MOHAN SINGH Vs. JIT SINGH

JUDGEMENT

(1.) This regular second appeal is at the instance of the unsuccessful plaintiff whose usual declaratory suit against an alienation stands dismissed by the concurrent judgments and decrees of the Courts below but for different reasons.

(2.) The plaintiff pleaded that his father Bishamber Singh, the proforma respondent, as the owner of ancestral suit land mortgaged the same with the contesting respondent for a sum of Rs. 27,000/- vide registered deed dated 12th June, 1974. It was claimed that ancestral property could not be alienated under agricultural custom, with which the parties were governed, except for consideration and bona fide legal necessity. Such an alienation having affected his reversionary right was claimed as ineffective and inoperative against the said rights of the plaintiff through the present suit. The contesting defendant-respondent controverted the allegations claiming that the property was not ancestral, it had been gifted by Nanwa to the vendor; the parties were not governed by agricultural custom and the alienation was for legal necessity and consideration. It was also claimed that though Nanwa had described the vendor Bishamber to be his son, yet apparently the adoption claimed by the plaintiff was factually non-existent and even though it was, the adoption was invalid. The pleadings of the parties gave rise to the following issues :-

(3.) Under Issue No. 1, the trial Court held that the suit property was ancestral qua the plaintiff. It was conceded by the defendants that the plaintiff and the mortgagor were governed by agricultural custom in the matter of alienation and it was left undisputed that they were Rajputs, an agricultural tribe. Thus, issue No. 2 stood decided in favour of the plaintiff. On issue No. 3, the trial Court found that the mortgagor was the adopted son of Nanwa, not only by an equivocal declaration made by the latter before the brotherhood, but by long course of treatment towards the adoptee. As corollary, the gift in favour of the adoptee was held to be acceleration of succession in the absence of clear and convincing evidence about any property having been left with Nanwa. Under issue No. 4, it was held that the plaintiff had locus standi to file the suit. However, under issue No. 5, it was held that the property was alienated for consideration and for legal necessity. The suit was dismissed.