THAKAR DAS Vs. CHET RAM

JUDGEMENT

(1.) By means of a mortgage-deed dated 22 June, 1945 Rala Ram and Mt. Prabhi, his brother's widow, Brahmins of the village Ajoli in Una Tahsil in the district of Hoshiarpur, mortgaged 8 kanals and 10 marlas of land in favour of defendants 1 to 4 for a sum of Rs. 4000. By means of another mortgage-deed dated 12 June 1945 Rala Ram alone mortgaged 3 kanals and 17 marlas of land to the Same defendants for a sum of Rs. 1,300. Thakar Das and Jagan Nath eons of Rala Ram brought two separate suits for the usual declaration in respect of the two mortgages. The suits were resisted by the mortgagees inter alia on the pleas that the Brahmins of the village Ajoli were not governed by agricultural custom in matters relating to alienation, that Rala Ram's powers of alienation were not subject to any customary restriction and that the mortgages-were for legal necessity. The learned Subordinate Judge held that in matters of alienation Brahmins of the village of the parties were governed by custom and that according to that custom Rala Ram's powers of alienation over ancestral property were restricted. He further found that necessity had been proved for the first mortgage only to the extent of Rs. 3000 and that no necessity had been proved at all for the second mortgage. In the result he granted the plaintiffs a declaratory decree to the effect that the mortgage-deed dated 22 June, 1945 would not affect their reversionary rights after the mortgagors death except to the extent of Rs. 3000 and that the mortgage-deed dated 12 June 1945 would not affect their reversionary rights at all. The mortgagees feeling aggrieved from the decree of the learned trial Judge went up in appeal to the learned Senior Subordinate Judge who reversed the finding of the learned trial Judge on the question of custom and holding that Rala Ram had not been shown to possess only restricted power of disposition over ancestral property accepted both the appeals and dismissed the two suits. The plaintiffs have come up in second appeal to this Court. This judgment shall dispose of both the appeals, namely, R.S.A. No. 402 of 1948 and R.S.A. No. 403 of 1948.

(2.) The sole question that arises for decision in the present appeals is whether Brahmins of the village Ajoli have been proved to be governed by agricultural custom in, matters relating to alienation.

(3.) The learned Counsel for the appellants urged that the village was founded by a Brahmin Aja by name, that Brahmins owned about 85 acres of land out of the entire land of the village amounting to 189 acres, that there were 64 houses of Brahmins out of 136 houses in the village, that the Brahmins in the tehsil were statutory agriculturists, that the alienor had been shown to have been tilling his own lands, that other Brahmins in the village also tilled their lands with their own hands; that there was a Brahmin lambardar in the village and that in the circumstances of the case it ought to have been held that the Brahmins of this village live on agriculture as their profession and constituted at least a compact section of the village community. He further urged that the witnesses for the defendants themselves had admitted that Brahmins of this and of neighbouring villages were governed by custom in matters relating to alienation and that amongst them a male proprietor could not alienate ancestral property except for legal necessity. On these grounds he attacked the decision of the learned Senior Subordinate Judge.