IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1353 of 1984 Date of Decision: 16.3.2010 Tilak Raj (minor). ....... Appellant through Shri Sanjeev Gupta, Advocate. Versus Karta Ram and others. ....... Respondent nos. 2 &3 through Shri Samir Rathaur, Advocate for Shri Sumeet Goel, Advocate. None for other respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The plaintiff is in second appeal questioning the judgments and decrees dated 31.1.1983 and 22.12.1983 passed respectively by the Sub Judge IInd Class, Kurukshetra (hereinafter described as `the trial Court') and the Additional District Judge, Kurukshetra (referred to hereinafter as `the first appellate Court') whereby his suit and the appeal have been dismissed. On 17.3.1979, the plaintiff, who is minor son of Ram Singh, filed a suit through his mother-Smt.Bharti, for declaration with consequential relief of joint possession. It was pleaded that he is grand-son R.S.A.No.1353 of 1984 -2- .... of Krishan son of Sadhu, who was owner of land measuring 70 kanals 7 marlas being 1/3rd share of the total land measuring 211 kanals 1 marlas, as detailed in paragraph 2 of the plaint, situated in village Sirsala, Tehsil Thanesar, district Kurukshetra; that Krishan sold the aforesaid land to defendant nos. 1 to 3 vide registered sale deed dated 16.5.1969 for Rs.25,500/- without any legal necessity; that being Jat, they were governed by general agricultural customs under which a proprietor could not alienate his ancestral property without legal necessity and without the consent of the nearest collaterals; and that he was born at the time and the sale was effected without his or his next friend's consent. On the basis of these pleadings, it was prayed that the sale deed in question be declared as ineffective and not binding on the reversionary rights of the plaintiff after the death of his grandfather-Krishan. In the alternative, it was prayed that if the parties are held to be not governed by custom, then the impugned sale deed be declared as null & void being without consideration and legal necessity and not binding on the coparceners including the plaintiff. In such an event, consequential relief of joint possession was also prayed for. Upon notice, defendant nos. 1 to 3, who were the purchasers of the property, appeared and filed their written statement defending the sale in their favour, besides taking other objections, such as non-maintainability of the suit, it being collusive and questioning the locus standi of the plaintiff and also non-joinder of necessary parties. The sale was stated to be for legal necessity as per the recital contained in the deed which defined the need of the family as the money was required for redemption of mortgage R.S.A.No.1353 of 1984 -3- .... and for other household expenses, such as marriage of the children and payment of debts and also for undertaking pilgrimage. It was denied that the suit property was ancestral. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is grand-son of Krishan, vendor, if so, to what effect?OPP 2. Whether the disputed property is ancestral property of the plaintiff qua the vendor?OPP 3. Whether the parties are governed by custom in the matters of alienation? If so, to what effect/OPP 4. Whether the sale was effected for consideration and legal necessity.? If so, to what effect?OPD 5. Whether the suit is not maintainable in the present form?OPD 6. Whether the suit is barred by time?OPD 7. Whether the suit is collusive?OPD 8. Relief. Subsequently, upon the amendment of the plaint, the following additional issues were also framed:- 1. Whether plaintiff has locus standi to file the present suit as stated in para No.9-a of the plaint?OPP 2. If issue No.3 is not proved, whether plaintiff was member of Joint Hindu Family and coparcener and governed by Hindu R.S.A.No.1353 of 1984 -4- .... Law of Mitakshara School.? If so, to what effect?OPP After appraisal of the entire evidence on record, the trial Court dismissed the suit with costs. In appeal, the findings of the trial Court were affirmed by the first appellate Court. Hence, this Regular Second Appeal. Learned counsel for the plaintiff has contended that the recital in the sale deed regarding payment of mortgage debt and the amount required for marriage of children as well as for undertaking pilgrimage cannot be considered to be legal necessity so as to justify the alienation. He further contended that if the mortgage debt is to be seen, then it merely comes to Rs.1000/- which is just about a fraction of the total consideration and this by itself cannot be considered to be legal necessity and undertaking of pilgrimage likewise also, cannot be considered to be a legal necessity. It was argued that there is no evidence to show that the marriage of the children was ever performed with the proceeds of the sale and the plaintiff being male lineal decendent, whose interest has been prejudiced on account of this alienation, is entitled to retrieve the disputed land. According to the learned counsel for the plaintiff, the following substantial questions of law arise for consideration in this appeal:- 1. Whether there is misreading, misconstruing or misinterpretation of pleadings and evidence by both the Courts below? 2. Whether the alleged recital in sale deed regarding R.S.A.No.1353 of 1984 -5- .... redemption of land, Tirath Yatra and Punay Dan is without any corroboration and cannot be construed as legal necessity to dispose of the land by alienor? 3. Whether or not the alleged instance of legal necessity can bind the appellant to the extent of his share being void and without consent? On the other hand,learned counsel for the defendant nos. 2 & 3 contended that the impugned judgments are perfectly in order and no interference is required in the findings recorded by the Courts below. I have thoughtfully considered the rival contentions and have perused the impugned judgments, as also the record. The finding regarding the ancestral nature of the suit property as arrived by the trial Court was never challenged by the defendants. Therefore, this finding has necessarily to be affirmed. The trial Court had also held that the plaintiff had no locus standi to challenge the alienation in question. Therefore, one of the questions which goes to the root of the matter is as to whether the plaintiff had any locus to challenge the alienation or not, especially in view of the fact that he was minor and other male reversioners, who were directly affected by the sale, such as his father, were alive and they chose not to challenge the alienation. The facts of the case reveal that the alienation was made by Krishan, grandfather of the plaintiff. Krishan had four sons, who were alive. Out of four, Jasmat and Zile Singh were minor at the time of alienation, while two other sons, namely, Ram Singh, father of the plaintiff and Jaipal did not institute any proceedings to R.S.A.No.1353 of 1984 -6- .... challenge the sale in question. Ram Singh, father of the plaintiff, was examined as PW5 and he testified that the sale was effected by his father without his consent, but he had not filed any suit for the reason that it would be insulting to his father. To the similar effect is the testimony of another son of Krishan, namely, Jaipal, who was examined as PW6. It is a settled principle of law that the appropriate person to object to the alienation is the nearest reversionary heir. In this case, the nearest reversioners were the sons of Krishan, who did not challenge the sale in question and, therefore, I am of the opinion that the plaintiff had no locus standi to challenge the sale deed in favour of defendant nos. 1 to 3. In Amar Chand Versus Harji and others, 1971 P.L.R. 821, a Full Bench of this Court held that if there is a bona fide consent of the immediate reversioner, particularly of the son, given at the time of alienation or afterwards, then it validates the transfer of the immovable property. The first appellate court has held that in the absence of any material to show that there was bona fide consent of the reversioners to the alienation in question, the law laid down in the aforesaid case was not applicable and instead, it relied upon the ratio of the judgments in Fateh Mohammad Khan Versus Gurbux Singh and others, AIR 1949 East Punjab 210 and Maghar Singh and others Versus Gujjar Singh and others, 1964 P.L.R.865 to reverse the finding recorded by the trial Court on the issue of locus standi of the plaintiff. The first appellate Court, however, affirmed the finding of the trial Court on the issue of legal necessity. R.S.A.No.1353 of 1984 -7- .... In my opinion, the first appellate Court erred while recording finding on the issue of consent. The consent for alienation of property by a Karta may be explicit or may be implicit. It can be inferred from the conduct of the nearest male reversioner as to whether he consented and acquiesced to the sale or not. In the instant case, in their statements, PW5- Ram Singh and PW6-Jaipal Singh have not stated a word as to whether they had ever objected to the sale of the property by their father. They also chose not to file any suit and from this, it should be inferred that they had acquiesced to the sale and as observed earlier, in the absence of any challenge by these reversioners, who were immediate ones, in my opinion, the plaintiff, who was grandson of Krishan, and who was not in the line of immediate reversioners, could not have challenged the sale in question. The finding of the first appellate Court is, accordingly, reversed on this issue. For the aforesaid reasons, the suit of the plaintiff has to fail and it may not be necessary to dilate on the remaining issues, such as, as to whether the sale was for legal necessity or not, but all the same, since these issues have been addressed, I venture to discuss the material on record in this regard. There is a recital in the sale deed that some mortgage amount was required to be repaid and money was also required for marriage of the children as well as education and also for going on pilgrimage. If the material on record is to be seen, then the mortgage amount which was to be repaid comes about to Rs.1000/- which is miniscule fraction of the entire sale consideration. The marriage of the children has not been established by R.S.A.No.1353 of 1984 -8- .... any evidence on record. It was for the alienees to prove that they had enquired and verified about the existence of any such legal necessity before venturing to purchase the suit land and it was also for them to establish by way of evidence that such legal necessity existed, but there is no evidence to this effect which leads to an irresistible conclusion that legal necessity as such was not established and the sale was bad on this score. In so far as the recital that the amount was required to go on a pilgrimage is also not enough to establish the legal necessity and it cannot be construed to be such. In Hari Kishen and others Versus Hira and others, AIR 1957 Punjab 89, a Division Bench held that the payment of Rs.3200/- to the vendor the purpose of going on tirath yatra could not be considered to be for legal necessity. Accordingly, I hold that the recital in the sale deed and the evidence on record do not establish that the sale was for legal necessity, but for the reason that the plaintiff had no locus standi to challenge the sale in question, and for the reason that the nearest reversioners had acquiesced to the sale by their conduct by not questioning the sale deed, the plaintiff who is the grand-son of the vendor, could not challenge the sale deed on the ground of it being without legal necessity. The appeal is dismissed. March 16,2010 ( Mahesh Grover ) “SCM” Judge