Nathu vs Ralla and others

Kapur, J.—This is a rule which was issued by me on the 12th of April, 1951, on a petition filed by Mr. Dwarka Nath Aggarwal praying that the suit, ''Nathu v. Ralla'' and other, pending in the, Court of the Subordinate Judge, Nakodar, be transferred to this Court under Article 228 of the Constitution.

The point involved in the case is that a. sale made by Ralla in favour of Dulla, which has been attacked by Nathu on the ground that the sale is without consideration and necessity, cannot be challenged because this is an interference with the fundamental rights which are granted to citizens of this country under Articles 13, 15 (1) and 19 (1). The submission of the vendee is that the suit by the reversioners is an infringement of the right of his vendor to dispose of property and of his right to acquire property and therefore it is contrary to Article 19(1) (f) of the Constitution.

The vendor in this case is a Jat of Nawan Pind Jattan, in the Nakodar Tahsil of Jullundur District. According to the rules which have been applied to Jats the right in ancestral land of a male proprietor is a limited one. The right which a Jat proprietor has under custom in land has been described by Sir Meredyth-Plowden in ''Gujjar v. Sham Das'', 107 PR1387. in the following words at p. 246:

Ownership has been described by Austin as a ''right over a determinate thing, indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration." The component rights of ownership have been classified under the three heads of possession, enjoyment and disposition.

Ownership as above described is certainly known to custom But custom does not universally recognise it in respect of ancestral immoveable property.

Again at p. 247 the learned Judge has said:

The owner in possession is not regarded as having the whole and sole interest in the property, and power to dispose of it, so as to defeat the expectations of those who are deemed to have residuary interest, and who would take the property if the owner died without disposing of it.

In a subsequent case ''Ramjilal v. Taj Ram'', 73 P. R. 1895 (F. B.) which was from the Delhi. Division in his admitting note Sir Meredyth Plowden explained the rule laid down in the previous case in the following words:

The principle of the decision in 107 P R 1387, is that the power of alienation is at its origin a restricted power in respect of ancestral land in village communities. That is a proposition which I apprehend is indisputable. Every person is a member of a family group, the limits and the cohesion of which vary at different times. The power of alienation grows and increases according as the family circle contracts, and the family tie weakens, and as the individual consequently succeeds in shaking himself free of the bonds of the family group. Speaking generally, a father never succeeds in shaking himself entirely free from the control of his sons, in respect to sales and mortgages of ancestral land, made otherwise than for necessity.

In the Tribal Law in the Punjab by Sir Charles Arthur Roe and H. A. B. Rattigan it is staled at p. 21:

It is but a necessary result of a strict rule of agnatic succession that the power of the holder for the time being over the estate should be subject to some control by the agnatic heirs. Were it not so. were the holder allowed to sell or mortgage the estate for his own benefit or divest the succession for the benefit of others, the agnatic rule would soon cease to operate, and the social or family system based on it would be destroyed

Rattigan''s ''Digest of Customary Law'' in paragraph 59 has laid down the nature of right which a proprietor has in an ancestral land and it is stated there:

Ancestral immoveable property is ordinarily inalienable (especially amongst the Jats residing in the central districts of the Punjab) except for necessity or with the consent of male descendants, or, in the case of a sonless proprietor, of his male colllaterals. Provided that a proprietor can alienate ancestral immoveable property at pleasure if there is at the date of such alienation neither a male descendant nor a male collateral in existence.

And reliance is placed there on two judgments, ''Raushan v. Lehna'', 36 P. R. 1895 and ''Jowala v. Hira Singh'', 55 P. R. 1903 (F. B.).

As I understand, the rights of a male proprietor governed by custom in ancestral land are that he holds the land as a full owner but in regard to his powers of alienation there is in his male descendants or in the collaterals connected with him from the common ancestor from whom the land has descended, the right to object to the alienation if it is not with their consent or is not for necessity. The reversioners have a residuary power vested in them of controlling the alienations made by a proprietor. In other words the powers of a male proprietor in regard to ancestral land are so circumscribed that there is always a reversionary interest in his reversioners who have the expectation of getting the estate on the death of the male proprietor. This is, as was stated by Roe and Rattigan, one of the characteristics of the agnatic theory.

If this is the right of a male proprietor it cannot be said that he has not the right to dispose of his property & therefore it is an interference with the right guaranteed by Art. 19 (1) (f) of the Constitution. The owner of ancestral land, which has come into the hands of a male proprietor, has "not the whole and sole interest in the property or power to dispose of it" as this is the nature of ownership in custom and is attached to ancestral land, and it cannot be said that this is an unreasonable restriction on the exercise of any rights even if it were held that the matter falls within Article 19(1) (f). as is clear from the 5th clause of the 19th Article.

It is then submitted that this is discrimination against the citizens on the ground of race or caste. I am unable to agree with this submission. Whoever lives in this part, whether he is a Jat or Rajput or anybody and whatever be his race, he has these limitations imposed upon his power of alienation. The estate which he has in other words is of a limited nature. By the very nature of the estate that he inherits from his ancestors the power of alienation is a limited one and in my opinion there is no infrigement of Article 15 either. As long as a set of people are governed by these laws these limitations will remain.

It was also submitted that the true rule is that the limitation is not on the man but on the property because the man may have non-ancestral property which he can sell without any limitations, but limitation is placed only on the ancestral property because the rights if any of the reversioners exist in that ancestral property by virtue of their relationship with the common ancestor. This is supported by the rule laid down in the 54th paragraph of Rattigan''s Digest. Whichever way we may look at it, whether it is the nature of ownership under custom as given by Plowden J. or view it as a limitation which attaches to the land itself it is not an infringement of any fundamental right. I am therefore of the opinion that this issue which has been raised is without any force and I hold that there is no infringement of any of the fundamental rights.

It has been suggested by Mr. Doabia that I should send for the case and try it here. The only issue which falls within Article 228 of the Constitution is one that I have discussed above and what I have said above will dispose of the case as far as Article 228 is concerned.

I therefore dismiss the petition and discharge rule and direct that the case be tried in accordance with law. There will be no order as to costs in this Court.