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2006 DIGILAW 1566 (PNJ)

Nachhittar Kaur v. Kehar Singh

2006-04-20

SATISH KUMAR MITTAL

body2006
Judgment 1. This Regular Second Appeal was filed by defendants-Tara Singh and Ajit Singh (now deceased) against the judgements and decree, passed by both the Courts below, whereby suit of plaintiff Kehar Singh for setting aside the sale deed executed by his father in favour of the appellants was decreed. Now, during the pendency of this appeal, both the defendants-appellants have died and their legal representatives have been brought on record. 2. The brief facts of the case are that on 25-4-1960, Pritam Singh, father of plaintiff Kehar Singh, had sold 164 Kanals 1 Marla of land to Tara Singh (predecessor of appellant Nos. 1 to 8) and Ajit Singh (predecessor of appellant Nos. 9 and 10) for a consideration of Rs. 19,500/- by stating therein that he was in need of money for purchasing the land, installing the tubewell, paying the loan and for development and improvement of farming. After 4 years of the said sale deed, on 27-11-1964, his son Kehar Singh filed suit for declaration for setting aside the sale deed dated 25-4-1960 on the ground that the parties are governed by custom and his father Pritam Singh vendor (defendant No. 1) had no right to sell ancestral property without consideration and legal necessity. It was alleged that the impugned sale was made to the defendants without any consideration and legal necessity. This suit was filed by the plaintiff under the Punjab Customs (Power to Contest) Act, 1920. The defendants contested the suit by pleading that the suit land was not ancestral land; parties were not governed by custom; sale deed was executed for consideration and legal necessity and was an act of good management for discharge of debt and for improvement of farming etc. 3. From the pleadings of the parties, the following issues were framed by the trial Court : 1. Whether the land is ancestral qua the plaintiff and defendant No. 1 ? OPP 2. Whether the defendant No. 1 transferred the land in dispute for consideration and legal necessity and as an act of good management ? OPD 3. Whether the plaintiff and defendant No. 1 are governed by custom in matters of alienation ? If so, what is the custom ? OPP 4. What is the effect of Hindu Succession Act on the rights of the reversioners ? OPD 5. OPD 3. Whether the plaintiff and defendant No. 1 are governed by custom in matters of alienation ? If so, what is the custom ? OPP 4. What is the effect of Hindu Succession Act on the rights of the reversioners ? OPD 5. Whether the plaintiff is estopped by his act and conduct to bring this suit ? OPD 6. Relief. 4. On 17-12-1966, the trial Court decreed the suit while holding that the suit land was ancestral property and alienation of the suit land was neither for legal necessity nor an act of good management, as the defendants have failed to prove that Pritam Singh vendor had returned the loans from the sale consideration. Aggrieved against the judgement and decree of the trial Court, defendant Nos. 2 and 3 filed appeal, which was partly accepted by the first appellate Court vide judgement and decree dated 11-6-1968, whereby decree of the trial Court was modified by holding that the suit land was ancestral land; Pritam Singh was governed by custom and sale deed was executed for consideration of Rs. 19,500/-, but the defendants have proved legal necessity of Rs. 7,399/-. As such, it was held that there was no legal necessity for selling the land. Consequently, the declaratory decree of the trial Court was modified to the effect that reversioner of Pritam Singh will be entitled to get possession of the suit land on the death of Pritam Singh on payment of Rs. 7,399/- and the sale made by Pritam Singh would not be binding on their reversionary interests. 5. Against the said judgement and decree, defendant Nos. 2 and 3 filed the instant Regular Second Appeal in the year 1968. During the pendency of the appeal, the Punjab Customs (Power to Contest) Amendment Act, 1973 came into force, on 23-1-1973. In view of the said amendment, Regular Second Appeal filed by the defendants was accepted and suit of the plaintiff was dismissed in view of the Division Bench decision of this Court in Charan Singh V/s. Gehl Singh, 1974 Punjab Law Reporter 125, wherein it was held that the said amendment was retrospective and will effect all the pending appeals. It was further held that in view of the said amendment, the plaintiff could not have challenge the alienation of the ancestral property made by his father under the custom. 6. It was further held that in view of the said amendment, the plaintiff could not have challenge the alienation of the ancestral property made by his father under the custom. 6. Plaintiff Kehar Singh challenged the said judgement of this Court by filing Civil Appeal before the Supreme Court. The Supreme Court disposed of the said appeal by a common judgement, which is reported as Darshan Singh V/s. Ram Pal Singh, AIR 1991 SC 1654. It was held that the amendment effected in the year 1973 in the Punjab Customs (Power to Contest) Act is retrospective and is applicable to all pending proceedings and the decision given in Ujaggar Singh V/s. Dharam Singh (Civil Appeal No. 1263 of 1973) and in Udham Singh V/s. Tarsem Singh, (Civil Appeal No. 1135 of 1974) do not need re-consideration. However, the Supreme Court further observed that in these appeals, cases of the appellant were not gone into by the High Court or the lower Courts under the Hindu Law. Therefore, the cases were sent back to this Court to examine them under the Hindu Law. In this regard, the Supreme Court has observed as under :- "The result is that these appeals fail and are dismissed, but under the facts and circumstances of the cases, without any order as to costs." In course of the arguments it transpired that some of the appellants might have had right to contest the alienations under the Hindu Law. Doubts have been expressed as to whether after these appeals are dismissed any such claim would be tenable in law inasmuch as, it is submitted, the right under the Principal Act was a statutory right which has now been taken away. The answer to the question would depend on what resulted when the Punjab Laws Act and the Principal Act were passed. There appears to be no doubt that by the former the customs were preserved and by the latter the customary right to contest alienation was regulated. This would be clear from the following analysis. In the matter of a custom in relation to law three different relations have to be distinguished. First, a custom may be only judicially noticed. This belongs to the realm of evidence and validity of the custom. Secondly, a custom may be legally confirmed, and regulated. In this case the custom remains as custom law only confirming or regulating it. In the matter of a custom in relation to law three different relations have to be distinguished. First, a custom may be only judicially noticed. This belongs to the realm of evidence and validity of the custom. Secondly, a custom may be legally confirmed, and regulated. In this case the custom remains as custom law only confirming or regulating it. Thirdly, a statute may be passed on basis of a custom in which case the custom is transformed into statutory right and thereafter it is not treated as a custom. Austin in the Province of Jurisprudence Determined, Lecture V (page 163) discussing the meaning of the term law and laws proper or properly so called and laws improper or improperly so called and the difference between positive law and positive morality, and showing that customary law is also a creature of the sovereign, said : "For example : Customary laws are positive laws fashioned by judicial legislation upon pre-existing customs. Now till they become the grounds of judicial decisions upon cases, and are clothed with legal sanctions by the sovereign one or number, the customs are merely rules set by opinion of the governed, and sanctioned or enforced morally : Though, when they become the reasons of judicial decisions upon cases, and are clothed with legal sanctions by the sovereign one or number, the customs are rules of positive law as well as of positive morality." In his Lecture XXX Austin said : "The laws or rules styled customary may be divided into two classes : those which are enforced by the tribunals without proof of their existence; and those which must be proved, before the tribunals will enforce them. Laws or rules of the former class, are styled notorious. Or it is said that the tribunals take judicial notice of them. Those of the latter class require proof, like any other fact on which the decisions in the particular case depends." According to Austin A custom becomes a customary law only when it is clothed with the legal sanction in the judicial mode. A custom becomes law only when enforced by the political sanction. Those of the latter class require proof, like any other fact on which the decisions in the particular case depends." According to Austin A custom becomes a customary law only when it is clothed with the legal sanction in the judicial mode. A custom becomes law only when enforced by the political sanction. "Law styled customary law then is merely judicial law founded on custom, and owes its existence as law, like every other law to the sanction of sovereign authority." Luis Recasens Siches in Human Life, Society and Law at page 111 wrote : "The Problem of Customary Law. Perhaps someone may believe at first sight that the existence of customary law, that is of juridical customs, raises some difficulty with regard to the difference between it and the rules of social behaviour, from the fact that, similar to what is true of them, it manifests itself by means of the usual forms of collective behaviour. But, in truth, there is no difficulty whatever, for customary Law is as much Law as is statutory, it has exactly the same essential meaning as the latter." In Halsbury s Laws of England, 4th Ed. Vol. 12 Paragraph 443, dealing with effect of confirmation of a custom by statute it is said : "Where an Act of Parliament has, according to its true construction, embraced and confirmed a right which has previously existed by custom, that right becomes henceforward a statutory right, and the lower title by custom is merged in and extinguished by the higher title derived from the Act of Parliament unless the Act of Parliament merely intended to confirm the right as a custom. Where the custom has been so extinguished, the old rights do not re-emerge on the repeal of the Act or, it seems, at the termination of a temporary Act. It appears that the custom would not be affected by the repeal of the Act if the Act merely confirmed and recognised the custom." However, the intention of the legislature and the provisions of the statute have to be carefully examined to ascertain the result. "An act of Parliament which recognises the existence and validity of a custom may not operate to create new statutory rights in favour of the persons or classes of persons who might formerly have benefited by the custom. "An act of Parliament which recognises the existence and validity of a custom may not operate to create new statutory rights in favour of the persons or classes of persons who might formerly have benefited by the custom. Such a statute may merely have the effect of sanctioning the validity of the custom as a custom, without merging the custom in the higher title by statute." In the instant case we are of the view that the custom was confirmed and regulated by the Punjab Laws Act and the Principal Act and it was done away with by the Amendment Act. No statute was passed on the basis of the custom itself so as to transform the custom itself into a higher statutory right. Therefore either before or after the custom has been done away with by the Amendment Act, the rights of the parties under Hindu Law remain unaffected and will provide the rule of decision where alienations are contested under Hindu Law. It was observed by Robertson, J. in Daya Ram V/s. Sohel Singh, 110 PR (1906) 390, that "in all cases under S. 5 of the Punjab Laws Act, it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is. There is no presumption created by the clause in favour of custom, on the contrary it is only when the custom is established that it is to be the rule of decision." These observations were approved by the Privy Council in Abdul Hussein Khan V/s. Bibi Sona Dero (1917) LR 45 IA 10 (13) : (AIR 1917 PC 181). There is no presumption created by the clause in favour of custom, on the contrary it is only when the custom is established that it is to be the rule of decision." These observations were approved by the Privy Council in Abdul Hussein Khan V/s. Bibi Sona Dero (1917) LR 45 IA 10 (13) : (AIR 1917 PC 181). This was reiterated by this Court in Salig Ram V/s. Munshi Ram 1962 (1) SCR 470 : (AIR 1961 SC 1374) holding that "where the parties are Hindus, the Hindu Law would apply in the first instance and whosoever asserts a custom at variance with the Hindu Law, shall have to prove it......." As we find that in these appeals the cases of the appellants under Hindu Law were not gone into by the High Court or lower Courts, we order the cases to be sent back forthwith to the High Court and direct the High Court to examine the cases of the willing appellants under Hindu Law after hearing the parties and, if needed, giving them opportunity to adduce further necessary evidence. The willing appellants may appear before the High Court for necessary instructions in this regard. We order accordingly." 7. After the remand, none of the parties showed their willingness to adduce further evidence and stated that they have already led evidence on the relevant issue. Therefore, the appeal was heard on merits. 8. Counsel for the plaintiff-respondent submitted that the plaintiff and his father were and are being governed by Hindu Law and they constitute a Joint Hindu Family and both were members of a Hindu coparcenary. He further submitted that as per the findings recorded by both the Courts below, suit land is ancestral/coparcenary land, therefore, father of the plaintiff Pritam Singh was not competent to alienate coparcenary property without consent of other coparceners, except for legal necessity or for payment of antecedent debt by him. Counsel further submitted that the plaintiff being a member of the coparcenary was fully competent to challenge the alienation of the ancestral property made by his father on the ground that the alienation was effected without any legal necessity and for payment of an antecedent debt. Counsel further submitted that in this case, both the Courts below have recorded a finding of fact that the impugned sale deed was executed by Pritam Singh without any legal necessity. Counsel further submitted that in this case, both the Courts below have recorded a finding of fact that the impugned sale deed was executed by Pritam Singh without any legal necessity. Therefore, even under the Hindu Law, the impugned sale deed of the ancestral property effected by Karta of the Joint Hindu Family without any legal necessity is liable to be set aside. Thus, both the Courts below have rightly decreed the suit of the plaintiff. 9. On the other hand, counsel for the defendants-appellants submitted that Pritam Singh, father of the plaintiff, who was also Karta of the Joint Hindu Family, was competent to alienate the ancestral coparcenary property for legal necessity or for payment of his own debt, provided debt was an antecedent debt or was not incurred for immoral or illegal purposes. The Karta of the Joint Hindu Family is also competent to alienate the coparcenary property for the good management of the coparcenary property. Counsel submitted that the defendants before purchasing the suit land had made enquiry about the existence of the legal necessity and thereafter, they purchased the suit land. He further submitted that the entire sale consideration was paid by the defendants to the vendor Pritam Singh and the first appellate Court has also recorded a finding of fact that the defendants have proved the payment of entire sale consideration to the vendor. Counsel for the appellants submitted that the defendants-appellants have led sufficient evidence, documentary as well as oral, and have fully proved that the suit land was sold by Pritam Singh for legal necessity. But the Courts below while following the wrong principle of law have recorded the finding that the defendants could only prove the legal necessity to the extent of Rs. 7,399/-. Counsel for the appellants submitted that by leading evidence, the appellants have established the existence of the necessity of more than Rs. 20,000/- for payment of various loans and for other expenditure by Pritam Singh. While referring to the decision of the Supreme Court in Radhakrishnadas V/s. Kaluram (dead) and after him his heirs and legal representatives, AIR 1967 SC 574, counsel for the appellants submitted that under the Hindu Law where an alienation of coparcenary property made by Karta is challenged by one of the coparceners, the alienee is only required to establish legal necessity for the transaction. It is not necessary for him to show that every bit of consideration which he advanced was actually applied for meeting family necessity. Counsel for the appellants submitted that in this case also, the Courts below have fell into this error because they have seen the expenditure and the consideration and then come to the conclusion that the entire sale consideration was not used by the alienor for the purpose of paying the loan or for purchasing the articles for legal necessity of the Joint Hindu Family. Counsel also referred to another decision of the Supreme Court in Smt. Rani V/s. Smt. Santa Bala Debnath, AIR 1971 SC 1028, and submitted that the legal necessity does not mean actual compulsion. The onus of proving legal necessity is discharged by the alienee, if he proves that actually, there was a necessity and he had made reasonable enquiry satisfying himself as to the existence of the necessity, and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Learned counsel further submitted that recitals in the sale deed about legal necessity though do not by themselves prove legal necessity, but the recitals may be used to corroborate other evidence of the existence of legal necessity. While referring to a decision of this Court in Abhe Ram V/s. Ram Dewari, 1983 Current Law Journal (C and Cr) 423, learned counsel submitted that after lapse of eight years of sale, a very strict proof of legal necessity is not required. If before purchasing the ancestral property, he had satisfied himself about requirement of money for legal necessity, the legal necessity is said to have been proved. Learned counsel further submitted that in the instant case, the Courts below have recorded a perverse finding that the impugned sale made by Pritam Singh was without legal necessity, without following the correct principle of law. In this regard, learned counsel referred to the statements of various witnesses examined by the defendants. According to him, these statements clearly establish that when the impugned sale was effected, there was a legal necessity as vendor Pritam Singh was to pay a huge loan amount to various authorities. In this regard, learned counsel referred to the statements of various witnesses examined by the defendants. According to him, these statements clearly establish that when the impugned sale was effected, there was a legal necessity as vendor Pritam Singh was to pay a huge loan amount to various authorities. Learned counsel submitted that the defendants have also proved that the vendor had applied the sale consideration for payment of loan, for installing the tubewell and to purchase other household articles but the Courts below have not properly appreciated that evidence and have come to a wrong conclusion that the alienee has only been able to prove the legal necessity to the extent of Rs. 7,399/-. 10. After hearing the arguments of learned counsel for the parties, in my opinion, the following substantial questions of law arise in this appeal :- (i) Whether the alienee is required to prove that the sale consideration paid by him was actually used by the vendor for the alleged legal necessity ? (ii) Whether in the facts and circumstances of the present case, the defendants made proper and bona fide enquiries and did all the acts reasonably to satisfy themselves as to the existence of legal necessity? (iii) Whether from the evidence led by the defendants, they have been able to prove the existence of legal necessity and an act of good management, on the part of the vendor ? (iv) Whether the finding recorded by the Courts below on issue No. 2 is perverse and contrary to the evidence available on record and is liable to be set aside ? 11. Under the Hindu Law, the property belonging to Joint Hindu Family is managed by the father or other senior member for the time being of the family. The Manager of the joint family is called Karta. The Karta of the joint Hindu Family has a power to alienate Joint Hindu Family property for legal necessity and for the benefit of the estate. The payment of Government revenue and of debts, which are payable out of the family property, maintenance of coparceners and of the members of their families, marriage expenses of the male coparceners and the daughters of the coparceners, payment of debts incurred for family expenses and other necessary purposes etc. have been held to be the legal necessities by various judgements. have been held to be the legal necessities by various judgements. Where the Karta of a Joint Hindu Family alienates the coparcenary property, the purchaser is bound to enquire into the necessity for the same and the burden lies on the purchaser to prove either that there was a legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existence of such necessity. If the purchaser proves that there was legal necessity in fact, the alienation will be upheld, even though the necessity was brought about by the previous mismanagement of the Karta unless it is shown that the purchaser himself attributed to the mismanagement. Even if he fails to prove that there was a necessity in fact, the alienation will be upheld if he proves that he made a bona fide enquiry as to the existence of such enquiry and did all that was reasonable to satisfy himself as to the existence of such necessity. However, a purchaser is not bound to see that the money paid or advanced by him is actually applied to meet the necessity. The reason is that he cannot rarely have the means of controlling and directing the actual application of money unless he enters into the management himself. The recitals of legal necessity in the sale deed themselves are not evidence of such necessity. They may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. In Smt. Rani s case (AIR 1971 SC 1028) (supra), the Supreme Court has held as under :- "......Legal necessity does not mean actual compulsion, it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. 11. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. 11. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession." 12. In the light of the aforesaid legal position, now it has to be examined as to whether the defendants have discharged their onus to prove the existence of the legal necessity at the time of the impugned sale deed. Defendant Tara Singh, while appearing as D.W. 13, has stated that an amount of Rs. 5,500/- was paid by him as earnest money, Rs. 500/- were spent for purchasing stamp papers and registration of sale deed and Rs. 934/- were paid to the vendor, about 3-4 days prior to the registration of sale deed, for payment of Taccavi loan and an amount of Rs. 12,566/- was paid at the time of registration of the sale deed. D.W.1 Siri Gopal, who was an Assistant in the DC Office, Ludhiana, has stated that Pritam Singh vendor was granted loan of Rs. 3,000/- in the year 1955 and he did not pay a penny from the said loan till 20-11-1964. D.W. 2 Ram Dass, a tubewell mechanic, has proved that Pritam Singh had spent Rs. 4,000/- for installing a tubewell in the year 1963, D.W. 9 Sat Pal, Additional Wasil Baqa Nawis, Ludhiana, has proved that the vendor Pritam Singh had taken various loans from the department for purchase of seeds bag, Rs. 500/- for repair of house and Rs. 2,500/- for purchasing pumping set. This witness further stated that a sum of Rs. (sic) Singh had purchased a Rehri for Rs. 1,025/- from him in the year 1961. 500/- for repair of house and Rs. 2,500/- for purchasing pumping set. This witness further stated that a sum of Rs. (sic) Singh had purchased a Rehri for Rs. 1,025/- from him in the year 1961. D.W. 11 Dalip Singh has proved that Pritam Singh had borrowed a sum of Rs. 3,000/- from his in the year 1959 by executing a pronote. This witness has also stated that Pritam Singh had performed marriage of his 5 children. 13. In my opinion, statements of various witnesses clearly prove that at the relevant time, the legal necessity in fact was in existence. The learned first appellate Court though recognized that at the time of the impugned sale deed, vendor Pritam Singh was to pay the various loan amounts, but has held that the alienee has failed to lead any evidence to show that any debt was actually paid by Pritam Singh. This is the illegality which the first appellate Court has committed. It is well settled, as discussed above, that alienee is not required to show that every bit of the consideration, which he advanced, was actually applied for meeting family necessity. Regarding the statement of D.W. 11 Dalip Singh that he had advanced Rs. 3,000/- to vendor Pritam Singh against pronote, it has been observed by the first appellate Court that the alleged pronote was not proved by secondary evidence. It has also been observed that Pritam Singh had sold another piece of land for Rs.9,000/- on the same day and that sale was also challenged and upheld vide judgements Ex. P5 and Ex. P6 and the debt of Rs. 3,100/- was adjusted towards that sale, therefore, the same cannot be adjusted in the instant sale. In my opinion, the first appellate Court has also committed error while not taking into consideration the said amount of Rs. 3,000/- which was borrowed by Pritam Singh, to establish the existence of the legal necessity on the relevant day. From the judgement, given by the first appellate Court, it appears that amount of Rs.7,399/- has been calculated by taking into consideration the actual expenditure proved by the alienee. But this is not the principle of law to ascertain the actual legal necessity. In my opinion, in this case, the defendants have proved on record that when they purchased the suit land, actual legal necessity was in existence. But this is not the principle of law to ascertain the actual legal necessity. In my opinion, in this case, the defendants have proved on record that when they purchased the suit land, actual legal necessity was in existence. It is well settled that if legal necessity regarding the major portion of the sale consideration is established, even then the sale effected by Karta is not liable to be set aside. In Shankar Lal V/s. Lakhbir Singh, 1968 PLR 26, the sale transaction was upheld, even when the alienee proved the legal necessity existing to the extent of 67 per cent. It has been held by the first appellate Court that the entire sale consideration was paid to vendor Pritam Singh. It has also come in evidence that suit land which was sold vide impugned sale deed was of inferior quality. It has also come in evidence that Pritam Singh was owning 70 killas of land, out of which, vide impugned sale deed, he has sold only 20 killas of land, which was of inferior quality and was lying barren. Thus in my opinion, in the instant case, the defendants have clearly established on record the actual existence of legal necessity at the time of impugned sale, but the Courts below have recorded a perverse finding while applying the wrong principle of law. Hence, all the substantial questions of law are decided in favour of the appellants. Consequently, the finding recorded by the Courts below on issue No. 2 is hereby set aside and it is held that the impugned sale effected by Pritam Singh in favour of the defendants was for legal necessity and good management. 14. In view of the aforesaid facts, this appeal is allowed and the suit filed by Kehar Singh is hereby dismissed. 15. No order as to costs.