SURJIT SINGH Vs. KAUSHALYA DEVI

JUDGEMENT

(1.) The above second appeal has been filed by the plaintiff in C.S. No. 19 of 1984 on the file of the learned Sub - Judge 1st Class, Hamirpur who lost before both the courts below and against the judgment and decree passed by the learned District, Hamirpur dated 15.10.1993 in C.A. No. 108 of 1987 whereunder the court below had chosen to confirm the judgment and decree passed by learned trial Judge dismissing the suit filed for a declaration that the sale dated 29.1.1976 and the consequent sanction of mutation on the basis of the said sale deed is bad in law. One Sohan Singh son of Hira son of Jawahar was indisputably the owner of the property in question and there is no controversy that the property in his hand was ancestral property. He sold the land measuring six Kanals more fully described in the plaint to the defendant for a consideration of Rs. 8,000/ - under the sale deed dated 29.1.1976. His grandson, through the son of Sohan Singh, by name Kashmir Singh filed a suit on 9.2.1984 challenging the alienation on the ground that the ancestral property of a Hindu Rajput is governed by caste custom in the matter of alienation and could not have been alienated and that at any rate the alienation was not for a legal necessity and without the consent of the reversioners, also. The defendant not only questioned the character of the property but justified the sale to be for legal necessity. On the above claims and counter claims the suit came to be tried and by a judgment and decree dated 9.2.1984 the suit was held to be within time, that the plaintiff was found to have been in the womb of his mother at the time of the alleged sale, that the minor plaintiff who is one of the reversioners is competent to file a suit inspite of the fact that his father, the nearest reversioner, is alive and that being an ancestral property he has a cause of action to institute a suit. So far as the question of legal necessity is concerned, binding on the family to justify the sale, the learned trial Judge under issue No. 7 dealt with the question in paras 20 and 21 elaborately adverting to the oral and documentary evidence, not only the recital contained in the document relating to the consideration and the purpose for which the amount was required but also the oral evidence in justification thereof and ultimately came to the conclusion that there was sufficient representation and that it was proved that the purpose, object and the reason for the sale was for reasons of binding legal necessity and, therefore, the suit had to fail. The learned trial Judge also observed that it is not necessary for the purchaser to prove that the money was in fact utilised for the necessary legal purpose since the only duty cast on the purchaser was to enquire about the legal necessity. Aggrieved, the plaintiff filed C.A. No. 108 of 1987. The learned first appellate Judge also had gone into the question of locus standi of the plaintiff to file the suit challenging the alienation by the grand -father when his own father, the nearest reversioner, was alive in addition to taking up for consideration the question as to whether the sale was for valid consideration and binding legal necessity. The learned first appellate Judge without proper consideration of the question relating to the locus standi of the plaintiff to file the suit, on a cursory reference to the Punjab customary law and the alleged absence of proper pleadings to come within the exception, came to the conclusion that when the nearest reversioner, father of the plaintiff has not filed a similar suit within the limitation, he shall be deemed to have consented to the alienation and that for the said reason as also for the reason that no proper averments have been made to bring the case within the exception provided in the Punjab Customary Law, the plaintiff had no locus standi to file the suit. Notwithstanding the above finding, the learned first appellate Judge also went into the question of legal necessity for the sale and though made a cryptic observation that "though there is no cogent evidence on record about the necessity for the house -hold expenses by the vendor, but it has come on record that 6 -7 months prior to the sale the marriage of Kashmir Singh the father of the plaintiff was solemnised. Therefore, it can be taken that Sohan Singh might have been under debt or required the money for his house -hold expenses, and thereby came to the conclusion that the finding of the learned trial Judge deserves to be affirmed and confirmed in this regard.

(2.) Aggrieved, the above second appeal has been filed. Mr. R.C. Bakshi, learned Counsel for the appellant, while elaborating the substantial questions of law formulated in the appeal for consideration, contended that the judgment and decree passed by the learned first appellate Judge on the ground of locus standi to challenge the sale was not correct in law, in that, there had been no consideration of the provisions contained in Himachal Pradesh (Restriction to Contest Alienation or Adoption under Custom) Act, 37 of 1976 and the Punjab Custom (Power to Contest) Act, 1920 and that the alienation made by the grand -father can be challenged by the grand -son even during the life time of the father of the grand -son, he being a coparcener entitled to a share in the property by reason of his birth and became a coparcener under the Mitakshra law which applied to the parties. On the question of binding legal necessity, the learned Counsel attempted to take advantage of the observation "though there is no cogent evidence on record about the necessity...." Per contra, the learned Counsel for the respondent -defendant relied upon and adopted the reasoning of the courts below to justify the dismissal of the suit and invited my attention to some .of the judgments rendered in similar matters. Both the learned Counsel appearing on either side invited my attention not only to the relevant portions of the judgments but also the authoritative statement of law on the subject as contained in the book Hindu Law by Mulla, 16th Edition.

(3.) I have carefully considered the submissions of the learned Counsel appearing on either side. The provisions contained in the Himachal Pradesh (Restriction to Contest Alienation or Adoption under Custom) Act, 1976 as also the Punjab Custom (Power to Contest) Act, 1920 are primarily legislations imposing restriction on the power of a dependant or a collateral for challenging an alienation of immovable property or the appointment of a heir "on the ground that such alienation or appointment are contrary to custom". This alone, in my view, is not relevant for judging the legal rights of a Hindu coparcener to challenge the alienation in violation of their rights on grounds other than the one based on any customs. The reference by the learned first appellate Judge to the Punjab Customary Law and the conclusion arrived at that the plaintiff has not pleaded or proved sufficient grounds to make the case fall within the excepted category is not only an irrelevant one but besides the real issue or point, all the more for the reason that though a challenge based on custom was also projected initially in this case, later the challenge was vis -a -vis of rights under the Hindu Law only. The essence of the coparcenery under the Mitakshra law is said to be the unity of ownership and that the ownership of the coparcenery property is said to vest in the whole body of coparceners. But the incidents of coparcenery are stated to be : (a) The lineal male descendant of a person upto the third generation acquires a birth ownership of the ancestral property of such person; (b) That such descendants can at any time work out their right by asking their partition; (c) That till partition, each member has got ownership extending over the property jointly with the rest; (d) That as a result of such co -ownership the possession and enjoyment of the property is common; (e) That no alienation of the property is possible unless it is for necessity without the concurrence of the coparceners; and (f) That the interest of the deceased members goes on his death to the surviving coparcener.