{"id":66099,"date":"1990-09-12T00:00:00","date_gmt":"1990-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bara-singh-vs-kashmira-singh-and-ors-on-12-september-1990"},"modified":"2017-09-05T03:53:27","modified_gmt":"2017-09-04T22:23:27","slug":"bara-singh-vs-kashmira-singh-and-ors-on-12-september-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bara-singh-vs-kashmira-singh-and-ors-on-12-september-1990","title":{"rendered":"Bara Singh vs Kashmira Singh And Ors on 12 September, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bara Singh vs Kashmira Singh And Ors on 12 September, 1990<\/div>\n
Equivalent citations: 1990 SCR, Supl. (1) 417 1990 SCC (4) 711<\/div>\n
Author: K Saikia<\/div>\n
Bench: Saikia, K.N. (J)<\/div>\n
           PETITIONER:\nBARA SINGH\n\n\tVs.\n\nRESPONDENT:\nKASHMIRA SINGH AND ORS.\n\nDATE OF JUDGMENT12\/09\/1990\n\nBENCH:\nSAIKIA, K.N. (J)\nBENCH:\nSAIKIA, K.N. (J)\nTHOMMEN, T.K. (J)\nKASLIWAL, N.M. (J)\n\nCITATION:\n 1990 SCR  Supl. (1) 417  1990 SCC  (4) 711\n JT 1990 (3)   843\t  1990 SCALE  (2)684\n\n\nACT:\n    Hindu Law  Ancestral Immovable property--Alienation\t of-\nCustom\tamongst Jats in Central District of  Punjab--Aliena-\ntion as a bona fide act of good management--Valid.\n\n\n\nHEADNOTE:\n    Respondent\tNos.  4 to 6 sold their 3\/5th share  of\t the\nancestral  land to the appellant for Rs.14,000, as the\tven-\ndors left their village and wanted to settle elsewhere where\nthey  purchased 80 kanals of Nehri land. Respondents Nos.  1\nto  3  filed a declaratory suit in the court  of  Sub-Judge,\nLudhiana  seeking  a declaration that the sale of  the\tsuit\nland  would not affect their reversionary rights  after\t the\ndeath of respondents 4 to 6. They pleaded that the land\t was\nancestral and according to the custom governing the parties,\nit could not be alienated; they also asserted that the\tland\nwas sold without any consideration and legal necessity.\t The\nappellant  defendant No. 1, contended that the sale  was  an\nact of good management on the part of the alienors, and that\nthe  same was not without consideration\/the  vendors  having\ndecided to settle elsewhere.\n    The trial court held that the sale was an act of prudent\nmanagement and was not without consideration. As regards the\ncustom\tit  held that the parties were governed\t by  custom,\nwhereunder ancestral land could not be alienated except\t for\nlegal  necessity or as an act of good management.  The\tsuit\nwas  accordingly  dismissed and the first  appeal  preferred\nagainst that decision failed.\n    Respondents\t 1 to 3 thereafter preferred Regular  Second\nAppeal\tbefore\tthe High Court. The High Court\tallowed\t the\nappeal,\t set aside the sale holding that it was neither\t for\nany  legal necessity nor could it be justified as an act  of\ngood  management.  The suit was accordingly  decreed.  Hence\nthis  appeal  by the appellant-defendant No.  1\t by  special\nleave.\n418\n    Before this Court the appellant contended that the\tsale\nwas  or\t was  not an act of good management  having  been  a\nquestion  of fact, the trial court as also the first  appel-\nlate  court having arrived at a concurrent finding  that  it\nwas  an\t act of good management, the High Court\t should\t not\nhave  interfered  with that finding. On the other  hand\t the\nrespondents  contended that the sale was not an act of\tgood\nmanagement.\nAllowing the appeal, this Court,\n    HELD: The custom is that the ancestral immovable proper-\nty is ordinarily inalienable specially amongst Jats residing\nin the Central Districts of Punjab, except for necessity and\nthe other permissible reasons. All alienation as a bona fide\nact of good management has been treated as one of  necessity\nand hence valid. [233B]\n    In\tthe instant case, the vendee proved the\t ingredients\nof  good management and the concurrent finding of the  Trial\nCourt  and the first appellate court was that  the  impugned\nsale was an act of good management, and it was essentially a\nfinding of fact. [234F]\n    The High Court was, therefore, in error in setting aside\nthe  concurrent\t finding of fact in the\t facts\tand  circum-\nstances of the case in Second Appeal.\n    Gujar v. Sham Das, 107 P.R.\t 1887; Mohammad Chiragh\t and\nOrs.  v. Fatta & Ors., AIR 1934 Lahore 452; Abdul Rafi\tKhan\nv.P. Lakshmi Chand and Ors., AIR 1934 Lahore 998; Dial Singh\nv. Surain Singh, AIR 1937 Lahore 493; Gujjan Singh and\tOrs.\nv. Atma Singh, 1968 PLR Vol. 70-195.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1934
\nof 1972.\n<\/p>\n
    From  the  Judgment and Order dated 9.12.  1971  of\t the
\nPunjab\tand Haryana High Court in regular Second Appeal\t No.
\n1286 of 1969.\n<\/p>\n
    V.C. Mahajan, K.R. Nagaraja (NP) and R.S. Hegde for\t the
\nAppellant.\n<\/p>\n
419<\/span><\/p>\n
    Uma\t Dutta, E.C. Agarwala, Ms. Sheil Sethi\tand  Susheel
\nKumar for the Respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    K.N. SAIKIA, J. This first defendant’s appeal by special
\nleave  is from the Judgment and Decree of the High Court  of
\nPunjab\tand Haryana in R.S.A. No. 1286 of 1969\tdated  9.12.
\n1971. Respondents 4 to 6 Balwant Singh, Jagir Singh and Teja
\nSingh,\tsons of Kehar Singh sold land measuring 38 Kanals  3
\nMarlas,\t being 3\/5th share of 63 Kanals 11 Marlas of  ances-
\ntral  land  situated at village Maherna\t Kalan,\t Tehsil\t and
\nDistrict  Ludhiana, as per sale deed dated June 4,  1964  in
\nfavour of the appellant (first defendant) for Rs. 14,000  as
\nthe  vendors  left their village Maherna Kalan and  had\t not
\nbeen cultivating the same and it was not yielding any  prof-
\nit. The sale deed contained a recital that the vendors\tsold
\nthe land with a view to purchase land in another village. On
\nNovember 6, 1965 the vendors actually purchased 80 Kanals of
\nNehri  land for Rs. 11,000. The parties are  admittedly\t Jat
\nSikhs governed by Punjab Customs.\n<\/p>\n
    Respondents 1 to 3 filed a declaratory suit on August 3,
\n1966 in the Court of Sub-Judge, Ludhiana seeking a  declara-
\ntion  that the sale of the suit land would not affect  their
\nreversionary rights after the death of respondents 4 to 6 as
\nthey were governed by the custom in the matter of alienation
\ninasmuch as the suit land was ancestral in the hands of\t the
\nalienors  qua the plaintiffs (respondents 1 to 3)  and\tthat
\nthe  sale  was effected without\t consideration\tand  without
\nlegal necessity; and respondents 4 to 6 (defendants 2 to  4)
\nwere restrained from alienating under the custom.
\n    The appellant averred, inter alia, that the sale was for
\nconsideration  and legal necessity as it was an act of\tgood
\nmanagement  on the part of the alienors; that respondents  4
\nto 6 who were not sonless and were men of good character and
\nsober  habits;\tthat migrating from their village  they\t had
\nsettled elsewhere as they were neither cultivating the\tsuit
\nland  nor  were in a position to manage\t and  cultivate\t the
\nsame; and that the alienors had actually purchased 80 Kanals
\nof better quality Nehri land which showed that the sale\t was
\nan act of good management on the part of the vendors. It was
\nalso  contended that the land in suit was not ancestral\t qua
\nthe  plaintiffs nor was it governed by customs and that\t the
\nplaintiffs had no locus standi.\n<\/p>\n
420<\/span><\/p>\n
    The respondents 4 to 6 being defendants 2 to 4  admitted
\nthe  claims of the plaintiffs. The respondent No. 5 who\t was
\nthe  brother of respondent No. 2, was impleaded as  proforma
\ndefendant having the same interest as the plaintiffs.
\n    The\t Trial\tCourt, inter alia held that the\t parties  in
\nrespect of the sale of the suit land were governed by custom
\nwhereunder ancestral land could not be alienated except\t for
\nlegal  necessity or as an act of good management;  that\t the
\nsuit land was ancestral qua the plaintiffs (respondents 1 to\n<\/p>\n
3) and defendants 2 to 4 (respondents 4 to 6); that the sale
\nwas  effected for consideration of Rs. 14,000 as  stipulated
\nin  the sale deed; and that the sale was an act\t of  prudent
\nmanagement on the part of the vendors and as such unimpeach-
\nable.  The suit having been dismissed and the  first  appeal
\ntherefrom  having failed, the respondents 1 to\t3  preferred
\nR.S.A.\tNo.  1286 of 1969 in the High Court  of\t Punjab\t and
\nHaryana wherein they sought to adduce additional and further
\nevidence  of a sale deed dated June 3, 1969 alleged to\thave
\nbeen  executed by respondents 4 to 6 in respect of the\tsuit
\nland.  The High Court allowed the R.S.A. and set  aside\t the
\nsale holding that it was neither for any legal necessity nor
\ncould it be justified as an act of good management. The suit
\nwas  accordingly  decreed. The certificate to  file  Letters
\nPatent\tAppeal having been refused, the\t appellant  obtained
\nspecial leave.\n<\/p>\n
    Mr. V.C. Mahajan, the learned counsel for the appellant,
\nsubmits that whether the sale was or was not an act of\tgood
\nmanagement  having been a question of fact, the Trial  Court
\nand the first appellate court having arrived at a concurrent
\nfinding\t that it was an act of good management and  as\tsuch
\nunimpeachable,\tthis concurrent finding could not have\tbeen
\nset aside by the High Court in second appeal; that the\tsale
\ndeed dated June 3, 1969 which was never accepted and  proved
\naccording to law was irrelevant for impeaching the sale\t and
\nthe High Court erred in law in taking it into  consideration
\nwhile  determining whether the sale was an act of good\tman-
\nagement.\n<\/p>\n
    Mr.\t Uma  Dutta, learned counsel  for  the\trespondents,
\nsubmits, inter alia, that the sale of the suit land  measur-
\ning 38 Kanals 3 Marlas being on June 4, 1964 and the  subse-
\nquent purchase of 80 Kanals for Rs. 11,000 being on November
\n8, 1965 and that land also having subsequently been sold  on
\nJune  3, 1969 for Rs.35,000 and there being no\tevidence  to
\nshow that the suit land was less fertile or that the vendors
\n421<\/span>
\nhad settled at village Pather, the High Court was correct in
\nholding\t that the impugned sale was not an act of good\tman-
\nagement.\n<\/p>\n
    The\t only question to be decided in this appeal,  there-
\nfore, is whether the High Court was correct in setting aside
\nthe concurrent finding that the impugned sale was an act  of
\ngood management and not restricted by custom.
\n    It is common ground that the parties are governed by the
\nlocal  custom which restricts alienation. About\t the  custom
\nW.H.  Rattigan\tin  his ‘A Digest of Customary\tLaw  in\t the
\nPunjab’ (14th Ed.) in Chapter IV at page 283 said:
\n“Thus,\twhile the unhampered exclusive use of property in  a
\nman’s  possession,  whether ancestral or acquired,  for\t his
\nlifetime, with a free disposal of the income, is not denied,
\nfreedom\t of  alienation, whether by gift or bequest,  is  in
\nregard\tto  ancestral immovable property,  subject  in\tmost
\ncases to certain restrictions.”\n<\/p>\n
    A  ‘late Senior Judge of the Chief Court’ in  a  leading
\ncase  (Nos.  107 P.R. 1887, page  247)\texpressed  generally
\nthat:\n<\/p>\n
\t respect  of  ancestral immovable  properly  in\t the
\nhands of any individual. there exists some sort of residuary
\ninterest in all the descendants of the first owner. or\tbody
\nof owners, however, remote and contingent may be the  proba-
\nbility of some among such descendants ever having the enjoy-
\nment  of the property. In short, the owner in possession  is
\nnot  regarded as having the whole and sole interest  in\t the
\nproperty,  and power to dispose of it, so as to\t defeat\t the
\nexpectations  of  those who are deemed to have\ta  residuary
\ninterest  and who would take the property if the owner\tdied
\nwithout\t disposing of it. The limitations within which\tper-
\nsons  having or claiming to have such a\t residuary  interest
\nmay  prevent  an owner in possession  from  defeating  their
\nexpectations  will be found to vary according to local\tcir-
\ncumstances, which may either weaken or rebut the presumption
\nthat   the   owner  has\t not  an   unrestricted\t  power\t  of
\ndisposition.”\n<\/p>\n
422<\/span><\/p>\n
Sir Meredyth Plowden in Gujar v. Sham Das, 107P.R. 1887 also
\nsaid:\n<\/p>\n
“In respect of ancestral immovable property in the hands  of
\nany individual, there exists some sort of residuary interest
\nin all the descendants of the first owner or body of owners,
\nhowever remote and contingent may be the probability of some
\namong  such  descendants ever having the  enjoyment  of\t the
\nproperty. The owner in possession is not regarded as  having
\nthe  whole and sole interest in the property, and  power  to
\ndispose of it, so as to defeat the expectations of those who
\nare deemed to have a residuary interest, and who would\ttake
\nthe property if the owner died without disposing of it.”\n<\/p>\n
    In the critical words of Chief Justice Sir Shadi Lal  in
\nGujar  v. Sham Das (supra) the issues before the Court\twere
\nwhether in a case, where the power of a sonless Jat proprie-
\ntor  to\t alienate ancestral land without  necessity  was  in
\ndispute,  it was the duty of the alienee to prove  a  custom
\nauthorizing  a transfer of the ancestral land in  favour  of
\nstranger, and on whom lay the onus of proving that a sonless
\nproprietor  has powers to dispose of ancestral land  without
\nnecessity; and the rest were mere deductions.
\n    In para 59 at page 291 of the Digest Rattigan states the
\nrestrictions  on alienation of ancestral immovable  property
\nthus:\n<\/p>\n
“Ancestral  immovable  property\t is  ordinarily\t inalienable
\n(especially amongst ‘Jats’ residing in the central districts
\nof the Punjab), except for necessity or with the consent  of
\nmale  descendants, or, in the case of a sonless\t proprietor,
\nof  his male collaterals. “Provided” that a  proprietor\t can
\nalienate  ancestral immovable property at pleasure if  there
\nis at the date of such alienation neither a male  descendant
\nnor a male collateral in existence (No. 36 P.R. 1895; No. 55
\nP.R. 1903, F.B.)”\n<\/p>\n
    In other words, the custom is that the ancestral immova-
\nble  property is ordinarily inalienable\t especially  amongst
\nJats residing in the Central Districts of Punjab, except for
\nnecessity and the other permis-\n<\/p>\n
423<\/span><\/p>\n
sible  reasons.\t An alientation as a bona fide act  of\tgood
\nmanagement  has been treated as one of necessity and  hence,
\nvalid.\n<\/p>\n
At page 388 of the Digest we find the gloss:\n<\/p>\n
“In  the  case of a male proprietor, in\t the  management  of
\nagricultural affairs a very strict economy and a very excel-
\nlent  management  must not be insisted upon.  Ordinary\tbona
\nfide  management  is all that can be demanded (No.  70\tP.R.
\n1894;  No.  20 P.W.R. 1911; No. 40 P.W.R. 1911, and  No.  25
\nP.R. 1911); 1922, 69 Ind. Case 521 (exchange of land).
\n\t  Where\t although no immediate necessity for a\tsale
\nis  established, if the sale has been held to be an  act  of
\ngood management, it is binding on the reversioners.”\n<\/p>\n
    The\t above statement has been commented upon as being  a
\nbit  wide, and the suggested statement is that ‘such a\tsale
\nmust  be  upheld’. In Mohammad Chiragh and Ors. v.  Fatta  &
\nOrs.,  A.I.R. 1934 Lahore–452 where although  no  immediate
\nnecessity for sale was established, but there was a  recital
\nin the sale deed that the vendors intended to purchase other
\nland with the proceeds of the sale, and a representation  of
\nthat  kind  was made to the vendees which  might  have\tbeen
\nbelieved  by them in good faith, the High Court did not\t see
\nany  good grounds for interference with the findings of\t the
\nlearned\t District  Judge that the sale was an  act  of\tgood
\nmanagement which, it was observed; “was essentially a  find-
\ning of fact.” In Abdul Rafi Khan v. P. Lakshmi Chand & Ors.,
\nA.I.R.\t1934  Lahore–998 where the members of\tthe  family,
\nfinding\t their\tposition in the village\t precarious  due  to
\ndeteriorating  relations between it and the tenants  in\t the
\nvillage\t sold their Land one by one as they found it  diffi-
\ncult to manage them or recover rent and the vendors moved to
\nanother place where they purchased certain land, it was held
\nthat the sale of the land was an act of good management\t and
\nthe vendee was not expected to see to the application of the
\nmoney  by the vendors to the purposes mentioned in the\tsale
\ndeed.  Similarly in Dial Singh v. Surain Singh, A.I.R.\t1937
\nLahore–493,  the question was whether a sale  of  ancestral
\nland was for necessity. On April 3, 1934 Bhagwan Singh\tsold
\nancestral land for Rs. 1,500 the entire consideration  being
\npaid to him before the Sub Registrar. The object of the sale
\nwas  the purchase of land in Bikaner and Gwalior States\t and
\nactually since the sale Bhagwan Singh spent
\n424<\/span>
\nabout Rs. 160 in buying about 100 bighas of land in Gwalior.
\nThe  lower courts concurrently found that the sale was\tfor.
\nnecessity.  Before the District Judge it was urged that\t the
\nmoney  had not been actually spent on the purpose for  which
\nit was raised. But the learned District Judge held that this
\nwas admitted to be correct, that all that the alienee had to
\ndo  was to see that the money was required for a  legitimate
\npurpose. The sole question, therefore, was whether the\tsale
\nin  order to buy land in Gwalior and Bikaner was an  act  of
\ngood management, which would be regarded as one of  necessi-
\nty.  The Division Bench held that no sufficient\t reason\t had
\nbeen shown for dissenting from the concurrent finding of the
\ncourts\tbelow that the sale of land by Bhagwan Singh in\t the
\npresence of his elder son was for necessary.
\n    In Gajjan Singh & Ors. v. Anna Singh, [1968] P.L.R. Vol.
\n70-195 it was held that no person could be tied down to\t the
\nvillage where he had ancestral land unless it was shown that
\nhe  was leaving the village or disposing of the land in\t the
\nvillage on some false pretext. Where relations of a proprie-
\ntor  with his brother were strained and he sold the land  to
\npurchase land in some other village, the alienation was held
\nto be an act of good management and that once a true  repre-
\nsentation  was made by the vendor, the vendees were  not  to
\nsee  the  application of the money and they need  not  prove
\nthat the money in fact was utilised for a necessary purpose.
\nIt  was further held that the land purchased with  the\tsale
\nproceeds of the ancestral land did not cease to be ancestral
\nand it remained ancestral land.\n<\/p>\n
    In the instant case the vendee proved the ingredients of
\ngood  management  and the concurrent finding  of  the  Trial
\nCourt  and the first Appellate Court was that  the  impugned
\nsale was an act of good management, and it was essentially a
\nfinding of fact. Applying the law as enunciated in the above
\ndecisions we do not find any infirmity therein. The  submis-
\nsions  of  the learned counsel for the respondents  that  in
\nview  of  the subsequent sale of the land would go  to\tshow
\nthat  it  was speculative sale would be\t wholly\t irrelevant.
\nThere  was evidence to show that even prior to the sale\t the
\nvendors\t were not cultivating and as such not  deriving\t any
\nprofit\tfrom  the  land. The distance of  time\tbetween\t the
\nimpugned sale on June 4, 1964 and the purchase of 80  Kanals
\nof  land  in the other village on November 6, 1965  was\t not
\nsuch as to disprove that the sale was an act of good manage-
\nment and as such was for necessity. The Trial Court  clearly
\nfound  that  the  vendors left for and settled\tat  the\t new
\nvillage where they purchased 30 Kanals of land. The averment
\nthat the purchased land was subsequently sold on June
\n425<\/span>
\n3,  1969  at  Rs.35,000 besides having not  been  proved  in
\naccordance  with law, was wholly irrelevant for the  purpose
\nof  discharging the onus of the appellant–vendee. The\tHigh
\nCourt was, therefore, in error in setting aside the  concur-
\nrent  finding of fact in the facts and circumstances of\t the
\ncase, in Second Appeal.\n<\/p>\n
    In\tthe  result, this appeal is  allowed,  the  impugned
\nOrder of the High Court is set aside and Decree of the lower
\ncourts\tin the suit restored. The parties being\t near  rela-
\ntions, we leave them to bear their’ own costs.\n<\/p>\n
Y. Lal\t\t\t\t       Appeal allowed.\n426<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bara Singh vs Kashmira Singh And Ors on 12 September, 1990 Equivalent citations: 1990 SCR, Supl. (1) 417 1990 SCC (4) 711 Author: K Saikia Bench: Saikia, K.N. (J) PETITIONER: BARA SINGH Vs. RESPONDENT: KASHMIRA SINGH AND ORS. DATE OF JUDGMENT12\/09\/1990 BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) THOMMEN, T.K. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-66099","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBara Singh vs Kashmira Singh And Ors on 12 September, 1990 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bara-singh-vs-kashmira-singh-and-ors-on-12-september-1990\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bara Singh vs Kashmira Singh And Ors on 12 September, 1990 - 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