RSA No.2946 of 1979 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2946 of 1979 Date of decision 24.5.2011 Mohinder Singh ....Appellants vs. Gurdial Singh ....Respondent CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Hari Om Sharma,Advocate for the appellant Mr.S.S.Salar,Advocate for the respondent .... JITENDRA CHAUHAN.J. 1. The present appeal is directed against the judgment and decree dated 1.9.1979, passed by the Ld. Appellate Court, whereby the judgment and decree dated 13.6.1977, passed by the Ld. trial Court were affirmed. 2. This is the second round of litigation in this Court. Earlier, the appellant filed the appeal assailing the judgments and decrees dated 30.7.1963 and 27.8.1963. This court on 7.5.1975, remanded back the appeal to the Ld. Ist Appellate Court,after framing of the additional issue. 3. The brief facts of the case are that plaintiff Gurdial Singh, Pipal Singh and Gurdip Singh (since deceased) were the sons of Amar Singh,defendant No.3 (before the ld.trial court). Amar Singh sold the suit land mentioned in para 3 of the plaint to Mahinder Singh (appellant ) and Sardara Singh vide registered sale deed dated 3.1.1962. The plaintiff alleged that Amar Singh sold the suit land without consideration and legal necessity. RSA No.2946 of 1979 2 Amar Singh was alleged to be drunkard and a spend thrift person. It was further alleged that sale was against customary law, and thus not binding upon the reversionary rights of the plaintiffs. Defendant Nos. 1 & 2 were asked to get the sale deed cancelled, but they refused to do so, therefore, the suit for declaration was filed. The suit was contested by the defendants-vendees on the plea that the suit land was sold by Amar Singh,vendor for consideration and legal necessity, as he wanted to purchase land at some other place and that he was a person of good character. 4. From the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff and Amar Singh,defendant No.3 are governed by custom in matters of alienation and succession and if so what that custom is? OPP 2. Whether the plaintiffs are the sons of defendant No.3?OPP 3. Whether the suit property is ancestral qua the plaintiffs? OPP 4. Whether the sale in favour of defendant No.1 is for legal necessity and consideration? OPD No.1. 5. Whether the sale in favour of defendant No.2 is for legal necessity and consideration?OPD No.2. 6. Whether both the sales cannot be challenged in one suit?OPD 7. Relief. 5. The suit for declaration was decreed by the Civil court,Narwana and the same were affirmed in the appeal by the ld. Appellate Court, Jind. 6. The appellant-defendants filed RSA No.620 of 1964 in this Court, which was admitted on 12.5.1975. However, the case was remanded back for afresh trial, after framing the following additional issue:- “Whether Amar Singh alienor was a progligate spend thrift” onus on the plaintiffs ?” 7. While dealing with issue No.1, the ld.trial court held that it is RSA No.2946 of 1979 3 proved that plaintiff and defendant No.3 (Amar Singh) were Jat Sikhs. Their only source of income was from the agricultural land and they follow the customary law of Punjab in the matters of alienation and succession. The General Customary law is that no one can alienate the ancestral land except for consideration and legal necessity. The issue was decided in favour of the plaintiff. It was proved that plaintiffs were the sons of Amar Singh. While deciding issue No.3, the ld.trial court held that plaintiffs and defendant Amar Singh were refugees and the land was allotted to Gurdit Singh, father of Amar Singh in lieu of the land left in Pakistan. It was observed by the ld. Trial court that in order to prove that the land was ancestral, the common ancestor of the parties required to be proved. The common ancestor of the parties was Gurdut Singh son of Balaka Singh. If the land in Pakistan was ancestral with Gurdut Singh, the land allotted to him in India in lieu of land left in Pakistan,was ancestral qua plaintiffs and Amar Singh. So this issue was decided in favour of the plaintiffs. While deciding issue Nos. 4 & 5, the Ld. trial court held that from the evidence of Parshotam Dass, Ude Singh, Mohinder Singh, Devi Dyal, petition-writer, Gian Singh, attesting witness of the sale deed Ex.D.2, and defendant Sardar Singh, it was proved that the sale consideration for both the sale deeds was paid to the vendor before the Sub Registrar. The sales were proved to be for consideration. Qua the other point of legal necessity, it was pleaded in the written statement by defendant Nos. 1 & 2, that the alienator, Amar Singh, represented to them that he was to purchase the land at some other place and he felt the necessity to sell the land. After remand, the evidence by the defendants is that defendant Amar Singh, started flour mill at village Rasidan from the amount of sale consideration. DW3 Mohinder Singh stated that Amar Singh sold the suit land because his Biradari was in district RSA No.2946 of 1979 4 Ferozepur and not in the village Rasidan. The Ld.trial court after taking into consideration all the evidence, observed that Amar Singh sold both the pieces of land to defendant Nos. 1 & 2 for consideration but without any legal necessity. Issue No. 6 was decided against the defendant as it was not pressed. 8. While deciding the additional issue, the ld. Trial court held that Amar Singh was a drunkard and spend thrift person and sold the land without any legal necessity. In view of the findings of the ld. Trial court, the suit was decreed in favour of the plaintiffs and against the defendants to the effect that the sales involved the suit land was illegal and not binding on the reversionary rights of the plaintiffs. 9. Aggrieved by the decision of the ld. Trial court, defendant Mohinder Singh preferred an appeal before the Ld. Ist Appellate Court, which was also dismissed holding that the findings of the ld. Trial court were correct on the issues. 10. Aggrieved by the findings of both the courts below, Mohinder Singh preferred this regular second appeal. 11. Learned counsel for the appellant submitted that both the courts have misread the evidence on record. He further argued that both the courts were required to record the positive findings with regard to the additional issue, which the Ld.Courts failed to do. He submitted that it has come on record that Amar Singh started a Flour Mill after selling the suit land and that the Ld.Appellate Court was not conscious of the legal effect and meaning of the word “Profligate and Spendthrift” and therefore, the onus to prove this issue was wrongly put on the plaintiff. 12. On the other hand, learned counsel for the respondent submitted that the suit property was inherited by Amar Singh from his father Gurdit RSA No.2946 of 1979 5 Singh, therefore, he was not competent to sell the property without consideration and legal necessity. He pointed out that after selling the property, Amar Singh started a new business of Flour Mill and installed Ginning Machine, which cannot be said to be legal necessity. He submitted that the meaning of the word spendthrift and profligate is that the person is of bad character and is having the tendency of losing money in wrong acts. In para No. 4 of the plaint, it was specifically pleaded that Amar Singh executed the sale deeds without any legal necessity. He stated that both the courts below have rightly decreed the suit and dismissed the appeal of the appellant. 13. I have heard the learned counsel for the parties and perused the record. 14. The material issue in this appeal is whether Amar Singh executed the sale deeds without any legal necessity in favour of defendant Nos. 1 & 2. The findings of ld.Ist Appellate Court in regard to the material issue are as under:- “The settled law is that legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be recorded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bonafide enquiries about the existence of legal necessity himself as to the existence of the necessity. It is also worth while to mention that the recital may be used to corroborate other evidence of the existence of legal necessity. However, the weight to be attached to the recitals varies according to the circumstances of each case. When the vendees fails to prove regarding the vendor having made any RSA No.2946 of 1979 6 representation regarding the existence of legal necessity, the character of the vendor becomes wholly irrelevant. xx xx xx xx xx xx xx xx xx xx I have examined the statement of Mohinder Singh D.W 3 Gian Singh ,DW 5 who only stated that Amar Singh sold this land to purchase some land in Ferozepur District, where some of his relations resided. Even if, the statement of these witnesses,which is otherwise discrepant on material points,is taken to be true, no case of the existence of bonafide need is ;made out. Before the appellants could succeed on that score, they have to prove by positive evidence that no income is fetched from the land in dispute and thus the land could not be retained from the point of view of its management. Further evidence has to be led to the effect that purchasing the land at a new place would be profitable, as the prices of the land at that new place is comparatively less. On both these sets of circumstances, the evidence of the appellants is practically zero. Further more, it may be pointed out that no evidence has been led in by the appellants regarding the vendor having made any representation, about the existence of legal necessity and its bonafide enquiry by the vendees. If the vendee fails to prove regarding the vendor having made any representation, which was acted upon, after holding bonafide enquiries, even then the appellants could succeed, if it was proved by cogent evidence that the money acquired, as a result of sale, was spent for the purposes for which the land in dispute was sold. RSA No.2946 of 1979 7 The evidence of the appellants is scanty on this point also. It may also be stressed here that selling in the land by an agriculturist for starting a new business of Chaki also does not fall within the ambit ' of legal necessity'. The view taken by the trial court under this issue, is, therefore, correct is hereby affirmed.” 15. The Ld. Ist Appellate Court arrived at the above finding after proper appreciation of evidence. Both the courts below have given concurrent finding of fact that the property in question was not sold for any legal necessity and that the parties were governed by the customary law. The question as to whether the sales were for 'legal necessity' is not a 'substantial question' of law to be decided in regular second appeal. Therefore,no ground is made out to interfere in the well reasoned findings of both the courts below. No substantial question of law arises for determination in this appeal. 16. For the reasons recorded above, this appeal fails and is dismissed with no order as to costs. The decree and judgments of both the courts below are affirmed. (JITENDRA CHAUHAN) 24.5.2011 JUDGE ms Note: Whether to be referred to Reporter? Yes/No.