BARA SINGHversusKASHMIRA SINGH AND ORS.

                         BARA SINGH
                                                                              A
                              v.
                   KASHMIRA SINGH AND ORS.

                         SEPTEMBER 12, 1990
                                                                              B
[T.K. THOMMEN, K.N. SAIKIA AND N.M. KASLIWAL, JJ.]

     Hindu Law-Ancestral Immovable property-Alienation a/-
Custom amongst lats in Central District of Punjab-Alienation as a
bona fide act of good management-Valid.
                                                                              c
      Respondent Nos. 4 to 6 sold their 3/Sth share of the ancestral land
to the appellant for Rs.14,000, as the vendors left their village and
wanted to settle elsewhere where they purchased 80 kanals of Nehri
land. Respondents Nos. 1 to 3 filed a declaratory snit in the court of
Snb-Judge, Ludhiana seeking a declaration that the sale of the suit land      D
would not affect their reversionary rights after the death of respondents
4 to 6. They pleaded that the land was ancestral and according to the
custom governing the parties, it could not be alienated; they also
asserted that the land was sold without any consideration and legal
necessity. The appellant defendant No. 1, contended that the sale was
an act of good management on the part of the alienors, and that the           E
same was not without consideration/the vendors liaving decided to settle
elsewhere.

      The trial court held that the sale was an act of prudent manage-
ment and was not without consideration. As regards the cnstom it held
that the · parties were governed by custom, whereunder ancestral              F
land could not be alienated except for legal necessity or as an act of good
management. The suit was accordingly dismissed and the first appeal
preferred against that decision failed.

       Respondents 1 to 3 thereafter preferred Regular Second Appeal          G
before the High Court. The High Court allowed the appeal, set aside the
sale holding that it was neither for any legal necessity nor could it be
justified as an act of good management. The suit was accordingly
decreed. Hence this appeal by the appellant-defendant No. 1 by special
leave.
                                                                              H

                                   417
    418         SUPREME COURT REPORTS               [1990] Supp. 1 S.C.R.

          Before this Court the appellant contended that the sale was or was
A
    not an act of good management having been a question of fact, the trial
    court as also the rrrst appellate court having arrived at a concurrent
    finding that it was an act of good management, the High Court should
    not have interfered with that rmding. On the other hand the respon-
    dents contended that the sale was not an act of good management.
B
          Allowing the appeal, this Court,


          HELD: The custom is that the ancestral immovable property is
    ordinarily inalienable specially amongst Jats residing in the Central
    Districts of Punjab, except for necessity and the other permissible
c   reasons. All alienation as a bona fide act of good management has been
    treated as one of necessity and hence valid. [233B I

         In the instant case, the vendee proved the ingredients of good
    management and the concurrent rmding of the Trial Court and the first
D   appellate court was that the impugned sale was an act of good manage-
    ment, and it was essentially a finding of fact. [234F]

         The High Court was, therefore, in error in setting aside the con-
    current f'mding of fact in the facts and circumstances of.the case in
E   Second Appeal.


         Gujar v. Sham Das, 107 P.R. 1887; Mohammad Chiragh and
    Ors. v. Fatta & Ors., AIR 1934 Lahore 452; Abdul Rafi Khan v. P.
    Lakshmi Chand and Ors., AIR 1934 Lahore 998; Dial Singh v. Surain
    Singh, AIR 1937 Lahore 493; Gujjan Singh and Ors. v. Atma Singh,
F   1968 PLR Vol. 70-195.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1934
    of 1972.

G        From the Judgment and Order dated 9.12.1971 of the Punjab
    and Haryana High Court in regular Second Appeal No. 1286of1969.

        V.C. Mahajan, K.R. Nagaraja (NP) and R.S. Hegde for the
    Appellant. ··
H
             BARA SINGH v. KASHMIRA SINGH [SAJKIA.J.}                 419

      Uma Dutta, E.C. Agarwala, Ms. Sheil Sethi and Susheel.Kumar           A
for the Respondents.

      The Judgment of the Court was delivered by

      K.N. SAIKIA, J. This first defendant's appeal by special leave B
is from the Judgment and Decree of the High Court of Punjab and
Haryana in R.S.A. No. 1286 of 1969 dated 9.12.1971. Respondents 4
to 6 Balwant Singh, Jagir Singh and Teja Singh, sons of Kehar Singh
sold land measuring 38 Kana ls 3 Mar las, being 3/5th share of 63 Kanals
11 Marlas of ancestral land situated at village Maherna Kalan, Tehsil
and District Ludhiana, as per sale deed dated June 4, 1964 in favour of
the appellant (first defendant) for Rs.14,000 as the vendors left their C
village Maherna Kalan and had not been cultivating the same and it
was not yielding any profit. The sale deed contained a recital that the
vendors sold the land with a view to purchase land in another village.
On November 6, 1965 the vendors actually purchased 80 Kanals of
Nehri land for Rs.11,000. The parties are admittedly Jat Sikhs gover- D
ned by Punjab Customs.

       Respondents 1 to 3 filed a declaratory suit on August 3. 1966 in
the Court of Sub-Judge, Ludhiana seeking a declaration that the sale
of the suit land would. not affect their reversionary rights after the
death of respondents 4 to 6 as they were governed by the custom in the E
matter of alienation inasmuch as the suit land was ancestral in the
hands of the alienors qua the plaintiffs (respondents 1 to 3) and that
the sale was effected without consideration and without legal neces-
sity; and respondents 4 to 6 (defendants 2 to 4) were restrained from
alienating under the custom.
                                                                        F

      The appellant averred, inter alia, that the sale was for considera-
tion and legal necessity as it was an act of good management on the
part of the alienors; that respondents 4 to 6 who were not sunless and
were men of good character and sober habits; that migrating from t.heir
village they had settled elsewhere as they were neither cultivating the G
suit land nor were in a position to manage and cultivate the same; and
that the alienors had actually purchased 80 Kanals of better quality
Nehri land which showed that the sale was an act of good management
on the part of the vendors. It was also contended that the land in suit
was not ancestral qua the plaintiffs nor was it governed by customs and
that the plaintiffs had no locus standi.                                H
    420         SUPREME COURT REPORTS                 [1990] Supp. 1 S.C.R.

         The respondents 4 to 6 being defendants 2 to 4 admitted the
A
    claims of the plaintiffs. The respondent No. 5 who was the brother of
    respondent No. 2, was impleaded as proforma defendant having the
    same interest as the plaintiffs.

          The Trial Court, inter alia held that the parties in respect of the
B
    sale of the suit land were governed by custom whereunder ancestral
    land could not be alienated except for legal necessity or as an act of
    good management; that the suit land was ancestral qua the plaintiffs
    (respondents I to 3) and defendants 2 to 4 (respondents 4 to 6); that
    the sale was effected for consideration of Rs.14,000 as stipulated in the
    sale deed; and that the sale was an act of prudent management on the
c   part of the vendors and as such unimpeachable. The suit having been
    dismissed and the first appeal therefrom having failed, the respondents
    1 to 3 preferred R.S.A. No. 1286 of 1969 in the High Court of Punjab
    and Haryana wherein they sought to adduce additional and further
    evidence of a sale deed dated June 3, 1969 alleged to have been
    executed by respondents 4 to 6 in respect of the suit land. The High
D   Court allowed the R.S.A. and set aside the sale holding that it was
    neither for any legal necessity nor could it be justified as an act of good
    managemen.t. The suit was accordingly decreed. The certificate to file
    Letters Patent Appeal having been refused, the appellant obtained
    special leave.
E
          Mr. V.C. Mahajan, the learned counsel for the appellant, sub-
    mits that whether the sale was or was not an act of good management
    having been a question of fact, the Trial Court and the first appellate
    court having arrived at a concurrent finding that it was an act of good
    management and as such unimpeachable, this concurrent finding could
F   not have been set aside by the High Court in second appeal; that the
    sale deed dated June 3, 1969 which was never accepted and proved
    according to law was irrelevant for impeaching the sale and the Hi5h
    Court erred in law in taking it into consideration while determining
    whether the sale was an act of good management.

G         Mr. Uma Dutta, learned counsel for the respondents, submits,
    inter a/ia, that the sale of the suit land measuring 38 Kanals 3 Marlas
    being on June 4, 1964 and the subsequent purchase of 80 Kanals for
    Rs.11,000 being on November 8, 1965 and that land also having subse-
    quently been sold on June 3, 1969 for Rs.35,000 and there being no
    evidence to show that .the suit land was less fertile or that the vendors
H
            BARA SINGH v. KASHMIRA SINGH [SA!KIA,J.J                 421

had settled at village Father, the High Court was correct in holding        A
that the impugned sale was not an act of good management.


      The only question to be decided in this appeal, therefore, is
whether the High Court was correct in setting aside the concurrent
finding that the impugned sale was an act of good manageme'nt and not
                                                                            B
restricted.by custom.


      It is common ground that the parties are governed by the local
custom which restricts alienation. About the custom W.H. Rattigan in
his 'A Digest of Customary Law in the Punjab' (14th Ed.) in Chapter
IV at page 283 said:
                                                                            c
           "Thus, while the unhampered exclusive use of property in
           a man's possession, whether ancestral or acquired, for his
           lifetime, with a free disposal of the income, is not denied,
           freedom of alienation, whether by gift or bequest, is in
                                                                            D
           regard to ancestral immovable property, subject in most
           cases to certain restrictions.''


     A 'late Senior Judge of the Chief Court' in a leading case (Nos.
107 P.R. 1887, page 247) expressed generally that:
                                                                            E
           "Jn respect of ancestral immovable property in the hands
           of any individual, there exists some sort of residuary
           interest in all the descendants of the first owner, or body of
           owners, however, remote and contingent may be the prob-
           ability of some among such descendants ever having the
           enjoyment of the property. In short, the owner in posses·        F
           sion is not regarded as having the whole and sole interest in
           the property, and power to dispose of it, so as to defeat the
           expectations of those wh~ are deemed to have a residuary
           interest and who would take the property if the owner died
           without disposing of it. The limitations within which
           persons having or claiming to have such a residuary interest     G
           may prevent an owner in possession from defeating their
           expectations will be found to vary according to local
           circumstances, which may either weaken or rebut the pre-
           sumption that the owner has not an unrestricted power of
           disposition."
                                                                            H
    422          SUPREME COURT REPORTS                [ 1990] Supp. 1 S.C.R.

A           Sir Meredyth Plowden in Gujar v. Sham Das, 107 P.R. 1887 also
    said:


                 "In respect of ancestral immovable property in the hands
                 of any individual, !herd exists some sort of residuary
B                interest in all the descendants of the first owner or body of
                 owners, however remote and contingent may be the proba-
                 bility of some among .such descendants ever having the
                 enjoyment of the property. The owner in possession is not
                 regarded as having the whole and sole interest in the pro-
                 perty, and power to dispose of it, so as to defeat the expec-
                 tations of those who are deemed to have a residuary
c                interest, and who would take the property if the owner died
                 without disposing<>f it."

            In the critical words of Chief Justice Sir Shadi Lal in Gujar v.
    Sham Das (supra) the issues before the Court were whether in a case,
D
    where the power of a sonless Jat proprietor to alienate ancestral land
    without necessity was in dispute, it was the duty of the alienee to prove
    a custom authorizing· a transfer of the ancestral land in favour of
    stranger, and on whom lay the onus of proving that a sonless pro-
    prietor has powers to dispose of ancestral land without necessity; and
    the rest were mere deductions.
E

          In para 59 at page 291 of the Digest Rattigan states the restric-
    tions on alienation of ancestral immovable property thus:

                 "Ancestral immovable property is ordinarily inalienable
F                (especially amongst 'Jats' residing in the central districts of
                 the Punjab), except for necessity or with the consent of
                 male descendants, or, in the case of a sonless proprietor, of
                 his male collaterals. "Provided" that a proprietor can
                  alienate ancestral immovable property at pleasure if there
                  is at the date of such alienation neither a male descendant
G                 nor a male collateral in existence (No. 36 P.R. 1895; No. 55
                  P.R. 1903, F.B.)"

          In other words, the custom is that the ancestral immovable pro-
    perty is ordinarily inalienable especially amongst Jats residing in the
H   Central Districts of Punjab, except for necessity and the other permis-
             BARA SINGH v. KASHMIRA SINGH [SAIKIA.J.I               423

sible reasons. An alientation as a bona fide act of good management        A
has been treated as one of necessity and hence, valid.


      At page 388 of the Digest we find the gloss:

           "In the case of a male proprietor, in the management of         B
           agricultural affairs a very strict economy and a very excel-
           lent management must not be insisted upon. Ordinary bona
           fide management is all that can be demanded(No. 70 P.R.
           1894; No. 20 P.W.R. 1911; No. 40 P.W.R. 1911, and No.
           25 P.R. 1911); 1922, 69 Ind. Case 521 (exchange of land).
                                                                           c
                Where although no immediate necessity for a sale is
           established, if the sale has been held to be an act of good
           management, it is binding on the reversioners."

      The above statement h.as been commented upon as being a bit
wide, and the suggested statement is that 'such a sale must be upheld'.    D
In Mohammad Chiragh and Ors. v. Fatta & Ors., A.LR. 1934
Lahore-452 where although no immediate necessity for sale was
established, but there was a recital in the sale deed that the vendors
intended to purchase other land with the proceeds of the sale, and a
representation of that kind was made to the vendees which might have
been believed by them in good faith, the High Court did not see any        E
good grounds for interference with the findings of the learned District
Judge that the sale was an act of good management which, it was
observed; "was essentially a finding of fact." In Abdul Rafi Khan v.
P. Lakshmi Chand & Ors., A.LR. 1934 Lahore-998 where the
members of the family, finding their position in the village precarious
due to deteriorating relations between it and the tenants in the village   F
sold their land .one by one as they found it difficult to manage them or
recover rent and the vendors moved to another place where they
pufchased certain land, it was held that the sale of the land was an act
of good management and the vendee was not expected to see to the
application of the money by the vendors to the purposes mentioned in
the sale deed. Similarly in Dial Singh v. Surain Singh, A.LR. 1937         G
Lahore-493, the question was whether a sale of ancestral land was for
necessity. On April 3, 1934 Bhagwan Singh sold ancestral land for
Rs.1,500 the entire consideration being paid to him before the Sub-
Registrar. The object of the sale was the purchase of land in Bikaner
and Gwalior States. and actually since the sale Bhagwan Singh spent
                                                                           H
    424         SUPREME COURT REPORTS               [1990] Supp. I S.C.R.

    about Rs.160 in buying about 100 bighas of land in Gwalior. The lower
A
    courts concurrently found that the sale was for necessity. Before the
    District Judge it was urged that the money had not been actually spent
    on the purpose for which it was raised. But the learned District Judge
    held that this was admitted to be correct, that all that the alienee had
    to do was to see that the money was required for a legitimate purpose.
B   The sole question, therefore, was whether the sale in order to buy land
    in Gwalior and Bikaner was an act of good management, which would
    be regarded as one of necessity. The Division Bench held that no
    sufficient reason had been shown for dissenting from the concurrent
    finding of the courts below that the sale of land by Bhagwan Singh in
    the presence of his elder son was for necessary.

c
           In Gajjan Singh & Ors. v. Atma Singh, [1968) P.L.R. Vol. 70-
     195 it was held that no person could be tied down to the village where
     he had ancestral land unless it was shown that he was leaving the
     village or disposing of the land in the village on some false pretext.·
     Where relations of a proprietor with his brother were strained and he
D    sold the land to purchase land in some other village, the alienation
     was held to be an act of good management and that once a true rep-
     resentation was made by the vendor, the vendees were not to see the
     application of the money and they need not prove that the money in
     fact was utilised for a necessary purpose. It was further held that the
     land purchased with the sale pruceeds of the ancestral land did not
E    cease to be ancestral and it remained ancestral land.

          In the instant case the vendee proved the ingredients of good
     management and the concurrent finding of the Trial Court and the first
     Appellate Court was that the impugned sale was an act of good
F    management, and it was essentially a finding of fact. Applying the law
     as enunciated in the above decisions we do not find any infirmity
     therein. The submissions of the learned counsel for the respondents
    that in view of the subsequent sale of the land would go to show that it
    was speculative sale would be wholly irrelevant. There was evidence to
    show that even prior to the sale the vendors were not cultivating and as
G such not deriving any profit from the land. The distance of time bet-
    ween the impugned sale oU"J une 4, 1964 and the purchase of 80 Kanals
    of land in the other village on November 6, 1965 was not such as to
    disprove that the sale was an act of good management and as such was
  · for necessity. The Trial Court clearly found that the vendors left for     :
    and settred at the new village where they purchased 30 Kanals of land.
H The averment that the purchased land was subsequently sold on June
<


                 BARA SINGH v. KASHMIRA SINGH [SAIKIA;J.]               425

    3, 1969 at Rs.35,000 besides having not been proved in accordance          A
    with law, was wholly irrelevant for. the purpose of discharging the onus
    of the appellant-vendee. The High Court was, therefore, in error in
    setting aside the concurrent finding of fact in the facts and circum-
    stances of the case, in Second Appeal.                   ·
                                                                               B
          In the result, this appeal is allowed, the impugned Order of the
    High Court is set aside and Decree of the lower courts in the suit ·
    restored. The parties being near relations, we leave them to bear their'
    own costs.

    Y. Lal                                                 Appeal allowed.