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PETITIONER: BARA SINGH

       Vs.

RESPONDENT: KASHMIRA SINGH AND ORS.

DATE OF JUDGMENT12/09/1990

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) THOMMEN, T.K. (J) KASLIWAL, N.M. (J)

CITATION:  1990 SCR  Supl. (1) 417  1990 SCC  (4) 711  JT 1990 (3)   843        1990 SCALE  (2)684

ACT:     Hindu Law  Ancestral Immovable property--Alienation  of- Custom  amongst Jats in Central District of  Punjab--Aliena- tion as a bona fide act of good management--Valid.

HEADNOTE:     Respondent  Nos.  4 to 6 sold their 3/5th share  of  the ancestral  land to the appellant for Rs.14,000, as the  ven- dors left their village and wanted to settle elsewhere where they  purchased 80 kanals of Nehri land. Respondents Nos.  1 to  3  filed a declaratory suit in the court  of  Sub-Judge, Ludhiana  seeking  a declaration that the sale of  the  suit land  would not affect their reversionary rights  after  the death of respondents 4 to 6. They pleaded that the land  was ancestral and according to the custom governing the parties, it could not be alienated; they also asserted that the  land was sold without any consideration and legal necessity.  The appellant  defendant No. 1, contended that the sale  was  an act of good management on the part of the alienors, and that the  same was not without consideration/the  vendors  having decided to settle elsewhere.     The trial court held that the sale was an act of prudent management and was not without consideration. As regards the custom  it  held that the parties were governed  by  custom, whereunder ancestral land could not be alienated except  for legal  necessity or as an act of good management.  The  suit was  accordingly  dismissed and the first  appeal  preferred against that decision failed.     Respondents  1 to 3 thereafter preferred Regular  Second Appeal  before  the High Court. The High Court  allowed  the appeal,  set aside the sale holding that it was neither  for any  legal necessity nor could it be justified as an act  of good  management.  The suit was accordingly  decreed.  Hence this  appeal  by the appellant-defendant No.  1  by  special leave. 418     Before this Court the appellant contended that the  sale was  or  was  not an act of good management  having  been  a question  of fact, the trial court as also the first  appel- late  court having arrived at a concurrent finding  that  it was  an  act of good management, the High Court  should  not

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have  interfered  with that finding. On the other  hand  the respondents  contended that the sale was not an act of  good management. Allowing the appeal, this Court,     HELD: The custom is that the ancestral immovable proper- ty is ordinarily inalienable specially amongst Jats residing in the Central Districts of Punjab, except for necessity and the other permissible reasons. All alienation as a bona fide act of good management has been treated as one of  necessity and hence valid. [233B]     In  the instant case, the vendee proved the  ingredients of  good management and the concurrent finding of the  Trial Court  and the first appellate court was that  the  impugned sale was an act of good management, and it was essentially a finding of fact. [234F]     The High Court was, therefore, in error in setting aside the  concurrent  finding of fact in the  facts  and  circum- stances of the case in Second Appeal.     Gujar v. Sham Das, 107 P.R.  1887; Mohammad Chiragh  and Ors.  v. Fatta & Ors., AIR 1934 Lahore 452; Abdul Rafi  Khan v.P. Lakshmi Chand and Ors., AIR 1934 Lahore 998; Dial Singh v. Surain Singh, AIR 1937 Lahore 493; Gujjan Singh and  Ors. v. Atma Singh, 1968 PLR Vol. 70-195.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1934 of 1972.     From  the  Judgment and Order dated 9.12.  1971  of  the Punjab  and Haryana High Court in regular Second Appeal  No. 1286 of 1969.     V.C. Mahajan, K.R. Nagaraja (NP) and R.S. Hegde for  the Appellant. 419     Uma  Dutta, E.C. Agarwala, Ms. Sheil Sethi  and  Susheel Kumar for the Respondents. The Judgment of the Court was delivered by     K.N. SAIKIA, J. This first defendant’s appeal by special leave  is from the Judgment and Decree of the High Court  of Punjab  and Haryana in R.S.A. No. 1286 of 1969  dated  9.12. 1971. Respondents 4 to 6 Balwant Singh, Jagir Singh and Teja Singh,  sons of Kehar Singh sold land measuring 38 Kanals  3 Marlas,  being 3/5th share of 63 Kanals 11 Marlas of  ances- tral  land  situated at village Maherna  Kalan,  Tehsil  and District  Ludhiana, as per sale deed dated June 4,  1964  in favour of the appellant (first defendant) for Rs. 14,000  as the  vendors  left their village Maherna Kalan and  had  not been cultivating the same and it was not yielding any  prof- it. The sale deed contained a recital that the vendors  sold the land with a view to purchase land in another village. On November 6, 1965 the vendors actually purchased 80 Kanals of Nehri  land for Rs. 11,000. The parties are  admittedly  Jat Sikhs governed by Punjab Customs.     Respondents 1 to 3 filed a declaratory suit on August 3, 1966 in the Court of Sub-Judge, Ludhiana seeking a  declara- tion  that the sale of the suit land would not affect  their reversionary rights after the death of respondents 4 to 6 as they were governed by the custom in the matter of alienation inasmuch as the suit land was ancestral in the hands of  the alienors  qua the plaintiffs (respondents 1 to 3)  and  that the  sale  was effected without  consideration  and  without legal necessity; and respondents 4 to 6 (defendants 2 to  4) were restrained from alienating under the custom.     The appellant averred, inter alia, that the sale was for

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consideration  and legal necessity as it was an act of  good management  on the part of the alienors; that respondents  4 to 6 who were not sonless and were men of good character and sober  habits;  that migrating from their village  they  had settled elsewhere as they were neither cultivating the  suit land  nor  were in a position to manage  and  cultivate  the same; and that the alienors had actually purchased 80 Kanals of better quality Nehri land which showed that the sale  was an act of good management on the part of the vendors. It was also  contended that the land in suit was not ancestral  qua the  plaintiffs nor was it governed by customs and that  the plaintiffs had no locus standi. 420     The respondents 4 to 6 being defendants 2 to 4  admitted the  claims of the plaintiffs. The respondent No. 5 who  was the  brother of respondent No. 2, was impleaded as  proforma defendant having the same interest as the plaintiffs.     The  Trial  Court, inter alia held that the  parties  in respect of the sale of the suit land were governed by custom whereunder ancestral land could not be alienated except  for legal  necessity or as an act of good management;  that  the suit land was ancestral qua the plaintiffs (respondents 1 to 3) and defendants 2 to 4 (respondents 4 to 6); that the sale was  effected for consideration of Rs. 14,000 as  stipulated in  the sale deed; and that the sale was an act  of  prudent management on the part of the vendors and as such unimpeach- able.  The suit having been dismissed and the  first  appeal therefrom  having failed, the respondents 1 to  3  preferred R.S.A.  No.  1286 of 1969 in the High Court  of  Punjab  and Haryana wherein they sought to adduce additional and further evidence  of a sale deed dated June 3, 1969 alleged to  have been  executed by respondents 4 to 6 in respect of the  suit land.  The High Court allowed the R.S.A. and set  aside  the sale holding that it was neither for any legal necessity nor could it be justified as an act of good management. The suit was  accordingly  decreed. The certificate to  file  Letters Patent  Appeal having been refused, the  appellant  obtained special leave.     Mr. V.C. Mahajan, the learned counsel for the appellant, submits that whether the sale was or was not an act of  good management  having been a question of fact, the Trial  Court and the first appellate court having arrived at a concurrent finding  that it was an act of good management and  as  such unimpeachable,  this concurrent finding could not have  been set aside by the High Court in second appeal; that the  sale deed dated June 3, 1969 which was never accepted and  proved according to law was irrelevant for impeaching the sale  and the High Court erred in law in taking it into  consideration while  determining whether the sale was an act of good  man- agement.     Mr.  Uma  Dutta, learned counsel  for  the  respondents, submits, inter alia, that the sale of the suit land  measur- ing 38 Kanals 3 Marlas being on June 4, 1964 and the  subse- quent purchase of 80 Kanals for Rs. 11,000 being on November 8, 1965 and that land also having subsequently been sold  on June  3, 1969 for Rs.35,000 and there being no  evidence  to show that the suit land was less fertile or that the vendors 421 had settled at village Pather, the High Court was correct in holding  that the impugned sale was not an act of good  man- agement.     The  only question to be decided in this appeal,  there- fore, is whether the High Court was correct in setting aside the concurrent finding that the impugned sale was an act  of good management and not restricted by custom.

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   It is common ground that the parties are governed by the local  custom which restricts alienation. About  the  custom W.H.  Rattigan  in  his ’A Digest of Customary  Law  in  the Punjab’ (14th Ed.) in Chapter IV at page 283 said: "Thus,  while the unhampered exclusive use of property in  a man’s  possession,  whether ancestral or acquired,  for  his lifetime, with a free disposal of the income, is not denied, freedom  of  alienation, whether by gift or bequest,  is  in regard  to  ancestral immovable property,  subject  in  most cases to certain restrictions."     A  ’late Senior Judge of the Chief Court’ in  a  leading case  (Nos.  107 P.R. 1887, page  247)  expressed  generally that:          respect  of  ancestral immovable  properly  in  the hands of any individual. there exists some sort of residuary interest in all the descendants of the first owner. or  body of owners, however, remote and contingent may be the  proba- bility of some among such descendants ever having the enjoy- ment  of the property. In short, the owner in possession  is not  regarded as having the whole and sole interest  in  the property,  and power to dispose of it, so as to  defeat  the expectations  of  those who are deemed to have  a  residuary interest  and who would take the property if the owner  died without  disposing of it. The limitations within which  per- sons  having or claiming to have such a  residuary  interest may  prevent  an owner in possession  from  defeating  their expectations  will be found to vary according to local  cir- cumstances, which may either weaken or rebut the presumption that   the   owner  has  not  an   unrestricted   power   of disposition." 422 Sir Meredyth Plowden in Gujar v. Sham Das, 107P.R. 1887 also said: "In respect of ancestral immovable property in the hands  of any individual, there exists some sort of residuary interest in all the descendants of the first owner or body of owners, however remote and contingent may be the probability of some among  such  descendants ever having the  enjoyment  of  the property. The owner in possession is not regarded as  having the  whole and sole interest in the property, and  power  to dispose of it, so as to defeat the expectations of those who are deemed to have a residuary interest, and who would  take the property if the owner died without disposing of it."     In the critical words of Chief Justice Sir Shadi Lal  in Gujar  v. Sham Das (supra) the issues before the Court  were whether in a case, where the power of a sonless Jat proprie- tor  to  alienate ancestral land without  necessity  was  in dispute,  it was the duty of the alienee to prove  a  custom authorizing  a transfer of the ancestral land in  favour  of stranger, and on whom lay the onus of proving that a sonless proprietor  has powers to dispose of ancestral land  without necessity; and the rest were mere deductions.     In para 59 at page 291 of the Digest Rattigan states the restrictions  on alienation of ancestral immovable  property thus: "Ancestral  immovable  property  is  ordinarily  inalienable (especially amongst ’Jats’ residing in the central districts of the Punjab), except for necessity or with the consent  of male  descendants, or, in the case of a sonless  proprietor, of  his male collaterals. "Provided" that a  proprietor  can alienate  ancestral immovable property at pleasure if  there is at the date of such alienation neither a male  descendant nor a male collateral in existence (No. 36 P.R. 1895; No. 55 P.R. 1903, F.B.)"     In other words, the custom is that the ancestral immova-

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ble  property is ordinarily inalienable  especially  amongst Jats residing in the Central Districts of Punjab, except for necessity and the other permis- 423 sible  reasons.  An alientation as a bona fide act  of  good management  has been treated as one of necessity and  hence, valid. At page 388 of the Digest we find the gloss: "In  the  case of a male proprietor, in  the  management  of agricultural affairs a very strict economy and a very excel- lent  management  must not be insisted upon.  Ordinary  bona fide  management  is all that can be demanded (No.  70  P.R. 1894;  No.  20 P.W.R. 1911; No. 40 P.W.R. 1911, and  No.  25 P.R. 1911); 1922, 69 Ind. Case 521 (exchange of land).           Where  although no immediate necessity for a  sale is  established, if the sale has been held to be an  act  of good management, it is binding on the reversioners."     The  above statement has been commented upon as being  a bit  wide, and the suggested statement is that ’such a  sale must  be  upheld’. In Mohammad Chiragh and Ors. v.  Fatta  & Ors.,  A.I.R. 1934 Lahore--452 where although  no  immediate necessity for sale was established, but there was a  recital in the sale deed that the vendors intended to purchase other land with the proceeds of the sale, and a representation  of that  kind  was made to the vendees which  might  have  been believed  by them in good faith, the High Court did not  see any  good grounds for interference with the findings of  the learned  District  Judge that the sale was an  act  of  good management which, it was observed; "was essentially a  find- ing of fact." In Abdul Rafi Khan v. P. Lakshmi Chand & Ors., A.I.R.  1934  Lahore--998 where the members of  the  family, finding  their  position in the village  precarious  due  to deteriorating  relations between it and the tenants  in  the village  sold their Land one by one as they found it  diffi- cult to manage them or recover rent and the vendors moved to another place where they purchased certain land, it was held that the sale of the land was an act of good management  and the vendee was not expected to see to the application of the money  by the vendors to the purposes mentioned in the  sale deed.  Similarly in Dial Singh v. Surain Singh, A.I.R.  1937 Lahore--493,  the question was whether a sale  of  ancestral land was for necessity. On April 3, 1934 Bhagwan Singh  sold ancestral land for Rs. 1,500 the entire consideration  being paid to him before the Sub Registrar. The object of the sale was  the purchase of land in Bikaner and Gwalior States  and actually since the sale Bhagwan Singh spent 424 about Rs. 160 in buying about 100 bighas of land in Gwalior. The  lower courts concurrently found that the sale was  for. necessity.  Before the District Judge it was urged that  the money  had not been actually spent on the purpose for  which it was raised. But the learned District Judge held that this was admitted to be correct, that all that the alienee had to do  was to see that the money was required for a  legitimate purpose. The sole question, therefore, was whether the  sale in  order to buy land in Gwalior and Bikaner was an  act  of good management, which would be regarded as one of  necessi- ty.  The Division Bench held that no sufficient  reason  had been shown for dissenting from the concurrent finding of the courts  below that the sale of land by Bhagwan Singh in  the presence of his elder son was for necessary.     In Gajjan Singh & Ors. v. Anna Singh, [1968] P.L.R. Vol. 70-195 it was held that no person could be tied down to  the village where he had ancestral land unless it was shown that he  was leaving the village or disposing of the land in  the

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village on some false pretext. Where relations of a proprie- tor  with his brother were strained and he sold the land  to purchase land in some other village, the alienation was held to be an act of good management and that once a true  repre- sentation  was made by the vendor, the vendees were  not  to see  the  application of the money and they need  not  prove that the money in fact was utilised for a necessary purpose. It  was further held that the land purchased with  the  sale proceeds of the ancestral land did not cease to be ancestral and it remained ancestral land.     In the instant case the vendee proved the ingredients of good  management  and the concurrent finding  of  the  Trial Court  and the first Appellate Court was that  the  impugned sale was an act of good management, and it was essentially a finding of fact. Applying the law as enunciated in the above decisions we do not find any infirmity therein. The  submis- sions  of  the learned counsel for the respondents  that  in view  of  the subsequent sale of the land would go  to  show that  it  was speculative sale would be  wholly  irrelevant. There  was evidence to show that even prior to the sale  the vendors  were not cultivating and as such not  deriving  any profit  from  the  land. The distance of  time  between  the impugned sale on June 4, 1964 and the purchase of 80  Kanals of  land  in the other village on November 6, 1965  was  not such as to disprove that the sale was an act of good manage- ment and as such was for necessity. The Trial Court  clearly found  that  the  vendors left for and settled  at  the  new village where they purchased 30 Kanals of land. The averment that the purchased land was subsequently sold on June 425 3,  1969  at  Rs.35,000 besides having not  been  proved  in accordance  with law, was wholly irrelevant for the  purpose of  discharging the onus of the appellant--vendee. The  High Court was, therefore, in error in setting aside the  concur- rent  finding of fact in the facts and circumstances of  the case, in Second Appeal.     In  the  result, this appeal is  allowed,  the  impugned Order of the High Court is set aside and Decree of the lower courts  in the suit restored. The parties being  near  rela- tions, we leave them to bear their’ own costs. Y. Lal                                 Appeal allowed. 426