Gurcharan Singh vs Har Gopal Singh

Teja Singh, C.J.—This appeal arises out of a suit for a declaration brought by one Gurcharan Singh that the gift of agricultural land made by his uncle Gurdit Singh in favour of Hargopal Singh was invalid according to the custom and did not affect the Plaintiff''s reversionary rights.

Gurdit Singh donor had two brothers, Gagan Singh and Mal Singh. The Plaintiff is the son of Gagan Singh. Mal Singh had two sons, Hargopal Singh donee and Hardyal Singh. Gurdit Singh who was issueless gifted his land to Hargopal Singh on 6/3/1999 Samvat, and made a report to this effect to the Patwari of the village. The mutation in Hargopal Singh''s favour was attested by a revenue officer on 26/2/2000. The Plaintiff brought the suit on 10/12/2001. Originally he claimed possession of his share of the land but later on he converted his suit into one for declaration. The sum total of the donee''s allegations as contained in his two written statements was that the donor had brought him up like a son and that the gift having been made on account of the services that the donee had been rendering to him was valid. The issues framed by the trial court were: (i) whether the property was ancestral, and (ii) whether the gift was valid. Both the issues were found in favour of the Plaintiff and the suit was decreed. On appeal the District Judge upheld the finding of the trial court as regards the ancestral character of the property but found the second issue in favour of the donee Defendant and dismissed the suit. The Plaintiff''s second appeal to this; court was dismissed by a learned Judge in Chambers but he was allowed to prefer an appeal to a Division Bench. Hence this appeal.

There can be no denying the fact that the parties are governed by customary law and in view of the words of issue No. 2 two things were necessary to be proved by the vendee:

(1) that the gift in his favour had been made for services rendered by him to the donor, and

(2) that such a gift was valid according to custom. The record, however, shows that while he examined evidence on the first point no effort whatever was made by him to prove custom. His first witness was Bishan Singh. He deposed that Hargopal Singh had been living with Gurdit Singh and his wife and had been serving them. He further deposed that Hargopal Singh had been got married by Gurdit Singh. To the same effect was the evidence of his other witness Bhag Singh. In addition to these witnesses Hargopal Singh himself appeared in the witness box and swore to the correctness of the allegations made by him. In rebuttal the Plaintiff examined only one witness, viz., Bir Singh. He admitted that the donee had been living with the donor during his life-time and had been tilling his land. When asked whether the donee had been serving the donor all that he'' said was that he did not know. When the matter went up in appeal before the District Judge he sent for and examined three witnesses, including the Patwari who had entered the mutation of gift in favour of Hargopal Singh at the instance of Gurdit Singh, and Nihal Singh Lambardar. The Patwari proved the report in which it was mentioned, inter alia, that Gurdit Singh had brought. up Hargopal Singh as his son since his childhood and Hargopal Singh had been serving him. The Lambardar''s evidence was also in Hargopal Singh''s favour. It was on the strength of all this evidence that the District Judge as well as the learned single Judge recorded the finding that the gift in question had been made on account of services, and I have no hesitation in coming to the conclusion that this finding of theirs is correct.

The question now is whether a gift of this kind can be held valid in the absence of any proof of custom. It was argued by S. Hanwantbir Singh, learned Counsel for the Plaintiff-Appellant, that according to the general custom prevalent throughout the Punjab and this Union ancestral Immovable property is inalienable except for necessity or with the consent of male descendants, or in the case of a sonless proprietor of his male collaterals, and since the property in the present case was proved to be ancestral and the donee had not proved any special custom to the contrary, the gift must be set aside. In this connection he relies upon paragraph 59 of the Rattigan''s Digest of Customary Law. Mr. Dalip Chand learned Counsel for the donee, on the other hand, submits that to the general custom as enunciated in paragraph 59, there is an exception which is as well recognised as the general custom itself, viz. that when the alienee is a near relation of the alienor and the alienation is a gift made for services it cannot be Questioned. In support of his contention Mr. Dalip Chand referred us to exception (3) to paragraph 59 appearing at page 289 of the Rattigan''s treatise (Edition 1938). This is what the learned author says:

Alienations in favour of relations between whom and the alienor there is some special tie, as by their having been brought up by him or by their being associated with him or by their assisting him in cultivation or rendering him services in the management of the land when he was himself incapable of doing so, are very generally recognised by custom.

A number of rulings are cited in support of the above opinion. It is not necessary to refer to all of them, but some may be quoted with advantage. ''Narain Singh v. Gurmukh Singh'' 1894 Pun Re 116 (A) was a case of gift made by a Gill Jat of Tehsil Dasuhya, District Hoshiarpur. The donee and the Plaintiffs who questioned the gift were equally descended from the grand-father of the donor. The learned Judge (Plowden S.J.) while agreeing with the Divisional Judge that there was sufficient justification of the gift to render it valid by custom remarked as follows:

There are numerous decisions of this Court of recent date, in which a gift to one of several heirs has been upheld where there was a special tie between the donor and the donee, as by being associated and assisting in cultivation and rendering service to the donor.

In-''Punnu Khan v. Sandal Khan'' 1904 Pun Re 92 (B) another eminent Judge of the Punjab Chief Court, Chatterji J. took the same view as Plowden Section 6. in the above case and after quoting the passage reproduced above observed as follows:

This view of this eminent expert on Punjab Customary law was given out about the time the agnatic principle got its latest development at his hands in-''Ralla v. Budha'' 1893 Pun Re 50 (C) and is therefore exceedingly valuable to show that the doctrine we are discussing does not really involve a material infringement of that principle.

Later on, in the same case, Chatterji J.-explained the reasons on which the above view was based. This is what he said:

The right of the childless male owner to appoint an heir is generally if not universally, acknowledged, and it has been rightly treated as merely a form of gift. It is founded on considerations of equity and convenience, for the childless male owner ought to be allowed to make arrangements for his comfort and maintenance in his old age, and for a companion to help him in his daily affairs. He cannot be compelled to nurse his'' property for the benefit of his agnates irrespective of all personal consideration. If he can appoint an heir on these grounds it is not unreason-able to expect that custom would allow him to make a gift where the donee is not actually adopted as a son or appointed heir, but is specially connected with the donor by being associated or helping in cultivation and rendering him service. Such a person holds a position very analogous to that of the adopted son or appointed heir.

There are two decisions of the Lahore High Court in which the same view was taken,-''Sardar Alam v. Mohammad Alam'' AIR 1927 Lah 41 and-''Hadayat v. Alaf Din'' AIR 1929 Lah 639 In the first case Dalip. Singh J. discussed the question of onus also. He observed:

It is true that the onus to justify a gift lies on the donee, but in Rattigan''s Digest of Customary Law, para 59, exception 3, it is, stated that where the donee is an agnate with a special association with the donor, and the gift is in lieu of services, the custom of allowing such a gift is frequently recognised.

The second case was decided by Jai Lal J. and he held that it is well-recognised rule of the Customary Law that even among the tribes where the right of a sonless proprietor to alienate ancestral immovable property is restricted alienations in favour of relations between whom and the alienor there is some special tie, as by their assisting him in cultivation or rendering him services in the management of the land, when he was himself incapable of doing so, are very generally recognised.

The principles enunciated in the above cases apply to the present case. The donee was the real nephew of the donor. In addition he had been serving him during his life-time and was even brought up and treated by him like a son. It is true that he adduced no evidence on the question of custom, but the general custom was in his favour and there being nothing to show that it was varied by a special custom to the contrary the gift was valid.

The result is that the appeal fails and is dismissed with costs.

Gurnam Singh, J.

I agree.