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Rulia and ors. Vs. Jagdish and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal Nos. 55 and 157 of 1963
Judge
Reported inAIR1973P& H335
ActsChild Marriage Restraint Act, 1929 - Sections 2
AppellantRulia and ors.
RespondentJagdish and anr.
Cases Referred and Ghulam Bhik v. Rustom Ali
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of 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..........(iii) (iv) and (vi) of paragraph 3 of the judgment of the lower appellate court.4. as regards the sale of land on 30-12-1953 for a sum of rs. 5500/- in favour of rulia singh appellant no. 1 (in r. s. a. 55 of 1963) it had been recited in the sale deed that the amount was required for paying off mortgages on the vendor's land. chronologically speaking this was the first sale to be make by telu ram and it is in evidence that his lands were really under mortgage on that date for a sum of about rs. 9000/-. rulia singh vendee was not supposed to see to the application of the sale price towards the necessity recited and had only to satisfy himself that the necessity did in fact exist. if telu ram made a number of permanent alienations of his ancestral land after the sale in rulia singh's.....
Judgment:

1. Cross appeals, R. S. A. Nos. 55 and 157 of 1963 have been filed against the judgment and decree of the lower appellate Court under the following circumstances:--

2. Shri Jagdish Ram who is the appellant in R. S. A. No. 157 of 1963 and the contesting respondent in R. S. A. No. 55 of 1963 had filed this suit for the usual declaration under Customary Law that seven alienations of ancestral land made by his father Shri Telu Ram, during the years 1952 to 1958 were without consideration and necessity and would not affect his reversionary rights after the life time of the alienor. The persons in whose favour these alienations had been made were impleaded as defendants along with Telu Ram alienor. The trial Court found that the entire land which was the subject matter of these seven alienations was ancestral qua the plaintiff and this finding was not challenged either in the lower appellate Court or before me. The suit with regard to the first alienation dated 14-8-1952, which was a mortgage for Rs. 2000/- in favour of Kartara and Pritam sons of Mangal Singh defendant was dismissed on the ground that it was time barred and no appeal had been filed against the dismissal of the suit so far as this alienation was concerned even though for reasons to be mentioned further on in this judgment this ground for treating the alienation as sacrosanct was not correct. A mortgage dated 28-1-1954 for a sum of Rs. 2535/- in favour of Atma Singh appellant No. 2 in R. S. A. No. 55 of 1963 was set aside by the trial Court as it was not proved to be for consideration and necessity. The findings of the trial Court with regard to this mortgage were upheld by the lower appellate Court and I have no reasons to disturb these concurrent findings of fact of the Courts below. A sale dated 9-6-1958 for a sum of Rs. 7000/- in favour of appellants Nos. 3 and 4 in R. S. A. No. 55 of 1963 had been set aside by the Courts below subject to the payment of the amount proved to be for necessity. There has been a compromise between the parties with regard to this alienation in this Court. This compromise was recorded by Mittal J. (Jr.) on July 17, 1972 and Jagdish Ram's suit with regard to this alienation has also to be dismissed. The appeal filed by Sarvashri Norata Singh and Gian Singh appellants Nos. 3 and 4 (in R. S. A. No. 55 of 1963) has, therefore, to be accepted in terms of the compromise.

3. A sale dated 13-2-1957 for a sum of Rs. 2000/- in favour of Chanan Singh and Pritam Singh sons of Nihal Singh defendants Nos. 5 and 6 had been set aside by the trial Court but the vendees had not cared to file any appeal and the findings of the trial Court with regard to this alienation have also become final. This leaves us with three sales of land which have been mentioned at serial Nos. (iii) (iv) and (vi) of paragraph 3 of the judgment of the lower appellate Court.

4. As regards the sale of land on 30-12-1953 for a sum of Rs. 5500/- in favour of Rulia Singh appellant No. 1 (in R. S. A. 55 of 1963) it had been recited in the sale deed that the amount was required for paying off mortgages on the vendor's land. Chronologically speaking this was the first sale to be make by Telu Ram and it is in evidence that his lands were really under mortgage on that date for a sum of about Rs. 9000/-. Rulia Singh vendee was not supposed to see to the application of the sale price towards the necessity recited and had only to satisfy himself that the necessity did in fact exist. IF Telu Ram made a number of permanent alienations of his ancestral land after the sale in Rulia Singh's favour the latter had no reason to anticipate that Telu Ram was out on a reckless and wasteful spree. There is no evidence on record to suggest that Telu Ram was a man of immoral character. All that has been said is that the ancestral lands that he had inherited were yielding him an income of about Rs. 5000/- per annum in 1953. If he had been mortgaging his lands in small driblets before this sale. It cannot be said that he was finding that income from the land as sufficient to meet the requirements of the family. Prices had been rising ever since the commencement of the second world war and an income of about Rs. 400/- per month in 1953 could not be described to be so lavish that a good husband man could not feel any pressure on the asset. Both the Courts below have found that mortgages on the vendor's land did exist to a tune of about Rs. 9000/-. These just antecedent debts could easily constitute a valid necessity for effecting a sale of ancestral land for a sum of Rs. 5500/-. If the amount was not left with the vendee to pay off the previous mortgages, it was only because the land under mortgage was different from the land sold. This precaution is generally taken where the vendee would have to pay off the previous mortgagees in order to succeed in setting possession of the land purchased by him. The necessity recited in the sale deed had actually existed and Rulia Singh was not supposed to look to the application of the sale proceeds by the vendor to the necessity represented by him. I see no reason why the sale in favour of Rulia Singh should have been set aside.

5. The other two sales were found to be for consideration and necessity and were upheld by the lower appellate Court. R. S. A. No. 157 of 1963 has been filed by Jagdish Ram plaintiff to challenge the findings of the lower appellate Court with regard to these two sales. As regards the sale dated 24-7-1956 for a sum of Rs. 3000/- the sale deed recites that a sum of Rs. 1000/- was left with the vendee for paying off his previous mortgages while a sum of Rs. 2000/- had been paid in cash before the Registrar. The necessity recited is the marriage of the vendor's son. It is in evidence that Shri Jagdish Ram plaintiff is the only son of the vendor and that he was actually married about a year after the sale. According to the birth entry Shri Jagdish Ram was born on Sambat BK 28-5-1898 which would correspond to some date in 1941. This means that at the time of sale Shri Jagdish Ram plaintiff was about 15-16 years of age. Shri Puran Chand the learned counsel for the appellant argues that Shri Jagdish Ram was still a 'child' as defined in Section 2(a) of the Child Marriage Restraint Act, 1929 at the time of the sale and that the solemnisation of the marriage of such a child would have been an offence under the Act.

It is argued by Shri Puran Chand on the basis of two Single Bench decisions in Hira Lal v. Mt. Amri, AIR 1951 Punj 421 and Ghulam Bhik v. Rustom Ali, AIR 1949 EP 354 that a provision for such a marriage which was an offence under the law cannot be recognised as valid necessity to justify the sale of ancestral land. In the present case, the provision had been made for the plaintiffs own marriage which had actually taken place a year after the sale. At the time of the sale the plaintiff was nearing the age when he could have been lawfully married. The necessity for making a provision for a marriage is due to be solemnised and the vendee had no reason to believe that the vendor would not wait long enough to avoid committing an offence while celebrating the marriage of his son. In both the cases cited provision has been made for marriage of children of the alienor six or seven years before the marriages could be lawfully solemnised. Under these circumstances, it could be argued that it was not necessary to make a provision for such marriages so many years in advance. In the present case, the son for whose marriage a provision was being made had very nearly attained the age on which the marriage could be lawfully solemnised and the vendee had no reason to believe that the vendor would be acting with such haste when he could easily have avoided breaking the law by waiting for another year or so. The two Single Bench decisions are, therefore, distinguishable and do not apply to the facts of the present case. I therefore, maintain the findings of the lower appellate Court with regard to the sale of land effected on 24-7-1956 in favour of Joginder Singh and Gurbachan Singh for a sum of Rs. 3000/-. This sale is held to be binding on the reversioners on the ground that it is for consideration and necessity.

6. We then come to the sale of 49 bighas 11 biswas of land for a sum of Rs. 13,000/- in favour of Gurbux Singh and Norata Singh defendant-respondents. This sale was made on 9-1-1958. A sum of Rs. 9300/- was described to be necessary for payment of previous mortgages on the vendor's land. It is in evidence that mortgages to that extent did in fact exist. These mortgages are not shown to be tainted with any immorality and were just antecedent debts. The balance Rs. 3700/- was proved to have been paid in cash to the vendors and no further necessity for this amount could be shown. As necessity was shown to exist in respect of more than two thirds of the sale price, the alienation was rightly upheld by the lower appellate Court. Some evidence has also been examined that the vendor had built or renovated his house sometimes before the sale. The work could have been undertaken after incurring some unsecured loans and the vendees had actually examined some evidence with regard to the existence of some petty debts due from the vendor. The view taken by the lower appellate Court may, therefore, appear to be fair and reasonable and this sale was also rightly upheld.

7. Shri Y. P. Gandhi, the learned counsel for Rulia Singh, etc. had argued that Jagdish Ram plaintiff was not proved to be the son of the vendor. I do not see how this argument can hold water when some of the alienees had themselves produced the birth entry relating to Jagdish Ram. The name of the child whose birth had been reported had been given as Jagdish Ram and the name and description of the father tally with Telu Ram alienor. This birth entry may on the other hand shown that Jagdish Ram was minor at the time of all these alienations including the first mortgage and that he had filed the suit within three years of attaining majority. This birth entry had been filed by the alienees to show that Jagdish Ram was being wrongly shown as a minor and could not sue through a next friend because he had attained majority a few months before the filing of the suit. The suit, was therefore, within time and had been wrongly dismissed as time-barred with respect for the first mortgage dated 12-8-1952. Anyhow, there was no appeal by Jagdish Ram against the dismissal of his suit qua this mortgage. Having produced this birth entry the alienees cannot possibly argue that Jagdish Ram is not the son of the alienor Telu Ram.

8. For reasons given above, R. S. A. No. 157 of 1963 filed by Jagdish Ram is dismissed. R. S. A. No. 55 of 1963 is also dismissed so far as the mortgage in favour of Atma Singh appellant No. 2 is concerned. The appeal filed by appellants Nos. 3 and 4 accepted in view of the compromise between the parties. Rulia Singh's appeal is also accepted on its merits as regards the sale in his favour effected on 30-12-1953. Parties are left to bear their own costs.

9. Order accordingly.


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