The facts of this case briefly are that Mst. Alfan deceased succeeded to a limited interest in the property in dispute on the death of her husband Roshan Din. On the 28th May 1951, she gifted this property in favour of Mst. Fattan Bibi, Abdul Rehman and Alaf Din appellants and Mutations Nos. 10 and 18 were consequently attested on the 19th July 1951.
2. Mst. Alfan died in 1963. After her death the suit out of which this appeal arises was instituted on the 8th June 1964 by the respondents who are collaterals of Roshan Din, for possession of the property in dispute on the ground that the impugned gifts were invalid and could notaffect their right.
3. The trial Court held that Mst. Fattan Bibi was sister of Roshan Din and was entitled to one-half of the property in dispute under the Muslim Personal Law (Shariat) Application Act, 1962. It held the suit to be barred under section 7 of the Punjab Limitation (Custom) Act, 1920.
4. On appeal filed by the respondents the District Judge affirmed the finding about relationship but reversing the finding about limitation, held that the suit was governed by Article 141 of the Limitation Act. He, therefore, remanded the case for decision on merits.
5. Hence this appeal.
6. The learned counsel for the appellant contended that the suit was barred by section 7 of the Act I of 1920. This Act was no doubt repealed by the Muslim Personal Law (Shariat) Application Act of 1962, but the repeal was affected when the suit for possession of the property in dispute was already barred under the provisions of Act I of 1920. The Act of 1962 cannot be construed as having any retrospective effect. The repeal will, therefore, not affect rights which had already accrued to the appellants ,under the Act of 1920.
The learned counsel for the respondents, on the other hand, argued that Act of 1920 not being in the field on the death of the donor, there was no bar to the filing of the suit which is now governed by the pro--visions of Article 141 of the Limitation Act. He further argued that the widow could not pass by gifts a better right than she herself had and, therefore, the cause of action for the present suit arose only after the death of the widow. He also contended that according to the principle laid down in Muhammad Hassan and another v. Mst. Ltar Nishan and others (AIR 1937 Lab. 798the provisions of Act I of 1920 would not be a bar to a suit for possession if the validity of the gift is not impugned in the suit; consequently, in the present suit that portion of the plaint where the gift has been challenged may be considered as a surplus-age and the suit may be considered as one for possession only.
7. The ancestral nature of the property in dispute was admitted by the parties. The learned counsel for the respondents contested this also and argued that the admission was gratuitous. He submitted that this admission was made by the plaintiff-respondent in replication which was not a part of the plaint.
8. The last point may be taken first. There is an unequivocal admission in the replication about the ancestral nature of the property. There is nothing on the present record that this admission is factually incorrect. This admission is in the replication which is a better statement of plaint and is a part of the pleadings. In the absence of there being anything on record to show that the admission is incorrect the respondents cannot be allowed to go back upon it and to urge anything to the contrary now.
Muhammad Hassan and another v. Mst. Itar Nishan and others is not helpful to the respondents. It was not decided there that in spite of section 7 of Act I of 1920 a suit for possession as governed by Article 141, Limitation Act would be competent if the alienation made by the widow is not challenged. This point was urged on the strength of Bapy Gopal Mukerji v. Krishna Mahishi (I L R 34 Cal. 329 (P C)which was decided long before the enforcement of Act I of 1920. It was, however, held that the suit was barred by Act I of 1920 for the reason that the will executed by the widow was challenged. It was further held that the recitals in the plaint must be read as a whole. In the present case also the suit is based on a challenge to the validity of the two gifts. This point also has, therefore, no substance. Moreover, the point raised by the learned counsel for the respondents that where a suit is filed for the possession of the property ignoring the alienation which would subsist only during the subsistence of the Widow's interest in the property i.e. till her death or re-marriage, such suit would not be barred by section 7 of Act I of 1920, has no force. The weight of authority on this question is against the respondent. In Muhammad Fazal and others v. Muhammad Salam Ullah and others (AIR 1933 Lab. 845) similar contentions were raised. It was held that having all along maintained that the property was ancestral the plaintiff cannot be allowed to take advantage of a plea which was not taken by them before. It was further held that the limitation allowed by Act I of 1920 for possession of ancestral immovable property which has been alienated and the alienation of which is challenged as not binding on the plaintiff according to custom is three years from the date on which the right to sue accrued. It was further found that the suit was barred by limitation as the gift by the widow having a limited interest was not challenged in accordance with the provisions of Act I of 1920. In Muhammad A.I Khan v. Anwar Hussain (A IR 1934 Lah. 913a Division Bench of the Lahore High Court held that where a suit in substance is a suit attacking alienation, it is not open to the plaintiff by cleverly wording his plaint to avoid the proper limitation for the suit. A departure from this principle was made in Gopal Singh and others v. Thakir Singh and another (AIR 1935 Lab. 313In that case a suit for possession was filed on the basis of inheritance. The defendants set up a will and pleaded bar of limitation under Act I of 1920. The plaintiff denied the existence of the will. In these circumstances it was held that a suit of this kind which is based purely on the right of inheritance and in which the alienation is set up and relied upon by the defendants cannot be considered to be a suit on the ground that the alienation is not binding on the plaintiff. The suit was, therefore, held not to be barred by section 7 of the Act. It was further observed that "had it been proved that the plaintiff was aware of the will and had merely ignored it in the plaint to evade limitation it might have been necessary to consider whether the suit should not in the circumstances be looked upon as one falling really within the scope of) section 7, Act I of 1920, as pointed out in Kaura v. Ram Chand (AIR 1925 Lah. 385), a litigant cannot be merely attaching a different label to the suit and I would add by deliberately suppressing facts bring it under a different Article of the Limitation Act, for that under which it would come on a true interpretation of the nature of the suit". In Naman v. Uttam (AIR 1938 Lah. 158) the rule laid down in Muhammad A.I Khan v. Anwar Hussain was approved. Gopal Singh and others v. Thakir Singh and another was dissented from even on facts and it was observed that curiously enough one of the Judges who decided that case was one of the Judges who decided Walakha Singh v. Ram Kishan (16 Lah. 337) where a contrary view was held to be a correct view. This question again came up for consideration in Barkat and others v. Muhammad Shafi (I L R 23 Lab. 41) in which after review of the case-law it was held that the suit was time-barred under Article 2 of the Punjab Limitation (Custom) Act I of 1920, as in substance it was a suit for possession under the Act and that the plaintiff could not, by ignoring the sale or suppressing all mention of it in the plaint, get over the statutory bar created by it. Kaura v. Ram Chand (1 L R 16 Lah. 237) and Gangu v. Maharaj Das (1 L R 1938 Lab: 332) were followed and it was further held that a true test to determine the period of limitation is to see the true effect of the suit, not its formal or verbal description. A litigant merely by attaching a label to his suit cannot bring it under a different article of the Limitation Act from that under which it would come on a true interpretation of the nature of the suit.
I have already made reference to Muhammad Fazal and others v. Muhammad Salam Ullah and others which was a case of gift by a widow. This would go to show that an alienation by gift is also governed by Act I of 1920. The principle that a gift by a widow can be effective only till the termination of life interest is applicable only to those cases where either the gift is specifically that of a life interest with a condition that it would cease to operate after the termination of the interest, or where a decree for declaration has been obtained by a reversioner under Custom I do not see any difference on principle between the alienation by gift or an alienation by some other manner.
The principle urged by the learned counsel for the respondent should be applicable to all the alienations and even a sale should not be deemed to operate after the termination of the life interest. But the law is that the alienations by the widow are not void or a nullity. They are, in fact, only voidable. The transfer also is not of the limited interest enjoyed by the widow but it is an alienation.
In Mst. Sat Bharai v. Barkhurdar Shah and another (AIR 1934 P C 43) it was held that Tamlik by a widow governed by Customs constitutes an alienation within She meaning of Articles 1 and 2 of the Act I of 1920, and a suit for setting aside the transfer must be instituted within a period of limitation provided in the Act even assuming that a mere transfer by the widow of her life estate would not be within the purview of this enactment. Con--sequently, the argument of the learned counsel that the gift subsisted during -the life of the widow and could not enure to the benefit of toe donees after the termination of the life interest, is of no substance, nor such a giftcan be deemed to be a nullity.
9. The only point that requires consideration now is whether after the repeal of Act I of 1920, a suit for possession which could not have been filed in the presence of that Act, can be filed now after the death of the ,widow. Section 7 of Act I of 1920 reads as follows :---- "Subject to the provisions of section 6-
(a) No suit for 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 alleged appointment as heir was validly made according to custom would be time-barred, unless a suit for such a declaration has been instituted within the period prescribed by the schedule."
Articles 1 and 2 of the Schedule read as follows:-------- Description of suitPeriod of Time from which Limitation period begins to run A suit for a declaration that an6 yearsFirstly.-If the alie- alienation of ancestral immovablenationis by a property will not, according toregistered deed, the custom, be binding on the plaintiffdate of registration of after the death of the alienor or (ifsuch deed. the alienor is a female) after herSecondly.-If the death or forfeiture of her interest inalienation is not by a the property.Registered deed--
(a) if an entry regard-- ing the alienation in the Register of Mutations has been Attested by a Revenue Officer under the Punjab Land Revenue Act, 1887, the date on which the entry is attested:
(b) if such entry has not been attested, the d ate on which alienee takes physi-- cal possession of the whole or any part of the property alienated in pursu-- ance of such alienation;
(c) in all other cases, the date on which the alienation comes to the knowledge of the plaintiff. .A suit for possession of anscestral immovable property which has been alienated on the ground that the alienation is not binding on the plain-- tiff according to custom ;
(a) if no declaratory decree of the 6 years As above nature referred to in Article 1 is obtained;
(b) if such declaratory decree is 3 yearsThe date on which obtained.The right to sue accrues, or the date on which the decla-- ratory decree obtain-- ed, whichever is later.
Section 7 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, provides for the repeal, inter alga, of the Punjab LimitationCustom) Act; 1920.
10. Subsection (2) of section 7 as it stood in the original Act provided that------- "This Act shall not apply to case; where the death of the last full owner or the termination of the life estate or the death of the legatee-in-enjoyment, as the case may be, has occurred before the commencement thereof, and all such cases shall be governed by the Acts repealed in subsection
(1) according to territories in which they were operative."
These provisions have, however, been omitted by the West Pakistan Act XXVIII of 1964. This omission need not detain us for the reason that the omitted subsection did not apply to the present case. It applied only to a ass where the termination of the life estate had occurred before the enforcement of the Act of 1962.
Under the Act of 1920 an immunity from further challenge to the validity of the gift had been obtained by the appellants. A right had,` therefore, accrued to them that after the expiry of the limitation period as provided by Article 1 of the Schedule to the Act of 1920, no further) suit for possession of the property would be competent at the instance of the collaterals. Clause (c) of subsection (1) of section 4 of the General Clauses Act is, therefore, attracted. It may be stated that before the) enforcement of this Act it was not necessary for the collaterals or rever--sioners to file a declaratory suit challenging the alienation which was against custom. In such cases a suit could be filed after the termination by death of the holder of the limited interest. (See Nur Ahmad and another v. Rahim Bakhsh and others (1912 P R 192), Muhammad! Begum and others v. Faix Muhammad Khan (1907 P R 155), A.I Gauhar v. Jowahir and another (1892 P R 120), Ganesha Ram v.
Panju Singh (AIR 1919 Lab. 448) and Bhagat Singh v. Sher Singh and others (1914 P R 104After the enforcement of the Act of 1920 the provisions of this Act were made applicable to the suits to which Article 141 of the Limitation Act was applied. The period of limitation for a suit for possession where declaratory decree was obtained was reduced to three years. If it is held that Article 141 will now apply even to the cases where the right to sue was barred under section 7 of the Act of 1920, it will amount to holding that by the repeal of this Act the provisions of Article 141 are revived. This will render clause (c) of subsection (1) of section 4 of the General Clauses Act nugatory.
12. Even if there had been any enactment of a fresh statute of limitation after the repeal of Act I of 1920, the principle that law of limitation being a procedural law should be deemed to be retrospective, will not have applicability to a case where the right of suit was already barred before the enactment of such new statute of limitation. As held in Bank of India v. Muhammad Ashraf and others PLD 1965 Kar. 69), the matter is to be decided in accordance with Law of Limitation as in force at the time of institution of that matter and not according to law prevailing at the time when cause of action arose. But this principle will apply where the right to institute that proceeding had not become barred on the date when the amended Act was enforced. The principle of law, therefore, is that where a plaintiff or petitioner has lost his right to institute proceeding on the date when some other Act comes into force, that right is not revived by the repeal of the statute under which the limitation for those proceedings has expired. In Appasami Odayar and others v.
Subramanya Odayar and' others (151 A 167) the following statement of law was made by their Lordships of" the Judicial Committee :---- "By section 1, clause 13 of Act XIV of 1859, a suit for a share of then family property not brought within twelve years from the date of the last participation in the profits of., it would be barred. This: Act continued in force until the 1st of July 1871, when Act IX of 1871 came into force. Consequently, if there was no participationof profits between 1837 and 1871, the suit would be barred, and the later Acts for limitation of suits need not be referred to. If they altered the law they would not revive the right of suit."
Pearay Lal and others v. Solu Gir (AIR 1946 All. 58it was held that "in the absence of anything to the contrary if a claim is within limitation according to the old Limitation Act on the date when new Limitation Act comes into force and a proceeding is commenced after the coming into force of the new Act it is the new Act which would govern all decisions on the point of limitation. If, however, the right to sue or the right to apply had already been barred by the provisions of the old Act then in force, then unless there was something in the new Act which could be deemed to apply retrospectively to revive claims which had already become barred, the new Act could not be availed of for the purpose of saving limitation". Reliance was placed for this later proposition. Upon Appasami Odayar v. Subrarnanya Odayar and another v. Taruck Nath (20 Cal. 487) and Sachindra Nath Roy v. Maharaj Bahadur Singh (AIR 1922 P C 187Same appears to be the view taken in Ghulam Haider v. Raj Bhari (PLD 1973 Lab. 372). It was held in that case that an appeal having been abated before the enforcement of the Law Reforms Ordinance XII of 1972, the respondent had acquired valuable right to defeat the claim of the legal representatives to be brought on the record which could not be deprived on the ground that the law of abatement has been abolished by the Ordinance. The same principle is available from two American cases. In Bear Lake Irrigation Co. v.
Garland (164 U S 1, 17 S. Ct. 7 L. Ed. 327it was held that-- "The answer is that the mere enlargement of the time in which to commence the action, at least in a case where the time had not yet arrived in which to file any statement of the plaintiff's claim for a lien, does not affect any right or remedy provided for in the old act. The right, as that term is used in the statute, consisted of the right of sale of property in order, if necessary, to obtain payment of the money due to contractor. The remedy consisted of the taking of certain proceedings by which this sale was to be accomplished. Prior to the arrival of the time when one of these steps was to be taken an alteration of the statute by which the time to take that step might be enlarged was not an alteration of the right or the remedy, as those terms are used in the statute, nor did it in any way affect either ; it was simply an alteration of the mere procedure in the course of an employment of a remedy, the remedy itself remaining untouched or unaffected by such alterna--petition. In this case such an enlargement of time to commence an action was given before the time had arrived in which the action could have commenced under the old statute. The new statute was prospective in its operation, even as applied to this case. Of course, if the new act had curtailed the time in which to bring the action, after the time had commenced to run under the old statute, totally different consideration would spring up, and what was a mere alteration of procedure, having really nothing to do with a remedy in the one case, might in the other, most seriously affect it, and hence come within the proviso in question . . . . . . ---It may be assumed that where a statute creates a right not known to the common law, and provides a remedy for the enforcement of such right, and limits the time within which the remedy must be pursued, the remedy in such case forms a part of the right, and must be pursued within the time prescribed, or else the right and remedy are both lost'."
Wright v. Oakley (5 Mete. (Mass.) 400 ) the Court held as under :------ "The difficulty of applying this repealing clause of the revised statutes to the statute of limitation affects the remedy only, and therefore it is inferred, that it does not affect the right, inasmuch as rights and remedies are often, and in many cases very justly, spoken of as contradistinguished from each other. But this is far from being always a just conclusion. It would be more accurate to say, that the statute of limitations bars the remedy, but dues not extinguish the cause of action. But in truth, the statute of limitations though only barring the remedy, does thereby deeply affect the rights of parties . . . . . . In many respects, the rights of parties do depend upon the statute. After such a bar is fixed, parties feel justified in forbearing to take and preserve evidence, and to retain proofs and vouchers, as they would otherwise ; and they feel, and act upon the conviction, that such causes of action are at an end. And although it cannot be said in technical strictness, that a man has a vested right to plead the statute of limitations, so that it could not be taken away by an express act of the Legislature; yet here we are inquiring what the Legislature intended by the use of language not repealing or professing to repeal the statute, but modifying and continuing it, with a general saving of all rights accruing or accrued, and not affecting any act done; and we are of opinion, that the Legislature did not intend to take away the right, power or privilege of being protected, for the future, against actions then actually barred by the pre-existing law."
It cannot, therefore, be held that by the repeal of the Act of 1920, Article 141 of the Limitation Act is revived even in regard to cases which) were barred by limitation under the repealed Act.
13. The appeal is, therefore. Allowed, the order of the learned District Judges is set aside and the decree of the learned trial Court is restored.
As a difficult question of law is involved in this case, there will be no order as to costs.