IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.21 of 2000 Judgment reserved on : 5.4.2010 Date of decision : 18.5.2010 ____________________________________________________ Chanan Singh and others …Appellants Versus Smt. Charno Devi and others …Respondents Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the appellants : Ms. Sunita Sharma, Advocate. For the Respondents : Mr. Ajay Sharma, Advocate, for respondents No.1 to 4. None for other respondents. Kuldip Singh, J The plaintiffs have come in appeal against judgment, decree dated 11.11.1999 passed by learned Addl. District Judge(1), Kangra at Dharamshala in Civil Appeal No.44-N/98, reversing judgment, decree dated 1.5.1998 passed by learned Sub Judge Ist Class(1),Nurpur in Civil Suit No.156/91. 2. The facts in brief are that the appellants had filed a suit for declaration that sale deed No.1532 dated 30.5.1988 executed by Jagiro predecessor of appellants in favour of Bhagto predecessor of _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 respondents No.1 to 4 and Beli respondent No.7 regarding land comprised in khata No.16 min, khatauni No.56, khasra Nos. 524, 530, 536, 601, 608, 609, 610 plots 7 measuring 0-73-94 HM being 840/1344 share, which comes to 0-46-21 HM, situated at village Dadwara, Mauza Anoh, Tehsil Nurpur, District Kangra (for short suit land) is illegal, without legal necessity and consideration. It does not affect the reversionary rights of appellants and other reversioners after the death of Jagiro. The appellants are the sons, proforma respondent No.5 Savitri Devi and Bimla Rani proforma respondent No.4 are respectively wife and daughter of deceased Jagiro. The pedigree table of the parties is as follows:- Dhanna I Sakia I Baziro I Nihalu I Jagiro I I I I I I I I Channa Uttam Singh Balwinder Bishambar Harbans Kaku Bimla Savitri Singh Singh Singh Singh Singh Rani Devi (Minor ) (Widow) Daughter. 3. The case of the appellants is that the suit land is ancestral property having descended from the common ancestor, Baziro (Baziro) in the male line of the appellants. It was inherited by Jagiro from Nihalu after his death. The appellants are Jat by caste, an agriculturist tribe in Himachal Pradesh, in the matter of alienation of ancestral property they are governed by Kangra custom prevailing in the Jats of Tehsil Kangra. The powers of deceased Jagiro for alienation of ancestral immovable property were restricted to sell the 3 ancestral immovable property only for legal necessity and with the consent of the appellants. The sale deed dated 30.5.1988 is illegal, unauthorized and without legal necessity. The suit land being ancestral property and could not have been sold without legal necessity. In these circumstances, the suit was filed. 4. The suit was contested by respondents on the grounds that Jagiro was fully competent to sell the suit land vide sale deed dated 30.5.1988. The sale deed is legal and binding on appellants and proforma respondents No.4 and 5. The sale deed was for legal necessity and for consideration. The replication was filed by appellants wherein they asserted their case. 5. On the pleadings of the parties the following issues were framed:- (1) Whether the deceased Jagiro being owner in possession of the suit property, was succeeded by the plaintiffs and proforma defendants No.3&4 as alleged? … OPP (2) Whether the suit property was ancestral in the hand of deceased Jagiro as alleged? ….OPP (3) Whether the parties are governed by the custom being Jats an agricultural tribe in matters of alienation of ancestral property as alleged? .. OPP (4) Whether the sale of suit property through registered sale deed No.1532, dated 30.5.1988 is illegal as alleged, if so, its effect? …OPP (5) Whether the suit is not maintainable, as alleged? . OPD 1&2 (6) Whether the plaintiffs have no locus standi to file the suit as alleged? .OPD 1 & 2. (7) Whether the suit is not within time as alleged? ….OPD 1 & 2 (8) Whether the plaintiffs are estopped to file the suit by their act and conduct, as alleged? …OPD 1 & 2 (9) Whether the plaintiffs have no cause of action as alleged? …OPD 1& 2. (10) Whether the sale of suit property by Jagiro was for legal necessity as alleged? ….OPD 1& 2 (11) Whether the defendants No.1 & 2 are owners in possession of the suit land, as alleged? OPD 1 & 2. 4 (12) Relief. The issues No.1,2 and 4 were answered in affirmative, issues No.3, 5 to 11 in negative and suit was decreed by learned Sub Judge on 1.5.1998. In appeal learned Addl. District Judge on 11.11.1999 has set aside the judgment, decree dated 1.5.1998 and dismissed the suit. Therefore, the second appeal by appellants which has been admitted on following substantial questions of law:- 1. Whether it was necessary for the appellants/plaintiffs to place on record copy of Mutation No.50 once the Jamabandi for the year 1939-40 Ex.P-4 has been placed on record to establish that Shri Baziro has inherited the land of Shri Nihalo? 2. Whether acquisition history is to be annexed alongwith the Pedigree Table to show the mode of acquisition of the suit land from the common ancestor down to the vendor? 6. I have heard Ms. Sunita Sharma, learned counsel for the appellants and Mr. Ajay Sharma, learned counsel for the respondents No.1 to 4 and have also gone through the record. The learned counsel for the appellants has submitted that the learned Addl. District Judge has erred in rejecting the case of the appellants in holding that the suit land has not been proved to be ancestral property. Ex.P-4 jamabandi for the year 1939-40 establishes that Baziro had inherited the suit land from Nihalu and therefore, it was not necessary to place on record and prove mutation No.50. The appellants have also proved male line and connection with Nihalu and other predecessors, therefore, it was not necessary to annex acquisition history of suit land with pedigree table to establish mode of acquisition of the suit land from the common ancestor down to the vendor Baziro. It has been submitted that the 5 learned Addl. District Judge has not properly appreciated the legal position and has erred in returning the finding that the suit property is not ancestral. The learned counsel for the respondents No.1 to 4 has supported the impugned judgment, decree. He has submitted that the appellants have failed to prove that the suit land in the hands of Baziro was ancestral and appellants were having right in that property. Substantial questions of law No.1 and 2 7. The substantial questions of law No.1 and 2 are interconnected; therefore, both the substantial questions of law are taken up together for disposal. The appellants have pleaded pedigree table in para No.3 of the plaint. The respondents have denied para 3 of the plaint for want of knowledge. They have not taken specific stand that appellants are not sons of Jagiro. The issue No.6 of locus standi of the appellants to file suit has been decided in their favour by trial Court. The pedigree table Ex.RX and findings recorded by learned Additional District Judge that Baziro was grand father of appellants establish that appellants are the grand sons of Baziro. Ex.P-4 is the copy of jamabandi for the year 1939-40 and its Hindi translation is at page 111 of the trial Court file. In the remarks column of Ex.P-4, it has been stated that vide mutation No.50, the succession to the property of Nihalu son of Baziro has been mutated in favour of Santi, Jagiro on 17.6.1943. In Ex.P-4 name of Nihalu has been recorded in the column of owners in khewat No.13 min, khasra Nos.257 min, 254, 255 and 256 min. Jagiro vide sale deed dated 30.5.1988 Ex.D-7 had sold land comprised in khasra Nos.524,530,536,601,608,609,610, kitas 7 measuring 0-46-21 hects. for the marriage of his daughter. In Ex.P-2 6 Missal Haquiat khasra numbers of the suit land have been mentioned alongwith their old khasra numbers. It is clear from Ex.P-2 that khasra Nos.524, 530, 536 are equivalent to old khasra No. 257 min. The khasra No.608 is equivalent to old khasra Nos.254 min and 255 min. The khasra No.601 is equivalent to old khasra No.254 min. The khasra No.609 is equivalent to old khasra No.254 min and 255 min and khasra No.610 is equivalent to old khasra No.256 min. In the remarks column of jamabandi Ex.P4 there is reference that vide mutation No.50 dated 17.6.1943 succession of Nihalu has gone to Santi and Jagiro in equal shares. It is thus clear that suit land has been connected with jamabandi Ex.P-4 and was ancestral in nature in the hands of Jagiro. 8. The next question is whether the sale deed Ex.D-7 executed by Jagiro was for legal necessity. The learned counsel for the appellants has relied birth certificate Ex.P-5 and has submitted that the date of birth of Bimla Rani daughter of Jagiro has been given 24.12.1981 in Ex.P-5. She has submitted that the sale deed Ex.D-7 was executed on 30.5.1988 but according to birth certificate Ex.P-5 Bimla Rani was hardly 6 ½ years when Jagiro sold the land in question vide Ex.D-7. It has been submitted by learned counsel for the appellants that since Bimla Rani was of very tender age at the time of sale, therefore, it is not possible to believe that the sale deed Ex.D-7 was executed by Jagiro for the marriage of his daughter. In these circumstances, she has contended that sale of disputed property cannot be for legal necessity. The learned counsel has also contended that the suit land was ancestral, it was sold without legal necessity, therefore, sale is bad and does not affect the rights of the appellants. 7 9. It emerges from the plaint that Jagiro vendor of sale deed Ex.D-7 had died when the suit was filed on 25.5.1991. The learned counsel for the appellants had tendered in evidence birth certificate Ex.P-5 on 15.11.1997, no person was examined to prove the entry of birth certificate Ex.P-5. The appellants had tendered only some documents and no oral evidence was led. The appellants have not come in the witness box to support their pleaded case. Bimla Rani was impleaded as proforma defendant No.5 through her mother Smt. Savitri Devi who was also impleaded as proforma defendant No.4. The impleadment of Savitri Devi widow of Baziro as proforma defendant No.4 and of Bimla Rani as proforma defendant No.5 indicates that the appellants had no conflict of interest in the suit with Smt. Savitri Devi and Bimla Rani. 10. In Sarwan Singh and others v. Ashok Kumar and others AIR 1983 (P&H)366 it has been held that the birth entries are admissible per se but at the same, it is also well settled that mere production of a copy of the birth entry would not, as a matter of law ,connect the entry with the plaintiffs. It was further held that there being absolutely no evidence on the record that the said birth entries relate to the plaintiffs, it could not be held in the circumstances of the case that the plaintiffs were minor at the time of sale. The same view has been taken in Chirutha Amma Appili Amma v. Neelakanta Pillai Kunju Pillai and others AIR 1957 Kerala 106; Paryanibai v. Bajirao AIR 1963 Bombay 25. In these circumstances date of birth recorded in Ex.P-5 would not connect Bimla Rani with the date of birth recorded in Ex.P-5. The appellants have not examined Smt. Savitri mother of 8 Bimla Rani to prove the age of Bimla Rani. In these circumstances, it is not possible to hold that daughter of Jagiro vendor was about 6/7 years old at the time of execution of sale deed Ex.D-7. 11. The case can be viewed from another angle. Assuming that daughter of Jagiro at the time of execution of sale deed Ex.D-7 on 30.5.1988 was about 6/7 years old. It has been stated in the sale deed Ex.D-7 that the money was required by Jagiro for the marriage of his daughter. It can not be assumed that simply because the age of the daughter at the time of sale deed was about 6/7 years then sale could not be made for the marriage of daughter. Some times preparation for the marriage of daughter starts at an early age. It depends upon person to person, thinking and approach in life. The possibility cannot be ruled out that Jagiro wanted that at the relevant time he should make some arrangement for the marriage of his daughter in order to lesser the burden at the time of actual marriage. It is also possible that Jagiro might have started early preparation for the marriage of daughter due to uncertainty of life. In these circumstances Jagiro might have thought to sell land in dispute to generate money for the marriage of daughter. Jagiro represented to the vendees that the money was required by him for the marriage of his daughter. The vendees bonafide accepted the representation of Jagiro that money was required by Jagiro for the marriage of his daughter. 12. Jagiro was the best person to through light about the fact that sale of the land in dispute was made by him for the marriage of his daughter. Jagiro is dead and therefore, the best person to disclose 9 the circumstances for selling the land in dispute is not available. The sale deed Ex.D-7 is the only document in which it has been stated that money was required by Jagiro for the marriage of his daughter. In Abdur Rehman Khan and others v. Raghbir Singh and another 1949 PLR(51) 119 where the question of legal necessity was considered, it has been observed as follows:- “Now it may be conceded at once that beyond the recitals contained in the documents evidencing these debts, there is no other evidence that the debts were really incurred for the purposes mentioned therein. I am, however, of the opinion that, in the particular circumstances of the case, these recitals should be held to constitute good prima facie evidence of the debts having in fact been incurred for the purposes mentioned. It is quite true that as has been frequently held by this Court, a mere recital in the deed cannot ordinarily be regarded as any evidence of necessity”. The Division Bench has further held: “In such a case the recitals may be admitted in evidence for the purpose of proving representations made by the borrower to the lender and reasonably believed by the latter, and if the recitals are in themselves reasonable and there is nothing in the other circumstances disclosed on the record to make their truth doubtful or improbable, there will be nothing wrong in accepting such recitals as prima facie proof of money being actually required for the purposes for which the loans purport to have been raised. Indeed, to hold otherwise, will be to place the person for the time being claiming under the impugned transfer in an almost impossible position and that for no fault of his own”. 13. In Smt. Rani and another v. Smt. Santa Bala Debnath and others AIR 1971 SC 1028 it has been held as follows:- “Legal necessity does not mean actual compulsion. It means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof 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 of the necessity. 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 10 the Court and is within the special knowledge of the person who seeks to set aside the sale is with held, 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 interference 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”. 14. The sale deed Ex.D-7 has been proved on record wherein statement with respect to legal necessity has been made. The appellants who want to set aside the sale led no evidence to disprove that sale was not for legal necessity. The legal necessity of the sale was to be seen at the time of execution of the sale. It was not possible for the vendees to monitor where sale consideration of sale deed Ex.D-7 was actually utilized. The vendees have discharged the burden from the sale deed itself that the sale was made for the marriage of daughter of Jagiro. There is no manner of doubt that the sale of the property made for the marriage of the daughter is for legal necessity. It was for the appellants to lead appropriate evidence to counter the case of vendees which they have proved from the sale deed that the sale was made for legal necessity. The appellants have led no evidence to this effect. In these circumstances, averments made in the sale deed that the Jagiro had sold the property for the marriage of the daughter is to be accepted and it can be safely held that even though suit land was ancestral property but it was sold for legal necessity for the marriage of the daughter of vendor. The substantial questions of law Nos.1 and 2 are decided accordingly. The sale of land in question covered by sale deed Ex.D-7 is upheld and impugned judgment, decree are upheld for different reason. 15. No other point was urged. 11 16. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. May 18, 2010 (Kuldip Singh), (sks) Judge.