P (PLP)

SIR ABDUL RASHID, C. J.--The principal question for deter mination in this Letters Patent Appeal is whether the consent of the son in the case of an alienation by the father of ancestral immovable property validates the alienation and whether, in these circumstances, the remoter reversioners have no right to challenger it. A Division Bench, of which I was a member, decided in the case of Faqir Chand v. Mussammat Bishen Devi (1946 P. L. R. 406) that consent by the son validates the alienation of ancestral immovable property and gives the remoter reversioners no right to challenge it. The same view was taken in a large number of other cases of the Punjab Chief Court and the Lahore High Court. According to Mr. Amolak Ram Kapur, the learned counsel for the appellant, these cases are as follows: 84 P. R. 1900, 15 P. R. 1903, 59 P. R. 1904, 7 P. R. 1905, 78 P. R. 1908, 68 P. R. 1912. I. L.R. 3 Lah. 112, A . I. &. 1927 Lah. 521 A. I. R. 1937 Lah. 639, A. I. R: 1938 Lah. 467 and 1947 P. L. R.

29. The contention on behalf of the respondents is that a direct male lineal descendant, who has not consented to an alienation is entitled to challenge it though his father and uncle may have consented to such an alienation. In support of this proposition Mr. Jhanda Singh relies on 84 P. R. 1898, A. I. R. 1931 Lah. 374 and A. I. R. 1937 Lah.

477. It appears to me that various Division Benches of this Court have taken divergent views on the question involved in this appeal. I would, accordingly, direct that the papers may be laid before the learned Chief Justice with the recommendation that the case be laid before a larger Bench. MEHR CHAND MAHAJAN, J.

I agree. SIR ABDUL RASHID, C. J.-This is a Letters Patent Appeal from the decision of a learned Single judge decreeing the plaintiff's' claim. The following pedigree-table will be helpful in understanding the facts of this case | Kahna | Dasaundhi (defendant No. 1). ____________________________|_____________________ | | Bachan Singh Sadhu Singh (defendant 4) (defendant 5) ____________________________|__________ Banta Singh | | | (Plaintiff 1.) Dalip Singh Zora Sarjit (Plaintiff 2) (Plaintiff. 3) (Plaintiff 4.) On the 6th of September 1941 Dasaundhi, defendant No. 1, sold 9 bighas 12 biswas and 2 biswansis of land to Hira Singh and Lehna Singh, defendants Nos. 2 and 3, for a sum of Rs. 9,

000. The sale-deed was registered do the 19th of November. This sale-deed had been signed by Sadhu Singh and Bachan Singh, the sons of Dasaundhi, alienor, in token of their assent to the alienation. Out of the sale consideration Rs. 5,365 were utilized by Dasaundhi, alienor, in redeeming 5 bighas 11 biswas and 13 biswansis of agricultural land. 'The sale was pre-empted by Santa Singh, defendant No.

6. He obtained decree for possession of the land on payment of Rs. 8275. Banta Singh, Dalip Singh, Zora and Sarjit, minor, grandsons of Dasaundhi, instituted the present suit on the 27th of February, 1943, for the usual declaration that the sale by their grandfather on the 6th, of September, 1941, shall not affect their reversionary rights after the death of the alienor. They imp leaded their fathers Bachan Singh and Sadhu Singh as defendants. Hira Singh vendee was the sole contesting defendant. He pleaded, inter alia, that the sale had taken place with the consent of both the sons of the vendor and the grandsons had, therefore, no locus standi to challenge the sale. It was further pleaded that the sale had been made for consideration and necessity and in fact was an act of good management on the part of Dasaundhi The trial Court held that the land, with the exception of a small part, was ancestral qua the plaintiffs but that the plaintiffs were not entitled to challenge the alienation because it had been consented to by their fathers and the consent was given bona fide. It was further held that the sale had been made for consideration, but that the necessity had not been established to the extent of Rs. 3,

635. The plaintiffs' suit was dismissed on the ground that they had locus standi to challenge the sale on account of their firth we having assented to the alienation. The decision of the Court was affirmed on appeal by the learned District Judge second appeal to this Court, it was held by a learned S Judge that the rights of a reversioners in land are not in h it but vest in a reversioners as a member, of a tribe governed by custom restraining the land from being lost to the tribe, right being not inheritable and being an individual right not be taken away simply because the sale had been assented by the nearest reversioners of the alienor. On this basis appeal was allowed and the sale was converted into a mortgage o the extent of Rs. 5,

365. Against this decision, as mentioned already, Santa Singh has preferred this Letters Patent Appeal. This appeal came up for hearing on the 23rd of January, 1947, before a Division Bench of which I was a member. The principal question for determination in the Letters Patent Appeal was whether the consent of the sons in the case of an alienation by the father of ancestral immovable property validates the alienation and whether in these circumstances the remoter reversioners have no right to challenge it. It was pointed out in the order of the Division Bench that there was divergence of judicial opinion on the question. The case was, therefore, referred to a Full Bench for decision. It has been laid down in Para. 59 of Rattigan's Digest of Customary Law that ancestral immovable property is ordinarily inalienable, except for necessity or with the consent of male descendants, or, in the case of a sonless proprietor, of his male collaterals. Provided that the proprietor can alienate ancestral immovable property at pleasure if there is at the date of such alienation neither a male descendant nor a male collateral in existence". Para. 67 of Rattigan's Digest is in the following terms: "The proper person to object to an alienation is the nearest reversionary heir. But when he happens to be a minor, or it is shown that he is in collusion with the alienor or that he has refused without sufficient cause to institute proceedings, or has precluded himself by his own act or conduct form suing, or has concurred in the alienation or the act alleged to be wrong full the next reversioners is entitled to maintain the action". The case on behalf of the appellant is has Para. 59 of Rattigan's Digest embodies the substantive law with respect to the power of the remoter reversioners to challenge an alienation when the sons of the alienor have consented to the alienation. If the sons of the alienor consent to the alienation, his grandsons have no right to challenge it. The case for the respondents, on the other hand, is that according to Para. 67 of the Digest if the sons have concurred in the alienation, t re grandsons are entitled to maintain the action. In Mussammat Fatteh Bibi v. Allah Bakhsh (84 P. R. 1900) it was held that when an alienation has been made good and valid by the consent of the next reversioner given reasonably and without collusion and in accordance with custom there were no rights left to other more remote reversioners in respect of which they were entitled to contest the validity of the alienation. In this case a gift had been made by a sonless proprietor in favour of his daughter. This gift was acquiesced in by means of a compromise by the father of the plaintiffs who was the donor's sole heir at the time of the gift. The Riwaj-i-Am also contained a provision that a sonless proprietor might with the consent of the collaterals gift a certain amount of his land to his daughter. The circumstances of this case were, therefore, peculiar and this ruling cannot be said to be of any great assistance to either party in the determination of the question involved in the present appeal. It was observed in this case that there is the strongest presumption against the right of a father to alienate ancestral property without the consent of his sons. There is at the same time the strongest natural presumption that he will not do so to his son's detriment. When the father consents, it must be pre sumed that the consent was given bona fide in recognition of the fact that the alienation was a valid alienation under the customary law. The learned counsel for the appellant relies strongly on the decision of a Division Bench of the Punjab Chief Court in the case of, Labh Singh v. Gopi and others (15 P. R. 1903). The facts of this case were as follows. One M.S. sold half of his land to the defendants in 1862, whereon the grandfather of the present plaintiff brought a suit to enforce his right of pre-emption, but his suit was eventually dismissed as he was unable to deposit the purchase-money. Shortly after M. S. mortgaged the remaining half of his land and the grandfather of the plaintiff again brought a suit which was compromised between the parties, the plaintiff's grandfather paying the mortgage money and interest to the mortgages. In neither of these suits did the plaintiffs grandfather challenge the power of M. S. to sell, or alleged that the sale or mortgage was without consideration or necessity, and as a fact he finally agreed to pay the amount mentioned in the purchase deed, and in the second he actually took over the mortgage. In 1897 the plaintiff filed the present suit in respect of the sale in 1862 on the ground that it was without necessity and did not bind him. In these circumstances it was held that the plaintiff's grandfather by bringing his suit for pre-emption on the sale in dispute abandoned any right lie had to challenge it on the ground of want of necessity or other reason sufficient to make it void able by him. Such a suit raised a presumption which of course was not conclusive, that the sale was not bad on the ground of necessity, but it necessarily waived all rights to set it aside for want of necessity, and that the plaintiff was bound by the waiver on the part of his grandfather, and on that account precluded from succeeding in the present claim. The following observations may be reproduced in extensor-- "It is not necessary to decide in this case whether under Customary Law the mere silence of an ancestor with reference to an alienation that injures his reversionary right to the property transferred will bind his descendants, but here there was not merely silence or inaction, but positive action in order to preserve those rights. The person in enjoyment of property, or entitled to the right to object to the alienation, must be allowed a certain latitude of judgment as to the mode in which the property or the right should be protected when invaded or put in jeopardy by others, and in our opinion his successors and descendants must be held to be bound by the action so taken by him. It would be intolerable, and would put an end to all finality in proceedings in Court of Justice, if it were otherwise. This may best be illustrated by a concrete example, suppose a landowner governed by Customary Law is sued in respect of land held by him by some one claiming to be a relation of the last owner and to be a co-heir. He finds the claim indisputable and thinks it best to admit it, and a decree is passed against him, and the successful claimant thereafter holds the land for many years. Should his descendants or collateral heirs be allowed to ignore the decree after his death, and alleging that the admission was unauthorised and amounted to waste of the property to sue for recovery of possession of the land decreed? A considerable limitation would be introduced in the rule of res judicata if this is allowed. Had Kahan Singh obtained a decree for pre- emption and recovered the property on payment of the price, would the plaintiff have been allowed to set aside the decree on the ground that it was an act of waste which prejudiced his rights? What difference does it make that no decree was obtained in this case because the purchase-money was not deposited? We think therefore that Kahan Singh's waiver binds the plaintiff who is on that account precluded from making the present claim". In Labhu v. Mussammat Nihali and other (7 P. R. 1905) the following observations occur: "So we find that in the immense majority of cases custom has established the sound and reasonable principle that an alienation once made openly and in good faith by the alienor, and acquiesced in, also reasonably and in good faith, by those competent at the time to contest it, shall have finality, and shall not be open to contest by others who may later on come into a position which would, had they, held it, have given them the right to contest the alienation at the time. The right to make a permanent alienation good against all comers, with the consent of the collaterals, which would be bad without that consent, is one of the commonest features of Punjab custom. But coupled with this we find the thoroughly reasonable principle also established that when a reversionary interest is in question, a were remote reversioner is not necessarily debarred front protecting his future interest by the fact that a nearer reversions; does not care to protect leis, and without sufficient reason neglects to, do so. The reasonableness of this view becomes more obvious when we consider that it may often happen that the next reversioner may be an old man, perhaps older even than the alienor, and with an interest the actual value of which is far less than that of a more remote reversioner. Neither custom nor this Court, has desired to, nor has established a perpetual entail in Customary law. But custom has been found to recognize both the principles emphasized in Harnams Singh v. Harnam Singh (84 P. R. 1898 (F. B )), and in Mussammat Fateh Bibi v. Allah Bakhsh (84 P. R. 1900), respectively, and this Court has accordingly recognised the existence of both being reasonable and necessary to the proper conduct of the business of life among the communities concerned". I find myself in respectful agreement with the observations reproduced above. I am of the opinion that these observations provide a method whereby the provisions of Paras. 59 and 67 of Rattigan's Digest of Customary Law can be reconciled. The words "or has concurred in the alienation" occurring in Para. 67 of the Digest crust be taken to mean "or has concurred in the alienation without sufficient reason". The meaning of Para. 67 would then be that if the fathers of the plaintiffs have concurred in the alienation mala fade or without sufficient reason, the plaintiffs can challenge the alienation of their grandfather. But if the consent of their fathers has been bona fide, the plaintiffs are precluded from maintaining a suit as the Alienation of their grandfather would be an alienation made with the bona fide consent of the male descendants of the alienor. In Habib Khan v. Muhammad (68 P. R. 1912) it was held that the assent of the plaintiff's father to the alienation by a female in possession, if made bona fide, without collusion or intention to injure the reversioners, is binding on the plaintiff in a suit for a declaration that the alienation shall not affect his reversionary rights. It was observed that it is a legitimate presumption that if consent is given by the father of the plaintiff he must have been satisfied that the alienation was valid and proper according to customary law and that it was not worthwhile to contest the alienation. The observations in 68 P. R. 1912 were given effect to in the cases of Gulab v. Mehndi (I. L. R. 3 Lah. 112) and Makhan Singh v. Kishen Singh (A. I. R. 1924 Lah. 213). In Khuda Yar v. Imam Din (A. I. R. 1927 Lah. 521) it was held by Jai Lal, J. that the provisions of the Customary Law relating to the right of male proprietors to alienate ancestral immovable property are restrictions on the ordinary right of freedom of contract and should not be extended beyond what they expressly lay down. Ancestral immovable property is alienable with the consent of male descendants or, in the case of a sonless proprietor, of his male collaterals. There is nothing to preclude the male descendants from giving the consent after the alienation, and the fact that such consent was given on receipt of considera tion does not affect its validity. This judgment contains a discussion of the provisions of Paras. 59 and 67 of Rattigan's Digest of Customary Law. The following observations may be reproduced in extenso:- "The present case, however, is, tai my opinion, governed by the rule laid down in Article 59 of Rattigari s Digest of Customary Law which, so far as it applies to this case, is as follows:- 'Ancestral immovable property is ordinarily inalienable except for necessity or with the consent of male descendants, or, in the case of a sonless proprietor, of his male collaterals'. It is to be observed that the consent of the male descendants is sufficient to validate a sale of ancestral immovable property. Article 67 provides that the proper person to object to an alienation is the nearest reversionary heir, but when it is shown that he is in collusion with the alienor or that he has refused without sufficient cause to institute proceedings, or has precluded himself by his own act or conduct from suing or has concurred in the alienation, the next reversioner is entitled to maintain the action. Counsel for the appellants relies upon this article and contends that the vendor's son Allah Lok, having concurred in the alienation his clients, the next reversioners, were entitled to maintain the action. In my opinion, however, the sub stantive law on the subject is contained in Article 59, according to which the consent of a son, in the case of an alienation by the father of ancestral immovable property, validates the alienation. Article 67 merely lays down the order and the circumstances in which the several persons entitled to institute a suit can maintain it. It does not override the provisions of Article 59, but is to be read subject thereto". I would add an additional reason and that is that in order to make Para. 67 of the Digest applicable the father must have concurred in the alienation without sufficient reason. Mr. Justice Jai Lal made similar observations in the case of Bhagat Ram v. Malkiat Singh (A.

1. R. 1937 Lah.

639. A similar proposition was laid down by Mr. Justice Tek Chard in the case of Sohan Sing v. Danu and others (A. I. R. 1938 Lah. 467). The latest case on the point is Fakir Chand v. Mst. Bishan Devi (1946 P. L. R. 406). It was held in this case that the consent of the descendants in the case of an alienation by the father of ancestral property validates the alienation and Para. 67 of Rattigan's Digest of Customary Law gives the remoter rever sioners no right to challenge it. The contention to the contrary was met by the learned judges in the following manners:- The contention of Mr. Shamair Chard was that Paragraph 67 gave an absolute right to a remoter reversioner to challenge the validity of an alienation in which a nearer reversioner had concurred, and he argued that the consent given by a son to an alienation by his father would entitle the remoter reversioners to set aside that alienation. The contention however is only partially correct. The rule of law stated in paragraph 67 becomes applicable only where the alienation is otherwise liable to be impugned. If the alienation is valid by reason of having been assented to, by the alienor's descendants in case the alienor is not a sonless proprietor, and by his reversioners in case he is such a proprietor, it, cannot be contested by anyone. Where however it has not been validated by such consent, and is otherwise liable to be challenged, paragraph 67 prescribes the order in which it can be impugned by the reversionary heirs. The occasion to refer to paragraph 67 arses only where the concurrence of the next reversioner in the alienation or the act alleged to be wrong ful has not the effect of making it absolutely unassailable. For example where one or some only out of the descendants of the alienor have consented to the alienation, para. 59 can have no application, and, under para. 67, the other or remoter, descendants may sue to set aside the alienation. Simi larly where some only out of the body of male collaterals have consented, other or remoter collators may sue. Where however, the consent or concurrence of the descendants and reversioners who have not sued has the effect of making the alienation wholly unassailable paragraph 67 cannot be taken to confer any right on the remoter reversioners to challenge that alienation. In Khuda Dad v. Imam Din (103 I. C. 292) Jai Lal J., after considering the provisions of the above mentioned two paragraphs, held that the consent of descendants in the case of an alienation by the father of ancestral property validates the alienation and that para. 67 gives the remoter reversioners no right to challenge it, whether the consent is given at the time of the alienation or after it. I am in respectful agreement with this view of the law. On behalf of the respondents reliance was placed on three cases of which two are clearly distinguishable. The first case relied upon is reported as Harvans Singh v. Harnain Singh (84 P. R. 1898 (F B.)). In a suit by plaintiff to contest an alienation by his father's uncle, it appears that plaintiff's father was alive, but refused to join in the suit. The question referred to the Full Bench was whether, under such circumstances, plaintiff had any locus standi to sue. In the circumstances it was held that under customary law by which the parties were governed, plaintiff was entitled to sue to set aside the alienation in question, and that the District Judge had erred in dismissing his suit on the ground that he had no locus standi. This case is clearly distinguishable as the inactivity of the father to institute a suit cannot be regarded as if the father had definitely consented to the alienation and had by a positive act accepted the validity of the alienation. In Khushal Singh v. Mst. Bhali (A. I. R. 1931 Lah. 374) it was held that ancestral immovable property is ordinarily inalienable (especially among Jats residing in the central districts of the Punjab) except for necessity or with the consent of male descend ants or in the case of a sonless proprietor of his collaterals. Among Muhammedan Jats of the Hoshiarpur District therefore a direct male descendant who has not consented to an alienation is entitled to challenge it. In this judgment Paras. 59 and 67 of Rattigan's Digest of Customary Law were referred to, Reliance was placed on Para. 67 and it was held that according to this Para. where a grandfather alienates and the father joins in the alienation the grandson is, hot precludes from suing. Reference was made to A. I. R. 1927 Lah. 521 but that case was distinguished on the ground, that there was only one son in existence and it did not appear whether the plaintiff was a direct male lineal descendant or s collateral. It was held that as the grandson is a direct lineal descendant he is entitled to maintain an action to challenge an alienation of his grandfather even though his father may have consented. The decision is certainly in favour of the respondents. It, however, contains no discussion as to why para. 67 of Rattigan's Digest of Customary Law should be followed in preference to Para.

59. It appears that none of the authorities referred to in an earlier part of this judgement were brought to the notice of the learned judges except the Single Bench decision of Jai Lal J. in A. I. R. 1227 Lah.

521. With all respect I do not find myself in agreement with the conclusion arrived at by the learned judges in this case. In conclusion reliance was placed on the case of Milkha Singh v. Suba Singh (A. I. R. 1937. That case, however, is clearly distinguishable as in that case the grandfather had mortgaged the ancestral property with the consent of the father of the plaintiff; but there was evidence that the debts were probably incurred for the immoral pursuits of the father and the son had challenged the alienation. It was held that the consent of father was not bona fide, and, therefore, could not be taken as presumptive evidence of necessity. In such circumstances the son had an independent right as reversioner to challenge the alienation as he derived his right from the common ancestor and the alienation, therefore, was not binding on him. If the consent of the father is not bona fide it must be held that he has concurred without sufficient reason and para. 67 of Rattigan's Digest would become fully applicable. In the present case the consent of the fathers of the plaintiffs has been held to be bona fide and the act of the grandfather in aliena ting the property has been held to be an act of good management. There is also another way of looking at the matter. If the fathers of the plaintiffs had challenged the alienation of Dasaundhi and had failed the result of the litigation would have been binding on the present plaintiffs on the ground that their fathers had fought out the litigation in a representative capacity. When consent was given by the fathers of the present plaintiffs in realisation of the fact that the alienation by Dasaundhi was an act of good manage ment, the consent of the fathers of the plaintiffs must be held to be a bona fide consent. It really amounts to consent by the fathers on behalf of the entire reversionary body in a representative capa city. In whatever way we look at the matter the consent of the fathers of the plaintiffs, in the present case debars the plaintiffs from challenging the alienation made by their grandfather. For the reasons given above, I would accept this appeal, set aside the judgement and the decree of the learned Single judge and restore that of the learned District judge dismissing the plaintiff's claim with costs throughout. MEHR CHAND MAHAJAN, J.

I agree. G. D. KHOSLA, J.

I agree. A. H Appeal accepted.