Nand Ram and others vs Chetu and others

Harnam Singh, J.—Sukhu, a Kanet Rajput of Kulu Tehsil, gifted his agricultural land and house property to Chetu and Dolu, sons of Tofi. Nandu Ram, Dalla Ram, Jagat Ram and Pars Ram, real brothers of Sukhu donor, instituted the suit out of which this appeal has arisen, challenging the gift made by the said Sukhu. Plaintiffs maintain that they are governed by custom, and that the property in suit being ancestral in the hands of Sukhu donor qua the plaintiffs the gift in suit is not binding on their reversionary interests. In the plaint it is stated that Chetu and Dolu were not the sons of Mt. Baldasi, daughter of Sukhu from the loins of Tofi.

Chetu and Dolu defendants resisted the suit claiming to be the sons of Mt. Baldasi, daughter of Sukhu. They then pleaded that the property was not ancestral in the hands of Sukhu qua the plaintiffs and that the gift was valid under custom.

On the pleadings of the parties the trial Court fixed the following issues.

Is the land ancestral qua the plaintiffs and defendant 3?

Is the gift valid according to custom?

Relief.

The trial Court found the house property and a portion of the land in suit to be ancestral qua the plaintiffs and the remaining portion of the land to be non-ancestral. The trial Court then found that according to custom governing the Kanet Rajputs of Kulu Tehsil a sonless proprietor is competent to make a gift of his ancestral property to his daughters or his daughters'' sons. On the question of relationship the trial Court found Chetu and Dolu donees to be the sons of Tofi and Mt. Baldasi. On the findings reached by the trial Court, the suit failed and was dismissed with costs on 37th July 1945.

From the decree passed by the trial Court, Pars Ram, Nandu Ram, Dalla Ram and Jagat Ram preferred an appeal in the Court of the District Judge at Hoshiarpur under S. 96, Civil P. C., 1908. In the Court of the District Judge two points were pressed by the appellants, namely, that the land found by the trial Court to be non-ancestral was ancestral and that a Kanet Rajput was not competent to make a gift of his ancestral property to his daughters or his daughters'' sons under the rule of custom governing the Kanet Rajputs of Kulu Tehsil.

On the first point, the lower appellate Court found that the land found by the trial Court to be non-ancestral was in fact non-ancestral qua the plaintiffs. On the second point the lower appellate Court then found that under the rule of custom governing the Kanet Rajputs of Kulu Tehsil in the absence of male issue a proprietor is competent in his lifetime to give his property to his daughters or daughters'' descendants. That being so, the appeal failed and was dismissed with costs on 17th November 1945.

Plaintiffs have now come up in further appeal under S. 41, Punjab Courts Act, 1918.

Mr. Daya Kishan Mahajan has a doublebarrelled objection to the decree under appeal. He contends that the lower appellate Court was wrong in holding that Chetu and Dolu respondents were the sons of Mt. Baldasi and Tofi. He then contends that the answer to question 14 does not confer any power on a sonless male proprietor to give his property in his lifetime to the sons of his daughter. In any case it is said that Sukhu was not competent to give his property in his lifetime to Dolu and Chetu who were illegitimate sons of Mt. Baldasi, daughter of Sukhu.

Dealing with question 1 first, I find that the trial Court gave a clear decision that Chetu and Dulu were the sons of Tofi from Mt. Baldasi daughter of Sukhu. Plaintiffs examined evidence at the trial that Mt. Baldasi was the first wife of Tofi and that Chetu and Dolu were the sons of Tofi and Mt. Baldasi. The trial Court further found that Tofi had no other wife before he married Mt. Baldasi. In the memorandum of appeal in the lower appellate Court an objection was taken that the trial Court was wrong in holding that defendants 1 and 2, were the sons of Mt. Baldasi from the loins of Tofi. No objection was, however, taken to the decree of the trial Court on the ground that Lajja Ram: first husband of Mt. Baldasi, was alive when she came to live with Tofi and for that reason Chetu and Dolu were not the legitimate sons of Mt. Baldasi from Tofi. Clearly the objections taken in the lower appellate Court does not cover the point now raised before me, and in any case, this objection was not pressed at the hearing in the proceedings before the District Judge. There is no indication in any part of the judgment under appeal that the objection raised in these proceedings was taken before the lower appellate Court and that being the situation I do not think that this objection can now be raised in these proceedings. On the death of Tofi mutation with respect to the land left by Tofi was sanctioned in the names of Chetu and Dolu, sons of Tofi. On this point reference may be made to Exs. D. 3 and D. 4.

I now pass on to consider the rule of custom on the point in dispute governing Kanet Rajputs of Kulu Tehsil. In answer to question No. 14 the representatives of the Bairagi tribe stated at the Settlement of 1878:

In the absence of male issue every proprietor can during his lifetime give his property to his daughter or his daughter''s issue by his own authority but in the case of such an alienation a written instrument shall be considered more reliable.

In giving answer to question No. 14 Kanet Rajputs of Kulu Tehsil stated that the custom governing them was the same as that of Bairagis. That being the case, Ex. D. 2, extract from the Riwaj-i-am of Kulu Tehsil prepared in 1878, is clearly admissible to prove that in the absence of male issue a Kanet Rajput in Kulu Tehsil can during his lifetime give his property to his daughter or his daughter''s issues subject to rebuttal.

At the trial no evidence was examined by the plaintiffs to rebut the presumption arising from the entries in the riwaj-i-am, Ex. D. 2. Evidence was, however, examined by the defendants in support of the custom recorded in the Riwaj-i-am. Exhibit D. 7 shows that on 23rd September 1906, Koulu and Barhtri sons of Nanku, Kanet Rajputs of Mauza Naggar, Kulu Tehsil gifted two plots of land to Mt. Tutin, daughter of Koulu. Mutation No. 1427 in respect of that gift was sanctioned by the Tehsildar on 31st December 1906. There is no indication on the record whether at the time the gift was made there was in existence any reversioner of Koulu and Barhtri. Exhibit D. 6 shows that on 29th June 1920, Shahni Kanet Rajput of Kulu Tehsil gifted his entire land measuring bighas 26-8 to his daughter Mt. Sisi and the gift was allowed to stand although Lachhman and Parsu, reversioners of Shahni objected to the gift in the mutation proceedings. Exhibits D. 8 and D. 9 deal with the custom governing Brahmans of Kulu Tehsil but as it appears from Ex. D. 2 that on the question of custom the custom governing Brahmins of Kulu Tehsil is the custom which governs Kanet Rajputs of that Tehsil, these instances also support the existence of custom set up by the defendants. Exhibit D. 11 is a copy of judgment in civil Appeal No. 773 of 1929 decided by District Judge, Hoshiarpur, on 14th April 1930. In that case the gift made by Hirde Ram, Kanet Rajput of Kulu Tehsil, in favour of his minor daughters, Khemi and Mandasi, was upheld and the suit instituted by Belu, a reversioner of Hirde Ram, challenging that gift was dismissed. To similar effect was the decision in civil suit No. 110 of 1935 decided by Sub-Judge at Kulu on 26th May 1936. As stated above, no evidence has been produced to rebut the presumption arising from the entries in the riwaj-i-am of 1878.

Mr. Daya Kishan than contends that the rule of custom embodied in Ex. D. 2 does not govern gifts of ancestral property. I am unable to allow the contention raised. Counsel concedes that a Kanet Rajput possesses unlimited power to give away his self-acquired property to his daughters and their issue. Indeed, such is the general agricultural custom of the Province. Then it is firmly established that entries in the Rivaj-i-am deal with ancestral property unless it is shown that the entries deal with non-ancestral property. That being so, there is no justification to limit the application of the role of custom contained in Ex. D. 2 to non-ancestral property.

Considering the evidence on the record I feel satisfied that a Kanet Rajput of Kulu Tahsil can make a gift of his property, ancestral or non-ancestral, to his daughters and their issue in the presence of his collaterals.

No other point was pressed in these proceedings.

In the result the appeal fails and is dismissed with costs.