1980 PLP 718 (CLC)

Muhammad Anwar, respondent No. 4, originally a Jat from Sialkot District settled in Chak No. 342 J. B., Tehsil Toba Tek Singh, District Faisalabad, sold 106 Kanals 17 Marlas of land in favour of Rehmat Ali and oth.-rs by sale-deed (Exh. D. 1) dated 20th March, 1956, for a sum of Rs. 25,

000. The agreement of sale (Exh. D. 2) was entered into between the parties on 23rd February, 1956. He received Rs. 2,000 in advance vide receipt (Exh. D. 2) and Rs. 18,000 were paid' at the time of registration. The amount of Rs. 5,000 was paid by the vendees to the prior mortgagee representing just antecedent debt, incurred by Muhammad Anwar.

2. The alienation was challenged by three sons of Muhammad Anwar on the ground that the property was ancestral, their father was a spendthrift and a man of immoral character who squandered away the money. The ancestral land could not be alienated without legal necessity. The suit was resisted by the present appellants and the trial Court framed the following issues on the pleadings of the parties (1) Whether the plaintiffs and defendant No. 1 were governed by custom in matters of alienation according to which custom a proprietor was not competent to alienate the ancestral land owned by him without consideration and legal necessity ? (2) What is the effect of the Shariat Act, 1948 on the custom mentioned in Issue No. 1 above ? (3) Whether the land in dispute is ancestral qua the plaintiffs ? (4) Whether the mortgage effected by defendant No. 1 in favour of defendant No. 9 and sale by defendant No. 1 in favour of defendants Nos. 2 to 8 were for consideration and legal necessity ? (5) Whether the suit is collusive and is being instigated and financed by the vendor ?q,; If so, what is its effect ? (6) Whether the vendor is a spendthrift or profligate and whether the mortgage and sale had been effected to deprive the . plaintiffs from inheriting this land ? If so, what is its effect ? (7) What is the value of the suit for purposes of jurisdiction ? (8) Relief. After recording the evidence of the parties the trial Court dismissed the suit on 12th March, 1960.

3. The appeal filed by the plaintiffs before the learned Additional District Judge, Faisalabad, was partly accepted vide judgment dated 15th June, 1964. He reversed the finding of the trial Court on issue No. 3, but modified the finding on issue No. 4 holding the mortgage transaction valid. It was observed that if "the alienor was really a man of immoral character a close relative of his, namely, Akbar Ali (D. W. 8) would not have advanced the mortgage money of Rs. 5,000, to advance his immoral purposes." he alienor was thus held to be neither a spendthrift nor a man of immoral character. The decision of the trial Court with regard to the validity of the sale for legal necessity was set aside by the lower Appellate Court.

4. The defendants-vendees have come up in second appeal to this Court, It was argued by learned counsel for the appellants that the appellate Court has illegally reversed the findings on both these issues. He referred to Exb. P. W. 5/1, the Jamabandi for the year 1905-06 of Chak No. 342/G. B. Ghulam Muhammad was shown as owner of the land in dispute. This'-, entry was repeated in 1909-1910, 1913-14, 1917-18 and 1921-22. In the Jamabandi for the year 1925-26 vide mutation of inheritance No. 176 the land was mutated in the name of Muhammad Din, Faiz kasul and Muhammad Anwar sons of Ghulam Muhammad. In the Jamabandi for the year 1929-30 Muhammad Anwar was shown, as sole owner of the property by virtue of Mutation No. 239 and mutation of Tamleek No. 240, although his share of inheritance on the strength of these documents was 1/3rd. It was argued that there is nothing on the .record to show as to :how the remaining 2/3rd share of the property was mutated in favour of Muhammad Anwar. Mr. Abbas Ali Khan learned counsel for the appellants further submitted that the plaintiffs at a later stage wanted to lead evidence to show that the property was gifted to Muhammad Anwar 15y his brothers but it was refused by the trial Court. They also failed in this Court in civil revision. In support of his submission that where the boundaries of the self-acquired property cannot be determined the whole of the property has to be treated as non ancestral reliance was placed on Atar Singh and others v. Thakar Singh (42 P R 1910), Lehnun v. Guptu and another (60 1 C 520), Labh Singh and another v. Mt. Jasso and another (A 1 R 1938 Lah. 180) and Mst. Nawab Bibi v. Bashir and others (P L D 1967 S C 55). On the strength of these authorities of this Court, the Privy Council and the Supreme Court the proposition, argued by the learned counsel, has to be accepted.

5. Learned counsel for the respondents has not been able to cite any authority contrary to the supra. However, he tried to distinguish Afar Singh and others v. Thakar Singh, but while reading this judgment he referred to that part of the judgment of the former Chief Court of the Punjab and not the findings of the Judicial Committee. It is abundantly clear from the case-law referred to above that if the collateral (the brothers of the alieno who obviously fall within that category) makes a gift in favour of the vendo in respect of certain property that too will be his self-acquired property. Since the boundaries of the property, cannot be determined the entire property has to be treated as non-ancestral. The learned Additional District' Judge fell into an error by saying that the onus was on the defendants to prove that the property was non-ancestral. Mst. Nawab Bibi v. Bashir and others is clear authority on this point, The finding on issue No. 3 is, therefore, reversed and that of the trial Court is restored.

6. Regarding Issue No. 4 the learned lower Court upheld the finding of the trial Court that the mortgage was effected for legal necessity. The lower appellate Court farther upheld the finding of the trial Court that mortgagee Akbar Ali (D. W. 8), a close relation of the mortgagor. would not have advanced Rs. 5,000 to the alienoi had he been a person of immoral character. Learned counsel for the parties relied on Sardar Surendar Singh and another v. Chaudhri Ghulam Muhammad (A I R 1939 P C 150), Ch. Ghulam Muhammad and others v. Riasat Ali and others (P L D 1954 F C 270) and Amir and others v. Muhammad Iqbal and others (P L D 1975 Lah. 101) so far as the principle of alienation of ancestral property is concerned. The vendee has to'make a bona fide enquiry into the alleged necessity for the alienation. Learned counsel for the respondents argued that the appellants did not make reasonable enquiry as to the legal necessity mentioned in the sale-deed to the effect that the vendor wanted to purchase more land in the former Bahawalpur State even if some of his near relations had already purchased land there. There is hardly any substance in the submission of the learned counsel for the respondents. The necessity finds mention in the recital of the sale-deed and is also proved by oral evidence of the scribe Sh. Imdad Hussain (D. W. 3) and other witnesses Barkat Ali (D. W. 2), Lal Din (D. W. 4) Ghulam Haider (D. W. 9), Abdullah (D. W. 10), Muhammad Khan (D. W. 11) and Muhammad Shafi (D. W. 12) who deposed that Muhammad Anwar had actually gone to Bahawalnagar with a view to selecting and over there. This fact is also admitted by the plaintiffs own witnesses, namely, Muhammad-ud-Din (P. W. 1, Nazir Hussain and Muhammad-ud-Din son of Fazal Din. Counsel for' the appellants argued that his clients made all possible efforts to find out the legal necessity of alienation. In support of his submission he cited Muhammad Chiragh and, others v. Fatta. and others (A I R 1934 Lah. 452(2)), Aijan Singh :v. Jagiri and another (A I R 1935 Lah. 160), .Dial Singh v. Surain Singh (A I R 1937 Lah. 493) and Lala Atma Ram v. Trakur Sadhu Singh ant another (A I R 1938 P C 77). In Abdul Aziz and another v. Ghulam Muhammad and others (P L D 1951 Lah. 187) S. A. Rahman and M. R. Kayani, JJ. held that representation by the vendor to vendee to purchase other land with the proceed of sale discharges vendee's burden. This is a clear authority on the; question of law in hand. From Amir and others v. Muhammad 1qbal and others it is abundantly clear that the allottees are, only required to make a reasonable enjoy about the nature of necessity but they are under no obligations to see that the money paid to the alienor was actually applied by the alienor to meet necessity.

7. Learned counsel for the respondents, however, in order to this contention cited Muni Lal and others v. Kishore hand Kanshi Ram (A 1 R1927 Lah. 373) in which it was held that mere recital in the deed as to necessity is no evidence of such necessity so as to bind minor members, where it is not shown that any enquiry was made at all in Indar Singh v. Nasiba and another (A I R 1936 Lah. 769) it was held that transferee before advancing money must make reasonable enquiry as to its necessity. He need not look to its application. Mere recital as to existence of necessity in deed is feeble evidence. In Gurdit Singh and others v. Narain Singh and others (A I R 1935 Lah. 69) it was held that where the borrower is a notorious spendthrift and profligate, a creditor will not lie protected merely by the fact that the money advanced by hint was said to be required to pay off antecedent debts, on the contrary it will be his dirty to make a full inquiry as to whether the antecedent debts were really just debts incurred for a necessary purpose. The case-law cited by learned counsel for tie respondents does not help him at a

11. In fact more or less it goes in faun of the appellants. The decree of the lower appellate Court on question of law regarding this issue is illegal and unsustainable.

8. In view of the above discussion the appeal is accepted with and the judgment -and decree of the trial Court are restored. S. Q. Appeal accepted.