DHANWANT Vs. FAZRU

JUDGEMENT

(1.) This is plaintiff's second appeal whose suit for usual declaration under the customary law was decreed by the trial Court but dismissed in appeal.

(2.) Admittedly Mst, Basabi, inherited the suit land from her husband Chittar. The plaintiffs claim themselves to be the near collaterals of the husband of Hasanbi. It was alleged that defendants No. 2 to 5 are not collaterals to the husband of defendant No. 1 in any degree. It was alleged that the plaintiffs and defendant No. 1 Fazru and her husband are Meos by caste and they are governed by custom in the matter of alienation under which a widow who succeeds to agricultural land through her husband or son cannot give away or transfer the same in any manner whether ancestral or self-acquired without the consent of the collaterals of her husband. On that the basis of that custom, the plaintiffs challenged the decree passed in Civil Suit No. 746 of 1974, which was based on the gift of the suit land made by defendant No. 1 in favour of defendants No. 2 to 5. According to the plaintiffs the decree on the basis of the said gift deed was obtained by fraud and in a collusive manner.

(3.) The suit was contested inter alia on the plea that the gift made in favour of the defendants was in lieu of the services rendered to them by defendant No. 1 and, therefore, was valid. It was further pleaded that the rights of the plaintiffs who are collaterals of the deceased husband defendant No. 1 were not affected by the impugned decree as they have no right to file the suit against them. The trial Court found that even if the plaintiffs are not the collaterals of the plaintiff Smt. Hasanbi within five degrees they have the right to file the present suit because they have been established to be collaterals of the seventh degree. The suit land was held to be non ancestral property of the deceased. However, it relied upon the judgment of this Court in Smt. Hussain Bai v. Kalu and others,1969 PunLR 819, in which it was held that it the Riwaj i-Am of Gurgaon District, which applies to the parties to the litigation, the powers of alienation of a widow are restricted in respect of both ancestral and non-ancestral properties. She can alienate by gift, sale or mortgage, the immoveable property inherited by her from her husband, only with the consent of her husband's relatives. Consequently, the plaintiffs' suit was decreed. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and cam to the conclusion that the plaintiffs being the seventh degree collaterals are not entitled to succeed to the property in the presence of the preferential heirs of defendant No. 1. Consequently, the plaintiffs' suit was dismissed.