IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 314 of 2000. Reserved on : 6.5.2009. Decided on : 5.6.2009. __________________________________________________ Shri Ashwani Kumar and others. … Appellants. Versus Shri Rajinder Kumar and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. Ajay Kumar Sood, Advocate. For the Respondents : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Hamirpur in Civil Appeal No. 57 of 1992 dated 17.4.2000. Brief facts necessary for adjudication of this regular second appeal are that the predecessor in interest of the appellants-plaintiffs, namely; Shri Narain Dass had filed a suit in the court of learned Sub Judge Ist Class, Hamirpur for possession of land detailed in the plaint against the respondents-defendants (hereinafter referred to as the defendants for convenience sake). It is averred in the plaint that the suit land was entered in the 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 ownership of Shri Chandu Lal deceased as per revenue record and was inherited by him from Shri Bhag Singh, Garka and Ganga in equal shares and was ancestral qua the plaintiff and deceased Shri Chandu Lal within two degrees. Shri Chandu Lal had executed registered gift deed dated 29.9.1987 qua the suit land in favour of defendants No. 1 & 2 fraudulently. The parties are governed by the Kangra customary law according to which the owner of the land could not alienate the same by way of gift. The defendants have contested the suit. They have filed written statement. They have averred that they were in possession of the suit land and the suit land is not ancestral rather it was self-acquired property and the last male holder was competent to transfer the same. The learned Sub Judge decreed the suit on 13.3.1992. The defendants preferred an appeal before the learned District Judge, Hamirpur. He allowed the same on 17.4.2000. This regular second appeal is directed against the judgment and decree dated 17.4.2000. It was admitted on the following substantial question of law: “Whether the gift deed Ext. D-1 executed by one Chandu Ram brother of the appellant-plaintiff Narain Dass in favour of respondents-defendants is valid or legal and not against the Kangra Customary Law within which the parties are governed? Mr. Ajay Kumar Sood has supported the judgment and decree passed by the learned trial Court. He then argued that the defendants could not claim the title of the suit by way of Ext. D- 1 which according to him was against the spirit of law and also against the spirit of Kangra Customary Law. 3 Mr. Rajnish K. Lal has supported the judgment and decree passed by the learned First Appellate Court. I have heard the learned counsel for the parties and have perused the record carefully. A bare perusal of pedigree table i.e. copy of Shajra Nasab Tika Dadoh reveals that Shri Bhag Singh had six sons, namely; Ganga, Chandu, Surjan, Shankar, Narain Dass and Durga. Narain Dass had two sons, namely; Om Parkash and Ramesh. Durga had also two sons, namely; Rajinder and Kuldip. It appears from the revenue record i.e. Ext. P-1 that the property had come in his hand after the death of his brother. The learned trial Court has traced the property on the basis of Ext. P-10 to Bhag Singh. Accordingly, he has held that the property was ancestral. However, from the combined reading of Ext. P-1, Ext. P-9 and Ext. P-10, it emerges that the property is not ancestral. Shri Chandu Lal had gifted this property in favour of defendants by way of gift deed dated 29.9.1987. The gift deed has been proved in accordance with law. The matter is also required to be looked into as per Sections 4 and 30 of the Hindu Succession Act, 1956. Shri Chandu Lal was competent to transfer the land by way of gift to the defendants. The interpretation of Sections 4 and 30 of the Hindu Succession Act had fallen for consideration before the Division Bench of this Court in Tek Chand and others versus Mool Raj and others, 1997 (2) Hindu Law Reporter 306. Their Lordships have held that Sections 4 and 30 had the effect of abrogating the customary law. Their Lordships have held as under: 4 “In the light of the aforesaid rulings, if the provisions of section 30 of the Hindu Succession Act are looked into, it is clear that the legislature had intended and brought about a change in the right of a male member of Hindu Mitakshara coparcenary viz-a-viz disposition of property by Will or other testament. The language is so specific that a male Hindu in a Mitakshra coparcenary can dispose of his interest in the coparcenary property by a Will or other testamentary disposition notwithstanding anything contained in the Act or any other law for the time being in force. If a member of Mitakshara coparcenary can dispose of his interest by a Will, a fortiori, the last male holder who has no other coparcener to share the property with him, is entitled to dispose of the same by a testament. In fact the Supreme Court has held clearly in Smt. Dipo’s case that the character of the property in the hands of a such last male holder is non-ancestral and hence the restriction imposed by the customary law against alienation of ancestral property will not apply to such non-ancestral property. Consequently, the provisions of section 30 are automatically applicable to such male Hindu.” Similarly, this question had fallen for consideration before the Hon’ble Apex Court in Smt. Manshan and others versus Tej Ram and others, AIR 1980 Supreme Court 558. Their Lordships have held as under: “One Nritya Choudhary indisputably governed by the general Punjab custom was the last male holder of certain agricultural land, Abadi and a house. On 9.8.1946 he gifted his property to his two daughters, Manshan and Janki. Manshan is appellant No.1 and the heirs of Janki are the other appellants in this appeal. On 5 the 17th December, 1947 a suit was filed by one Bhagat Ram, father of respondents 1 to 3, a collateral of Chaudhary for a declaration that the properties were ancestral in the hands of Chaudhary and the gift made by him in favour of his daughters could not ensure beyond his lifetime. A declaratory decree to that effect was sought for. On the 7th of March, 1950 a compromise decree was made in that suit declaring that 27/39th share of the land in dispute would go to the next reversioner of Chaudhary and the remaining 12/39th share of the land, the Abadi and the house were left out of the declaratory decree. In respect of the latter property the suit was dismissed by compromise. The Hindu Succession Act, hereinafter called the Act, came into force on and from the 17th of June, 1956. Chaudhary died on the 18th of October, 1957. Bhagat Ram’s heirs thereafter filed the present suit giving rise to this appeal for claiming the land of Chaudhary in respect of which a declaratory decree had been made in favour of Bhagat Ram. The stand taken on behalf of the appellants was that after coming into force of the Hindu Succession Act the daughters in supersession of the custom prevalent in Punjab became the preferential heirs of Chaudhary and hence on his death they became entitled to the property in question. They succeeded before the trial Court as also before the First Appellate Court. They however lost in the High Court. The High Court allowed the second appeal and it is not quite clear from the judgment of the Division Bench as to on what basis the appeal was allowed. The argument put forward on behalf of the respondents in the High Court with reference to Section 14 of the Hindu Succession Act was wholly misplaced. There was no question of applying either sub section (1) or sub sec. (2) of Section 14 of the said Act. Here the 6 simple question which had to be answered was as to who was the heir of Chaudhary under the Hindu Succession Act on the date of his death. The property will revert to him or her. Reading Sections 4 and 8 of the Act, together it is clear to us that on the date of death of Chaudhary, in supersession of the prevalent custom, his daughters became the preferential heirs and were entitled to inherit his property. Chaudhary might have remained a life owner according to the custom. But the portion of the custom which prevented the daughters from inheriting got superseded by the provisions of the Act and hence Bhagat Ram’s heirs were no longer entitled to succeed to the property of Chaudhary in the year 1957. The effect of the declaratory decree passed in the year 1950, it is plain, was merely to declare that whosoever would be the next reversioner to the estate of Chaudhary at the time of his death would get the property in respect of which the declaratory decree was made and not necessarily the person in whose favour the declaratory decree was passed.” The gift deed dated 29.9.1987 has been executed by Shri Chandu Lal, who was looked-after by the defendants. Shri Chandu Lal was issueless. He used to reside with the defendants. The learned First Appellate Court has correctly appreciated documentary and ocular evidence. It has come to the right conclusion that the suit property was not ancestral, however, the learned District Judge has omitted to take into consideration Sections 4 and 30 of the Hindu Succession Act, 1956, as discussed hereinabove. 7 Accordingly, in view of the observations made hereinabove, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. June 5, 2009. (cr)