IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1530 of 1984 Date of Decision:31.5.2011 Bhupinder Singh and another ...Appellants Versus Sohan Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Ms.Tina Garg, Advocate for Mr.Vikas Behl, Advocate, for the appellants. Mr.Jasbir Singh Chahal, Advocate, for the respondents. -.- JITENDRA CHAUHAN, J. The present appeal is directed against the judgment and decree dated 2.5.1984 passed by the learned Additional District Judge, Jalandhar whereby the judgment and decree dated 10.2.1982 passed by the learned trial Court was set aside. For better understanding and appreciation of the facts, the pedigree table is reproduced as under:- Basant Singh | _________________________________ | | Bhagat Singh(deceased donor) Gurnam Singh | ______________________________________ | | | Malkiat Singh Sohan Singh Rajinder Kaur (Defendant No.1) (Plaintiff) (defendant No.2.) | | | Gurpreet | _____________________________________________ | | | Bhupinder Singh Tejinder Singh Rupinder Singh (Defendant No.3) (minor defendant No.4) (Donee) (Donee) 1 Sohan Singh, plaintiff, filed a suit alleging that Bhagat Singh was the Manager of the Joint Hindu Family consisting of the plaintiff and defendant No.1 and the suit land was the Joint Hindu Family property. After the death of Bhagat Singh, the plaintiff and defendant Nos.1, 3 and 4 became coparceners in the suit land. But after some time, defendant Nos. 3 and 4, who are sons of defendant No.1, started declaring that the deceased Bhagat Singh executed a gift-deed on 28.11.1968 in their favour and therefore, the plaintiffs had no right over the suit land. The plaintiff further averred in the plaint that according to Hindu Law, no-coparcener/karta can alienate the Hindu Undivided Family property by way of gift or sale without legal necessity except with the consent of the other coparceners. The plaintiff also averred that the defendants in connivance with each other brought on record an invalid gift-deed as the same did not bear the signatures of the executor. Moreover, the deceased was not competent to execute the gift-deed. It was further averred that if the claim of the plaintiff is not proved then in the circumstance, he is entitled to possession of the suit land to the extent of 1/6 share being the legal heir of Bhagat Singh, the deceased. However, the defendants refused to accept the claim of the plaintiff, hence the present suit was filed. The suit was contested by the defendants on the ground that the deceased Bhagat Singh executed the gift-deed in favour of defendant Nos. 3 and 4 out of love and affection as the deceased Bhagat Singh had been residing with them. It was also pleaded that the plaintiff and defendants never formed a joint hindu family and the land in dispute is not ancestral property. They are governed by the custom prevalent in Jullundur District being jats by caste. 2 On the pleadings of the parties, following issues were framed by the learned trial Court, which read as under:- 1. Whether the plaintiff and the defendants formed a Joint Hindu Family and the land in dispute is Joint Hindu Property or co-parcenary property of the parties? OPP 2. Whether Bhagat Singh had executed a valid gift deed dated 28.11.1968 in favour of defenants No. 3 and 4? OPD 3. If issue No.2 is proved whether gift is null and void and not binding on the rights of the plaintiff? OPP 4. Whether the plaintiff has no locus-standi to file the suit? OPD 5. Whether the parties are governed by custom, if so, what that custom is? OPD 6. Whether the suit in the present form is not maintainable? OPD 7. Whether the suit is not within time? OPD 8. Whether the defendants have become the owners of the land in dispute by adverse possession? OPD 9. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD. 10. Relief. The learned trial Court dismissed the suit of the plaintiff vide judgment and decree dated 10.2.1982. Feeling aggrieved against the judgment and decree of the learned trial Court, the plaintiff/appellant preferred an appeal, which was accepted by the learned Additional District Judge, Jalandhar vide judgment 3 and decree dated 2.5.1984 decreeing the suit of Sohan Singh, plaintiff, with regard to possession of 4/9th share in the land. Bhupinder singh and Tejinder Singh, the donees, filed RSA No.1530 of 1984, which was admitted on 11.7.1984 by this Court. Learned counsel for the defendants/appellants has submitted that the finding of the lower appellate court to the effect that the parties are not governed by customary law is illegal and against the law. He has submitted that the defendants/appellants specifically mentioned in the written statement that the parties are governed by custom and according to their custom, a proprietor can alienate his property as he likes. The learned trial Court rightly recorded the finding on this aspect. It has also been submitted that the alleged gift-deed, Exhibit D.2, was validly executed in favour of the appellants by the deceased, Bhagat Singh, which is evident from the findings of the learned trial Court. He has also submitted that the deceased Bhag Singh executed the gift-deed, Exhibit D.2, out of love and affection. Learned counsel has also submitted that there is nothing on record which suggests that the plaintiff and the defendants never formed a joint hindu family and the land in dispute is not ancestral property. Lastly, it has been submitted that the present suit is barred by limitation as the suit in the present case has been filed after a period of about 10 years. On the other hand, learned counsel for the plaintiff/respondent has submitted that the deceased Bhagat Singh never executed any gift-deed, in favour of the defendants. He has further submitted that the gift-deed, on which the appellants relied upon, was not a valid document as the same was fabricated one. He has further submitted that the property in dispute was a Joint Hindu Family property and therefore, the deceased Bhagat Singh 4 cannot alienate the same in favour of the defendants without legal necessity. The plaintiffs/respondent also sought alternative relief that if his claim is not accepted then he is entitled to possession of 1/2 share of land in dispute. I have heard the learned counsel for the parties and perused the record. The whole controversy revolves around the following issues:- (i) Whether the parties are governed by customary law or not? (ii) Whether the suit is barred by limitation? To deal with issue No.1, it is relevant to quote Rattigans Customary Law Edition XIV of 1966, which is as under:- “(1) Whether the tribe exclusively, or primarily follows agriculture, if it follows other occupation, whether those occupations are their main occupation? (2) Whether it forms a compact village community of Patti or whether it lives in a Heterogeneous village” (3) Whether the tribe was settled at the time of the foundation of the village? (4) Whether they cultivate themselves? (5) Whether they held a large or small portion of the village area? (6) Whether they furnish ? Lambardar.” Admittedly, the parties belong to village Dosanjh Kalan, District Jullundur. It has come in the evidence that about 80% of the population of the village is agriculturists and their main livelihood depends on the agriculture pursuits. The learned trial Court has rightly presumed that the Jats of village Dosanjh Kalan are governed by the agriculture 5 custom. Then, Rawaje-Am of District Jullunder shows that the parties are governed by custom. Sir Rattigan in his book the Customary Law of Punjab noted that the custom in this province shall prevail. Besides this, Section 5 of the Punjab laws Act also states as under:- “In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts or any religious usages shall be:- (a) Any custom applicable to the parties concerned which is not contrary to justice, equity of good conscious, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority. (b) The Mohammadan Law in cases where the parties are Mohammadan and Hindu Law in cases where the parties are Hindus except in so far as such law has been altered or abolished by Legislative Enactment or is opposed to provisions of this act or has been modified by such custom as is above referred to.” A gift-deed under the customary law can be challenged under the Punjab Act No.11 of 1920 and not in any other manner. Section 7 of the Punjab Act No.11 of 1920 is as under:- “Notwithstanding anything to the contrary, contained in Section 5 of Punjab Laws Act, 1972, no person shall contest any alienation of non-ancestral or ancestral immovable property or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom.” 6 From the documents on record, it is proved that Bhagat Singh executed and registered a gift-deed, Ex.D.2, in favour of defendant Nos. 3 and 4 i.e. the appellants. It has come in evidence that Sohan Singh did not constitute the Joint Hindu Family with his father Bhagat Singh because he was residing separately and was not having good relations with his father. Pritam Singh, the Document Expert, DW1, proved the thumb impression on the gift-deed, Exhibit D.2, and the mortgage-deed dated 27.11.1968 executed by Bhagat Singh, are of one and the same person. The comparison of finger impressions is a complete science and this Court has to believe the statement of document expert in this respect unless and until it is rebutted by the opposite party. There is no rebuttal on this point by producing another document expert to falsify the statement of DW1 Pritam Singh. From the documents on record, it is proved that the parties are governed by the customary law and Bhagat Singh had every right to gift the property in question in favour of the appellants. Now, this Court is dealing with the question as to whether the suit is barred by limitation or not. This is a suit filed by the plaintiff challenging the gift-deed, Ex.D.2. The defendants/donees have proved that they are governed by custom in the matter of alienation. To determine the limitation, the pleadings of the parties are to be kept in view. The plaintiff alleged that the parties are governed by the Hindu Law and the gifted land is their joint hindu family co-parcenary property. On the other hand, the defendants alleged that the parties are governed by the customary law. In view of the above discussion, this Court comes to the conclusion that the parties are governed by the customary law, under which limitation period for challenging the gift-deed, Exhibit D.2, would be six years from the date of possession. The gift-deed, Ex.D.2, was executed on 28.11.1968, 7 whereas the suit was filed on 22.10.1979. Apparently, the suit is barred by limitation. The judgment and decree of the first appellate court is perverse and are liable to be reversed. For the reasons mentioned above, the present appeal is allowed. The judgment and decree dated 2.5.1984 passed by the learned first appellate court is set aside and judgment and decree of the learned trial Court, dismissing the suit of the plaintiff, is maintained. 31.5.2011 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes / No 8