BHIM SINGH Vs. CHANDGI

JUDGEMENT

(1.) THIS is an appeal against a judgment of Falshaw J. dated 21-10-1948 confirming the appellate decree of the Additional District Judge, Rohtak, dated 8-1-1947 whereby the suit of the plaintiffs was dismissed.

(2.) THE facts of the case briefly are thai Udmi made a gift in favour of Jug Lal on 17-1-1887-This Jug Lal was the son of Udmi's brother's daughter. The following words of the deed of gift are important. After mentioning the various Khatas and Khasra numbers which were owned by him the donor stated : "now I have gifted the above mentioned land with all rights appurtenant thereto ' (mae jumla haq haqooq)'. . . . . and having taken the land out of my own possession I have given the possession to jug Lal aforesaid and just as I was the owner in possession of the aforesaid land Jug Lal will also have the same rights ' (jis tarah ke main malik aur qabiz arazi mazkur par tha ab isi farah so Jug lal mazkur rahega)'. " in this deed of gift Jug Lal was described as the adopted son. Udmi died in 1892 and the entire estate of Udmi was mutated in the name of Jug Lal in 1893 which is evidenced by the mutation ex. P. 3. In the year 1929 the shamijat was partitioned and Jug Lal was mentioned in the revenue papers as owner of 1/5th share of the 'shamiiat' which fell to the share of this family. The learned district Judge has remarked that this 1/5th share had been allotted to the descendants of Jug Lal in lieu of their share in the 'shamilat' which corresponded to the land gifted to him (Jug Lal) and this was done by consent of all parties. Later on an application was made by the descendants of jug Lal for partition of the joint land winch they had received in lieu of 'sharmlal' and on 2-2-1915 a suit was brought by Bhim Singh and others for a declaration that the entries in the revenue records were wrong and that the defendants were not entitled to any share in the 'shamilat'. Tha trial Court as well as the District Judge held in favour of the defendants and dismissed the plaintiffs' suit and this was affirmed by Falshaw J.

(3.) TWO points have been raised by counsel for the appellants. It is submitted in the first instance that the wording of the gift is such that it did not convey any right in the 'shamiiat' to Jug Lal. The words used in the deed of gift in the present case seem to be very much like the words which were used in the case which went up to their Lordships of the Privy Council and is reported as --'aya Ram v. Rup Chand', ILR (1937) Lah 662, where the words used in the sale deed were : "the agreement is that from today's date the said vendee will enjoy possession of the land sold together with the external and internal rights for ever. In future I have been left no concern or connection with the aforesaid land sold. The two thatched houses together with the four walls situate at the well which are owned by me shall also be considered as. the property of the vendee. But I myself will remove the malba (materials) i. e. , timber. " interpreting these words Lord Macmjllan observed as follows : "the sale is not only of the 27 'kanals' but also of 'the external and internal rights for ever' and the vendor declares that in future ho is to have 'no concern or connection with the aforesaid land sold. ' There could be nc move emphatic words of divestiture and the suggestion that the vendor who used them nevertheless intended to reserve himself a right to claim an as yet unascertained share of 'shamiiat', which right belonged to him only as the owner of the 207 'kanals' appears to their Lordships untenable. The words 'external rights' arts quite appropriate to include a right in respect of the 207 'kanals' to participate in the ultimate partition of the 'shamiiat'. " their Lordships approved of the rule laid down in -- 'kalu Khan v. Umda', 47 Pun Re 1916, where the words used were 'jumla haquq-o-marafiq hai dakhli wa kharji'. Their Lordships also approved of the decision in -- 'shahamad v. Ibrahim', 57 Pun Re 1915, and then it was said at page 670: "in their Lordships' opinion regard may be had to such considerations in construing the unsophisticated conveyancing of which the deed before them is an example and to which it would be unreasonable to apply the rigid canons of interpretation appropriate to the finished products of Lincoln's Inn. "