JUDGMENT
S.S. Sudhalkar, J.
1. Plaintiffs Nos. 2 and 3 viz. Shrimati Ramrati and Shrimati Anguri are the daughters of respondent No. 2 Ranjit son of Neta. Respondent No. 2 gifted agricultural land measuring 44K-17M situated at village Jai Jaiwanti, Tehsil Jind by way of registered gift deed dated 19-3-66 in favour of respondent No. 1. He also executed another gift deed on 21-7-66 and gifted agricultural land measuring 202K-7M in favour of respondent No. 1. After the gift deeds were registered, respondent No. 1 got mutations Nos. 183 dated 23-4-66 and 192 of 1966 sanctioned in his favour. The appellants contends that the original plaintiff-appellant No. 1 (Kanshi son of Tuhia) is the son of the real brother of father of Ranjit (respondent No. 2). They also contend that appellant Nos. 2 and 3 are daughters of Ranjit and will inherit his property on his death, being his reversioners. It is the further contention of appellants that the property which is alleged to have been gifted is not the self-acquired property of respondent No. 2 and that it is inherited by him from their common ancestors and therefore, the plaintiffs have right over the said property along with respondent No. 2. They also contended that the gift deeds are null and void qua the rights of inheritance of the appellants and other reversioners. The appellants also contended that they are Jats by caste and do cultivation work, reside in the village, perform kargwa and follow the customary laws of Punjab and Haryana and according to the custom, no person has right to alienate the ancestral property of anyone without necessity. They also contend that such transfer is void and ineffective qua the rights of the appellants and other reversioners. They also contend that the gift deeds were never acted upon and these have been obtained fraudulently and are fictitious and have no existence in the eye of law. They also contend that the donee has never got possession of the suit land, nor is he in possession of the same and that the plaintiffs are in possession of the suit land and, therefore, the gifts even if so exist, are illegal under the customary law which is applicable to the parties. It is also contended that respondent No. 2 had come for getting the gift deeds in favour of his daughters i.e. appellants Nos. 2 and 3 by asking defendant No. 1 to accept the gift deeds on behalf of the plaintiffs Nos. 2 and 3 but defendant No. 1 fraudulently got the gift deeds executed in his favour. They also contend that respondent No. 1 is Bharjja (sister’s son) of respondent No. 2.
2. The prayer of plaintiff-appellants is that the impugned gift deeds be declared as void and ineffective qua the rights of the plaintiffs and other reversioners and in case, respondent No. 2, has made any other gift of aforesaid property or any part thereof, the same may also be declared illegal on the above grounds so that it may not effect the rights of plaintiffs and other reversioners. It is further contended that respondent No. 1 was threatening to sell the said property on the basis of gift deeds and mutation in his favour and that the respondents have refused to admit the rights of the plaintiffs two days prior to the filing of the suit.
3. Defendant-respondent No. 2 filed the written statement practically admitting the contentions of the plaintiffs. He has stated that he has not gifted any property and the gift deeds were got written fraudulently. He has contended that he does not know about the mutation and he has denied the contentions of para 6 of the pleadings in which it is stated that the defendants have refused to admit the rights of the plaintiff two days prior to the filing of the suit. He admitted rest of the averments made in the plaint.
4. Respondent No. 1 is the contesting respondent. He was defendant No. 1 in the trial Court. As per his written statement, the plaintiffs Nos. 2 and 3 being females have no right under custom to challenge alienation by males and that the suit on their behalf is wholly incompetent and is liable to be dismissed on this short ground. He has stated that plaintiff No. 1 in the presence of the daughters have no right of succession. Moreover, it is his contention that he is a preferential heir to the plaintiff No. 1 and the suit is purely speculative. He has contended that the gift made in his favour is in lieu of services rendered by him; and that the cultivation ofland is protected under the custom. He has further stated that in Jind district there is no custom prohibiting the making of a gift by a proprietor in favour of a near relation that the custom as alleged by the plaintiffs is not admitted and he has also denied that the parties are governed by custom. It is also contended that the suit land is not ancestral. On merits, it is contended that the gift was made by registered deeds and the recital of delivering the possession was made in the deeds and, therefore, they were valid; that the defendant No. 2 also appeared before the mutation officer and admitted the gift and delivering of possession and, therefore, mutations were rightly sanctioned; that the plaintiffs No. 2 and 3 are daughters of Ranjit but under customs they have no right to contest the alienation made by Ranjit, It is also contended that the suit property was not ancestral qua plaintiffs. It is further contended that the plaintiffs have no right to challenge the gifts on the basis of fraud and the particulars of fraud are not mentioned. He has also contended that defendant No. 1 had no right to accept the gift on behalf of plaintiffs Nos. 2 and 3 as alleged in the plaint.
5. The trial Court dismissed the suit. When the matter came up in appeal before the learned Additional District Judge, Jind, he remanded the matter and directed that proper findings be given on issues Nos. 3 and 4. After the report of the learned trial Court was received, he heard the appeal on merits and ultimately dismissed the appeal. The plaintiffs then filed this second appeal before this Court. During the pendency of this appeal, Kanshi Ram plaintiff No. 1 died and an Civil Misc. Application No. 2143 of 1976 was filed by the LRs along with an application under Section 5 of the Limitation Act for condonation of delay. Another CM No. 2503 of 1976 was filed by one Des Raj with the plea that he is the nearest collateral of Ranjit respondent and thus was entitled to be impleaded as an appellant in place of Kanshi Ram-deceased. Both these applications were contested. It was held by this Court vide its order dated 27-1-1982 that Des Raj was not entitled to be brought on record of this appeal in place of Kanshi Ram-deceased and it was also held that there was no ground to condone the delay in filing CM 2143 of 1976 and hence the application was dismissed. On the same day, this Court dismissed this appeal holding that the appeal of Kanshi Ram had abated and that appellants Nos. 2 and 3 though are daughters of Ranjit but they have no locus standi to challenge the gift in question. The appellants filed Civil Appeals No. 1460 to 1462 of 1986 in the Apex Court. The order of this Court was set aside and it was held by the Apex Court that the question to be considered was whether the suit which was filed by the deceased was representative in character and, therefore, it could hot abate for failure to bring his legal representatives on record within the prescribed time. The matter was hence remanded for a fresh consideration in the light of the averments made on behalf of the appellants and to decide the question of abatement and that if this Court comes to the conclusion that the suit did not abate it should then proceed to dispose of the appeal on merits.
6. The trial Court held that the plaintiff No. 1 Kanshi was the son of brother of the father of defendant, No. 2; that the suit property was ancestral; that the parties were governed by customary law in the matters of alienation; that plaintiffs Nos. 2 and 3 have no right or locus standi to file the suit; that the suit was not speculative and that there was no evidence that the gift deeds were executed in lieu of the services rendered by defendant No. 1 and that defendant No. 1 was son of real sister of defendant No. 2. It was held that the gifts were not illegal or void and they were held to be binding. After the remand of the suit by the lower appellate Court, the trial Court held that the parties were governed by customary law in the matter of alienation and the gift deeds executed by defendant No. 2 in favour of defendant No. 1 was illegal and void and not binding on the rights of the plaintiffs. The lower appellate Court held that the judgment of the trial Court was maintained on the ground that plaintiffs Nos. 2 and 3 did not have the locus standi to bring the suit and that the suit was rightly dismissed. It also held that the suit was speculative. It, however, held that gifts were beyond competency of the donor. Ultimately he dismissed the appeal.
7. I have heard learned counsel for the parties.
8. At the time of arguments Mr. Gaur appearing for the plaintiff-appellants has conceded to the facts that the daughters of the donors alone could not challenge the gifts because they could not bring this suit without joining the male reversioners. On this point he has also stated that in the order of the Apex Court it is mentioned that they were not interfering with the findings that the two daughters themselves have no locus standi to file the suit.
9. Mr. Gaur has cited before me the case of Giani Ram v. Ramji Lal, AIR 1969 SC 1144. It has been held by the Supreme Court in that case that in a suit by competent reversioner, the declaratory decree enures in favour of all heirs including female heirs.
10. In the case of Singh Ram v. Bhagwana, AIR 1924 Lahore 656. it has been held that a nearer reversioner has placed himself in a position which disables him from challenging an unauthorised alienation, because of acquiescence it is still open to more remote reversioners to challenge it on their own account, as the latter do not derive a right to succession through the former.
11. In this case the daughters of the donor, namely, Ram Rati and Anguri were represented by Kanshi Ram. From the predigree-table given in the plaint, Kanshi Ram was a cousin of Ranjit donor (father of Ram Rati andd Anguri). Therefore, he could join in the suit along with Ram Rati and Anguri. Kanshi Ram died on 15-5-75. One Des Raj had filed CM 2503-C of 1976 for joining the applicant as appellant in place of Kanshi. CM2143-C of 1976 was also filed for joining the heirs of Kanshi Ram. Heirs were Zile Singh, Umed Singh, Har Gian, sons of Kanshi, Ram Kaur widow of Kanshi and Bharto daughter of Kanshi. On 27-1-1982, all these applications came up for hearing and were dismissed. Consequently on the same day, the second appeal was also dismissed. Aggrieved by the order of dismissal, Har Gian, Umed Singh, Zile Singh and Des Raj filed Civil Appeal No. 1460 to 1462 of 1986 before the Supreme Court. Hon’ble Supreme Court set aside the order of learned single Judge and remanded the case back to this Court for fresh consideration in the light of the averments made on behalf of the appellants and for deciding the question of abatement and if this Court came to the conclusion that the suit did not abate in these special circumstances, it may then proceed to dispose of the appeal on merit. The relevant portion of the order of the Supreme Court can be reproduced as under:
“We think it was incumbent for the High Court to consider the contention whether or not the suit was of a representative character and, if so, did the law of abatement apply to it. We, therefore, deem it appropriate to set aside the impugned order of the High Court dated 27-1-1982 and remit the matter to the High Court for considering the appellants’ contention that the suit was filed in a representative capacity and, therefore, such a suit would not abate notwithstanding the fact that the legal representatives were not brought on record within the period allowed from the death of Kanshi Ram. We must state that we are not interfering with the finding that the two daughters themselves had no locus standi to file the suit but so far as Kanshi Ram is concerned he was entitled to file the suit and the question to be considered is whether the suit filed by him was representative in character and, therefore, it could not abate for failure to bring his legal representatives on record within the prescribed time. We, therefore, set aside the order of the High Court and remit the matter to the High Court for a fresh consideration in the light of the averments made on behalf of the appellants and to decide the question of abatement and if the High Court comes to the conclusion that the suit did not abate in these special circumstances it may then proceed to dispose of the appeal on merit: The appeals are disposed of accordingly with no order as to costs.”
12. After the remand of the case, C. M: 2372-C of 1994 was filed by Har Gian, Umed Singh and Zile Singh along with respondent No. 1 Sant Lal with a contentien that they did not want to pursue the litigation any more as it was old one and they wanted to put the litigation to an end and that the appeal be dismissed. The said application was decided along with other applications on 20-2-1995 and it was ordered that the application deserves to be allowed only to the extent that the names of Umed Singh, Zile Singh and Har Gian should be deleted from the array of the plaintiffs.
13. CM. No. 3006 of 1994 was filed by Udey Singh and Randhir Singh to be brought on record in place of Har Gian, Umed Singh and Zile Singh and CM. No. 3092-C of 1994 was filed in order to bring Chhotu on record in place of Har Gian, Umed Singh and Zile Singh. Both these applications were allowed by the abovementioned common order. Udey Singh and Randhir Singh and Chhotu were ordered of be brought on record as plaintiff-appellants.
14. Chhotu died and by an order in CM. No. 336-C of 1997, Randhir, Ranbir, Rajo and Indra were joined as heirs of Chhotu. CM. No. 1651-C of 1997 was given by the heirs of Chhotu with a prayer that they wanted to withdraw the suit and vide order dated 18-7-97, the application was ordered to be heard along with the appeal.
15. Another application No. 337-C of 1997 was filed with a prayer to withdraw the appeal and that was also ordered to be heard with the appeal.
16. When there are more than one male representative, the request to withdraw the appeal or suit by heirs of one of them will not entitle dismissal of appeal or suit. These applications are, therefore, dismissed. The said applicants would of course, stand withdrawn from this appeal.
17. At present Ram Rati and Anguri are represented by Udey Singh by virtue of order in CM No. 3006 of 1994. In view of the principle laid down in the case of Singh Ram (AIR 1924 Lahore 656} (supra) if a nearer reversioner has placed himself in a position which disables him from challenging an unauthorised alienation because of acquiescence it is still open to more remote reversioners to challenge it and, therefore, the suit and the appeal can be entertained even after heirs of one of the representatives withdraws the appeal or suit.
18. Regarding abatement of the suit, it has been held by the Apex Court in Charan Singh v. Darshan Singh, (1975) 3 SCR 48 : (AIR 1975 SC 371) that when the suit has been filed in a representative capacity on the death of one of the plaintiffs, it did not abate. At the time of arguments, it is not disputed by the respondents that the suit is of a representative character. Even otherwise, when Anguri and Ram Rati themselves would not file the suit, the suit filed on their behalf is of representative character.
19. In view of the above reasons 1 hold that the suit has not abated.
20. Regarding alienation Mr. Gaur has cited before me the case of Maghar Singh v. Gajjar Singh, (1964) 66 Pun LR 86.5. It has been held therein by a Division Bench of this Court that a declaratory decree obtained by one or more reversioners enures for the benefit of the entire reversionary body and the individual reversioner who actually happens to be the next heir at the time the succession opens, is entitled to take advantage of the decree.
21. The lower appellate Court held that:
“….. The learned counsel has argued that the evidence led by the plaintiffs themselves, showed that the donor did not have a limited right of gifting away the property. I am afraid the learned counsel has mis-read the evidence and has drawn a wrong inference. It is no doubt true that the witnesses have not been asked to state that a person is not competent to gift away his ancestral property and they have merely said about the power of selling of the ancestral property, yet it does not amount to saying that the witnesses have said that a male owner has an unrestricted right of making gift of the ancestral property. I see no reason why the plaintiffs cannot fall back upon the general custom as mentioned in the Ratigon’s Digest.”
22. The learned lower appellate Court affirmed the remand report on issues Nos. 3 and 4 and held that the parties were governed by custom and defendant could not gift away the ancestral property in favour of defendant No. 1 except to a small extent for mutual love and affection or for services rendered by him and these circumstances were not proved and, therefore, the findings of the lower Court that the gifts are void as against the interest of the reversioners were also confirmed.
23. If Ram Rati and Anguri daughters of donor can well be represented by the male member, they can challenge the gift deeds. It is not shown during the arguments in this appeal as to how the above-mentioned finding regarding custom and the limitation of right is erroneous. The lower appellate Court, however, dismissed the appeal and upheld the dismissal of the suit on the ground that the suit filed by Kanshi Ram was speculative. The reasons on which he based this finding is that the plaintiffs Nos. 2 and 3 who are daughters of donors and, are the immediate heirs of the donor and they would succeed to his property on his death and if the daughters are likely to inherit the property of the donor and if the daughters get unlimited right to alienate the property, it follows that other reversioner would have no chance at all to succeed to the property on the death of the donor. The lower appellate Court further observed that:
“In the light of the above discussion, I am of the view that suit of Kanshi is speculative. It is no doubt true that the decree obtained by Kanshi will enure for the benefit of the daughters of the donor, but that fact does not make the suit any the less speculative. I reverse the finding of the learned lower Court on issue No. 6 and hold that suit of Kanshi plaintiff is speculative and, therefore, it should be dismissed on this ground.”
24. Learned counsel for the appellant argued that it cannot be held that the suit was speculative. On this point, he relied on the judgment in the case of Giani Ram v. Ramji Lal (AIR 1969 SC 1144) (supra) wherein it has been held that the Punjab Custom (Power to Contest) Act (2 of 1920) was enacted to restrict the rights exercisable by members of the family to contest alienations made by a holder of ancestral property. By virtue of Section 6 of the Act. no person is entitled to contest an alienation of ancestral immovable property unless he is descended in the male line from the great-great-grandfather of the alienor. It is further held therein that the alienation of ancestral property enured in favour of all persons who ultimately took the estate on the death of the alienor for the object of a declaratory suit filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a common apprehended injury, in the interest of the reversioners. It is further held therein that the decree did not make the alienation a nullity, it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened. It is further held in it that by the decree passed in suit filed by Giani Ram it was declared that the alienations by Jwala were not binding after his lifetime, and the property will revert to his estate. It was also observed by the Supreme Court in the said judgment as under :
“The effect of the declaratory decree in Suit No. 75. of 1920 was merely to declare that by the sale interest conveyed in favour of the alienee was to enure during the lifetime of the alienor. The conclusion is, therefore, inevitable that the property alienated reverted to the estate of Jwala at the point of his death and all persons who would, but for the alienation, have taken the estate will be entitled to inherit the same. If Jwala had died before the Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved, by virtue of Sections 2 and 4(1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920 the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into force.”
25. The above point has also been dealt with in the case of Maghar Singh v. Gujjar Singh (1964) (66) Pun LR 865) (supra). It has been held therein that:
“A declaratory decree, as is well-settled obtained by one or more reversioners enures for the benefit of the entire reverionary body and the individual reversioners who actually happens to be the next heir at the time of succession opens, is entitled to take advantage of the decree, the sole object of which is to remove or get rid of a common apprehended injury in the interests of all the reversioners whether presumptive or contingent. The reversioner actually suing has no personal interest apart from the interest common with the entire reversionary body; this reversionary interest is a mere possibility to succeed or spes successionis a possibility common to all reversioners, it being difficult to predicate as to who would be the actual heir when the succession openg out The declaratory decree only saves from the operation of the alienation the right of the actual reversioner entitled to succeed and it does not completely wipe out the alienation by declaring it to be wholly void in the sense of being a nullity or non-existent. Indeed, its effect is that the alienation is not binding against the inheritance and this is so irrespective of the form of the decree. The reversionary suit thus binds the entire reversionary body, the basic reason being that it is in essence a representative suit on behalf of all those who are entitled to impeach the alienation, though the ultimate benefit therefrom may accrue only to the actual heir, who succeeds when the inheritance falls in. This result is implicit in the nature of the reversionary interest and is regardless altogther of the consideration whether or not in the plaint the plaintiff has purported to sue on behalf of the reversionary body.”
26. Considering the principle laid down in the above two judgments even if the male member who represented the female plaintiffs-appellants will have no chance to succeed to the estate, the suit cannot be dismissed as speculative. Therefore, I hold that the suit is not speculative and the plaintiff-appellants have a right to challenge the alienation made by father of Ram Rati and Anguri viz. Ranjit. The gift deeds were not for any family necessity and, therefore, donor Ranjit had no right to gift away the property to the detriment of the interest of his daughters Ram Rati and Anguri.
27. After holding the points as above, the next contention raised by Mr. Hemant Kumar learned counsel for the respondent deserves consideration. Hehas argued that plaintiffs-appellants have filed only a declaratory suit and not claimed possession and, therefore, the suit for declaration only will not be maintainable. As against this, it has been argued by learned counsel for the appellants that the possession was with the plaintiffs Ram Rati and Anguri and, therefore, there was no reason for praying for a decree for possession. In this regard, the respondents have given Application No. 3382-C of 1995 contending therein that donor Ranjit died on 19-8-88 and the succession opened on the death of Ranjit on the same day and the plaintiff has filed a suit for declaration to the effect that the gift deeds executed in favour of defendant No. 1 Jai Karan are void and have no legal effect and does not affect their rights. It has been further contended that according to Section 7 of the Punjab Limitation (Customs) Act, 1920 where there is no declaratory decree has been obtained, limitation for suit for possession is six years from the date the succession opened, and that in spite of the fact of succession having opened, the possession has not been claimed and, therefore, the suit has become barred by limitation. To this the appellants have replied that the application is premature and that the question may arise only when the suit for possession is filed, which will not be necessary, since after the death of Ranjit, his daughters Smt. Ram Rati and Smt. Anguri were recorded as owners and the possession of the suit land has been with them, since then.
28. It will be proper to reproduced Secion 7 of the said Act which are as under :
“Limitation on suits for possession where no delcaratory decree has been obtained–Subject to the provision of Section 6– (a) No suit for the possession of ancestral immovable property on the ground that an alienation of such property or the appointment of an heir is not binding on the plaintiff according to custom shall lie if a suit for a declaration that the alienation or appointment of an heir is not so binding would be time-barred unless a suit for such a declaration has been instituted within the period prescribed by the schedule.
(b) No suit for the possession of ancestral immovable property by a plaintiff on the ground that he is an heir appointed in accordance with custom entitled thereto shall lie if a suit for a declaration that his alleged appointment as heir was validly made according to custom would be time-barred; unless a suit for such a declaration has been instituted within the period prescribed by the schedule.
29. The prayer in the suit as translated is as under :
“It is, therefore, prayed that the suit of declaration be decreed in favour of the plaintiffs and against the defendants to the effect that the gift-deeds mentioned in para No. 1 of the plaint, or any other gift in respect of the aforesaid land, are null and void in the eye of law and will not affect the rights of the plaintiffs and other reversioners. It is also prayed that cost of this suit may also be awarded in favour of the plaintiffs and any other relief, deem fit, may be granted.”
30. In view of the portion of Section 7(a) of the Act, highlightened above the suit for declaration challenging the alienation and the suit for possession can be two different suite. The provision being made in the local law will be an exception to the general rule that mere suit for declaration will not lie. Therefore, the suit being only for declaration cannot be dismissed on that account. Moreover, from the highlightened portion of Section 7 of the Act, it is also clear that suit for possession may not be made along with the suit for declaration. In CM 3382 of 1995, the respondents have prayed that the appeal be dismissed because there is no relief for possession sought and that the right to claim possession has become time-barred. Thus CM 3382 of 1995 is without merit and is dismissed.
31. Therefore, the legal hindrances to the filing of the suit and the entertainment of the suit do not exist. So far as the legality of the gifts is concerned, it has been held by the lower appellate Court as under :
“If the case is governed by the general custom, it follows that the gifts in question were beyond the competency of the donor and the donor could not gift away the property in favour of defendant No. 1 in the circumstances of the present case. I am of the view that the parties are governed by general custom, which has been mentioned above.”
32. In view of the above finding, the lower appellate Court confirmed the remand report on issues Nos. 3 and 4.
33. In view of the above reasons, there appears to be no legal impediment in entertaining the suit and the appeal and, therefore, the above finding (para 31 above) of the lower appellate Court has to be accepted. Nothing is shown as to how the said finding is not correct. This being so, this appeal deserves to be allowed. Consequently, the judgments and decrees of both the Courts below are required to be set aside.
34. As a result this appeal is allowed. The judgments and decrees of both the Courts below are set aside. The suit of the plaintiffs is decreed and the gift deeds mentioned in para 1 of the plaint are held to be null and void and it is held that they do not affect the rights of the plaintiff-appellant and other reversioners.