Full Judgment Text
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PETITIONER:
INNAMURI GOPALAN AND OTHERS
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH AND ANR.(B. P. SINHA C. J., J. C. S
DATE OF JUDGMENT:
09/04/1963
BENCH:
ACT:
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.
HEADNOTE:
A jat holding ancestral agricultural land in Jhajjar Tehsil
of Rohtak district in Punjab has by custom a power to
transfer
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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 purposes.
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 theory.
Budal v. Kirpa Ram, 76 P.R. 1914, not followed.
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.
JUDGMENT:
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 the appellants.
Achhru Ram and Brijbans Kishore, for respondents Nos. 1 to
3.
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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,
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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
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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. 524.
(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.
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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 (1).
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.
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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
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(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.
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