Ram Kishan and another vs Sarwan Kumar and others

S.S. Sodhi, J.—The challenge in appeal here is to the 99 years lease of the land in suit on the plea that it was an alienation of ancestral land without consideration and legal necessity.

It was on August 18, 1970 that Narain Singh executed a 99 years lease of 20 kanals of chahi land in favour of Swaran Kumar. The lease money being Rs. 375/- per annum. This lease was subsequently registered on September 22, 1970.

In the meanwhile, on September 4, 1970, vide sale-deed exhibit D/2, the said Narain Singh sold this very 20 kanals of land to the Defendant Thambu Ram for Rs. 20,000/-. This sale was later registered on October 6, 1977 A suit was then filed by the present Plaintiffs, they being the two minor sons" of the vendor-Narain Singh to pre-empt the sale in favour of Thambu Ram. A decree for pre-emption was eventually passed in their favour on August 31, 1971. The Plaintiffs thereafter stepped into the shoes of the vendor-their father Narain Singh. It is in this background that they now seek the declaration prayed for with regard to the 99 years lease in favour of Sarwan Kumar.

The controversy that survives lies within a narrow compass, it being the accepted position that the parties are governed by custom and the land in suit was ancestral The point was posed-whether the lease here was on alienation to attract to it the constraints under customary law. A complete answer to this is provided by the judgment of the High Court of Lahore in Dewa Singh v. Sunder Singh and Ors. (116) I. C. 615, where it was held that the lease (of 99 years) was an alienation within the meaning of Customary Law. What thus remains to consider here is whether the lease was for consideration and legal necessity.

It is settled law that the burden is upon the alienee to show that there was consideration and legal necessity. As held in AIR 1938 77 (Privy Council)

Now, it is a well-estsablished rule that the onus lies on the alienee to prove either that there was legal necessity in fact which would justify the alienation, or that he made a proper and bona fide enquiry into the alleged necessity and satisfied himself as to the existence of such necessity. If he fails to prove that here was a necessity in fact, alienation may still be upheld if he proves that he made enquiry as to the existence of the alleged necessity, and that the facts represented to him were such as, if true, would have justified the transaction. If he discharges this burden he is not bound to see that the money paid by him is actually applied by the alienor to meet the necessity.

Admittedly, the land in suit is located on the Grand Trunk Road in Sonepat with factories nearby and as mentioned earlier, it is chain land. The value of this land can also be gauged from the fact that despite the 99-years lease, it was sold for Rs. 20,000/- and this lease was within the knowledge of the vendee as it was specifically mentioned in the sale deed and what is more, possession thereof was also with the lessee-Sarwan Kumar.

A reading of the evidence on record would show that there is no mention there of any representation or enquiry regarding any legal necessity for the lease. The lease deed itself contained no such recital. Counsel for the Respondent was unable to point to any material or circumstance to suggest any pressure on the estate to justify the lease.

As for the aspect of consideration for the lease, great stress was laid by Mr. Vijay Jhanji, counsel for the Appellant upon the fact that no amount was paid at the time of the lease and also on the wholly inadequate nature of it, which it was argued, was amply demonstrated by the sale consideration despite the long lease being, Rs. 20,000/-.

To all this, counsel for the Respondents pressed in aid, as his answer the judgment of the Full Bench in Amar Chand v. Harji and ors (1971) 73 P. L. R. 821, where in the context of a suit for pre emption filed by the son in respect of the sale of land by the father, it was held that bona fide consent of the immediate reversioner, particularly of the son. given expressly or by implication, whether given before or at the time of the alienation or afterwards, validates the transfer of the ancestral immovable property by the father and percludes not only the person consenting but also the remoter reversioners, from challenging the alienation subsequently on the ground that it had not been made for good consideration and legal necessity. The argument of Mr. R. S. Mittal, counsel for the Respondent being that by filing the suit for pre-emption, the Plaintiffs had accepted the sale of the land in suit and as the sale deed made specific mention the lease too, it was not now open to them to question this either. There is indeed no merit in this contention. The sale that was pre-empted and the 99 years lease are two separate and distinct alienations and consequently the bar to the challenge to the sale on account of the preemption suit cannot preclude that to the lease. The lease has thus to stand scrutiny on its own and this is where it is found to be so brazenly wanting in meeting the requirements of customary law.

Such being the situation, there can no escape from the concluclusion that the lease in question was an alienation of ancestral land without consideration and legal necessity and the Plaintiffs are consequently entitled to and are hereby granted the decree for declaration as prayed for

In the result, the judgments and decrees of the courts below are hereby set aside and this appeal is accepted with costs.