IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.56 of 2001. Judgment reserved on: 10.8.2001. Date of Decision: September 5th, 2011. _______________________________________________________ Smt. Jug Devi ..Appellant. Versus Shri Gandharav Singh and others ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant: Mr. K.D. Sood, Advocate. For the respondents: Mr. R.K. Sharma, Advocate. ____________________________________________________ SURINDER SINGH, J. The present regular second appeal of the defendant, under Section 100 of the Code of Civil Procedure, was admitted on the following substantial questions of law:- 1. Whether on a proper construction of Ex.P-1 to P-12, an inference could be drawn that the property was inherited by Bhagtu from Gagna and treated as ancestral property? 2. Whether from the recital of sale deed and oral evidence, the legal necessity existed for Bhagtu to transfer the property? Whether reporters of the Local papers are allowed to see the judgment? - 2 - 3. Whether the suit in the present form was within limitation and maintainable and plaintiff could challenge the same in the presence of nearer collateral of Bhagat Ram, Shri Kulwant Singh and that too after nearly 9 years? 4. Whether the defendant was bonafide purchaser for consideration and having effected improvements could be directed to deliver the possession without payment of sale price and compensation for improvements? 2. Brief facts giving rise to the appeal can be stated thus. Gandharv Singh respondent herein, at the time of filing the suit was minor, therefore, it was filed through his maternal uncle Amin Chand seeking declaration qua the suit land that it being an ancestral property, its sale by Bhagat Ram his grand-father in favour of Jug Devi defendant-appellant is illegal and nonest against his right thus sought possession. 3. To have a better understanding of the facts perusal of the following pedigree-table would be helpful:- - 3 - 4. Plaintiff Gandharv Singh is admittedly the grandson of Bhagat Ram. His father Hardev Singh had died in the year 1985 and his mother PW4 Bimla Devi is respondent in the present appeal. He challenged the sale of the suit land made in the year 1981 in favour of Smt. Jug Devi defendant on the ground that it was ancestral property and the parties to the suit are governed by Kangra Agricultural Custom in the matter of alienation, i.e. no male holder can alienate the ancestral land without Devi Singh (Dead) Bhagat Ram (died on 18.12.1985 Gagna (Dead) Hardev Singh (dead) Bimla Devi (widow- respondent No.2) Kulwant Singh (Respondent No.3) Gandharv Singh (Plaintiff-respondent No.1). Roshani Devi (Married daughter) - 4 - the consent of the male descendents. Therefore, the sale of the suit land in favour of Jug Devi is illegal and void. 5. The suit was resisted and contested by defendant Jug Devi, raising preliminary objections of locus-standi, estoppel and limitation in her written statement. On merits, she contended that the suit land was a self acquired property of Bhagat Ram and not an ancestral property. Further that the parties are not governed by agricultural custom as alleged. It is also contended that the Kangra agricultural custom stands abrogated on account of coming into force the Hindu Succession Act and that the plaintiff has no right to challenge the alienation in the presence of Kulwant Singh, Roshani Devi and Bimla Devi. It is also averred that defendant aforesaid is a bonafide purchaser for value and sale by Bhagat Ram which was effected for legal necessity i.e. for repair of house and solemnizing the marriage of his son and to pay the debt of Cooperative Society Manjheli. He being a prudent man had also sold his land to some other persons. Since the impugned land was located at a far off place of his residence, it was also not possible for him to maintain it. However, the proforma defendant admitted the suit of plaintiff. - 5 - 6. In replication to the written statement, the plaintiff denied the preliminary objections and affirmed even paras on merits. 7. On the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled for decree of possession as prayed for? OPP. 2. Whether the suit land is ancestral qua the plaintiff and Bhagat Ram? OPP. 3. Whether the plaintiff and deceased Bhagat Ram are governed by agricultural custom? OPP. 4. Whether the suit is speculative as alleged? OPD. 5. Whether the suit is within time? OPD. 6. Whether the sale in question is for legal necessity and consideration. If so, its effect? OPD 7. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD. 8. Relief. 8. Both the parties led their evidence and after the complete trial, learned trial Court came to the conclusion that the suit land has been proved to be ancestral qua the plaintiff and the parties to the suit are governed by Kangra Agricultural Custom and other issues were decided against the defendant, as such suit was decreed, holding the plaintiff entitled to possession of the suit land and the sale in favour of the contesting defendant was held illegal and void and not binding upon the rights of the plaintiff. 9. The impugned judgment and decree passed by the learned trial Court was challenged in appeal by the - 6 - defendant before the learned District Judge precisely on the grounds that the learned trial Court ignored the evidence that the defendant had made bonafide enquiry that Bhagat Ram was in need of money and the sale was for legal necessity and no reasons were assigned to disbelieve defendant’s witnesses. Further that the case law cited was not properly discussed and applied and also that plaintiff, at the worst could have got 1/6th share and not the whole. 10. The learned First appellate Court affirmed the findings that suit land was ancestral and the parties have conceded that they are governed by agricultural custom of Kangra but the sale by Bhagtu @ Bhagat Ram in favour of contesting defendant was not for legal necessity nor there was any other compelling reason to sell it and the recitals made in the sale deed for sale were not believed. The learned First Appellate Court also drew adverse inference as the defendant did not step into the witness box, only Hari Chand her power of attorney, who is none else than her husband, was examined, as such the appeal was dismissed. Hence the present Regular Second Appeal. 11. At the very outset, Shri R.K. Sharma, learned Counsel for the plaintiff, submitted that the appeal is not competent as vide order dated 10.5.1994 the learned - 7 - trial Court had modified the impugned decree and no appeal against that was preferred, but I do not find any force in this argument and is liable to be rejected on the ground that the learned trial Court only corrected the typographical error in the area of suit land, of course after the appeal was preferred by the defendant before the learned District Judge. 12. It is a settled law that the order of the amendment of the decree does not itself amount to a decree and the said order is not appeal-able, hence no appeal is competent against it. The learned trial Court only corrected the relief clause of the judgment and decree-sheet to the extent of clerical/typographical error which crept in respect of the area without changing its substance, therefore, the objection raised by the learned Counsel for the plaintiff is not sustainable, hence rejected. 13. Now the next question is whether the suit land is ancestral in nature qua the plaintiff. There are concurrent findings of fact with respect to inheriting of the land in question by Bhagat Ram from his father Gagna and whereas the plaintiff is son of Hardev i.e. the grandson of Bhagat Ram. It is further admitted that Shri Bhagtu had executed sale-deed Ext.D-1/A on 2.1.1981 qua the suit land comprised in khasra No.244, measuring - 8 - 16 kanals 16 marlas, as per Missal Hakiat Istemal for the year 1978-79 (Ext.P5) in favour of the contesting defendant for a sum of `9,500/-, which earlier was a part of khasra No.54, total area whereof was 68 kanals 13 marlas as reflected in the Jamabandi for the year 1917- 18 (Ext.P7), owned by Shri Gagna, father of Bhagtu. Pedigree-table (Ext.P12) also corroborated this fact. Thus, the suit land is proved to have been carved out from khasra No.54. The logical conclusion which can be safely drawn is that Shri Bhagtu had inherited the aforesaid land from his father and to this effect mutation No.11 was accepted and attested its reference is also made in red ink in the remarks column of Jamabandi Ext.P7 aforesaid. Since the suit land had come in the hands of Shri Bhagtu from his father. 14. It is also a settled law that if “A” inherits property, whether movable or immovable, from his father or father’s father, father’s father’s father, it is ancestral property as regards his male issue. If “A” has no son, son’s son, or son’s son’s son in existence at the time when he inherits the property, he holds the property as absolute owner thereof and he can deal with it as he pleases. (Please see Dipo v. Wassan Singh and others, AIR 1983 SC 846.) Therefore, the suit land is proved to be - 9 - ancestral property qua the plaintiff, being the grandson of Bhagtu. 15. Further, the parties have no contest with respect to the fact that they are governed by Kangra Agriculture Custom, but the stand of the plaintiff is that as per the Custom, ancestral property cannot be sold except with the consent of the male descendant, whereas the contesting defendant denied the Custom as pleaded and in alternative took up the plea that the sale was for ‘legal necessity’, even as per the recital of the sale deed. 16. In Smt. Rani and another v. Smt. Santa Bala Debnath and others, AIR 1971 SC 1028, the Apex Court discussed the value of the recital in the sale-deed of ‘legal necessity’ in para 11, which reads as under: “11. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession.” 17. The plaintiff denies legal necessity, as alleged in his replication, whereas, in the sale deed Ext.D-1/A, - 10 - dated 2.1.1981 for `9,500/- vendor Bhagtu has mentioned about the need of money for the construction of the house which fact has been substantiated by DW1 Hari Chand, husband and Power of Attorney of the defendant. He stated that though after the sale Bhagtu did not construct house and changed his idea, he only carried out necessary repairs of his old house and out of sale consideration he paid `4,000/- to Smt. Bimla Devi, mother of the plaintiff to meet the expenses of his education, which were invested by her in the National Saving Certificate (NSC) for seven years. He also stated that Bhagtu @ Bhagat Ram needed money for solemnizing the marriage of his son Kulwant Singh, which was solemnized in 1982 and also to repay the loan of the Cooperative Society. He stated that said Bhagat Ram was literate, ex-serviceman, worldly-wise and having no bad habits. He also stated that, besides the aforesaid land Bhagat Ram was in possession of land measuring 118 kanals 12 marlas. 18. DW2 Roshan Lal, is the scribe of the sale deed. He proved the contents thereof as dictated by Bhagat Ram. DW3 Pushpinder Kumar produced the record of the registration. DW4 Lashkari Ram stated that Bhagat Ram was the Member of their Society and as per the - 11 - record brought by him, Bhagtu had taken the loan of `1,000/- and made its payment on 3.1.1981, i.e., next day of the sale deed. DW5 Kalu Ram, Sub-Post Master, stated from the record that Smt. Bimla Devi purchased National Saving Certificates (5th issue) on 10.1.1981 for `4,000/-, i.e., within a week of receipt of sale consideration by Bhagat Ram. 19. DW6 Chuhru Ram stated that Hardev had died about 19 years back and at that time his son was 11 years of age and the entire responsibility fell upon Bhagat Ram to bring up the plaintiff and his mother and his agriculture income got affected. He further stated that Bhagat Ram spent on the marriage of his another son Kulwant Singh which was solemnized in 1982. DW7 Mehar Singh also made similar statement. 20. Contra, there is self serving statement of plaintiff’s next friend (PW1) that as per the agriculture custom prevalent, the land could not have been sold without the consent of the male descendent, but no such precedent as alleged has been produced or proved by him. He also admitted that when the father of the plaintiff died, plaintiff was minor child of 6-7 months old. He admitted that the said minor alongwith his mother had been residing with Bhagat Ram. Pertinently, PW2 Hoshiar Singh stated that Kulwant - 12 - Singh another son of Bhagat Ram was also brought-up by Bhagat Ram and expenses for education as well as for his marriage were met by him. He also solemnized the marriage of his daughter Roshani Devi. PW4 Bimla Devi, mother of the plaintiff though denied having deposited the amount received from Bhagat Ram in the bank as alleged, but DW5 Sub-Post Master proved it. Further Bimla Devi admitted that Kulwant Singh was married in the year 1982 and that after the death of her husband, she remained with Bhagat Ram for about five years, later they got separated, which corroborates the stand taken by the defendant. 21. From the above, it is clear that the onus of proving legal necessity stands discharged by the alienee by proving that he made proper and bonafide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence thereof. 22. It is an equally settled proposition of law that when the vendee acts in good faith and after due enquiry is able to show that the sale itself was justified by ‘legal necessity’, he is under no legal obligation to show the application of the surplus over and above the amount found to have been required for - 13 - necessary purposes. (Please See: Mrs. N. Johnstone etc. v. Gopal Singh and others, AIR 1931 Lahore 419). 23. On the critical examination of the rival contentions in view of the record of Courts below, it is apparent that the recital in the sale deed with respect to the legal necessity goes to the aid of the defendant with greater force against the plaintiff seeking to set aside the sale in question, coupled with the other evidence discussed above. Bhagat Ram was a retiree from the Army. He did not have any bad habit which compelled him to squander with his property. The sale deed Ext.D-1/A shows that the consideration amount to the tune of `9,500/- was in fact paid to Bhagat Ram in the presence of the witnesses by DW1 Hari Chand himself, whose signatures also did find mentioned at the time of registration of the sale deed before the Sub-Registrar. 24. Though, there is no bar to the plaintiff to challenge the sale deed in question in the absence of nearer collateral of Bhagat Ram as it also enures for their benefit, but since the contesting defendant is held to be bonafide purchaser for consideration after due enquiry of the legal necessity, thus the substantial questions of law1 to 3 are accordingly answered. The findings of the learned Courts below are contrary to - 14 - the law and facts. Also on account of mis-appreciation and misinterpretation of evidence, whereas, substantial question of law No.4 above as framed does not arise at all. As such, the appeal filed by the defendant is allowed and the impugned judgments and decrees passed by the learned Courts below decreeing the suit of the plaintiff are hereby set aside. Consequently, the suit of the plaintiff stands dismissed. Parties are left to bear their own costs. September 5, 2011. (Surinder Singh), (rc) Judge.