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Ajaib Singh Vs. Sher Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H51
AppellantAjaib Singh
RespondentSher Singh and ors.
Cases ReferredJagdip Singh v. Narain Singh
Excerpt:
.....single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the..........ludhiana who had granted the plaintiff a decree declaring that sale of the suit land by his father sher singh in favour of dewa singh defendant by means of sale-deed dated 20th november 1936 should not affect his reversionary rights after the vendor's death except to the extent of rs. 900 and dismis-sing the plaintiff's suit.2. on 29th august 1930 the aforesaid sher singh mortgaged the suit land to the father of bhagat singh and jagir singh defendants for rs. 900 in certain execution proceedings that had been taken by dewa singh against mangal singh, the father of sher singh, the latter had become liable as a surety. by means of sale, deed dated 20th november 1936 the land that had been mortgaged by sher singh in 1930 to the father of bhagat singh and jagir singh defendants was sold to.....
Judgment:

Achhru Ram, J.

1. This is a second appeal from the judgment of the learned District Judge of Ludhiana reversing on appeal the decision of the Senior Subordinate Judge of Ludhiana who had granted the plaintiff a decree declaring that sale of the suit land by his father Sher Singh in favour of Dewa Singh defendant by means of sale-deed dated 20th November 1936 should not affect his reversionary rights after the vendor's death except to the extent of Rs. 900 and dismis-sing the plaintiff's suit.

2. On 29th August 1930 the aforesaid Sher Singh mortgaged the suit land to the father of Bhagat Singh and Jagir Singh defendants for Rs. 900 In certain execution proceedings that had been taken by Dewa Singh against Mangal Singh, the father of Sher Singh, the latter had become liable as a surety. By means of sale, deed dated 20th November 1936 the land that had been mortgaged by Sher Singh in 1930 to the father of Bhagat Singh and Jagir Singh defendants was sold to Dewa Singh for a sum of Rs. 1500. Out of the consideration for the sale Rs. 900 were left with the vendee for redemption of the previous mortgage and the balance of Rs. 600 was credited to him on account of the decretal debt due primarily from Mangal Singh for which Sher Singh had become liable as a surety.

3. The learned trial Judge held that the discharge of the debt for which Sher Singh was liable merely as a surety could not justify an alienation of ancestral property, and in support of this view he relied on a Single Bench judgment of the High Court of Lahore reported as Thaman Singh v. Bachna A.I.R. 1928 Lah. 702. Holding necessity for the sale to have been proved only to the extent of Rs. 900 which was due to the previous mortgagee, he granted the plaintiff a declaration that the sale should not affect his reversionary rights after Sher Singh's death except to the extent of the aforesaid amount. The learned District Judge has held that in view of the peculiar circumstances of the case the rule laid down in Thaman Singh v. Bachna A.I.R. 1928 Lah. 702, could not be applied and that Sher Singh having become surety for his own father in order to save property, which was eventually to devolve on himself, from sale In execution of the decree, an alienation of ancestral property for the discharge of the debt for which he had become a surety could not be held to be otherwise than for legal necessity. In the result, he has accepted the appeal and, setting aside the decree of the learned trial Judge, has dismissed the plaintiff's suit. Feeling dissatisfied with this decree, the plaintiff has come up in second appeal to this Court.

4. After hearing the learned Counsel for the appellant I am of the opinion that the plaintiff's Buit has been rightly dismissed by the learned District Judge.

5. In deciding whether an alienation of ancestral property made by a male proprietor in order to pay off a debt due from himself was justified all that the alienee is required to prove is that the debt discharged by means of the impugned alienation was a just antecedent debt. A just debt has been defined as a debt which is actually due and which has not been contracted for immoral or illegal purposes or for purposes of extravagance or as an act of wanton waste, or with the intention of destroying the interests of the reversioners. Whether the debt was originally incurred by the alienor himself or he became liable therefor by reason of having agreed to stand surety for the principal debtor, unless it can be shown to be otherwise than just, the alienation of ancestral property for its discharge cannot be held to be invalid. For determining whether the debt is a just debt or not the same considerations would apply to both classes of oases. It is true that the debt for which the alienor becomes liable as a surety not having been incurred by him for his own purposes, no question of its having been raised for immoral or illegal purposes or for purposes of extravagance can arise.

6. In a case of this kind, however, the debt may be proved to be otherwise than just by showing that in the circumstances of the case it was either imprudent or unreasonable for the alienor to have entered the contract of guarantee. It has been held that a debt although not incurred for an immoral or illegal purpose may be held to be otherwise than a just debt if the circumstances under which it was incurred show that it had been raised in a manifestly unreasonable manner and with the object of destroying the reversioners' interests. If a person becomes surety for a person with whom he has no connection or whom he is under no legal or moral obligation to accommodate, or for a sum of which he can have no reasonable expectation of being ever able to pay, or if there are other circumstances showing that a reasonable man in the position of the alienor would not have agreed to stand surety, it may be held that alienation of ancestral property for the discharge of such a debt is not justified. There is, however, no warrant for the proposition that regardless of other circumstances the mere fact of the alienor being liable for a debt not as a principal debtor but as a surety takes it out of the category of just debts. I find myself unable to accept the broad proposition laid down by Addison, J. in Thaman Singh v. Bachna A.I.R. 1928 Lah. 702. That proposition does not really find support from the, authorities on which the learned Judge had relied and it is not otherwise possible to justify it either on principle or on precedent.

7. Applying the above test, there can be no reasonable doubt as to the debt due from Sher Singh to Dewa Singh as a surety for the decretal debt of his father Mangal Singh being a just debt. As pointed out by the learned District Judge, Sher Singh in fact advanced his own interests and those of his reversioners by getting time from the judgment-creditor by agreeing to stand surety in the execution proceedings against Mangal Singh. The house which had been attached and was going to be sold in execution of the aforesaid decree, would, if saved, devolve on Sher Singh and his descendants and reversioners in due course. It was, therefore, really a very prudent act on the part of Sher Singh to offer to become a surety and this regardless of the question whether the house which he saved from sale by doing so was or was not ancestral qua him. It so happens that in the present case he had eventually to sell his land in order to discharge this debt but there is nothing to show that at the time he stood surety he had no reasonable expectation of being able to discharge it otherwise than by means of such an alienation. He cannot, therefore, be said to have acted other, wise than wisely in gaining time by undertaking to be liable for the decretal debt of which the payment was being enforced by attachment and sale of the house.

8. Even if Sher Singh had not become liable for the debt as a surety, and was not personally liable for its payment, the sale of the suit land by him for the purpose of the discharge of that debt after the father's death, could not be held otherwise than valid, in spite of the fact that, in view of the rule laid down in Jagdip Singh v. Narain Singh 4 P.R. 1913 and later adopted by the legislature of the Punjab in the Debtors' Protection Act, the payment of the debt could not be enforced against ancestral property in his hands. In an unpublished judgment of the High Court of Lahore in civil Appeal No. 1484 of 1921 and noticed in the latest edition of Rattingan's Digest of Customary Law edited by Mr. Rustamji, a Division Bench of the High Court of Lahore held that a male proprietor pan validly alienate ancestral property for the payment of a debt due from his predecessor-in-title even though such debt could not be recovered from that property by the coercive process of the Court by reason of its being ancestral. The Full Bench judgment in Jagdip Singh v. Narain Singh 4 P.R. 1918 was fully considered in this case and it was held by the Bench that it had no bearing on the decision of the question then before it. With this view I find myself in respectful agreement.

9. For the reasons given above, I can se no reason at all to interfere with the decision of the learned District Judge and dismiss this appeal in limine.


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