JUDGMENT
G.R. Majithia, J.
1. The plantiff has come up in second appeal against the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and dismissing his suit for possession of the suit land.
2. The fads :-
Gian Singh was the owner of the land in lieu of which the suit land was allotted in consolidation He sold the same to Moola Singh father of defendant Nos. 1 and 2 (respondent Nos. 1 and 2) and grand father of defendent Nos. 3 and 4 (respondent Nos. 3 to 5) by four sale deeds dated 29-1-1918, 12-4-1918, 28-5-1918 and 20.-3-1918. The plaintiff challenged the sales through a declaratory suit on the ground that the property sold was ancestral qua him and the vendor and the sales were not effected for legal necessity or otherwise justified as an act of good management The suit was decreed by judgment and decree dated 7-6-1916 and the sales were declared invalid and in-effective against the right of the plaintiff The vender died on 1-3-1927 leaving behind Smt. Shanti his widow who died on 30-5-1977 and the suit for possession was filed on 8-6-1977. The trial Judge decreed the suit but on appeal, the first appelate Court dismissed the same on the solitary ground that was filed beyond ‘limitation. The first appellate Court held that the cause of action arose to the plaintiff to bring a suit for possession on the commencement of the Hindu Succession Act and since the suit was not filed within three years from the date when the cause of action arose, it was beyond limitation.
3. The approach of the first appellate Court to say the least is perverse. Section 7 of the Punjab Custom (Power to Contest) Act, 1920 (for short the Act) provides that no person shall contest any alienation of non-ancestral immovable property on the ground that such alienation is contrary to custom. Meaning thereby, the alienation of ancestral property could be challenged being contrary to custom. This Section was amended by Section 3 of the Punjab Custom (Power to Contest) Amendment Act, 1973 in view of which no challenge could be made to the alienation of any immovable property whether ancestral or non-ancestral on the ground that it is contrary to custom. A declaratory decree already obtained by reversioner would continue to be operative as a sending Act does not render such a decree a nullity Consequently after such a decree had been passed, a suit for possession of property alienated earlier by reversioner in not barred under Section 7 of the Act.
4. The only other question which arises for determination is whether succession to the estate of a male owner who is survived by a widow, will open out on the death of the male owner or that of the widow. It is a settled rule of custom as well as of Hindu Law that if a male owner dies leaving a widow the succession to the male owner opens out on the death of the widow. If the male owner does not leave behind widow, the succession opens out at the time of death of the male owner. In Hafiz and Ors. v. Jiwan and Ors., A. I. R. 1926 Lah. 599, almost an identical question arose for consideration. One Haidar sold the property A usual declaratory suit was filed by the reversioner to challenge the sale. The suit ended in compromise to the effect that upon the death of alienor, the reversioner will get back the land on payment of Rs. 820/ . Haidar i.e. the alienor died on 22-1-1916. Under the Punjab Act (1 of 1920), Article 2(b) of the Schedule, a suit for possession of the land should have been instituted within three years of the alienor’s death, but by virtue of the saving clause (6) this time was extended to one year after the coming into force of the Act. Interpreting this clause, it was held thus : —
“A suit for possession must be filed within three years from the date on which the right to sue accrues. The right to sue in this case accrued when Haidar died It would have been different if his widow have been alive. It would then have accrued on her death.”
In Subedar Jiwan Singh v. Ram Kishan and Ors., (1966) 68 P. L. R. 626, similar question arose and it was held thus:-
“It is common ground now before us that creation of occupancy rights in ancestral land could only stand if it was justified by necessity. The declaratory decree declared the creation of such a tenancy invalid vis-a-vis the plaintiffs and the defendants. The plaintiffs could only take the benefit of the decree at the time when the succession would open out and if they were the heirs at law to the subject matter of the declaratory decree. It is a settled rule of custom as well as of Hindu Law that a male owner lives so long his widow live and the succession only opens out on the death of the widow But if there is no widow left by the last male-holder, the succession does open out at the time of the death of the last male-holder. In the present case, the succession opened out on death of Gurdevi. The defendants interest in land had become merely contingent i.e. on the death of Gurdevi they will lose that interest. As soon as Gurdevi died, they were left with no interest in the land.”
The ratio of this judgment was reiterated by a Full Bench of this Court in Rattan Singh and Anr. v. Ram Parkash and Ors., (1985-2) 88 P.L.R. 1 (F.B).
5. The counsel for the defendant-respondents urged that the concept of Hindu women’s limited estate has been abolished after the commencement of the Hindu Succession Act, 1956 (for short the 1956 Act) and the restraints and limitations on her power ceased to exist after the commencement of the 1956 Act. Thus, the cause of action to bring a suit for possession accrued to the plaintiff on the date of commencement of the 1956 Act. The submission is devoid of merit. It cannot be disputed that all the rules of Hindu Law, which are contrary to the rule laid down in the 1956 Act have been abrogated by the 1956 Act So far as the succession is concerned, the Art is a complete code and all rules of succession known to Hindu Law have been abrogated In all other respects, the rules of Hindu Law will prevail The settled rule of custom as well as of the Hindu Law prior to the 1936 Act was that whenever a widow succeeded to the property, she succeeded as a representative of the husband and the husbsand is deemed to die when the widow dies. In other words the succession in all such cases opens out on the death of the widow In support of these observations, reliance can usefully be made to Lala Duni Chand and Ors. v. Mt. Anar Kali, A. I. R. (33) 1946 P. C. 173, wherein it was held thus :
“There is no vesting as at the date of the husband’s death, and it follows that the question of who is the nearest reversionary heir or what is the class of reversionary heirs, fall to be settled at the date of the expiry of the ownership for life or lives. The death of a Hindu female owner opens the inheritance to the reversoners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her life time, however, the reversionary right is a mere possibility, or spes successions. but this possibility is common to them all for, it cannot be predicted who would be the nearest reversioner at the time of her death.”
The conclusion of the first appellate Court that the cause of action accrued to the plaintiff on the commencement of the 1956 Act is not known to law and cannot be sustained.
6. For the reasons aforesaid, the appeal succeeds, the judgment and decree of the first appellate Court are reversed and these of the trial Court are restored, but with no order as to costs.