JAIDAYAL Vs. UMRAO HARCHAND AHIR

JUDGEMENT

(1.) THESE two appeals arise in a suit for declaration which was subsequently amended so as to become a suit for possession.

(2.) ONE Gordhan Ahir resident of Nihalpur Behror, made a gift of his property to his daughter's son Umrao resident of Gugadia, Tehsil Behror by document of 4-21954. The gift related to the movable and immovable property and included house property as well as agricultural land. The document was duly registered and in respect of the agricultural land mutation in the name of the donee was effected on 10-1-1946 by transfer No. 48. The plaintiffs who were collaterals of Gordhan instituted a suit out of which these two appeals have arisen on 28-12-1947 in the Court of the Munsif, Behror for a declaration that the said deed of gift was invalid as it was contrary to the custom of the village. It was alleged that a transfer whether by way of sale mortgage or gift could only be made in favour of the collaterals. Gordhan died during the pendency of the suit and a prayer for possession was also added by the plaintiffs. Umrao contested the suit. He did not admit the existence of the custom pleaded by the plaintiffs and urged that the gift was valid. It was not disputed that gordhan was the owner of the property of which he had made a gift. The trial court framed an issue "whether it was not valid for Gordhan to make a gift of his entire property in favour of his daughter's son in the presence of his collaterals and whether the gift was ineffectual against the plaintiffs. '' Two other issues were framed but which are not relevant at this stage and the fourth issue was "whether the plaintiffs are entitled to possession of the property in dispute".

(3.) THE learned Munsif decided issue No. against the plaintiffs and dismissed the suit. On appeal the learned District Judge of Alwar by his judgment dated 8-11952 held that the custom as narrated in the Wajibularz of the village prohibited transfer by way of gift to a stranger and accordingly held tho gift invalid so far as the agricultural lands were concerned. He held that the Wajibularz did not affect other movable property or the house property. He accordingly gave a decree to the plaintiff for possession of the agricultural land held by Gordhan of which he had made a gift to Umrao but dismissed the suit with respect to the house and other movable property included in the gift. The plaintiff Jaidayal and others have come in appeal in respect of that portion of the suit which has been dismissed while Umrao has filed an appeal in respect of the agricultural land for which the decree has been given to the plaintiffs.