KESRO Vs. PARBATI

JUDGEMENT

(1.) This second appeal arises in the following circumstances. One Phulgari, a Rajput Gaddi of Kangra District, made a gift of the suit land, 22 kanals 19 marlas in area, to Chatru and Birbal by means of a mutation, Exhibit D.1, attested on the 3rd of November, 1935. Phulgari had no male descendant and had only a wife Mst. Bipto who filed the present suit. Chatru had earlier executed an agreement, Exhibit P.1, in favour of Phulgari by virue of which he had undertaken to look after Phulgari and his wife Bipto and to perform their funeral ceremonies after their respective deaths. Some time after the gift, Birbal died and his share of the land was mutated in favour of his brother Chatru by mutation, Exhibit D.2, attested on the 29th of November, 1936. In the beginning of 1937 Chatru also died and on the 9th of August, 1937 mutation of the entire land was effected in favour of Mst. Kesro, widow of Chatru. It may be mentioned here that Birbal had died without leaving any issue or even a widow. On the 10th of January, 1944 the present suit was brought by Mst. Bipto for a declaration that she was the owner and in possession of the property in suit and was entitled to hold it as such. Her pleas were that no gift at all had been made by Phulgari and that at any rate he had no power to make a gift. She averred that the gift if at all, was supposed to have been made in return of services, but by the death of Birbal and Chatru very soon after the gift it had become impossible for Chatru and Birbal to render any services to Phulgari and therefore the gift had become revocable. She further averred that Mst. Kesro had become unchaste and under custom she had forfeited all rights to the property which must in any case revert to the donor's family.

(2.) The suit was hotly contested by the defendant who alleged that the gift had been actually made by Phulgari and had been acted upon. The defendant also pleaded that the plaintiff was not in possession of any part of the property and therefore the suit for declaration did not lie. As many as five issues were framed by the trial Court who ultimately came to the findings that the plaintiff was in possession of a part of the property in dispute, that the suit could proceed in the present form, that the defendant Mst. Kesro was proved to have become unchaste and that the unchastity, in the circumstances, caused forfeiture of all her rights, that the gift was not a conditional one and could not therefore be revoked by the plaintiff. On the above findings the trial Court passed a decree in favour of the plaintiff. The learned District Judge dismissed the appeal on the finding that the gift was not conditional and was not revocable but that the defendant was proved to be unchaste and that the property therefore reverted to the donor's family. A second appeal was filed in this Court against the decree of the learned District Judge and was registered here as Regular Second Appeal No. 809 of 1945. This appeal came up for final disposal before Achhru Ram, J. on the 4th of November, 1946 and he was of the opinion that the case had not had a proper trial and that proper issues had not been framed by the learned trial Judge. The following remarks made by him are pertinent :-

(3.) Ultimately Achhru Ram, J. added four new issues as under :-