KRISHAN CHAND Vs. KAUSHALYA DEVI

JUDGEMENT

(1.) Appellants are the plaintiffs whereas the respondent are defendants and they will be referred to as such in this judgment. The trial court had decreed the suit of the plaintiffs to the extent that gift dated "18 -3 -1968 by Phulan in favour of defendant No

(2.) her Son was declared void only qua 15 Marlas of land being 1/2 share of 1 Kana 9 Marlas comprised in Khasra No. 20, situated in Tika Baturara Tehsil and District Hamipur, of which they were held owners by way of succession The suit of the plaintiffs in respect of remaining land, which was held non ancestral, was dismissed. Both the plaintiff, and defendants felt aggrieved and filed appeals against the decree and judgment dated 2?nd February, 1 83 of Senior Sub Judge, Hamirpur, which have been decided by decree and judgment dated 10 -9 1986 passed by District Judge, Hamirpur. The appeal of the plaintiffs has been dismissed, whereas the appeal of defendants has been allowed, holding that parties being Tarkhan are not governed by Customary Law. As such, Phulan could gift even the ancestral property in favour of her sow, defendant No 2. The plaintiffs are aggrieved by the decree and judgment of District Judge, Hamirpur and they have filed the present appeal under old section 100, 0. P - C. 2. This Court has heard learned Counsel for the parties and gone through the record.

(3.) The concurrent findings of facts arrived at by both the courts which have not been disputed by the plaintiffs are that the land in dispute was held as Marusi by Shibu who had one daughter Phulan and by way of oral gift dated 19 -2 -194! he had transferred his Marisi rights in favour of his daughter Phulan. The plaintiffs are collaterals of Shibu within two degrees. Had oral gift not been made by Shibu, they would have inherited his property in the normal course as he died before the coming into force of the Hindu Succession Act, 1956. Admittedly the parties are Tarkhans and if they are governed by Customary Law of Kangra District and the suit property is ancestral of Shibu, he could no gift the Marusi rights in favour of his daughter. The trial Court has presumed that they are governed by Kangra Agricultural Custom, as such, Shibu had no right to gift away his Marusi rights in respect of the land which was found to be ancestral. The trial Court has found only 15 Marias of land being 1/2 share of 1 Kanal 9 Marias, comprised in Khasra No. 20, situated in village Baturara as ancestral, as such, gift in respect of this land has been declared invalid being in violation of Kangra Agricultural Custom, District Judge before whom the only point for determination was whether the parties are governed by Kangra Agricultural Custom has reversed the findings of the trial Court holding that being Tarkhan and not the agriculturist they are not governed by Kangra Agricultural Custom. This Court finds itself in agreement with the view taken by the District Judge for the reason that Customary Law of Kangra District complied by Mr.L.Middleton has given illustrations which are based on the agricultural communities of Brahmans, Rajputs and Ghirths There is no illustration in respect of Tar -khans who admittedly fall in the category of artisans deriving their names from their profession i e. Carpenter and are not primarily agriculturist. If a Tarkhan happens to be an agriculturist, he will not be governed by Agricultural Custom of District Kangra which is meant for agricultural tribes of that District only, unless it is proved that such a custom was prevalent amongst Tarkhans of the area. In the present case, the plaintiffs have neither pleaded nor proved such a custom governing Tarkhans of District Kangra and have relied upon general Custom of District Kangra, which has been recognised by the courts. Therefore, this Court holds that parties being Tarkhans are not governed by general Agricultural Custom of District Kangra which could work as a bar or which could prohibit Shibu from alienating his Marusi rights to his daughter by way of gift dated 19 -2 -1941.