Appeal No 311 of 1962
Appeal by special leave from the judgment and decree dated February 71960 of the Punjab High Court in Regular First Appeal No 190 of 1953
Shiv Charan Singh and Janardan Sharma for the appellants
Achhru Ram and Brijbans Kishore for respondents Nos 1 to 3
901 1963
April 9
The judgment of the Court was delivered by SARKAR J
The appellants are the sons of Umed Singh one of the respondents in this appeal
They filed a suit for 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 are the purchasers of the lands from the father
It is not
in dispute that the lands are ancestral and that the parties are jats of Jhajjar Tehsil in Rohtak District
The only question is as to the existence of a custom giving a jat holding agricultural ancestral lands in Jhajjar Tehsil in District Rohtak in Punjab free power to transfer them for consideration
The trial Court and the High Court of Punjab in first appeal held that there was such customary power
Indeed in view of the large number of decisions in which it has been consistently held that a sale or mortgage of ancestral land by a holder is not liable to be set aside at the instance of his sons or other reversionary heirs unless the transaction was for immoral purposes it is impossible to take any other view
We were referred to over a dozen cases and we are sure there are more
The earliest of these was decided in 1913 and the latest in 1956
Excepting in one case to which we shall later refer nowhere has it been held that the transfer by way of a sale or mortgage of ancestral property by a holder is liable to be set aside at the instance of a son or a reversionary heir unless the transaction had been for immoral purposes
The present is not a case of that kind for though the appellants alleged that the sale was for immoral purposes it has been found that it Was not so
We may refer here to some of these cases  Telu vs Chuni 1 Giani vs Tek Chand 2 1 2 Lah
111 902 Behari vs Bhola 1 Abdul Rafi Khan vs Lahshmi Chand 2 Ram Datt vs Khushi Ram 3 Pahlad Singh vs Sukhdev Singh 4 Sohan lal vs Rati Ram 5 and Suraj Mal vs Birju 6
Learned counsel for the appellants contended that none of these cases dealt with the custom existing in Jhajjar Tehsil and therefore they could not be authorities on which the present case could be decided
We have first to observe that this statement is not correct for the case of Pahlad Singh vs Sukhdev Singh 4 dealt with the custom in Jhajjar Tehsil
That appears from the judgment of the District Judge in that case which is Exh D 5 in this case
Furthermore we notice that many of the cases to which we have earlier referred treated the custom giving the holder unrestricted right to transfer ancestral property for consideration as existing in the whole district of Rohtak  see for example Telu vs Chuni 7 and Sheoji vs Fajar Ali Khan 8
It also appears from the Riwaj i am for Rohtak District recorded in Joseph s Customary Law Manual vol
XXIII p 60 compiled at the settlement of 1909 that the power of alienating for consideration is far wider than in the Punjab proper
 In view of all this we think that the Courts below were not in error in holding that the Jats of Jhajjar Tehsil in Rohtak District had unrestricted power to transfer land for consideration provided of course the transfer was not for immoral purposes
Learned counsel for the appellants then contended that most of the cases on which the respondents relied were cases of sonless holders and even if these cases were rightly decided those which recognised unrestricted power in the case of a holder having a son were not justified by the Riwaj i am entries and should not be followed
11933 ILR 21935 ILR 16 La h 505
3 AIR 1935 Lah
4 5Regular Second Appeal 136 of 1943 Unreported Pb
HC 6Civil Regular Second Appeal No 693 of 1952 Unreported Pb
HC 7 8 903 We are unable to accept this contention
We find nothing in the Riwaj i am entries which would show that the decisions were not justified
In Joseph s Manual it is said that a sonless proprietor has full power to alienate his property by sale or mortgage even if there is no necessity
It is true that it has also been said there that whether a proprietor with sons has the same power is a more doubtful case In spite of this however the Courts have since 1913 consistently held that the power of a holder even where he has sons to alienate ancestral property for consideration is unrestricted
It is not now possible nor would it be right to upset the law settled by these decisions on the slender ground of the doubt expressed in Joseph s Manual
In Tupper s Statements of Customary law vol
2 dealing with Rohtak District it has been said at p 178 that it is quite common for people to sell or mortgage their land
In cases of sale the right of pre emption is observed  paragraph 25
This statement makes no distinction between the case of a man with a son and one without a son
We find nothing in the records of custom to which our attention has been drawn to justify the view that the case of the holder of an ancestral property having a son is different in this regard from that of a holder without one
Furthermore it would be strange if the existence of sons made any difference that the point was not noticed in any of the very large number of cases dealing with the custom
We think that there is a great deal to be said in favour of the contention of Mr Achhru Ram that the restriction on the power to aliente where it exists is based on the agnatic theory and therefore no distinction can be made between a sonless holder and a holder having a son see Gujar vs Sham Das 1
We come now to the only case which takes a different view and on which the appellant naturally laid great stress namely Budal vs Kirpa Ram 1 107 P R 1887
2 76 P R 1914
904 That was a case of a sonless holder
It was held that among Jats in the Rohtak District there was no unlimited power in holders of ancestral property to alienate it
This case has however not been followed in any of the subsequent decisions and in most cases its authority has been discounted
That we think is enough to prevent us at this distance of time from reviving the view taken in that case
Furthermore  as was pointed out this case does not refer to the earlier authorities for example Telu vs Chuni 1
The only authority to which it refers is Tupper s Customary Manual but the view expressed there was not accepted as sufficient authority because in the introduction Tupper said p 173 that Mr Purser who gave him the paper from which he prepared his record did not consider that it can be relied on in doubtful points
This is hardly any reason for there was nothing to show that the customary power was doubtful
It would thus appear that the decision in Budal vs Kripa Ram 2 was not a satisfactory one
In this view of the matter we think that the learned Subordinate judge and the High Court came to the correct conclusion that in Jhaiiar Tehsil a Jat holder had unrestricted power to alienate his ancestral land for a consideration
The appeal is dismissed with costs
1 2 76 P R 1914


Summary:
A jat holding ancestral agricultural land in Jhajjar Tehsil of Rohtak district in Punjab has by custom a power to transfer 900 It for consideration
Such transfer is not liable to be set aside at the instance of his son or other reversionary heir unless the sale was for immoral purposes
The courts have consistently recognised such a power in a proprietor having sons in spite of the observation in Joseph s Customary Law Manual that whether proprietor with sons has the same power is a more doubtful case and that power must now be recognised
There is a great deal to be said in favour of the contention that the existence of a son does not affect that power as the restriction on power to alienate where it exists is based on the agnatic theory
Budal vs Kirpa Ram 76 PR 1914 not followed
Telu vs Chuni  Giani vs Tek Chand Lab
III Behari  Ors vs Bhola  Ors Lab
600 Abdul Rafi Khan vs Lakshmi Chand Lab 505 Ram Datt vs Khushi Ram AIR 1933 Lab
692 Pahlad Singh vs Sukhdev Singh AIR 1938 Lab
524 Sohan Lal vs Rati Ram Regular Second peal No 13643 unreported Pb
High Court Suraj Mal vs Birju Civil Regular Second Appeal No 693 of 1952 unreported Pb
HC Sheoji vs Fajar Ali Khan and Gujar vs Sham Das 107 PR 1887 referred to