The consent of the immediate reversioner, particularly the son, given expressly or by implication, whether before, at the time of, or after the alienation, validates the transfer of ancestral immovable property by the father and precludes 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.

Ranjit Singh Sarkaria, J.

1. The question referred for opinion to this Full Bench is :-

"Where a suit for pre-emption filed by a reversioner is dismissed, is his subsequent suit challenging the sale of the same property, under custom, for want of consideration and legal necessity, barred?"

2. The circumstances leading to this order are, that Harji, defendant-Respondent 1, sold the land in suit to Ram Karan, Defendant-Respondent 2. Two rival suits for possession by pre-emption were instituted in respect of that sale, one by the vendors son, Amar Chand plaintiff-appellant, and another by Phusa, defendant 3. The suit brought by the vendors son was dismissed as time barred, while that of Phusa was later decreed. After the dismissal of his pre-emption suit, Amar Chand instituted the usual declaratory suit under custom, alleging that the land was ancestral and the sale not being for consideration and legal necessity, would not affect his reversionary rights after the death of the vendor. In that suit, he also assailed the pre-emption decree obtained by Phusa, Defendant 3. This declaratory suit was resisted by Phusa, inter-alia, on the ground that since Amar Chand plaintiffs suit for pre-emption had been dismissed he was debarred from maintaining the subsequent declaratory suit brought by him. The trial court and the first Appellate Court following the rule enunciated in Labh Singh V/s. Gopi 15 Pun Re 1903: Gujar V/s. Auliya, 78 Pun Re 1914=(AIR 1914 Lah 460) and Mt. Alam Khatun V/s. Hayat Khan, AIR 1938 Lah 492 accepted the objection and dismissed the suit. Amar Chand plaintiff preferred a regular second appeal to this Court, which came up for hearing before the learned single Judge by the plaintiff-appellants counsel, that neither the principles of res judicata and estoppel on which (according to the counsel) the rulings relied upon by the Courts below or based, nor the principle of Order 2, Rule 2, Civil Procedure Code, could bar the subsequent declaratory suit of Amar Chand plaintiff. In support of this contention, counsel cited a Division Bench judgment of the Punjab Chief Court in Muhammed Din V/s. Rahim Gul, 6 Pun Re 1886.

3. The learned Single Judge observed that the attention of the learned Judges, who had decided the cases relied upon by the Courts below had not been invited to Muhammed Din V/s. Rahim Gul, 6 Pun Re 1886 (Supra). For resolution of what seemed to be a conflict between the two Division Bench Judgments, the learned Single Judge moved my Lord the Chief Justice for constitution of a Full Bench. This is how the matter has come before us.

4. Shri N. K. Sodhi argues, as he did before the learned Single Judge, that the string of decisions lead by Labh Singhs case 15 Pun Re 1903 proceed on the assumption that the mere institution of a suit for pre-emption attracts to the subsequent declaratory suit the bar of estoppel, constructive res judicata and Order 2, Rule 2, Civil Procedure Code. Those propositions, proceeds the argument judged by their pre-requisites laid down in Section 115. Evidence Act and Section 11 and Order 2, Rule 2, Civil Procedure Code, are not tenable. Even if it is assumed--it is contended--that the mere institution of a suit for pre-emption by the son constitutes an assent to the sale, then also it cannot, without further proof of the vendee having changed his position to his detriment on the faith of such assent, raise an estoppel. The bar of res judicata according to the counsel, could not operate because the capacity of the plaintiff, the issues involved and the reliefs sought in the two suits, are substantially different; that whereas in the former suit the plaintiff sued in his individual capacity for substitution to the original bargain, in place of the vendee, in the subsequent suit he, in a representative capacity on behalf of the entire reversionary body, seeks to avoid the sale. On parity of reasoning, it is urged that the subsequent suit would not be barred by Order 2, Rule 2, Ci