1980 PLP 862 (CLC)

Dates of hearing : 15th and 16th October, 1979. One Sultan; father of plaintiffs Nos. 1 to 4 and husband of plaintiff No. 5 alienated his land in favour of Muhammad Din appellant for a sum of Rs. 2,000 vide registered sale deed (Exh. D. 1) registered on 23rd June, 1964, in which it is mentioned that he had to pay Rs. 800 to the mortgagee as the land was under mortgage and rest of the amount he wanted to utilize for the marriage of his son Rehmat Ali.

2. The plaintiffs instituted the suit on 4th June, 1968, for a declaration to the effect that the alienation of land in dispute was without legal necessity, the land was ancestral and Sultan deceased was governed by custom. The defendant resisted the suit and on the pleadings of the parties the, following issues were framed :- (1) Whether the plaintiffs and vendor were governed by custom in the matters of alienation and succession before enforcement of Shariat Law ? (2) Is the property in dispute ancestral qua the plaintiffs and the vendor ? (3) Is the sale in question with consideration and for legal necessity ? , (4) Are the plaintiff's barred from challenging the alienation in question ? (5) Relief.

3. The trial Court after recording the evidence of the parties decreed the suit on 12th September, 1970 with the observation that the land in dispute was mortgaged for a sum of Rs.800 and the mortgage money had not been paid. The appeal of Muhammad Din was dismissed by the learned Additional District Judge, Sialkot, on 18th November, 1970. Hence this second appeal.

4. The short question for determination in this appeal is as to whether the payment of just antecedent debt and expenditure on the marriage of son or daughter fell within the purview of legal necessity under the customary law. Paragraph 63(h)(c) of Rattigan's Digest of Customary Law mentions both these legal necessities. The onus of proof is on the alienee to show that the alienation falls within these conditions.

5. The plaintiffs have produced Ghulam Nabi, Allah Rakha, Hayat Muhammad as P. Ws. 1 to 3 respectively and one of the plaintiffs, namely Barkat Ali appeared as P. W. 4 in support of their case. On behalf of the defendant one of the marginal witnesses of the sale deed (Exh. D. 1) Muhammad Shafi appeared as D. W.

1. He deposed about the payment of Rs. 800 as mortgage money. Boota and Diwan D. Ws. 2 and 3 respectively have deposed that the deceased Sultan who was ill, wanted to marry his son Rehmat who at the time of marriage was 14/ 15 years old. The vendee himself appeared as D. W.

4. He stated that he was told by Sultan that he was selling the land in order to marry his son Rehmat. Evidence of plaintiffs is not at all helpful, for, it relates to the factum that the land in dispute was ancestral property of the plaintiffs and Sultan deceased was governed by custom.

6. Mr. M. A. Bajwa, learned counsel for the appellant argued that the alienation was made for legal necessity as both the marriage of son and payment of mortgage money fail within the purview of legal necessity. In Ibrahim and others v. Shah Muhammad (92 1 C 263) which is a case on 411 fours Harrison, J. held "Where the necessity stated for an alienation of ancestral land by a village proprietor is the marriage of children, and this is also spoken to by the lambardar, who attests the sale-deed, and there are, as a matter of fact, several young children, one of whom is approaching marriageable age, the vendee is not bound to make any further enquiry as to whether any actual steps to make arrangements for marriages have been taken. He also relied on Abdul Aziz and another v. Ghulam Muhammad and others (P L D 1951 Lah. 187) and Ghulam Muhammad v. Ghulam Muhammad (P L D 1949 Lah. 384). In the latter case a Division Bench of this Court held that the intending alienee was bound to make honest inquiry as to valid necessity that alienor was transferring property for some valid object recognized by custom. The former case is partly relevant because in that case alienation of land was made for the purpose of good management. However, Headnote (b) supports the appellant's contention.

7. Learned counsel for the respondents submitted that as there was a concurrent finding of fact that the land was not sold for legal necessity therefore, the appeal may be dismissed. It was argued that since the son of the deceased was not of marriageable age, the solemnization of his marriage with the money acquired by alienation of land, even if tae marriage of the son is a legal necessity, tantamounts to an offence under section 5 of the Child Marriage Restraint Act. He relied on Gujjar Singh and another v. Kahan Singh and others (A I R 1927 Lah. 118), Indar Singh v Nasiba and another (A I R 1936 Lah. 769), Sardar Surrendar Singh and another v. Chaudhri Ghulam Muhammad (A I R 1939 P C 150) and Niaz Ali v. Yasin and others (P L D 1966 Pesh. 137). Indar Singh's case is to the effect that transferee before advancing money must take 1, reasonable enquiry as to its necessity. Mere recital of necessity in the deed is feeble evidence. In Sardar Surrendar Singh and another v, Chaudhri Ghulam Muhammad the dictum of the Judicial Committee was that onus lay on the mortgagee to prove legal necessity or that he made bona fide inquiry into alleged necessity. Payment of debts of mortgagor is legal necessity if such debts are just debts. In Niaz Ali's case Shakir ullah Jan, J. held that legal necessity is a question of law. Whether such a legal necessity did actually exist or not is a question of fact, and a concurrent finding of fact cannot be disturbed. In Gujjar Singh and another v. Kahan Singh and others (A I R 1927 Lah. 118) Coldstream, J. held "purchase of woman for vendor's son amounting to purchase for concubinage is not a necessity". The earlier three judgments do not support the respon dents and are obviously distinguishable. In fact the dictum is in favour of the appellant. So far as Gujar Singh and another v. Kahan Singh and others is concerned the argument is equally of no consequence. Even if the boy for whose marriage the money was arranged was less than the prescribed marriageable age even then the Child Marriage Restraint Act, 1939, would not take out the alienation out of the ambit of legal necessity,. for, the case cited deals with the purchase of woman) for concubinage and not the marriage of son. Be that as it may, in view of the above discussion the alienation was for legal necessity and both the reasons fall within the preview of legal necessity. Since the issue involved in the case is a mixed question of law and fact a concur rent finding of fact -in such circumstances would not be sacrosanct and this Court can interfere in second appeal.

8. For the foregoing reasons the appeal is accepted, the judgments and decrees of both the Courts below are set aside and the suit of the plaintiffs-respondents is dismissed. The parties shall bear their own costs. K. M. A. Appeal accepted,