KARAM ELAHEE CHAUHAN, J.-Mohni (defendant No. 12 in the suit) (vendor) sold an area of 117 kanals 7 marlas (which is the land in dispute) situated in village Chah Chandu, Tehsil and district Sheikhopura, lay means of a registered sale deed doted 26-3-1953 in favdour of (1) A.I Muhammad
(2) Noor Muhammad ; (5) Wali Muhammad and (4) Yaqoob (defendant Nos. 1 to 4) (hereinafter called the original vendee) for a sum of Rs.6,000. The original vendees later on sold that very land on 20-1-1954 to defendants Nos. 5 to 11(hereinafter called the subsequent vendees) This transaction was challenged by (plaintiff) (Minor through Mst. Ghulam Fatima real mother) nephew of the vendor by means of a salt in which he prayed for a declaration that the aforesaid alienation was without consideration and without legal necessity wording to the custom by which the alienor was bound and that the same would not affect his reversionary rights after the death of the vendor. The suit was contested by the original as well as the subsequent vendees sad it was pleaded that the sale was made as an act of good management. The learned trial Court, on the pleadings of the parties--- framed following six issues :
(1) Whether the plaintiff has no locus standi to institute this suit in view of the preliminary objection raised in the written statement?
(2) Whether the alienor was governed under custom under which he had limited power of alienation of the suit land?
(3) Whether the suit land is ancestral qua the plaintiff?
(4) Whether the sale was made with consideration and for legal necessity'
(5) Whether the suit is collusive?
(6) Relief On Issue No. I it was held that the plaintiff had a locus standi to file a suit. On Issue No. 2 it was bald that the vendor was governed in the matter of alienation by custom and consequently had limited power of alianation. On Issue No. 3 it was held that the land was ancestral qua the plaintiff. On Issue No. 4 it was hold that payment of total consideration was not proved and what was actually proved wits payment of Rs. 4,050 before the Sub-Registrar and a payment of Its. 800 in connection with an earlier existing mortgage. In this way, the consideration was held to have been proved to the extent of Rs. 4,850. In other words for the balance of the amount of Re. 1,150 the consideration was held as not to have been proved. As regards the legal necessity, it was held that the sale was in fact an act of good management, inasmuch as, the vendor wanted to settle in village Malku which was the village of his in laws. After the sale, it was found, that the vendor had actually on 4- 4-1956 got some aria in the form of a mortgage in another village known as Kotla Panju Beg. Issue No. 5 was answered in the negative As a result of the above findings, the snit of the plaintiff era died without costs on 11-7-1961.
The plaintiff filed an appeal which vas accepted by the learned Additional District Judge, Sheikhupura, on 8-2-1965. The learned Additional District Judge held that the sale in dispute could not, on the facts and In the circumstances of the case be held to be an act of good management.
His other finding was that the subsequent mortgage which urea obtained by the vendor in village Kotla Panju Beg was not obtained with the sale price of the land in dispute. The original as well as the subsequent vendess have come up in second appeal to this Court.
2. The first point argued by the learned counsel for the defendants. Appellants was that the suit of the minor plaintiff was barred by taw of limitation. The precise submission was that Shera, father of the minor plaintiff Karamat, was alive at the time when Mohni brother of Shera, and uncle of the plaintiff, made the sale. He was also alive at the time of the institution of the snit on 17-10-1959. It was argued that in declaratory suits of the present kind, if a male reversioner, who could have instituted a suit, was alive at the time of the alienation did not file a declaratory suit and the period of limitation had passed. Then the suit of a minor son of that reversioner was also barred by limitation. Reliance for this proposition was placed on Dad v. Lai and others (AIR 1925 Lah. 24)
(Martineau and Moti Sagar. JJ.) where, without giving any reasons, it was laid down that a snit by a minor reversioner to contest unnecessary alienation, brought at a time, when it brought by minor's father it would be barred under Punjab Limitation Act I of 1920 is also barred. Somewhat similar view was expressed in Chiragh Din and others v. Abdullah and others (AIR I925 Lah. 654)
(Broadway and Jay W, JJ.) where it was held that the right to sue for a declaratory decree is vested in the whole body of reversioners in existence at the time of alienation jointly and severally and time begins to run simultaneously against them ail and so subsequent disability stops it. This latter case, however, pertains to a plaintiff who was born subsequent to the date of sale and from that point of view, nosy not be relevant on tactual piano, except of course for the general proposition hereinbefore mentioned. Same view was expressed in Gajinder Singh and another v. Balwant and kaur (AIR 1933 Lah. 524) Addison and Bhide, JJ.) and was followed In Mattu v. Jati and another (AIR 1937 Lah. 485) (Jai Lal, J.) However, in my respectful opinion, the view expressed in. The aforesaid four cases is not the correct law on the subject In Hari Ram v. Sali and others (AIR 1934 Lah. 968)
(Young, C. J. And Din Muhammad, J), it Was laid down that it a reversioner and his minor sons are alive at the date of (which was involved in that case) an alleged adoption, they have separate rights both derived from the common ancestor. The right of the father bring barred does not bar the right of the son if he be a minor. The son will have the advantage under the Limitation Act of adding the period of his minority to the limitation period. In this case of Chirag Din and others v.
Abdullah and others was clearly distinguished and Sunder v. Salig Ram ((1911) 26 P R 1911) eau relied upon, To the same strata is Sarwant Singh and mother v. Mst. Basanti and others (AIR 1934 Lah.
908) (Young, C. Jand Rangi Lal, J.) where it was laid down that under the customary law every minor, who was in existence at the time of alienation, which is being challenged by him, can bring a suit within three years of attaining majority. Therefore. Where the plaintiffs are still minor they have clearly ample time for bringing their suits and no objection on the ground of limitation can be taken to their soft. For other cases on the subject see Wali Chand and another v. Punjab Singh arid another (AIR 1932 Lah. 39), Milkha Singh v. Saba Singh and another (AIR 1937 Lah. 477) and Hoes Singh and others v. Aziz and others (AIR 1938 Lah. 1). In Jati khubi v: Matu and another (AIR 1937 Lah. 653) (Tek Chand and Abdul Rashid, JJ.), the case of Chiragh Din and others v. Abdullah and others was distinguished from and Motu v. Jati and another eau reversed. The mistake in the tour eases reported in Dad v. Lal and others ; Chiragh Din and others v. Abdullah and others Gajbindar Singh and another v. Balwant Singh and others and Matu v. Jati and another was that they probably considered the right to challenge an alienation u a joint right, with the result that if it was barred quo oat reversioner, it would be barred qua other reversioner as well. Hut this theory is not correct. Each reversioner, it may be pointed out, has no independent sight, which vests in him by virtue of his won With the common ancestor, It is not necessary to multiply any farther the one-in on the subject because, this controversy should be considered to have been set at rest by Ilahi Bakhsh through Munshi khan v. Umar Bakhsh under guardianship of Mst. Aishan avid others (A.I R 1944 Lah. 409), where the resin ease of the contrary view, namely, Gajendar Singh and another v.
Balwant kaur and others was expressly overruled and it was held that it a presumptive reversioners has failed to sue, a remote reversioner, who happens to be a minor at the time of the alienation, can avail himself of the befit of section 6 of the Limitation Act 1903, and that section 9 does not home into operation in such a case. Time no doubt Will start running both against the major and minor reversioners but they will have their own periods of limitation and in no case will the one provided for a minor reversioner be affected by that of a major reversioner. Whether of equal or of a different degree. Tatting up a very charitable and generous view, it appears that this escaped the notice of the learned counsel for the appellants and probably for that reason he cited the obsolete law. In Jwahar Singh v. Udai Parakash (AIR 1926 P C 16) it was laid down by their Lordships that a suit brought by the younger son within three years of attaining majority to avoid the sale is not barred by limitation although the eldest son attained his majority more than three years earlier and had taken no steps to question the alienation. Also see Gita Ara Hari Chand Gujjar v: Mangtu Kalu Gujar cued others (A. I R 1951 Pepau 38) which too is to the same strain. In the face of what has been, written above, the objection a to bar of oak of the minor plaintiff is hereby rejected.
3. The next point argued by the, learned counsel for the appellants was that the sale in dispute was for a legal necessity, inasmuch as, it was au act of good management on the part of the vendor.
And the finding; of the learned Additional District Judge, to the contrary, was not correct. He submitted that the land in dispute was 'barren' or "not so fertile', from which the vendor was not having any substantial income. He. Therefore, decided to sell this land and acquire some other land in another village Malku, which was the village of his in-laws, Consequently with the sale price of the land in dispute the vendor infant got an area of about 85/36 kanals on mortgage in village Kotla Panju Beg which was near village Malta (the village of vendor's in-laws) where the vendor wanted otherwise also to settle down. The contention has no merit. It is to be mentioned that (i) there is no recital of the aforesaid particular necessity in the form of an act of good management in the relevant sale deed Bah. D/2 dated 6-3-1953 ; (ii) these facts were not pleaded even in the written statement of the defendants(iii) it was only after the evidence of the plaintiff was closed that the defendants thought of these particulars ; (iv) the sale in dispute took place on 6-3-1953 whereas the mortgage aforesaid was taken on 4.4-1956 ride Exh. P/2, i.e. About three years after the impugned sale which adversely reflects upon existence of any pressing necessity in the year 1953
(r) it was suggested that the mortgage was takers from the sale money received by the vendor from the original vendees but this does not conclusively stand established on the present record, especially, because site p the present sale the vendor sold another area for Its. 12,000 vide sale deed Exh. P/1 on 7-2-1956 whereafter mortgage (Exh. P/2 was taken on 4-4-193 which suggests that it was the later sale money which was utilised in mortgage particularly when the mortgage money and the sale price are of the same amount, namely, Re,. 12,000 which is a very significant coincidence ; (vi) in subsequent sale deed Exh. P/1 dated 7-2-1956 mention of earlier sale is mach but again there is no recital of any necessity or, as a matter of facto of any as of good management ;(vii) and, last but not the least, on the facts and in the peculiar circumstances of this case. Apparently getting of mortgagee rights for a period of only four years after selling proprietary rights for good cannot be held to be act of good management, unless some very strong and cogent proof compelling resort to such an adventure was led on the subject, which in view of what has been observed above does not exist in this case. The same was the view of the learned Additional District Judge. He had the jurisdiction to take whatever view he liked while appreciating the evidence and if his finding on the subject is against the vendees, there is no justification to interfere with the same in the course of this second appeal. I especially when the reasons given by him are also-Quite cogent and supported by the attending evidence and circumstances. The point raised, therefore, is hereby repelled.
4. Learned counsel for the appellants wanted to argue that the legal representatives of Sardar Muhammad, one of the defendants who had died on 28-9-1962, were not brought on record by the plaintiff` in the lower appellate Court in time but when his attention was drawn to various applications filed by those legal representatives themselves showing that they had been brought, or come--- on record in time, the learned counsel did not press this point.
5. An attempt was made to challenge ancestral nature of land of the locus standi of the plaintiff to file tine present suit. However, when the learned counsel for the appellants was confronted with pare. 8 of the judgment of the learned Additional District Judge where it was stated that the defendants had not contested findings of the trial Court in favour of the plaintiff on Issues Nos. 1, 3 and 5, Warned counsel for the appellants found difficult to press the objection any further.
6. The last point argued was that there was no proof that the vendor in the matter of alienation was governed by custom (Issue No. 2). To be more precise, learned counsel submitted that there was no proof that Mohni, vendor, got the land in dispute (a) through devolution by succession from a common ancestor ; (b) under custom and (c) whether the tribe of the vendor namely, Jots of Sheikhupura District were governed by custom in matters of succession and alienation. The plea has no merit. The learned Additional District Judge has held that excerpt Exh. P/3 showed that the vendor got the land in dispute by inheritance. It has not been shown to me that this finding is incorrect and nor any reference has been made to Exh. P/3 by learned counsel for the appellants to point out any misreading or any other defect in that respect. On this point the finding of the Warned trial Court was also against the defendants. No reasons have been advanced to upset that concurrent finding except just raising a ant without substantiating It. Mohni, as is self evident from description of the vendor in the sale deed Exh: D/2 and Exh. P/1 is a Jet (Virak) (also sometimes written as What). On page 93 of "A Digest of Customary Law in the Punjab" by Sir W. H. Rattigan (Thirteenth Edition), revised by Om Paraksth Aggarwala4 it is stated that "Juts form an essentially agricultural tribe and are almost universally governed by custom". It may further be pointed out that areas of Sheikhupura District were earlier parts of Lahore and Gujranwala Districts till Sheikhupura District was carved out. In the Customary Law of the Lahore District by G. C. Walker (1894) it is stated that Jats were consulted at the time of the compiling of that Rivaj-i-Am. Similarly in Customary Law of (Gujranwala District compiled by Dalip Singh (1914) Viraks (Jars) were also so consulted. It has been laid down by their Lordships of the Supreme Court in Mst. Shazadan Bibi and others v. Amir Hussain Shah (PLD 1956 SC (Pak) 227), at page 232 that : "Where a tribe was consulted at the time of the preparation of the Riwaj-i-Am, an initial presumption arises that a member of that tribe is governed by custom and not by his personal law, and the onus to show that he has ceased to be governed by custom lies on those alleging the same. This is the ratio decidendi of a long string of authorities e.g. Mst. Parvin Kumari v Gokal Chand Rala Ram AIR 1949 E, Ph. 35, Muhammad yousuf v. Muhammad Abdullah AIR 1944 Lah. 117 and Ata Mohammad v. Muhammad Shafi AIR 1944 Lah. 12l, The value that has to be attached to the entries to the Riwaj-i-Am is now no longer in doubt . In Beg v. Allah Ditta 45 P R 1917) it was held that the statement in a Riwaj-I-Am, which is a Public recordprepared by a public officer in the discharge of his duties and under Government Rules are a strong piece of evidence even without instances, that their contents are true and must be accepted unless rebutted. Here again to start with, a presumption would arise that the custom of a tribe is whit ka described in the Riwa-i-Am. This dictum was re-affirmed in Vaishno Ditti v. Rameshri I L R 10 Lah. 86.
7. No other point was argued by the learned counsel for the appellants.
8. The result is that this appeal has no merit and a dismissed with costs throughout.