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Ghulam Bhik Vs. Rustom Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H354
AppellantGhulam Bhik
RespondentRustom Ali and ors.
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 700. ghulam bhik, defendant 1, preferred an appeal against the decree of the trial court in the court of the senior sub-judge with enhanced appellate powers, hoshiarpur, the appeal failed..........for the marriage expenses of rustam ali ought to have been held for necessity. now section 5, child marriage restraint act, xix [19] of 1929, provides:whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage.for the purpose of this act 'child' is defined in section 2 of the act which enacts:'child' means a person who if a male is under eighteen years of age and if a female is under fourteen years of age.that being so, the sum of rs. 190 paid before the sub-registrar by the vendee to the vendor for the marriage expenses of rustam ali, a child of 12 or 13.....
Judgment:

Harnam Singh, J.

1. Rustam Ali adult and Didar Ali minor, sons of Fateh Mohd. Rajput, defendant 2 instituted a suit challenging the sale of the land in suit by their father Fateh Mohammad in favour of Ghulam Bhik defendant 1 on the ground that the land being ancestral qua the plaintiffs the sales were not for consideration and legal necessity and therefore not binding on the plaintiffs under the rule of custom governing the parties.

2. Ghulam Bhik defendant 1 admitted that the parties were governed by custom and that the land in suit was ancestral qua the plaintiffs. He, however, maintained that the alienations were for considerations and legal necessity.

3. Now, the alienations were made on the foot of two sale deeds dated 16th November 1937 and 25th July 1940 for Rs. 900 each. On the pleadings of the parties the trial Court framed the following issue: 1. Are the sales in suit for consideration and legal necessity?

4. The trial Court found that the first sale was for legal necessity to the. extent of Rs. 500 and that the second sale was for legal necessity to the extent of Rs. 700. Ghulam Bhik, defendant 1, preferred an appeal against the decree of the trial Court in the Court of the Senior Sub-Judge with enhanced appellate powers, Hoshiarpur, The appeal failed and was dismissed with costs on 23rd March 1946. Ghulam Bhik, defendant 1, has come to this Court through Mr. Shamair Chand against the decree passed by the Court of appeal on 23rd March 1946.

5. At the hearing nobody has appeared for the contesting respondent.

6. Counsel for Ghulam Bhik, appellant, con-tends that the Courts below have erred in law in disallowing Items Nos. 2, 3 and 4 aggregating; to a sum of Rs. 400 in the case of the sale made on 16th November 1937.

7. Item No. 2 relates to a sum of Rs. 173: left in doposit for payment to Sultan Ali, an antecedent creditor. Now, the Courts below have found Item No. 2 to be without consideration and valid necessity. The finding proceeds inter alia upon the consideration that the vendee defendant did not examine the executant, the scribe of the pronote or the attesting witnesses of the-receipt regarding the passing of the consideration of the pronote to Sultan Ali and has come to the conclusion that the existence of this debt has not been proved and, therefore, the item cannot be said to be for valid necessity. This finding is not open to challenge in second appeal to this Court.

8. The second item disallowed is a sum of Rs. 37 paid for registration expenses. The-appellate Court has found that the payment of this item has not been proved by any evidence on the record and in my opinion it has been rightly disallowed. The last item is for Rs. 190 paid by the vendee to the vendor before the Sub. Registrar for the marriage expenses of the vendor's son. It is in evidence in the statement of Mohammad Alays, D.W. 5, mukhtar of the vendee, that this amount was paid to the alienor for the marriage expenses of Rustam Ali minor son of the plaintiff (sic). Now, on 16th November 1937 when the sale was made the age of Rustam Ali is stated to be 12 or 13 years and the age of Dildar Ali, the other son of the vendor, on the relevant date was about 6 years. The contention raised in the Court of appeal was that money borrowed for the marriage expenses of Rustam Ali ought to have been held for necessity. Now Section 5, Child Marriage Restraint Act, XIX [19] of 1929, provides:

Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage.

For the purpose of this Act 'child' is defined in Section 2 of the Act which enacts:

'Child' means a person who if a male is under eighteen years of age and if a female is under fourteen years of age.

That being so, the sum of Rs. 190 paid before the Sub-Registrar by the vendee to the vendor for the marriage expenses of Rustam Ali, a child of 12 or 13 years of age, was advanced for the performance of an act which constitutes an offence under Sections 3 and 5, Child Marriage Restraint Act, XIX [19] of 1929. Obviously this sum. was not a sum covered by valid necessity under the rule of custom.

9. Finding, as I do, that the three items namely a sum of Rs. 173, a sum of Rs. 37 and a sum of Rs. 190 were rightly disallowed by the trial Court, I uphold the decision of the Court of appeal that the sale made on 16th November 1937 was binding on the plaintiffs respondents for a sum of Rs. 500 only.

10. Coming to the second alienation, again three items of Rs. 28, Rs. 100 and Rs. 72 have been disallowed by the Courts below. The second item disallowed for Rs. 100 relates to the sum left with the vendee-defendant for payment to the vendor by 27th July 1940. Now, because this item was left with the vendee for payment to the vendor the payment of this item would not constitute valid necessity. It means that the vendor did not immediately need this item and there was no necessity for the conversion of the mortgage into a sale.

11. Again, a sum of Rs. 72 is proved to have been paid by the vendor to the vendee before the Sub-Registrar. This item has been disallowed because there is no evidence of the purpose for which this item was needed by the vendor. The same objection applies to the third item of Rs. 28. That being so, a sum of Rs. 200 covered by items 2, 3 and 4 mentioned in the judgment of the Court of appeal has been rightly disallowed.

12. The result is that I also uphold the judgment and decree of the lower appellate Court with regard to the second sale made on 25fch July 1940.

13. For the foregoing reasons, the appeal fails in toto. As the respondents have not appeared in this Court I would leave the parties to bear their own costs in this appeal.


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