Muhammad and Shahamand respondents Nos. 3 and 4 were the owners of the suit lard. By a registered sale deed (Exh. D. I/A) they sold away this land to the appellant Ahmad Bakhsh.
Respondents Nos. 1 and 2, who are admittedly the sons of a brother of the candor filed a usual declaratory suit alleging that the suit land being ancestral, vendor being governed by custom in the matter of alienation and the sale being without consideration andvalid necessity would tot effect their rights of inheritance after the death of the vendors. It vas also pleaded that Shahamand, one of the vendors had no issue and the sons of Muhammad the other vendor had colluded with the vendee in that they had not challenged the disputed sale. The vendee- appellant contested the suit. He pleaded that the plaintiff respondents Nos. 1 and 2 have no locus standi to bring the suit as their father fn his life time did not file any suit challenging the sale in question; the sale was for consideration and valid necessity as the vendor with the sale price wanted to purchase some other land which constituted an act of good management. It was finally alleged that the vendee-appellant before entering into the transaction had made necessary inquiries as to the valid requirement of the vendors in milking the alienation. Number of issues were framed, but, issues, relevant to the disposal of the present appeal are as to the legal necessity, which are to the following effect;---- - "(5) On proof of the custom as alleged, was the sale for consideration and legal necessity ?
(6) Whether the alienation constitutes an act of good management ?
If so, what is its effect ?"
2. The learned trial Court by its judgment dated 16-11-1964 dismissed the suit holding that the sale in dispute was for consideration and legal necessity; and that the vendors with tire sale price had in fact, purchased some other suitable land and, therefore, it was an act of good management, ors the part of the vendors. The learned first appellate Court reversed the finding of the learned trial Court on both the issues and decreed the suit. The vendee-appellant has called in question the judgment and decree of the learned first appellate Court.
3. The learned counsel appearing for the respondents has raised a preliminary point as to the competency of this appeal. He has argued that the finding of the learned first appellate Court, that the disputed sale was not for legal necessity and did not constitute an act of good management, is essentially one of fact and cannot be assailed in second appeal. The learned counsel, however, appearing for the appellant has argued that the question whether a transaction on proved facts is for legal necessity and an act of good management on the part of the vendors, is one question of law and can be raised in the second appeal. He has referred to Amir and 8 others v. Muhammad Iqbal and 4 others (PLD 1975 Lah. 101) wherein the learned Judge observed that the finding regarding legal necessity is a question of law. The objection of the learned counsel for the respondents has no merit and the same is, therefore, overruled.
4. The facts regarding the disputed sale, as have been brought out by the parties are that the same was effected by registered sale deed (Exh. DI/A). The total sale price was paid before the Registrar at the time of the registration of the document. There is no relationship between the vendors and the vendee-appellant. There was, therefore, no doubt as to the payment of the consideration. The vendee had made inquiry and found that the vendors wanted to sell the suit land with a view to purchase some other suitable land. On the day when the disputed sale took place, the vendors alongwith two others, in fact, purchased another piece of land measuring 110 kanals and 15 marlas for a consideration of Re.
3,000 from Mst. Alaf Bibi under a sale deed (Exh. D. 3). A mutation was also sanctioned in favour of Inter alia the vendors, on the basis of the second sale. There was nothing to show that the second transaction was in any manner fictitious. One Hafizullah, later filed a suit to pre-empt the sale in favour of the vendors which was decreed. This established that the land purchased by the vendors from Mst. Alaf Bibi had not been returned to her. The area of the share of the vendors in the land purchased was almost the same as that of the sale in dispute. This land, it is evident, is nearer to the village abadi. The vendors had not only been able to purchase the area almost equivalent to the size of the area sold and nearer to the village abadi, but also saved Re 1,000 in the bargain. The disputed transaction, therefore, was also for legal necessity and constituted an act of good management. The learned trial Court decided the two relevant issues on these facts and dismissed the suit.
5. The learned first appellate Court did not dispute these facts. It has, however, taken the view that out of the sale price only a sum of Re. 1,500 has been shown to have been utilised in making the purchase of new piece of land and the remaining Re. 1,000 have not been accounted for. The land purchased by the vendors was pre-empted and it went out of their hands. It has not been shown as to how the amount of Rs. 1,500 received from the pre-emptor war utilised. The view, therefore, that was taken was that the total amount has been spent away by the vendors and that nothing was brought on record to show that the same was used for the benefit of the family. It was, therefore, concluded that the disputed sale by the vendors respondents did not constitute an act of good management and no legal necessity has been shown for selling the ancestral land. The decree of the learned trial Court was reversed and the suit decreed.
6. Learned counsel appearing for the appellant has argued that the learned first appellate Court not having differed with the findings of fact arrived at by the learned trial Court, was not justified in holding that the sale was not for legal necessity or that the transaction did not constitute an act of good management. He criticised the view of the learned first appellate Court that it was the duty of the appellant to prove that the amount of Rs. 1,500 was spent for the benefit of the family. He argued that in this respect all that the alienee had to do was to enquire about the nature of the necessity explained at the time of the sale and satisfied himself as to its genuineness and legality but he was under no obligation to establish that the amount received by the alienors was actually spent on the ostensible necessity stated at the time of sale. Even if, subsequently, the amount is not applied by the alienors for the purpose the land was sold, the alienee is not to surer.
He relied on Raj Kumar and another v. Mukand Lal and others (AIR 1935 Lah. 344) and Lala Atma Ram v. Thakur Badhu Singh and another (AIR 1938 P C 77). Their Lordships of the Judicial Committee have observed at pages 79 and 80 of the report;-- "Now, it is a well-established rule that the onus lies on the alienee to prove either that there was legal necessity in fact which would justify the alienation, or that he made a proper and bona fide enquiry into the alleged necessity and satisfied himself as to the existence of such necessity. If he fails to prove that there was a necessity intact, alienation may still be upheld if he proves that he made enquiry as to the existence of the alleged necessity, and that the facts represented to him were such as, if true, would have justified the transaction, If he discharges this burden, he is not bound to see that the mosey paid by him is actually applied by the alienor to meet the necessity."
7. The view of the learned first appellate Court that the appellant alienee should have shown that the amount of Rs. 1,500 was spent for the benefit of the family is not correct. The appellant-alienee has not only made reasonable enquiries as to the necessity explained, the bona fide of the necessity was established by the latter conduct of the alienors when they, in fact, purchased another piece of land on the same day. The same argument will apply if a part of the consideration was not spent on the necessity explained. The duty of the alienee dealing with a male alienor is restricted to make enquiries as to the genuineness of the necessity and he is not to follow the money in the hands of the alienor to find out if the same has. In fact, been spent for the necessity shown. It has thus been held in Balwant Singh v. Mat. Sardarni Kesar Kaur (AIR 1934 Lah. 81) that if the purchaser paid a fair price for the property sold and made out enquiry as to the necessity for the sale, the mere fact that a part of the price is not proved to have been applied to necessary purposes would not invalidate the sale.
8. Learned counsel appearing for the respondents referred to Ch. Ghulam Muhammad and others v. Riasat A.I and others (PLD 1954 FC 270) to argue, that representation made by the vendors to vendees in the shape of recitals in the deed of sale are not by themselves proof of the fact that the sale was an act of good management. According to the customary law, 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 substantial income. Vendees could only retain the land if they had succeeded in proving that it was a prudent act on the part of the vendors and an act of good management in the sense that it would benefit not only the parties to the transaction but also those who had some residuary interest in it. The onus of proving this was on the vendees. In particular he relied on the rule laid down by their Lordships at page 277 of this judgment which runs as follows ;--- "The expression 'act of good management' has not been defined nor is it susceptible of a precise definition. Broadly speaking, it would mean, taking such order with the ancestral property, as may be conducive to greater benefit or advantage to the alieror and the existing body of reversioners and not done as an act of reckless extravagance or waste or with a view to injure the reversiouers' interest. No hard and fast rule can be laid down. Is must vary with the circumstances of each case.
The position and status of the vendor ; his means of income ; the encumbrance upon the land, his ability or capacity to manage or live in the locality etc. Etc. Are some of then relevant factors to be considered in deciding whether a particular transaction is or is not "an act of good management."
9. The rule laid down, however, is not applicable to the facts of the present case. The alienors in the instant case, with a part of the sale price had purchased another piece of land almost of the same size nearer to the village abadi The vendee, therefore in the instant case made reasonable inquiry as to the existence of the necessity which was later established when the alienors utilised the amount received in purchasing some other land. The fact that the alienor hat the land in a pre- emption suit will not affect the reasonableness of the inquiry. The view taken by the learned first appellate Court cannot be, therefore, sustained. I accept this appeal, setaside the judgment and decree of the learned first appellate Court and restore that of the trial Court by which the suit filed by the respondents was dismissed. The parties are left to bear their own costs.