Bishan Singh vs Chanan Singh

Chopra, J.—This main contentious point in second appeal of the defendant is whether the parties are Tarkhans of village Thuliwal in Tahsil Dhuri, are governed by their personal law in matters of alienation or by general agricultural custom.

Sobha Singh sold 18 bighas and 6 biswas of land for Rs. 1,500/- to Bishan Singh appellant by registered deed, dated 15-12-93. Chanan Singh respondent brought the suit, giving rise to this appeal, challenging the sale on the usual ground that the land was ancestral and that the sale was for no valid necessity. Custom was alleged to be the law by which the parties were governed in matters of alienation. Prem Singh and Wariam Singh were real brothers and sons of Sehia Singh. Sobha Singh vendor is the son of Prem Singh while Chanan Singh plaintiff and Bishan Singh the vendee are the sons of Wariam Singh. The contest is, thus between two real brothers on an alienation by a cousin of theirs in favour of one of them. Sohna Singh was their common ancestor. The defendant joined issue with the plaintiff on all these points and the plaintiff was called upon to prove that custom was the governing rule amongst the parties and that the land was ancestral. The onus of proving necessity for the sale naturally lay on the vendee. The trial Sub-Judge found favour with the defendant on all the three points and dismissed the suit. The learned District Judge, however, differed from the finding of the trial Judge on all the issues, and the decision he arrived at was that the parties followed custom, the land was ancestral and that necessity to the tune of Rs. 540/- only had been proved. He, consequently decreed the suit and granted a declaration that the sale would not affect the plaintiff''s reversionary rights after the death of the aileron. This is defendant''s appeal.

The points which according to the learned District Judge stood proved, and which formed the basis of his decision that custom was the rule governing the parties, are that Gurdas, a remote common ancestor of the parties settled in the village at the time of its foundation, that the parties owned and cultivated agricultural land which was the main source of their livelihood, that in social matters they followed custom and that they were Kamins living in a village where custom generally prevailed. Shri Dalip Chand has argued that the findings of the District Judge on some of these points are not supported by the facts on record and contends that the facts proved did not supply sufficient material to arrive at the conclusion that the parties had abrogated their personal law and adopted the general custom of the agriculturist as the rule governing them in matters of alienation. He has further stressed that the learned District Judge had lost sight of another crucial fact which according to him, should be the deciding factor on the point at issue. It is that there had been a good number of alienations in the family of the parties but none of them was ever challenged. The contention of the learned counsel for the respondent on the other hand is that all the points relied upon by the first appellate Court stood clearly established and that they irresistibly lead to a conclusion in favour of the plaintiff''s case.

It is not disputed that Tarkhans in village Tliuliwal comprise of the family descending from one Gurdas. This Gurdas did not in fact settle in the village at the time of its foundation, as observed by the learned District Judge, but it is apparent from the Kafiat Dehi of the village, a copy of which has been brought on record by the plaintiff, that he was brought to this village by its proprietors sometimes after the village was founded. He was brought from Malerkotla to serve the proprietors as a carpenter and was given some land. The total land that the family descending from Gurdas owned during the last settlement was only an insignificant fraction of the village. The Tarkhans do not form a compact village community or supply any lambardar. The oral evidence adduced by the parties shows that they were carrying on their professional vocation. In addition to the income of the little land they possessed the parties depended for their livelihood on their professional earnings. It is also in evidence that they did not personally cultivate any land. Entries in the missal habitat show that the whole of the land owned by the family of the parties was either mortgaged with Jets or was in their possession as tenants. A copy of the Jamabandi of 2001-2002 also makes it clear that the land was not cultivated by its owners. Even the land in dispute was not cultivated by the defendant himself ever since he got it. Tarkahans have not been declared as scheduled agriculturists in Tehsil Dhuri. The initial presumption in case of persons who do not belong to recognized agricultural tribes would be that they are governed by their personal law and the burden of proving that they are regulated by custom lies heavily upon them. The mere fact that they are owners of some land which supplies an additional source of their livelihood would not be enough to rebut the presumption. The plaintiff appearing as his own witness did not state that any member of his family ever cultivated any land himself. All that he stated was that income from land was a source of their livelihood. He, however, expressed his ignorance as to whether the parties carried on their professional occupation or as to who served the proprietors as carpenters. Arjan Singh and Harnam Singh plaintiff''s witnesses admitted that the parties were serving the proprietors as carpenters and that the Tarkhan in the village could alienate their land even without necessity. The other two witnesses examined by the plaintiff were Mohammadans and they only deposed that the parties depended for their livelihood on agriculture.

Only one instance of a daughter having been superseded by the collaterals of the last male-holder in this family has been relied upon to prove that the parties were governed by custom in matters of succession. No other instance of the kind has been referred to or proved and I am afraid, only one such instance would not be a conclusive evidence of the fact that in matters of succession the parties had adopted agricultural custom. The fact that Karewa was permissible in the family would not also be a very strong proof of the fact that in all social matters the parties had adopted custom. No particular instance of a Karewa in the family has been referred to, but the fact does not appear to be seriously contested. Karewa now-a-days is not looked upon with much of disfavour even amongst the persons who are admittedly governed by Hindu Law. The fact that the parties reside in a villages Where custom generally prevails, would also not be a strong proof that they had abrogated their personal few in favour of custom, particularly so when they do not form an integral part of the villages community.

Another important factor which goes strong against me allegations of the plaintiff, is that there have deer a large number of alienations in this family before an after the last settlement, but none of them, except the one now in depute has so far been challenged. The copy of the Missal Haqiat shows that the whore of the land of Prem Singh and Warier Singh whose sons the parties are, had been mortgaged. One Hira Singh Tarkhan is said to have made a gift of his and in favour of Mt. Dharmo. The plaintiff himself admitted that Sobha Singh, the vendor in the present case had mortgaged some of his land to him, and that lie (Sobha Singh) had absolutely no necessity to mortgage it. The plaintiff in his statement recorded in this Court referred to a sale of 18 bighas of land by one Bhag Singh in his favour. The or given sale deed was produced by him and it was marked Ex. CA. The sale was for Rs. 800/-, Rs. 400/- out of this were paid before the Sub-Registrar and the rest was mentioned in the document to have been paid sometime earlier. The plaintiff has admitted that this Bhag Singh who was his first cousin, was spendthrift and had no valid necessity to alienate the land. Bhag Singh, according to him, was wasting away his property and this induced him (Plaintiff) to take the land Himself. He further deposed that he had given half of his land to Bishan Singh defendant because of the latter''s being a collateral, like him, of his vendor, This fact is denied by Bishan Singh and be stated that Chanan Singh had passed on about half of the and to him because he (Chanan Singh stood in need of money. The two houses of Bhag Singh had also been purchased by Chanan Singh and one of these houses is alleged to have been transferred to Bishan Singh. Whatever may be the real position, It stands admitted that Bhag Singh sold away the whole of his property without any mending necessity. It has been found that the land to possession of the members of this family had descended from their common ancestor Sohna. This Bhag Singh was also a descendant of Sohna. The land that he alienated was, therefore, ancestra; qua the parties to this case. The fact that none of the so many alienations in the family had been challenged, supports the argument of the learned counsel for the appellant that Chanan Singh, probably, was not confluent of his right to impugn the alienations intended to be effected by Bhag Singh and that was why he acquired the property himself for consideration. These facts taken along with the evidence of the two witnesses of the plaintiff that the Tarkhans in the village could alienate their land without necessity and the admission of the plaintiff that Sobha and Bhag Singh, his first cousins, had alienated their ancestral lands for to necessity, strongly go to show that the parties had an unrestricted right in matters of alienation. The evidence in my opinion is not sufficient to prove that the power to alienate ancestral property amongst Tarkhans of Thuliwal is restricted as in the case of recognised agricultural tribes. The necessary consequence is that Hindu Law must be held to govern the matter. That law confers unrestricted right of alienation of the separated property by its owner whether it be ancestral or self acquired. The plaintiff in that case would have no right to challenge the alienation in question.

In view of my finding regarding the ''locus stand'' of the plaintiff to impugn the sale in question the other issues need not be gone into, in the result the appeal of the plaintiff is accepted, decree of the District Judge set aside and that of the result the appeal of the plaintiff is accepted, an the facts and circumstances of the case the parties are, however, left to bear their own costs throughout.