Nathu vs Rulla and Others

Kapur, J.—This is a rule which was issued by mo on the 12th of April, 1951, on a petition filed by Mr. Dwarka Nath Aggarwal praying that the suit, Nathu v. Ralla, and Ors. 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 he 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 Jut of Nawan wan 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 Mercdyth-Plowden in ''Gujjar v. Sham Das 107 PR 1887, 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 Immovable 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 Ham 73 P.R. 1895 (F.B.) which was from the Delhi Division in his admitting note Sir Meredyth Plowden explained the rule laid down the previous case in the following words:

The principle of the decision in 107 P.R 887, is that the power of alienation is at its origin a restricted power in respect of ancestral and 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 (infracts, and the family tie weakens, and as one individual consequently succeeds in shaking himself free of the bonds of the family group. Speaking generally, a father never accedes (sic) in shaking himself entirely free from one control of his sons, in respect to sales and mortgages of ancestral land, made otherwise man (sic) for necessity.

In (sic) the Tribal Law in the Punjab by Sir Bharles Arthur Roe and H.A.B. Rattigan it slated at p. 21:

It is but a necessary, result of a strict tie of agnatic succession that the power of the holder for the time being over the estate could be subject to some control by the aromatic heirs. Were it not so, were the holder lowed to sell or mortgage the estate for his own benefit, or divest the succession for the benefit others, the agnatic rule, would soon ase 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 large set it is stated there:

Ancestral Immovable property is or Court by inalienable (especially amongst the Jaoner (sic) except siding in the central districts of the Post is except for necessity or (sic) the consent on descendants, or, in the (sic) of a sonless (sic) prielor, of his male collectors. Provided a proprietor can alienate anustral (sic) immovably properly at pleasure if there is at the date such alienation neither a male descendant on a male collateral in existence.

And reliance is placed there on two judgment ''Raushan v. Lehna 36 P.R. 1895 and Jowal (sic) v. Hira Sing 55 P.R. 1903 (P.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 over (sic) but in regard to his powers of alienation this in his male descendants or in the collatered connected with him from the common actors from whom the land has descended, the rife to object to the alienation if it is not with this consent or is not for necessity. The reversioner have a residuary power vested in them of con trolling the alienations made by a proprietor. In order words the powers of a male proprietor in regard to ancestral land are so circumscribed that there is always a reversionary intergraded (sic) in his reversioners who have the expectation of getting the estate on the death of the mali1 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 lie said that ho has not the right to dispose of his property and therefore it is an interference with the right guaranteed by Article 19(1)(f) of the Constitution. The owner of ancestral land, which has come into the hands of a most (sic) proprietor, has "not the whole and sole interest in the property or power to dispose of it" this is the nature of ownership in custom and (sic) is attached to ancestral land, and it cannot said that this is an unreasonable restriction the exercise of any rights even if it were held that the matter falls within Article 19(l)(f) as is clear from the 5th clause of the 19th Article.

It is then submitted that this is dissemination against the citizens, on the ground race or caste. I am unable to agree with submission. Whoever lives in this part there, he is a Jat or Rajput or anybody and which ever be his race, he has these limitations posed upon his power of alienation. The est (sic) 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 alienation is a limited one and in my opinion there is no infringement of Article 15 either As long as a set of people are governed these laws these limitations will remain.

It was also submitted that the true rule that the ''limitation is not on the man but the property, because the man may have not ancestral property which he can sell with any. limitations, but limitation is place on the ancestral property because the if any of the reversioners exist in that astral property by virtue of their relationship with the common ancestor. This is supplied 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 owner under custom as given by Plowden J. or (sic) limitation which attaches to the land not an infringement of any fundaght (sic)

I am therefore of the opinion audit (sic) issue which has been raised is with force and I hold that there is no in of any of the fundamental rights. It has been suggested by Mr. Doabia b should send for the case and try it here, any issue which falls within Article 228 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 dismiss the Petitioner and discharge rule and direct that the case be tried in accordance with laws. There wi11 be no order (sic) to cost in this Court.