Mst. Asso vs Tara Singh and others

A.D. Koshal, J.—The facts giving rise to this second appeal are these Norang Singh owned 77 bighas and 3 biswas of land situated in the

area of Barnala. He died issueless leaving behind two widows named Asso and Kishno who succeeded to the land on the usual widow''s tenures

under customary law but gifted the name to their husband''s sister''s son Piara Singh on the 7th of April, 1919, through a registered gift deed, a

copy of which is Exhibit P. 1. Chanan Singh defendant No. 3, a collateral of Norang Singh, obtained a decree declaring that the gift was invalid

qua his reversionary rights and would not be binding on him after the death of the two widows. Subsequently Kishno died-

In the year 1964 Piara Singh died without leaving behind any issue or widow and the revenue authorities mutated the land in favour of his

collaterals and nearest heirs Tara Singh and Pritam Singh defendants Nos. 1 and 2 respectively. Asso, the surviving widow then filed a suit praying

for a declaration that she was the owner of the land which reverted to her on extinction of Piara Singh donee''s line according to the custom by

which the parties were governed Jangir Singh defendant No. 4 was impleaded in the suit as he was in occupation of the land as a tenant. A

declaration was sought against him also, it being to the effect that he was a tenant under the plaintiff who was entitled to recover rent from him.

The plea taken by defendants Nos. 1 and, 2, the contesting defendants, was that Piara Singh was the full owner of the land and that it was

rightly mutated by the revenue authorities in favour of his heirs. According to them, the gift was made in lieu of services and the land could not,

therefore, revert to the plaintiff on the extinction of the donee''s line.

The parties went to trial on the following issues:

Whether Kishno deceased and Asso plaintiff had made a gift of the land to Piara Singh ? If so, with what effect ?

Whether the land in dispute reverted to the plaintiff as alleged ?

Whether defendants Nos. 1 and 2 are the legal heirs of Piara Singh, donee ? It so, with what effect ?

Relief.

The suit was decreed on the 29th of March, 1967, by Shri M. L. Singla, Subordinate Judge 1st Class Barnala, who decided issue No. 1 in

favour of the plaintiff and issue No. 3 in that of defendants Nos. 1 and 2. On issue No. 2 it was held that the doctrine of reversion of gift to the

donor''s family on the extinction of the line of the donee recognised under custom applicable to agriculturists in Punjab governed the case and that

on Piara Singh''s death the land in suit reverted to the plaintiff in whose favour the suit was, therefore, decided, the parties being left to bear their

own costs.

Defendants Nos. 1 and 2 reagitated the matter in an appeal which was decided on the 6th of November, 1968 by Shri Pritarn Singh Pattar,

District Judge, Sangrur, before whom the findings arrived at by the trial Court on issues Nos. 1 and 3 were not contested by either Dirty but who

reversed the decision of the Subordinate Judge on issue No. 2 on the ground that the doctrine above-mentioned was a rule of succession of Hindu

law which stood abrogated by section 4(1) of the Hindu Succession Act, 1956 (hereinafter referred to as the Act). In this connection reliance was

placed on Taro Vs. Darshan Singh and Others, , and Smt. Banso and Others Vs. Charan Singh and Others, . In the result, the decree granted by

the trial Court was set aside and the suit of the plaintiff was dismissed with no orders as to costs.

It is against the judgment of the learned District Judge that the present appeal has been filed by the plaintiff. It may be mentioned that Chanan

Singh defendant No. 3 is dead and is now represented by his widow Smt. Bhagwan Kaur.

Section 4(1) of the Act provides :

(1) Save as otherwise expressly provided in this Act,-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this

Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of

the provisions contained in this Act.

Shri J. V. Gupta, appearing for the appellant, has no dispute with the proposition laid down in Mst. Taro v. Darshan Singh1, and Smt. Banso v.

Charan Singh""1 (supra) that any rule of custom applicable to Hindus prior to the enforcement of the Act stood abrogated by that Act in so far as

matters relating to succession and provided for in the Act are concerned. His contention is that the doctrine of reversion of gift to the donor''s

family on the extinction of the donee''s line is not a rule of succession but only a rule governing alienations. According to him, the foundation of the

rule is the intention of the donor that the gift shall enure for the benefit of the donee and his descendants and that as soon as his line is exhausted,

the gift would cease to be operative. The same principle, according to him, governs customary adoptions under which the property of the adoptive

father is enjoyed by the adoptee and his descendants but on their failure it reverts to the adoptive father''s natural line For the proposition

enunciated by him reliance is placed on Mussammat Bhagwani v. Atru 39 P.L.R. 1904, AIR 1928 516 (Lahore) AIR 1934 860 (Lahore) , and

Khaira Kamman v. Shahab Din AIR 1949. E.P. 29.

In Mussammat Bhagwani and others v. Atru 39 P.L.R. 1904, a widow governed by the customary law made a gift of her husband''s land to her

Khanadamad and on the latter alienating the same his wife and son sued for a declaration that the alienation would not affect their reversionary

interest. It was held that where the usage of Khanadamad was recognised, the purpose was to benefit the daughter''s sons and that the benefit to

the daughter and her husband came in only incidentally. It was further held that on failure of the donee''s direct male line the property reverted to

the male heirs of the donor and that the donee could not alienate the land to outsiders except for necessity.

In AIR 1928 516 (Lahore) the rule of customary law was stated thus :

* * * the ordinary custom in this province is that in the case of a gift of ancestral immovable property to a relation on the failure of the issue of the

donee the property reverts to the donor and his heirs, the presumption in such cases being that the object of the gift is to make a settlement for the

benefit of the donee and his issue, and therefore on the failure of the issue of the donee the object of the gift fails and the property reverts to the

original donor.

It was held, however, that this rule applies only to cases of pure gifts and not to what is ordinarily called hiba-bil-iwaz.

In AIR 1934 860 (Lahore) a widow governed by the customary law gifted away her husband''s self-acquired property to her daughter with

the consent of the next reversioner. It was held that although the gift was good because of the consent, the property would revert to the original line

on the death of the donor without issue and that the donee''s husband would not succeed to the same and this because the donor did not have

unrestricted power of disposition over the gifted property and the donee belonged to the family of the donor.

In Khaira Kamman v. Shahab Din,6 Achhru Ram, J. repelled a contention that the rule of reversion to the donor''s line on failure of all legal

descendants of the donee would not apply to a gift made in lieu of services rendered by the donee to the donor. Reference was made to the Full

Bench judgment in Sitaram v. Rajaram, 12. P.R. 1892 and it was observed :

The principle underlying the Full Bench judgment is that where custom allows a departure from the ordinary rules of inheritance relating to ancestral

immovable property and a diversion of such property in favour of blood relations in the female line, the presumption is that it does so out of tender

regard for such relations and their lineal descendants and with the object of benefiting such descendants only so that on the failure of such

descendants the property should revert to its original owner or, in case of his being dead, to his male descendants, or to his collateral heirs, in case

he has left no descendants. Such diversion may be effected by means of a gift or by means of an adoption. More often than not the gift in such a

case will be motivated either by the donee being associated with the donor in cultivation or by her or his looking after him and ministering to his

comforts in the past, or by a desire on the part of the donor that she or he may do so in the future. Indeed, in case of roost of the tribes custom

insists on some such thing as a condition for the validity of the gift, a gift simpliciter of ancestral immovable property in favour of such relations to

the prejudice of agnatic heirs being recognized as valid amongst only a few tribes. To hold that in cases of gifts made in lieu of services, the

donated property does not, on the failure of the lineal descendants of the donee, revert to the donor or his heirs, but devolves on the heirs of the

donee who are perfect strangers to the donor will defeat what, according to the Full Bench, must be presumed to be the object of the gift and the

motive for the custom to extend its recognition to it. Such gifts cannot be regarded as standing on the same footing as a hiba-bil-iwaz of the Muslim

law which for all practical purposes, is a sale and has been generally held to be subject to all the legal incidents of the sale. It must be remembered

that the rule of reversion to the original line is as much applicable to cases of adoptions as to those of gifts. In fact in Sitaram v. Rajaram1, the

contest between the parties was whether on the extinction of an adoptee''s line the land inherited by him from his adoptive father was to devolve on

his own collateral heirs or was to revert to the adopter or his heirs. It is a notorious fact that unlike the adoption of Hindu law, customary adoption

is altogether secular in its origin and character. By recognizing adoption custom only enables a sonless proprietor to select one from amongst his

relations, whom custom regards as eligible for the purpose, to take him as a son so that he may help him in cultivating his land and may look after

him in his old age. In substance there does not seem to be any real distinction between a person to whom land is gifted in lieu of services rendered

or to be rendered and one on whom a right to inherit such land has been conferred in consideration of his undertaking to treat the present owner as

a father. If the rule of reversion applies to the latter case, there is no reason why it should be held not to apply to the former case.

In view of these authorities I am fully inclined to agree with Shri Gupta that the rule of reversion to the donor, above enunciated, is not a rule of

succession but a rule governing alienations and that a customary gift is viewed as a settlement for the benefit only of the donee and his descendants

when it is made to a relation. No question of succession to Piara Singh''s collaterals, therefore, arises in the present case; but the matter does not

end there because, as is contended by Shri Sarin on behalf of defendants Nos. 1 and 2, the gift in the present case was not a customary gift and

even though it was made in lieu of services, it was an absolute gift, expressly negativing any presumption of an intention on the part of the donor

that it was only the donee and his descendants who were to benefit therefrom. Reference in this connection may be made to the gift deed which

states inter alia :

Piara Singh * * *

Our husband''s sistor''s son is (was ?) living for long with our husband like a son and he has rendered great service to us also and will do so in

future. Our husband Norang Singh willed in his lifetime before he died that we should gift his entire property to his sistor''s son Piara Singh who

alone would serve us for the whole of our lives and would provide us with maintenance. Now, therefore.*** we gift our agricultural land and house

inherited by us from our husband according to his will and declare that from today onwards he (Piara Singh) shall be transferee owner of the

property and shall have all rights internal and external and of alienation whether temporary or permanent.

The words which I have underlined exclude an intention that the land shall revert to the donor''s line on the line of the donee becoming extinct.

There is no question of any presumption to the contrary, therefore, arising in the case of the gift with which I have here to deal and that gift cannot

be held to be a customary gift to which the rule of reversion above enunciated would apply. In so far as the two widows are concerned, they must

be held to have made an out-and-out gift to the donee who became a full and absolute owner of the gifted land qua them and during their lifetime

the land would devolve on Piara Singh''s heirs to the exclusion of those of Norang Singh

Shri Gupta finally argued that by reason of the decree made in favour Chanan Singh defendant No. 3 the gift was void and that on Piara

Singh''s death the next heir of Norang Singh would get the property, that heir being none else than the plaintiff under the Act. The argument is

fallacious and has no merit. The decree passed in favour of Chanan Singh merely declares that the gift would not affect the reversionary rights of

Norang Singh''s heirs after the death of his widows. So long as either of the widows is alive, the decree remains inoperative. During her lifetime,

therefore, the plaintiff cannot draw any advantage from that decree. Whatever rights she had in the property, she transferred the same in favour of

Piara Singh. She could only get the property back on the basis of the doctrine of reversion recognised by the customary law which, however, as

already held above, is inapplicable to the present case.

For the reasons stated, the appeal fails and is dismissed. I would, however, make no order as to costs in view of the questions of law involved.