Sube Singh And Anr. vs Kanhaya And Ors.

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 9 April, 1963

Coram: A.K. Sarkar, J.C. Shah, M. Hidayatullah

In this matter, the appellants were identified as the sons of Umed Singh, who was himself one of the respondents. The appellants had instituted a suit seeking a declaratory decree that the sale of certain tracts of land by their father, Umed Singh, should be declared void against them and the other reversionary heirs. The respondents who opposed the suit were the purchasers who had acquired the lands from the father. It was undisputed that the lands in question were ancestral and that all parties belonged to the Jat community of Jhajjar Tehsil in Rohtak District. The central issue therefore turned on whether a custom existed that granted a Jat, who held agricultural ancestral lands in Jhajjar Tehsil, an unrestricted power to alienate those lands for consideration. The trial court, followed by the High Court of Punjab on first appeal, held that such a customary power did indeed exist. The courts further observed that a large body of case law consistently held that a sale or mortgage of ancestral land by the holder could not be set aside at the instance of his sons or other reversionary heirs unless the transaction was undertaken for immoral purposes. Consequently, the lower courts found it impossible to adopt any other view.

The appellate judges were presented with references to more than a dozen decisions that examined this custom, ranging from the earliest decision in 1913 to the most recent in 1956. Except for one case that would be discussed later, none of those authorities had ever held that a transfer by way of sale or mortgage of ancestral property by the holder could be set aside by a son or reversionary heir unless the transaction was immoral. The present case did not fall within that exception, because although the appellants alleged that the sale was for immoral purposes, the evidence showed that it was not. The judgments cited included Telu v. Chuni (231 P.L.R. 1913), Giani v. Tek Chand ((1923) I.L.R. 4 Lah. 111), Behari v. Bhola ((1933) I.L.R. 14 Lah. 600), Abdul Rafi Khan v. Lahshmi Chand ((1935) I.L.R. 16 Lah. 505), Ram Datt v. Khushi Ram (A.I.R. (1935) Lah. 692), Pahlad Singh v. Sukhdev Singh (A.I.R. (1938) Lah. 524), Sohan Lal v. Rati Ram (Regular Second Appeal 136 of 1943, unreported, Punjab High Court) and Suraj Mal v. Birju (Civil Regular Second Appeal No. 693 of 1952, unreported, Punjab High Court). Counsel for the appellants argued that none of these cases dealt with the specific custom existing in Jhajjar Tehsil and therefore could not be regarded as binding authority for the present dispute. The Court observed that this contention was inaccurate, noting that the case of Pahlad Singh v. Sukhdev Singh (A.I.R. (1938) Lah. 524) indeed addressed the custom in Jhajjar Tehsil, as shown by the District Judge’s judgment reproduced as Exhibit D‑5. The Court therefore concluded that the lower courts were correct in holding that the Jats of Jhajjar Tehsil possessed an unrestricted power to transfer ancestral land for consideration, provided that the transfer was not for immoral purposes.

In this matter, the Court observed that the custom referred to by the District Judge in the earlier decision, which is reproduced as Exhibit D 5, pertained to Jhajjar Tehsil. The Court further noted that numerous earlier decisions that had been cited earlier in the proceedings recognized a custom that granted the holder an unrestricted right to transfer ancestral property for consideration throughout the entire Rohtak District. Illustrative authorities included Telu v. Chuni (231 P.L.R. 1913) and Sheoji v. Fajar Ali Khan (230 P.L.R. 1913). In addition, the Court pointed out that the “Riwaj‑i‑am” for Rohtak District, as recorded in Joseph’s Customary Law Manual, volume XXIII, page 50, compiled during the settlement of 1909, expressly stated that “the power of alienating for consideration is far wider than in the Punjab proper.” Considering these sources, the Court concluded that the lower courts were correct in holding that the Jats of Jhajjar Tehsil in Rohtak District possessed an unrestricted power to transfer land for consideration, provided that such transfer was not made for immoral purposes.

The counsel for the appellants then argued that the majority of the cases relied upon by the respondents involved sonless holders, and that even if those cases were correctly decided, the decisions that recognized an unrestricted power for a holder who had a son were not supported by the “Riwaj‑i‑am” entries and therefore should not be followed. The Court rejected this contention. It found no indication in the “Riwaj‑i‑am” entries that would invalidate the earlier decisions. Joseph’s Manual, for instance, states that “a sonless proprietor has full power to alienate his property by sale or mortgage even if there is no necessity,” and also observes that “whether a proprietor with sons has the same power is a more doubtful case.” Nevertheless, the Court emphasized that since 1913 the courts have consistently held that even a holder with sons enjoys an unrestricted power to alienate ancestral property for consideration. The Court held that it would neither be possible nor appropriate to disturb the settled law on the narrow ground of the doubt expressed in Joseph’s Manual. Moreover, Tupper’s Statements of Customary Law, volume 2, page 178, concerning Rohtak District, records that “it is quite common for people to sell or mortgage their land. In cases of sale, the right of pre‑emption is observed,” and makes no distinction between a man with a son and one without. The Court found no evidence in the custom records that would justify 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, given that such a distinction was not noted in the large number of cases dealing with the custom. Consequently, the Court affirmed the view that the customary law does not differentiate between sonless holders and those with sons regarding the power to alienate ancestral property.

The Court observed that there was a great deal to be said in support of the contention advanced by Mr Achhru Ram that any restriction on the power to alienate, where such a restriction exists, is founded upon the agnatic theory and therefore no distinction can be drawn between a holder who has no son and a holder who has a son. In support of this proposition, the Court referred to the decision in Gujar v. Sham Das [107 P.R. 1887]. The Court then turned to the only case that adopts a different view and on which the appellant naturally placed great emphasis, namely Budal v. Kirpa Ram [76 P.R. 1914]. That case involved a sonless holder and the ruling held that among Jats in the Rohtak District there was no unlimited power in holders of ancestral property to alienate such property. The Court noted, however, that this decision has not been followed in any subsequent decisions and that, in most later cases, its authority has been discounted. The Court considered that this lack of later endorsement was sufficient to prevent, at this distance of time, the revival of the view expressed in that decision. Moreover, the Court pointed out that the Budal judgment does not refer to earlier authorities such as Telu v. Chuni [231 P.L.R. 1913]. The only authority cited by the Budal case is Tupper’s Customary Manual, but the Court observed that the view expressed there was not accepted as sufficient authority because, in the introduction to the manual (page 173), Tupper recorded that Mr Purser, who supplied the paper from which Tupper prepared his record, “did not consider that it can be relied on in doubtful points”. The Court held that this disclaimer is hardly a reason to conclude that the customary power was doubtful, and consequently the decision in Budal v. Kirpa Ram [76 P.R. 1914] was not a satisfactory one. In this view of the matter, the Court agreed with the findings of the learned Subordinate Judge and the High Court that, in Jhajjar Tehsil, a Jat holder possessed unrestricted power to alienate his ancestral land for consideration. Accordingly, the appeal was dismissed with costs.