' KARAM ELAINE CHAUHAN, J.-Mohni (defendant No, 12 in the suit) (vendor) sold an area of 417 karma 7 marks (which is the land in dispute) situated in village alai' Chandu, Tehsil and District Sheikhupura, by means of a registered sale deed dated 26-3-1953, in favour of (1) Atif Muhammad ;
(2) Nom Muhammad I (3) Wall Muhammad and (4) Yaqoob (defendants Nos. 1 to 4) (hereinafter called the original vendee') for a sum of Re. 6,000. The original vends.' late/ en sold that very land on 29-1-1954 to defendants Nos. 5 to 11 (hereinafter mined the subsequent vendee's). This transaction US challenged b7 liarantit (plaintiff) (Wino! Through Ms, Ghulam Fatima real mother) nephew of the vendor to means of a suit in which he prayed for a declaration that the aforesaid alienation was without consideration and without legal necessity according to the custom by which the Manor was bound and that the same would not affect his reversionary rights after the death of the vendor. The snit was contested by the original as well as the subsequent vendees and it was pleaded that the sale was made u 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 stands 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, 1 it was held that the plaintiff had a locus mama to file a suit. On Issue No, 2 it was held that the vendor was governed in the matter of alienation by custom and consequently had limited power of alienation. On Issue No, 3 it was held that the land was ancestral qua the plaintiff.
On Issue No, 4 it was held that payment of total consideration was not proved and what was actually proved was payment of Rs, 4,050 before the Sub-Registrar and a payment of Rs, 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 Rs, 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 pod management, inasmuch as, the vendor wanted to settle in village Medco which was the village of his in laws. After the sale, it was found, that the vendor had actually on 441956 got some art 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 suit of the plaintiff was decreed without costs on 11-7-1961.
' The plaintiff filed an appeal which was 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 was obtained by the vendor in village Kotla Panju Beg was not obtained with the Isle price of the land in dispute. The original as well as the subsequent vendees 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 law of limitation. The precise submission was that Share, father of the minor plaintiff Karamat, was alive at the time when Mohni, brother of Sher and uncle of the plaintiff, made the sale. He was also alive at the time of the institution of the suit 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 alienate, 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 (1) (Martineau and Mod Sager, JJ.) where, without giving any reasons, it was laid down that a suit by a minor reversioner to count unnecessary alienation, brought at a time, when if (1) AIR 1925 Lab. 24 brought by minor 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 (1)(Broadway and Jay 1.41, 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 all and no subsequent disability stops to This latter case, however, pertains to a plaintiff who was born subsequent to the date of sale, and from that point of view, may not be relevant on factual plane, except of course for the general proposition hereinbefore mentioned. Same view was expressed in Gajinder Singh and another v. Balwant Kato and others (2)
Addison and Bbide, 1J.) and was followed In Mates v., Jail and another (3) (Jai Lai, J.) However, In my respectful opinion, the view expressed ht.-the aforesaid four cases Is not the correct law on the subject In Hari Ram v. Sali and others (4) (Yew's, C. J. And Din Muhammad, J.), it was laid down that if a reversioner and his minor sons are alive at the data 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 being 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 Chiragh Din and others v. Abdullah and others was clearly distinguished and Sunder v.
Sails Ram (5) was relied upon To the same strain is Samara Singh and another v. Mst. &WM and others (6) (Young, C. J. And Rangi Lai, 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 minors they have clearly ample time for bringing that suits and no objection on the ground of limitation can be taken to their suit. For other cases on the subject see Wail Chand and another v. Punjab Shish and another (7), Milkha Singh v. Saba Singh and another (8) and Harnam Singh and others v.
Adz and others (9). In Jail nub' v: %Wu and another (10) (Tek Cband and Abdul Rashid, JJ.), the case of Chiragh Din and others v. Abdullah and others was distinguished from and Motu v. Jail and another was reversed. The mistake in the four eases reported in Dad v. Lal and others ; Chiragh Din and others v. AMA and others ; Gajindar Singh and another v. Balwant law and others and Matu v. /ad and another was that they probably considered the right to challenge an alienation as a joint right, with the result that if it was barred quo one reversioner, It would be barred qua other reversioner as well. But this theory is not correct. Each reversionary, it may be pointed out, has an independent right, which vests in him by virtue of his connection with the' common ancestor. It is not necessary to multiply any further the case-law on the subject, because, this controversy should be considered to have been set at rest by Avid Bakhsh through Shashi Moan v. Ungar Baldish under guardianship of Mat. Revision and others (12), where the main case of the contrary view, namely, Gajendar Singh and another v. Bahrant Saar and others was expressly overruled and it was held that if a presumptive reversioner has failed to sue, a remote reversioner, who happens to be a minim at they time of the alienation, can avail himself of the benefit of section 6 of the
(1) AIR 1925 Lah. 654
(2) AIR 1933 Lab. 524
(3) AIR 1937 Lah. 485
(4) AIR 1934 Lah. 968
(5) (1911) 26 P R 1911
(6) AIR 1934 Lab. 908
(7) AIR 1932 Lah. 39 (8)AIR 1937 Lab. 477
(9) A f R 1938 Lab. 1
(10) AIR 11137 Lah. 653
(11) A.,(A 044 Lah 409 '; Limitation Act 1908, and that section 9 does not come 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 re-overdone be affected by that of a major reversioner, whether of equal or of a different degree. Taking up a very charitable and generous view, it appears that this case escaped the notice of the learned counsel for the appellants and probably for that reason he cited the obsolete law. In Jawahar .S7egh v. Udal Parakah 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 of 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 Ram Hart Chard auffar v. Mangtu Kalu Gujar and ethers (2) which too is to the same strain. In the face of what has been written above, the" objection as to bar of suit 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 an 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 infect got an area of about 85/86 kanala 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 di 6-3-1953 ; (II) these facts were not pleaded even in the written statement of the defendants ; (111) it was only after the evidence of the plaintiff closed that the defendants thought of these particulars ; (1r) the sale dispute took place on 6-3-1953 whereas the mortgage aforesaid was taken 4.4-1956 vide Bah. P/2, 1.e. About three years 'after the impugned sale which adversely reflects upon existence of any pressing necessity in the year 1953 (.) it was suggested that the mortgage, was taken from the sale mono received by the vendor from the original vendees but this does not conclusively stand established on the present record, especially, because after the present sale the vendor sold another area for Rs, 12,000 side sale d Bib. P/1 on 7- 2-1956 where after mortgage (Bah. P/2 was taken on 4-4-195 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 sacs amount, namely, Rs, 12,000 which is a very significant coincidence (.1) I subsequent sale deed Bah. P/I dated 7-2.1956 mention of earlier sale is mad but again there is no recital of any necessity or, as a matter of fact, of any ac of good management I (rit) and, last but not the least, on the facts and I the peculiar circumstances of this case, apparently getting of mortal rights for a period of only four years after selling proprietary rights for go cannot be held to be act of good management, unless some very are 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. 1, especially when the reasons given by him are also-quite cogent and supported by the attending evidence and circumstances.) The point raised, therefore, I hereby repelled.
(1) AIR 1926 P C 16 (2) AIR 1951 P C 38
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 Ins 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 or the locus Nandi of the plaintiff to file the present suit. However, when the learned counsel for the appellants was confronted with para. 8 of the judgment of the learned Additional District Judge where it was stated that the defendants bad not contested findings of the trial Court in favour of the plaintiff on Issues Nos. 1, 3 and 5, learned counsel for the appellants found it 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 (e) whether the tribe of the vendor namely, Jars of Sheikhupura District were governed by custom in matters of succession and alleviation. The plea has no merit. The learned Additional District Judge has held that excerpt &h. 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 learned trial Court was also against the defendants. No reasons have been advanced to upset that concurrent finding except just raising a point without substantiating it. Mohni, as is self evident from description of the vendor in the sale deed Exh,. D/2 and Fah. 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 Parakash Aggarwalki it is stated that "Jats 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 sod 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 (Jats) were also so consulted. It has been laid down by their Lordships of the Supreme Court in 1114. Shazadan BIN and others v. Amir Hussain Shah (1), at page 232 that ; "Where a tribe was consulted at the time of the preparation of the I Riwaj-i-Am, an initial presumption arises that a member of that trib is governed by custom and not by his personal law, and the onus to L D195.6 SC 227 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. Perrin Monad v.
Gokal Chand Rala Ram AIR 1949 R Pb. 35, Muhammad Yowl( v. Muhammad Abdullah AIR 1944 Leh.
117 and Ata Muhammad v. Muhammad Shafi AIR 1944 Lah.
121.
' The value that has to be attached to the entries in the Riwaj-i-Am is now no longer in doubt. In Beg v. Allah Ditto 45 P R 1917), it was held that statements In a Riwaj-i-Am, which is a public record prepared 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 wise that the custom of a tribe is what is described in the Riwaj-i-Am. This dictum was re-affirmed in Vafshno Mid ItarneshriI L R 1 Lab.
86.
' In view of the above propositions of law, it was up to the defendants to establish that the initial presumptions were as a matter of fact not correct and there was considerable amount of evidence to the contrary. No such evidence was ever led. The presumption becomes stronger where the custom recorded is in accordance with the general custom of the Province Mst. Subhanl v. Nawab I L R 22 LaIL 154 (P C)."
In para. 59 of the Rattigan's Customary Law it is laid down that in matter of alienation of an ancestral land, according to custom, the powers are limited only to the extent of necessity. In the instant case no proof has been led to show that in matters of succession and alienation Mohni was not governed by custom. The finding of the two Courts below, on the subject in hand, therefore, was quite in order and no case for interference in the same has been made out. I hold accordingly.
7. No other point was argued by the learned counsel for the appellants.
8. The result is that this appeal has no merit and is dismissed with costs throughout.