Shankar Lal and others vs Lakhbir Singh and others

S.B. Capoor & Shamsher Bahadur, JJ.—The surviving question for determination in this appeal is whether the sale of the disputed land for a sum of Rs. 10,000/- should have been upheld in its entirety and not converted into a mortgage of Rs. 6000/-, that amount having been found out of the consideration by the lower appellate Court to have been incurred for legal necessity ?

Mohinder Singh, a retired army officer of the erstwhile Nabha State, transferred by sale land measuring 142 Bighas and 10 Biswas in Dhablan village for a sum of Rs. 10,000/- by a registered sale deed of 25th of February, 1953, in favour of Lachhman Dass who further sold a parcel of 35 Bighas and 8 Biswas of this land to Dasondha Singh on 24th of December, 1957. Lakhbinder Singh, a minor son of the alinor, under the guardianship of his elder brother Brinder Singh, brought the present suit on 21st of September, 1961, for a declaration that the sale was not binding on him being without consideration and legal necessity in respect of agricultural land. The plaintiff made allegations in the plaint that his father was a profligate, spendthrift and addicted to drunkenness. It was asserted that the parties are governed by the law of custom under which a person cannot alienate ancestral property unless legal necessity has been established.

It is common ground that the alienor at the time of sale had two major sons, one minor son, the plaintiff, and one daughter, besides two wives. Lachhman Dass died on 20th of November, 1956, and his sons and daughter were impleded as defendants 1 to 3 as also Dasondha Singh and Mohinder Singh. A variety of pleas were raised in the pleadings of the parties and as many as 10 issues were framed. We are no longer concerned with the locus standi of the plaintiff to bring the suit, the ancestral nature of the property, the right of the plaintiff to contest the alienation under customary law, the collusive nature of the transaction and the consideration for the sale. The suit was dismissed by the learned Subordinate Judge, Patiala, it having been found by him that the sale was for consideration and legal necessity. The finding with regard to consideration, as I have just indicated, is no longer in dispute, but the learned Additional District Judge of Patiala on the plaintiff''s appeal held that legal necessity had been established only for the sum of Rs. 6,000/- which was found to have been paid at the time of registration. The lower appellate Court has converted the sale-transaction into a mortgage and a partial declaration granted that the sale would not be binding upon the interests of the plaintiff after the death of Mohinder Singh and he would be entitled to take possession of the land on payment of this amount to the vendees or their transferees. From this decree of the lower appellate court, the vendees have come in appeal and Mr. Dalip Chand Gupta, on their behalf, has challenged the conclusions for the Court only in respect of two issues, these beings :

(3) If issue No. 2 is proved, whether the land in suit was sold for consideration and legal necessity ?

(9) Whether the present suit is barred as alleged in para 2 of the additional pleas of the written statement of defendants Nos. 1 to 3 ?

Issue No. 9, to which I would avert first, is based on a previous dismissal of a similar suit by the same plaintiff instituted under the guardianship of the same brother Birinder Singh on 1st of December, 1959 This suit, which was brought on 2nd of June, 1959, was allowed to be withdrawn on the application of the plaintiff The plaintiff was burdened with costs of Rs. 40/-. Being a legal issue, no evidence appears to have been led by the parties and the learned trial Judge disposed of this aspect of the case with the following observation :

The Learned Counsel for the contesting defendants Nos. 1 to 3 and for defendant No. 5 frankly conceded on this issue the withdrawal of previous suit by the next friend of the minor plaintiff does not bar the present suit.

In the appellate judgment, the learned Additional District Judge did not discuss this point at all. In the memorandum of appeal to this Court, it is mentioned that this suit is not maintainable on the ground that a previous suit of a similar nature by the same party had been dismissed as withdrawn It may be assumed in favour of Mr. Gupta that an erroneous concession on a point of law will not be binding on a party. It is submitted by him that Order 23 of the CPC relating to withdrawal and adjustment of suits contemplates suits which are withdrawn without anything more said about it and a suit which is withdrawn with liberty to bring a fresh one. It is pointed out by him. that under sub-rule (1) of rule 1 or Order 23, the plaintiff may, after the institution of a suit, withdraw his suit or abandon part of his claim. Sub-rule (2) provides that in cases where a Court is satisfied that a suit will fail for some formal defect or where there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may grant the plaintiff permission to withdraw from such suit. What Mr. Gupta relies on is sub-rule (3) of rule 1 under which :

Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

It is argued by Mr. Gupta that the order of the Court not having accorded permission to the plaintiff to bring a fresh suit, he deprived himself of the right to bring the present suit which must fall on account of an interdict placed by sub-rule (3) of rule 1 of order 23. That the order of dispossal passed on 1st of December, 1959, makes no reference to permission accorded to the plaintiff to bring a fresh suit is clear from the order itself. Mr. Khosla, for the respondent, contends that the application for withdrawal has not been filed and it is impossible to surmise that the plaintiff had not asked in his application for permission to bring a fresh suit, on the same cause of action. It was held by a Division Bench of Das and Ross JJ. in Khudi Rai Vs. Lalo Rai and Others, , that :

Where an application is made by a plaintiff to withdraw from a suit with liberty to bring a fresh suit on which an order is passed giving the permission to withdraw from the suit, although nothing is said in the order as to the plaintiff''s liberty to institute a fresh suit on the same cause of action that order ought to be read along with the petition and construed as granting permission to file a fresh suit.

The issue having been conceded before the trial Judge and no point having been made before the lower appellate Court, it cannot be inferred in favour on the contention raised by Mr. Gupta that the application made by the plaintiff in the suit filed in 1959 for its withdrawal did not include the prayer to bring a fresh suit on the same cause of action.

So far as the question of legal necessity is concerned, it is be noted that though a variety of allegations were made nothing has been established beyond the fact that Mohinder Singh, who was drawing a salary of Rs. 1000/- to Rs. 1500/- while he was serving in the army, started alienating his land alter bis retirement to maintain himself. With regard to his habits all that was said in evidence is that he used to take whisky. The two major sons of Mohinder Singh took no stepts to set aside the sale which was made in 1953. Even the suit brought by the present plaintiff on 2nd of June, 1959, was withdrawn. It is well to mention that the period of limitation to bring a suit of this nature is six years from the time of sale. The minority of the plaintiff has been pressed into service to surmount the difficulty of Limitation. There is no evidence of background of bad relationship between the father and his sons or the other members of the family Lachhman Dass, to whom the land was sold died in 1956 and it is not an unreasonable point to urge that the evidence of legal necessity was best known to Lachhman Dass or Mohinder Singh himself Mohinder Singh, who is defendant No. 6, did not come into the witness-box to support the claim of his minor son. It was expected that he would not come in the witness-box to support the assertion of the plaintiff as that would have made the suit obviously collusive. The attesting witness of the deed, Gurcharan Singh Lambardar D.W. 2; has stated that the recitals in the sale-deed were substantially correct. What is said in the sale-deed is that the alienor was the sole owner of the land and required money for celebrating the marriages of his sons, payment of consolidation charges, purchase of other lands and to buy a house in the city. It has been brought in evidence that there is no other person of the got of Mohinder Singh in Dhablan village and there might have been a natural anxiety on his part to buy a house in the city. The lower appellate Court has been influenced by the consideration that only the marriage of the daughter had been performed and for this purpose a sum of Rs. 6000/- would have been adequate. The consolidation of holdings had taken place much earlier and there was no occasion to make any payment on this score. There is some evidence to show that Mohinder Singh had purchased some other pieces of land elsewhere. It may be that he wanted to have a holding of land in village where persons of his got resided.

What has to be seen is that a vendee is not bound to see whither the funds realised by the transaction of sale had actually been utilised for the ostensible purpose of alienation. Lachhman Das was in a position to give information on the question of legal necessity, and the principle of law laid down by their Lordships'' of the Privy Council in Banga Chandra v. Jagat Kishore AIR 1916 P.C. 110, be fully applicable. Lord Buckmaster observed that :

The recitals as to legal necessity in documents are not by themselves proof of facts asserted. Mr. the deeds are challenged at or near the time of execution; where independent evidence is available, the recitals are no proof of facts alleged. But if by lapse of time, all those who have given evidence on the relevant points have grown old or passed away, a recital consistent with the possibility and circumstances of the case, cannot be lightly set aside In such a case the recital is clear evidence of the representation to the alienee, as to the existence of the necessity.

The suit having been brought after the death of Lachhman Dass the recitals in the sale-deed assumed, importance and it mattered not whether the funds were actually utilised for the purposes mentioned in this document. As observed by Sir Shadi LaL in another Privy Council decision in AIR 1938 77 (Privy Council) :

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 there 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, he is not bound to see that the money paid by him is actually applied by the alienor to meet the necessity.

The approach of the lower appellate Court in the circumstances, does not appear to be in consonance with the legal position and it is not at all necessary to see whether all the avowed purposes of the legal necessity had in fact been fulfilled completely or perfectly.

None of the sons or daughter of the alienor was married and it is certainly a legal necessity to alienate lands for the purpose of marrying children. It does seem strange that between 1943 and 1953 the entire holding of Mohinder Singh measuring about 300 Bighas had been sold, but the witnesses of the plaintiff himself hive stated that after his retirement in 1951 or 1952 Mohinder Singh was trying to maintain himself by the proceeds of these sales. Mohinder Singh was used to a good standard of living and if he suddenly found himself without ready cash on his retirement with unmarried children on hands, Lachhman Dass might well have thought that the money required by him was truly for legal necessity and in the context of this background the recitals in the sale-deed have meaning and content which cannot be overlooked.

The matter may be looked in another way. Even according to the finding of the lower appellate Court legal necessity for a sum of Rs. 6000 has been established. It has been held by a Division Bench of the Lahore High Court in Mr. Kahi v. Hidayat Khan AIR 1930 Lah. 183, that:

Where a sale, the major portion of which is for consideration and necessity, is old one and there is a long delay in challenging the alienation the sale should not be converted into mortgage.

There is also an unreported decision of Chief Justice Khosla and Dulat J. in lnder Singh v. Bakhshish Singh L.P.A. 28 of 1956, derided on 29th January, 1959, in which the sale transaction was upheld as it had been proved that legal necessity existed to the extent of 67 per cent.

In our opinion, the sale, in the circumstances of this case, should have been upheld in its entirety. We would accordingly allow the appeal, set aside the judgment and decree of the lower appellate Court and restore that of the trial Judge. We, would, however, leave the parties to bear their own costs. The cross-objections preferred by the respondent Lakhbinder Singh would stand dismissed, without any order as to costs.