1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A NO. 120 of 2000. Reserved on 30.11.2010. Date of decision : 3.1.2011 Lal Chand ....Appellant Versus Raj Kumar and others ....Respondents. Coram Hon'ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes For the appellant: Mr. K.D. Sood, Advocate. For the respondents: Mr. S.D. Gill, Advocate. ---------------------------------------------------------------------------------------------------- - Kuldip Singh, J The appellant was plaintiff and has come in second appeal against judgment and decree dated 8.2.2000 passed by learned District Judge, Hamirpur in Civil Appeal No. 115 of 1991, reversing judgment, decree dated 31.8.1991, passed by learned Sub Judge, 1st Class (II), Hamirpur in case No. 82 of 1985-17 of 1987. 2. The brief facts of the case are that appellant had filed a suit against Gian Chand and Ram Rakha, both having died during the litigation and now represented by their legal representatives. The appellant had challenged gift deed dated 16.5.1979 executed by Ram Rakha in favour of Gian Chand regarding property more specifically described in the plaint. The gift was challenged on the ground that it was without legal necessity and contrary to agricultural custom of the parties and therefore not binding on the appellant. The _____________ 2 Whether the reporters of the local papers may be allowed to see the Judgment? Yes property covered by the gift was ancestral and therefore gift was not binding on the reversioner. The parties are Ghirth by caste and depend on agriculture for their livelihood and governed by agricultural custom being residents of District Hamirpur which was earlier part of erstwhile District Kangra. According to agricultural custom applicable to the parties no person can dispose of the property without consent of the reversioner. Gian Chand got the gift deed executed by playing fraud with Ram Rakha. 3. The suit was contested by Gian Chand in which he took several preliminary objections such as locus standi, limitation, and collusiveness. It has been stated that parties are not collaterals nor the suit land is ancestral. It has been denied that the parties are governed by agricultural custom, rather parties are governed by Hindu Succession Act, 1956. Gian Chand had rendered service to Ram Rakha, an issueless person. In lieu of service rendered by Gian Chand to Ram Rakha he had executed a gift deed in favour of Gian Chand. In fact Ram Rakha had filed earlier suit for challenging the gift which was dismissed. 4. Ram Rakha vide separate written statement has admitted the claim of appellant. He admitted that the suit land was ancestral and Gian Chand had not rendered any service to Ram Rakha. The replication was filed controverting the stand taken by Gian Chand. 5. On the pleadings of the parties, the following issues were framed: 1. Whether the land in suit is ancestral qua the plaintiff and defendant No.2? OPP 2. Whether the parties are governed by custom in the matter of alienation and succession, if so, what 3 that custom is? …..OPP 3. Whether the plaintiff has locus standi to institute the suit? OPD 4 Whether defendant No.1 had acquired title to the suit land through a valid gift? OPD 5. Whether defendant No.1 had been rendering services to the defendant No.2 and the gift in dispute is in lieu of services? OPD-1 6. Whether the suit is within time OPD 7. Whether the suit is collusive between the plaintiff and defendant No.2? 0PD-1 8. Whether the suit is not maintainable as alleged in preliminary objection No.4? OPD-1. 9. Relief. Issues No. 1 to 3 and 6 were answered in affirmative, issues No. 4,5,7 and 8 were answered in negative and the suit was decreed by learned trial Court on 31.8.1991. The matter was carried in appeal and learned District Judge set aside the judgment, decree dated 31.8.1991 and dismissed the suit, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the District Judge was right in reversing the judgment of the trial Court without disturbing the findings that the property was ancestral and parties were governed by custom and the said custom prohibits the gift of the entire property by the male holder in the presence of collaterals. 2. Whether on a proper construction of the gift deed, it had to be held that the gift was a conditional gift and otherwise also, the reversioner in presence of sisters were entitled to inherit the estate of Ram Rakha. 4 6. I have heard learned counsel for the parties and have also gone through the record. On behalf of the appellant, it has been submitted that the suit property was ancestral in the hands of Ram Rakha. The appellant and Ram Rakha were collaterals. The appellant and Ram Rakha were governed by agricultural custom of Kangra. Ram Rakha could not gift the suit land to Gian Chand. The appellant has right to file the suit under Punjab Custom (power to contest) Act 1920 read with Punjab Limitation (Custom) Act 1920. The gift dated 16.5.1979 is contrary to agricultural custom of the parties. It has been submitted that gift dated 16.5.1979 was conditional and therefore, is liable to be set aside. 7. The learned counsel for the respondents has submitted that suit is collusive. Ram Rakha earlier had challenged the gift dated 16.5.1979 but his suit was dismissed. Thereafter Lal Chand had filed the present suit in collusion with Ram Rakha to challenge the same gift dated 16.5.1979. He has submitted that even if, it is assumed that the parties are governed by agricultural custom and suit property in the hands of Ram Rakha was ancestral, still the suit filed by appellant is not maintainable in as much as two sisters of Ram Rakha are alive and both of them have children. Ram Rakha was issueless and in that case after the death of Ram Rakha his property would not go to the appellant. The gift dated 16.5.1979 is not conditional. 8. It is admitted case of the parties that on 16.5.1979 Ram Rakha vide Ex.DW-4/A had gifted the suit land to Gian Chand. The gift was made in lieu of past services rendered by Gian Chand to Ram Rakha and future services to be rendered by Gian Chand to Ram Rakha. In Ex.DW-4/A, no right of revocation has been kept by donor in his favour. The gift Ex.DW-4/A in favour of Gian Chand is complete. In Gian Singh v. Smt. Basanti 1969 (71) PLR((D) 9 the gift was 5 challenged on the ground that it was conditional gift i.e. in lieu of services. In that gift right of revocation was not reserved. The question before the Court was whether donor has power to revoke the gift. It was held that the donor had no such power. The gift was not conditional and therefore not revocable even under customary law. Gian Chand (supra) case was also from District Hamirpur. 9. In the present case the gift is not conditional nor any power of revocation was kept by the donor. It has also come on record that Ram Rakha had two sisters namely DW-6 Smt. Kalan Devi and Smt. Drompti Devi. Smt. Kalan Devi has four sons and Smt. Drompti Devi has one son. In CMP(M) No.622 of 2000 dated 4.11.2000 the appellant has stated that Ram Rakha had died on 11.9.2000, he was bachelor and was succeeded by adopted son Pankaj Kumar. Section 12 of the Hindu Adoption and Maintenance Act 1956 provides that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption. The gift dated 16.5.1979 was not conditional, therefore estate, if any, of Ram Rakha after his death would devolve on Pankaj Kumar, hence substantial questions of law No.2 is decided against the appellant. 10. According to appellant the landed property covered by gift deed Ex.DW-4/A was ancestral and Ram Rakha could not make a gift of ancestral property in presence of appellant collateral. Ram Rakha has left behind adopted son Pankaj Kumar. It is not the case of the appellant that in presence of Pankaj Kumar the estate of Ram Rakha would devolve on appellant after the death of Ram Rakha, who died on 11.9.2000. 11. In Shiv Dayal and others v. Karam Singh AIR 1959 Punjab 567 the gift of ancestral land in favour of the donor’s brother’s daughter’s was made. A third degree collateral during the life time of 6 donor had filed a suit for declaration that the gift is not binding on him. It was found that on the donor’s death the immediate heir would be his brother after whom it would be brother’s daughters, it would not be a proper exercise of judicial discretion to grant the discretionary relief by way of a declaration to the plaintiff in that suit. 12. Pankaj Kumar is adopted son of Ram Rakha . In addition, Ram Rakha had two sisters Smt. Kalan Devi and Smt. Drompti Devi. Smt. Kalan Devi is having four sons and Smt. Drompti Devi is having one son. In these circumstances even if case of the appellant that he is a reversioner of Ram Rakha is accepted still there is a very very feeble chance of appellant to inherit the property of Ram Rakha after the death. The facts in the present case are very close to the facts of Shiv Dayal case (supra) in which the plaintiff’s case was rejected. In the present case the claim of the appellant is feeble, speculative and depends upon several contingencies. Therefore, appellant is not entitled to discretionary relief of declaration when the chances of appellant to inherit suit property after the death of Ram Rakha are very feeble and remote.. 13. Ram Rakha during his life time had challenged the gift Ex.DW-4/A and his suit was dismissed. There is a substance in the stand of respondents that present suit out of which the appeal has arisen was filed by the appellant in collusion with donor Ram Rakha when he failed in his suit. On the basis of material on record, learned District Judge has recorded a finding that suit filed by the appellant is collusive. The appeal has not been admitted on substantial question of law having bearing on the findings on issue No.7 of collusion returned by learned District Judge. Thus seen from any angle, there is no merit in the appeal and substantial question of law No.1 is decided 7 against the appellant. 14. No other point was urged. 15. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. (Kuldip Singh ) Judge. January 3, 2011. (sks )