Innamuri Gopalan & Ors Vs. State of
Andhra Pradesh & ANR  INSC 93 (9 April 1963)
Custom-Ancestral agricultural lands in
Jhajjar Tehsil, Rohtak District of Punjab-Unrestricted power of a Jat to
transfer it for consideration-No right of son or reversionary heirs to get it
set aside unless transaction is for immoral purposes-No distinction between
sonless holder and holder having son-Authority not followed for a long period,
ignored by this Court.
A jat holding ancestral agricultural land in
Jhajjar Tehsil of Rohtak district in Punjab has by custom a power to transfer
900 It for consideration. Such transfer is not liable to be set aside at the
instance of his son or other reversionary heir unless the sale was for immoral
The courts have consistently recognised such
a power in a proprietor having sons in spite of the observation in Joseph's
Customary Law Manual that "whether proprietor with sons has the same power
is a more doubtful case", and that power must now be recognised.
There is a great deal to be said in favour of
the contention that the existence of a son does not affect that power as the
restriction on power to alienate where it exists, is based on the agnatic
Budal v. Kirpa Ram, 76 P.R. 1914, not
Telu v. Chuni, 231 P.L.R. 1913, Giani v. Tek
Chand, (1923) I.L.R. 4 Lab. III, Behari & Ors, v.. Bhola & Ors, (1933)
I.L.R. 14 Lab. 600, Abdul Rafi Khan v. Lakshmi Chand, (1935) I.L.R. 16 Lab.
505, Ram Datt v. Khushi Ram, A.I.R. (1933) Lab. 692, Pahlad Singh v. Sukhdev
Singh, A.I.R. (1938) Lab.
524, Sohan Lal v. Rati Ram, Regular Second
peal No. 136/43 (unreported) Pb. High Court, Suraj Mal v. Birju, Civil Regular
Second Appeal No. 693 of 1952 (unreported), Pb. H.C. Sheoji v. Fajar Ali Khan,
230 P.L.R. 1913 and Gujar v. Sham Das, 107 P.R. 1887, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 311 of 1962.
Appeal by special leave from the judgment and
decree dated February 7,1960 of the Punjab High Court in Regular First Appeal
No. 190 of 1953.
Shiv Charan Singh and Janardan Sharma, for
Achhru Ram and Brijbans Kishore, for
respondents Nos. 1 to 3.
901 1963. April 9. The judgment of the Court
was delivered by SARKAR J.-The appellants are the sons of Umed Singh, one of
the respondents in this appeal. They filed a suit for a declaratory decree that
the sale of certain lands by their father Umed Singh was void against them and
the other reversionary heirs. The contesting respondents are the purchasers of
the lands from the father.
It is not. in dispute that the lands are
ancestral and that the parties are jats of Jhajjar Tehsil in Rohtak District.
The only question is as to the existence of a
custom giving a jat, holding agricultural ancestral lands in Jhajjar Tehsil in
District Rohtak in Punjab, free power to transfer them for consideration.
The trial Court and the High Court of Punjab
in first appeal, held that there was such customary power. Indeed, in view of
the large number of decisions in which it has been consistently held that a
sale or mortgage of ancestral land by a holder is not liable to be set aside at
the instance of his sons or other reversionary heirs, unless the transaction
was for immoral purposes, it is impossible to take any other view.
We were referred to over a dozen cases and we
are sure there are more. The earliest of these was decided in 1913 and the
latest in 1956. Excepting in one case to which we shall later refer, nowhere
has it been held that the transfer by way of a sale or mortgage of ancestral
property by a holder is liable to be set aside at the instance of a son or a
reversionary heir unless the transaction had been for immoral purposes. The
present is not a case of that kind for though the appellants alleged that the
sale was for immoral purposes it has been found that it Was not so. We may
refer here to some of these cases : Telu v. Chuni (1), Giani v. Tek Chand (2),
(1) 231 P.L.R. 1913. (2) (1923) I.L.R. 4 Lah. 111, 902 Behari v. Bhola (1),
Abdul Rafi Khan v. Lahshmi Chand (2), Ram Datt v. Khushi Ram (3), Pahlad Singh
v. Sukhdev Singh (4) Sohan lal v. Rati Ram (5) and Suraj Mal v. Birju (6).
Learned counsel for the appellants contended
that none of these cases dealt with the custom existing in Jhajjar Tehsil and,
therefore, they could not be authorities on which the present case could be
decided. We have first to observe that this statement is not correct for the
case of Pahlad Singh v. Sukhdev Singh (4), dealt with the custom in Jhajjar
Tehsil. That appears from the judgment of the District Judge in that case which
is Exh. D. 5 in this case.
Furthermore, we notice that many of the cases
to which we have earlier referred treated the custom giving the holder
unrestricted right to transfer ancestral property for consideration, as existing
in the whole district of Rohtak :
see for example, Telu v. Chuni (7) and Sheoji
v. Fajar Ali Khan (8). It also appears from the Riwaj-i-am for Rohtak District
recorded in Joseph's Customary Law Manual, vol.
XXIII p. 60, compiled at the settlement of 1909
that "the power of alienating for consideration is far wider than in the
Punjab proper." In view of all this we think that the Courts below were
not in error in holding that the Jats of Jhajjar Tehsil in Rohtak District had
unrestricted power to transfer land for consideration provided of course the
transfer was not for immoral purposes.
Learned counsel for the appellants then
contended that most of the cases on which the respondents relied were cases of
sonless holders and even if these cases were rightly decided, those which
recognised unrestricted power in the case of a holder having a son were not
justified by the Riwaj-i-am entries and should not be followed.
(1)(1933) I.L.R. 14 Lah. 600. (2)(1935)
I.L.R. 16 La h. 505.
(3) A.I.R. (1935) Lah. 692. (4) (1938) Lah.
(5)Regular Second Appeal 136 of 1943
(Unreported) Pb. H.C.
(6)Civil Regular Second Appeal No. 693 of
1952 (Unreported) Pb. H.C.
(7) 231 P.L.R. 1913.
(8) 23O P.L.R. 1913.
903 We are unable to accept this contention.
We find nothing in the Riwaj-i-am entries which would show that the decisions
were not justified. In Joseph's Manual it is said that "a sonless
proprietor has full power to alienate his, property by sale or mortgage even if
there is no necessity". It is true that it has also been said there that
"whether a proprietor with sons has the same power is a more doubtful
case." In spite of this, however, the Courts have since 1913 consistently
held that the power of a holder even where he has sons to alienate ancestral
property for consideration is unrestricted. It is not now possible nor would it
be right to upset the law settled by these decisions on the slender ground of
the doubt expressed in Joseph's Manual. In Tupper's Statements of Customary law
vol. 2, dealing with Rohtak District, it has been said at p. 178 that "it
is quite common for people to sell or mortgage their land. In cases of sale,
the right of pre-emption is observed" :
(paragraph 25). This statement makes no
distinction between the case of a man with a son and one without a son. We find
nothing in the records of custom to which our attention has been drawn to
justify the view that the case of the holder of an ancestral property having a
son is different in this regard from that of a holder without one. Furthermore,
it would be strange if the existence of sons made any difference that the point
was not noticed in any of the very large number of cases dealing with the
custom. We think that there is a great deal to be said in favour of the
contention of Mr. Achhru Ram that the restriction on the power to aliente where
it exists is based on the agnatic theory and therefore, no distinction can be
made between a sonless holder and a holder having a son: see Gujar v. Sham Das
We come now to the only case which takes a
different view and on which the appellant naturally laid great stress, namely,
Budal v. Kirpa Ram (1) 107 P. R. 1887.
(2) 76 P. R. 1914.
904 That was a case of a sonless holder. It
was held that among Jats in the Rohtak District there was no unlimited power in
holders of ancestral property to alienate it. This case has however not been
followed in any of the subsequent decisions and in most cases its authority has
been discounted. That we think is enough to prevent us at this distance of time
from reviving the view taken in that case. Furthermore,' as was pointed out,
this case does not refer to the earlier authorities, for example, Telu v. Chuni
(1). The only authority to which it refers is Tupper's Customary Manual, but
the view expressed there was not accepted as sufficient authority because in
the introduction Tupper said (p. 173), that Mr. Purser who gave him the paper
from which he prepared his record "did not consider that it can be relied
on in doubtful points". This is hardly any reason for there was nothing to
show that the customary power was doubtful.
It would thus appear that the decision in
Budal v. Kripa Ram (2) was not a satisfactory one.
In this view of the matter we think that the
learned Subordinate judge and the High Court came to the correct conclusion
that in Jhaiiar Tehsil a Jat holder had unrestricted power to alienate his
ancestral land for a consideration.
The appeal is dismissed with costs.
(1) 231 P. L. R. 1913. (2) 76 P. R. 1914.