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PETITIONER: INNAMURI GOPALAN AND OTHERS

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH AND ANR.(B.  P. SINHA C. J., J. C. S

DATE OF JUDGMENT: 09/04/1963

BENCH:

ACT: Custom-Ancestral  agricultural  lands  in  Jhajjar   Tehsil, Rohtak  District  of Punjab-Unrestricted power of a  Jat  to transfer   it   for  consideration-No  right   of   son   or reversionary heirs to get it set aside unless transaction is for  immoral purposes-No distinction between sonless  holder and  holder  having son-Authority not followed  for  a  long period, ignored by this Court.

HEADNOTE:  A jat holding ancestral agricultural land in Jhajjar Tehsil of  Rohtak  district  in Punjab has by  custom  a  power  to transfer 900 It for consideration.  Such transfer is not liable to be set aside at the instance of his son or other reversionary  heir unless the sale was for immoral purposes. The  courts have consistently recognised such a power  in  a proprietor  having  sons  in spite  of  the  observation  in Joseph’s Customary Law Manual that "whether proprietor  with sons  has the same power is a more doubtful case", and  that power must now be recognised. There is a great deal to be said in favour of the contention that  the existence of a son does not affect that  power  as the  restriction  on power to alienate where it  exists,  is based on the agnatic theory. Budal v. Kirpa Ram, 76 P.R. 1914, not followed. Telu  v. Chuni, 231 P.L.R. 1913, Giani v. Tek Chand,  (1923) I.L.R.  4 Lab.  III, Behari & Ors, v.. Bhola &  Ors,  (1933) I.L.R. 14 Lab. 600, Abdul Rafi Khan v. Lakshmi Chand, (1935) I.L.R.  16 Lab. 505, Ram Datt v. Khushi Ram,  A.I.R.  (1933) Lab. 692, Pahlad Singh v. Sukhdev Singh, A.I.R. (1938)  Lab. 524,  Sohan Lal v. Rati Ram, Regular Second peal No.  136/43 (unreported)  Pb.   High Court, Suraj Mal  v.  Birju,  Civil Regular  Second  Appeal No. 693 of  1952  (unreported),  Pb. H.C. Sheoji v. Fajar Ali Khan, 230 P.L.R. 1913 and Gujar  v. Sham Das, 107 P.R. 1887, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 311 of 1962. Appeal  by special leave from the judgment and decree  dated February  7,1960 of the Punjab High Court in  Regular  First Appeal No. 190 of 1953. Shiv Charan Singh and Janardan Sharma, for the appellants. Achhru  Ram and Brijbans Kishore, for respondents Nos. 1  to 3.  901

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1963.  April 9. The judgment of the Court was delivered by SARKAR J.-The appellants are the sons of Umed Singh, one  of the  respondents  in this appeal.  They filed a suit  for  a declaratory  decree that the sale of certain lands by  their father  Umed  Singh  was void against  them  and  the  other reversionary  heirs.   The contesting  respondents  are  the purchasers of the lands from the father. It is not. in dispute that the lands are ancestral and  that the  parties are jats of Jhajjar Tehsil in Rohtak  District. The only question is as to the existence of a custom  giving a  jat,  holding  agricultural ancestral  lands  in  Jhajjar Tehsil in District Rohtak in Punjab, free power to  transfer them for consideration. The  trial  Court  and the High Court  of  Punjab  in  first appeal,  held that there was such customary power.   Indeed, in  view  of the large number of decisions in which  it  has been consistently held that a sale or mortgage of  ancestral land  by  a  holder is not liable to be  set  aside  at  the instance of his sons or other reversionary heirs, unless the transaction  was for immoral purposes, it is  impossible  to take any other view. We were referred to over a dozen cases and we are sure there are more.  The earliest of these was decided in 1913 and the latest  in  1956.  Excepting in one case to which  we  shall later  refer, nowhere has it been held that the transfer  by way of a sale or mortgage of ancestral property by a  holder is  liable  to be set aside at the instance of a  son  or  a reversionary  heir  unless  the  transaction  had  been  for immoral  purposes.  The present is not a case of  that  kind for  though  the appellants alleged that the  sale  was  for immoral  purposes it has been found that it Was not so.   We may  refer here to some of these cases : Telu v. Chuni  (1), Giani v. Tek Chand (2), (1) 231 P.L.R. 1913.  (2) (1923) I.L.R. 4 Lah. 111, 902 Behari  v. Bhola (1), Abdul Rafi Khan v. Lahshmi Chand  (2), Ram  Datt v. Khushi Ram (3), Pahlad Singh v.  Sukhdev  Singh (4) Sohan lal v. Rati Ram (5) and Suraj Mal v. Birju (6). Learned  counsel for the appellants contended that  none  of these cases dealt with the custom existing in Jhajjar Tehsil and,  therefore, they could not be authorities on which  the present  case  could be decided.  We have first  to  observe that  this statement is not correct for the case  of  Pahlad Singh v. Sukhdev Singh (4), dealt with the custom in Jhajjar Tehsil.   That  appears from the judgment  of  the  District Judge  in  that  case  which is Exh.  D.  5  in  this  case. Furthermore,  we notice that many of the cases to  which  we have  earlier referred treated the custom giving the  holder unrestricted  right  to  transfer  ancestral  property   for consideration, as existing in the whole district of Rohtak : see  for example, Telu v. Chuni (7) and Sheoji v. Fajar  Ali Khan  (8).  It also appears from the Riwaj-i-am  for  Rohtak District  recorded  in Joseph’s Customary Law  Manual,  vol. XXIII  p. 60, compiled at the settlement of 1909  that  "the power  of alienating for consideration is far wider than  in the  Punjab proper." In view of all this we think  that  the Courts  below were not in error in holding that the Jats  of Jhajjar Tehsil in Rohtak District had unrestricted power  to transfer  land  for  consideration provided  of  course  the transfer was not for immoral purposes. Learned counsel for the appellants then contended that  most of  the cases on which the respondents relied were cases  of sonless  holders  and  even  if  these  cases  were  rightly decided,  those which recognised unrestricted power  in  the case  of  a holder having a son were not  justified  by  the

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Riwaj-i-am entries and should not be followed. (1)(1933)  I.L.R.  14 Lah. 600.  (2)(1935) I.L.R. 16  La  h. 505. (3)  A.I.R. (1935) Lah. 692.   (4) (1938) Lah. 524. (5)Regular Second  Appeal 136 of 1943 (Unreported) Pb.  H.C. (6)Civil   Regular   Second  Appeal  No.   693   of   1952 (Unreported) Pb.  H.C. (7)  231 P.L.R. 1913. (8) 23O P.L.R. 1913.  903 We are unable to accept this contention.  We find nothing in the  Riwaj-i-am entries which would show that the  decisions were  not justified.  In Joseph’s Manual it is said that  "a sonless proprietor has full power to alienate his,  property by  sale or mortgage even if there is no necessity".  It  is true  that  it  has also been said  there  that  "whether  a proprietor  with sons has the same power is a more  doubtful case." In spite of this, however, the Courts have since 1913 consistently  held that the power of a holder even where  he has sons to alienate ancestral property for consideration is unrestricted.  It is not now possible nor would it be  right to  upset the law settled by these decisions on the  slender ground  of  the  doubt expressed  in  Joseph’s  Manual.   In Tupper’s  Statements of Customary law vol. 2,  dealing  with Rohtak  District,  it has been said at p. 178  that  "it  is quite common for people to sell or mortgage their land.   In cases  of  sale,  the right of pre-emption  is  observed"  : (paragraph 25).  This statement makes no distinction between the case of a man with a son and one without a son.  We find nothing in the records of custom to which our attention  has been  drawn to justify the view that the case of the  holder of  an ancestral property having a son is different in  this regard  from that of a holder without one.  Furthermore,  it would  be  strange  if  the  existence  of  sons  made   any difference that the point was not noticed in any of the very large  number  of cases dealing with the custom.   We  think that  there  is  a great deal to be said in  favour  of  the contention  of  Mr. Achhru Ram that the restriction  on  the power  to  aliente where it exists is based on  the  agnatic theory  and therefore, no distinction can be made between  a sonless holder and a holder having a son: see Gujar v.  Sham Das (1). We  come now to the only case which takes a  different  view and  on  which the appellant naturally  laid  great  stress, namely, Budal v. Kirpa Ram (1) 107 P. R. 1887. (2) 76 P. R. 1914. 904 That was a case of a sonless holder.  It was held that among Jats in the Rohtak District there was no unlimited power  in holders of ancestral property to alienate it.  This case has however not been followed in any of the subsequent decisions and  in most cases its authority has been discounted.   That we  think is enough to prevent us at this distance  of  time from reviving the view taken in that case.  Furthermore,’ as was  pointed  out, this case does not refer to  the  earlier authorities,  for  example,  Telu v. Chuni  (1).   The  only authority  to which it refers is Tupper’s Customary  Manual, but the view expressed there was not accepted as  sufficient authority because in the introduction Tupper said (p.  173), that  Mr.  Purser  who  gave him the  paper  from  which  he prepared his record "did not consider that it can be  relied on in doubtful points".  This is hardly any reason for there was  nothing to show that the customary power was  doubtful. It would thus appear that the decision in Budal v. Kripa Ram

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(2) was not a satisfactory one. In  this  view  of  the matter we  think  that  the  learned Subordinate  judge  and the High Court came to  the  correct conclusion   that  in  Jhaiiar  Tehsil  a  Jat  holder   had unrestricted  power  to alienate his ancestral  land  for  a consideration. The appeal is dismissed with costs. (1) 231 P. L. R. 1913.    (2) 76 P. R. 1914.  905