LexSUBE SINGH & ANR. versus KANHAYA AND OTHERS
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; . . • 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 consti- tutional 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 pur- poses-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 respon- dents 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 agricul- tural 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
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