Sachdev and Another vs Prem Chand and Others

N.K. Kapoor, J.—This is plaintiffs appeal against the judgment and decree of the Additional District Judge whereby the appeal filed by the defendants was accepted thereby dismissing the suit filed by the plaintiffs.

Briefly put, the plaintiffs challenged the alienation made by Sarv. Sh. Yado Raj and Jog Raj of the ancestral land on the ground that the same was without consideration and legal necessity and thus does not bind the plaintiffs. Defendants put in appearance, filed written statement and controverted the various material averments made by the plaintiffs. It was specifically pleaded that the land sold vide sale deed 1.2.1971 was for consideration. The sale consideration amount was Rs. 90,000/- out of which Rs. 45,000/- was paid to the vendors in the presence of the Sub-Registrar and the remaining amount was paid by the defendants to the mortgagor. On the pleadings of the parties, a number, of issues were framed. However, primarily the contest between the parties related to issues No. 3 and 5 only which are reproduced hereunder :-

Whether defendants 4 and 5 are governed by custom in matters of alienation and succession, if so, what is the custom? O.P.P.

Whether the sale in favour of defendants 1 to 3 made on 1.2.71 was for consideration and legal necessity? If so, its effect? O.P.D.

The trial Court on the basis of evidence came to the conclusion that defendant No. 4 and 5 are governed by custom in the matter of alienation and, as per custom prevalent, a Tyagi Brahmin cannot alienate his ancestral property without legal necessity. Under issue No. 5, the trial Court came to the conclusion that the defendant-vendees have only succeeded in proving the sale consideration to the extent of Rs. 14,000/- but all the same have totally failed to prove any legal necessity. Resultantly, the suit of the plaintiffs was decreed holding that the sale deed dated 1.2.1971 executed by Yadav Raj and Jog Raj in favour of defendants No. 1 to 3 is not binding upon the plaintiffs after the death of defendants No. 4 and 5.

Defendants feeling aggrieved by the judgment and decree of the trial Court filed appeal before the Additional District Judge. The Additional District Judge reversed the finding of the trial Court under issue No. 3 Additional District Judge relied upon the decision of the Lahore High Court in Regular Second Appeal No. 2825 of 1927, decided on 29.11.28, Exhibit P. 6, wherein the authenticity and evidentiary value of entry in the riwaj-i-am of 1909-1910 of Delhi district of which Sonepat, Tehsil formed a part at that time was doubted by Jai Lal, J. In the aforesaid judgment, the learned Judge observed that answer to question No. 133 of the riwaj-i-am of old Delhi district appeared to have been interpolated and so declined to draw a presumption to the effect that Tyagi Brahmins are governed by custom. Additional District Judge also examined the plea of the plaintiffs whether in the absence of the special custom, Tyagi Brahmin could be presumed to be governed by general agricultural custom of the Punjab and Haryana which forbids the alienation of ancestral property without legal necessity. Keeping in view paras 59 and 61 of the Rattigan''s Customary Law of Punjab, the Court came to the conclusion that the plaintiffs have failed to prove that they and the vendors are governed by agricultural custom of Punjab and Haryana also. Resultantly, the finding of the trial Court in respect of issue No. 3 was reversed.

The other material issues relating to consideration was examined in detail by the Additional District Judge. The Court came to the conclusion that whereas the amount paid before the Sub Registrar in cash by the father of the vendees as part of the consideration amount was proved, the recital in the sale deed regarding adjustment of the mortgage amount was doubted and so it was held that sale consideration to the tune of Rs. 45,000/- only was proved. Examining the plea as to whether the alienation of ancestral or coparcenary property was for legal necessity and for the benefit of the estate of Joint Hindu Family, the Court found merit in the plea of the defendant-appellants that the land sold was for a legal necessity. Resultantly, the appeal was accepted thus dismissing the suit of the plaintiffs.

Almost identical pleas have been raised which did not find favour with the Additional District Judge. Learned counsel for the appellants tried to distinguish the case of the plaintiffs from that of Tyagi Brahmin examined by Jai Lal, J. in Regular Second Appeal No. 2825 of 1927, decided on 29.11.28. According to the counsel, plaintiffs are Tagga by caste which is different from Tyagi Brahmin. Moreover, the Hon''ble Judge was examining as to whether Gaur Brahmins of Mahrauli village are governed by custom or not. Thus, the reference made by the Additional District Judge and blind reliance placed by him on the decision in another case has resulted in misjudging the points in controversy in the present case. In any case, since the plaintiffs are proved to be residing in a village and agriculturist by profession, necessary inference ought to have been that they are governed by custom applicable to the parties with regard to alienation in respect of ancestral property. Assailing the finding of the lower Appellate Court with respect to the issue relating to legal necessity, counsel urged that the Court has not examined the matter in a proper manner. There is no proof on record that the sale amount was needed for legal necessity. As has come on record, the marriage of grown up daughters have been performed long after the execution of the sale deed and so the recital in the sale deed that the amount was needed to clear up the debts and for marriage of their grown up daughters were merely written in the sale deed so as to give the look that the sale was made for a legal necessity.

Having heard learned counsel for the parties, I am of the view that the appeal is wholly devoid of any merit. The plaintiffs have come up to challenge the alienation made by their father and real uncle on the ground that it being an ancestral property, could not be made but for legal necessity. The basis of the suit is ancestral nature of the property, parties being governed by customary law and sale being without consideration and legal necessity. Additional District Judge by a well reasoned order has come to the conclusion that the plaintiffs are not governed by customary law in view of the decision of the Lahore High Court in R.S.A. No. 2825 of 1927 wherein the Hon''ble Judge observed that in answer to question No. 133 relating to riwaj-i-am of Old Delhi district there has been some interpolation in the answer appended. Except for answer to question No. 133, the basis of claim of the plaintiffs, there is no conclusive evidence on record for the proposition that the plaintiffs are governed by custom which prohibits a party to alienate an ancestral property. Not only this, there is no specific material on record on the basis of which it could be inferred that the plaintiffs are governed by agricultural custom of Punjab and Haryana. Even if the case is examined under Hindu Law, the sale cannot be termed to be illegal. There is no allegations in the plaint that the sale was executed for an immoral purpose. In fact, it has come on record that a sum of Rs. 45,000/- was proved to have been paid by the vendees at the time of registration of sale deed and the remaining sum of Rs. 45,000/- was retained in lieu of mortgage debts incurred by the Vendors. Recitals in the sale deed refers to the mortgage debts, need of money for marriage of his daughter etc. Alienation of property to meet previous liability or to spend money on the marriages of grown up daughters is considered to be a case of legal necessity. Additional District Judge after carefully examining the evidence in the light of the judicial pronouncements has come to the conclusion that the sale was, in fact, for legal necessity. The conclusion arrived at by the Additional District Judge is perfectly legal and just. The finding of the Court below is not vitiated in any manner calling for interference by this Court. Dismissed. No costs.