1. This is an appeal against a judgment and decree of Mr. Mohammad Amir-ud-Din Khan, District Judge Dujana State, granting to the plaintiff a declaratory decree.
2. The facts of the case are that Ram Sarup the father of the plaintiff stood surety for Gania in two criminal cases, the amount of the surety bond being Rs. 5000/- in all. Gania absconded and Ram Sarup thus became liable for payment of Rs. 5000/-. The land in dispute was sold by auction by the State and was, for a sum of Rs. 5000/-, purchased by Dud Ram and others in the auction. But as it was found that the auction would not be legal Ram Sarup sold the property to defendants 1 to 9 on 27-8-1944 for a sum of Rs. 4,583/-.
3. Mangla, a son of Ram Sarup, then brought a suit for declaration that the sale was without consideration and necessity and would not affect his reversionary rights. The plaintiff alleged that he was governed by Hindu law as well as custom. The plea of the defendants was that they were governed not by Hindu law but by custom, that the sale was for consideration, and for necessity and that Ram Sarup had unlimited powers of alienation.
4. A large number of issues were framed and the suit was ultimately decreed and the vendees have come up in appeal to this Court.
5. The evidence shows that defendants Dud Ram and Tulsi Ram were originally 'sapurdars' when the lane! and movable property of Ram Sarup were attached and that ultimately the land was sold by Ram Sarup who executed a document under coercion. Munshi Nijabat Ali Khan a petition-writer P. W. 3 has stated as a witness that Ram Sarup was unwilling to execute the document but he was forced to exercise it by the Tahsildar. The same has been stated by Kanshi Ram P. W. 6 who is one of the vendees. He has also proved that the land was ancestral and that Ram Sarup offered to pay back the money to the defendants but Dud Ram and Tulsi Ram refused to accept it who said that they would keep the land. Ram Sarup has appeared as a witness and he has also stated that he offered the money to Tulsi Ram and Pud Ram, who are the only persons who are contesting the suit, but they refused to take the money.
6. The evidence therefore shows that the plea of the defendants that the sale was by a willing seller to a willing purchaser is not correct and that the sale was held under coercion. Besides, if a person, stands surety for a person with whom he has no connection whatsoever and has no legal or moral obligation to accommodate him or he stands surety for a sum which he does not reasonably expect to be able to pay or it shows that a reasonable man would not have stood surety under these circumstances, such a debit cannot form a just antecedent debt to support a sale or a transfer cf ancestral land. This was the view taken in -- 'Ajaib Singh v. Sher Singh', AIR 1949 EP 51 (A); and with this view of law I am in respectful agreement. The Lahore High Court in -- 'Thaman Singh v. Bachna', AIR 1928 Lah 702 (B), held that an alienation of ancestral property by an agriculturist for a debt incurred as surety is invalid according to custom as such a debt is not a necessity. The same view was taken by the Punjab Chief Court, in -- 'Hem Raj v. Ganda Singh', 112 PWR 1906 (C).
7. This also can be deduced from the natureof the estate of a male proprietor under customwho can alienate ancestral property only for anecessary purpose (see para. 62 of Rattigan'sDigest). One of the purposes for which suchproperty can be sold is payment of just debts.In -- 'Devi Ditta v. Saudagar Singh', 65 Pun Re1900 (D), in the third proposition laid down inthis case it is said that the words 'just debt'mean a debt which is actually due, and whichis not immoral, illegal, or opposed to publicpolicy. It also means a debt not contracted asan act of reckless extravagance or of wantonwaste xxx and if anon-necessary debt is unreasonably large compared to the means and station in life of theproprietor it cannot come under the definitionof a just debt. This statement of the law wasapproved of by their Lordships of the PrivyCouncil in -- 'Kirpal Singh v. Balwant Singh',26 Pun Re 1913 (PC) (E). It cannot be saidthat the debt which was incurred by Ram Sarupstanding as surety for Gania was for a necessary purpose or was a just antecedent debt.
8. The alienees Dud Ram and Tulsi Ram were both aware of the nature of the debt and they cannot be heard to say that they purchased the property the object of which was to pay a just antecedent debt.
9. In -- 'Jhandu v. Niamat Khan', AIR 1920 Lah 279 (F), it was held that an alienee paying off an antecedent creditor gets no advantage, if he has knowledge of the true nature of the debt & therefore the alienees cannot get advantage of the rule laid down by a Full Bench of the Lahore High Court in -- 'Karnail Singh v. Naunihal Singh', AIR 1945 Lah 188 (FB) (G).
10. A debt like the one which was incurred by Ram Sarup cannot be called a just antecedent debt and in my opinion Ram Sarup in standing surety for Gania was guilty of recklessness and therefore neither on precedent nor on principle the sale in favour of the appellants can be sustained or upheld,
11. I am therefore of the opinion that learned Judge rightly held that the sale will not be binding on the plaintiff and it does not affect his reversionary rights. I would therefore dismiss this appeal with costs.
12. I agree.