June 1933 : vide Exhibit D.3. Niranjan Singh had died on 9th November 1949 and Mst Kishno died on the 29th March 1951. On the 10th May 1951 the present suit was filed by the sons of Niranjan Singh for possession of the property left by Jowahar Singh on the allegations that they were the only heirs of Jowahar Singh, that he had never made a will in favour of Bhagata and that the will was, in any case, not binding on the plaintiffs as Jowahar Singh had no right to will away his ancestral property in favour of a stranger. The suit was contested by Bhagta who pleaded that Jowahar Singh had made a will in his favour which was binding on the plaintiffs in every way. As many as eight issues were framed by the learned trial Court, but we are now concerned with issue No. 1 only which reads- 1. Whether the suit is within limitation ?
(2.) The trial Court found almost all the issues in favour of the plaintiffs and passed a decree in their favour for possession of the property in dispute. Bhagta filed an appeal in the Court of the Senior Subordinate Judge, Ludhiana, who upset the decree of the trial Court on the finding that the plaintiffs suit was barred by time. The plaintiff have come up in second appeal to this Court.
(3.) Mr. Harbans Lal Sarin, learned counsel for the plaintiff-appellants, relies on Sohan Singh v. Jagir Singh, 1942 AIR(Lah) 114 , and urges that the terminus a quo for a suit like this is not the date of the will but the date of the knowledge of the will by the plaintiffs. He urges that the plaintiffs acquired the knowledge for the first time on 22nd June, 1933 and this date must be held to be the terminus a quo. He further contends that plaintiff No. 1 was entitled to file the suit within six years from the date he became major. It is common ground between the parties that plaintiff No. 1 was born sometimes in April 1932, and if the contention of Mr. Sarin with regard to the applicability of section 6 of the Indian Limitation Act be correct, the period of limitation allowable to plaintiff No. 1 would be up to April 1956. There is however, a fallacy in the argument of Mr. Sarin. Plaintiff No. 1 was not in existence on the date of the will which is 29th May 1928. The right to sue accrued to him because of the fact that his father himself from filing a declaratory suit contesting the will. In such a case the period of limitation allowable to the plaintiff would be the same which was allowable to the plaintiff would be the same which was allowable to Niranjan Singh. That period must be taken to be six years from 22nd June 1933 and expired on 22nd June 1939. Limitation was also claimed on the basis that the defendant remained out of British India for a period of about six years. Even adding this period of six years, the limitation would expire sometimes in 1945. The present suit filed on 10th May 1951 will not be within limitation. Section 7 of Punjab Act 1 of 1920 lays down - "Subject to the provisions of section 6- (a) No suit of the possession of ancestral immovable property on the ground that an alienation of such property or the appointment of an heir is not binding on the plaintiff according to custom shall lie if a suit for a declaration that the alienation or appointment of an heir is not so binding would be time-barred unless a suit for such a declaration has been instituted within the period prescribed by the schedule. (b) No suit for the possession of ancestral immovable property by a plaintiff on the ground that he is as heir appointed in accordance with custom entitled thereto shall lie if a suit for a declaration that his allegated appointment as heir was validly made according to custom would be time-barred, unless a suit for such a declaration has been instituted within in the period prescribed by the schedule.";