IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1909 of 1981 Date of Decision: 9.03.2010 The Punjab State through Collector, Ludhiana. ....... Appellant through Shri Surinder Kapoor, Additional Advocate General. Versus Gram Panchayat, Village Chak Kalan. ....... Respondent through None. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgment and decree dated 22.1.1981 passed by the Additional District & Sessions Judge, Ludhiana (hereinafter described as `the first appellate Court') vide which the appeal of the plaintiff-respondent was accepted and the judgment & decree dated 28.12.1978 of the Senior Subordinate Judge, Ludhiana (referred to hereinafter as `the trial Court') were set aside. Briefly stated the facts of the case are that the respondent, which is a Gram Panchayat of village Chak Kalan, Tehsil & District Ludhiana, had filed a suit for possession of the agricultural land fully described in the plaint (for brevity, `the suit property'). It was averred that R.S.A.No.1909 of 1981 -2- .... on 23.8.1902, the proprietors of the village had orally gifted the suit property in favour of Mohan Dass, Chela Narain Dass; that mutation no.701 was accordingly sanctioned in that regard by the revenue authorities on 31.12.1903; that after the death of Mohan Dass, the suit property passed on to his Chela Mast Ram, Faqir Bairagi and mutation no.1307 dated 25.2.1938 was sanctioned in his favour; that Mast Ram died and thereafter the suit property was mutated in favour of the State of Punjab on 17.6.1967 on the ground that he had not left any Chela or any other member of his fraternity and, therefore, the suit property stood escheated. On the basis of these averments, the respondent had claimed the suit property by pleading that instead of going to the State of Punjab, the same should have reverted back to it. The appellant had contested the suit and pleaded that the suit property had rightly escheated to it because there was no lineal decendent of Mast Ram. It was further pleaded that there was no other Chela, who could have taken over the suit property. The parties went to trial on the following issues:- 1. Whether the suit land was gifted by the village proprietors to Mohan Dass? 2. Whether the suit land is not liable to escheat as alleged? 3. Relief. After appraisal of the evidence on record, the trial Court concluded that the gift was irrevocable as it had been acted upon and that the case was covered under Section 29 of the Hindu Succession Act,1956 R.S.A.No.1909 of 1981 -3- .... (for short, `the Act') which held the field in the year 1967 when the death of Mast Ram took place. It, accordingly, dismissed the suit. In appeal, the findings of the trial Court were reversed and the first appellate Court held that the Act does not apply to the present case as the suit property had been gifted to Mohan Dass under the customary law. It was further held that Section 4 of the Act did not abrogate the doctrine of reversion in this case. The judgment and decree of the trial Court were, consequently, set aside and the appeal of the respondent was accepted. This has given rise to the instant appeal by the State of Punjab. I have heard the learned counsel for the appellant and have gone through the whole record. It may be mentioned here that no one had appeared on behalf of the respondent. The question of law, which arise for consideration in this appeal is as to whether Section 4 of the Act abrogates the doctrine of reversion? To decide the aforesaid question, it is essential to travel to the terms of the gift because it is a settled proposition of law that if the gift is only for the benefit of the donee and his decendents, then the rule of reversion shall apply. The rule of reversion to the donor is not a rule of succession, but a rule governing alienations and the customary gift is viewed as a settlement for the benefit only of the donee and his decendents when it is made to a relation. In such a case, the doctrine of reversion is not abrogated by Section 4 of the Act. But where the gift is an absolute one, even though made in lieu of services, then it is only the donee and his R.S.A.No.1909 of 1981 -4- .... decendants who are to benefit therefrom, and in that eventuality, the property will not revert back to the donor and such a gift cannot be termed to be a customary gift and the doctrine of reversion would not apply. It is, therefore, imperative to look at the terms of the gift and the evidence on record to understand the nature of the gift made to the original donee -Mohan Dass. A perusal of the documents on record reveals that the gift was duly entered into the same in the year 1902. Exhibit P13 is the mutation to that effect and English translation of the report of Patwari as verified by Girdawar which is reflected therein, reads as under:- “30th August,1902 Sir, Today in village Chak, Rulia, Bishan sons of Smt.Devan, Bansi, Rulia son of Kalu, Bishna son of Smt.Devan, Uttam adopted son of Khushala --- Hadass, Kahan Singh, Numberdar, Gurditta son of Attru,Tohlu son of Daria, -- son of Himatt etc.owners of Thola Hari Cxhand, Mehtaba etc. owners of Thola Nanak Patti Chachu of entire village, Khazan, Bhuta, Wadhawa, Ganesha, Nathal son of Kanhan, Nathal son of Soma, owners of Thola Lalu, Makku son of Bir Singh, Fatta son of Bhoipa, Albela son of Gulab, Prema son of Nihala, Mohan son of Nathu, Daria Singh son of Gandhi, Gopala Head Numberdar, gumukh First Numberdar, Wariyama son of Jota, Nagahia son of Buta, Atyra son of Dayala, Hira son of R.S.A.No.1909 of 1981 -5- .... Jiwan,owners of Thola Rattu have given land measuring 34 Bigha Kham as per their present ownership willingly for the purpose of incurring the expenses of Dera and Dharamshala till the existence of Dera. Mohan Dass Sadh verified this fact in the presence of Numberdars of the village. On 30th August,1903 (?), the general public of the village also verified this fact – the entry was made in Girdawari and it is continued for the last four years. But, the land was falling short. Now appropriate orders may be passed regarding mutation in respect of land measuring 34 Bhighas Kham as per the measurement made at the spot. Sd/- Kahan Singh Numberdar (In Urdu) Sd/- Ralla Ram, Patwari of the Village (In Urdu) Entries are correct as per the record. The land measuring 28 Bighas has already been entered under the possession of Mohan Dass in the Jamabandi for the year 1901-02. Now the total area has come out to be 34 Bighas. Sd/- Girdawar Dt. 9th October,1903. Kahan Singh Numberdar, Rupla, ....., Sarupa, Sardara, sukha, Kishan Dass, Khazan Singh, Bishna, Khushi Ram, Molhar, Bhopa, Harnama, Rolu, Nikku, Didara, ----, Tohlu, co-sharers in person and on behalf of other persons present in the meeting, R.S.A.No.1909 of 1981 -6- .... identified by Kahan Singh, Numberdar, verified the event regarding gift of land bearing Khasra No.803 Min 13-4, 1790 Min 20-16, plots 2, measuring 34-0 without well and shamlat. Therefore, the entry in respect of gift in the name of Mohan Dass be made. Sd/- Revenue Officer of Halqa (In Urdu) dt. 31.12.1902.” Subsequently, after the death of Mohan Dass, the aforesaid property devolved upon Mast Ram, his Chela and a mutation to that effect was entered in the year 1935. Exhibit P14 is that mutation and the English translation of the report of Patwari and the orders of the other revenue authorities, which are in Urdu, reads as under:- “Sir, Mohan Dass, owner in possession has died. Mast Ram has presented an application claiming that he is the Chela of Mohan Dass. The application dated 2.11.1935 of the residents of village is enclosed herewith. Jiwa Singh son of Kishan Chand etc. say that this land should be entered in the name of gurudwara because he (Mast Ram) is not a Chela. Therefore, the event having been entered, is presented for appropriate order. SD/- Patwari(In Urdu) dt. 3.11.35. S.Amar Singh – on behalf of owners of the village and Mast R.S.A.No.1909 of 1981 -7- .... Ram identified by Rattan Singh, Amar Singh, Numberdar are present. Mast Ram states that he is Chela of deceased Sadh and as such he is his legal heir. But, a copy of mutation dated 25.3.34 has been presented against him, in which he has been mentioned as the heir at Mauza Chamena, Tehsil Jagrao. S.Wazir Singh, Advocate states that he can be a successor at this place. Put up. Sd/- ACII Dt.18.1.36 Mutation No.1307 relating to village Chak. Today, this mutation has been presented before me in the general meeting. Mast Ram Chela of deceased Mohan Dass, Bairagi, identified by Narain Singh, Numerdar, Bhattian has verified the event regarding death of Mohan Dass. He also states that he was appointed as Chela about 27 years back and the ceremonies regarding appointment of Chela were held at Chak. Many persons of Chak were present there. Hira son of Dayala, caste Jat Sikha, resident of Chak, aged 75 years also verifies the statement of Mast Ram in the general meeting and states that Mohan Dass had appointed him as his Chela in the presence of about 20-30 Sadhs. Xxxxxx All the religious ceremonies regarding appointment of Chela R.S.A.No.1909 of 1981 -8- .... were performed – other Sadhs had also acknowledged him as Chela. Even if Mast Ram is not considered as Chela even then the property cannot be transferred to the Zimidars---. Therefore, in the light of the above facts, the mutation regarding succession of Mohan Dass Bairagi, owner in possession stands sanctioned in favour of his Chela Mast Ram, in its present form. Dt.25.2.38 Sd/- .....torn.... Appeal No.66 dated 7.6.38 Chak ......Singh etc........ Mast ram Appeal stands dismissed with cost. Sd/- Dt.7.6.38” After the death of Mast Ram in the year 1964, the land in question was escheated to the Provincial Government as no one was found to have been appointed as his Chela. He was also not survived by any male or female heir. Exhibit P6 is the extract of the register of mutations depicting the aforesaid fact. The English translation of the report of Girdawar, the orders of Assistant Collector IInd Grade and Assistant Collector Ist Grade, which are in Urdu and Punjabi, reads as under:- “Sir, It is submitted that the event regarding succession of deceased Mast Ram having been entered as per Badar no.12 of Girdawar verified from the Pedigree Table, the same is being presented for appropriate order. R.S.A.No.1909 of 1981 -9- .... Sd/- Ujagar Singh, Girdawar (In Urdu) Dt.2.2.65 Sh.Bhagat Singh, Sarpanch of the village identified by Major Singh, Numberdar of village Changan stated in the general meeting of Chak that Mast Ram Chela of Mohan Dass has died issueless about two years back without appointing any Chela. He has no heir and that Panchayat Deh is the legal heir of his property. Sh.Puran Singh etc. have filed an application on 31.8.65 chaliming that they are the heirs of Sh.Mast Ram. Put up in their presence. Dt.16.12.66 Sd/- ACII This mutation regarding succession of Sh.Mast Ram, deceased has been presented in the general meeting at Changan in the presence of Sh. Ujagar Singh, Numberdar of Chak, Amar Singh, Numberdar Changan and Chand Singh, Member Panchayat, Changan. This fact has been verified that Mast Ram deceased had died in the year 1964. The persons present in the meeting verify Gram Panchayat as the heir of this property because this property was gifted to Baba by the villagers, but Sh.Mohinder Singh etc. have filed an application against it. They claim that Puran Singh, Bhajan Singh and Mohinder Singh are the legal heirs, but they did not come present. The mutation is disputed one. Therefore, it may be presented before the SDO-cum-Assistant Collector, ACG-II. R.S.A.No.1909 of 1981 -10- .... Dt.2.2.67 Sd/- ACII xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx The Panchayat of the village cannot prove the fact that this land was gifted by any aged person or father of them and when the same was gifted. It is also proved from the statement of the parties that Mast Ram has got no legal heir. In these circumstances, section 29 of the Hindu Succession Act apply. Therefore, the inheritance of Mast Ram deceased is sanctioned in favour of the Provincial Govt. Sd/- Randhir Singh (In Punjabi) Randhir Singh AC I Camp at Dabra 17.6.67” A reading of the above reproduced various orders including the one dated 17.6.1967 passed by the Assistant Collector Ist Grade shows that the Gram Panchayat of the village was unable to establish the name of the donor. Admittedly, the gift was oral and, therefore, there is no evidence on record to establish its terms and the only evidence which is available is in the shape of the afore-quoted revenue entries which reveal the nature of the gift made in favour of Mohan Dass. These entries clearly establish that the gift was irrevocable and was acted upon by Mohan Dass, who was succeeded by his Chela Mast Ram. There being no male lineal R.S.A.No.1909 of 1981 -11- .... decendent, the suit property would not, under any circumstance, revert back to the original donor and more-so when the name of the donor was not established in the year 1967 itself when the mutation was entered in the name of the Provincial Government. In any eventuality, the observations of a learned Single Judge of this Court made in Mst.Asso Versus Tara Singh and others, 1969 P.L.R. 903 while dealing with reversionary rights in the case of a gift, are clearly attracted to the facts of the instant case. The same are extracted below:- “Rule of reversion to the donor 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 descendents when it is made to a relation. The doctrine of reversion is not abrogated by Section 4 of the Hindu Succession Act. But where the gift is an absolute one, even though made in lieu of services, it is only the donee and his descendants who are to benefit therefrom, and the intention that the land shall revert to the donor's line is excluded. Such a gift is not a customary gift and the doctrine of reversion would not apply.” For the sake of reference,the following observations made by a Full Bench of this Court in Pritam Singh Versus The Assistant Controller of Estate Duty, Patiala, 1976 C.L.J.(Civil) 193 with regard to the scope and effect of Sections 2 and 4 of the Act, are quoted:- “32. The legal position, therefore, that emerges is that prior to R.S.A.No.1909 of 1981 -12- .... the passing of the Hindu Succession Act,1956, where the parties were Hindus, the Hindu law would apply in the first instance in the matters regarding succession, and whosoever asserted a custom at variance with Hindu law, must prove it & if he failed to do so, then the rule of decision must be personal law of the parties. The Hindu Succession Act came into force from June 17,1956, and its section 4 abrogated any text rule or interpretation of Hindu law or any custom or usage part of that law in force immediately before the commencement of this Act with respect to any matters for which provision is made in this Act. By virtue of this section 4, the Punjab agricultural custom so far as it was applicable to Hindus in matters of succession has been completely abrogated and now no Hindu is governed by rules of customary law in matters of succession to property. After the passing of the Hindu Succession Act, all the Hindus, as defined in section 2 of that Act, in matters of succession are governed by Hindu law and the provisions of the Hindu Succession Act,1956. The Hindu Succession Act has not abolished joint Hindu family and the joint Hindu family property and it does not interfere with the special rights of those who are members of a Mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the Act. After the coming into force of this Act, all Hindus who are previously governed by rules of customary law in matters of R.S.A.No.1909 of 1981 -13- .... succession like the other Hindus, form joint and undivided Hindu families including Mitakshara coparcenary, and the sons, grand sons and great grandsons, of the holder of the joint or coparcenary property for the time being, acquire interest therein by birth.” In view of the above, it has to be held that even though, Section 4 of the Act does not abrogate reversion, but if the gift is irrevocable and an absolute one and even made in lieu of services of a donee, who is not survived by a male descendent, then it is only the donee and his descendents, who are to benefit therefrom and the doctrine of reversion will not apply. Besides, the respondents have not proved any such personal law at variance with the provisions of the Act to stake a rightful claim to the property. Hence, in view of Section 29 of the Act, the property had to be escheated to the appellants. The question of law noticed hereinabove is, therefore, answered in these terms. In so far as the instant case is concerned, since there was no successor to the suit property which was gifted by the donor to Mohan Dass, who was succeeded by his Chela Mast Ram, who died leaving behind no Chela or heir, by virtue of Section 29 of the Act, the suit property was correctly escheated to the Provincial government in the year 1967. The judgment and decree of the first appellate Court is, therefore, not sustainable in the eyes of law and have to be set aside. Ordered accordingly. R.S.A.No.1909 of 1981 -14- .... In the result, the judgment & decree of the trial Court are restored and the appeal is allowed in these terms. March 9,2010 ( Mahesh Grover ) “SCM” Judge