Punjab-Haryana High Court
Amin Lal And Ors. vs Om Parkash And Ors. on 12 August, 1993
Equivalent citations: (1993)104PLR712
JUDGMENT R.K. Nehru, J.
1. Plaintiff appellants have come up in this Regular Second Appeal against the judgment and decree dated November 3, 1979 of the first Appellate Court affirming the findings recorded by the trial Court resulting in the dismissal of the suit.
2. Ram Rikh, deceased legally represented by the appellants filed a suit for declaration that the impugned gift deed dated June 3, 1966 (Ex. D 1) executed by defendant Hira (since deceased) in favour of Suraj Bhan (since deceased) legally represented by the respondents was null and void and not binding on his rights and for mandatory injunction to restrain Suraj Bhan defendant from interfering in his ownership and possession over the land in suit. In the alternative, the plaintiff sought the relief for possession of the suit land It. is alleged by the plaintiff that the suit land was ancestral in nature and the parties being governed by custom in the matter of succession and alienation, Hira defendant was not competent to gift away the suit land to Suraj Bhan, defendant respondent, who is his sister's son.
3. The suit was contested by defendant-respondent Sursj Bhan who inter alia pleaded that the plaintiff was not the collateral of the donor Hira within 5th degree and as such he had no locus standi to challenge the gift deed made in his favour by said Hira. He further agreed that the suit property was not ancestral and the same was gifted away by Hira in lieu of the services rendered by him and that be was in possession of the suit land
4. The parties went to trial on the following issues:-
1. Whether the plaintiff is a collateral of Hira ? If so, in what degree and effect thereof ? OPP
2. Whether the suit land is an ancestral qua the plaintiff and the donor ? OPP
3. Whether the plaintiff and the donor are governed by custom in matters of succession and alienation ? If so, what the custom is ? OPP
4. Whether the plaintiff is entitled to the declaration prayed for ? OPP
5. Relief.
5. Under issue No. 1, the trial Judge held that the plaintiff Ram Rikh (since deceased) was the collateral of defendant donor Hira within 6th degree and not in the 5th degree and as such he had no right to challenge the gift made by Hira in favour of the defendant Suraj Bhan (since deceased).
6. Under issue No. 2 it was held that the land was not ancestral qua the plaintiff.
7. Under issue No, 3 it was held that although the parties were governed by custom in the matter of succession and alienation and yet that Hira had validly gifted the land in favour of the defendant in lieu of services rendered by him.
8. In the result, the learned trial Judge vide judgment and decree dated September 26, 1975 dismissed the suit of the plaintiff with costs
9. The judgment and decree of the trial Court was affirmed by the first Appellate Court vide judgment and decree dated 3.11.1979 which is under attack in this Regular Second Appeal,
10. Before I proceed further, I would like to mention here that during the pendency of this appeal, some of the appellants namely; Smt. Lado daughter of Ram Rikh, MaUdin, Siri Ram and Surjeet sons of Nar Singh son of Khuba filed civil miscellaneous under Order 23 Rule 1, for permission to withdraw the appeal on the ground that the appellant namely; Ami Lal had agreed to pay an amount of Rs. Five Lacs in lieu of relinquishment of rights by the defendants. Alongwith this application, a compromise deed stated to have been executed between such arties was also filed. This Civil Misc was ordered to be considered at the time of final disposal of this Regular Second Appeal.
11. When this Regular Second Appeal came up before me for final hearing today, none had appeared on behalf of the appellants, on whose behalf Civil Misc. No. 2899-C of 1991 was filed. When the learned counsel for those appellants was asked to produce his clients so that the statements of the parties to the said compromise be recorded, he stated that his party was no more interested in this appeal and the appeal be disposed of on merits.
12. I have, therefore, beard the learned counsel for the parties and gone through the evidence on record and judgments of the Courts below.
13. Both the Courts below have concurrently found : -
(i) That the suit land was not of ancestral nature in the hands of Hira;
(ii) That the plaintiffs are collaterals of Hira in the 6th degree and as such they were not entitled to challenge the gift in question;
(iii) That the parties being agriculturists were governed by custom in the natter of succession and alienation and as per the custom prevalent in the agricultural tribes of Gurgaon District, a sonless Ahir was competent to gift away his property in favour of his near relations in lieu of the services rendered to him.
14. I do not find any infirmity with the above findings of fact, recorded by the trial Court on the basis of evidence on record and affirmed by the first Appellate Court.
15. The only point for consideration is whether on the above proved facts, the impugned gift executed by Hira in favour of Suraj Bhan is valid or not and whether the plaintiff who is admittedly proved to be related to the donor in the 6th degree is competent to challenge the same.
16. Indisputedly, the parties are agriculturists. Section 6 of Punjab Custom (Power to Contest) Act, 1920 as applicable to the State of Haryana reads as under : -
"Limitation on the right to contest allegations and appointment of heirs : -Subject to the provisions contained in Section 4 and notwithstanding anything to the contrary contained in Section 5, Punjab Laws Act, 1872, no person shall contest any alienation of ancestral immoveable property or any appointment of an heir to such property on the ground that such, alienation or appointment is contrary to custom, unless such person is descended in male lineal descent from the great-great-grand-father of the person making the alienation or appointment."
17. From the language of Section 6 ibid, it is clear that in case a person wants to challenge any alienation of ancestral property, he should be a male lineal dascendent from the great-great-grand-father of the person making the alienation. It means that in case the plaintiff wants to challege the gift in question, he must be proved to be related to the donor Hira in the 5th degree which is not so in this case. He is proved to be related to the donor in the 6th degree and this finding of the trial Court has not been assailed by the appellant in the first appeal.
18. Even otherwise, in District Gurgaon, a gift can validly be made by a person, who is an agriculturist, in favour of his near relation on grounds like love and affection and service rendered by the donee. In this case, Hira was admittedly issueless and was proved to be living with the donee who was serving him in his old age and also cultivated his lands on his behalf. Besides, Suraj Bhan donee was the son of the sister of Hira donor, and so the gift made by the donor in his favour was perfectly valid and legal.
19. In Daljit Singh alias Daljit v. Tulla Ram, 1965 Current Law Journal (Pb) 867. the point for consideration before the Court was whether a gift made by a donor in favour of his close relation on account of love and affection and services rendered is good or not. It was held to be a valid gift. Relevant observations are contained in paras 16 and 17 of the report and the same are as under : -
"16. This order may accordingly be read in continuation of my orders dated 28th February, 1963. The learned Additional District Judge has come to the conclusion that the general agricultural custom of the Punjab allows gifts in favour of relations who have rendered services to the donor and that such gift could be made to agnates and illegitimate sons are to be treated as agnates. The gift in question, therefore, made by Duli Chand in favour of the defendants, who are his illegitimate sons, is supported under custom which the plaintiff is not entitled to challenge. It may be observed that the Court of first instance have come to a contrary conclusion.
17. Before me, on appeal, the learned counsel for the respondents has not been able seriously to assail this conclusion of the lower Appellate Court. He has, however, referred me to Ex. P-8 which is a copy of a question and answer of custom from Riwaj-a-am of District Gurgaon and it has been submitted that this only refers to gift in favour of non-relations. I do not understand how on the basis of this contention, the conclusion of the learned Additional District Judge in his remand report can be reversed. The learned Additional District Judge has observed in his remand report that the rule mentioned therein applies when the legitimate sons of the donor are also alive; he has also held on reference to some decision of Lahore High Court and to Singhai Ajit Kumar and Anr. v. Ujayar Singh, the illegitimate sons of Duli Chand could not be considered as strangers This conclusion has not been seriously assailed before me and nothing convincing has been urged to persuade me to disagree with the view of the lower Appellate Court."
20. Incidently, the above said case also pertained to Gurgaon District. The law laid down in the above judgment is squarely applicable to the controversy in issue before me and in the light of the law laid down in the above report, the appellants cannot be said to be possessed of any legal right to impugne the gift made by defendant Hira donor in favour of defendant Suraj Bhan, more so when the plaintiffs have not been proved to be related to the donor in the 5th degree of the relationship in terms of Section 6 ibid.
21. The case in hand is fully covered by the ratio laid down in Daljit Singh's case (supra) and, therefore, I unhesitatingly affirm the impugned judgment and degree of the lower Appellate Court.
22. In the result, this appeal fails and is dismissed with costs.