JUDGMENT
Hemant Gupta, J.
1. Defendants are in appeal against the judgment and decree passed by the learned Additional District Judge, Jind granting decree for possession to the extent of 2/3rd share of Mewa Singh in favour of the plaintiff.
2. The dispute is regarding the estate of Mewa Singh who died issuless. On 16.9.1980, Mewa Singh gifted his entire land measuring 99 kanals 9 Marlas in favour of grand son of Mohar Singh. Mohar Singh is the brother of Mewa Singh. Plaintiffs Sewa Singh and Jagta are two other brothers of Mewa Singh, who filed the present suit for possession alleging therein that the parties are agriculturists, Jat Sikhs and are governed by customs of State of Punjab and Haryana wherein the agricultural land cannot be alienated without any legal necessity. The parties sustain themselves only on agricultural income and not on other source of income. To controvert such pleas, the defendants pleaded that the land is self-acquired property and Mewa Singh had a right to execute the gift deed. Defendants have also pleaded that for the services rendered, the deceased Mewa Singh executed the gift deed which cannot be disputed by the plaintiffs in the present suit.
3. On the pleadings of the parties, the following issues were framed;-
“1. Whether the parties in the suit are governed by customs, if so, what that custom is? OPP
2. Whether the suit land is ancestral qua the plaintiff? OPP
3. Whether the gift deed dated 16.6.1980 by Mewa Singh regarding suit land in favour of defendant set No. 1 was executed for legal necessity and for services rendered? OPD
4. Whether the parties are related as shown in the pedigree table in Para No. 4 of the plaint? OPP
5. Whether the plaintiffs have no locus standi to file the present suit? OPD
6. Relief.
4. Both the Courts have held that the gift deed dated 16.9.1980 was executed by deceased Mewa Singh. It is also found by the Courts below that such gift was executed on account of the services rendered by donee. However, the dispute between the parties is whether the parties are governed by custom and that there exists a custom prohibiting such alienation. Learned trial Court held that the parties are governed by custom and according to the general custom, gift of immovable property can be made in favour of one collateral excluding the other in lieu of the services rendered by him and thus dismissed the suit. However, in appeal the first Appellate Court has held that the defendants have not pleaded that the parties are governed by the custom in the matter of alienation and, thus, the defendants have failed to prove that there is a custom wherein gift in lieu of services rendered is permissible and consequently granted a decree to the extent of 2/3rd share of Mewa Singh in favour of the plaintiffs.
5. In the present appeal, the following substantial question of law arises;-
“1. Whether the plaintiffs have to plead and prove the ground of invalidity of the gift deed dated 16.9.1980 or it was for the defendants to plead and prove that the donor has a right to alienate the property by executing gift deed.
2. Whether there is any evidence on record to show that there is a custom of the parties in respect of the alienation of the land.”
6. Plaintiffs have filed the suit with specific pleadings in Para No. 1 of the plaint itself that the parties are agriculturists Jats, governed by customs. It has also been pleaded that the parties cannot alienate the property except for legal necessity. Defendants have denied the existence of any custom. It has also been found by both the Courts that the parties are governed by custom. Reliance was placed upon the previous judgment and decree Ex.P4 dated 21.8.1984 wherein the challenge was to the adoption of Labh Singh by Mewa Singh under custom. It was held the parties are governed by custom but under the customary law, Mewa Singh has no right to adopt the son.
7. Learned counsel for the appellants has referred to para 59 exception 3 of the Rattigan’s Digest of customary law wherein it has been stated that the ancestral immovable can be alienated for necessity. Such para 59 exception 3 has been interpreted by this Court in Nathu Ram and Ors. v. Jug Lal (Died) and represented by his L.Rs. Atma Ram s/o Jug Lal, (1981)83 P.L.R. 754, wherein it was held that under the general custom gift by a sonless proprietor to near agnates for the services rendered can be executed. Para No. 2 of the judgment reads as under;-
“The sole point for consideration is whether it is proved in the case that a sonless proprietor cannot alienate his property in favour of his near relation either for love and affection or for services. The general custom with regard to alienation is contained in Para 59 of the Rattigan’s Digest, which reads as follows;-
“59. Ancestral immovable property is ordinarily inalienable (especially amongst, Jats residing in the central district of the Punjab) except for necessity or with the consent of male descendants, or, in the case of a sonless proprietor of his male collaterals. Provided that a proprietor can alienate ancestral immovable property at pleasure if there is at the date of such alienation neither a male descendent nor a male collateral in existence.”
By a large string of authorities, Exception 3 to para 59 has come into being, which is to the following effect:-
“Alienations in favour of relations between whom and the alienor there is some special tie, as by their having been brought up by him or by their associated “with him or by their assisting him in cultivation or rendering him services in the management of the land when he was himself incapable of doing so, are very generally recognised by custom.
The general agricultural custom of the Punjab allows gifts in favour of relations who have rendered services to the donor… gift by sonless proprietor of a portion of his ancestral property in favour of his daughter in return for services… Where the donee is an agnate with a special association with the donor and the gift is in lieu of services, the custom of allowing such a gift is frequently recognised..”gift in favour of one nephew to the exclusion of the other nephew…”
Therefore, it transpires from the above that Raja Ram who was a sonless proprietor could make a gift of the land in dispute to Amar Nath or any of his other nephews for love and affection or for services rendered by him. In the present case, it was specifically pleaded by the defendant that Raja Ram was living with him and he had been looking after and serving him which plea was duly proved during evidence. Accordingly, I proceed on the assumption that Amar Nath tendered services to Raja Ram and, therefore, Raja Ram could make a gift in his favour who was also one of his near agnates.”
8. In Rati Ram and Anr. v. Shiv Charan and Ors., A.I.R. 1981 Punjab and Haryana 376 (F.B.), the Full Bench has an occasion to consider the right of a sonless Gaur Brahmin governed by customary law to make a testamentary disposition of his property in favour of a close relation in lieu of services rendered by him. It has been held by the Full Bench of this Court, relying upon Para 59 Exception 3 of Rattigan Digest of customary law that a sonless proprietor governed by customary law in Rohtak Tehsil can alienate his ancestral property. The consideration for an alienation may either be made in cash or in kind i.e., in the form of services. There is no distinction between a transfer inter vivos. Thus, it was held the sonless proprietor has power to alienate his property for the services rendered.
9. Learned counsel for the appellants has also referred to a unreported judgment of the Supreme Court in Mst. Mahil v. Ranbir Singh and Ors., 1970 U.J. (S.C.) 899, wherein it has been held that the Punjab Customary law is a law for the time being in force within the meaning of Section 30 of the Hindu Succession Act and is applicable to the agriculturists Jats. It was held that the customary law recognises no distinction between the power of making verbal or written transfers of property inter vivos. The form of alienation is immaterial. Thus, the learned counsel for the appellants contends that by virtue of Section 30 of the Hindu Succession Act, the customary law governed the parties and since there is no evidence led on behalf of the plaintiffs that there is any restriction on the rights of Jat agriculturists proprietor to alienate the property by virtue of gift, plaintiffs cannot successfully challenge the gift deed executed by Mewa Singh.
10. To controvert the said stand of the learned counsel for the appellants, Mr. Sharma has vehemently argued that it was for the defendants to plead and prove that the custom permitted the alienation of the ancestral property. It has been argued that the defendants have failed to prove the competency of Mewa Singh to execute the gift deed in favour of grand sons of his brother. The gift was rightly found not to be biding on the rights of the plaintiffs. Learned counsel for the respondents has relied upon the Full Bench judgment of this Court in Pritam Singh v. The Assistant Controller of Estate Duty, Patiala, (1976)78 P.L.R. 342 (F.B.), wherein it has been held that the agriculturists Jats of Punjab are not governed by customs but Hindu Law in the matter of succession.
11. I am unable to agree with the argument raised by Shri Sharma. It is the plaintiff who has come to the Court to challenge the legality and validity of the gift deed. It is the plaintiffs’ who has to allege and prove the grounds of invalidity of the document. Plaintiffs have, in fact, pleaded that under the custom, the parties have no right to alienate the property except for legal necessity. However, plaintiffs have led no evidence in support of such allegations in the plaint. In the absence of any evidence to support the pleadings, it has to be held that there is no specific custom governing the parties wherein such a clog on the right of a proprietor exist to gift property to a collateral for the services rendered under specific custom. Therefore, it is held that the plaintiffs have approached the Court to plead and prove the grant of invalidity of the gift and that in the absence of any evidence on record in respect of clog on the right of the agriculturists governed by customs to alienate the land, the general custom governing the agriculturists would be applicable.
12. In the absence of any proof of specific custom, the general custom relied upon by the defendants as interpreted by this Court, in Para 59 of the Rattigan’s customary law, would be applicable. The gift has been executed on 16.9.1980. Mewa Singh had died somewhere in the year 1981. The Full Bench judgment of this Court in Pritam Singh’s case (supra) deals with the right of a jat agriculturists in the matter of succession. The Court has interpreted Section 6 of the Hindu Succession Act. Whether the Jat agriculturists have a right to gift the property was not in issue in Pritam Singh’s case (supra).
13. Learned counsel for the respondent has also relied upon the judgments in Thamma Venkata Subbamma v. Thamma Rattamma and Ors., A.I.R. 1987 S.C. 1775 and Thimmaiah and Ors. v. Ningamma and Anr., A.I.R. 2000 Supreme Court 3529(2) and Babru v. Basakha Singh and Ors., 1996 H.R.R. 187. In Thamma Venkata Subbamma’s case (supra), the dispute pertains to right of coparcener under the Hindu Law to execute the settlement deed/gift deed It was held that no such right exists in the coparcener to execute the gift of his undivided interest in the family property. The rigour against such alienation is relaxed in the case of Wills and other testamentary dispositions under Section 30 of the Hindu Succession Act. The judgments are clearly distinguishable and not applicable to the facts of the present case.
14. In the present case, plaintiffs have challenged the gift deed on the ground that the parties are governed by custom and under the custom there is no right to execute the gift deed. In second appeal, plaintiffs cannot be permitted to contend that the parties are governed by Hindu Law. No such case was set up before the Courts below and such a plea cannot be permitted to be raised in second appeal. A Division Bench of this Court in Kaur Singh Gajjan Singh v. Jaggar Singh Kehar Singh, A.I.R. 1961 Punjab 489 has considered the distinction between Hindus in Punjab are governed by Mitakshara School of Hindu Law and the applicability of the customary law Punjab governing agricultural community irrespective of there caste or religion. It has been held that the general rules governing such agriculturists are to be found in treatise under the Punjab customary law by Rattigan’s Digest. Para 4 of the judgment reads as under:-
“Before dealing with the question that requires determination, it will be in the fitness of things to refer to the state of law that prevailed before the coming into force of the Hindu Succession Act both as regards the customary law of the Punjab and the Mitakshara School of Hindu Law. It is a settled proposition that Hindus living in the Punjab are governed by the Mitakshar school of Hindu law with such modifications as are recognized by the custom other than the customary law of the Punjab. So far as the customary law of the Punjab is concerned, it governs all agricultural communities irrespective of their caste or their religion.
In other words, it is only the predominately agricultural tribes whose main source of livelihood is agricultural, with a few exceptions here and there, that have been held to be governed by what is known as the customary law of the Punjab. The general rules governing such tribes are to be found in the well known treatise of the Punjab Customary Law by Rattigan, a book of unquestioned authority, as observed by their Lordships of the Privy Council in Mt. Subhani v. Nawab, I.L.R. (1941) Lahore 154=A.I.R. 1941 P.C. 21. The special customs governing such tribes are recorded in the manuals of customary law prepared at each regular Settlement for each district. These are prepared after due enquiry from the inhabitants of those districts.”
15. Section 4 of the Hindu Succession Act, 1956 has given a over-riding effect to the provisions of the Act, except to the extent of any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage Act and the same reads as under: -“4. (1) Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
(b) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.”
16. Since there is no provisions under the Hindu Succession Act, 1956 in respect of the right of a Hindu to alienate the property by gift, the rule of interpretation in respect of Hindu Law or custom would continue to be in force as were before the commencement of 1956 Act. Therefore, in view of the judgment of Full Bench in Rattigan’s Digest as explained by Single Bench in Rati Ram’s case (supra), agriculturists jats have rights to execute the gift in favour of collateral on account of love and affection.
17. In the judgments referred to by the learned counsel for the respondents, it has been held that the execution of the gift is not permitted under Section 30 of the Hindu Succession Act. There is no dispute about such proposition. However, gift by Hindu governed by customary law is saved under Section 4 of the Hindu Succession Act.
18. In view of the above, the judgment and decree passed by the learned Additional District Judge is set aside and the suit is dismissed with costs.