P L D 1966 (W (PLP)

"The point to consider is whether by reversing the decision in Lehna v. Mst. Thakri and in holding that the property of a maternal grandfather in the hands of grandsons is not ancestral qua sons, any rights in property that have come into existence will be affected, or, in other words, any title in immovable property will be disturbed or any expectations on the basis of which certain contracts may have been entered into will be affected. It seems to me that by reversing this decision none of these consequences would follow. The only effect of the decision is that it confers a power of control on the son of the maternal grandson in respect of alienations made by his father. This power of control entitles him to bring a suit to challenge such an alienation. Such a power to control is not right in property. It is only an option to avoid an alienation, and the right to bring a suit to safeguard the rever sionary rights being not an interest in immovable property, if that right is taken away, it would not disturb any title in immovable property. "At best the reversal of the decision will only affect some pending suits and suits that may in future be brought by such persons to control the alienations made by their father. The titles of the alienees in such properties, on the other band, become secure. Instead of disturbing their titles the overruling of this decision would confirm those titles and make them absolute. The decision in Lehna, v. Mst. Thakri has otherwise no effect on any immovable property.

13. It will be observed that the two main grounds on which the Full Bench of the East Punjab High Court has taken a contrary view in this matter are: (a) That the conflict about the meaning of the word ancestral as applied to property in Hindu Law has been set at rest by the Privy Council in Muhammad Hussain Khan and others v. Babu Kishva Nandan Sahai and there is, therefore no longer any uncertainty in this regard; and. (b) that the rule of stare decisis has not been correctly applied in the case of Mst. Attar Kaur and Dula Singh v. Nikkoo and others.

14. We do not consider it necessary to examine the first ground at any length for the reason that, in the first place, the, rules of custom prevailing in the Punjab are not identical with the rules of Hindu Law, and, therefore, the dictum of their Lordships of the Privy Council in Muhammad Hussain Khan's case does not necessarily apply in the present case; secondly, because we are of the view, with the utmost respect to the learned Judges who decided the case of Narotam Chand and another v. Mst. Durga Devi, that the rule of stare decisis does apply in the instant case; and finally because, as observed by Le Rossignal, J. in Mst. Attar Kaur's case, the decision in Lehna and another v. Mst. Shakri and another has itself created custom since that date.

15. The rule of stare decisis as enunciated by Halsbury in' paragraph 1690 of Volume 22, Laws of England, Third Edition, is' in the following words:‑ "Apart from any question as to the Courts being of co‑ordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon. by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by Courts of higher authority than the Court establishing the rule, even though the Court before whom the matter arises afterwards might not have given the game decision had the question come before it originally. The supreme appellate Court will, however, not shrink from overruling a decision, or series of decisions; which establish a doctrine plainly outside a statute and outside the common law, when no title and no contract will be shaken, no person can complain, and no general course of dealing be altered by the remedy of a mistake. In general the House of Lords will not overrule a long established course of decisions except in plain cases where serious inconvenience or injustice would follow from perpetuat ing an erroneous construction or ruling of law. The same considerations do not apply where the decision, though followed, has been frequently questioned and ‑doubted. In such a case it may be overruled by any Court of superior jurisdiction."

16. In Alfred Granville Ross v. The Queen (P L D 1957 P C 151) which was a case from the Court of Appeal for Eastern Africa, while dealing with the question of. jurisdiction of the appellate Court, their Lordships observed that "as the jurisdiction has been exercised without challenge for more than fifty years during the whole of the existence of the present Court and its predecessors, they are glad to be able to come to the clear conclusion that there is no valid ground for questioning it". In that case no question of a right in immovable property was involved and yet the rule of stare decisis was clearly applied in the matter of a right of appeal in a criminal case. In Allah Bakhsh v. L. Chet Ram and another (A.I R 1945 Lah. 123), Harries, L. J., delivering the judgment of the Full Bench in a case dealing with the interpretation of section 60 of the Civil Procedure Code, expressed himself as under:‑ "Much can be said for both the contentions urged before us. But in my judgment, it is unnecessary to consider the merits and demerits of each contention. It has been accepted for a long period of time that this section does not apply to mortgage decrees and in my judgment it is now too late to urge and to hold that it does. This Court and other Courts in India for the last sixty years or so have held that section 60, Civil P. C., does not apply to mortgage decrees, and even if that view be wrong, it should not in my Judgment be upset at this late stage, Where a decision of the Courts originally wrong or an erroneous conception of the law, especially of real or immovable property, has been held for a length of time and as such has become the basis upon which rights have been regulated and arrangements as to property made, the maxim communis error facit jus should be applied." His Lordship went on to refer with approval to the views expressed by Sir Shadi Lal, C. J. in Mst. Attar Kaur's case.

17. It will be seen that the rule of stare decisis is not limited strictly to matters where concrete and tangible rights in immovable property have come into existence or contracts have been entered G into; but it also extends to other matters where Courts have taken a particular view in a long line of decisions extending over a long period. Now, in the present case the right of a son to challenge the alienation of property inherited by his father from his maternal grandfather may not be, in the strict sense, a tangible right in immovable property itself, yet it is an extremely valuable right which has now become a part of the customary law of the Punjab and has an important bearing on the disposition of property in our agricultural communities. As long ago as 1924 Sir Shadi Lal, C. J thought it too late to disturb the view taker in the case of Lehna and another v. Mst. Thakri and another Now, after the lapse of more than 40 years since Sir Shadi Lal, C. J. delivered his judgment in Mst. Attar Kaur's case, it would be absolutely unjustified on the part of the Courts in this Province to reverse that view. We consider, therefore, that we must follow the view taken in Lehna's case and so far consistently followed by D the Courts in this Province.

18. We have already stated that apart from the rule of stare decisis, the long line of decisions in this behalf have themselves created a custom which must now be deemed to be a part of the E customary law of this Province, for judicial decisions have always been regarded as an important proof of custom.

19. For all these reasons we would uphold the finding of the learned trial Court that the property in dispute must be regarded as ancestral qua the plaintiff.

20. The next question to be considered is whether the property came to Muhammad Hayat Khan under the will set up by him. The will in question has been placed on the record as Exh. D.

5. It is dated the 7th of February 1930, and according to it the entire agricultural property owned by Col. Altaf Ali amounting to 20 squares of land was to go to his maternal grandson Muhammad Hayat Khan; but we know that as a matter of fact this did not happen and instead in the mutation of inheritance (Exh. P. 36) attested on the 14th of December 1930, Muhammad Hayat Khan did not get more than half the property, and an almost equal share went to his mother's sister Mst. Umrao Begum, and a substantial share was also given to his collateral Abdul Majid Khan. We have already stated that the mutation of inheritance was the result of a compromise affected between the various contestants who had all questioned the genuineness of the will sought to be relied upon by Muhammad Hayat Khan. It is, therefore, clear that Muhammad Hayat Khan did not succeed to the property now in dispute under the will Exh. D. 5 but merely succeeded as an heir of his grandfather. There is thus no force in the contention that the ancestral nature of the property was changed in this case due to the will in question.

21. The last part of the argument in this behalf is that, in any case, the land came to Muhammad Hayat Khan as part of a family arrangement and not in the course of ordinary succession. It was submitted by Sheikh Mahboob Ellahi that assuming that Col. Altaf Ali was governed by custom, his self‑acquired property should have been inherited by his two daughters, namely, Mst. Umrao Begum and Muhammad Hayat Khan's mother Mst. Fazal Begum, and no share could be given to Abdul Majid, but as Abdul Majid did get a share it is clear that the family arrangement interfered with customary inheritance, thus detracting from the ancestral nature of the property.

22. The effect of family arrangements has been considered in several decided cases, and a reference to them would be helpful in understanding the true implications of the family arrangement which took place in this case.

23. The earliest case on the subject seems to be Lalla Oudh Beharee Lall v. Ranee Mewa Konwar ((1868) 3 A H C R 82). On disputes having arisen between the various claimants as to the inheritance of the property in suit certain agreements were entered into between them. Dealing with these agreements their Lordships observed as follows: "The two agreements make mention of the existing disputes among the relatives respecting the inheritance which is described as ancestral and acquired property of Raja Ruttun Singh, and the agreements also indicate though vaguely the nature of the conflicting claims. The true character of the transaction appears to us to have been a settlement between several members of the family of their disputes, each one relinquishing all claim in respect of property in dispute other than that falling to his share, and recognizing the rights of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the Courts to uphold and give full effect to such an arrangement."

24. These observations of the learned Judges of the High Court were approved by their Lordships of the Privy Council in Khunni Lal and others v. Munwar Gobind Krishana Narain and another (101 C 477), which was also a case relating to the same family. After quoting these observations, their Lordships said that they had no hesitation in adopting that view. 25: It will be seen that the dictum in these two cases was clearly to the effect that the family settlement did not confer any new title on the claimants, nor did it in any manner alter the nature of the inheritance or the property inherited. The settlement only recognized antecedent claims of the various contestants to inherit the property in dispute and accordingly in spite of the family arrangement the case remained essentially one of inheritance. The same view was taken in Debtor v. M. Udit Persliad (901 C 779). It was laid down that "if a dispute in which a person claims to succeed to certain landed property by right of inheritance, based on an alleged custom, results in a compromise which F recognizes the claimant's antecedent title to the property, his interest in such property is directly or indirectly inherited and, therefore, ancestral land within the meaning of section 279 (a) of the Oudh Civil Digest." Reference to the provision of the Oudh law makes no difference, for this provision only defined ancestral land as meaning, inter alia, land which has been owned continuously in Agra from the 1st of January 1860, by the proprietor or by the person or persons from whom such proprietor had directly or indirectly inherited such land. The question before their 'Lordships was, therefore, exactly similar to the one which has arisen in the instant case, namely, whether a family arrangement deflected the course of inheritance thereby altering the ancestral nature of the property, and the question was answered in the negative. In returning this answer the learned Judges placed reliance on the observations appearing in the case of Lala Oudh Beharee Lall.

26. The question was again considered, although in different context, in Tej Bahadur Khan v. Nakko Khan and others (A I R 1927 Oudh 97) and Mahabir and another v. Dwarika and others (A I R 1927 Oudh 572), and the view expressed was that "the essence of a family arrange ment lies in an adjustment of conflicting claims bona fide made and recognized on both sides with the laudable object of putting an end to a controversy." In the first mentioned case it was held that "in such a case the arrangement need not be in writing and registered."

27. Again in Raghubir Datt Pande and others v. Narain Datt Pande and others (A I R 1930 All. 498) reliance was placed on the case of Lalla Oudh Beharee Lall and it was held that "a family arrangement is in no sense a transfer of property, for no right, vested or contingent, is conveyed by one party to another. The arrangement proceeds upon the assumption that one or other of the claimants has an antecedent title to the property in whole, or in part, or in unequal proportions, and the entire scheme rests not upon the transfer of a right but upon the recognition of a claim .. . . ."

28. As against the authorities noticed above, Sheikh Mahboob Ellahi drew, our attention to Ramasami Naidu and otherrv. Gomathi alias Avudi Ammal and others (33 1 C 521), T. R. Venkata Row alias Ganesa Row v. T. V. Tuljaram Row and others (38 1 C 270) and Raja Surendra Vikram Singh v. Rani AYlunia Kunwar and another (A I R 1944 Oudh 65), in an effort to show that family arrangement altered the course of inheritance and consequently the ancestral nature of the property. We do not think any such conclusion flows from these authorities. In the case of Ramasami Naidu the facts were that the last male owner had made a gift of his lands to his two nephews, one of whom had married his daughter. Some disputes having subsequently arisen, the widow and the daughter sued the donee son‑in‑law for the recovery of the suit lands, alleging that he held them merely as Manager. This suit was compromised and the estate was divided into three shares, of which one nephew was to take one share absolutely, the other nephew was to take the other share and his wife the third, and both these shares were to go after their deaths to their common children. On the death of the daughter the plaintiff sued as reversioner for the recovery of the property. It was held that "the property awarded to the daughter under the compromise could not be deemed to have been given to her for the benefit of the estate and to have been held by her as woman's estate, but that the whole arrangement was in the nature of a settlement of family dispute when the parties intended to recognize the title of each other to the property falling to their respective shares and that, therefore, the plaintiffs suit was not maintainable." In coming to these conclusions their Lordships took note of the fact that "all the parties to the suit have expressly agreed under the compromise decree that the property should be settled as two‑third upon Ramasami and his wife and upon their children, which absolutely negatives the view that one‑third of it was to be taken by Krishnammal as heir of her deceased father * * * * *. The question then is whether there is any rule of law which in such circumstances prevents us from giving effect to the clear intention of the parties as expressed in the compromise decree and we are of the opinion that there is not * * * * *". It will be seen that this case rests essentially on the principle that the intention lying behind the family arrangement must be given effect to by the Courts. When this principle is applied to the case before us, we find that in the mutation of inheritance it is clearly stated that 'the arrangement was with regard to the inheritance of the Late Col. Altaf Ali, and no intention can be spelt out from the mutation proceedings, and the compromise which preceded it, to the effect that the parties were intending deliberately to deflect the course of inheritance or to alter the ancestral nature of the property.

29. In the case of Venkata Row alias Ganesa Row the observations were made that "a compromise as between members of a family purporting to be an honest settlement of disputed rights should not be interfered with by the Courts where the settlement is made bona fide and no question of justifiable necessity arises as in the case of alienation." It is clear that this dictum has no relevance in the present context and does not in any manner advance the case of the appellant.

30. More or less similar observations were made in the case of Raja Surendra Vikram Singh and it was observed that "a family arrangement at bottom is nothing but an agreement and the essential thing is that it should be for consideration. A bona fide dispute, a doubtful claim or settlement on the basis of an antecedent title is not absolutely essential in all family arrange ments. When the arrangement is between members of a family and the object of the arrangement is to preserve family honour, family property and family peace, a Court of equity favours these transactions and is not inclined to examine with meticulous care the consideration which moved the parties to this arrangement." It will be seen that these observations are not helpful in resolving the issue, which we are considering.

31. Our conclusion on this part of the case, therefore, is that although it is true that the property in dispute came to Muhammad Hayat Khan under a family arrangement, but that arrangement was in the nature of a recognition of the antecedent claims of the various contestants as heirs of the late holder of the property. The nature of the claims recognized by the contestants is not to be inquired into after the arrangement has been acted upon. Under such an arrangement the property clearly descends to the settling parties by inheritance, and does not in any manner change in nature from ancestral to non ancestral.

32. For the reasons given above, the property in dispute must, therefore, be regarded as ancestral in the hands of Muhammad Hayat Khan qua the plaintiff Liaquat Hayat Khan. We, therefore, now proceed to examine whether their family was governed by custom.

33. The family‑ of Muhammad Hayat Khan belongs to the Raj put tribe of Jagraon in the District of Ludhiana, now in East Punjab. This tribe is admittedly a dominant agricultural tribe of Ludhiana District and the Rajputs were consulted at the time of the preparation of the riwaj‑i‑am, as is evidenced by Exh. P. 37 and Exh. P.

38. The first document is the riwaj‑i‑am prepared at the time of the settlement of 1882 and the second one relates to the settlement of 1909‑

10. From these two documents it is amply clear that the Rajputs of Jagraon were governed by custom. In fact, in Exh. P. 38 an instance of gift by Col. Altaf Ali to his daughter Mst. Umrao Begum is mentioned and it is stated that he did so in the absence of male collaterals and no one had challenged the gift. Apart from these copies of riwaj‑i‑am of two successive settlements, a large number of judgments and decrees have also been placed on the record to show that the family was governed by custom. It does not appear necessary to give the details of these documents except to mention their exhibits, namely, Exhs. P. 17 to P. 22 and P.

39. In all these cases custom was held to apply to the family although some of the decrees were obtained ex parte. According to the entries in the riwaj‑i‑am as well as the judgments and decrees placed on the record it is clear that Muhammad Hayat Khan could not make a gift of ancestral property in favour of his sister Mst. Mehdi Begum, nor could he alienate the property in favour of a stranger without consideration and legal necessity.

34. The nature of the rule of custom applicable is really not in dispute in this case, and the main contention raised by Sheikh Mahboob Ellahi is that even though the family belongs to the Rajput tribe of Jagraon. Yet it could no longer be considered to be governed by custom for the reasons that the late Col. Altaf Ali and many other members of the family had drifted away from agriculture and were serving in the army and other positions; that the property was acquired by Altaf Ali from income derived from army services; that they had taken up their residence in towns like Kapurthala and Ludhiana and no longer remained members of compact agricultural communities; and finally, that they were no longer cultivating land with their own hands and agriculture did not constitute their main occupation and source of livelihood.

35. In support of his contentions the learned counsel for the appellant referred us to Muhammad Hayat Khan v. Sandhe Khan and others (55 P R 1908), Muzaffar Muhammad v. Imam Din and another (9 Lah. 120) and Nathu and others v. Muhammad Rafiq and others (20 1 C 207).

36. In the first mentioned case it was held that "in matters of alienation the descendants of a Rajput who had acquired urban immovable property, as a means of investment, out of his earnings in Government service, should not be presumed, merely because they were Rajputs, to be governed by the general rules of the customary law, and the burden of proof as to the existence of a special custom, whereby the descendants were incompetent to alienate without necessity, rested on the person who asserted its existence". It was further observed that "presumption in favour of a restricted power of alienation of ancestral immovable property, as laid down in Gujar v. Sham Das (107 P R 1887) applies only to members of agricultural tribe who are members of village communities and whose main occupation is agricultural, but not to those who have altogether drifted away from agriculture as their main occupation, and have settled for good to urban life and have adopted trade, industry or service as their principal occupation and means and source of livelihood".

37. In the second case relied upon by the learned counsel the facts were that the father of the plaintiff, a Kamboh, residing at Lahore sold agricultural land in the Lyallpur District. The plaintiff brought a suit for the usual declaration that the sale being without consideration and necessity was not binding on him. The trial Court held that the plaintiff, on whom the onus lay, had failed to prove that the vendor was governed by custom and not by Muhammadan Law. The facts found were that the ancestors of the plaintiffs had from time immemorial lived in Lahore City and none of them had actually followed agriculture as a profession but that their main occupation had for generations been services and trade. The Court held that "in these circumstances, the onus of proving that his family was governed by agricultural custom was rightly laid upon the plaintiff, even though Kambohs are one of the dominant agricultural tribes of the Lahore District".

38. In the last case cited by Sheikh Mahboob Ellahi the observations made were as under:‑ "The initial presumption in favour of a restricted power of alienation of ancestral property applies to members of agricultural tribes who are members of village communities. But where a family, though belonging to an agricultural tribe, has altogether drifted away from agriculture as its main occupation, the presumption no longer attaches in the case of such a family. The mere fact that a tribe is included in the list, of agricultural tribes under section 4 of the Punjab Alienation of Lands Act is not conclusive proof that the tribe has adopted the general rules of customary law."

39. It will be seen that the case of Muzaffar Muhammad v. Imam Din and another is not at all relevant here, for in that case the ancestors of the plaintiff had never followed agriculture as a profession, but there is no such evidence in the instant case. The only evidence in this case is that Col. Altaf Ali and some of his ancestors were serving in the Kapurthala army, but there is no evidence whatsoever that these ancestors of Col. Altaf followed any other profession or trade or gave up agriculture. After Altaf Ali his maternal grandson Muhammad Hayat Khan, who is the vendor in this case, is completely dependent on agriculture and nothing else. The facts of the present case are, therefore, clearly distinguishable from those in Muzaffar Muhammad's case. Similarly, the dictum in the other two cases relied upon by Sh. Mahboob Ellahi proceeds on the basis that the family in question had completely drifted away from agriculture as its main occupa tion and had settled for good to urban life having adopted trade, industry or service as their principal occupation and means and source of livelihood. Such is not the case here. It is well‑known that members of agricultural tribes have always provided recruits for army service, but such service has never been treated as a complete drift from agriculture. In the case of the family with which we are dealing, there is no evidence that the family adopted any trade or business as their main occupation or that they severed their connections with the village community to which they belonged. On the contrary there is evidence in the shape of numerous decrees that custom was followed in the post, and that in fact Muhammad Hayat Khan has no other source of livelihood at all, except the agricultural property inherited by him from his maternal grandfather. In these circumstances, it is clear to us that Muhammad Hayat Khan and his family continue to be governed by custom.

40. The question with which we are dealing here came up before a Division Bench of the Lahore High Court in Muhammad Yusuf. Muhammad Abdullah and others (A I R 1944 Lah. 11). Din Muhammad, J., who delivered the judgment of the Court, expressed himself as under:‑ "No doubt it is open to a family to abandon custom and to adopt its personal law, but in order to determine that this has effectively been done, unequivocal circumstances must exist which point to that conclusion. The mere fact that a person belonging to a tribe, which is a predominantly agricultural tribe and was consulted at the time of the preparation of the Riwaj-i-Am, migrates to a town or temporarily ceases to cultivate land, would not be enough to justify the conclusion that he has abrogated customary law altogether. Custom, unlike a cloak, cannot be cast off at one's mere volition. Mere occupation of the parties concerned is not to be taken as a conclusive factor in determining whether the parties were governed by their personal law or customary law."

41. Again, in Mst. Shahzadan Bibi and others v. Amir Hussain Shah (P L D 1956 S C (Pak.) 227), it was laid down: Where a tribe is consulted at the preparation of the Riwaj-i-Am, an initial presumption arises that a member of that tribe is governed by custom and not by his personal law, and the onus to show that he has ceased to be governed by custom lies on those alleging the same. Statements in a Riwaj‑i‑Am which is a public record prepared by Public Officer in the discharge of his duties and under Government rules, are a strong piece of evidence even without instances, their contents are true and must be accepted unless rebutted."

42. Respectfully following the view adopted in the two cases just cited, we consider that where a family belongs to a predominantly agricultural tribe which was consulted at the time of the preparation of Riwaj-i‑Am, and where there are numerous instances by way of decided cases to show that custom has been consistently followed in matters of succession, etc., the onus lies heavily on the person, who challenges the application of the rule of custom, to show that the family has clearly and unequivocally drifted away from agriculture as its main occupation and has abandoned the rule of custom. In the present case this onus has not at all been discharged by the appellant.

43. Once it is held that the land in dispute was ancestral in the hands of Muhammad Hayat Khan qua his son Liaquat Hayat Khan (the plaintiff respondent), and that the family was governed by custom, it is clear that the gift made by Muhammad Hayat Khan in favour of his sister Mst. Mehdi Begum was invalid under the custom which prevailed among the Rajputs of Jagraon in the District of Ludhiana, and would not be binding on the reversionary rights of the plaintiff' after his father's death. All the other transactions (including the sale in favour of the appellant's father) based on this gift would be similarly hit.

44. It was, however, strenuously contended by Sheikh Mahboob Ellahi, the learned counsel for the appellant, that we must look at the real nature of the transaction involved in this case, which was nothing else but a sale by Muhammad Hayat Khan himself to the appellant's father; and the earlier gift made by him in favour of his sister Mst. Mehdi Begum as well as the gift made by Mst. Mehdi Begum in favour of her husband Khan Bahadur Altaf Hussain were fictitious transactions. It was submitted that in actual fact it was Muhammad Hayat Khan who remained in physical possession and control of the land in dispute, that Mst. Mehdi Begum and her husband lived far away in Batala and that it was Muhammad Hayat Khan who in fact sold the property and received the 6onsideration, although purporting to act as the Special Attorney of Khan Bahadur Altaf Hussain. In support of these contentions the learned counsel drew our attention to the averments made by the plaintiff‑respondent himself in paragraphs 3, 4 and 5 of the plaint. We consider that it would be relevant to give here a translation of these paragraphs, as they disclose in clear terms the case set up by the plaintiff respondent for the purpose of obtaining the necessary declaration under custom: --‑ "Paragraph 3.‑That the defendant No. 1, (i. e., Muhammad Hayat Khan) executed, without consideration and without authority, a fictitious and bogus relinquishment deed in favour of respondent No. 2, (i. e., Mst. Mehdi Begum) on 16‑12‑1932, purporting to show alienation of three squares of ancestral land measuring 660 kanals and 9 marlas; although defendant No. 1 had no right under the law or custom to execute any such relinquishment deed, nor could any relinquishment deed be effective in respect of the aforesaid land. And no rights could be transferred under the law by virtue of this relinquishment deed, nor in fact were any rights so transferred. And the possession of the disputed land was not delivered to defendant No.

2. The mutation in question is not binding on the reversionary rights of the plaintiff after the death of defendant No.

1. A copy of the relinquishment deed is attached. "Paragraph 4.‑That the mutation of the land made at the instance of defendant No. 1 in favour of defendant No. 2 was not binding on the plaintiff, but with a view to injuring the plaintiff the defendant No. 2 (Mst. Mehdi Begum) made a fictitious oral gift, in accordance with a conspiracy, in favour of her husband (defendant No. 3) and got mutation No. 512 entered and attested on the 13th of March 1933, although in the circumstances defendant No. 2 had no right to make any such oral gift, as the original mutation made in her favour by defendant No. 1 was not binding on the plaintiff, and in pursuance of the gift no possession has been transferred to defendant No. 3. "Paragraph 5.‑That Khan Bahadur Raja Fazal Dad Khan, the late father of defendant No. 4 (namely, the appellant Muhammad Tahir Raza Khan) was fully aware of the immoral and extravagant activities of defendant No. 1 (Muhammad Hayat Khan), that defendant No. 1 was under the influence of Raja Fazal Dad Khan, and that the latter was also cognizant of the fact that the relinquishment deed and the subsequent gift were mere fictitious and paper transactions. Knowing all these facts Raja Fazal Dad Khan, with a view to injuring the plaintiff and taking undue advantage of the moral weaknesses of defendant No. 1, persuaded the latter to sell the land in his favour; and that in order to carry out this fraudulent transaction defendant No. 3 executed a Special Power of Attorney in favour of defendant No. 1 for the purpose of alienating this land. And that the father of defendant No. 4 then got executed in his favour a fictitious sale deed dated 8‑12‑1939 from defendant No. 1, without consideration and legal necessity and without authority, mentioning a fictitious payment of Rs. 40,000 as the sale 'price. In the above‑mentioned circumstances, even defendant No. 3 had no right to sell this land. In any case, the mutation of sale is also not binding on the plaintiff' according to law and custom."

45. From contents of the above paragraphs of the plaint it is clear that according to the plaintiff‑respondent the relinquish ment deed or gift said to have been made by his father Muhammad Hayat Khan in favour of the latter's sister Mst. Mehdi Begum was a fictitious transaction and that possession was never delivered to Mst. Mehdi Begum in pursuance of this relinquishment deed or gift. Similarly, the further gift made by Mst. Mehdi Begum in favour of her husband Khan Bahadur Altaf Hussain was also fictitious. If indeed this is the case of the plaintiff, then it is clear that the land all along remained the property of Muhammad Hayat Khan and it was he who in fact sold it to the appellant's father Raja Fazal Dad Khan. In these circumstances, the question whether the sale in favour of Raja Fazal Dad Khan was valid or not under custom would depend on determining whether the sale was for legal necessity, the receipt of consideration not being in dispute, as the entire sale price amounting to Rs. 40,000 was received by Muhammad Hayat Khan in cash before the Sub- Registrar at the time of the registration of the sale‑deed Exh. P. 2 on the 8th of December 1939.

46. It was submitted by Mian Muhammad Shafi, the learned counsel for the plaintiff-respondent, that we should not base our decision on the averments made in paragraphs 3, 4 and 5 of the plaint, for the reason that these paragraphs were denied by the present appellant in his written statement, in which it was asserted that the relinquishment deed as well as the subsequent gift were both valid, that possession had been delivered to the donees on both the occasions, that in fact Muhammad Hayat Khan had made the relinquishment deed in deference to the will of his maternal grandfather Col. Altaf Ali who had desired that the property should be given to Mst. Melidi Begum, and that the sale in favour of Raja Fazal Dad Khan was in fact by Khan Bahadur Altaf Hussain, Muhammad Hayat Khan only acting as a Special Attorney. Mian Muhammad Shafi further submitted that there was evidence on the record to show that possession was in fact delivered to Mst. Mehdi Begum in pursuance of the gift made in her favour by Muhammad Hayat Khan. Lastly, he argued that in this country the pleadings are not to be construed strictly and that we should take note not only of what the plaintiff had said in his plaint, but also of the defence set up by the appellant in his written statement, and we should hold the appellant to the stand taken by him in the written statement and not allow him to challenge the two gifts as being fictitious and without possession.

47. In support of his submission that the pleadings in this country are not to be construed strictly, Mian Muhammad Shafi has referred us to Kvi Oh and another v. Ma Thet Pon (AIR 1926 P C 29), Amru v. Santa and others (A I R 1935 Lah. 441), Ghulam Muhammad Khan and others v. Samundar Khan and others (A I R 1936 Lah. 37), and Jalal Din and another v. Nawab and others (A I R 1941 Lah. 55). The first mentioned case was from a Mofussil District of Burma and it was observed by their Lordships of the Judicial Committee that "in a case from District Court in Burma pleadings and the whole conduct of the case could scarcely be scrutinised with the strictness with which a case would be scrutinised in England". These observations are not directly helpful in the instant case, but, however, the other cases relied upon by the learned counsel do support his submission. For instance, in the case of Amru v. Santa and others. Agha Haider, J. observed that "pleadings in Punjab must not be construed too strictly but in liberal manner so as to do substantial justice between the parties". Again, in the third case cited by the learned counsel it was said that "it is not possible to expect any extreme degree of exactitude in the pleadings drafted in the Mofussil Courts, nor is it fair to confine oneself to a particular passage therein while determining their true nature. It must be taken as a whole". In the last case, namely, Jalal Din and another v. Nawab and others, it was emphasised that "too much insistence should not be laid on the technicalities of pleadings. If the facts on both sides are stated with sufficient correctness and precision, the legal effects which flow from them are a matter for determination by the Court which conducts the trial or hears any subsequent appeal."

48. We are in respectful agreement with the observations made in these cases, namely, that pleadings must not be construed strictly, especially when they are drafted in the Mofussil Districts of the Province, and that mere technicalities appearing in the pleadings should not be allowed to stand in the way of the Court doing substantial justice between the parties, on the facts stated by both sides. But the question is what exactly is the meaning of the phrase "construction of the pleadings": It is clear that a question of construction of the pleadings would arise only when there is some ambiguity in the language employed therein, or when the pleadings set out to lay down a legal proposition which would be more a matter of argument than of statement in the pleadings. In such a case it can be said that the pleadings should not be construed or interpreted strictly according to their letter. But it is clearly not a matter of construction of the pleadings when certain facts are stated in clear and unambiguous language in the plaint or the written statement, facts which do not need any elaborate construction or interpretation, but emerge quite plainly and easily from the words used. In such a case the party concerned has taken up a positive position in support of its case and the question really arises whether, under the cloak of liberal construction of pleadings, the party can be allowed to resile from the case set up by it in its pleadings. We are of the opinion that this cannot be permitted, for it will have the effect of allowing a complete departure from the case as initially set up. Even if the party concerned had applied for a formal amendment of its pleadings during the course of the trial or in the appellate Court, we are not at all certain that such an amendment could have been allowed without causing prejudice to the opposite‑party, as it would have the effect of completely altering the nature of the suit.

49. In this view of the matter we consider that the plaintiff respondent cannot be permitted, at this stage, to completely depart from the stand taken by him in paragraphs 3, 4 and 5 of his plaint, namely, that the gift made by Muhammad Hayat Khan in favour of his sister Mst. Mehdi Begum and the further gift made by Mst. Mehdi Begum in favour of her husband Khan Bahadur Altaf Hussain were fictitious and without delivery of possession in pursuance thereof, and that the land in dispute remained all along the property of Muhammad Hayat Khan who ultimately sold it to the appellant's father Raja Fazal Dad Khan without consideration and legal necessity. It is true that in the prayer clause a declara tion was also sought about the invalidity of the gift made by Muhammad Hayat Khan in favour of Mst. Mehdi Begum, yet the real challenge was to the alienation made by Muhammad Hayat Khan in favour of Raja Fazal Dad Khan. It was asserted in no uncertain terms that possession was never delivered to Mst. Mehdi Begum in pursuance of the relinquishment deed executed in her favour by Muhammad Hayat Khan.

50. It is true that in the written statement these averments were denied and the defence taken up was that the relinquishment deed had been acted upon and that Mst. Mehdi Begum, and through her Khan Bahadur Altaf Hussain, had become the true owners of the land in. dispute. It is also correct that the defendant‑appellant also wants to recile from this defence and, therefore, the question is whether he can be permitted to do so. We think the answer lies in the fact that, in the first instance, it is the plaintiff who has to prove his case in order to obtain a decree, and secondly it is open to the defendant to take up inconsistent pleas. This is precisely what the appellant has done in this case. The first line of defence adopted by the defendant is that the gifts were valid, and that the alienation was in fact made by Khan Bahadur Altaf Hussain in favour of Raja Fazal Dad Khan, but in paragraph 14 the alternative defence taken is that the appellant's father had satisfied himself, at the time of buying this land, that the sale was for the benefit of the family as defendant No. 1 (namely, Muhammad Hayat Khan) had to pay Rs. 21,000 for redeeming his bungalow, with regard to which a decree had been passed by the Senior Sub‑Judge, Lyallpur, and that this money had to be paid by the 12th of December 1939. It was further asserted in this paragraph of the written statement that other creditors were also making demands on defendant No. 1 and in these circumstances the plaintiff had no right to object to the alienation, which was made by the defendant No. 1 acting as the Special Attorney of defendant No.

3. It was finally asserted that defendants Nos. 1 to 3 were now resiling from their positions in view of their relationship inter se. It is thus clear that it is open to the appellant to take up either line of defence and he cannot L be estopped from adopting the position asserted by the plaintiff respondent himself in paragraphs 3, 4 and 5 of the plaint with regard to the fictitious nature of the two gifts.

51. It is significant that a large mass of evidence was placed on the record by the plaintiff himself to prove numerous alienations by way of mortgages created by his father Muhammad Hayat Khan. This was obviously done with a view to proving that the present alienation by Muhammad Hayat Khan was without legal necessity. A reference to these documents will appear later in this judgment but at this stage we are referring to them simply to show that this was the basis on which the plaintiff supported his case, namely, that the real alienor was his father Muhammad Hayat Khan and not Khan Bahadur Altaf Hussain. For this reason also we consider that the plaintiff must be held bound by the case set up by him in the plaint and, therefore, the real question which arises for determination is whether there was legal necessity for the alienation in dispute.

52. Apart from the question of holding the plaintiff to his pleadings, we have clearly formed the impression that the statements made in the plaint do indeed represent the true state of affairs. According to the averments made in the gift deed Exh. P. 1 dated the 16th of December 1932, Muhammad Hayat Khan was relinquishing his rights in the property in dispute in favour of his sister Mst. Mehdi Begum in pursuance of the will made by the late Col. Altaf Ali. It was stated in this document that the late Colonel made a will in favour of Muhammad Hayat Khan on the 7th of February 1930, and in the presence of Muhammad Hayat Khan as well as his sister Mst. Mehdi Begum he instructed Muhammad Hayat Khan to give some share to Mst. Mehdi Begum out of the property situated in Chak No. 220, Rakh Branch. The learned trial Judge has held that, in the first instance, the execution of the will is not at all proved; and secondly that, in any case, the will, as placed, on the record, does not contain any stipulation at all to the effect that any portion of the property should be given to Mst. Mehdi Begum by Muhammad Hayat Khan by way of gift after the Colonel's death. The learned trial Judge has, therefore, expressed the opinion that this stipulation in the relinquishment deed was simply a concoction. We agree with these conclusions of the learned trial Judge. The genuineness of the will has not been canvassed before us by Mian Muhammad Shafi, and, in any case, the property did not come to Muhammad Hayat Khan in terms of that will. In fact in the mutation of inheritance Exh. P. 36 to which reference has already been made, it is clearly stated that all the claimants to the inheritance repudiated the will and the will was not acted upon. The will itself does not contain any mention at all that Muhammad Hayat Khan should give some share to his sister Mst. Mehdi Begum. If indeed it was the wish of the late Col. Altaf Ali that his maternal grand‑daughter Mst. Mehdi Begum should get some share of his property, we see no reason whatsoever for his not giving it in his lifetime, instead of leaving it to Muhammad Hayat Khan to do the needful after his death. This is a strong circumstance suggestive of the fact that the gift or the relinquish ment deed was executed by Muhammad Hayat Khan in favour of his sister Mst. Mehdi Begum for an ulterior ‑purpose, namely, to avoid his creditors.

53. On the question of transfer of possession to Mst. Mehdi Begum there is no direct evidence from the side of the plaintiff and the only evidence on which Mian Muhammad Shafi, the learned counsel for the plaintiff‑respondent, wishes to rely consists of the following items :‑ (i) A recital in Exh. P. 3 which is a mutation attested on the 13th of March 1933,. regarding the gift made by Mst. Mehdi Begum in favour of her husband Khan Bahadur Altaf Hussain, (ii) a statement made by Mst. Mehdi Begum as a witness at the trial of the present suit that she had delivered possession to her husband. She also stated that the land was then sold by her husband to meet the expenses of education one of her sons in England, and (iii) the averments made by the defendant‑appellant in his written statement that the gift had been properly implemented by delivery of possession.

54. We have already stated that the averments made by the defendant in his written statement are in the nature of alterna tive lines of defence and no benefit, therefore, accrues to the plaintiff‑respondent from the statements made in the written statement about the delivery of possession to Mst. Mehdi Begum. The other items of evidence relied upon by the learned counsel for the respondent are hardly reliable evidence of the fact that possession was indeed delivered' to Mst. Mehdi Begum, as it is clear that Mst. Mehdi Begum was acting to further the interest of her brother, not only when she made the gift in favour of her husband, only one year after supposedly getting the land from her brother, but also when she appeared at the trial. The facts that have clearly emerged are that there was no stipulation in the alleged will set up by Muhammad Hayat Khan that any land should be given to Mst. Mehdi Begum, that Mst. Mehdi Begum was living in Batala with her husband Khan Bahadur Altaf Hussain, that there was no special reason for her to transfer this land in the name of her husband after having obtained it from her brother Muhammad Hayat Khan, and that eventually the land was in fact sold by Muhammad Hayat Khan and he received the consideration in cash amounting to Rs. 40,000, after obtaining a Special Power‑of‑Attorney from Khan Bahadur Altaf Hussain. Even this Power‑of‑Attorney was executed at Batala which shows that Khan Bahadur Altaf Hussain never came to Lyallpur where the land was situated. It was Muhammad Hayat Khan who continued in physical possession of the land and who eventually disposed it of. In these circumstances, we consider that the real transaction under examination in this case is the alienation made by Muhammad Hayat Khan in favour of the appellant's father Raja Fazal Dad Khan, the two previous gifts being fictitious and benami transactions. The case set up by the plaintiff in paragraphs 3, 4 and 5 of the plaint regarding the fictitious nature of the various transactions preceding the alienation in favour of Raja Fazal Dad Khan was, therefore, correct and we see no justification for allowing him to depart from those facts.

55. The last question, therefore, which needs to be consi dered in this case is whether the sale was for legal necessity. Before we deal with this question, we would like to observe that it is clear, in view of the conclusions which we have reached about the true nature of the transaction under examination, that the question of legal necessity has reference to Muhammad Hayat Khan and not to Khan Bahadur Altaf Hussain as he was merely acting as a benamidar on behalf of Muhammad Hayat Khan. Mian Muhammad Shafi laid great stress on the fact that in the sale‑deed Exh. P. 2 there is no reference at all to any outstanding debts which had to be paid by Khan Bahadur Altaf Hussain, nor was there any other evidence to show that there was any legal necessity on his part to alienate the land. The argument is clearly misconceived for the reason that once it is held that the real transaction was between Muhammad Hayat Khan and Raja Fazal Dad Khan, then the question of any outstanding debts against Khan Bahadur Altaf Hussain is irrele vant; and even if any such debts had been mentioned in the sale‑deed, they would not have constituted justification for the sale which we have held to be by Muhammad Hayat Khan, using Khan Bahadur Altaf Hussain as only a benamidar. In any case, the present plaintiff ‑respondent would have no locus standi to challenge a sale made by Khan Bahadur Altaf Hussain, as he does not claim to be the reversioner of the said Khan Bahadur Altaf Hussain but only of Muhammad Hayat Khan. The real question, therefore, is whether there was any legal necessity on the part of Muhammad Hayat Khan when he made the alienation now in dispute.

56. The contention on behalf of the appellant is that at the time the sale was made in favour of the appellant's father Raja Fazal Dad Khan on the 8th of December 1939, Muhammad Hayat Khan needed money to meet the following demands:‑ (a) He needed Rs. 21,000 for payment to a creditor named Jaspat Rai in order to save a bungalow in which Muhammad Hayat Khan was living. This bungalow was originally owned by Col. Altaf Ali and had fallen to the share of his daughter Mst. Umrao Begum, and after her death had come to Muhammad Hayat Khan. The creditor had obtained a decree for the possession of the bungalow unless he was paid Rs. 21,000 by the 12th of December 1939; and (b) there was just antecedent debts amounting to Rs. 77,000 which had been incurred by Muhammad Hayat Khan in order to meet the expenses of litigation concerning the property left behind by his maternal grandfather Col. Altaf Ali, including the three squares of land now in dispute.

57. The first item of Rs. 21,000 does not present much difficulty. The bungalow in question had fallen to the share of Muhammad Hayat Khan's maternal aunt Mst. Umrao Begum and devolved o n him after her death. Mst. Umrao Begum had mortgaged it with a firm known as Jaspat Rai Babu Ram. The firm brought a suit for the recovery of the mortgage amount or in the alternative possession of the property. Muhammad Hayat Khan was also made a defendant in the suit as he was residing in the bungalow. The suit was compromised on the 12th of June 1939, and it was agreed that if Muhammad Hayat Khan paid Rs. 20,000 by the 12th of August 1939, he would become the owner of the bungalow and the decree would be deemed to have been paid off. It was further stipulated that if the sum of Rs. 20,000 was not paid by the 12th of August 1939, then the amount to be paid would be increased to Rs. 21,000 and an extension of time would be allowed up to the 12th of December 1939, and if the increased amount was not paid even by the extended date, then the creditor firm would get possession of the bungalow.

58. The case for the appellant is that as the amount was not paid by the earlier date fixed in the compromise decree, namely, the 12th of August 1939, and as the extended period was also coming to a close, Muhammad Hayat Khan decided to sell this land and for this purpose he obtained Special Power of Attorney from Khan Bahadur Altaf Hussain on the 29th of November 1939, and then executed and got the sale‑deed registered on the 8th of December 1939, and received Rs. 40,000 in cash from the appellant's father Raja Fazal Dad Khan before the Sub‑Registrar. It is submitted that out of this sum of Rs. 40,000, Rs, 21;000 were paid towards redeeming the bungalow, and the money was deposited in Court on the 11th of December 1939, through Dr. Mahmood Ali, who was a friend of Muhammad Hayat Khan. It was submitted by Sheikh Mahboob Ellahi that although it is Dr. Mahmood Ali who is shown to have deposited a sum of Rs. 21,000 to meet the decree of the firm Jaspat Rai Babu Ram, yet the circumstances make it clear that Dr. Mahmood Ali was merely acting as an obliging friend to help Muhammad Hayat Khan out of a difficult situation. According to the learned counsel for the appellant, the two transactions of sale regarding this bungalow between Muhammad Hayat Khan and Dr. Mahmood Ali, as evidenced by two sale‑deeds Exhs. C. W. 1/2 and C. W. 1/3, registered respectively on the 12th of December 1939, and the 30th of April 1948, were fictitious transactions and no consideration ever passed from one party to the other By the first sale‑deed Muhammad Hayat Khan purported to sell this bungalow to Dr. Mahmood Ali for Rs. 24,000, and by the second sale‑deed the same bungalow was re‑conveyed by Dr. Mahmood Ali to Muhammad Hayat Khan for a sum of Rs. 30,

000. It was submitted by ‑Sheikh Mahboob Ellahi that Dr. Mahmood Ali has not been able to explain satisfactorily the source from which he obtained Rt. 24,000 in the year 1939; and the fact that in the year 1948, only a small portion of the salty price of Rs. 30,000 was received by Dr. Mahmood Ali in cash also confirmed the fictitious nature of these transactions.

59. We are of the view that the position taken up by the appellant cannot be accepted. In the sale‑deed (Exh. C. W. 1/2) itself executed in favour of Dr. Mahmood Ali on the 12th of December 1939, the necessity for making payment to the firm Jaspat Rai Babu Ram is mentioned. The bungalow was re purchased for Rs. 30,000 by Muhammad Hayat Khan from Dr. Mahmood Ali on the 30th of April 1948. Throughout these years Muhammad Hayat Khan, of course, continued living in the bungalow. We have not been able to discover any sound reason for disbelieving the evidence of Dr. Mahmood Ali to the effect that he did purchase the bungalow in the year 1939, and that he sold back to Muhammad Hayat Khan in the year 1948, for the reason that he had come to Pakistan as a refugee from Kapurthala and was in need of money. There is a gap of nine years between the two transactions and not one good reason has been suggested on behalf of the appellant as to why Muhammad Hayat Khan should unnecessarily bring in Dr: Mahmood Ali by showing a fictitious sale of the bungalow in his favour. The creditor firm Jaspat Rai Babu Ram had already agreed to allow the bungalow to remain with Muhammad Hayat Khan provided he paid the decretal amount. If indeed Muhammad Hayat Khan had sold the land in dispute in order to save the bungalow, then there was no necessity for him to create a ficti tious transaction in favour of Dr. Mahmood Ali and to live in the bungalow as the latter's tenant. Further, if for any reason he did think it necessary to do so, then there is no explanation as to why he waited for full nine years before obtaining the bungalow back from Dr. Mahmood Ali. The evidence of Dr. Mahmood Ali makes plausible reading and it appears from it that he purchased the bungalow in order to help Muhammad Hayat Khan at a time when the latter needed Rs. 21,000 to pay off his creditors, and that he allowed Muhammad Hayat Khan to continue living in the bungalow, for both were friends and neighbours in Kapurthala. His explanation about the source from where he got Rs. 24,000 to purchase the bungalow in question is plausible, namely, that besides his profession of medicine, he was engaged in the Import and Export business. Similarly, his explanation for re‑selling the bungalow to Muhammad Hayat Khan also appears to be satisfactory. For these reasons, we consider that it is not proved that out of the sale price of Rs. 40,000 paid by Raja Fazal Dad Khan for the land in dispute Rs. 21,000 were utilised towards redeeming the Bungalow in question.

60. It was contended by Mian Muhammad Shafi that, in any case, under custom ancestral agricultural property cannot be sold to save non‑ancestral urban property like the bungalow which devolved upon. Muhammad Hayat Khan from his maternal aunt; and that the mere existence of a decree does not constitute a just antecedent debt. In view of our finding that the amount was in fact deposited by Dr. Mahmood Ali out of ‑the sale price of Rs. 24,000 paid by him for the bungalow in question under sale‑deed Exh. C. W. 1/2 dated the 12th of December 1939, it is not necessary to examine these contentions raised by Mian Muhammad Shafi.

61. As regards the other debts owed by Muhammad Hayat Khan at the time of the sale of the three squares of land in dispute, the appellant has suggested that their aggregate stood at Rs. 77,000, but the plaintiff himself brought on the record a large number of documents, mostly by way of mutations of various mortgages created by his father to show that in fact their amount exceeded rupees one lac. The learned counsel for the respondent was good enough to tabulate these documents for our use in a consolidated list which we have marked as Exh. H.C./l. According to this list, the documents are Exh. P. 45 to Exh. P.

57. The question, however, is whether these debts were just antecedent debts such as would constitute legal necessity under custom.

62. The learned counsel for the parties have placed reliance on a large number of authorities to elucidate the meaning of the phrase "a just antecedent debt". The earliest and the basic authority on the subject appears to be Devi Ditta and others v. Saudagar Singh and others (65 P R 1900), in which it was held as follows:‑ "A sonless male proprietor, unlike a widow, is a full proprie tor, and the necessities in, his case are not to be judged by analogies drawn from the case of a widow, although he cannot alienate without necessity, but the payment of his just antece dent debt is a necessity. The words `just debts' as used in connection with the debts of a male proprietor are: (a) debts which are actually due and are not immoral, illegal or opposed to public policy; (b) debts not contracted as an act of reckless extravagance or of wanton waste or with the intention of destroying the interests of reversioner. Debts incurred for a necessary purpose are always binding irrespective of the income and means of the male proprietor. The onus of proof of the validity of an alienation of, ances tral land by a male proprietor always lies, in the first instance, on the alienee, whether he be a third party or a_ person whose h debts have been paid off by the alienation. An alienee who is himself the antecedent creditor by his position is prima facie fixed with the knowledge of the nature of the debts and of the purpose for which the money borrowed was spent and if they were not incurred for actual necessity or were contracted by reckless extravagance or to waste the estate, the alienation in lieu of such debts is invalid. An outsider who pays antecedent debts in consideration of the transfer of the property if he acts honestly and makes proper enquiry whether the debts are actually due, is not responsible if he has been deceived and is entitled to have the alienation declared binding."

63. This view was approved by the Judicial Committee of the Privy Council in Kirpal Singh v. Balwant Singh and another (26 P R 1913), and was followed in Ram Kishen and others v. Mst. Hassi (76 P R 1917), Iqbal Singh and others v. Mahindar Singh and others (A I ‑R 1938 Lah. 648), Sardar Surender Singh and another v. Chaudhri Ghulam Muhammad (A I R 1939 P C 150) and Karnail Singh alias Bachan and another v. Naunihal Singh and others (A I R 1945 Lah. 188).

64. We may now proceed, in the light of the authorities cited above, to examine whether the debts in this case can be regarded as just antecedent debts. The existence of the debts amounting to more than rupees one lac, on the date of the alienation which is under challenge in the present proceedings, has been proved on the record by the plaintiff‑respondent himself and, therefore, the question now is whether or not these debts were immoral, illegal or opposed to public policy or contracted as an act of reckless extravagance or of wanton waste or with the intention of destroying the interests of reversioners. On behalf of the plaintiff‑respondent the allegation naturally is that Muhammad Hayat Khan was immoral and was wasting away ancestral property in a wanton and extravagant manner; whereas on behalf of the appellant it is contended that the debts were not incurred for any immoral or illegal purpose but to finance civil, criminal and revenue litigation which had ensued after the death of Col. Altaf Ali.

65. After perusing the evidence brought on the record by both sides, we have come so the conclusion that the debts in question were not incurred for any immoral or illegal purpose, nor can they be attributed to acts of extravagance or wanton waste on the part of Muhammad Hayat Khan. In his statement recorded by this Court on the 18th of October 1961, Muhammad Hayat Khan stated that he had inherited 11 squares of land from his‑maternal grandfather, out of which he had gifted three squares of land to his sister Mst. Mehdi Begum (which are now in dispute) and had given four squares to his wife in lieu of her dower debt, and the remaining four squares were still in his ownership. He further admitted that out of the eleven squares eight were in his physical possession, namely, four in his own name and the four standing in his wife's name: He also added that the land given by him to his wife in lieu of her dower actually belonged to him and the wife had only the rights of a lessee to realize her debt under a Court decree obtained by her. He also admitted that in a previous suit, Jaspat Rai v. Mst. Umrao Begum, etc. he had stated that he had been realising an annual income of Rs. 4,000 from his land and that he had mortgaged seven squares to defray the expenses of litigation "both legitimate and otherwise". It is significant that no question was asked from Muhammad Hayat Khan regarding his immoral and extravagant habits. Mian Muhammad Shafi submitted that when Muhammad Hayat Khan was examined, the emphasis was on the sale of the bungalow and not on the nature of the debts due from him. Be that as it may, the fact remains that the alienor, against whom serious allegations of immorality and extravagance are now being pressed into service, was not questioned on these points when he appeared in the witness‑box; on the contrary, it was brought on the record that he had mortgaged his lands to meet the expenses of litigation.

66. From the evidence of Muhammad Hayat Khan it is clear that during a long period of thirty years since the death of his maternal grandfather he had permanently alienated only three squares of land which are now in dispute, and he had only mortgaged the rest of the land in order to meet expenses of litigation. His sister Mst. Mehdi Begum gave him good character when she was questioned on this point and stated that he had been spending money on litigation. His wife Mst. Mushtari Begum deposed in her examination‑in‑chief, in the trial Court, that Col. Altaf Ali was not happy with the ways of Muhammad Hayat Khan who sold away the entire property inherited by him from his father in Jagraon and Kapurthala, but she did not say anything at all about the manner in which Muhammad Hayat Khan had dealt with the property inherited by him from Col. Altaf Ali, nor did she say anything about the debts which Muhammad Hayat Khan had contracted during the course of the last thirty years or so.

67. The only evidence to prove immorality on the part of Muhammad Hayat Khan is to be found in the statement of one Madan Gopal, which was brought on the record of this case from a previous suit filed by the present plaintiff‑respondent. This witness was produced by the defendants in that case to prove the alleged will set up by Muhammad Hayat Khan at the time of inheritance of Col. Altaf Ali, but in cross‑examination the witness stated that once or twice he had seen Muhammad Hayat Khan wandering about in the "street of prostitutes", in the company of a friend. He went on to add that one day he went to the house of Muhammad Hayat Khan and found one prostitute present there, but he could not give the name of that prostitute. This statement was made by Madan Gopal on the 15th of July 1942, and in further cross‑examination he made it clear that he had seen' the prostitute at the house of Muhammad Hayat Khan five or six years before the date of making this statement, i.e., sometime in the year 1937. In our opinion, the evidence of Madan Gopal, even if taken at its face value, is not at all sufficient to establish a pattern of immoral and extravagant habits on the part of Muhammad Hayat Khan. One or two visits to the "street of the prostitutes" or the presence of a prostitute at his house on one occasion in the year 1937, are certainly not conclusive of the fact that Muhammad Hayat Khan was an immoral and extravagant person. There is no evidence to show that he was indulging in drinking, womanising or keeping extravagant and expensive mistresses.

68. On the other hand, the existence of prolonged litigation is satisfactorily established on the record. In the first instance, there was litigation about the inheritance of Col. Altaf Ali, then there was litigation about the house which Muhammad Hayat Khan inherited from Mst. Umrao Begum, and there was also litigation between him and his wife cost. Mushtari Be gum which resulted in the latter obtaining a decree for the payment of her dower debt. There was also some litigation with a man called Balaqi Mal, as would appear from certain remarks appearing in the orders of a Revenue Officer dated the 10th of September 1934, passed on mutation Exh. P.

45. These facts go to establish that unfortunately Muhammad Hayat Khan got involved in prolonged and expensive litigation, mostly concerning the property which he had inherited from his maternal grandfather Col. Altaf Ali and he had to borrow money to finance this litigation. The various mutations of mortgage, which evidence these loans, do not contain any recital as to the necessity thereof, but the evidence to which we have referred above shows that these mortgages were entered into for the purpose of financing litigation. Apart from this, it is also clear that the income which Muhammad Hayat Khan was deriving from the ten squares of land was only Rs. 4,000 per annum, an amount by no means sufficient for the maintenance of a respectable ‑ standard of living by a family belonging to the landed gentry. It is, therefore, clear that some part of the loans must have been incurred for maintaining the position which custom and tradition demanded of Muhammad Hayat Khan.

69. It was contended by Mian Muhammad Shafi, the learned counsel for the plaintiff respondent, that even if it be held that the previous debts had been contracted to meet litigation, the vendee, namely, the late Raja Fazal Dad Khan, was not protected in this case as he did not make any inquiry into the nature of the antecedent debts although he was fully aware of the immoral and extravagant habits of Muhammad Hayat Khan, being a resident of Lyallpur and also being a friend 9f Muhammad Hayat Khan. In support of these contentions the learned counsel placed reliance on Gurdit Singh and others v. Narain Singh and others (A I R 1935 Lah. 69) and Sardar Surendar Singh and another v. Ch. Ghulam Muhammad (A I R 1939 P C 150).

70. In the first mentioned case it was observed as under: "Where the borrower is a notorious spend thrift and profligate, a creditor will not be protected merely by the fact that the money advanced by him was said to be required to pay off antecedent debts; on the contrary it will be his duty to make a full inquiry as to whether the antecedent debts were really just debts 'incurred for a necessary purpose. Similarly he will not be protected merely because the borrower told him that the money was needed to pay Government revenue or to buy bullocks or to give presents at a marriage or for miscellaneous household expenses. A creditor lending money to a man in possession of ample income should make full inquiry as to the necessity for a loan. If the borrower has squandered his income in extravagance and wanton waste, the lender would not be justified in advancing him money for payment of Government revenue and other ordinary expenses of a Zamindar."

71. In the second case it was observed: "The onus lies on the mortgagee of proving either that there was legal necessity in fact which would justify the mortgage, or that he made a proper and bona fide inquiry into the alleged necessity and satisfied himself as to the existence of such necessity. If he discharges this burden he is not bound to see that the money paid by him is actually applied by the mortgagor to meet the necessity. The payment of the debts of a mortgagor is a legal necessity if such debts can be described as just debts. A just debt means a debt which is actually due and is not immoral, illegal, or opposed to public policy, and has not been contracted as an act of reckless extravagance or of wanton waste, or with the intention of destroying the interests of the reversioners * * * * *."

72. In view of our finding that the previous debts were not contracted for any immoral or extravagant purpose but to meet litigation regarding the property inherited by Muhammad Hayat Khan and other connected matters, the contention now advanced by Mian Muhammad Shafi hardly arises. The question of the vendee being protected only when he makes due inquiry into the existence and nature of antecedent debts arises when it is found that such antecedent debts are not just debts. Our finding in the present case is that they were just antecedent debts, as defined by judicial authorities. However, we find that in paragraph 13 of the written statement filed by the appellant it is clearly asserted that on the death of Col. Altaf Ali dispute arose about his inheritance and there was civil, criminal and revenue litigation on an extensive scale, with the result that Muhammad Hayat Khan and Mst. Umrao Begum became heavily indebted, so much so that almost the entire property of Mst. Umrao Begum had to be sold to meet the expenses of this litigation. It was further asserted in this paragraph of the written statement that it is absolutely incorrect to say that defendant No. 1 (namely Muhammad Hayat Khan) wasted away his property for immoral purposes. A challenge was thrown to the plaintiff to produce Muhammad Hayat Khan in the witness‑box to depose on this point. Again, in paragraph 14 of the written statement after mentioning the decree for Rs. 21,000 in respect of the bungalow, of which mention has already been made, it was stated that other creditors were also pressing Muhammad Hayat Khan for the payment of their debts. From these averments in the written statement it is clear that the appellant's father Raja Fazal Dad Khan was aware of the nature and the existence of the antecedent debts owned by Muhammad Hayat Khan. Even in the plaint (paragraph 5) it is stated that Raja Fazal Dad Khan was fully acquainted with the affairs of Muhammad Hayat Khan, although this acquaintance is mentioned in another connection, namely the immoral and extravagant habits of Muhammad Hayat Khan, but this averment in the plaint, does show that Raja Fazal Dad Khan was not a stranger to the family. The same position emerges from the same statement of Mst. Mehdi Begum who has described Raja Fazal Dad Khan as a friend of her husband, Khan Bahadur Altaf Hussain. It is clear, therefore, that Raja Fazal Dad Khan knew the circumstances of Muhammad Hayat Khan and those circumstances were that Muhammad Hayat Khan had got involved in expensive litigation connected with the property inherited by him. Under these circumstances, it cannot be said that the vendee did not make due inquiry before purchasing the land in dispute from Muhammad Hayat Khan.

73. For the foregoing reasons, we have come to the conclusion that the sale of the land in dispute by Muhammad Hayat Khan in favour of the appellant's father Raja Fazal Dad Khan was for legal necessity, namely to pay off just antecedent debts amounting to nearly rupees one lac, not including the decretal amount of Rs. 21,000 due in respect of the bungalow which Muhammad Hayat Khan had inherited from his maternal aunt Mst. Umrao Begum. As a result, we hold that the sale in question is binding on the plaintiff‑respondent, claiming as an heir and reversioner of Muhammad Hayat Khan. Accordingly, we would accept this appeal, set aside the judgment and decree of the trial Court and dismiss the plaintiff respondent's suit with costs throughout.

74. We had announced a short order in this case on the 16th of July 1965, and the present judgment is intended to give reasons for the same. K. S. A. Appeal accepted.