Chunni Lal and Another vs Amar Singh and Others

Teja Singh, C.J.—This is defendants'' appeal arising out of a suit for declaration that the alienation of land made by Dhanna was not binding upon the Plaintiff, the reason being that the land was ancestral and the alienation was without consideration and necessity. The suit was resisted by the alienees. The trial Court held that the land was proved to be ancestral and since necessity had been established only to the extent of Rs. 900/- it-granted the Plaintiff a decree that he would be entitled to get back the land on payment of Rs. 900/- to the alienees. Alienees appeal to the District Judge against the decree of the trial Sub-Judge was dismissed, hence this second appeal.

According to the pedigree-table Dhanna has only one brother Hardeva who has three sons Sultan, Chandar and Amin Lal. Amar Singh Plaintiff is Amin Lal''s son. One of the objections raised by the contesting defendants to the suit was that the Plaintiff had no locus standi to challenge this sale in the presence of the nearer reversioners. The Courts below spurned this objection on the ground that since the land was ancestral and the right of the reversioners to challenge the alienation was derived from the common ancestor the presence of the nearer reversioner did not debar the Plaintiff from bringing the suit. I am afraid that in coming to this conclusion the Courts below entirely ignored para 67 of the Rattigan''s Digest of Customary Law which deals with the locus standi of reversioners to object to an alienation. The words of the paragraph are :

The proper person to object to an alienation is the nearest reversionary heir. But when he happens to be a minor, or it is shown that he is in collusion with the alienor, or that he has refused without sufficient cause to institute proceedings, or has precluded himself by his own act or conduct from suing, or has concurred in the alienation or the act alleged to be wrongful the next reversioner is entitled to maintain the action.

It is admitted on behalf of the Plaintiff that Hardeva is the nearest reversioner of the alienor and that he is still alive. But what is urged is that since Hardeva did not bring a suit and the Plaintiff''s right to challenge the alienation was independent of Hardeva or even of his father Amin Lal, the suit was quite competent. Now according to para 67 a remote reversioner can challenge alienation in the presence of a nearest reversioner only if he satisfies the conditions laid down therein. These conditions are that the nearer reversioner should be shown to have colluded with the alienor or to have refused without sufficient cause to institute proceedings or to have precluded himself by his own act or conduct from suing or to have concurred in the alienation. The allegations on this point as contained in para 5 of the plaint were (i) that the Plaintiff''s father was in military service for the last three or four years and (ii) that Hardeva and Plaintiffs uncles had colluded with the alienees and instead of protecting his rights had been trying to injure them.

So far as the Plaintiff''s father is concerned he gave evidence in his son''s favour and deposed that he had been in military service since 1930, but even if this fact is accepted as true it did not establish either that he had colluded with the alienee or he had consented to the alienation. In addition the nearest reversioner being Plaintiff''s grandfather and not father what had to be shown was that the former colluded with the alienees or acquiesced in the alienation etc. but no evidence was examined to prove these facts. On the other hand it appears that he was helping the Plaintiff because the copy of the sale deed which was produced along with the plaint had been obtained by him from the office of the Sub-Registrar on 7-5-1998. The suit was instituted on 17-12-1999.

The question now is whether mere inaction on the part of Hardeva or his failure to bring the suit within time allowed by law, can give the Plaintiff a right to challenge the alienation. A mere reference to para. 67 is sufficient to show that answer to the question must be in the negative because inaction does not amount to acquiescence and no evidence has been examined by the Plaintiff to prove that Hardeva refused to challenge the alienation without sufficient cause. The best person who could throw light on this point was Hardeva himself but the Plaintiff never took the trouble of putting him in the witness-box and this makes me think that Hardeva genuinely believed that the alienation was for necessity, and no valid reason existed for him to impugn it. It appears that later on he changed his mind and taking advantage of the Plaintiff''s minority helped him in starting these proceedings but the reason for this may be that the value of the land appreciated in the meanwhile and he thought that it was time to make an effort to get back the land from the alienees without any payment. In any case the burden to establish conditions which gave the Plaintiff a right to sue lay upon him and he has not been able to discharge the onus.

As regards the cases cited by Mr. Gurbachan Singh counsel for the Plaintiff, none of them goes to help him. In - ''Feroz v. Ghulam Sarwar'' 67 Ind Cas 379 the alienation was made by one Khan Alam, who had a brother named Bahadur. Feroz Bahadur''s grandson brought a suit to set aside the alienation. It was proved that Bahadur as well as-Feroz''s father Data had died before the date of the suit. It was urged on behalf of the alienee that since Data had not taken any action to challenge the alienation Feroz''s suit was barred. The learned Judge of the High Court held that Feroz had an independent right and inaction on the part of his father to contest the alienation did not debar him from maintaining the action. He also held that mere-inaction to contest alienation does not amount to acquiescence. In this case Hardeva and Amin Lal, father of the Plaintiff are still alive and consequently the ruling has no applicability to the facts of the present case.

The facts of - ''Jasmer Singh v. Ajail Singh'' AIR 1953 Pepsu 86 were also different. In that case the alienor had two sons, one of the sons had consented to the alienation. It was held that this did not debar either, the other son or the descendants of the son who had consented, from challenging the alienation. In this case as I have already pointed out neither the consent of Hardeva nor of Amin Lal had been proved. In fact no such consent was even alleged.

In - ''Singh Ram v. Bhagwana'' AIR 1924 Lah 656 it was held that although a nearer reversioner has placed himself in a position which disables him from challenging an unauthorised alienation, because of acquiescence it is still open to more remote reversioners to challenge it on their own account, as the latter do not derive the right to succession through the-former. Similar was the view taken in - ''Jholi v. Khazana'' AIR 1926 Lah 654 The law laid down in all these cases was in accordance with what is stated in para 67 of the Rattigan''s Digest. The misfortune of the present Plaintiff is that he has not been able to prove that his case falls within the ambit of that paragraph.

In - ''Rani Annnd Kunwnr v. Court of Wards'' 6 Cal 764 their Lordships off the Privy Council explained what is necessary to be established in a suit to challenge an alienation made by a person with limited right, when the Plaintiff is not the immediate reversioner of the alienor. In that case the alienor was a Hindu widow but as regards the locus standi of a remote reversioner to sue in the presence of a nearer reversioner there is no difference, between an alienation by a Hindu widow and an alienation by a sonless proprietor governed by Customary Law of the Punjab. This is what their Lordships observed:

Their Lordships are of opinion that although a suit of this nature may be brought by a contingent reversionary heir, yet that, as a general rule, it must be brought by the presumptive reversionary heir, that is to say, by the person who would succeed if the widow were to die at that moment. They are also of opinion that such a suit may be brought by a more distant reversioner if those nearer in succession are in collusion with the widow. or have precluded themselves from interfering. They consider that the rule laid down in - ''Bhikaji Apaji v. Jagannath Vithal'' 16 Bom HCR 351 is correct. It cannot be the law that any one who may have a possibility of succeeding on the death of the widow can maintain a suit of the present nature, for, if so, the right to sue would belong to every one in the line of succession, however remote. The right to sue must, in their Lordships'' opinion, be limited.

Later on they observed:

In such a case, upon a plaint stating the circumstances under which the more distant reversionary heir claims to sue, the Court must exercise a judicial discretion in determining whether the remote reversioner is entitled to sue, and would probably require the nearer reversioner to be made a party to the suit.

In the present case the Plaintiff did give in the plaint the grounds which according to him entitled him to bring the suit in the presence of his father and grandfather. So far as the grandfather is concerned the allegation has not been proved at all and as regards his father the statement made by him does not bring the case within the four corners of para. 67.

Before concluding I wish to observe that at one stage of his argument Mr. Gurbachan Singh changed his position and urged that inaction on the part of Hardeva gave rise to the conclusion that he had acquiesced in the sale. This proposition goes counter to the dictum of Broadway J. in ''Feroze''s case (A)'' cited by counsel himself, but even if I were to agree with Mr. Gurbachan Singh on this point and hold that Hardeva''s conduct amounted to acquiescence in the alienation, in view of the fact that he was the only nearest reversioner of the alienor at that time the case would be hit by Para. 59 of the Rattigan''s Digest and the alienation having been consented by the nearest reversioner it would be good against all the remoter reversioners including the Plaintiff and his suit would be barred for that reason. So in whichever way the matter may be looked at it is clear that Amar Singh Plaintiff had no locus standi to challenge the sale.

The result is that the appeal is allowed, the decrees and the judgments of the Courts below are set aside and the suit is dismissed with costs throughout. Costs to be paid by the Plaintiff''s next friend.

Gurnam Singh, J.

I agree.