Lashkar Singh and another vs Rawal Singh and another

This is plaintiffs regular second appeal. The dispute relates to the estate of Karam Singh son of Sh. Uttam Singh. A pedigree-table, for facility of reference, is given as under:--

Uttam Singh | _____________|___________________________ | | | Jagat Singh Karam Singh Harditta | (unmarried, (died | no issue.) issueless.) | (Deft. No. 1 in | original suit) | | _________________________|_____________ | | | Lashkar Karnail Rawal Singh (Deft. Singh Singh No. 1) Deft. No. 2 in original suit) | ________________________|___________________________ | | | Kuldip Mohinder Singh Avtar Singh (Deft. No.2) Deft. No. 3) (Deft. No. 4 (Deft. No. 3 in (Deft. No. 4 in (Deft. No. 5 in Original suit). Original suit). Original suit).

The plaintiffs filed a suit for declaration to the effect that the plaintiffs and defendant No. 2 are the owners in possession of the land, the details of which have been given in the head note of the plaint and that Karam Singh (deceased) had no right to gift half share of the land in suit to defendants Nos. 3 to 5 and the same is illegal, void, ultra vires and of no effect as against the rights of the plaintiffs. It was also alleged in the suit that their uncle Karam Singh was the owner of half share of the suit land whereas plaintiffs along with Rawal Singh defendant No. 1 were owners of the other half share. It was alleged that Karam Singh had made an oral gift of his half share in the land in favour of the plaintiffs and Rawal Singh defendant No. 1 in equal shares in the year 1954 and thus Karam Singh was riot competent to make the gift of his half share of the said land to defendants Nos. 3 to 5 (minor sons of defendant No. 2).

During the pendency of the suit, Karam Singh died on 16-6-1973. Defendants Nos. 2 to 5 contested the suit, denied any oral gift made in favour of the plaintiffs and defendant No. 2 and defended the gifts made in favour of defendants Nos. 3 to 5 being legal. The trial Court found that no oral gift was made in favour of the plaintiffs and defendant No. 2. The trial Court also returned a finding against the plaintiffs holding that Karam Singh had executed three valid gift deeds in favour of defendants Nos. 3 to 5. The trial Court found that the plaintiffs had not become owners of land in dispute by way of adverse possession. The suit was held to be time barred. Thus, the trial Court dismissed the suit of the plaintiffs. The plaintiffs filed appeal before the first appellate Court who dismissed the same. Before the first appellate Court, only finding on issue No. 1 i.e. "whether defendant No. 1 had made any oral gift deed of his 1/2 share in the land in suit in favour of the plaintiffs and defendant No. 2 in 1954?" was challenged and the same was decided against the plaintiffs.

The plaintiffs have come to this Court challenging the judgment and decree of the courts below.

Learned counsel for the plaintiffs-appellants has raised only one contention. His submission is that when gift deed were executed, defendants Nos. 3 to 5 were minors and as such were incapable of accepting the gifts. He has further argued that physical possession of the land pertaining to the gift deeds was not delivered to them and as such non-delivery of the same makes the gifts invalid. In support of this, he has relied upon:--

i) State of Punjab v. Sant Singh (1976) 78 PLR 87

ii) Smt. Mukhtiar Kaur Vs. Smt. Ghulab Kaur,

iii) Indar Singh Vs. Nihal Kaur and Another, .

On the other hand, learned counsel for the defendants has supported the judgment and decree of the Courts below.

After hearing learned counsel for the parties, I find that there is no merit in the contention of learned counsel for the plaintiffs. Firstly, before the first appellate Court, the plaintiffs never challenged that the gifts made in favour of defendants Nos. 3 to 5 were invalid because of non-delivery of physical possession of the property. The only challenge before the first appellate Court was as to whether the plaintiffs had become owners of the land in dispute because of an oral gift made in their favour by Karam Singh deceased.

Secondly, Gift Deeds, Exhibits Dl, D2 and D3 dated 29-10-1969 executed by Karam Singh in favour of defendants Nos. 3 to 5 are registered documents. A bare perusal of the gift deeds shows that Karam Singh had gifted his land in favour of defendants Nos. 3 to 5 and these gifts were accepted by Sohan Singh on behalf of the minors. In view of this matter, when gifts were accepted on behalf of the donees who were minors at that time, it cannot be said that the gifts were not complete in the absence of acceptance of the gifts made on behalf of the donees who were minors.

The decisions in State of Punjab (supra), Mukhtiar Singh (supra) and Inder Singh (supra) relied upon by learned counsel for the plaintiff have no application to the facts of the present case. A reading of the aforesaid judgments would show that the decisions were rendered under the Customary Law and not under S. 123 of the Transfer of Property Act (hereinafter referred to as the Act). Under the custom, a gift could be made but to make it valid, it was necessary that the possession of the property should be delivered to the donee. Without delivery of possession of the property, gift remains inoperative. Same is the position under Hindu Law. Section 123 of the Act merely seems to have an effect rendering unnecessary the delivery of possession, substituting, as it does, registration for delivery of possession. Even a reading of Section 123 of the Act shows that for making a gift of immovable property, transfer must be effected by a registered document signed on behalf of the donor and attested at least by two witnesses. Under S. 122 of the Act, delivery of possession is not necessary for acceptance of the gift. Since the gift is defined under S. 122 of the Act, reference has to be made to the definition of gift contained in S. 122 of the Act. Though a gift is made by a registered document yet the same has to be accepted by or on behalf of the donee to make it complete failing which the gift will be bad because it is so provided in S. 122 of the Act.

In the present case the gift deed were executed and registered on 29-10-1969. The same were attested by Gurbachan Singh, Sarpanch and Gunnel Singh, Panch as witnesses. Sohan Singh accepted the gifts on behalf of the minors and in token of acceptance, appended his thumb impression on the gift deeds. In view of this, the objection that gifts were not complete, cannot be sustained. The objection of learned counsel for the plaintiff that Sohan Singh never appeared in the witness box to say that he had accepted the gifts on behalf of the minors is also without any substance because no such suggestion was put to DW 1 Gurbachan Singh who appeared to prove the execution of the gift deeds.

For the reasons recorded above, the appeal stands dismissed. However, parties are left to bear their own costs.

Appeal dismissed.