Jai Singh and others vs Prem Singh and others

C.G. Suri, J.—A declaratory suit filed under Punjab Customary Law by the minor plaintiff-respondents No. 1 and 2, through their mother as their next friend, challenging the sale of ancestral land Jointly made by their grandfather and his first cousin, has been decreed by the lower appellate Court even though the suit had been dismissed by the trial Court on the ground that the father of the plaintiff-respondents who was the nearest reversionary had attested the registered sale deed in token of his consent to the alienation. The vendees feeling aggrieved have come up to this Court in second appeal.

Both the Courts below have come to the concurrent findings of fact that the payment of only Rs. 1,000/- out of the sale price of Rs. 2,000/- mentioned in the registered deed had been proved and that the necessity for no part of the sale consideration had been established. It is not open to the appellants at the stage of second appeal to challenge these findings of fact. It has also been found by both the Courts below that there was no evidence in support of the plaintiffs'' averment that their father had been made to attest the sale deed under any threats or undue influence. The evidence of the scribe and the attesting witnesses of the document is that the father of the minor plaintiffs had willingly given his consent and that the sale had been made jointly by two co-owners representing two family branches. Even though the nearest reversioner had willingly given his consent to the transfer he was examined as a plaintiffs'' witness and made a statement to support his minor sons. This statement was obviously false and has been disbelieved by both the Courts below. It however shows that the relations between the entire family were quite cordial and the minors'' mother is filing the suit as their next friend. She had also come into the witness box and all that she says is that she quarrelled with her husband when she came to know that he had thumb marked the sale deed; implying thereby that prior to this there had been no discard between the minor plaintiffs and their parents.

The reversioners are given the right under customary law to challenge alienations of ancestral property in order to prevent any wasteful or ill-advised alienations so that their right to succeed to the property coming down from the ancestors is properly safeguarded. Where the sale is made by all the joint owners, that alone may show the coming together of two or more minds which, by itself, a safeguard against any wasteful or ill-advised alienations Where such a joint sale by all the co-owners is further attested and consented to by the nearest reversioner the presumption about the sale being a bona fide act of good management is further strengthened. In Kur Singh v. Jit Singh and Ors. AIR 1950 E.P. 154, it was held that the circumstances mentioned above would raise a strong presumption about the consent having b. (n given in a bona fide manner and that the sons of the nearest reversioner who had attested the sale deed in token of his consent would have no right to challenge the alienation. Similarly, in Makhan Singh and Anr. v. Rtshen Singh 73 IC (1923) Lah. 273. It was laid down that the assent of a reversioner to an alienation where no collusion or intention to injure the reversioners had been proved, must be taken as bona fide and that the sons of the consenting reversioner would be debarred from challenging the alienation. In this case the alienation had been made by a female and was without any material consideration whatsoever. In that case also the reversioners filing the fruit were the sons of the reversioner giving his consent and the Court found it difficult to believe that there could have been any intention on the part of the Consenting reversioner to injure his sons, in Risaldar Ram Singh v. Labh Singh and uihets AIR 1664 P&H 119 interference by the lower appellate Court under similar circumstances came in for severe criticism in the following terms:

It appears to me that the learned Judge did not take into consideration the nature of the land nor the benefit which the defendants were to derive by creating these occupancy rights nor was the attention of the learned Judge drawn to the law on the subject which has been laid down in several rulings that where persons who would be interested in challenging an alienation agree to it, that would be presumptive proof which if not rebutted by contrary proof will validate the transaction as a proper and right one and this is when necessity is not proved ''aliunde'' nor is there proof of enquiry on the part of the aliened nor honest belief for the necessity. If one were to approach the case from this point of view there is no other conclusion that one would come to but that the learned Judge has misdirected himself and had his attention been drawn to this statement of the law and to the nature of the land his conclusions would have been different.

With these observations the appeal filed by the vendee was allowed and the judgment and.decree of the Court of first appeal were set aside and those of the trial Court were restored.

The Full Bench decision in Santa Singh v. Banta Singh and Ors. AIR 1960 Lah. 77, had also proceeded on very nearly the same facts. A presumption was drawn that the alienation was an act of good management and that the father of the plaintiffs had given his consent to the alienation in a bona fide manner.

The lower appellate Court may appear to have approached the real point in controversy from a wrong angle. It first proceeded to examine the evidence with regard to the passing of the consideration and the existence of the necessity and on the basis of the assessment of this evidence proceeded to examine the bona fides of the consent given by the father of the minor plaintiffs. If the bona fides of the consent of the nearest reversioner were to depend solely on the findings with regard to the passing of the consideration and the existence of the necessity, then the whole idea of obtaining the consent of the nearest reversioner may appear to hate been defeated. The lower appellate Court seems to have assumed that if the alienation could be upheld on the findings about the passing of the consideration and the existence of the necessity on y in that case the consent of the nearest reversioners could be bona fide and be of avail to the alienees and not in any other case. The lower appellate Court may appear to have taken a very narrow-minded view of the question on bona fides of the consent Bona fides of such a consent of the nearest reversioner has to be judged by reference to broad and general considerations as to whether there was any collusion between the reversioners and the alienors and whether the consenting reversioner had not taken any care and caution to safeguard the reversionary interest of the remoter collaterals. In the present case there could have been no intention on the part of Rattan Singh, Defendant No. 6, to injure his own sons for whose sake he was prepared to go into the witness box and perjure himself After having obtained the consent of the nearest reversioner, the alienees were absolved of the necessity of making a bona fide inquiry with regard to the existence of any real necessity. This consent together with the representation made in the sale deed by the vendors should have been taken as-sufficient proof of the transaction being a prudent act of good management. It was not the case of a stray illiterate peasant having been dupted into making an ill-advised transfer. Three male adults who were members of a well-knit family may appear to have put their heads together to examine the advisability of making the transfer According to the recitals in the registered sale deed a part of the land had been sold to make improvements in the rest of the land belonging to the vendors In the case of male proprietors expenses of a necessity need not be met out of the recurring income from the ancestral land and the male proprietors would be fully justified in touching the main corpus or nucleus of the estate for meeting the necessity. This aspect may also appear to have been lost sight of by the lower appellate Court when discussing the evidence about the necessity for making the alienation. If the fate of an alienation were to depend solely on the question whether it was proved to be for consideration and necessity then the main object of obtaining the consent of the nearest reversioner may appear to have been defeated. In the present case the strong presumption raised by law on the facts of the case that the consent given by the father of the plaintiffs was bona fide and that he was not guilty of any collusion fully justified the dismissal of the suit by the trial Court and the lower appellate Court may appeal to have misdirected itself while interfering.

For reasons given above, I accept the appeal filed by the venders and dismiss the suit filed by the plaintiff-respondents with costs throughout.