Salah Mohd. and Another vs Gulab and Others

Anant Singh, J.—This second appeal is by the defendants against the concurrent findings of the two Courts below decreeing the plaintiffs'

suit.

The plaintiffs are four in number. The plaintiffs 1, and 2 are the sons of one Hayat, who was the son of Kama of village Narole. Plaintiffs 3 and 4

are, however of a different family, but they joined ,the suit on the basis of an agreement to sell, made by the other two plaintiffs in their favour.

Defendant No. 1, Mst. Gujri as the widow of Hayat, executed a sale deed in favour of defendants 2 and 3, dated 18-3-64 for a sum of Rs.

10,000/- in respect of 56 kanals and 1.0 marks of land with a house thereon, comprised under different plots in village Narole. Mst. Gujri, is

recorded as one of the co-owners in respect of these plots along with the plaintiffs 1 and 2, and the pro forma defendants, or their ancestors.

An averment was made in the plaint that Mst. Gujri, as widow of Hayat has only a life interest in her husband's property and not absolute right,

because of a custom prevailing among the muslims of Poonch area, as the parties are, widow is excluded as an heir to her husband in respect of his

ancestral property. The sale deed executed by Mst. Gujri was not for any legal necessity. The plaint, therefore, sought for a declaration that the

sale deed was void, inoperative, and not binding on the reversioners of Hayat; such of the reversioners as did not choose to join the suit, have been

made pro forma defendants.

The suit was contested by the main defendants 1, 2 and 3. It was denied by them that the plaintiffs and the pro forma defendants are among the

reversioners of the husband of Mst. Gujri. It was, therefore, pleaded that they had no right to file the suit. It was further pleaded that the land of the

co-owners had not been divided among them, and that the husband of Mst. Gujri was in exclusive possession of his share of the land as absolute

owner.

5A. The custom pleaded on behalf of the plaintiffs ousting a widow from the full ownership in respect of her husband's ancestral property was also

denied. The plaintiff's right to file this suit was challenged. It was also pleaded that the sale deed was for legal necessity.

The trial Court framed a number of issues, bearing on the pleading, and it has answered all of them against the contesting defendants. It decreed

the suit holding that the sale deed was void, and not operative against the plaintiffs who have been found among the reversioners of the husband of

Mst. Gujri, because among the muslims of the area, a widow under an age-long custom, does not inherit her husband's ancestral property for a

period beyond her life time, and that the sale deed was not for any legal necessity.

On appeal, the learned District Judge, by his judgment dated 9-12-1969, has upheld the findings of the trial Court.

The two Courts below accepted the pedigree table filed on behalf of the plaintiffs. On its basis, they have both held that the plaintiffs are among

the collaterals of Hayat, the husband of Mst. Gujri. Herein, however, they are wrong because admittedly the plaintiffs 3 and 4 are not shown in the

pedigree table, and they are strangers, to the family. As in the plaint, it is clearly stated that they were made parties to the suit as proposed vendees

from the other plaintiffs. The error committed by the two Courts below has to be overlooked. It is held in modification of their findings in this

regard that only the plaintiffs 1 and 2 are among the collaterals of Kamla and not the plaintiffs 8 and 4. The pro forma defendants, of course,

appear in the pedigree table. There may be even other collaterals. This question is not material. Plaintiffs 1 and 2, even if they are remote

reversioners can well maintain the suit even during the life time of Mst. Gujri, if once the custom pleaded about inheritance is found to be correct.

The two Courts below have also found that the land of the plots out of which some land was sold by Mst. Gujri was an ancestral property of

Kama, the father of Hayat. There is no reason to interfere with their findings.

The two Courts below on the basis of the evidence, have also come to a definite conclusion that among the Gujars of Poonch area, as the

parties are, there is a custom under which a widow of the last male-holder gets only life interest, and that she is not competent to execute any sale

deed except for legal necessity. They have relied on a copy of Riwaz-i-Am exhibit B. They have also referred to certain judicial decisions in this

regard. Gujars of this area seem to have a similar customary law of inheritance as is prevalent among Hindus governed by the Mitakshara School

of Law. There is nothing unreasonable about the custom.

The learned Counsel appearing for the appellants has contended that, admittedly, Mst. Gujri has two daughters born of Hayat, son of Kama. It

is urged that no custom has been pleaded or found against the inheritance by the daughters, and therefore, the two daughters have their right to

inherit their mother's property. The question of the right of the daughters is not in controversy in the suit. They may be entitled to inherit either as

limited or full owners the property of their mother after her death, but that will not debar the plaintiffs from seeking the declaration asked for even

during the life time of Mst. Gujri; for even a remote reversioner can maintain such an action. The question as to the preferential right of the

reversioners inter se would arise after the inheritance opens on the death of the last limited owner.

The learned Counsel for the appellants further contended before me that the learned District Judge has recorded no findings on question of

legal necessity but it does not appear to have been canvassed before him, in refutation of the finding of the trial Court in that regard. However, the

sale deed itself does not mention even the nature of necessity for which the sale deed was executed. It only mentions that it was executed for

'Zarurat-a-Jayaz' meaning legal necessity, but it does not disclose what were the actual needs for executing the sale deed. The evidence adduced

on behalf of the defendants also do not indicate the exact necessity for the execution of the sale deed. The learned Court of appeal below had no

material before it to come to any different conclusion from what was found by the learned trial Court against the existence of any legal necessity.

The sale deed, in the circumstance, must be held to have been executed without any legal necessity, and therefore it does not bind the reversioners.

The two Courts below have, however, expressed themselves wrongly in saying that the sale deed was altogether 'void' since it will be valid for

the lifetime of Mst. Gujri the vendor, but after her death, it will be inoperative and invalid against the reversioners. The findings of the two Courts

below in this regard are modified accordingly. The findings of the two Courts below that the plaintiffs 2 and 3 are also among the collaterals of

Kama are set aside.

With the above modification, the appeal is dismissed, but there will be no order as to costs.