JASMER SINGH Vs. AJAIB SINGH

JUDGEMENT

(1.) Regular Second Appeals Nos. 150 and 248 arise out of the same suit. One Ganda Singh has two sons Kartar Singh and Hazura Singh. Kartar Singh's sons are Ajaib Singh and Mewa Singh while Bachan Singh and Dilbara Singh are the sons of Hazura Singh. On 13-3-93 Ganda Singh sold some of his agricultural land by means of a registered deed. The document was attested by Kartar Singh. About three years later i.e. on 3-2-96 Ganda Singh sold more land, this time also by a registered deed which was attested by Hazura Singh. On 6-8-2003 all the four; grandsons of Ganda Singh brought a suit for declaration that the two sales made by their grandfather would not affect their reversionary interests on the ground that the land which was the subject-matter of sales was ancestral and the sales were without consideration and necessity. The vendees contested the suit. They denied that the land was ancestral or the sales were without consideration and necessity. They also urged that the suits were, barred by time and the Plaintiffs could not maintain the action because all the sales challenged by them; had been consented to by the sons of Ganda Singh, who were his immediate heirs at the, time the sales were made. The trial Sub-Judge held the land to be ancestral and it also held that though consideration and necessity for the first sale had been established, necessity for the second sale had not been proved. In spite of this he dismissed the suit in respect of both the sales because in his view the sales having been consented to by the Plaintiffs' respective fathers they could not challenge them. Against this decision the Plaintiffs preferred an appeal' to the Additional District Judge Fatehgarh Sahib at Bassi who set aside the trial Court's decree in so far as it related to the second sale and passed a decree in Plaintiffs' favour that they would be entitled to get back the land which was the subject-matter of the second sale "when succession opens out to them" on payment of Rs. 3,500/-. The first appeal is by the alienees of the second sale to whom the land was sold by the second sale and the second' is by the Plaintiffs.

(2.) The only question involved in the second appeal is whether the finding of the Courts below that the sale was for consideration and necessity was correct. Shri Lachhman Das, counsel for the Appellants, frankly admitted before us that all the items constituting the consideration were proved and in view of the evidence that was adduced by the vendee he was not in a position to urge that consideration for the sale, was not established.

(3.) In the first appeal two points were urged before us. One was that because Kartar Singh and Hazura Singh had consented to the pale it was not open to their sons to maintain a suit challenging the validity of the transaction. There can be no doubt that at the time the sale was made Kartar Singh and Hazura Singh were the immediate heirs of Ganda Singh and if it can be proved that they both consented to sale the same became indefeasible and the present Plaintiffs could not challenge it. The difficulty, however, is that no such consent has been established. It was argued before us that the Plaintiffs have themselves admitted in the plaint that both the sales had been made with the consent of Kartar Singh and Hazura Singh but this is not correct, because all that was mentioned in the plaint was that the sons of Ganda SingbJ i.e. Kartar Singh and Hazura Singh, were colluding with the vendees and for this reason they did not join the Plaintiffs in bringing the suit. No reference was made to their consent As regards Kartar Singh there was no evidence to prove that he was present at the time the sale deed was executed or that he had an knowledge of it. So far as Hazura Singh is concerned it is correct that he attested the sale deed but in the absence of the evidence that he knew what the document contained and he was being asked to affix his signatures to it in token of his acceptance of the transaction this did not amount to consent. Apart from this, I am not sure whether Kartar Singh's consent to the sale debarred his sons from challenging it by a suit on the ground that it was without consideration and necessity. The matter would have been quite different if both Kartar Singh and Hazura Singh had assented to the sale. In that case the principle laid down in para 59 of the Rattigan's Digest of Customary Law would have been applicable and the sale would have been good against the whole world with the result that it could not have been questioned by the sons of Hazura Singh and Kartar Singh. The paragraph says that ancestral immovable property is ordinarily inalienable except for necessity or with the consent of the male descendants, or, in the case of sonless proprietor, of his male collaterals.