KANDA Vs. WAGHU

JUDGEMENT

(1.) THE parties in this appeal are Dadra Rajputs, an agricultural tribe of the Montgomery District of the Punjab. THE appeal arises out of a suit brought by the appellants in the Court of the Subordinate Judge, Montgomery, challenging the validity of a deed of gift, executed on December 17, 1938, by Mussammat Rajan, defendant No.1, in favour of her grandson, defendant No.2, who is the respondent in the appeal-Defendant No.1 is the widow of one Amira, who died in or about the year 1913. THE respondent is the son of a daughter of Amira and defendant No.1. On the execution of the deed of gift the respondent applied for mutation of names in the records kept by the land revenue authorities, but the Assistant Collector refused the application on the ground that "a female has, under no circumstance, a right to alienate property by sale or by way of charity under a will, oral or in writing," and his decision was upheld by the Collector on appeal. THEreupon the respondent filed a suit in the Court of the Subordinate Judge, Montgomery, for a decree for the possession of the land. THE only defendant was the donor, and on November 9, 1939, with her consent, the Court passed a decree in the terms of the prayer in the plaint.

(2.) TWO days later the appellants, who are collateral members of the respondent's family, filed in the Subordinate Judge's Court the suit which has given rise to this appeal. The appellants pleaded that the land was ancestral, that the gift of it to the respondent was contrary to custom, that the mutation of names had been rightly refused and that the respondent had obtained by fraud the decree passed in his favour on November 9, 1939. They asked for a decree declaring that the deed of gift was null and void as against them and, therefore, did not affect their reversionary rights. The respondent filed a written statement, in which he denied that the land was ancestral. He alleged that the parties were governed by Mahomedan law, under which there were no restrictions on the donor's powers of alienation, that the revenue officers had erred in refusing mutation of names, and that the decree in the previous suit was good. In a separate written statement the donor supported the respondent's case.

(3.) BOTH sides appealed to the High Court at Lahore. The appeals were heard by Bhide J. , who held that the Subordinate Judge had been right in not admitting the two documents in evidence, but that the District Judge had erred in framing a new case for the appellants, and in remanding the suit for trial on the new issue. He agreed that the land was non-ancestral. The result was that the learned Judge dismissed the appellants' appeal and accepted that of the respondent.