Singh Vs. Kashmira Singh & Ors  INSC 276 (12 September 1990)
K.N. (J) Saikia, K.N. (J) Thommen, T.K. (J) Kasliwal, N.M. (J)
1990 SCR Supl. (1) 417 1990 SCC (4) 711 JT 1990 (3) 843 1990 SCALE (2)684
Law Ancestral Immovable property--Alienation of- Custom amongst Jats in Central
District of Punjab--Aliena- tion as a bona fide act of good management--Valid.
Nos. 4 to 6 sold their 3/5th share of the ancestral land to the appellant for
Rs.14,000, as the ven- dors left their village and wanted to settle elsewhere
where they purchased 80 kanals of Nehri land. Respondents Nos. 1 to 3 filed a
declaratory suit 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. 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 same was not without consideration/the vendors having decided to
trial court held that the sale was an act of prudent management and was not
without consideration. As regards the custom it held that the parties were
governed by custom, whereunder ancestral 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.
1 to 3 thereafter preferred Regular Second Appeal 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.
Before this Court the appellant contended that the sale was or was not an act
of good management having been a question of fact, the trial court as also the
first appel- late court having arrived at a concurrent finding that it was an
act of good management, the High Court should not have interfered with that
finding. On the other hand the respondents contended that the sale was not an
act of good management.
the appeal, this Court,
The custom is that the ancestral immovable proper- ty is ordinarily inalienable
specially amongst Jats residing in the Central Districts of Punjab, except for necessity and the other
permissible reasons. All alienation as a bona fide act of good management has
been treated as one of necessity and hence valid. [233B] 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 management, and it was essentially a finding of fact. [234F] 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.
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, 1968 PLR Vol. 70-195.
APPELLATE JURISDICTION: Civil Appeal No. 1934 of 1972.
the Judgment and Order dated 9.12. 1971 of the Punjab and Haryana High Court in regular Second Appeal No. 1286 of
K.R. Nagaraja (NP) and R.S. Hegde for the Appellant.
Dutta, E.C. Agarwala, Ms. Sheil Sethi and Susheel Kumar for the Respondents.
Judgment of the Court was delivered by K.N. SAIKIA, J. This first defendant's
appeal by special leave 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 Kanals 3 Marlas, being 3/5th share of 63 Kanals 11 Marlas of ances-
tral 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 village Maherna Kalan and had not been
cultivating the same and it was not yielding any prof- it. 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 governed by Punjab Customs.
1 to 3 filed a declaratory suit on August 3, 1966 in the Court of Sub-Judge, Ludhiana
seeking a declara- tion 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 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
necessity; and respondents 4 to 6 (defendants 2 to 4) were restrained from
alienating under the custom.
appellant averred, inter alia, that the sale was for consideration 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 sonless and were men of good character and
sober habits; that migrating from their village they had settled elsewhere as
they were neither cultivating the 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.
The respondents 4 to 6 being defendants 2 to 4 admitted the 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.
Trial Court, inter alia held that the parties in respect of the sale of the suit
land were governed by custom where under 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 1 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 part of the vendors and as such unimpeach- able. 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 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 management. The suit was
accordingly decreed. The certificate to file Letters Patent Appeal having been
refused, the appellant obtained special leave.
V.C. Mahajan, the learned counsel for the appellant, submits 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 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 High
Court erred in law in taking it into consideration while determining whether
the sale was an act of good man- agement.
Dutta, learned counsel for the respondents, submits, inter alia, that the sale
of the suit land measur- ing 38 Kanals 3 Marlas being on June 4, 1964 and the subse-
quent purchase of 80 Kanals for Rs. 11,000 being on November 8, 1965 and that
land also having subsequently 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 421 had settled at village Pather, the High Court was correct in
holding that the impugned sale was not an act of good man- agement.
only question to be decided in this appeal, there- fore, is whether the High
Court was correct in setting aside the concurrent finding that the impugned
sale was an act of good management and not restricted by custom.
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
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 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
of ancestral immovable properly 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 proba- bility of some
among such descendants ever having the enjoy- ment of the property. In short,
the owner in possession 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 who 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
per- sons having or claiming to have such a residuary interest may prevent an
owner in possession from defeating their expectations will be found to vary
according to local cir- cumstances, which may either weaken or rebut the
presumption that the owner has not an unrestricted power of disposition."
422 Sir Meredyth Plowden in Gujar v. Sham Das, 107P.R. 1887 also said:
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 probability
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 property, and power to dispose of it, so as to defeat the expectations of
those who are deemed to have a residuary interest, and who would take the
property if the owner died without disposing of 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, where the power of a sonless Jat proprie- tor
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 proprietor has
powers to dispose of ancestral land without necessity; and the rest were mere
59 at page 291 of the Digest Rattigan states the restrictions on alienation of
ancestral immovable property thus:
immovable property is ordinarily inalienable (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 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 immova- ble property is ordinarily inalienable especially amongst Jats
residing in the Central Districts of Punjab, except for necessity and the other
permis- 423 sible reasons. An alientation as a bona fide act of good management
has been treated as one of necessity and hence, valid.
page 388 of the Digest we find the gloss:
the case of a male proprietor, in the management of 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).
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 has been commented upon as being a bit wide, and the
suggested statement is that 'such a sale must be upheld'. In Mohammad Chiragh
and Ors. v. Fatta & Ors., A.I.R. 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 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 find- ing of fact." In Abdul Rafi Khan v. P. Lakshmi Chand
& Ors., A.I.R. 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 sold their Land one by one as they found it diffi-
cult to manage them or recover rent and the vendors moved to another place
where they purchased 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.I.R. 1937 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 424 about Rs. 160 in buying about 100 bighas of land in Gwalior.
lower courts concurrently found that the sale was for.
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. 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 necessi- ty.
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.
Singh & Ors. v. Anna Singh,  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 proprie- tor with his
brother were strained and he 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 repre- sentation 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.
further held that the land purchased with the sale proceeds of the ancestral
land did not cease to be ancestral and it remained ancestral land.
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 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 submis- sions 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.
was evidence to show that even prior to the sale the vendors were not
cultivating and as such not deriving any profit from the land. The distance of
time between the impugned sale on June 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 manage- ment and as such was for necessity. The
Trial Court clearly found that the vendors left for and settled at the new
village where they purchased 30 Kanals of land. The averment that the purchased
land was subsequently sold on June 425 3, 1969 at Rs.35,000 besides having not
been proved in accordance 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 concur- rent finding of fact in the facts and
circumstances of the case, in Second Appeal.
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 rela- tions, we leave them to bear their' own costs.