This second appeal has been filed by the appellant from the judgment and decree dated 26-5- 1970, passed , by the learned District Judge, Sialkot whereby his first appeal against the judgment and decree of the learned Civil Judge, dismissing his suit, could not succeed.
2. Briefly put, the facts of this case are that land measuring 11 kanals and 7 marlas situate in Mohallah Hajipura, Sialkot City, was sold by respondent No. 5, in favour of respondents Nos. 1 to 4 through sale deed, dated 5-5-1053, for a consideration of Rs. 13,000. The appellant who is son of the alienor and was minor at the time of the sale, on 4-12-1963, filed a suit for declaration that ..The land was ancestral qua the appellant and respondent No. 5 and that they were governed by custom, whereunder the ancestral land could not be alienated without consideration and legal necessity. The declaration sought was that the sale will not be binding on the appellant, after the death of the aliener.
3. The suit was contested by respondents Nos. 1 to 4, and a number of pleas raised by them. The learned Civil Judge held that the land was ancestral and the appellant was the son of the vendor (respondent No. 5) ; that the appellant and respondent No. 5 were governed by custom under which the ancestral land could not be alienated without legal necessity. He found that the land which measured 11 kanals and 7 marlas only, comprised the entire holding of respondent No. 5.
Before its sale the land was under mortgage for Rs. 3,000. The alienor had to pay the mortgage money and so also to clear a debt of Rs. 2,000 which he owed- to one Khair Din. The learned Civil Judge held that the land was sold to clear these liabilities and for the purposes of engaging in trade. The sale was held to have been made for consideration and legal necessity. As a result of these findings, the learned Civil Judge dismissed the suit on2X5-1969.
4. On appeal filed by the appellant, the learned District Judge held that the alienor was doing business in the name of Muhammad Abduilah Nagra and Sons which indicated that the business was run by him for the benefit of the son also. He concurred with the Civil Judge that the alienor was faced with necessity of redeeming mortgage and to defray the debts. The fact that the appellant did not level. Any allegation against the alienor that he squandered the sale price, was a factor taken into consideration by the District Judge in awarding the decision on the question of legal necessity in favour of the respondents. The learned District Judge, thus, also held that the sale was for legal necessity and dismissed the appeal on 26-5-1970.
5. That facts admitted or proved on the record are that the alienor is a Jat Nagra by caste, which is predominantly an agricultural tribe and follows custom whereunder the male proprietor cannot alienate his ancestral land without legal necessity. The suit land devolved on the alienor as ancestral property. He did not own any land other than the suit land which before the sale in dispute was mortgaged for Rs. 3,000 in favour of one Nawab Din vide a registered mortgage deed, dated 5-1-1952 (Exh. D.6). In addition to this, the alienor was under debt, -to one Khair Din to the extent of Rs. 2,000 evidenced by a promissory note. This is borne out from Exb. D. 5, which is copy of the entries made in the petition writer's register, indicating that on 13-4-1953, the alienor executed a promissory note for Rs. 2,000 in favour of Khair Din. It transpires that instead of pursuing agriculture as means of his livelihood, the alienor bad entered into trade as his vocation in life. This is evident from the averments made in the sale deed dated 5-5-1953, the mortgage deed dated 5-1-1952.
The copy of the Birth Register, Exh. P. 1, bearing an entry dated 13-5-1946, . Relating to the appellant's birth ; the father's name and profession, recorded therein also proves that the alienor had adopted "sports business" as his profession. The alienor's Bank Account Statement, Exh. D. 2, and the account opening form, Exh. D. 1, further establishes that the business was carried on by him under the name of "Muhammad Abdullah Nagra and Sons". Perusal of the sale deed in question, manifestly creates an impression that a representation was intended to be made to the vendees that the vendor required the money for redemption of mortgage, payment of debts and investment in business, with these facts, in view the only point requiring determination in this appeal is, as to whether the sale was made by respondent No. 5 for consideration and legal necessity.
6. I have gone through the record. The learned District Judge, rightly observed that on appellant's. Part there was no allegation attributing the sale to an act of reckless extravagance or wanton waste by the vendor much less the proof thereof. The learned counsel for the appellant has argued that the question of legal necessity is a question of law and that, therefore, despite the concurrent findings of the two Courts below, against the appellant on this issue, the propriety of such adjudication can be assailed in second appeal and referred to Nfaz Ali v. Yasin and others (P L D1966 Pesh. 137) in aid of his submissions. He further urged that even if the purpose for making the sale, disclosed in the sale deed, was proved there was no warrant for holding that the sale was for valid necessity. His further submission was that the redemption of mortgage and payment of debt of Rs. 2,000 comprised only a small portion of the sale price and the major portion thereof was claimed to have been invested in business. In such circumstances, it was argued, the sale could not be upheld. Reliance was placed on Bhan Singh v. Ram Singh and others (AIR 1931 Lab. 599) and Y'aryam and others v. Sanat Singh and others (AIR 1931 Lab. 394). It was also argued that alienation of the ancestral land for realising funds to be invested in trade, by an agriculturist is not permissible under custom and the learned counsel cited Santa Singh v. Waryam Singh (19 P R 1915), Ch. Ghulam Muhammad v. Riasat Ali arid others (PLD 1954 FC 270), in support of this contention.
7. The learned counsel for the respondents, on the other hand contended that the two Courts below have given a concurrent finding that the legal necessity existed and that this being a finding of fact, could not be attacked in the second appeal. He also relied on Niaz Ali's case referred to by the appellant's learned counsel. The precise observations made in this report relevant to the controversy are :-- "No doubt, the question of legal necessity is essentially a question of law, but the fact whether such legal necessity did actually exist or not ; is a question of fact."
It is, therefore, to be seen if the sale of the ancestral land for the purposes of running business with its sale proceeds can be recognized as valid under the customary law. Although the two Courts as a matter of fact found that the alienor had to pay off the mortgage, clear the debt and required the funds for trade, yet it is to be decided if the facts found fulfil the essential legal requirements of necessity. In this view of the matter, the question that the sale was really made by the alienor to meet the item of expenditure mentioned in the sale deed, will be a question of fact but whether these heads constitute legal necessity will give rise to a question of~,, law which can be examined in second appeal. It is, therefore, not open to the appellant to reagitate the point that the need for raising money for the purposes of clearance of debt, redemption of mortgage did not exist. The recital in the sale deed as to the purpose for which the money was needed by the vendor, was an evidence of representation made to the respondents which they justifiably believed. They have also by independent evidence[ conclusively established that the vendor was really countenanced with they necessity of meeting this expenditure. In such like cases the vendee is not concerned with the subsequent application of the money by the vendor.
8. The debts witnessed by Exhs. D. 5 and D. 6, are prior in time and quite independent of the transaction sought to be declared ineffective on the right of the reversioners. These debts were not shown to have been incurred for any immoral purposes or in excess of the requirements of th .
Vendor. The absence of allegation of profligation, waste and extravaganc against the vendor is also not without significance. I feel that these tw items of debt can safely be categorised as "just and antecedent dept". One of the basic rulings elucidating this expression is Devi Ditta and others v.
Saudagar Singh arid others (65 P R 1900) followed in Muhammad Tahfr Raza Khan v. Liaqat Hayat Khan (PLD 1966 Lab. 151), cited by the respondents' learned counsel, which fully apply to this case.
Reference may also be made to Khamafia v. Sits Singh (AIR 1939 Lab. 182),wherein sale of ancestral property to pay off the previous mortgage washeld one for necessity. In view of long line of precedents on this subject.. It is well established that payment of such debts is a necessity and binding on~a the estate in the hands of the male proprietor.
9. The learned counsel for the appellant has not seriously disputed the propriety of the debts witnessed by Exh. D. 5 and Exh. D. 6, but his submission is that the proportion of the amount of such "just and antecedent debts" is too sma ll to the rest of the sale price said to have been required by the alienor for business purposes and according to him as disposal of the ancestral land for trading is not a legal necessity, the spending of paltry sum on recognised legal necessity will not immune the transaction from attack. The two rulings referred to above, relied upon by the appellant's learned counsel, in this context, do support this view. The moot point encompassing the controversy, thus is the validity of the sale of land with the object of entering into trade. In Santa Singh v. Waryam Singh, the alienor a Jat by caste and lambardar of the village alienated a part of his ancestral land to enter into shopkeeping business. The ground which weighed with the learned Judges for holding the transaction as not one far legal necessity, was that the conversion of an agriculturist Jat into shopkeeper was considered repugnant to popular village feeling by them and it was held : "We have no doubt that village custom would not look with favour upon the conversion of a Jat agriculturist into shopkeeping trader I and would not countenance an alienation of ancestral land in order to enable such agriculturist to carry on the business of his shop. ",
10. It is understandable that these observations pertain to the peculiar facts of that case and were not intended to be the exposition of legal necessity under the customary law universally applicable to all cases. In the instant case the alienor was in the trade of sports long before the impugned sale. The small piece of the suit land comprised his entire holding and by no means could have provided as a means of subsistence for the alienor. The land was already encumbered. Keeping in view the business name, under which the alienor worked, the possibility that the business enured for the benefit of his son, i.e., the appellant, could not be ruled out. The observations of the learned District Judge in this behalf are thus not ill founded. Santa Singh's case was considered by another Division Bench in Muhammad Hassan-utl Din v. Saif Ali Shah (74 I C 451) and the learned Judges held that "We do not think that the Division Bench in 1915 case intended to lay down that under no circumstances, could a member of an agricultural tribe alienate ancestral property for the purposes of engaging in trade."
In this case the sale of a "serai" for the purposes of trade, by an agriculturist who owned a very small piece of land which was not suffcient to enable him to make out his livelihood as an agriculturist could not be successfully challenged for want of necessity. It is to be noticed that because of the orientation of the social and economic conditions in the country, the pattern of village life is under rapid change and the agriculturists now do supplement their income by other means including cottage industry. The instant case is, therefore, distinguishable and is not hit by the ratio of "Santa Singh v. Waryam Singh". In GMdam Muhammad v. Riasat Ali, referred by the appellant's learned counsta, it has been laid down ". . It is not open to an agriculturist to sell away his ancestral holding in the vague hope of investing the money in such a manner that it may bring any substantial income."
But the alienor in the instant case was entrenched in trade even at the time of the appellant's birth and thus could not be treated to have embarked upon an obscure business undertaking by selling his ancestral holdings. This precedent tob does not help the appellant.
12. As the alienor's engagement in trade has also been held a valid purpose for the sale of the suit land, nothing turns upon the smallness of diversion of the sale price for one purpose or another.
13. This appeal, therefore, necessarily fails and the judgment and decree of the learned First Appellate Court, are armed. Parties to bear their own costs.