GURBACHAN SINGH Vs. NARAINI

JUDGEMENT

(1.) THIS appeal is brought by the plaintiffs against a judgment of a learned Single Judge by which ne dismissed the plaintiffs' suit. The alienor in this case was the same, as that in -- 'gurbachan singn v. Mst. Jaswant Kaur', L. P. A. No. 42 of 1948. Her husband Vir Singh died in October 1929. On 25th October 1939, she sold the land in dispute to the widows of Mal Singh, Mst. Naraini and Mst. Bhani for Rs. 6,000. Mst. Bhani is dead and the plaintiffs Gurbachan Singh and har-bhajan Singh brought a suit challenging this, alienation on 8th July 1944. The consideration in this case was Rs. 6,000 and it has been held both by the trial Court as well as by the learned district Judge that the whole at the consideration is proved but the necessity is established to the extent of Rs. 5,000. The property in this case has been held to be non-ancestral. The learned judge upheld the sale relying on the Riwaj-i-am of 1940 in preference to the previous riwaj-i-am of 1914. I have in the connected case L. P. A. No. 42 of 1948 discussed this riwaj-i-am and it is not necessary to deal with it again. The case will be governed by the riwaj-i-am of 1914 and therefore any alienation made by a widow which is not proved to be for necessity cannot be upheld. In this case although the learned Judge remanded the case under order 40, Rule 25, Civil P. C. and the finding after the remand is that the land is non-ancestral, the question is not really of much importance because the power to contest the alienation made by a widow is the same in both cases except in regard to the degree of relationship.

(2.) THE question then arises whether this sale can be upheld because of the fact that out of Rs. 6,000 which was the consideration money Rs. 5,000 have been held to be for necessity. It has been held in -- 'sri Krishnan Das v, Nathu Ram', 49 All 149 (PC), that a sale of joint property should not be set aside merely because part of the proceeds, which is not a small part, is not proved to have been applied to purposes of necessity. The real question to be considered is whether the sale itself was justified by necessity. The same rule was laid down by their lordships in -- 'ram Sundar Lal v. Lachmi Narain', 51 All 430 (PC) and in -- 'niamat Rai v. Din dayal', 8 Lah 597 (PC ). The law with regard to custom is the same and it was held in -- 'maryam v. Sant Singh', AIR 1931 Lah 394, that where a part of land was sold by the elder of the two joint brothers and consideration and necessity were proved for over half the amount of the sale one-fourth or even one-third less than the total amount might be considered as justifying the maintenance of the transfer, but not one-half. The law as to widows is the same. In -- 'balwant singh v. Mt. Kesar Kaur', 15 Lah 236, it was held that assuming that the custom restricting alienations by a widow was applicable, the real question to be considered was whether the sale, itself was justified by necessity. This was a case of a mortgage by the husband which was paid off later on by the widow and the sale was upheld. I am therefore of the opinion that this sale should be upheld on the ground that necessity has been proved to the extent of Rs. 5,000/- out of Rs. 6,000/ -. I would therefore dismiss this appeal though for reasons different than those given by the learned Single Judge. The defendants will have their costs in this Court and in the Courts below.