Decided on April 27,1950

Gurmukh Singh And Anr. Appellant
SADHU SINGH Respondents


Chopra, J. - (1.) THE prints involved in this second appeal are whether, the land in suit is ancestral & the sale was effected for legal necessity. The findings of the Cts. below on both these points are conflicting bat they have concurred in the result of the suit which was dismissed. Sadhu Singh sold 29 Bighas & 18 Biswas of land to Arjan Singh for Rs. 3000 by a registered deed dated 12th Magh., 1999. His collaterals in the 5th degree instituted this suit for a declaration that the alienation would not affect their reversionary fights. The trial Ct. found the property to be ancestral & the sale to have been effected for valid necessity & consequently dismissed the suit. On appeal, the learned Dist. Judge, Sunam differed from both the findings & dismissed the appeal because he was of the opinion that the land had not been proved to be ancestral. Regarding necessity he came to the conclusion that it had been proved to the extent of Rs. 1428 only. This is pltfs' appeal.
(2.) ON the first point, the learned Counsel for the pltfs. has taken me through the documents producer by him. Exhibit P.A. is the pedigree table of the pltfs. & the vendor. It shows that the common ancestor was Darbari who was the grandson of one Chbabula. Darbari had four sons, namely Bhaga, Hakam, Sana and Badhu. The holdings of these four lines during the flat settlement were 126 bighas 12 biswas, 124 bighas 11 biswas, 133 bighas 10 biswas & 123 bighas 2 biswas respectively. Khatas 266 & 266 were held by these 4 branches jointly according to their ancestral shares. These facts are further supported by a copy of Missal Haqiat Ex. P -D. Exhibit P.C. is the copy of Kafiat Dehi which gives out that one Pandoo of Got Dewal was the sole founder of this village. It further states that the descendants of Pandoo were proprietors in the village at the time of the settlement. Chhabela was also mentioned as a descendant of Pandoo. It is stressed that the points that stand proved in the case are the following: (1). The name of the common ancestor appears in the pedigree table prepared during the last settlement; (2). the holdings of the four branches descending from the common ancestor were almost equal. The land revenue paid by them was also almost equal; (3). two Khatas were jointly held by all the four branches according to their ancestral shares; (4). Darbari, the common ancestor was a descendant of the sole founder of the village. The counsel for the resp. contends that there was some disparity in the holdings of the four branches & that the disparity, however small it may be, having not been explained disentitles the pltfs. to draw a presumption that the land was ancestral. As already observed, the largest disparity comes only to 11 bighas & 2 biswas in a holding of 133 bighas & 10 biswas. It may be mentioned here that the land revenue paid by the descendants of Hakam Singh on 122 Bighas & 10 biswas was Rs. 61 -14 -0 while that paid by the line of Sana on 124 Bighas & 11 Biswas was Rs. 59 -7 -9. This shows that Sana paid less land revenue oven though he had 2 bighas & 3 biswas more of land than that possessed by the line of Hakam. It can, therefore, be safely concluded that the small disparity was due to the nature of the land that came to their shares. All these facts taken together do raise a presumption that the land in possession of the vendor had descended to him from the common ancestor. There is no evidence on the record to indicate that any acquisition other than by way of descent was made by any of the descendants of Darbari. I am, therefore, of the opinion that the pltfa. have succeeded in proving the land to be ancestral. As regards necessity, the learned Dist. J. has held in favour of the pltfs. that necessity to the extent of Rs. 1428 only baa been proved by the vendee. Mr. Atma Ram has contested this finding but he has not been able to convince me that the decision need be interfered with. The necessity mentioned in the sale deed was to redeem some other land of the vendor. The consideration consisted of the following items: 1. To be paid to the previous mtgees. Rs. 1428 2. Paid before the Sub -Registrar. Rs. 730 3. Paid at home. Rs. 792 4. For registration expenses. Rs. 50 The deft. examined Bhaga Singh & Pirthi Singh the two marginal witnesses of the deed as his witnesses. They do not say anything regarding the necessity mentioned in the sale deed, nor is there any other evidence that any land of the vendor other than that included in the sale was mortgaged which was required to be redeemed. Regarding item 3 there is absolutely no evidence even as to its payment. No. 82 receipt was taken by the vendee for this amount nor is it alleged as to when it was paid. The vendee has not come into the witness box & the witnesses produced by him do not say that this amount was paid in their presence. As regards the amount paid before the Sub -Registrar, Pirthi Singh deft's witness stated that it was returned to the vendee after the registration of the deed. The other witness Bhaga Singh avers that the vendor required money for the expenses of his marriage. This is what was not even mentioned in the sale deed nor has it been alleged by the vendee himself. I am, therefore, of the opinion that necessity for items 2 & 3 does not stand proved. If there was no necessity for the sale the registration expenses also cannot be allowed. The amount due to the previous mtgees. is not contested by the applts. The sale, consequently, cannot be upheld.
(3.) THE deft. had inter alia pleaded that the pltfs. had no locus standi to contest the alienation so long as Bachan Singh a nearer collateral of the alienor was alive. He having not joined the suit was impleaded as a pro forma deft. It is a fact that Bachan Singh who is a descendant of Hakam Singh is a nearer collateral & that the pltfs. will not succeed to the estate as long as he or his line is in existence. It may be mentioned here that Bachan Singh presented an appln. before the first appellate Ct. for being transplanted as an applt. but it was objected to by the defts. on the ground that he had entered into an agreement that he would not contest the alienation in question & had for that purpose received some consideration as well. The appln. of Bachan Singh was rejected by the Dist. J. From this it appears that he had precluded himself by his own act from suing or had consented to the alienation. Under custom every collateral derives his right to contest an alienation from the common ancestor from whom the property is proved to have descended & the mere fact that one of the collaterals gives his assent to the alienation does not deprive the remoter reversioners of the right to impugn it. Para 67 of the Customary law by Rattigan gives the generally recognised custom on the point. It says that a remoter reversioner can challenge an alienation if it is shown that the nearer reversioner has colluded with the alienor, or has by his own conduct precluded himself from suing or has agreed in the alienation. The consent of Bachan Singh, therefore, does not debar the pltfs., from enforcing their independent right. They, however, cannot get possession of the land be long as he or his line is in existence. Hamir Singh one of the pltfs. has entered into a compromise with the defts. & has agreed to the dismissal of his suit. It was also contended in the trial Ct. that Hardial Singh Anr. pltf. had also given his consent to the alienation inasmuch as he bad attested the sale deed. It has, however, not been proved that he attested it in taken of his consent. There is not an iota of evidence on record that he ever consented to the sale. His attestation alone is not sufficient to prove that he knew the contents or had assented to the alienation.;

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