IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 64, 65 and 66 of 1995 Decided on : 9th March, 2010 RSA No. 64/1995 Paras Ram (dead) through LRs ..Appellants Versus Sita Ram ..Respondent RSA No.65/1995 Paras Ram (dead) through LRs ..Appellants Versus Brahma Nand ..Respondent RSA No.66/1995 Paras Ram (dead) through LRs ..Appellants Versus Mangal Chand (dead) through LRs ..Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate, in all the appeals For the Respondents: Mr. Dharamvir Sharma, Advocate, in all the appeals. Surjit Singh, Judge (oral) These three Regular Second Appeals are being disposed of by a common judgment as the same substantial questions of law are involved in all of them. Facts of all the three cases are similar. 2. Late Shri Paras Ram, now represented by his legal representatives, Param Chand and others filed three Whether reporters of the local papers may be allowed to see the judgment? …2… civil suits challenging three separate sales/alienations of immovable property made by late Smt. Dev Nandi and late Shri Karam Chand, in favour of three different persons, namely, Sita Ram, Brahma Nand and Mangal Chand, in the year 1976. 3. It was alleged that the suit property was initially owned by one Gurdev resident of village Shakoli, Kothi and Tehsil Udaipur, District Lahaul & Spiti. On his death, the property was inherited by his son Parma. Parma had four sons, namely deceased plaintiff Paras Ram, Karam Chand, the vendor, Chaine Ram, husband of vendor Dev Nandi and one Karam Singh. On death of Parma, the two surviving sons and the widows of Chaine Ram and Karam Singh, inherited the estate of Parma, in equal shares, i.e. each getting 1/4th share. 4. In the year 1976, Dev Nandi, widow of Chaine Ram sold her 1/4th share in favour of three different persons, namely Sita Ram, Brahma Nand and Mangal Dass. By the same sale deed, as executed by Dev Nandi, Karam Chand one of the sons of Parma, also sold his 1/4th share in favour of the aforesaid three persons. 5. Two sons of deceased plaintiff Parma filed a civil suit challenging the sales on the ground that the parties were governed by custom and as per custom, Dev Nandi was only a life estate holder and, hence, she could not have sold the suit property and even Karam Chand, under the custom, governing the parties, could not have sold his share, without …3… legal necessity. That suit was dismissed, inter alia, on the ground that when Paras Ram was alive and he had superior right to challenge the sales and to recover the possession and his sons, who were to ultimately step into his shoes, were not competent to file the suit. Suit property was, however, held to be ancestral. 6. In the year 1986, or say, within 12 years of the transactions of sale, Paras Ram filed three separate suits, one each against every vendee. He pleaded that the parties were governed by the custom of the area, which was initially part of Chamba District and that according to the custom, ancestral property could not have been sold without legal necessity. It was also alleged that Dev Nandi, under the custom, inherited 1/4th share only as a life estate holder and on her death, her 1/4th share reverted to the collaterals of her husband. 7. Suit was contested by the vendees, who were impleaded as defendants. They raised number of preliminary objections. They denied that the parties were governed by custom. They also denied that the suit property was ancestral in the hands of the vendors. It was alleged that with the sale proceeds, the vendors had purchased land in Sainj area of Kullu District. Further, it was pleaded that Dev Nandi, after the death of her husband Chaine Ram, had remarried Karam Chand, vendor, according to the custom governing the parties and, therefore, she shifted to Sainj in Kullu District alongwith Karam Chand. It was stated that …4… Karam Chand was a patient of asthma and the climate of Lahaul area aggravated his ailment and, so, he shifted to Sainj area in Kullu District. 8. Various issues were framed on the pleadings of the parties. Trial Court concluded that though the property was ancestral in the hands of the vendors, yet there was no custom governing the parties in matter of alienation of ancestral property. It was further held that even though Dev Nandi was only a life estate holder, she could have sold the property for legal necessity and that in fact she had sold the property for legal necessity. Consequently, the suits were dismissed. 9. Plaintiff Paras Ram went in appeal to the Court of District Judge. Matters were heard by the learned Additional District Judge, who dismissed all the three appeals, upholding the finding of the trial Court. 10. These appeals were admitted on the following common substantial questions of law:- “1. Whether it is a pre-requisite for proof of custom that there must be a written document or the same should be recorded in Wazibul Arz? 2. Whether the Schedule Tribes of Lahaul and Spiti District are governed by the agricultural custom or by the provisions held in Hindu Law? …5… 3. The area which was earlier part of Chamba District and subsequently merged in Lahaul and Spiti District, whether is governed by agricultural custom or not? 4. Whether the judgment and decrees of both the courts below are vitiated for non- considering the statement of plaintiff- appellant, PW-4 and PW-5 and the admissions made by defendant himself regarding applicability of custom? 5. When the property is held to be ancestral in nature does the onus shifts to the defendant to prove the sale to be for legal necessity? Whether the legal necessity is a matter of proof or presumption? 6. When there is no evidence regarding the alleged ailment or acquisition of property I n the near proximity of the sale or application of the sale proceeds for marriage and purchase of property, can the sale be held to be for legal necessity? 7. Whether the judgment and decree passed in a civil suit to which the plaintiff- appellant was not a party, can any finding of the said suit be held to be binding on the plaintiff without proving such facts in the present suit, do the judgment and …6… decrees of both the courts below stand vitiated on this ground?” 11. I have heard learned counsel for the parties and gone through the evidence which is similar in all the three cases. Substantial Question of Law No.1 12. This question pertains to the nature of evidence by which a custom can be proved. The question appears to have been formulated in view of the observation by the trial Court that there was no documentary evidence in support of the plea that the parties were governed by custom. A fact, including the fact of custom, can be proved by any kind of evidence, i.e. documentary or oral, unless the law specifically provides with respect to some given specific fact that it can be proved only by documentary evidence, such as transfer of immovable property worth more than Rs.100 or Will of a person etc. In the case of custom, evidence can be oral or written or both. If the oral evidence remains un-rebutted and inspires confidence, it can be used and a finding can be recorded on the basis of it that the custom is proved. Hence, this question is answered in favour of the appellants. Substantial Question of Law No.2 13. Brahma Nand (DW1) appeared as his own witness in one of the cases in which he was defendant and as attorney of other two defendants/vendees, namely Mangal Chand and Sita Ram, in the remaining two cases. …7… Suggestions thrown to the plaintiff and his witnesses as also the statement of defendant Brahma Nand that the parties were governed by custom and that under the custom the property could be sold only for legal necessity amount to admission on the part of the vendees that they are governed by custom in the matter of alienation of ancestral property. It is also not in dispute that the parties belong to a scheduled tribe. Therefore, Hindu succession Act is not applicable in their case. They are governed only by their tribal custom and the custom, as suggested to the witnesses and the plaintiff and also testified by defendant Brahma Nand (DW- 1), is that ancestral property cannot be sold, except for legal necessity. Consequently, this question is also answered in favour of the appellants. Substantial Question of Law No.3 14. It is not on account of merger of the area in which the land is situate, which was earlier part of Chamba District, with the District of Lahaul and Spiti, that the parties are governed by custom. The area from which the parties hail was earlier part of Chamba State and after the merger of Chamba State with the Union of India, it became part of Himachal Pradesh Union Territory. It was part of Pangi Tehsil of Chamba District, which is a tribal area. The witnesses, including DW-1 Brahma Nand, one of the vendees, categorically stated that agriculturists of their area and also the people of their community are governed by the aforesaid custom. Question is answered accordingly. …8… Substantial Question of Law No.4 15. In view of the discussion under and findings on Substantial Question Nos. 1 and 2, this question is also answered in favour of the appellants. Substantial Question of Law No.5 16. There is no definite and specific evidence on record, suggesting that the land in village Sainj in Kullu Distict was purchased out of the sale consideration of the suit property. Also, there is no evidence, except the bald statement of DW-1 Brahma Nand, that Karam Chand had been suffering from asthma and that that ailment aggravated due to extremely cold climate of Lahaul & Spiti and, so, he shifted to Sainj in Kullu District. Therefore, the finding of the trial Court and the first appellate Court that the sale was for legal necessity, being not supported by evidence on record cannot be upheld. The question is answered in favour of the appellants. Substantial Question of Law No.6 17. For the reasons recorded for answering substantial question No.5 in favour of the appellant, this question is also answered in favour of the appellants. Substantial Question of Law No.7 18. Judgment in the earlier suit, which was instituted by the sons of plaintiff Paras Ram neither operated res judiciata nor could it have been used as a piece of evidence in the present cases, for the reasons that Paras Ram was not …9… a party to it and also for the reason that ultimate finding in that suit was that the suit was not competent and maintainable and the two sons of the plaintiff did not have the locus-standi to file it, during the life time of their father Paras Ram. Hence, this question is also answered in favour of the appellants. 19. As a result of above discussion and findings, all the three appeals are accepted. Judgments and decrees of the trial Court as also the first appellate Court, affirming the judgments and decrees of the trial Court, are set aside. Consequently, three suits filed by late Shri Paras Ram, now represented by his legal representatives, are decreed and the sale deeds dated 12.8.1976 executed by Dev Nandi and Karam Chand are set aside and decrees for possession of the subject matter of all the aforesaid thee sale deeds are passed in favour of the appellants-plaintiffs and against the respondents-defendants. Decree sheets shall be framed by the Registry accordingly. All the three appeals stand disposed of. March 9, 2010 (ss) (Surjit Singh), J