ARJAN SINGH Vs. DALIP SINGH

JUDGEMENT

(1.) Attra had two sons Dalip Singh plaintiff and Ishar Singh defendant No. 5. During his lifetime Attra executed a will dated 24th of December, 1944 bequeathing the whole of his landed property to Arjan Singh, Nirmal Singh, Naranjan Singh and Sadhu Singh sons of Dalip Singh to the exclusion of his own sons Dalip Singh and Ishar Singh. This will was got registered on 7th of October, 1946. On 15th of July, 1947 Attra died and on his death his landed property was mutated in the names of his grandsons, Arjan Singh, Nirmal Singh, Naranjan Singh and Sadhu Singh sons of Dalip Singh. Dalip Singh took the matter in appeal and the order of the revenue officer was set aside, with the result that the mutation was ultimately effected in the names of Dalip Singh and Ishar Singh. Notwithstanding the mutation in his favour Dalip Singh could not get possession of the land, with the result that he had to institute a suit for possession of the land left by his father. In this suit be claimed possession of the whole land as against his own sons as well as against his brother Ishar Singh. During the course of litigation Ishar Singh applied for being transposed as a plaintiff; this prayer was granted and he was arrayed as a co-plaintiff in the suit. Later Ishar Singh withdrew the suit with respect to his half share in the land left by his father Attra and the suit of Dalip Singh was decreed with respect to possession of the remaining one-half share.

(2.) The sons of Dalip Singh preferred an appeal whereupon a compromise was effected between the sons and the father by virtue of which the father gave over 2 ghumaons of land to his sons and the suit with respect to the remaining land was decreed. The present suit out of which this appeal has arises was instituted by Dalip Singh with respect to the other half of the land about which Ishar Singh had withdrawn his suit. It is alleged by the plaintiff that the withdrawal of the suit by Ishar Singh was tantamount to a transfer or an alienation of the property and that the land being ancestral qua Ishar Singh and the plaintiff, this alienation by Ishar Singh, who was a sonless proprietor, being without consideration and legal necessity was not binding on him and it should not prejudicially affect his reversionary rights after Ishar Singh's death. The usual declaration impeaching the alienation as contrary to custom was claimed. Defendants Nos. 3 to 5 did not contest the suit whereas defendants Nos. 1 and 2 pleaded that the withdrawal of the suit by Ishar Singh did not amount to alienation or transfer which could be impugned under Customary Law. The land was also alleged to be non-ancestral. Both the Courts below have held the withdrawal of the suit to amount to an alienation and have decreed the plaintiff's suit. The learned Additional District Judge construed the withdrawal to be a compromise and observed that this compromise by virtue of which Ishar Singh gave way his share in the land to his nephews amounted to an alienation which could be attacked by a suit under Customary Law.

(3.) On second appeal, Mr. Narinjan Singh Keer has raised several points but the principal contention has centred round the finding of the Courts has been constructed to amount to an alienation which is unauthorised and assailable under the Customary Law as in force in the Punjab. Mr. Keer has, to begin with, relied upon Gulkandi Lal v. Manni Lal, ILR 23 All 219, the head note of which is in the following terms: