vil Appeal No 1934 of 1972
From the Judgment and Order dated 912
1971 of the Punjab and Haryana High Court in regular Second Appeal No 1286 of 1969
VC Mahajan KR Nagaraja NP and RS Hegde for the Appellant
419 Uma Dutta EC Agarwala Ms Sheil Sethi and Susheel Kumar for the Respondents
The Judgment of the Court was delivered by KN SAIKIA J
This first defendant s appeal by special leave is from the Judgment and Decree of the High Court of Punjab and Haryana in RSA No 1286 of 1969 dated 912
Respondents 4 to 6 Balwant Singh Jagir Singh and Teja Singh sons of Kehar Singh sold land measuring 38 Kanals 3 Marlas being 35th share of 63 Kanals 11 Marlas of ances tral land situated at village Maherna Kalan Tehsil and District Ludhiana as per sale deed dated June 4 1964 in favour of the appellant first defendant for Rs 14000 as the vendors left their village Maherna Kalan and had not been cultivating the same and it was not yielding any prof it
The sale deed contained a recital that the vendors sold the land with a view to purchase land in another village
On November 6 1965 the vendors actually purchased 80 Kanals of Nehri land for Rs 11000
The parties are admittedly Jat Sikhs governed by Punjab Customs
Respondents 1 to 3 filed a declaratory suit on August 3 1966 in the Court of Sub Judge Ludhiana seeking a declara tion that the sale of the suit land would not affect their reversionary rights after the death of respondents 4 to 6 as they were governed by the custom in the matter of alienation inasmuch as the suit land was ancestral in the hands of the alienors qua the plaintiffs respondents 1 to 3 and that the sale was effected without consideration and without legal necessity and respondents 4 to 6 defendants 2 to 4 were restrained from alienating under the custom
The appellant averred inter alia that the sale was for consideration and legal necessity as it was an act of good management on the part of the alienors that respondents 4 to 6 who were not sonless and were men of good character and sober habits that migrating from their village they had settled elsewhere as they were neither cultivating the suit land nor were in a position to manage and cultivate the same and that the alienors had actually purchased 80 Kanals of better quality Nehri land which showed that the sale was an act of good management on the part of the vendors
It was also contended that the land in suit was not ancestral qua the plaintiffs nor was it governed by customs and that the plaintiffs had no locus standi
420 The respondents 4 to 6 being defendants 2 to 4 admitted the claims of the plaintiffs
The respondent No 5 who was the brother of respondent No 2 was impleaded as proforma defendant having the same interest as the plaintiffs
The Trial Court inter alia held that the parties in respect of the sale of the suit land were governed by custom whereunder ancestral land could not be alienated except for legal necessity or as an act of good management that the suit land was ancestral qua the plaintiffs respondents 1 to 3 and defendants 2 to 4 respondents 4 to 6 that the sale was effected for consideration of Rs 14000 as stipulated in the sale deed and that the sale was an act of prudent management on the part of the vendors and as such unimpeach able
The suit having been dismissed and the first appeal therefrom having failed the respondents 1 to 3 preferred RSA No 1286 of 1969 in the High Court of Punjab and Haryana wherein they sought to adduce additional and further evidence of a sale deed dated June 3 1969 alleged to have been executed by respondents 4 to 6 in respect of the suit land
The High Court allowed the RSA and set aside the sale holding that it was neither for any legal necessity nor could it be justified as an act of good management
The suit was accordingly decreed
The certificate to file Letters Patent Appeal having been refused the appellant obtained special leave
Mr VC Mahajan the learned counsel for the appellant submits that whether the sale was or was not an act of good management having been a question of fact the Trial Court and the first appellate court having arrived at a concurrent finding that it was an act of good management and as such unimpeachable this concurrent finding could not have been set aside by the High Court in second appeal that the sale deed dated June 3 1969 which was never accepted and proved according to law was irrelevant for impeaching the sale and the High Court erred in law in taking it into consideration while determining whether the sale was an act of good man agement
Mr Uma Dutta learned counsel for the respondents submits inter alia that the sale of the suit land measur ing 38 Kanals 3 Marlas being on June 4 1964 and the subse quent purchase of 80 Kanals for Rs 11000 being on November 8 1965 and that land also having subsequently been sold on June 3 1969 for Rs35000 and there being no evidence to show that the suit land was less fertile or that the vendors 421 had settled at village Pather the High Court was correct in holding that the impugned sale was not an act of good man agement
The only question to be decided in this appeal there fore is whether the High Court was correct in setting aside the concurrent finding that the impugned sale was an act of good management and not restricted by custom
It is common ground that the parties are governed by the local custom which restricts alienation
About the custom WH Rattigan in his A Digest of Customary Law in the Punjab  14th Ed in Chapter IV at page 283 said Thus while the unhampered exclusive use of property in a man s possession whether ancestral or acquired for his lifetime with a free disposal of the income is not denied freedom of alienation whether by gift or bequest is in regard to ancestral immovable property subject in most cases to certain restrictions A late Senior Judge of the Chief Court  in a leading case Nos
107 PR 1887 page 247 expressed generally that respect of ancestral immovable properly in the hands of any individual
there exists some sort of residuary interest in all the descendants of the first owner
or body of owners however remote and contingent may be the proba bility of some among such descendants ever having the enjoy ment of the property
In short the owner in possession is not regarded as having the whole and sole interest in the 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
The limitations within which per sons having or claiming to have such a residuary interest may prevent an owner in possession from defeating their expectations will be found to vary according to local cir cumstances which may either weaken or rebut the presumption that the owner has not an unrestricted power of disposition
 422 Sir Meredyth Plowden in Gujar vs Sham Das 107PR 1887 also said In respect of ancestral immovable property in the hands of any individual there exists some sort of residuary interest in all the descendants of the first owner or body of owners however remote and contingent may be the probability of some among such descendants ever having the enjoyment of the property
The owner in possession is not regarded as having the whole and sole interest in the 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
 In the critical words of Chief Justice Sir Shadi Lal in Gujar vs Sham Das supra the issues before the Court were whether in a case where the power of a sonless Jat proprie tor to alienate ancestral land without necessity was in dispute it was the duty of the alienee to prove a custom authorizing a transfer of the ancestral land in favour of stranger and on whom lay the onus of proving that a sonless proprietor has powers to dispose of ancestral land without necessity and the rest were mere deductions
In para 59 at page 291 of the Digest Rattigan states the restrictions on alienation of ancestral immovable property thus Ancestral immovable property is ordinarily inalienable especially amongst Jats  residing in the central districts of the Punjab except for necessity or with the consent of male descendants or in the case of a sonless proprietor of his male collaterals
Provided that a proprietor can alienate ancestral immovable property at pleasure if there is at the date of such alienation neither a male descendant nor a male collateral in existence No 36 PR 1895 No 55 PR 1903 FB In other words the custom is that the ancestral immova ble property is ordinarily inalienable especially amongst Jats residing in the Central Districts of Punjab except for necessity and the other permis 423 sible reasons
An alientation as a bona fide act of good management has been treated as one of necessity and hence valid
At page 388 of the Digest we find the gloss In the case of a male proprietor in the management of agricultural affairs a very strict economy and a very excel lent management must not be insisted upon
Ordinary bona fide management is all that can be demanded No 70 PR 1894 No 20 PWR 1911 No 40 PWR 1911 and No 25 PR 1911 1922 69 Ind Case 521 exchange of land
Where although no immediate necessity for a sale is established if the sale has been held to be an act of good management it is binding on the reversioners
 The above statement has been commented upon as being a bit wide and the suggested statement is that such a sale must be upheld 
In Mohammad Chiragh and Ors
vs Fatta  Ors
 AIR 1934 Lahore 452 where although no immediate necessity for sale was established but there was a recital in the sale deed that the vendors intended to purchase other land with the proceeds of the sale and a representation of that kind was made to the vendees which might have been believed by them in good faith the High Court did not see any good grounds for interference with the findings of the learned District Judge that the sale was an act of good management which it was observed was essentially a find ing of fact
 In Abdul Rafi Khan vs P Lakshmi Chand  Ors AIR 1934 Lahore 998 where the members of the family finding their position in the village precarious due to deteriorating relations between it and the tenants in the village sold their Land one by one as they found it diffi cult to manage them or recover rent and the vendors moved to another place where they purchased certain land it was held that the sale of the land was an act of good management and the vendee was not expected to see to the application of the money by the vendors to the purposes mentioned in the sale deed
Similarly in Dial Singh vs Surain Singh AIR 1937 Lahore 493 the question was whether a sale of ancestral land was for necessity
On April 3 1934 Bhagwan Singh sold ancestral land for Rs 1500 the entire consideration being paid to him before the Sub Registrar
The object of the sale was the purchase of land in Bikaner and Gwalior States and actually since the sale Bhagwan Singh spent 424 about Rs 160 in buying about 100 bighas of land in Gwalior
The lower courts concurrently found that the sale was for
necessity
Before the District Judge it was urged that the money had not been actually spent on the purpose for which it was raised
But the learned District Judge held that this was admitted to be correct that all that the alienee had to do was to see that the money was required for a legitimate purpose
The sole question therefore was whether the sale in order to buy land in Gwalior and Bikaner was an act of good management which would be regarded as one of necessi ty
The Division Bench held that no sufficient reason had been shown for dissenting from the concurrent finding of the courts below that the sale of land by Bhagwan Singh in the presence of his elder son was for necessary
In Gajjan Singh  Ors
vs Anna Singh 1968 PLR Vol
70 195 it was held that no person could be tied down to the village where he had ancestral land unless it was shown that he was leaving the village or disposing of the land in the village on some false pretext
Where relations of a proprie tor with his brother were strained and he sold the land to purchase land in some other village the alienation was held to be an act of good management and that once a true repre sentation was made by the vendor the vendees were not to see the application of the money and they need not prove that the money in fact was utilised for a necessary purpose
It was further held that the land purchased with the sale proceeds of the ancestral land did not cease to be ancestral and it remained ancestral land
In the instant case the vendee proved the ingredients of good management and the concurrent finding of the Trial Court and the first Appellate Court was that the impugned sale was an act of good management and it was essentially a finding of fact
Applying the law as enunciated in the above decisions we do not find any infirmity therein
The submis sions of the learned counsel for the respondents that in view of the subsequent sale of the land would go to show that it was speculative sale would be wholly irrelevant
There was evidence to show that even prior to the sale the vendors were not cultivating and as such not deriving any profit from the land
The distance of time between the impugned sale on June 4 1964 and the purchase of 80 Kanals of land in the other village on November 6 1965 was not such as to disprove that the sale was an act of good manage ment and as such was for necessity
The Trial Court clearly found that the vendors left for and settled at the new village where they purchased 30 Kanals of land
The averment that the purchased land was subsequently sold on June 425 3 1969 at Rs35000 besides having not been proved in accordance with law was wholly irrelevant for the purpose of discharging the onus of the appellant vendee
The High Court was therefore in error in setting aside the concur rent finding of fact in the facts and circumstances of the case in Second Appeal
In the result this appeal is allowed the impugned Order of the High Court is set aside and Decree of the lower courts in the suit restored
The parties being near rela tions we leave them to bear their  own costs
Y Lal Appeal allowed


Summary:
The appellant purchased certain properties by way of registered sale deeds
She constructed therein a godown and a two storeyed building with the knowledge and assistance of the respondent who did not say anything about the common passage and had never expressed his intention to pre empt the sales
Soon after the construction was over the respondent sent a notice to the appellant claiming his right to pre empt the sale
The appellant gave a reply to the notice
However respondent filed a suit for preemption in relation to the said properties
The appellant pleaded that the respondent was estopped from claiming the pre emption
Principle of waiver was also pleaded
The Trial Court dis missed the suit of the respondent and he preferred an appeal before the District Judge which was also dismissed
Respondent preferred a regular second appeal before the High Court
The High Court allowed the appeal holding that the principles of estoppel and waiver had no application against the pre emptor to preempt the suit and set aside the orders of the Courts below
Aggrieved against the High Court s order the appellant has preferred this appeal by special leave
Allowing the appeal this Court HELD 11 Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith
It operates as a check on 350 spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished
It is invoked and applied to aid the law in administration of justice
But for it great many injustice may have been perpetrated
162D E 12 Legal approach of the High Court that no estoppel could arise unless notice under Section 8 of the Rajasthan Pre emption Act was given by the seller and pre emptor should have had occassion to pay or tender price ignores the fallacy that Estoppel need not be specifically provided as it can always be used as a weapon of defence
162G H 2
There can be no estoppel against statute
Equity usually follows law
Therefore that which is illegal cannot be enforced by resorting to rule of estoppel
Such an exten sion may be against public policy
The distinction between validity and illegality or the transaction being void is clear and well known
The former can be waived by express or implied agreement or conduct
But not the latter
163D  F G Shalimar Tar Products Ltd vs HC Sharma   Equitable Life Assurance Society of the United States vs Reed 14 AC 587 Bishan Singh vs Khazan Singh  and Radha Kishan vs Shridhar AIR 1960 SC 1369 referred to
The provision in the Pre emption Act requiring a vendor to serve notice on persons having right of pre emp tion is condition of validity of transfer and therefore a pre emptor could waive it
Failure to serve notice as re quired under the Act does not render the sale made by vendor in favour of vendee ultra vires
The test to determine the nature of interest namely private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved
If the answer is latter then it may be difficult to put estoppel as a defence
The Act does not provide that in case no notice is given the transaction shall be void
The objective is to intimate the pre emptor who may be interested in getting himself substituted
It does not debar the pre emptor from giving up this right
Rather in case of its non exercise within two months may be for financial reasons the right stands extinguished
It does not pass on to anyone
No social disturbance is caused
It settles in purchaser
Giving up such right expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy
163H 164A C Jethmal vs Sajanumal 1947 Mewar Law Reports 36 over ruled
351 Atam Prakash vs State of Haryana   Bishan Singh vs Khazan Singh   Radha Kishan vs Sridhar   Naunihal Singh vs Ram Ratan ILR 39 All 127 Ram Rathi vs Mt Dhiraji 1947 Oudh 81 Gopinath vs RS Nand Kishore AIR 1952 Ajmer 26 Abdul Karim vs Babulal AIR 1953 Bhopal 26 and Kanshi Ram Sharma vs Lahori Ram  approved
Pateshwari Partab Narain Singh vs Sitaram AIR 1929 PC 259 referred to 4
In the instant case the fact that the respondent knew of the sale deed assisted the appellant in raising the construction and after the construction was completed in the month of June he gave notice in the month of July for exer cise of the right and filed the suit in January would itself demonstrate that the conduct of the respondent was inequitable and the courts in this country which are pri marily the courts of equity justice and good conscience cannot permit the respondent to defeat the right of appel lant and invoke a right which has been called a weak and inequitable right
164D E