NATHU Vs. HUKAM SINGH

JUDGEMENT

(1.) The principal question of law raised in this appeal under Clause X of the Letters Patent is the right of male lineal decendants to impugn an alienation of Bhumidari Rights granted under the Delhi Land Reforms Act, 1954, based on the customary law applicable to the proprietors of agricultural land before the enforcement of the said Act. It has arisen in these circumstances.

(2.) Hukam Singh son of Jit Ram is the real brother of Narain Singh, Ramesh Chander is the son of Marain Smgh. They are Jats by caste and dependant solely on agriculture. Hukam Singh and Ramesh Chander, respondents I and 2 herein (plaintiffs in the suit) filed on August 29, 1962 a suit for declaration to the effect that the mortgage without possession dated June 27, 1962 for a consideration of a sum of Rs. 8,000.00 , registered on June 30, 1962, executed by Narain Singh respondent No. 3 herein (defendant No. 2 in the suit) in favour of Nathu appellant before us (who is defendant No. 1 in the suit) regarding one-half share in land measuring 109 bighas 12 biswas as mentioned in para 2 of the plaint of the suit situated in village Dichaon Kalan. Delhi (for short called the land in suit) is without consideration and without legal necessity. The land in suit was planded to be ancestral qua the plaintiffs and defendant No. 2. The suit was based on the rule of custom that the immediate male lineal decendants could impugn an alienation on the ground that it was without legal necessity and as such, did not in any way affect the rights of the plaintiffs. The trial court, after contest of the suit by the parties, held that Hukam Singh and Narain Singh were owners in equal shares of the land in suit: that originally Jit Ram, an ancestor of the parties, was the owner of the land in suit and that when he died in 1948 it devolved upon Hukam Singh and Narain Singh, and thereafter Bhumidari rights in the land in suit were conferred on them under the provisions of Delhi Land Reforms Act 1954 (for short called the Act) and Delhi Land Reforms Rules, 1954 (for short called the Rules) as they were then in cultivating possession of the land in suit. It was found that the parties are governed by customary law under which a male owner cannot alienate property which is ancestral, except for legal necessity. It was also found that the provisions of the Act did not abrogate the rules of customary Jaw. The trial Court further held that the mortgage deed was executed by Narain Singh for a consideration of Rs. 7,700.00 only and that a sum of Rs. 3,700.00 was proved to have been paid to Nathu by Narain Singh for legal necessity. As a resuit of these findings, the trial Court by its judgment and decree dated September 2, 1964 granted a decree for declaration to the effect that tin; land mortgaged by Narain Singh in favour of Nathu by the mirtgage deed dated June 27, 1962, registered on June 30, 1962"is without consideration to the extent of Rs. 300.00 and is without legal necessity except to the extent of Rs. 3,700.00 and as such, is against the provisions of the customary law and is ineffective against the rights of the plaintiffs and other reversioners who are entitled to redeem the la"d on payment of Rs. 3,700.00 .

(3.) Nathu in the first appeal assailed the findings of the trial Court on questions of fact but they were affirmed except to the extent that the amount proved to have been paid for legal necessity was Rs. 3,800[- and not Rs. 3,700.00 . On the question of law it was argued that in view of the provisions of the Act and the Rules allowing a Bhumidar the rights of transfer of Bhumidari rights, the custom governing the parties in matters of alienation that ancestral land could not be alienated without legal necessity stood abrogated. The first appellate Court found that Narain Singh was the owner and in cultivating possession of the land in suit at the time of enforcement of the Act and for that reason declared as a Bhumidar, that he could not have acquired any new right and would as such be governed by the custom in the matter of restrictions on alienations and that custo- mary law in force is not inconsistent with the provisions of the Act. The appeal was partly allowed by judgment and decree dated October 10, 1965 in favour of Nathu by modifying the order of the trial Court to the effect that the plaintiffs would be entitled to redeem the land in suit on the d^ath of Narain Singh on payment of Rs. 3,800.00 and that the mortgage affected by Narain Singh in favour of Nathu shall bind them only to that extent and not further.