Innamuri Gopalan And Others vs State Of Andhra Pradesh And Anr.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 311 of 1962

Decision Date: 9 April 1963

Coram: SARKAR J., B. P. SINHA C.J.

In the matter titled Innamuri Gopalan and Others versus State of Andhra Pradesh and Another, the Supreme Court of India delivered its judgment on the ninth day of April, 1963. The petitioners were identified as Innamuri Gopalan and several others, while the respondents were the State of Andhra Pradesh together with an additional party. The bench was presided over by B. P. Sinha, C. J., joined by Justice C. S. Date of judgment was recorded as 09/04/1963. The appeal arose under the provisions of the Civil Appellate Jurisdiction, being Civil Appeal No. 311 of 1962, and was taken by special leave from a decree dated 7 February 1960 pronounced by the Punjab High Court in Regular First Appeal No. 190 of 1953. The case concerned custom‑ancestral agricultural lands situated in Jhajjar Tehsil of Rohtak District, which at that time formed part of the State of Punjab. The central issue was whether a Jat who held such ancestral agricultural land possessed an unrestricted customary power to transfer the land for consideration, and whether the rights of his son or other reversionary heirs could be invoked to set aside such a transfer unless the transaction was carried out for immoral purposes. The headnote of the report summarised that, according to long‑standing custom, a Jat holder could indeed sell the land for consideration and that such a sale could not be challenged by his son or other reversionary heir unless it was for immoral purposes. The headnote further noted that the courts had consistently recognised this power even where the holder had sons, notwithstanding an earlier observation in Joseph’s Customary Law Manual that the existence of sons made the power doubtful. The headnote cited a series of authorities that had supported this view, including Budal v. Kirpa Ram (76 P.R. 1914), Telu v. Chuni (231 P.L.R. 1913), Giani v. Tek Chand (1923) I.L.R. 4 Lab. III, Behari & Ors. v. Bhola & Ors. (1933) I.L.R. 14 Lab. 600, Abdul Rafi Khan v. Lakshmi Chand (1935) I.L.R. 16 Lab. 505, Ram Datt v. Khushi Ram, A.I.R. (1933) Lab. 692, Pahlad Singh v. Sukhdev Singh, A.I.R. (1938) Lab. 524, Sohan Lal v. Rati Ram, Regular Second Appeal No. 136/43 (unreported), Suraj Mal v. Birju, Civil Regular Second Appeal No. 693 of 1952 (unreported), Sheoji v. Fajar Ali Khan, 230 P.L.R. 1913 and Gujar v. Sham Das, 107 P.R. 1887, all of which were referred to in support of the custom.

The judgment, delivered by Justice Sarkar, observed that the appellants were the sons of Umed Singh, who was one of the respondents in the appeal. They had instituted a suit seeking a declaratory decree that the sale of certain lands by their father, Umed Singh, was void against them and the other reversionary heirs. The contesting respondents were the purchasers who had acquired the lands from the father. It was undisputed that the lands in question were ancestral and that the parties involved were Jats belonging to Jhajjar Tehsil in Rohtak District. The sole question before the Court was whether a customary right existed that gave a Jat, holding agricultural ancestral lands in Jhajjar Tehsil, an unrestricted power to transfer those lands for consideration. The trial court and the Punjab High Court, in the first appeal, had held that such a customary power did indeed exist. The Supreme Court noted that a large body of case law consistently held that a sale or mortgage of ancestral land by a holder could not be set aside by his sons or other reversionary heirs unless the transaction was for immoral purposes. The Court referred to more than a dozen decisions spanning from 1913 to 1956, acknowledging that except for one case to be mentioned later, no authority had held otherwise. Consequently, the Court affirmed the view that the customary power to alienate ancestral agricultural land was valid and could not be challenged by the heirs absent evidence of immorality in the transaction.

Both parties were identified as Jats residing in Jhajjar Tehsil of Rohtak District. The sole issue before the courts was whether a customary right existed that permitted a Jat who held agricultural ancestral lands in Jhajjar Tehsil to transfer those lands for monetary consideration without needing any further authority. The trial court and, subsequently, the Punjab High Court on first appeal both concluded that such a customary power did indeed exist. This conclusion was supported by a substantial body of case law in which courts repeatedly held that a sale or mortgage of ancestral land made by the holder could not be annulled by his sons or other reversionary heirs unless the transaction was undertaken for immoral purposes. The record showed that more than a dozen decisions were cited, with the earliest decision dating back to 1913 and the most recent to 1956. Apart from a single exception that will be mentioned later, none of these authorities declared that a transfer by sale or mortgage of ancestral property could be set aside on the petition of a son or a reversionary heir unless the transfer was immoral. In the present matter, the appellants alleged that the sale had been made for immoral purposes, but the evidence established that the sale was not immoral, and therefore the earlier rulings applied.

The judgment referenced several specific cases, namely Telu v. Chuni (1), Giani v. Tek Chand (2), Behari v. Bhola (1), Abdul Rafi Khan v. Lahshmi Chand (2), Ram Datt v. Khushi Ram (3), Pahlad Singh v. Sukhdev Singh (4), Sohan Lal v. Rati Ram (5) and Suraj Mal v. Birju (6). Counsel for the appellants argued that none of these cases dealt with the particular custom alleged to exist in Jhajjar Tehsil, and therefore they could not be relied upon. The court rejected this contention, noting that the case of Pahlad Singh v. Sukhdev Singh (4) expressly examined the custom in Jhajjar Tehsil, as shown by the District Judge’s judgment attached as Exhibit D‑5. Moreover, several of the cited authorities, such as Telu v. Chuni (7) and Sheoji v. Fajar Ali Khan (8), treated the custom of granting the holder an unrestricted right to transfer ancestral property for consideration as prevailing throughout Rohtak District. This understanding was further corroborated by the entry in Joseph’s Customary Law Manual, volume XXIII, page 60, compiled during the 1909 settlement, which observed that “the power of alienating for consideration is far wider than in the Punjab proper.” In light of these authorities and the historical custom, the courts below were correctly found not to have erred in holding that the Jats of Jhajjar Tehsil in Rohtak District possessed an unrestricted power to transfer land for consideration, provided the transfer was not for immoral purposes.

In this case the Court observed that the Jats of Jhajjar Tehsil possessed an unrestricted power to transfer land for consideration, provided that the transfer was not for immoral purposes. Counsel for the appellants argued that the authorities relied upon by the respondents mainly involved sonless holders, and that even where decisions recognized an unrestricted power for a holder with a son, those decisions were not supported by the entries in the Riwaj‑i‑am and therefore should not be followed. The appellants cited several reports, namely (1) I.L.R. 14 Lah. 600 (1933), (2) I.L.R. 16 Lah. 505 (1935), (3) A.I.R. 692 (1935), (4) Lah. 524 (1938), (5) Regular Second Appeal 136 of 1943 (unreported, Punjab High Court), (6) Civil Regular Second Appeal No. 693 of 1952 (unreported, Punjab High Court), (7) 231 P.L.R. 1913, and (8) 230 P.L.R. 1913. The Court was unable to accept this contention. It found no indication in the Riwaj‑i‑am entries that the cited decisions were unjustified. The Court noted that Joseph’s Manual stated that a sonless proprietor had full power to alienate his property by sale or mortgage even without necessity, while also observing that the question of whether a proprietor with sons possessed the same power was described as a more doubtful case. Nevertheless, the Court pointed out that since 1913 the courts had consistently held that even a holder with sons could alienate ancestral property for consideration without restriction. The Court held that it would neither be possible nor appropriate to upset the settled law on the slender ground of the doubt expressed in Joseph’s Manual. Moreover, the Court referred to Tupper’s Statements of Customary Law, volume 2, relating to Rohtak District, which at page 178 explained that it was quite common for people to sell or mortgage their land and that in cases of sale the right of pre‑emption was observed. The statement made no distinction between a man with a son and one without a son. The Court found nothing in the custom records presented that justified treating a holder with a son differently from a holder without a son. It further observed that it would be strange if the existence of sons made any difference, a point not noticed in the large number of cases dealing with the custom.

The Court also considered the contention of Mr Achhru Ram that any restriction on the power to alienate, where it existed, was based on the agnatic theory and therefore no distinction could be drawn between a sonless holder and a holder with a son, as illustrated in the case of Gujar v. Sham Das. The Court then turned to the only case that presented a contrasting view and on which the appellant placed great emphasis, namely Budal v. Kirpa Ram, reported in (1) 107 P.R. 1887 and (2) 76 P.R. 1914. That case involved a sonless holder. The Court noted the significance of this decision but placed it in the broader context of the prevailing authority that consistently recognized an unrestricted power to alienate ancestral property, regardless of whether the holder had sons.

It was observed that, with respect to the Jat community residing in Rohtak District, the holders of ancestral land did not possess an unlimited authority to transfer or alienate such property. The decision that articulated this principle, however, has not been adopted in any later judgments, and in the majority of subsequent cases the view expressed therein has been treated as lacking persuasive value. The Court considered that this lack of later endorsement, together with the passage of time, was sufficient to prevent the revival of the earlier view. Moreover, it was highlighted that the decision in question failed to cite earlier authorities that dealt with the same custom, for instance the earlier case of Telu v. Chuni (1). The sole reference cited by that decision was to Tupper’s Customary Manual. Nevertheless, the opinion expressed in the Manual was not deemed an adequate source of authority because, in the introductory part of the Manual, the author Tupper recorded on page 173 that the paper supplied to him by Mr. Purser “did not consider that it can be relied on in doubtful points.” This qualification was regarded as an insufficient basis for accepting the Manual’s statement, especially since there was no evidence to demonstrate that the customary right itself was uncertain. Consequently, the judgment in Budal v. Kripa Ram (2) was viewed as unsatisfactory. In light of this analysis, the Court agreed with the conclusions reached by the learned Subordinate Judge and the High Court, namely that in Jhaiiar Tehsil a Jat land‑holder possessed an unrestricted power to alienate his ancestral land in exchange for consideration. Accordingly, the appeal was dismissed and costs were awarded to the respondents. (1) 231 P. L. R. 1913. (2) 76 P. R. 1914.