GURDIP SINGH Vs. KARTAR SINGH

JUDGEMENT

(1.) This is defendants' second appeal against whom suit for joint possession was dismissed by the trial Court but was decreed in appeal.

(2.) Buta Singh had two daughters and five sons. On 31-3-1970 Buta Singh gave away the suit land by a registered gift deed in favour of his grandson Gurdip Singh son of Ujjagar Singh. The plaintiffs who are the other sons of Buta Singh challenged the said gift deed by filing the usual customary suit alleging that the parties were governed by custom in the matter of alienation and that the suit land being ancestral Buta Singh was not competent to make the gift and thus it will not affect their reversionary rights. The said suit was decreed by the trial Court on 21-7-1971. Gurdip Singh filed an appeal against the said judgment and decree on 21-8-1971. During the pendency of the appeal the Punjab Customs (Power to Contest) Act 1920 was amended by virtue of Punjab Act No. 12 of 1973. On account of the amendment made, S.6 of the principal Act was omitted and in S.7 of the principal Act for the words 'non-ancestral immovable property' the words, "immovable property whether ancestral or non-ancestral were substituted. In view of the said amendment, the learned District Judge accepted the appeal and set aside the judgment and decree of the trial Court and thus dismissed the plaintiff's suit. The certified copy of the judgment dt. 17-11-1973 is on the record. It reads as under:-

(3.) The plaintiffs now filed the present suit on 12-5-1976 challenging the said very gift dt. 31-3-1970 alleging that they are governed by Hindu law and the suit property being coparcenary property Buta Singh was not competent to alienate the same. The said suit was contested on behalf of the donee, inter alia, on the ground that the present suit was barred on the principles of res judicata. The other allegations were also controverted. The trial Court found that the suit was barred both on the principles of res judicata as well as constructive res judicata. It was further held that the plaintiffs and Buta Singh did not constitute joint Hindu family and the property in dispute was ancestral only to the extent of 1/8th share in the hands of Buta Singh. It was further held that the gift deed executed by Buta Singh was valid. In view of these findings the plaintiffs suit was dismissed. In appeal the learned Additional District Judge reversed the said findings of the trial Court and came to the conclusion that the present suit was not barred on the principles of res judicata nor on the principles of constructive resjudicata nor under O.2, R.2. It was further found that the plaintiffs and Buta Singh constitute joint Hindu family though they belong to prominent agricultural tribes of Punjab. According to the lower appellate Court, there is presumption under the Hindu law that every Hindu family is joint unless proved otherwise. In view of this finding it was concluded that the gift to the extent of 1/6th share in favour of Gurdip Singh defendant was valid whereas the gift to the extent of 5/6th share was invalid. Consequently, the suit was decreed accordingly. Dissatisfied with the same, the defendant has filed this second appeal in this Court.