SHIV DAYAL Vs. KARAM SINGH

JUDGEMENT

(1.) ON 8th December 1949, Shib Dayal made a gift of the land in suit in favour of his brother's daughter's son, defendant No. 3. This mutation was sanctioned on 26th September, 1950. On 9th of December, 1950, Karam Singh plaintiff-respondent, a third degree collateral of the donor instituted the present suit for the usual declaration that the said gift was not binding on him. The suit land was claimed to be ancestral and it was pleaded that Gurdial, defendant No. 2, who is a brother of defendant No. 1. had consented to the gift in dispute, with the result that the plaintiff as a remoter reversioner was entitled to file the suit. All the three defendants contested the plaintiff's claim denying the ancestral nature of the land as also the locus standi of the plaintiff. The gift was asserted to be valid having been made in lieu of services rendered by the donee to the donor. The trial Court held the plaintiff to be a collateral of the donor within five degrees. Indeed, this point was conceded by the defendants at the time of arguments. Part of the land in question was held to be ancestral and part non-ancestral. With respect to the validity of the gift, the trial Court observed that the donor's brother who is the next heir having consented to it, the gift became valid and unassailable. For this view reliance was placed on faqir Chand v. Mt. Bishan Devi, AIR 1947 Lah 185.

(2.) KARAM Singh went up in appeal to the Court of the learned District Judge who relying on fateh Mohammad Khan v. Gurbux Singh, 1948-50 Pun LR 314; (AIR 1949 EP 210), held that the nearest reversioner having colluded with the donor, the plaintiff was entitled to the declaration sought. The lower appellate Court also observed that Dlia-ram Singh donee being a minor of 12 years could not have rendered any services to the donor. It was urged before the learned District Judge that in reality it was the donee's father who had rendered services. Repelling this argument the lower appellate Court observed that under Customary Law it was services rendered by the donee alone which could justify the gift; it was further observed that even in the written statement services were pleaded to have been rendered by the donee and not by his father. Reference was also made by the learned District Judge to the statement of lachhman D. W. 1 that Kirta, father of the donee, had been rendering services to the donor. The learned District Judge, while dealing with the objections raised on behalf of the defendants-respondents before him to the finding by which a part of the land was held ancestral, observed that no cross-objections had! been put in by them. Although the learned Dist. Judge is not right in thinking that cross-objections could or should have been preferred by the defendants, nevertheless the District Judge on the merits also upheld the finding of the trial Court with respect to the ancestral nature of a part of the land. Holding that the gift was not valid according to custom, a declaratory decree as prayed was granted to the plaintiff for the land found to be ancestral in nature.

(3.) ON second appeal, Mr. Hem Raj Mahajan has assailed the judgment and decree of the lower appellate Court on the ground that the donor's brother and his brother's daughter being alive, the suit by the present plaintiff was speculative and indeed incompetent. He has also placed reliance on AIR 1947 Lah 185, a Division Bench decision by Abdul Rashid A. C. J. and Achhru Ram J. Head-note (b) of this judgment is in the following terms: