Ranjit Singh Sarkaria, J.
1. The question referred for opinion to this Full Bench is :-
'Where a suit for pre-emption filed by a reversioner is dismissed, is his subsequent suit challenging the sale of the same property, under custom, for want of consideration and legal necessity, barred?'
2. The circumstances leading to this order are, that Harji, defendant-Respondent 1, sold the land in suit to Ram Karan, Defendant-Respondent 2. Two rival suits for possession by pre-emption were instituted in respect of that sale, one by the vendor's son, Amar Chand plaintiff-appellant, and another by Phusa, defendant 3. The suit brought by the vendor's son was dismissed as time barred, while that of Phusa was later decreed. After the dismissal of his pre-emption suit, Amar Chand instituted the usual declaratory suit under custom, alleging that the land was ancestral and the sale not being for consideration and legal necessity, would not affect his reversionary rights after the death of the vendor. In that suit, he also assailed the pre-emption decree obtained by Phusa, Defendant 3. This declaratory suit was resisted by Phusa, inter-alia, on the ground that since Amar Chand plaintiff's suit for pre-emption had been dismissed he was debarred from maintaining the subsequent declaratory suit brought by him. The trial court and the first Appellate Court following the rule enunciated in Labh Singh v. Gopi 15 Pun Re 1903: Gujar v. Auliya, 78 Pun Re 1914=(AIR 1914 Lah 460) and Mt. Alam Khatun v. Hayat Khan, AIR 1938 Lah 492 accepted the objection and dismissed the suit. Amar Chand plaintiff preferred a regular second appeal to this Court, which came up for hearing before the learned single Judge by the plaintiff-appellants counsel, that neither the principles of res judicata and estoppel on which (according to the counsel) the rulings relied upon by the Courts below or based, nor the principle of Order 2, Rule 2, Civil Procedure Code, could bar the subsequent declaratory suit of Amar Chand plaintiff. In support of this contention, counsel cited a Division Bench judgment of the Punjab Chief Court in Muhammed Din v. Rahim Gul, 6 Pun Re 1886.
3. The learned Single Judge observed that the attention of the learned Judges, who had decided the cases relied upon by the Courts below had not been invited to Muhammed Din v. Rahim Gul, 6 Pun Re 1886 (Supra). For resolution of what seemed to be a conflict between the two Division Bench Judgments, the learned Single Judge moved my Lord the Chief Justice for constitution of a Full Bench. This is how the matter has come before us.
4. Shri N. K. Sodhi argues, as he did before the learned Single Judge, that the string of decisions lead by Labh Singh's case 15 Pun Re 1903 proceed on the assumption that the mere institution of a suit for pre-emption attracts to the subsequent declaratory suit the bar of estoppel, constructive res judicata and Order 2, Rule 2, Civil Procedure Code. Those propositions, proceeds the argument judged by their pre-requisites laid down in Section 115. Evidence Act and Section 11 and Order 2, Rule 2, Civil Procedure Code, are not tenable. Even if it is assumed--it is contended--that the mere institution of a suit for pre-emption by the son constitutes an assent to the sale, then also it cannot, without further proof of the vendee having changed his position to his detriment on the faith of such assent, raise an estoppel. The bar of res judicata according to the counsel, could not operate because the capacity of the plaintiff, the issues involved and the reliefs sought in the two suits, are substantially different; that whereas in the former suit the plaintiff sued in his individual capacity for substitution to the original bargain, in place of the vendee, in the subsequent suit he, in a representative capacity on behalf of the entire reversionary body, seeks to avoid the sale. On parity of reasoning, it is urged that the subsequent suit would not be barred by Order 2, Rule 2, Civil Procedure Code.
5. The contentions canvassed by Mr. Sodhi though seemingly attractive, or as will be revealed by the discussion that follows, the result of a wrong approach to the matter for determination before us. They proceed on the assumption that the rule in Labh Singh's case 15 Pun Re 1903 is no more than an exposition of the technical doctrines of estoppel and res judicata contained in the aforesaid statutes. That assumption, however, is not correct.
6. To appreciate the premises on which the rule in Labh Singh's case 15 Pun Re 1903 is founded it is necessary to get a clear idea about the nature of a reversioner's right, under custom, to restrain alienation of ancestral property. Historically, this right is a product of the agnatic theory of joint ownership, according to which the proprietary unit was the tribe. The individual member of the tribe was entitled only to the usufruct of that portion, of the land which was actually cultivated by him and his family and to a share in that portion which still remained under joint management. 'In such a community, the proprietary title and the power of permanently alienating common property was vested in the whole body.' In course of time as this community overgrew their privitive stage the common land are a large portion of it was permanently divided amongst families and the families became the units of proprietorship. The family lands came to be held by individuals as a result of devolution or subdivision, but in respect of ancestral immovable property in the hands of any such individuals there existed a residuary interest in all the descendants of the common ancestor even if the possibility of some among them of ever succeeding to the holder for the time being, was far too remote. 'The owner-in-position was not regarded as having the whole or sole interest in the (ancestral immovable) property and power to dispose of it, so as to defeat the expectations of those who are deemed to have a residuary interest and who would take the property if the owner died without disposing of it' (Per observations of Roe, J.--later on Sir Charles Roe--in Gujar v. Sham Das, 107 Pun Re 1886). Originally, all reversioners of the common ancestor, howsoever remote, had a right to restrain unnecessary alienations of ancestral land by the owner-in-possession.
7. While much of this anachronistic theory has passed into the fossils of juridical history, a few of its products in a somewhat attenuated form survive to the present day. The right of each and every reversioner, howsoever, remote, to challenge an alienation came to be greatly restricted about the later half of the 19th century, even long before the Legislature stepped in to pass the Punjab Custom (Power to Contest) Act, 1920. Considerations of convenience, equity and public policy and the need to interpret the custom in the light of challenging conditions had not a little to do with the development of the principles that survive to this day. Keeping in view that the right of a reversioner to contest alienation militates against the citizen's ordinary right of freedom of contract, the Courts had shorn this rule of its angularities and kept it confined within legitimate bounds. (See the observations of Jai Lal, J. in Khuda Yar v. Imam Din. AIR 1927 Lah 521). Thus, one of the surviving rules of universal custom in the Punjab, which has been firmly established by a long array of judicial decisions, is, that, the proper person to object to an alienation of ancestral immovable property, is the immediate reversionary heir; and if he in good faith, concurs in the alienation, it validates the transaction and renders it immune from attack by any descendant of the common ancestor on the ground of want of consideration and the legal necessity. This principle was lucidly summed up by Robertson, J, in Labhu v. Mst. Nihali, 66 Pun LR 1905, as follows:-
'So we find that in the immense majority of cases custom has established the sound and reasonable principle that an alienation once made openly and in good faith by the alienor, and acquiesced in, also reasonably and in good faith by those competent at the time to contest it, shall have finality, and shall not be open to contest by others who may later on come into a position which would, had they held it, have given them the right to contest the alienation at the time. The right to make a permanent alienation good against all comers, with the consent of the collateterals, is one of the commonest features of Punjab custom'.
8. There is ample authority in support of the proposition that the validating consent of the male descendants, according to the law summed up in para 59 of the Rattigan's Digest of Customary Law may be given prior to, or contemporaneously with, or subsequent to, the alienation. (See Kudha Yar's case AIR 1927 Lah 521, ibid). In Faqir Chand v. Mst Bishan Devi, (1946) 48 Pun LR 406=(AIR 1947 Lah 185) a Division Bench consisting of Abdul Rashid Acting C.J and Achhru Ram. J, held that the consent of the descendants in the case of an alienation by the father of the ancestral property validates the alienation and para 67 of the Rattigan's Digest of Customary Law gives the remoter reversioners no right to challenge it. In Santa Singh v. Banta Singh, AIR 1950 Lah 77 (FB) a Full Bench (consisting of Abdul Rashid C.J, Mahajan and Khosla, JJ) after reviewing the case-law on the subject, held that if the grandfather alienates the ancestral immovable property and the father gives his consent bona fide to the alienation, the grandsons have no right to challenge it.
9. The stage is now set for noticing briefly the rulings that have been cited at the bar.
10. In Labh Singh's case, 15 Pun Re 1903 K.S had brought a suit to enforce his right of pre-emption in respect of sale of land by M.S. K.S.'s suit was eventually dismissed as he was unable to deposit the pre-emption money. Thereafter, M.S. mortgaged the remaining half of his land. K.S. sued again to impeach the mortgage. The suit was compromised, according to which, K.S. paid the mortgage amount with interest. After the death of M.S., the grandsons of K.S. sued for possession of the land alienated by M.S. on the ground that the sale was without necessity and did not bind them. Delivering the judgment of the Division Bench, Chatterji, J., made these illuminating observations:--
'We are disposed to think that Kahan Singh, by bringing his suit for pre-emption on the sale by Mehtab Singh, abandoned any right he had to challenge it on the ground of want of necessity, or other reason sufficient to make it voidable by him. Such a suit raised a presumption which of course was not conclusive, that the sale was not bad on the ground of necessity, but it necessarily waived all right to set it aside for want of necessity. We are disposed to think also that the plaintiff is bound by the waiver on the part of his grandfather...... The person in enjoyment of property, or entitled to the right to object to the alienation, must be allowed a certain latitude of judgment as to the mode in which the property or the right should be protected when invaded or put in jeopardy by others, and in our opinion his successors and descendants must be held to be bound by the action so taken by him. It would be intolerable, and would put an end to all finality in proceedings in a Court of Justice, if it were otherwise. This may best be illustrated by a concrete example, suppose a land owner governed by Customary Law is sued in respect of land held by him by someone claiming to be a relation of the last owner and to be a co-heir. He finds the claim indisputable and thinks it best to admit it, and a decree is passed against him, and the successful claimant thereafter holds the land for many years. Should his descendants or collateral heirs be allowed to ignore the decree after his death, and alleging that the admission was unauthorised and amounted to waste of the property to sue for recovery of possession of the land decreed? A considerable limitation would be introduced in the rule of res judicata if this is allowed. Had Kahan Singh obtained decree for pre-emption and recovered the property on payment of the price, would the plaintiff have been allowed to set aside the decree on the ground that it was an act of waste which prejudiced his rights? What difference does it make that no decree was obtained in this case because the purchase-money was not deposited. We think therefore that Kahan Singh's waiver binds the plaintiff who is on that account precluded from making the present claim'.
11. From what has been quoted above, it is manifest that when the learned Judges spoke of the 'intolerable situation putting an end to all finality in proceedings in a Court of justice that would result if they held otherwise', they were, without deviating from the age-old rule of custom, according to which consent of the immediate reversioner validates an alienation of ancestral immovable property, giving it a dynamic interpretation consistent with the equitable and just principles of estoppel and waiver.
12. No authority has been cited at the bar, nor has any come to my notice, wherein the rule in Labh Singh's case was departed from. It was reiterated in 78 Pun Re 1914=(AIR 1914 Lah 460). It was again followed by Jai Lal J. in Kishan Singh v. Amar Singh, (1929) 118 Ind Cas 910 (Lah).
13. In AIR 1938 Lah 492, a Mahommedan gifted certain property to his wife in lieu of dower. After the death of the husband the widow remarried and the brother of her husband brought a suit for pre-emption alleging that the transaction was a sale and not a gift. The suit was dismissed. Subsequently, he brought a suit for declaration (under custom) that he had acquired a title to the property on the ground of remarriage of the widow and the gift was null and void against him. While observing that the subsequent suit was not barred either under Section 11 or under Order 2, Rule 2, Civil Procedure Code, Din Mohammed J., following the ratio of 78 Pun Re 1914=(AIR 1914 Lah 460) held that the plaintiff was debarred from challenging the gift in the subsequent suit as by bringing the suit for pre-emption he should be taken to have consented to the transaction in the eye of law.
14. The last case in this chain is Santa Singh v. Tara Dass, 3 Patiala Judl. Committee Rep. 84. That is a judgment by Sir Jai Lal as President of the Patiala Judicial Committee. Following the rule in Labh Singh's case, 15 Pun Re 1903 it was held that a mere institution of a suit by the reversioner for pre-emption of sale of ancestral immovable property amounts to an admission of the genuineness and the legality of the sale and that the reversioner is precluded from subsequently contesting the validity of the sale on the ground of want of consideration and a necessity.
15. From the above conspectus, it will be clear that the learned Judges in all the above cases were referring to estoppel, waiver or res judicata not the technical sense as a pure rule of procedural law, but were invoking those principles as a branch of the Punjab Customary Law governing the parties in such matters. These cases are all illustrations of the well-settled principle of custom that bona fide consent of the immediate reversioner, particularly of the son, given expressly or by implication, whether given before or at the time of the alienation or afterwards, validates the transfer of the ancestral immovable property by the father and precludes not only the person consenting but also the remoter reversioners, from challenging the alienation subsequently on the ground that it had not been made for good consideration and legal necessity.
16. If the principle of estoppel, and waiver enunciated in Labh Singh's case 15 Pun Re 1903 and those following it is a part and parcel of the substantive rule of custom, then it will not be a correct approach to test that principle with the technical norms laid down in Section 115 of the Evidence Act, or any other statute. Thus considered, it will be clear that the Division Bench in Mohammed Din's case 6 Pun Re 1886 ibid, does not lay down any contrary rule. Rather, it is consistent with the ratio of Mt. Alam Khatun's case, AIR 1938 Lah 492 ibid, wherein it was held that the subsequent suit was not barred as res judicata or under Order 2, Rule 2, Civil Procedure Code.
17. In Mohammed Din's case, 6 Pun Re 1886 the plaintiffs jointly with others instituted a suit for pre-emption, which was eventually dismissed. Thereafter, they brought a second suit to recover certain plots of the land so sold, on the ground that it belonged to them and not to the vendor. It was held by the learned Judges that the second suit was not barred (on the principle of Order 2, Rule 2, Civil Procedure Code) by the reason of the plaintiff's not having claimed the ownership of the land in the former suit, first, because of the plaintiffs in the two suits were acting in different capacities, as in the first suit they were propounding a private and exclusive title : secondly, because the words 'matter which might and ought to have been made 'ground of attack' ' in Explanation II, Section 13 (corresponding to Explanation IV of Section 11), Civil Procedure Code, show that the plaintiff is not bound to assert at once all his titles to property or to be estopped from hereafter advancing them.
18. It will be seen that the subsequent suit in Mohammed Din's case 6, Pun LR 1886 was not a reversioner's suit under custom for avoiding a voidable sale. It was based on the ground of title simpliciter, viz., that the vendor had no title or interest in the plots in suit and that, consequently the sale of those plots was a nullity, which did not exist in the eye of law. No question of the application of any rule of custom was involved in that case.
19. In this connection, it may be remembered that an alienation by a male proprietor of ancestral immovable property or by a widow of her life estate under custom (or even under Hindu Law) in excess of his/her powers is not altogether void but only voidable by the reversioners, who may (in the words of the Privy Council in Ramagowda Annagowda v. Bhausaheb, ILR 52 Bom 1 at page 7)=(AIR 1927 PC 227 at page 229) 'either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding'. While in Mohammed Din's case 6, Pun Re 1886 the plaintiff was alleging in the subsequent suit that the sale was altogether void, in the instant case, out of which this reference has arisen, the sale in question was only voidable.
20. For the foregoing reasons, I would answer the question referred to this Bench in the affirmative.
21. I concur in the answer proposed by my learned brother Sarkaria, J. as also in the entire reasoning on which it is based.
22. I entirely agree with my learned brother Sarkaria, J.
23. Reference answered in the affirmative.