Krishan Chand and Another vs Kaushalya Devi and Another

Kamlesh Sharma, J.—Appellants are the Plaintiffs whereas the Respondents 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-l968 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 Kanal 9 Marlas, comprised in Khasra No. 20, situated in Tika Baturara, Tehsil and District Hamirpur, 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 Plaintiffs and Defendants felt aggrieved and filed appeals against the decree and judgment dated 22nd February, 1983 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 son. 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, Code of Civil Procedure.

This Court has heard learned Counsel for the parties and gone through the record.

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 19-2-1941 he had transferred his Marusi 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 not 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 Marlas of land being 1/2 share of 1 Kanal 9 Marlas, 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 Tarkhans 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.

Another point raised by Shri Gupta learned Counsel for the Appellants is that under the general law then applicable, Phulan has no right to inherit Marusi rights of her father Shibu and by oral gift dated 19-2-1941 she was given only the life estate which did not mature into full rights under Hindu Succession Act, 1956, as such, she had no right to execute gift of the property in dispute in favour of her son, Defendant No. 2. This argument, though, looks attractive, but on examination it is found without any substance. It is not in dispute that only Marusi rights in the land in dispute were gifted by Shibu in favour of his daughter Phulan and by coming into force of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953, which was applicable to the area where the land in dispute is situated, her Marusi rights matured into Proprietary rights u/s 3 of the said Act. After acquiring proprietary rights, the land in dispute became self acquired property in the name Phulan which she could alienate by gift to her own son, Defendant No. 2 on 18-3-l968. Legal position in this regard has been settled as held in Amba Prasad Vs. Abdul Noor Khan and Others, ; Sonawati and Others Vs. Sri Ram and Another, and Vishwa Vijay Bharati Vs. Fakhrul Hassan and Others,

No other point has been raised by the learned Counsel for the Appellants.

In the result, there is no merit in the appeal and it is dismissed . Costs easy.