# Budal v. Kirpa Ram, 76 P.R. 1914, not followed

- **Citation:** [1964] 2 S.C.R. 899
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Civil Regular Second Appeal No. 693 of 1952
- **Bench:** A. K. Sarkar, M. Hidayatullah, j. C. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/budal-v-kirpa-ram-76-p-r-1914-not-followed-2855
- **Pages:** 6

## Headnote

Custom-Ancestral agric"ltltural lands in Jhajjar Tehsil,
Rohtak DiBtHct of Punjab-Unrestricted power of a Jat to
trans/er it for consideration-No right of son or reversionary
heirs to get it set a.tide . unless transaction is for immoral purposes-No distinction bP.tween sonle.s holder and hokler having
son-Authority not followed for a long period, ignored by this
Court.
A jat holding antestral agricultural land injhajjar Tehsil
· of Rohtak district in Punjab .has by custom a power to transfer
J!JfS
lnnamuri Gopalan
••
State of Andhr
P1ad1sh
A)Jangarf
1963
April 9
196!!
Swbt Sinzh
••
K~a
900 SUPREME COURT REPORTS [1964) VOL.
It for consideration. Such transfer is not liable to be set aside
at the instance of his son or other reversionary heir unlm the
aale ·was for immoral purposes .
The courts have consistently recoimised such a power in a
proprietor having sons in 'Pile of the observation in jOSt'ph 's
Customary Law Manual that "whether proprietor with sons
has the same power is a more doubtful case", and that power
must now be recognised.
There is a great deal to be said in favour of the contention
tluit the existence of a son docs not affect that power as the
restriction on power to alienate where it exists, is bcsed on the
agnatic theory.
Budal v. Kirpa Ram, 76 P.R. 1914, not followed.
Telu v. Chuni, 231 P.L.R. 1913, Giani v. Ttk Chand,
(1923) I.L.R. 4 Lah. 111, Bchari & Ora. v. Bhola & Ora,
(1933) I.L.R. 14 Lah. 600, Abdul Rafi Khan v. Labhmi
Chand, (1935) 1.L.R. 16 Lah. 505, Ram Datt v. Khwhi Ram,
A.LR. (1935) Lah. 692, Pahlad Singh
v. Suldiikv Sill!lh,
A.l.R. (1938) Lah. 524, Sohan Lal v. Rali Ram, Regular
Second Appeal No. 136/43 (unreported)
Ph.
Hi~h Court,
Suraj Mal v. Rirj11. Civil Regular Second Appeal No. 693 of
1952 (unreported}, Pb. H.C. S/.,oji v. Fajar Ali Khan, 230
P.L.R. 1913 and Gujar v. Sham Da•, 107 P.R. 1887, referred
to.
Crnr, APPELLATE Jun1sowT10:s: Civil Appeal
No. 31 l of 1962.
Appeal. by -special leave from the judgment
and decree dated February 7,1960 of the Punjab
High Court in Regular First Appeal No. 190 of 1953.
Shiv Charan Singh and Janardan Sharma, for
the appellants. ·
Achhru Ram and Brijbans Kishare, for respondents Nos. I to 3.
\
'II
2 S.C.R. ·SUPREME COURT REPORTS
901
1963. April 9. The Judgment of the Court was
delivered by
SARKARj.-The appellants are the sons ofUmed
Singh, one of the respondents in this appeal. They
filed a suit for a declaratory decree that the sale of
certain lands by their father lJmed Singh wa.s void ·
against them and the other reversionary heirs.
The
contesting respondents are the purchasers of the
lands from the father.
It is not in dispute that the lands are ancestral
and that the parties are Jats of Jhajjar Tehsil in
Rohtak District. The only question is as to the
existence of a custom giving ajat, holding agricultural ancestral lands in Jhajjar Tehsil in District
Rohtak in Punjab, free power to transfer them for
consideration.
The trial Court and the High Court of Punjab
in first appeal, held that there was such customary
power. Indeed, in view of the large number of
decisions in which it has been consistent I y held that
a sale or mortgage of ancestral land by ·a holder is
· not liable to be set aside at the instance of his sons
or other reversionary heirs, unless the transaction
-was for immoral purposes, it is impossible to take
any other view.
We were referred to over a dozen cases and we
are sure there are more. The· eaTliest of these was
decided in 1913 and the latest in 1956. Excepting
in one case to which we shall later refer, nowhere
has it been held that the transfer by way of a sale
or mortgage of ancestral property by a holder is liable
to be set aside at the instance of a son or a reversionary heir unless the transaction had been for
immoral purposes. The present is not a case of that
kind for though the appellants alleged th"at the sale
was for immoral purposes it has been found that it
was not so. We may refer here to some of these
cases: Telu

## Text

;
. .
•
2 S.C.R;
SUPREME COURT REPORTS
899
The appeal is accordingly allowed. and the
order· of the learned Judges dismissing the
Writ
Petition is set aside. The relief to which the
appellant would be entitled would be, having regard
to the fact that appellants failed in their attempt to
impugn the constitutional validity ·of the Act etc., a
declaration that they are entitled to the benefit of
the notification exempting them from the payment
of sales tax in respect of textile goods in stock
with them on December 14, 1957, and restraining
the respondents from levying or collecting sales tax
from
them in respect of such stock. As the
appellants challenged unsuccessfully
the constitutional validity of the Sales Tax Act before the
High Court we do not consider that the order for
costs passed by the learned Judges of the High Court
should be interfered with. The appellants, however,
will be entitled to costs in this Court.
,
Appeal allowed.
SUBE SINGH & ANR.
ti.
KANHA YA AND OTHERS
(A. K. SARKAR, M. HIDAYATULLAH
and j. C. SHAH Jj.)
Custom-Ancestral agric"ltltural lands in Jhajjar Tehsil,
Rohtak DiBtHct of Punjab-Unrestricted power of a Jat to
trans/er it for consideration-No right of son or reversionary
heirs to get it set a.tide . unless transaction is for immoral purposes-No distinction bP.tween sonle.s holder and hokler having
son-Authority not followed for a long period, ignored by this
Court.
A jat holding antestral agricultural land injhajjar Tehsil
· of Rohtak district in Punjab .has by custom a power to transfer
J!JfS
lnnamuri Gopalan
••
State of Andhr
P1ad1sh
A)Jangarf
1963
April 9
196!!
Swbt Sinzh
••
K~a
900 SUPREME COURT REPORTS [1964) VOL.
It for consideration. Such transfer is not liable to be set aside
at the instance of his son or other reversionary heir unlm the
aale ·was for immoral purposes .
The courts have consistently recoimised such a power in a
proprietor having sons in 'Pile of the observation in jOSt'ph 's
Customary Law Manual that "whether proprietor with sons
has the same power is a more doubtful case", and that power
must now be recognised.
There is a great deal to be said in favour of the contention
tluit the existence of a son docs not affect that power as the
restriction on power to alienate where it exists, is bcsed on the
agnatic theory.
Budal v. Kirpa Ram, 76 P.R. 1914, not followed.
Telu v. Chuni, 231 P.L.R. 1913, Giani v. Ttk Chand,
(1923) I.L.R. 4 Lah. 111, Bchari & Ora. v. Bhola & Ora,
(1933) I.L.R. 14 Lah. 600, Abdul Rafi Khan v. Labhmi
Chand, (1935) 1.L.R. 16 Lah. 505, Ram Datt v. Khwhi Ram,
A.LR. (1935) Lah. 692, Pahlad Singh
v. Suldiikv Sill!lh,
A.l.R. (1938) Lah. 524, Sohan Lal v. Rali Ram, Regular
Second Appeal No. 136/43 (unreported)
Ph.
Hi~h Court,
Suraj Mal v. Rirj11. Civil Regular Second Appeal No. 693 of
1952 (unreported}, Pb. H.C. S/.,oji v. Fajar Ali Khan, 230
P.L.R. 1913 and Gujar v. Sham Da•, 107 P.R. 1887, referred
to.
Crnr, APPELLATE Jun1sowT10:s: Civil Appeal
No. 31 l of 1962.
Appeal. by -special leave from the judgment
and decree dated February 7,1960 of the Punjab
High Court in Regular First Appeal No. 190 of 1953.
Shiv Charan Singh and Janardan Sharma, for
the appellants. ·
Achhru Ram and Brijbans Kishare, for respondents Nos. I to 3.
\
'II
2 S.C.R. ·SUPREME COURT REPORTS
901
1963. April 9. The Judgment of the Court was
delivered by
SARKARj.-The appellants are the sons ofUmed
Singh, one of the respondents in this appeal. They
filed a suit for a declaratory decree that the sale of
certain lands by their father lJmed Singh wa.s void ·
against them and the other reversionary heirs.
The
contesting respondents are the purchasers of the
lands from the father.
It is not in dispute that the lands are ancestral
and that the parties are Jats of Jhajjar Tehsil in
Rohtak District. The only question is as to the
existence of a custom giving ajat, holding agricultural ancestral lands in Jhajjar Tehsil in District
Rohtak in Punjab, free power to transfer them for
consideration.
The trial Court and the High Court of Punjab
in first appeal, held that there was such customary
power. Indeed, in view of the large number of
decisions in which it has been consistent I y held that
a sale or mortgage of ancestral land by ·a holder is
· not liable to be set aside at the instance of his sons
or other reversionary heirs, unless the transaction
-was for immoral purposes, it is impossible to take
any other view.
We were referred to over a dozen cases and we
are sure there are more. The· eaTliest of these was
decided in 1913 and the latest in 1956. Excepting
in one case to which we shall later refer, nowhere
has it been held that the transfer by way of a sale
or mortgage of ancestral property by a holder is liable
to be set aside at the instance of a son or a reversionary heir unless the transaction had been for
immoral purposes. The present is not a case of that
kind for though the appellants alleged th"at the sale
was for immoral purposes it has been found that it
was not so. We may refer here to some of these
cases: Telu v. Ohuni ('), Giani v. Tek Oh0;nd ('),
(I) 2SI l';L.R. 1913.
(2) (1923) I.L.R. 4 Lab, lll.
1963
Sub1 Singh
v.
Kanhaya
Sarkar J,
/963
Subt Singh
v.
J[,ollq)o
s.,kar J.
902
SUPREME COURT REPORTS [1964] VOL.
Behari v. Bhola ('), Abdul Rafi Khan v. Lahllhmi
Chand ('). Ram Datt v. Khushi Ram ('), Pahlad
Singh v. Sukhdev Singh (') Sohan lal v. Rati Ram
( 5) and Sm·aj Mal v. Birju (')·
Learned counsel for the appellants contended
that none of these cases dealt with the cu,tom existing
in Jhajjar Tehsil and, therefore, they could not be
authorities on which the present case could be decided. We have first to observe that this statement
is not correct for the case of Pah"lad
Singh v.
Sukhdev Singh ('), dealt with the custom iu Jhajjar
Tehsil. That appears from the judgment of the
Districtjudge in that case which is Exh. D. 5 in
this case.
Furthermore, we notice that many of the -
cases to which we have. earlier referred treated the
custom giving the holder unrestricted right to transfer
ancestral property for consideration, as existing in the
whole district of Rohtak : see for example, Telu v.
Chuni (')and Sheoji v. Fajar Ali Khan (8). It also
appears from the Riwaj-i-am for Rohtak District
recorded in Joseph's Customary Law Manual,
vol. XXIII p. 60, compiled at the settlement of 1909
that "the power of alienating for consideration is
far wider than in the Punjab proper."
In view of
· all this we think that the Courts below were not in
error in holding that the Jats of Jhajjar Tehsil in
Rohtak District had unrestricted power to ·transfer
land for consideration provided of course the transfer
was not for immoral purposes.
Learned counsel for the
appellan ls then
contended that most of the cases on which
the
respondents relied were cases of sonless holders and
even if these cases were rightly decided, those which
recognised .unrestricted P.ow~r in the case o~ a ~?Ider
having· a son were not JUShfied by the R.1waJ+am
entries and should not be followed.
(ll (1933) !.L.R. 14 Lah. 600.
(2) (1915) l.L.R. 16 Lo. h. 305.
(3 A.1.R (1935) Lah. 6~2.
(4) A.l.R. (1938) I.oh. 524.
(5) Regular Second Appeal 136 of 1943 (Unreported) Pb. H 0,
.
(6) Civil Recula< Second Appeal No, 693 of 1952 (Unreported) Pb. H.C.
(7) 231 P.L.R. 1913,
(8) 2SO P L.R. 1913.
•
-
•
2 S.C.R.
SUPREME COURT REPORTS
903
We are unable to accept this contention. We
find nothing· in .the Riwaj-i·am entries which would
show that. the decisions were not justified. In
Joseph's Manual it is said that "a sonless proprietgr
has full power to alienate his property by sale or
mortgage even if there is no necessity".
It is true
that it has also been said there that "whether a
proprietor with sons has the same power is a more
doubtful case." In spite of this, however, the Courts
have since 1913 consistently held that the power of
a holder even where he has sons to alienate ancestral
property for consideration is unrestricted. It is not
now possible nor would it be right to upset the law
settled by these decisions on the slender ground of
. the doubt expressed in Joseph's i\1anual. In Tupper's
Statem~nts of Customary law vol. 2, dealing with
Rohtak District, it has been said· at p. 178 that "it
is quite common for people to sell or mortgage their
land.. In cases of sale, the right of pre-emption is
observed" : (paragraph 25). This statement makes
no distinction between the case of a man with a son
and one without a son. We find nothing in the
· . records of custom to. which our attention has been
drawn to justify the view that the case of the holder
of an ancestral property having a son is different
in this regard from that of a holder without one.
Furthermore, it would be strange if the existence of
sons made any difference that the point was not
noticed in any of the very large number of cases
dealing with the custom. We think that there is a
great deal to be said in favour of the contention of
Mr. Achhru Ram that the restriction on the power
to aliente where it exists is based on the agnatic
theory and therefore, no distinction can be made
between a sonless holder and a holder having a son:
see Gujar v. Sham Das (1).
. .. , , .
We come now to the only case which takes a
different view and on which the appellant naturally
laid great stress, namely, Budal v. Kirpa Ram (').
(1) 107 P. ll. 1887.
(2) 76 P. R. 1914,
1963
Sub~. Singh
••
Kanhaya
.' Sarkar J .
1963
.HSinfh
••
iroo11.,,.
S..ktir I.
904 SUPREME COURT REPORTS (1964] VOL.
That was a case of a sonless holder. It was held
that among Jats in the Rohtak District there was
no unlimited power ill hqlders of ancestral property
• to alienate it. This case has however not been
followed in any of the subsequent decisions and in
most cases its authority has been discounted. That
we think is enough to.-prevcnt us at this distance of
time from reviving the view taken in that caae.
Furthermore, as was pointed out, this case docs not
refer to the earlier authorities, for example, Telu v.
Chuni {' ).
The only authority to which it refers is
Tupper's Customary Manual, but the view expressed
there was not accepted as sufficient authority because
in the introduction Tupper said (p. 173), that
Mr. Purser who gave him the paper from which he
prepared his record "did not consider that it can be
relied on in doubtful points". This is hardly auy
reason for there was nothing to show that the
customary power was doubtful. It would thus appear
that the decision in Buda! v. Kripa Ram (') was not
a satisfactory one.
In this view of the matter we think that the
learned Subordinate Judge and the High Court came
to the correct conclusion that in Jhajjar Tehsil .
aJat holder had unrestricted power to alienate his
ancestral land for a consideration.
The appeal is dismissed with costs.
----
(1) 231 P, L. R, 1913.
(2) 76 P, R. 1914.