1979 PLP 653 (CLC)

(4) Whether the sale was made with consideration and for legal necessity? (5) Whether the suit is collusive? (6) Relief. On issue No. I it was held that the plaintiff had a locus standi to file a suit. On issue No. 2 it was held that the vendor was governed in the matter of alienation by custom and consequently had limited power of alienation. On issue No. 3 it was held that the land was ancestral qua the plaintiff. On issue No. 4 it was held that payment of total consider ation was not proved and what was actually proved was payment of Rs. 4,050 before the Sub-Registrar and a payment of Rs. 800 in connection with an earlier existing mortgage. In this way, the consider ation was held to have been proved to the extent of Rs. 4,

850. In other words for the balance of the amount of Rs. 1,150 the consider ation was held as not to have been proved. As regards the legal necessity, it was held that the sale was in fact an act of good management, inas much as, the vendor wanted to settle in village Malku which was the village of his in laws. After the sale, it was found, that the vendor had actually on 4-4-1955 got some area in the form of a mortgage in another village known as Kotla Panju Beg. Issue No. 5 was answered in the negative. As a result of the above findings, the suit of the plaintiff was dismissed without costs on 11-7-1961. The plaintiff filed an appeal which was accepted by the learned Additional District Judge, Sheikhupura, on 8-2-1965. The learned Additional District Judge held that the sale in dispute could not, on the facts and in the circumstances of the case, be held to be an act of good management. His other finding was that the subsequent mortgage which was obtained by the vendor in village Koda Panju Beg was not obtained with the sale price of the land in dispute. The original as well as the subsequent vendees have come up in second appeal to this Court.

2. The first point argued by the learned counsel for the defendants. appellants was that the suit of the minor plaintiff was barred by law of limitation. The precise submission was that Shera, father of the minor plaintiff Karamat, was alive at the time when Mohni, brother of Shera, and uncle of the plaintiff, made the sale. He was alive at the time of the institution of the suit on 17-10-1959. It was argued that in declaratory suits of the present kind, if a male reversioner, who could have instituted a suit, was alive at the time of the alienation, did not file a declaratory suit and the period of limitation had passed, then the suit of a minor son of that reversioner was also barred by limitation. Reliance for this proposition was placed on Dad v. Lal and others (A I R 1925 Lab. 24), (Martineau and Moti Sagar, JJ.) where, without giving any reasons, it was laid down that a suit by a minor reversioner to contest unnecessary alienation, brought at a time, when if brought by minor's father it would be barred under Punjab Limitation Act I of 1920 is also barred. Somewhat similar view was pressed in Chiragh Din and others v. Abdullah and others (A I R 1925 Lab. 654) (Broadway and Jay Lal, JJ.) where it was held that the right to sue for a declaratory decree is vested in the whole body of reversioners in existence at time of alienation jointly and severally and time begins to run simultaneously against them all and no subsequent disability stops it. This latter case, however, pertains to a plaintiff who was born subsequent to the date of sale, and from that point of view, may not be relevant on factual plane. except of course for the general proposition hereinbefore mentioned. Same view was expressed in Gajindar Singh and another v. Balwant, Kaur and others (A I R 1933 Lab. 524), (Addison and Bhide, JJ.) and was followed in Mutu v. Jati and another (A I R 1937 Lab. 485) (Jai Lai, J.). However, in my respectful opinion, the view expressed in the aforesaid four cases is not the correct law on the subject. In Hari Ram v. Sall and others (A I R 1934 Lab. 968), (Young, C. J. and Din Muhammad, J.), it was laid down that if a reversioner and his minor sons are live at the date of (which was involved in that case) an alleged adoption, they have separate rights both derived from the common ancestor. The right of the father being barred does not bar the right of the son if he be a minor. The son will have the advantage under the Limitation Act of adding the period of his minority to the limitation period. In this case of Chiragh Din and others v. Abdullah and others was clearly distinguished and Sundar v. Salig Ram ((1911) 26 P R 1911) was relied upon. To the same strain is Sarwan Singh and another v. Mt. Basanti and others (Young, C. J. and Rangi Lal, J.,) where it was laid down that under the customary law every minor, who was in existence at the time of aliena tion, which is being challenged by him, can bring a suit within three years of attaining majority. Therefore, where the plaintiffs are still minors they have clearly ample time for bringing their suits and no objection on the ground of limitation can be taken to their suit. For other cases on the subject see Wali Chand and another v. Punjab Singh and another (A I R 1932 Lah.39 ), Milkha Singh v. Suba Singh and another (A I R 1937 Lab. 477), and Harnam Singh and others v. Aziz and others (Al R 938 Lab. 1). In Jatik hubl v. Matu and another (Tek Chand and Abdul Rashid JJ.), the case of Chiragh Din and others v. Abdullah and others was distinguished from and Matu v. Jati and anoher (S. B.) was reversed. The mistake in the four cases reported in Dad v. Lal and others Chiragh Din and others v. Abdullah and others Gajindar Singh and another v. Balwant Kaur and others and Matu v. Jati and another was that they probably considered the right to challenge an alienation as a joint right, with the result that if it was barred qua one reversioner, it would be barred qua other reversioner as well. But this theory is not correct. Each reversioner, it may pointed out, has an independent right, which vests in him by virtue of/ his connection with the common ancestor. It is not necessary to multiply) any further the case law on the subject, because, this controversy should be considered to have been set at rest by 1lahi Bakhsh through Munshil Khan: v. Umar Bakhsh under guardianship of Mst. Ahhan and others (A I R 1937 Lab. 653), where the main case of the contrary view, namely, Gajindar Singh and another v. Ralwant Kaur arid others (A I R 1944 Lab. 409) was expressly overruled and it was held that if a presumptive reversioner has failed to sue, a remote reversioner, who happens to be :. minor at the time of the aliena tion, can avail himself of the benefit of section 6, of the Limitation Act, 1908, and that section 9 does not come into operation in such a case. Tim no doubt will start running both against the major and minor reversioner but they will have their own periods of limitation and in no case will the one provided for a minor reversioner be affected by that of a majo a reversioner, whether of equal or of a different degree. Taking up a very charitable and generous view, it appears that this case escaped the notice of the learned counsel for the appellants and probably for that reason he cited the obsolete law. In Jawahar Singh v. Udas Parakah (A I R 1926 P C 16), it was laid down by their Lordships that a suit brought by the younger son within three years of attaining majority to avoid the sale is not barred by limitation although the eldest son attained his majority more than three years earlier and had taken no steps to question the alienation. Also see Gita Ram Hari Chand Gujjar v. Mangtu Kalu Gujar and others (A I R 1951 Pat. 38), which too is to the same strain. In the face of what has been written above, the objection as to bar of suit of the minor plaintiff is hereby rejected.

3. The next point argued by the learned counsel for the appellants was that sale in dispute was a legal necessity, inasmuch as, it was an act of good management on the part of the vendor, and the finding of the learned Additional District Judge, to the contrary, was not correct. He submitted that the land in dispute was `barren' or "not so fertile" from which the vendor was not having any substantial income. lie, therefore, decided to sell this land and acquire some other land in another village Malku, which was the village of his in-laws. Consequently with the sale price of the ,land in dispute the vendor in fact got an area of about 85/85 kanals on mortgage in village Kotla Panju Beg which was near village Malku (the village of vendor's in-laws) where the vendor wanted otherwise also to settle down. The contention has no merit. It is to be mentioned that. (i) there is no recital of the aforesaid particular necessity in the form of an act of good management in the relevant sale-deed Exh. D/2 dated 6-3-1953; (ii) these facts were not pleaded even in the written statement of the defendants; (iii) it was only after the evidence of the plaintiff was closed that the defendants thought of these particulars; (iv) the sale in dispute took place on 6-3-1953 whereas the mortgage aforesaid was taken on 4-4-1956 vide Exh. P/2 i.e. about three years after the impugned sale which adversely reflects upon existence of any pressing necessity in the year 1953; (v) it was suggested that the mortgage was taken from the sale money received by the vendor from the original vendees but this does not conclusively stand established on the present record, especially, because after the present sale the vendor sold another area for Rs. 12,000 vide sale deed Exh. P/1 on 7-2-1956 whereafter mortgage (Exh. P/2) was taken on 4-4-1956 which suggests that it was the later sale money which was utilised in mortgage particularly when the mortgage money and the sale price are of the same amount, namely, Rs. 12,000 which is a very significant coincidence; (vi) in subsequent sale deed Exh. P/ I dated 7-2-1956 mention of earlier sale is made but again there is no recital of any necessity or, as a matter of fact, of any act of good management; (vii) and, last but not the least, on the facts and in the peculiar circum stances of this case, apparently getting of mortgagee rights for a period of only four years after selling proprietary rights for good cannot be held to be an act of good management, unless some very strong and cogent proof compelling resort to such an adventure was led on the subject, which in view of what has been observed above does not exist in this case. The same was the view of the learned Additional District Judge. He had the jurisdiction to take whatever view he liked while appreciating the evidence and if his finding on the subject is against the vendees, there is no justification to interfere with the same in the course of this second appeal, especially when the reasons given by him are also quite cogent arid supported by the attending evidence arid circumstances. The point raised, therefore, is hereby repelled.

4. Learned counsel for the appellants wanted to argue that the legal representatives of Sardar Muhammad, one of the defendants who had died on 28-9-1962, were not brought on record by the plaintiff in the lower appellate Court in time, but when his attention was drawn to various appli cations filed by those legal representatives themselves showing that they had been brought, or come, on record in time, the learned counsel did not press this point.

5. An attempt was made to challenge ancestral nature of land or the locus standi of the plaintiff to file the present suit. However, when the learned counsel for the appellants was confronted with para. 8 of the judgment of the learned Additional District Judge where it was stated that the defendants had not contested findings of the trial Court in favour of the plaintiff on issues Nos. 1, 3 and 5, learned counsel for the appellants found it difficult to press the objection any farther.

6. The last point argued was that there was no proof that the vendor in the matter of alienation was governed by custom (issue No. 2). To be more precise, learned counsel submitted that there was no proof that Mohni, vendor, got the land in dispute (a) through devolution by succession from a common ancestor; (b) under custom and (r) whether the tribe of the vendor namely, Jats of Sheikhupura district were governed by custom in matters of succession and alienation. The plea has no merit. The learned Additional District Judge has held that excerpt Exh. P/3 showed that the vendor got the land in dispute by inheritance. It has not been shown to me .that this finding is incorrect and nor any reference has been made to Exh. P/3 by learned counsel for the appellants to point out any misreading or any other defect in that respect. On this point the finding of the learned trial Court was also against the defendants. No reasons have been advanced to upset that concurrent finding except just raising a point without sub stantiating it. Mohni, as is self evident from description of the vendor in the sale-deed Exh. D/2 and Exh. P/l is a Jat (Virak) (also sometimes written as Wirak). On page 93 of "A Digest of Customary Law in the Punjab" by Sir W. H. Rattigan (Thirteenth Edition), revised by Om Prakash Aggarwala, it is stated that "fats form an essentially agricultural tribe are almost universally governed by custom". It may further be pointed out that areas of Sheikhupura District were earlier ,parts of Lahore and Gujranwala districts till Sheikhupura District was carved out. In the Customary Law of the Lahore District by G. C. Walkar (1894) it is stated that Jats were consulted at the time of the compiling of that Rivaj-i-Am. Similarly in Customary Law of Gujranwala District compiled by Dalip Singh (1914) Viraks (Jots) were also so consulted. It has been laid down by their Lordships of the Supreme Court in Mst. Shahzadan Bibi and others v. Amir Hussain Shah (P L D 1956 S C (Pak.) 227), at page 232 that. "Where :. tribe was consulted at the time of the preparation of the Riwaj-i-Am, an initial presumption arises that a member of that tribe is governed by custom and not by his personal law, and the onus to show that be has ceased to be governed by custom lies on those alleging the same. This is the ratio decidendi of a long string of authorities e. g. Mst. Parvin Kumari v. Gokal Chand Rala Ram (A I R 1949 E Pb. 35), Muhammad Yusuf v. Muhammad Abdullah A I R 1944 Lah. 117 and Ata Muhammad v. Muhammad Shafi A I R 1944 Lah.

121. The value that has to be attached to the entries in the Riwaj-i-.Am is now no longer in doubt. In Beg v. Allah Ditta 45 P R 1917, it wa C held that statements in a Riwaj-i-Am, which is a public record prepared by a public officer in the discharge of his duties and under Government rules, are a strong piece of evidence even without instances, that their contents are true and must b;, accepted unless rebutted. Here again, to start with, 3 presumption would arise that p the custom of a tribe is described in the Riwaj-i-am. This dictum was reaffirmed in Vaishno Ditti v. Rameshri I L R 10 Lah. 86 (P C). In view of the above propositions of law, it was up to the defendants to establish that the initial presumptions were as a matter of fact not correct and there was considerable amount of evidence to the contrary. No such evidence was ever led. The presumption becomes stronger where the custom .recorded is in accordance with the general custom of the Province Mst. Subhani v. Nawab I L R 22 Lah. 154 (P C)." In para. 59 of the Rattigan's Customary Law it is laid down that in matter of alienation of an ancestral land, according to custom, the powers are limited only to the extent of necessity. In the instant case no proof has bee.: led to show that in matters of succession and alienation Mohni was not governed by custom. The finding of the two Courts below, on the subject in band, therefore, was quite in order arid no case for interference in the same has been made out. I fold accordingly.

7. No other point was argued by the learned counsel for the appellants.

8. The result is that this appeal has no merit and is dismissed with costs throughout. . Appeal dismissed.