P (PLP)

M.R. KAYANI, J.

This is a decree in a declaratory suit under custom. The following brief pedigree‑table shows their relationship with the vendor and other interested reversioners:‑

ISA |

Ali Sher Vendor Allah Bakhsh Ghulam Farid | | Abdul Aziz | Plaintiff No. 1 | |

|

Rahim Bakhsh | Ilahi Bakhsh Abdul Karim Plaintiff No.

2. On the 11th April 1928, Ali Sher mortgaged 33 kanals 12 marlas of land for Rs. 560 in favour of Pir Bakhsh, grandfather of the defendants. On the 14th January 1938, Ali Sher. mortgaged the entire land comprising 108 kanals 15 yharlas, including the land which was mortgaged in 1928, in favour of Pir Bakhsh again, for a sum of Rs. 1,

900. On 31st July 1939, he sold the entire land to Pir Bakhsh for Rs. 3,

200. The present suit, it would be noticed from the pedigree‑table, has been brought by Abdul Aziz, son of Ali Sher, and only one of the three sons of Allah Bakhsh, apparently because the suit of the other two is time barred. The plaintiffs contest all the three alienations aforesaid on the ground that they were effected without consideration and necessity, the vendor being, "a notorious spendthrift, an imprudent man, a debauchee and a drunkard" . Ilahi Bakhsh plaintiff stated his age to be 19 years and Abdul Aziz to be 16 years. It was alleged that, although Abdul Aziz had not been born at the time of the first mortgage, his right to contest it was derived from Ilahi Bakhsh who had then been born, but who was then a minor. The defendants controverted these pleadings and laid special stress on the stringent circumstances of the sons of Isa which had compelled them to mortgage or sell their land from time to time and also seriously to contemplate acquisition of cheaper and more productive land in Bahawalpur State. Ghulam Farid, brother of the vendor, was shown to be still without a wife because of his inability to marry, while Allah Bakhsh, father of plaintiff No. 2, was stated to be a chaprasi and to have given up cultiva tion for the obvious reason that the land of the chak was inferior in quality and difficult in irrigation. For this reason, many a person from the chak, to which the vendor belongs, bad migrated to Bahawalpur where irrigation was more profitable and had acquired lands there. In pursuance of this general belief, the vendor himself also intended purchasing land in Bahawalpur State and, before actually selling his land to Pir Bakhsh, he had visited Bahawalpur several times and selected some land for purchase. Further, his wife had died and he wanted to remarry. He had actually contracted a second marriage after the sale. The reason why he did not acquire land in Bahawalpur was that soon after the sale, the World War had broken out and had perturbed the minas or the people. That the vendor had good intentions at the time of the sale and did not propose squandering the money, was clear from the fact that he had acquired some land in mortgage from one Shah Muhammad. In respect of the mortgage of 1928, it was further alleged by the defendants that this had been executed by the vendor with the object of discharging the debt of his brother Allah Bakhsh, who had consented to the mortgage and that consequently Ilahi Bakhsh, son of Allah Bakhsh, was debarred from contesting its validity ; and since the other plaintiff Abdul Aziz, derived his right to contest this mortgage from Ilahi Bakhsh, Abdul Aziz was also debarred from 9contesting it. The following issues were struck :‑

1. Whether the suit of plaintiff No. 2 is within time ?

2. Whether plaintiff No. 1 had been born on the dates of the transfers in dispute ? If not whether he has got any locus standi to maintain the suit and whether his suit is within time ?

3. Whether plaintiff No. 1 has got any locus standi to maintain the suit qua the transfers which were effected prior to his birth and whether plaintiff No. 2 has got any right to challenge any of the transfers when it is admitted that two brothers, Allah Bakhsh and Ghulam Farid, of the alienor are alive and they have not chal lenged any of the transfers?

4. Whether the suit land is ancestral property of the plaintiffs qua the alienor ?

5. Whether the transfers had been effected for consideration and necessity or whether they can be, upheld on the point that they constituted acts of goods management on the part of the alienor ?

6. Relief. On the first issue, the trial Court accepted the statements of the plaintiffs in respect of their ages and held that the suit was within time. For the same reason the second issue was also found in favour of the plaintiffs. On .the third issue, the finding was that since the father of the second plaintiff had consented to the mortgage of 1928, both. he and the first plaintiff were without locus standi to challenge it ; but as regards the other two transfers, the presence of Allah Bakhsh and Ghulam Farid, brothers of the vendor, made no difference to the rights of the plaintiffs. On the fourth issue, the finding was that the land in suit was ancestral property. On the fifth issue, it was found that the transfers con stituted an act of good management, and that so far as the transferee went, it was enough if he in good faith believed that the transferor needed the money for a legitimate ,purpose. The suit was con sequently dismissed with costs. There are two main points in appeal. The first is whether Ilahi Bakhsh plaintiff No. '2 is debarred from contesting the mortgage to which his father had consented. The second is whether the aliena tion as a whole constituted an act of good management. We have not been impressed with the evidence regarding the bad character of Ali Sher. Some of the plaintiff's witnesses said that he was addicted to drinking and gambling. Others said he was addicted to Mang and post. They had no first‑hand knowledge of these matters. On the contrary, there was evidence on the side of the defendants that Ali Sher was at one time a member of the Panchayat, and even one of the plaintiff's witnesses, Fateh Muhammad (P. W. 4), admitted that Ali Sher was a member of the "Water Committee." Fateh Muhammad's main case against Ali Sher as a debauchee was that if a troupe of musi cians ever came to the village, Ali Sher rewarded them with Rs. 10 at a time, whereas other people would give them only Rs.

2. The last troupe of musicians, according to him, had visited the 'village only two years previously and before that occasion at intervals of about six months. Even assuming, therefore, that what. Fateh Muhammad says is correct, Ali Sher could not have "squandered" more than Rs. 20 a year on musicians. Statements of this nature, however, are made gratuitously merely to injure the good faith of an alienor and cannot be accepted unless they are corroborated by other circumstances. It might be stated here that no emphasis was laid on this aspect of the case by the learned counsel for the plaintiffs. As regards the conditions in Chak No. 408 to which the land in suit belongs vis‑a‑vis the land in Bahawalpur, we have quite some convincing evidence in favour of the view that it was an act of good management for a person holding land in Chak No: 408 to dispose of it and acquire instead land in Bahawalpur. Abdul Rahman (D. W. 2), who originally held land in Chak No. 410, which is three miles from Chak No. 408, sold his land there and acquired five squares of land in i3ahawalpur (Chak No. 111). He is now a lambardar and states that three other persons from the Chak of the vendor had likewise migrated to Bahawalpur for the reason that you can buy six or seven squares of land in Bahawalpur for the price of one square of land in Lyallpur. He added that Ali Sher vendor had visited him in Bahawalpur about the end of 1937 and had selected some land for purchase. He had also visited the three persons originally belonging to his Chak namely, Nathu, Jummun and Kamal Din. In 1939, when the World War had started, he came again. The price of land had then risen and people were perturbed. Muhammad Bakhsh lambardar (D. W. 4), who belongs to the Chak of the vendor, deposed that the land in his Chak was of inferior quality, that water was deficient and that people who had migrated to Bahawalpur were better off: Muhammad Bakhsh may not be regarded as a very impartial witness be cause he is in some remote manner related to the defendants, though he has stated in favour of the plaintiffs that the price of land went up only two or three years after the commencement of the War. In this, he contradicts Abdul Rahman (D. W. 2) and I think we can take judicial notice of the fact that the War did not affect the general level of prices for at least the first two years. Shadi (D. W. 5) is another lambardar of the vendor's Chak. He has stated that several persons of his village have migrated to Bahawalpur and are better off. To the same effect is the evidence of Nur Muhammad (D. W. 6). The plaintiffs produced Sardar Ali (P. W. 2) of Chak No. 111 in Bahawalpur to contradict the evidence of Abdul Rahman (D. W. 2). He stated that Ali Sher vendor had never visited his Chak and. further that the land of the adjoining Chak No. 110, in which the vendor is supposed to have selected some land for purchase, was inferior in quality. In cross‑examination, however, he substantially supported the case of the defendants. He admitted having originally belonged to a Chak which was five or six miles from the Chak of the vendor and having migrated to Bahawalpur 12 or 14 years ago, after mortgaging half of his land which was altogether two squares in area, and purchasing land in Bahawalpur. He also admitted that two of the neighbouring Chaks in Bahawalpur were inhabited by people from Hoshiarpur district. Hoshiarpur is the original district of vendor and Abdul Rahman.(D. W. 2) also, and Abdul Rahman has told us that 15 or 16 Chaks in Bahawalpur were inhabited by people originally belonging to Hoshiarpur District. What is more important, however, in the statement of Sardar Ali (P. W. 2) is that lands in. Bahawalpur can be bought on payment of easy Instalments, say of Rs. 250 each, that if payment is to be made in lump, a square of land can be bought only for Rs. 2,000 and that lands in Bahawalpur yield good crops. Nihala (P. W. 3) who was produced to prove that Ali Sher was addicted to gambling and drinking, admitted that "a sufficient number of men of our village has gone over to Bahawalpur", as also men from neighbouring Chaks. He further admitted that Ali Sher had celebrated a second marriage five or six years before the date of his statement, which was 17th April 194 7, that he had married his daughters three years before the date of his statement and that he had taken in mortgage some land from one Shah Muhammad. If this statement is correct, Ali Sher married a second time in 1941 or 1942 and he got his daughters married in 1944. We have no doubt on this evidence that whatever be the quality of land in Chak No. 408 of Lyallpur District, it was regarded as a profitable concern by quite a number of people to acquire cheaper land in Bahawalpur and improve its quality by manual labour. Learned counsel for the plaintiffs pointed out that the land in Chak No. 408 could not be inferior and in this connection referred to Exhibit D. 3 which is a report of the Settlement Officer in respect of the soil of this Chak. According to this report, the water supply of the Chak is "good on the whole and the soil is moderately good maira in the south of Minor No. 8, except in the western few squares where it is sandy. The soil is inclined to be sandy as one proceeds towards the north from the above‑mentioned Minor. In the north‑west corner kalrathi patches are noticeable." Notwithstanding this comparatively pleasant description, the Settlement Officer placed the land in suit in class V (b) which, according to the Settlement report, was assessed at Rs. 3 per acre, as compared to Class 1, which was assessed to Rs. 9 per acre. In short, if assessment of land revenue is any test of the quality of the land assessed, the land in suit yielded only one‑third of the produce expected of first class land. It will now be profitable to look into the circumstances of the vendor since he first started mortgaging his land in 1928. The mortgage‑deed Exhibit D. 1 shows that in 1928 the entire land in suit was held in lease by one Ladha Ram from kharif 1927 to rabi 1931. The mortgage was thus to take effect from kharif 1931 ‑ Thereafter, Ali Sher mortgaged two other plots, one to 141st. Jhando, the other to Nur Muhammad, collectively measuring 35 k9nals 9 marlas. These two mortgages are accepted by the learned counsel for the plaintiffs as having been occasioned by necessity. Thus, on the date of the second mortgage in 1938, Ali Sher had only 39 kanals 10 marlas of unencumbered land. Bearing in mind that it came fifth in order of merit according to its assessment value, it could hardly have yielded enough to enable Sher Ali to live comfortably on its income. With similar land in his possession his brother Allah Bakhsh had run into debt so that in 1928 Ali Sher bad found it necessary to relieve him by mortgaging his own property. Further, Allah Bakhsh was driven from agriculture to service as a Chrapsi while Ghulam Farid, the second brother, as defendants point out, was not even able to get a wife. In this uncomfortable state of affairs, it, was only natural for him to look to a different horizon where other people, both from his own village and his neighbourhood, had looked earlier and had not been dismayed. Both the mortgage deed of 1938 and the sale deed of 1939 contain a: recital that Ali Sher wanted to buy land in Bahawalpur. In the present circumstances, this was more than a formal recital to which buyers and sellers resort in anticipation of a challenge by customary reversioners Ali Sher's subsequent conduct abundantly proves his good' faith: The second mortgage was executed on the 14th January 1938 when, after discharging his previous debts, he was left with Rs. 723 in hand. On the 29th February 1.938, he, together with his aunt Mst. Jhando, took in mortgage 50 kanals 13 marlas of land from one Shah Muhammad in con sideration of Rs. 1155, of which Rs. 855 were paid in cash (see Ex. D. S), Ali Sher's share of payment being thus Rs. 427‑8‑

0. As the balance had also to be paid to a previous mortgagee, Ali Sher would be ultimately responsible for the payment of Rs. 577. 8‑0 Within one month of the second mortgage he was thus investing almost the entire amount which he had in hand. It was con tended‑. that this mortgage was redeemed about five years later. This argument is, however, of no value, as in the first place, it was not in. the power of Ali . Sher to prevent the redemption, and, in the second place, it did not affect the intention of Ali Sher at the time of the mortgage. It may, I think be accepted as true that upon the break‑out of the world war on 1st September 1939 (only a month after the sale of the land in suit by Ali Sher) there had crept into the minds of people an indefinable consternation and uncertainty as to the future, with the result that men of prudence preferred arming themselves with cash to investing money in land. We, therefore, regard Ali Sher's failure to buy land in" Bahawalpur as being consistent with the ordinary conduct of a prudent man as it took shape about the end of 1939. The question now is whether in the eye of custom a transfer of ancestral land can be regarded as an act of good management even if the transferor is thereafter prevented from accomplishing his object. For the plaintiff reliance was placed on an unpublished judgment of this Court in R. S. A. No. 1572 of 1943 decided by Achhru Ram J. on the .1st December 1944 in re. Piran Ditta v. Muhammad Qasim alias Qasim Ali, in which it was held that the principle that representation to the purchaser as to the neces sity of the sale discharges the purchaser's burden, does not apply to cases where the sale is sought to be justified as an act of good Management. This is a short Judgment and says nothing as to what the position would be if subsequent events prevent the vendor from carrying oat his intention. There are, on the other hand, cases which showy that what is regarded as an act of good management is in fact a 'form of what custom regards as legal necessity. In Dial Singh v. Surain Singh (A. I. R. 1937 Lah: 483), for instance, where the ostensible object of the sale was the purchase of land in Gwalior and Bikaner, although in actual fact only Rs. 160 out of Rs. 1500 were‑spent on such purchase, it was held by Skemp J. that the sale was one for necessity. This is apparent from the following passage in the judgment :‑

"The sole question, therefore, is whether his sale in order to buy land in Gwalior and Bikaner‑is an act of good management which is regarded as necessity". Similarly, in Muhammad Chiragh v. Fatta (A. I. R 1934 Lah : 452), where there was, a recital in the sale‑deed that the vendors intended to purchase other land with the proceeds of the sale, the sale in question was held to be an act of good manage, merit, because the land had been under mortgage since 1876 and the father of the vendors had migrated to a different‑district a long time before the sale. Commenting the obligations of the vendee with reference to the recital in the sale deed, Bhide J. made the following observation :‑‑‑ "This shows that a representation of this kind was made to vendees and it might well have been believed by them in good faith in the circumstances of the case". It would thus appear that even in the cases of sale amounting to good management a mere representation of the object of the sale to the vendee has been sometimes regarded ‑as discharging his burden. In Abdul Raft v. Pandit Lakshmi Chand (A. I. R. 1934 Lab. 998) ancestral land was sold for Rs. 54,000 and thereafter land worth Rs. 11,000 only was bought in U. P. in addition to mortgagee rights for Rs. 24,

682. The case was decided by Tek Chand and Bhide, JJ. The following passage from the judgment is instructive :‑ "It is not necessary to go into the question of necessity for the sales; but I may point out briefly that the sales appear to have beer, necessitated by 'peculiar circumstances and may reasonably be looked upon as an act of good management, even according to the custom generally prevailing in the province. It appears that the relations between the family of the plaintiff and tenants in the village where the land was situated had become very strained and three members of the family including the father of the vendor had been recently murdered .It is well established that a vendee is not expected to see to the application of the money by the vendor to the purposes mentioned in the sale deed but the facts stated above are sufficient to show that the vendee acted in good faith and that the money was not wasted on any immoral pursuits". Arjan Singh v. Jagiri (A. I. R. 1935 Lah. 160) was a case decided by Beckett J. in which certain ancestral land was mortgaged for Rs: 1,000 for the purpose of raising money to pur chase land. It was not actually spent on that purpose. The learned judge observed:‑ "But there is nothing against the character of Ganga Singh and the ostensible object of the mortgage would ordinarily be sufficient to protect the mortgagee in a suit of this nature". It was further observed :‑-- "All that the law requires of a purchaser or mortgagee of land belonging to persons governed by the general rule of custom is that he should take steps to satisfy himself that the money is required for expenditure on a legitimate purpose, and he cannot be held responsible for its application afterwards. The degree of caution required will vary with the known character of the alienor, but when the alienor is known to be a prudent man of good character, his own statement as to his requirements will ordinarily be accepted. As already remarked, Arjan Singh had the reputation of a prudent man and there is nothing to show that any of the money which he borrowed teas ever spent on objects which would not be considered legitimate for a landowner, who is not expected to live strictly within his means as a widow is. So long as lie had not acquired a reputa tion for reckless extravagance, the alienees were entitled to take his assurance as to the purpose for which he wanted money. It is thus clear that good management has been regarded only as one form of legal necessity and on principle, I do not see why a vendee should be less favourably situated when deal ing with a person who sells his estate as an act of good management than when buying land from a person who sells it with a view to enabling himself to meet the expenses of a daughter's marriage, for he cannot compel the vendor either to perform the marriage or to buy other land. The essence of the vendee's defence lies in the knowledge that he is dealing with an honest man and that what the vendor professes to be the object of the sale is an object recognized by custom. In this view of the matter it is unnecessary to give a finding on the validity of the first mortgage. The final sale include, both the mortgages and if the sale as a whole cannot be challenged, its component parts are not open to attack. The appeal is, therefore, dismissed with cots. S. A. RAHMAN, J,‑I agree in the conclusion reached by my learned brother that the appeal be dismissed with costs. A. H. Appeal dismissed.