Hans Ram vs Duli Chand and Others

Mahavir S. Chauhan, J.—Hans Ram, plaintiff, appellant herein, had approached the court of learned Sub Judge IIIrd Class, Bhiwani, (hereinafter referred to as ''the trial Court'') vide Civil Suit No. 426 of 17.12.1981, to seek a decree of declaration to the effect that he and the proforma defendant Nos. 6 to 11 in the suit and also in the present appeal were owners in possession of one-half share of the suit land as per description given in the headnote of the plaint and that the gift deed dated 16.05.1959 (Exhibit P-1), executed by Mohar Singh in favour of defendants No. 1 to 5 (hereinafter referred to as ''the contesting respondents'') was null and void, consequently, not binding on the rights of the plaintiff/appellant and the proforma respondents; and for a decree of perpetual prohibitory injunction restraining the contesting respondents from interfering in the peaceful possession of the plaintiff/appellant and that of the proforma respondents to the extent of one-half share in the suit land. Edifice for the aforesaid relief was raised on the averments that parties to the suit were closely related to one another and were descendants of a common ancestor, named, Bhani, their grandfather. After the death of Mohar Singh, who died issueless, parties to the suit were liable to inherit the estate left behind by said Mohar Singh in equal shares, but the contesting respondents allegedly got a gift deed dated 16.05.1959 (Exhibit P-1), executed by said Mohar Singh in their favour in spite of the fact that said Mohar Singh was unable to understand the meaning of the gift deed and to make a statement at the time of execution thereof. Thus, the gift deed was illegal and inoperative.

The contesting respondents filed a written statement pleading preliminary objections, inter alia, to the effect that plaintiff''s suit was not maintainable in its present form; it was beyond limitation; plaintiff and proforma respondents were estopped by their acts and conduct from filing the suit; the suit was not properly verified and Siri Ram, defendant No.4, was wrongly impleaded. While defending the execution of the gift deed, the contesting respondents, however, denied all other allegations of the plaint.

Plaintiff preferred a replication to reiterate his claim as contained in the plaint and to controvert what was stated in the written statement.

The learned trial Court, on the basis of pleadings of the parties, formulated issues as under:-

Whether the plaintiff and proforma defendant no. 6 to 11 are owners in possession of half share of the land in dispute?

Whether the Gift Deed dated 16.5.59 executed by Mohar Singh and Gordhan is illegal, bogus, forged and fraudulent as alleged?

Whether Bhani was the common ancestor of the parties and was the owner and in possession of the disputed property?

Whether Mohar Singh and the defendants are governed by customs and if so to what is custom is regarding the alienation of ancestral property?

Whether the property in dispute is ancestral property?

Whether the plaintiff and proforma defendants are estopped by their act and conduct to file the present suit?

Whether the suit is bad for misdescription of the defendants Shri Ram?

Whether the suit is false and frivolous?

Relief.

Both the parties adduced evidence and were heard by the learned trial Court.

Learned trial Court returned findings on Issue Nos. 1, 2 and 7 against the plaintiff, but decided Issue Nos. 5, 6 and 8 against the contesting respondents, however, Issue Nos. 3 and 4 were decided against plaintiff by holding that Bhani was common ancestor of the parties to the lis and that the parties were governed by custom and that the property could not be gifted away. However, vide judgment and decree dated 27.02.1982, plaintiff''s suit came to be dismissed on merits apart from being hit by the principle of limitation.

To assail the correctness of the findings recorded by the learned trial Court, plaintiff preferred Civil Appeal No. 14-13 of 1982/1986 but the plea put up on behalf of the plaintiff/appellant did not even find favour of the learned First Appellate Court and the appeal filed by the plaintiff/appellant came to be dismissed by the court of learned Additional District Judge, Bhiwani, vide judgment and decree dated 07.10.1986.

Having lost before both the courts below, the appellant has approached this Court by way of the instant Regular Second Appeal.

Counsel for the appellant has filed in Court the substantial questions of law, which are taken on record.

There is no representation on behalf of respondents.

I have heard learned counsel for the appellant and have perused the record.

In the first instance, it is argued by the learned counsel for the appellant that the Courts below have wrongly non-suited the plaintiff on the plea of limitation in spite of the fact that no such objection was raised on behalf of the contesting defendants and no issue of limitation was framed. It is contended by learned counsel for the appellant that had there been an issue based on the point of limitation, the plaintiff would have satisfied the Courts below that the suit was well within limitation but no such issue having been framed, the plaintiff has been gravely prejudiced and for this reason alone the finding recorded by the Courts below on the point of limitation is liable to be set aside and reversed.

The submission, however, is without substance. A very specific objection was raised on behalf of the contesting defendants that the suit was not within limitation but in spite of this objection, learned trial Court failed to frame an issue even though the plea was denied by the plaintiff in the replication. However, even the parties did not press for framing of an issue based on limitation. Further, even in the absence of an issue based on limitation, it was argued on behalf of the plaintiff before the Courts below that he was not aware of execution of the gift deed dated 16.05.1959 and the suit was within limitation from the date of knowledge of execution of the gift deed. That being so, it has to be inferred that the plaintiff was aware of the plea of limitation while prosecuting the suit and appeal before the Courts below and, that being so, he cannot complain of any prejudice having caused to him on account of non-framing of issue as regards limitation. Even if plea of limitation was not raised on behalf of the contesting respondents still the Courts below were well within their competence to non-suit the plaintiff if the suit was found to be barred by limitation because the plea of limitation hits at the root of maintainability of the suit, for, after expiry of the prescribed period of limitation the Court is precluded from entertaining a suit. It is well settled by now that a suit, if filed beyond limitation, has to be dismissed even though no objection based on the plea of limitation is raised by the defendants and a plea of limitation can be raised even at the stage of first appeal and second appeal. Rather, it was incumbent upon the plaintiff to plead and prove before the learned trial Court that his suit was within the period of limitation as prescribed under the Limitation Act, 1963.

The gift deed (Exhibit P-1), indisputably, was registered on 16.05.1959. Registration of a document is, in a way, notice to general public of the execution of the document, so registered, because after registration of the document, it is open to public at large. Not only this, Chet Ram, proforma respondent, who happens to be brother of the plaintiff, was present at the time of sanctioning of mutation on the basis of the gift deed (Exhibit P-1). He had even raised an objection to sanctioning of mutation but his objection was rejected by the revenue authorities. Therefore, the plaintiff cannot be heard to say that he was not aware of registration of the gift deed (Exhibit P-1). Before the learned trial Court plaintiff exhibited ignorance about the entries in the revenue record with regard to the gift deed. Such conduct of the plaintiff is found to be a clever effort to wriggle out of the plea of limitation. The gift deed having been registered in the year 1959, a civil suit to challenge it could be brought within a period of three years from the date of its execution/registration, in terms of Article 59 of ''The Schedule (Part-IV)'' of the Limitation Act, 1963. However, the suit under appeal was brought by the plaintiff on 22.07.1980, i.e., after expiry of 21 years of execution and registration of the gift deed dated 16.05.1959 (Exhibit P1). The suit, thus, was hopelessly barred by limitation. Therefore, findings of the Courts below based on the plea of limitation cannot be interfered with.

It is next contended by the learned counsel for the appellant that property in the hands of Mohar Singh being ancestral, he could not execute a gift deed in respect thereof in favour of the contesting respondents. A similar contention was raised before, and was rejected by, the learned trial Court by holding that the doner, i.e., Mohar Singh, was issueless and the contesting respondents are his nephews. Further, according to the Punjab Customary Law, an issueless male Hindu is entitled to gift away land owned by him to his relatives in lieu of services rendered by those relatives towards him. The learned Courts below also referred to a judgment of this Court rendered in the case of Nathu Ram and others Vs. Jug Lal (Died) and represented by his Nathu Ram and Others Vs. Jug Lal (Died) and represented by his L.R.S. Atma Ram . Following observations, of this Court, made in the aforesaid judgment are relevant:-

The sole point for consideration is whether it is proved in the case that a sonless proprietor cannot alienate his property in favour of his near relation either for love and affection or for services. The general custom with regard to alienations is contained in Para 59 of the Rattigan''s Digest, which reads as follows:-

Ancestral immovable property is ordinarily inalienable (especially amongst ''Jats'' residing in the central district of the Punjab) except for necessity or with the consent of male descendants, or, in the case of a sonless proprietor, of his male collaterals, ''Provided'' that a proprietor can alienate ancestral immovable property at pleasure if there is at the date of such alienation neither a male descendent nor a male collateral in existence.

By a large string of authorities, Exception 3 to para 59 has come into being, which is to the following effect:-

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.

The general agricultural custom of the Punjab allows gifts in favour of relations who have rendered services to the donor;....... gift by sonless proprietor of a portion of his ancestral property in favour of his daughter in return for services....... 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;...... " gift in favour of one nephew to the exclusion of the other nephew...

Therefore, it transpires from the above that Raja Ram who was a sonless proprietor could make a gift of the land in dispute to Amar Nath or any of his other nephews for love and affection or for services rendered by him. In the present case, it was specifically pleaded by the defendant that Raja Ram was living with him and he had been looking after and serving him which plea was duly proved during evidence. Accordingly, I proceed on the assumption that Amar Nath rendered services to Raja Ram and, therefore, Raja Ram could make a gift in his favour who was also one of his near agnates.

It is then urged on behalf of Jug Lal that the parties are governed by special custom as contained in the Riwaj-e-am of Ambala district because the parties belong to Tahsil Thanesar, which at one time was part of Ambala and, therefore, the special custom of Ambala would govern the parties. My attention has been invited to Question No. 69 of the Riwaj-e-am of Ambala district, which is as follows: -

If a proprietor by verbal or written direction disposes of his property after his death?

Ans. The replies given are as a rule curiously wide of the mark and are in themselves quite sufficient evidence of the fact that Wills are never made, and that the nature of a Will is not understood. If their recorded statements could be trusted, a majority of the tribes would agree that Wills either oral or written could be made so as to defeat the rights of the heirs. It was abundantly clear at attestation that nothing was further from this intention. The only tribe having any custom on the point are the Sayyads. They agree that a Will is legal whether oral or written but they only allow its limited application to special articles and a small portion of the property, and do not recognize its effect as regards immovable property so to defeat the heirs. A few other Muhammadans appear to understand what is meant by executing a Will, but say that none ever is executed unless with the intention of making it quite sure that the property shall descend according to custom and not by Muhammadan Law. The Hindu tribes without exception agree that a Will is unknown and all that they meant by their recorded replies was that where a man had assigned a part of his property to any particular heir during his lifetime, and where this assignment had been made publicly and with the consent of the collaterals, effect would be given to his wishes after his death. This practically amounts to a gift made during life, and the only proper answer to the question is that Wills are entirely unknown.

1918. Wills and legacies are unknown as far as ancestral immovable property is concerned.

Then, my attention was invited to Question No. 70, which is with regard to gifts of ancestral property, the answer to which is that gifts were opposed to custom prevalent among Jats. The point for our consideration is not of gifts but gifts in respect of a sonless proprietor and no such special custom has been shown. Accordingly, Question No. 70 and the answer thereto would not have any bearing on the decision of this case. Therefore, we have to fall back upon the general custom which clearly makes a provision for a gift by a sonless proprietor to a near agnate for services rendered. In the present case, Amar Nath was a near agnate as also a person who had rendered services to Raja Ram and, therefore, Raja Ram could validly make a gift in his favour.

Nothing to the contrary could to be shown during the course of arguments.

Therefore, the finding recorded by the learned trial Court as upheld by the learned First Appellate Court on the point of gift by sonless proprietor of land deserves to be and is accordingly affirmed.

It is next contended on behalf of the appellant that to make a gift valid, the deed of gift has to be accepted by all the donees, however, in the case in hand the gift deed (Exhibit P-1) is not shown to have been accepted by all the contesting defendants but has been accepted only by one of them. It is also contended that possession of the gifted property has also not been handed over to the contesting defendants. This, according to the learned counsel, makes the gift inconsequential and invalid. The learned counsel relies upon Smt. Mukhtiar Kaur Vs. Smt. Ghulab Kaur, , to show that in this case, it has been held that where the gifted property is capable of physical possession non-delivery of the same renders the gift invalid. The contention, however, is meritless because in the revenue record, including the jamabandi (Exhibit P-5), contesting defendants have been shown to be in possession of the suit property to the extent of 2/3 share and it is well settled by now that acceptance of a gift by one of the donees, on his own behalf or on behalf of the other donees, is sufficient to fulfill the requirements of a valid gift. Entry in possession of the gifted property amounts to acceptance of the property, so gifted, and as aforesaid, in the jamabandi (Annexure P-5), the contesting defendants are shown to be owners in possession of 2/3 share of the land, which includes the property gifted to them by way of gift deed (Exhibit P-1). They are shown to be in continuous possession in the khasra girdawari. A mutation has also been sanctioned in favour of the contesting respondents and it is not shown to have been challenged before any forum. In view of what has been discussed herein-above, the appeal is found to be devoid of any merit. Then, no question of law, much less a substantial question of law, is involved in the present appeal. In the result, the appeal fails and is hereby dismissed with costs.