P L D 1978 Lahore 239 (PLP)

3. In support of plaintiff's case, Ghulam Rasool P. W. 1 stated that as the land in dispute yielded stuffiest income, Hussain Bakhsh had no need to sell it and he owed no debt. In his cross-examination he stated that Hussain Bakhsh lived with Ahmad Din who used to receive Batai. P. W. 2 Paqir Muhammad and P. W. 3 Muhammad Ahmad supported Ghulam Rasool P. W.

1. The defendants' evidence about legal necessity is thus not more than a mere recital in the sale-deed or an assertion by the vendor that he was selling it for purchasing other land and sinking a tube well therein. The vendee just relied on it and made no further inquiry. According to the plaintiff's evidence the land in question yielded income sufficient for vendor's maintenance and he need not sell the same.

4. The question that arises for determination, therefore, is whether the Courts below could in law infer from tine evidence on record that there was a legal necessity for the vendor to sell the land. The learned counsel relied on Lala Atma Ram, v. Thakur Sadhu Singh (AIR 1938 PC 77), Ghulam Muhammad v. Ghulam Muhammad (P L D 1949 Lah. 384) and Ghulam Muhammad v. Riyasat Ali (P L D 1954 F C 270) to say that a vendee could not rely on a mere assertion, on the vendor and roast make inquiries to satisfy himself if the vendor was selling the land really for a legal necessity. The contention of the learned counsel for the respondent is that as there is a concurrent finding of fact in favour of the vendee about legal necessity' the appellant cannot challenge the same in second appeal. I am of the view that the objection being raised by the learned counsel for the respondents has no force. The Federal Court in Abdul Majeed v. Khalil Ahmad (1) laid down that an inference arising out of a fact as to what constitutes legal necessity is essentially a questio n of law. The question A being raised by the appellant, therefore, can be gone into in these proceedings.

5. It is well established that onus to prove that there was a legal necessity to sell land held under custom is on the alienee. Reference be made to the observations of Kalkaus, J. in Alaz Ahmad lavald v. Pirthl Raj (2) that the onus of consideration and. necessity is always on the aJienee and not on the plaintiff. It is, therefore, to be seen whether the alienoe did discharge his onus and if the inference drawn by the lower Courts from the facts on record about legal necessity was valid. A Division Bench of this Court in Ghulam Muhammad v. Ghulam Muhammad held : "Any person dealing with an agriculturist governed by the Customary Law, is presumed to know that his powers of alienation are limited and that the alienation could not be made without some necessary putpose. In view of this presumption there is a duty cast upon the intending allenee to satifj him, e j that the ancestral property was going to be transferred for some valid object recognised by the Customary Law. This would necessitate some sort of an honest enquiry. The nature and the scope of the enquiry however, would ditfcr wish circumstances of each case. The extent of the property owed by the alienor, his known habits and his representations as the purpose for which the money was needed, are all relevant and where there are circumstances to indicate that the matter should be proved further, it shall be duty of the alienee to do so. No hard and fast rule can be laid down ore the point. But it may be taken to be an established preposition of law that beforr entering into a dealing with an agriculturist, some enquiry must be made and where a person dial rust choose to make any enquiry he shall suffer, if purpose for which the money" was raised, did not turn out to be a necessary one. The observations of their Lordships of the Privy Council in Lala Alma Ram v. Thakar Sadhu Singh A I R 1938 P C e7 may be reproduced : Now, it is a well established rule that the onus lies on the alience to prove either that there was legal necessity in fact which would justify the alienation, or that he made a proper and bona fide enquiry into the alleged necessity and satisfied himself as to the eaistenoe of such necessity. If he fails to prove that there was a necessity in fact, alienation may still be upheld if he proves that he made enquiry as to the existence of the alleged necessity, and that the facts represented to him were such as, if true, would have justified the transaction. If he discharges this burden, he is not bound to see that the money paid by him is actually applied by the alienor to meet the necessity." (emphasis is by me) In Ghulam Muhammad v. Riyasat Ali it was held that 'representation' does not dispense with proof. In that case their Lordships considered the case of Bangs Chandra Dhur v. Jagat Kishore Achariya Chowdhurt (P I, D 1955 Lah. 567) and approved the observations made in its judgment that recitals cannot them selves be relied upon for the purposes of approving the assertions of facts which they contain. Their Lordships further observed :‑ "it is only necessary that a representadan should have been made to the purchaser that such necessity existed, and that he should have acted honestly and made proper enquiry to satisfy himself of its truth. The recital is clear evidence of the representation, and it the circumstances are such as to justify a reasonable belief that an enquiry would have confirmed its truth, then when proof of actual enquiry has become impossible, the recital, coupled with such circumstances, would be sufficient evidence to support the deed." (Emphasis is by me) In view of the above, the observations relied on by the learned counsel for the respondents in Muhammad Chiragh v. Fatta etc. (A I R 1934 Lah. 452(2)) would be of no avail to him.

6. Recital in the title deed or an assertion made by the vendor to the vendee cannot he relied upon for the purpose of proving essential facts they contain. Such recitals when incorporated in a sufficiently old document could be given some weight but they cannot be exclusive evidence as held in Adhar Chandra Bhattacharya v. Sarimati Sushila Sundaripal ((1928) 109 I C 35). The reason, as given in Muhammad Nuh v. dry Bihari Lal ((1924) 46 I L R 656) is that the alienee to protect his interest may got false recitals to be made. In the case in hand the sale deed was art an ancient or old document. The facts therein were not proved. The vendee even did not make any bona fide inquiry. There was, therefore, no legal justification for the Courts below to hold that the sale was for a legal necessity.

7. The next objection by the learned counsel for the respondents is that this appeal must fail for the reason that the plaint filed by the plaintiff - appellant was not properly stamped. The precise objection was that instead of fixing ore Court-fee stamp of Rs. 20, the plaintiff had supplied two court- fee stamps of Re. 10 each. The learned trial Court had considered that omission on the part of the plaintiff to be a mere irregularity and allowed him to supply a certificate from the stamp-vendor that one stamp of Re. 20 was not available. The learned lower appellate Court, however, did not permit that as in its view the stamp-vendor would not know after the lapse of about four years if on that particular day a court-fee stamp of Rs. 20 was not available. Apart from the fact that a stamp-vendor does maintain an account of the stamps with him, it would be seen that the Courts do not act as Revenue Collectors. It was quite sufficient that the plaintiff did supply the requisite certificate and that in fact he did pay the entire court- fee amount. The objection of the learned counsel for the respondents, therefore, does not have any force. For the reasons given above, this appeal succeeds. The judgments and decrees of the Courts below are, therefore, set aside. The suit of the plaintiff appellant is, therefore, decreed with costs throughout. S. Q. Appeal accepted.