P (PLP)

SIR ABDUL RASHID, C.-J.

This is a second appeal from a decision of the Additional District Judge of Lahore, affirming the judgment and the decree of the trial Court dismissing the plaintiff's suit. The facts of the case are few and simple, On the 9th of April 1940 Ghulam Mohammad defendant No. 2 sold 58 kanals 17 marlas of land to Shah Mohammad defendant No. 1 for Rs. 3,

000. The son of the alienor, Ramzan defendant No. 3 consented to the alienation. Mohammad Ibrahim, the son of Ramzan and the grandson of the alienor Ghulam Mohammad, instituted the present suit for a declaration to the effect that the sale made by his grandfather would not affect his reversionary rights after the death of the alienor. It was stated in the plaint that the property was ancestral qua the plaintiff, that the family was governed by customary law in matters of succession and alienation and that the alienation was without consideration and necessity. It was pleaded on behalf of the contesting defendant inter alia, that the plaintiff's father having consented to the alienation the plaintiff was barred from challenging the alienation in dispute. On these pleadings the trial Court framed the following issues :-

1. Is the property ancestral as alleged ?

2. Is the plaintiff governed by custom in matters of alienation ?

3. Is the sale for consideration and legal necessity

4. Is the plaintiff barred from filing the suit for the reason that his father was a consenting party to the sale ?

5. Is the suit collusive ? The trial Court dismissed the plaintiff's suit on the ground that the property was not proved to be ancestral qua the plaintiff and that the sale was proved to be for consideration and legal necessity. The plaintiff preferred an appeal in the Court of the learned Additional District' Judge. The lower Appellate Court held the property to be ancestral qua the plaintiff. It further held, that the sale was for necessity only to the extent of Rs. 1,665 which were due on account of a previous mortgage. The suit of the plaintiff was, however, dismissed in its entirety on the ground that the plaintiff's father had consented to the sale and it had not been established that this consent was given mala fide. Against this decision the plaintiff has preferred the present appeal. It was contended on behalf of the appellant that the present case fell within the purview of para. 67 of Rattigan's Digest of Customary Law. Para. 59 of the Customary Law lays down 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. It was urged that the plaintiff had been born when the alienation in dispute was made and, therefore, the consent of his father could not be regarded as the consent of male descendants and that the provisions of para. 59 of Rattigan's Digest were, therefore, inapplicable. It was maintained that under para. 67, if a nearer reversioner concurs in the alienation or the act alleged to be wrongful the next reversioner is entitled to maintain the action. According to the learned counsel no question of bong fide or mala fide consent arises in such a case. The alienee in such a case has to establish that the alienation was for necessity if the property alienated is ancestral qua the plaintiff. In support of his argument reliance was placed on A. I. R. 1931 Lah.

374. This was a case brought by the grandson of the alienor to challenge an alienation to which one of the male descendants of the alienor had consented. It was held that amongst Muhammadan Jats of the Hoshiarpur district a direct male lineal descendant who had not consented to an alienation is entitled to challenge it. The consent of a nearer reversioner does not bind him. It was observed that as all the descendants of the alienor had not given their consent, para. 59 of Rattigan's Digest of Customary Law had no application to the case. The question of bona fide or mala fide nature of the consent was however not touched upon in this ruling. On behalf of the respondent it was contended that the present case was not governed by pares. 59 of Rattigan's Digest. It was, however, urged that the consent of the son of the alienor would bind the grandson unless it is shown that the son consented to the alienation mala fide or with a view to injure the interests of his son. Reliance was placed by the learned counsel in this connection on A. I R. 1947 Lah.

267. In this case it was held by Mr. Justice Achhru Ram that where in a suit by the grandsons to set aside the sale of ancestral land made by their grandfather, the grandsons allege that the consent of their father to the sale was obtained mala fide and, therefore, the sale is not binding on them the onus of proving that the consent given by their father was mala fide lies heavily on them. The alienees need not prove that the consent was given bona fide as good faith must be presumed till the contrary is proved by the plaintiffs. Mr. Justice Achhru Ram based his judgment on observations made by a Division Bench of this Court in I, L. R. 3 Lah.

112. Similar observations were, made in 55 P. L. R. 1903 and 12 P. L. R. 1908. There are a number of cases in which it has been said that the consent of the nearer reversioner when given in a bona fide manner and openly would bind the more distant reversioner, for instance A.

1. R. 1932 Lah. 39, A.

1. R. 1924 Lah. 213 and 68 P. R. 1912. In these cases however, the question of onus with respect to bona fides or mala fides was not discussed It was only observed that the consent of the nearer reversioner if given in a bona fide manner would bind the subsequent reversioners. A. I. R. 1947 Lah. 267 and I. L. R. 3 Lah. 112 are the only two authorities where the question of onus with respect to the bona fide or males fide consent of the nearer reversioner was directly dealt with. I would, therefore, hold that in the present case it was incumbent. on the plaintiff to establish that the consent given by his father to the alienation by his grandfather was males fide. For the reasons given above, I would affirm the decision of the Courts below and dismiss this appeal with costs. MUHAMMAD MUNIR, J.--I agree. K.M.A Appeal dismissed