1. This second appeal by defendants arises out of a suit brought by Anant Ram and his brother, Jagdish, for a declaration that the sale of the land in suit by Mathura, deceased husband of Mt. Janki, on 23rd Jeth 1990 in favour of Ram Singh and others would not affect their rights after her (Mt. Janki's) death. The plaintiffs' case was, firstly, that the property in suit was ancestral.
Secondly, according to the custom, which bound the parties, such property could not be alienated without consideration and legal necessity and, thirdly, the plaintiffs were minors, when the alienation took place. As such, they filed the suit on attaining majority. Consequently, they sought a declaration, referred to above.
2. The suit was resisted on the grounds, firstly, that the defendants were not aware that the property to suit was ancestral. Secondly, the parties were governed, in matters of alienation, by their personal law and not by custom. Thirdly, that the alienation in question was effected for consideration and on account of legal necessity. Fourthly, the alienation was made with the consent of defendant 7, Ganga Ram, who was the manager of the joint family, consisting of the plaintiffs and defendants 7 and 8.
3. Four issues were, accordingly, framed by the trial Court, which ran as follows:
1. Is the land in dispute ancestral? Onus on plaintiffs.
2. Are the parties governed by custom in the matter of land alienation? If so, what is that custom. Onus on plaintiffs.
3. Is the plaintiffs' suit within time? Onus on plaintiffs.
4. Was the alienation in suit effected for consideration and legal necessity? Onus on defendants. The Subordinate Judge came to the conclusion that the suit lands were ancestral property. As regards issue No. 2, it appears from the judgment of the trial Court that during the course of arguments, parties' counsel conceded that they were governed by the custom alleged. Issue No. 3 was decided in favour of the plaintiffs. On issue No. 4, the Subordinate Judge held that out of the sale consideration of Rs. 498/4/-, a sum of Rs. 350/- was taken for legal necessity. He, therefore, felt that the sale-deed could not be impugned. Consequently, he non-suited the plaintiffs.
4. The plaintiffs then went up in appeal and the District Judge reversing the findings of the trial Judge on issue No. 4 came to the conclusion that the alienation was not for legal necessity and, consequently, it would not bind the plaintiffs after the death of Mt. Janki. He, therefore, set aside the decision of the trial Court and granted the plaintiffs a decree as prayed for. The alienees-defendants have now come up in second appeal to this Court.
5. Learned counsel for the appellants did not dispute the finding of the Courts below on the point of limitation (Issue No. 3). He, however, advanced arguments on the following points : (A) The Courts below have erred in holding that the land in question was ancestral. (B) The custom relied upon by the plaintiffs was not established and the Courts below have erred in holding otherwise. (C) The sale in question was for due consideration and legal necessity and the District Judge has erred in reversing the finding of the Subordinate Judge on this point.
6. I shall deal with each of these points seriatim.
7. (A) Learned counsel was unable to satisfy me that the finding of the Courts below on this point was erroneous. It is true that the District Judge has not discussed this point in detail as in his opinion such a course was not necessary in the absence of cross-objections. The learned District Judge has overlooked the fact that the decree of the trial Court was in favour of the defendants, since the suit had been dismissed.
Under Order 41, Rule 22, a cross-objection could be filed only on a ground, which could have been taken by way of appeal. Since the decree df the trial Court was in favour of the, defendants, there was no question of their filing an appeal against it. Therefore, the view of the District Judge that cross-objections should have been filed by the defendants against the findings on certain issues was clearly erroneous.
8. Learned counsel for the plaintiffs-respondents, invited my attention to the fact that in para 6 of the written-statement (which was signed by a lawyer), no specific denial was made of the ancestral nature of the property in suit. All that the defendants said. was that they were not aware, if the land was ancestral.
From a perusal of the pedigree table, Ex. P-12, and the revenue excerpts furnished by the Sadr Qanungo, Exs. P-7 to P-10 inclusive, it would appear that the plaintiffs' grandfather, Surjan, and Mathura's father, Singharu, were real brothers, that the alienor Mathura and his cousins, Sadhu and Govind, held land in equal shares and the land in suit eventually fell to the lot of the alienor. The trial Court relied upon--'Mt. Maryan Bibi v. Ghulam Muhomad',, AIR 1924 Lah 175 (A), where a Division Bench of that High Court held that:
"Where in a suit by collaterals for succession to the property of the deceased it was found that the property of the plaintiffs was just equal to that of the deceased and the name of the common ancestor was expressly recorded in genealogical trees prepared at different settlements' and one of the khata was still joint : Held in the absence of any indication that the property was self-acquired, the presumption was that it was ancestral."
My attention was also invited by Mr. Anand to--'.Sewa Singh v. Jangir Singh', (S) AIR 1956 SC 1 (B), where their Lordships of the Supreme Court observed that:
"Where the whole land in a Patti which was once owned by a common ancestor was at the time of the Regular Settlement in possession of his descendants according to ancestral share and none of the descendants had acquired any land in the Patti by purchase or introduced strangers in it by selling any portion of his ancestral holding,
Held that an inference could be drawn from the circumstance of equality of holdings and. reference to these in terms of ancestral shares in the settlement that the land had devolved by descent on the descendants."
In the absence of evidence in rebuttal, i.e. to indicate that the land, in suit was self-acquired, it could be inferred legitimately that the land in suit was ancestral property.
9. (B) As already remarked, it appears from, the judgment of the trial Court that during the course of arguments there, the parties' counsel conceded that their clients were governed by the custom relied upon by the plaintiffs.
Mr. Kirti Ram contended that this was a pure question of law and so the pleader's admission would not bind his clients. In this connection, reliance was placed inter alia, on--'Narayan v. Venkatacharya Balkrishnacharya', 28 Bom 408 (C) and--'Kesar v. Buta', AIR 1945 Lah 336 (D). In the former decision, a Division Bench of the Bombay High Court observed that:
"A party is not bound, generally speaking, by a pleader's admission in argument on what is a pure question of law, amounting to no more than his view that the question is unarguable."
In the latter ruling, a Division Bench of the Lahora High Court observed that:
"An admission by a lawyer on a question of law or even on a mixed question of law and fact, is not binding on the client. The question whether the mother under the customary law (Punjab) could have alienated the property of her minor sons is a question of law or at least a mixed question of law and fact. It does not become a question of fact merely because the Court has to ascertain the rule of custom which would govern the parties."
Learned counsel for the respondents pointed out that the grounds of appeal to this Court are silent on this point, i.e. no ground was taken that the defendants were not bound by the admission of their lawyer on the point of custom. The appeal was disposed of by the District Judge on 30-7-1951.
The second appeal to this Court was instituted on 18-9-1951. It was as late as 27-12-1955 that an application under Order 41, Rule 2 was put in by Mr. Kirti Ram, in this Court seeking permission to argue the point of custom. That application was opposed by the other side. This Court, however, permitted the point to be argued (vide this Court's order dated .27-12-1955) i.e. whether the defendants are bound by the admission of their counsel on the point of custom.
It is significant that in their application under Order 41, Rule 2, the defendants seek to treat the point of custom as a point of law. Obviously, issue No. 2 is not a point of law. It is a question of fact to be gone into on the basis of the evidence produced by the parties there being no "Riwaj-i-Am" in Bilaspur district. It would, therefore, be a question of fact and not a question of law. 28 Bom 408 (C) and AIR 1945 Lah 336 (D), would not, in my opinion, be applicable to the facts of the present case.
I may further point out that under Order 41, Rule 2, a new point cannot be taken up in appeal except by leave of the Court. After making the admission before the trial Court, no attempt was made to shake off the admission for nearly five years.
10. Therefore, looked at either way, I do not see any ground for interfering with the finding of the Courts below on this point.
11. (C) Learned counsel for the appellants argued, vehemently, that the alienation in question had been made with the permission of the Ruler of Bilaspur and, therefore, strict proof of legal necessity was not required. Mr. Anand for the respondents pointed out that according to the statement of Harnam Das, former Sub-Registrar (D. W. 4), ruling powers were conferred upon the Raja Sahib only some 7 or 8 months after the alienation in question.
I Therefore, the Ruler was not competent to accord ''sanction".
Even if we assume for the sake of argument that t here was a proper sanction, it could not, obviously, debar the plaintiffs from showing that the alienation was not made for due consideration and legal necessity. Mr. Kirti Ram, then, argued that since Mathura (the alienor) had taken no steps to challenge the alienation during his lifetime, a presumption would arise in favour 'of the alienees.
Reliance was placed, in this connection, on--'Surendar Singh v. Chaudhri Ghulam Mohammad', AIR 1939 PC .150 (E), wherein their Lordships remarked that:
''According to the customary law of the' agriculturists of the Punjab, a father is not competent to mortgage the ancestral lands without legal necessity. Where he has mortgaged ancestral lands the onus lies on the mortgagee of proving either that there was legal necessity in fact which would justify the mortgage, or that he made a proper and bona fide inquiry into the alleged necessity and satisfied himself as to the existence of such necessity. If he discharges this burden he is not bound to see that the money paid by him is actually applied by the mortgagor to meet the necessity.
The payment of the debts of a mortgagor is a legal necessity, if such debts can be described as 'just debts'. A just debt means a debt which is actually due and is not immoral, illegal, or opposed to public policy, and has not been contracted as an act of reckless extravagance or of wanton waste, or with the intention of destroying the interests of the reversioners."
Mr. Kirti Ram invited my attention to the contents of para 3 of the plaint and pointed out that there is no allegation that the debts, which resulted in the alienation in question were immoral, opposed to public policy. Mr. Anand, on the other hand, pleaded that this ruling would not help the appellants in view of the District Judge's finding that the debts in question were not just debts. On the other hand, he held that they were acts of extravagance.
12. The sale consideration of Rs. 498/4/- was made up of the following items : (i) Rs. 100/- advanced by Ram Singh to Mathura on 2 Chet 1987 for performing the Chaubarkha ceremony of his mother, vide Bahi entry Ex. D-2. (ii) Rs. 100/- advanced by Ram Singh to Mathura on 13th Har 1988 for his business, vide Bahi entry Ex. D-3. (iii) Rs. 130/- advanced by Ram Singh to Mathura on 10th Phagun 1989, vide bond Ex. D-4. (iv) Interest Rs. 52/-, registration charges Rs. 20/-, paid before the Sub-Registrar Rs. 96/4/- totalling Rs. 498/4/-.
The District Judge has referred to the following suspicious features regarding these transactions.
(1) Mathura owned land, and carried on agriculture as well as money lending business on small scale. He was also a priest as deposed by D. W. 2 Dayaram. It was strange, therefore, that Mathura had to borrow small sums of money from Ram Singh.
(2) Ram Singh was Judicial Secretary-cum-Registrar at the time of the alienation. He was also the Ruler's uncle. The Sub-Registrar, Harnam Das, was directly his subordinate. (3) Daya Ram, the scribe of the Bahi entries, Exs. D-2 and D-3, used to maintain the accounts of Rain Singh and was often called by him. Further, Daya Ram had purchased certain lands from Mathura regarding which a suit was pending. (4) Sheru, the attesting witness, of Exs. D-2 and D-3 was in the service of Rani Singh. (5) While Ex. D-4, bond, is on stamped paper, Exs. D-2 and D-3, were mere entries in the Bahi.
Further, although in the bond Ex. D-4, Mathura undertook to mortgage his lands to Ram Singh in lieu of debts', there is no reference therein to the earlier transactions sought to be evidenced by Exs. D-2 and D-3. Under these circumstances, I concur with the view of the lower appellate Court that these transactions were highly suspicious.
In my opinion, it is very doubtful if there was any passage of consideration. Legal necessity was, not at all, made out in this case. In view of fee above conclusion,--'Muhammad Bakhsh v. Balanda', AIR 1921 Lah 112 (F);--'Balbir Singh v. Gobind', AIR 1923 Lah 532 (G);--'Atma Ram v. Sadhu Singh', AIR 1938 PC 77 (H) and--'Babu Lal Nandram v. Maniklal Beharilal', AIR 1941 Nag 79 (I), have no relevancy to the facts of the present case.
13. In view of my findings on points (A), (B) and (C) above, the present appeal fails.
14. There is an application under Order 6, Rule 17 read with Order 7, Rule 7 and Section 151, Civil P. C., by the plaintiffs, wherein 1 am requested to permit the relief sought in the plaint to be amended in this way that instead of a mere declaration, a decree for possession may be granted. The application has become necessary since Mt. Janki, defendant 1, died after the disposal of the appeal by the District Judge. The application is opposed by the defendants-appellants on the ground that amendment, if permitted, would change the character of the suit and create further complications.
I heard learned counsel for the parties on this application. Mr. Kirti Ram contended that if the amendment is allowed, fresh issues would have to be framed, needing production of fresh evidence. In other words, the entire case would have to be reopened. He suggested that the proper course for the plaintiffs would be to withdraw the suit under Order 23, R. 1 with permission to file a new suit.
Mr. Anand stated in reply that his clients were not in favour of such a course as the question of limitation might arise. He, however, conceded that if amendment is not permitted, it would be open to his clients--in case the decree of the District Judge is maintained by this Court--to file a separate suit for possession. All circumstances considered, I am of the opinion that amendment should not be granted. The decree of the District Judge is being upheld by this Court. The plaintiffs may separately sue for possession, if so advised. Consequently, the application under Order 6, Rule 17 read with Order 7, Rule 7 and Section 151, Civil P. C., is rejected.
15. The appeal is dismissed with costs payable to the plaintiffs-respondents (Anant Ram and Jagdish).