BRIJ LAL Vs. TULSI

JUDGEMENT

(1.) Two gift-deeds dated 20-7-1962 and 4-2-1963 respectively were executed by Bhuroo and Kanhiya (defendants Nos. 5 and 6) in favour of defendants Nos. 1 to 4. The plaintiffs instituted a suit on the allegation that the land and the house, which are the subjectmatter of the two gift-deeds, are their ancestral property and, therefore, could not be validly gifted away. Of the donees, two of them are the adopted sons of the adopters. In the suit, the plaintiffs have claimed a declaration that these gifts would not affect their reversionary rights after the death of defendants Nos. 5 and 6. The donees resisted the suit. The plaintiffs' relationship was denied and so was ancestral character of the property. It was further pleaded that the gifts had been made in their favour in lieu of services, with the result that even if the property were proved to be ancestral, the gifts were valid. The two donees who claim to have been adopted as sons are Bengali and Aflatu. It was pleaded that as these two persons had been appointed as heirs of the adopters, the plaintiffs had no locus standi to bring the present suit which was, in the circumstances, purely speculative.

(2.) The trial Court framed a number of issues on the pleadmgs of the parties. After observing that the objection regarding the valuation of the house in dispute was not pressed, it held the plaintiffs to be collaterals of defendants Nos. 5 and 6 in the fourth degree,, and indeed this was conceded by the defendants. The property was held not to have been proved to be ancestral. Following a decision of the Puniab High Court in Kirlu v. Kishan Dei, AIR 1951 Simla 168, according to which a gift of a reasonable and moderate portion of the ancestral land can be made in lieu of services and observing that such a custom was admitted by the learned counsel for the parties, the trial Court expressed its opinion that there was no obstruction in making a gift of non-ancestral property by any proprietor. The property having not been shown to be ancestral, the validity of the gifts was upheld. The trial Court, however, added that in case the suit property was proved to be ancestral, these gifts would be clearly invalid because under custom, a gift of ancestral property could not be made except to the extent of a moderate portion in lieu of services. The Court did not find any evidence on the record showing services to have been rendered by defendants Nos. 1 to 4 to the donors. The adoption of Bengali and Aflatu by Bhuroo and Kanhiya respectively was also upheld. These adoptions were by means of registered documents. The necessary ceremony of adoption was also proved to have been performed. The argument that Bengali was more than 15 years old and was a married man before his adoption and, therefore, his adoption was invalid, was negatived on the basis of question and answer 74 of the Customary Law of the Kangra District compiled in the Revised Settlement of 1914-1918 by Mr. Middleton. Under this rule of customary law, according to the trial Court, adoption of persons like Bengali, who was stated to be 25 years old, was permissible. Even otherwise, such an adoption was held to be valid as held in Ganga Singh v. Basant, (1960) 62 Pun LR 425. In the presence of Bengali and Aflatu. the plaintiffs had, in the opinion of the trial Court, no locus standi to contest the gifts. Reliance tor this view was placed on a Bench decision of the Punjab High Court in Maghar Singh v. Gujjar Singh, (1964) 66 Pun LR 865.

(3.) An appeal having been taken to the Court of the learned Additional District Judge, that Court reversed the conclusion of the learned Senior Subordinate Judge on the question of the non-ancestral nature of the property. The gifted property was accordingly held to be ancestral. The adoptions were also held to have been proved beyond all doubt and Bengali and Aflatu being adopted sons of Bhuroo and Kanhiya respectively, were held entitled to succeed to them even if the gifts in their favour were not valid. On this view, the plaintiffs were held disentitled to a declaratory decree because they would not be the heirs of the property in dispute at the time the succession opens. The appeal was on this view dismissed.