Jasmer Singh vs Ajaib Singh

Teja Singh, C.J.—Regular Second Appeals Nos. 150 and 248 arise out of the same suit. One Ganda Singh has two sons Kartar Singh and Hazura Singh. Kartar Singh''s sons are Ajaib Singh and Mewa Singh while Bachan Singh and Dilbara Singh are the sons of Hazura Singh. On 13-3-93 Ganda Singh sold some of his agricultural land by means of a registered deed. The document was attested by Kartar Singh. About three years later i.e. on 3-2-96 Ganda Singh sold more land, this time also by a registered deed which was attested by Hazura Singh. On 6-8-2003 all the four; grandsons of Ganda Singh brought a suit for declaration that the two sales made by their grandfather would not affect their reversionary interests on the ground that the land which was the subject-matter of sales was ancestral and the sales were without consideration and necessity. The vendees contested the suit. They denied that the land was ancestral or the sales were without consideration and necessity. They also urged that the suits were, barred by time and the Plaintiffs could not maintain the action because all the sales challenged by them; had been consented to by the sons of Ganda Singh, who were his immediate heirs at the, time the sales were made. The trial Sub-Judge held the land to be ancestral and it also held that though consideration and necessity for the first sale had been established, necessity for the second sale had not been proved. In spite of this he dismissed the suit in respect of both the sales because in his view the sales having been consented to by the Plaintiffs'' respective fathers they could not challenge them. Against this decision the Plaintiffs preferred an appeal'' to the Additional District Judge Fatehgarh Sahib at Bassi who set aside the trial Court''s decree in so far as it related to the second sale and passed a decree in Plaintiffs'' favour that they would be entitled to get back the land which was the subject-matter of the second sale "when succession opens out to them" on payment of Rs. 3,500/-. The first appeal is by the alienees of the second sale to whom the land was sold by the second sale and the second'' is by the Plaintiffs.

The only question involved in the second appeal is whether the finding of the Courts below that the sale was for consideration and necessity was correct. Shri Lachhman Das, counsel for the Appellants, frankly admitted before us that all the items constituting the consideration were proved and in view of the evidence that was adduced by the vendee he was not in a position to urge that consideration for the sale, was not established.

In the first appeal two points were urged before us. One was that because Kartar Singh and Hazura Singh had consented to the pale it was not open to their sons to maintain a suit challenging the validity of the transaction. There can be no doubt that at the time the sale was made Kartar Singh and Hazura Singh were the immediate heirs of Ganda Singh and if it can be proved that they both consented to sale the same became indefeasible and the present Plaintiffs could not challenge it. The difficulty, however, is that no such consent has been established. It was argued before us that the Plaintiffs have themselves admitted in the plaint that both the sales had been made with the consent of Kartar Singh and Hazura Singh but this is not correct, because all that was mentioned in the plaint was that the sons of Ganda SingbJ i.e. Kartar Singh and Hazura Singh, were colluding with the vendees and for this reason they did not join the Plaintiffs in bringing the suit. No reference was made to their consent As regards Kartar Singh there was no evidence to prove that he was present at the time the sale deed was executed or that he had an knowledge of it. So far as Hazura Singh is concerned it is correct that he attested the sale deed but in the absence of the evidence that he knew what the document contained and he was being asked to affix his signatures to it in token of his acceptance of the transaction this did not amount to consent. Apart from this, I am not sure whether Kartar Singh''s consent to the sale debarred his sons from challenging it by a suit on the ground that it was without consideration and necessity. The matter would have been quite different if both Kartar Singh and Hazura Singh had assented to the sale. In that case the principle laid down in para 59 of the Rattigan''s Digest of Customary Law would have been applicable and the sale would have been good against the whole world with the result that it could not have been questioned by the sons of Hazura Singh and Kartar Singh. The paragraph says that

ancestral immovable property is ordinarily inalienable except for necessity or with the consent of the male descendants, or, in the case of sonless proprietor, of his male collaterals.

The Appellant''s counsel conceded that if both the sons of Ganda Singh did not consent to the sale but it was made with the consent of only one of them the son who did not consent could maintain action for setting it aside. He, however, maintained that the descendants of the son who gave the consent would be bound by his action. In support of his contention the learned Counsel quoted several authorities before us but my opinion is that none of them applied to the facts of the present case. In a large majority of the cases consent was given by the whole body of collaterals or descendants who were the immediate heirs of the alienor and there can be no denying the fact that they came within the purview of para. 59 of the Rattigan''s book. In some cases there existed only one son or the nearest reversioner and he consented to the alienation. In those cases also para. 59 became applicable and the alienations having become indefeasible could not be subsequently challenged by the remoter reversionars, including the descendants of the persons who had given their consent. Counsel was not able to cite a single case in which the immediate heirs or the nearest reversioners were more than one but only one or some of them consented and it was held that sons of the persons who did not consent were debarred from challenging the alienation.

Now, it is well recognised that right to succeed to property is quite different from right to challenge an alienation and while a person derives the former right from his immediate predecessor the latter right comes to him from the common ancestor. To put it in plain language, if A has two sons and three grandsons, when he alienates his immovable property each one of his sons and grandsons has a right to challenge it for want of consideration and necessity and they all derive their right from A''s father who is the common ancestor. Accordingly, if one of the sons consents to the alienation the other sons as well as his sons will not be affected thereby. Nor do I think that his consent will debar his sons from challenging the sale for the simple reason that the right to do so is derived by them not from their father but from their common ancestor, viz. their great-grandfather. It is, however, not necessary to go into this matter in greater detail, because as I have already observed I am not satisfied that the mere attestation of the sale deed by Hazura Singh amounts to his consent.

Now, as regards the question whether the sale was for consideration and necessity. The land which was the subject-matter of sale consisted of 34 bighas and 15 biswas and the consideration, as mentioned above, was Rs. 3700/- made up of the following items: Rs. 3500/- due on the basis of a previous mortgage of 2-4-1985, Rs. 120/- paid at home, Rs. 40/- paid before the Sub-Registrar and Rs. 40/- represented the costs of registration, etc. The existence of the previous mortgage is not denied and both sides are agreed that 50 bighas and 10 biswas of land in which was included the land now in suit stood mortgaged to the vendee for Rs. 3,500/- and because of the sale 34 bighas and 16 biswas became the property of the vendee while the remaining land, i.e., 15 bighas and 14 biswas, was redeemed. Of the remaining items the expenses relating to registration are proved and if, the alienation is upheld as a whole this item must be regarded as one for necessity. The payment of Rs. 40/- before the Sub-Registrar stands proved and is not denied but there is no evidence as to how it was spent. As regards the item of Rs. 120/- evidence was adduced by the vendee to prove that out of it Rs. 60/- were paid to one Chanan Singh with a view to redeeming a house that was mortgaged with him. Chanan Singh himself gave evidence for the vendee and produced the mortgage-deed. The District Judge has disbelieved his evidence on the ground that no mention of his mortgage was made in the deed of sale. I am, however, inclined to think that the genuineness of the mortgage not being open to any other objection Chanan Singh''s evidence should not have been brushed aside merely because the sale deed was silent about it. In addition to this I am of the opinion that even if it be assumed that the vendee was not able to prove that if any part of the cash paid to the vendor over and above the amount of Rs. 3500/- due on the basis of a previous mortgage was proved to have been spent for a necessary purpose, the mere fact that the sale enabled the vendor to redeem about one-third of his land that was previously under mortgage and to transfer the entire charge with the addition of the paltry sum of Rs. 200/- to the rest of the land would go to show that it was an act of good management and was beneficial to his estate. It is significant that neither Kartar Singh nor Hazura Singh took any steps to contest the sale within the time allowed to them by law and it was reserved for the grandsons to bring the present suit more than seven year after the sale. The only inference that one can draw from this is that everybody app ared to be satisfied with the bona fides of the sale. Accordingly, I hold that this question should be decided in favour of the Appellants.

The result is that the second appeal is dismissed with costs, the first appeal is allowed, the decree and the judgment of the District Judge are set aside and the Plaintiff''s suit is dismissed. There will be no order as to costs in this case.

Passey, J.

I agree.