JUDGMENT Arun Kumar Gbel, J.—This appeal is directed against the judgment and decree, dated 31.3.1994 in Civil Appeal No. 133 of 1988 and Cross Objection No. 121 of 1989, passed by the District Judge, Hamirpur, whereby appeal as well as cross objections have been allowed and judgment and decree in case No. 122 of 1985, dated 30.6.1988 has been modified in terms of the appellate decree. 2. Brief facts giving rise to this case are that Darshan Ram, appellant (hereinafter referred to as the plaintiff), filed a suit against Gajjan, respondent No. 1 (hereinafter referred to as defendant No. 1) and respondents No. 2 to 6, his nephews, (hereinafter referred to as defendants No. 2 to 6). This was a suit for declaration to the effect that gift deed by defendant No. 1 in favour of defendants No. 2 to 6 of his total land measuring 36 kanal 9 marlas, as per jamabandi for the year 1980/81 vide Ex. D-3 and mutation as a consequence of it vide mutation No. 133 being without legal necessity does not effect on his reversionary rights to-succeed to the estate of the said defendant No. 1, his father, after his death; with a prayer to set aside both. (It may be observed here that as per gift deed Ex. D-3, the gifted land is 7/8 out of the total area and this fact is also reflected in remarks column of Ex. P-l jamabandi attached with the plaint). 3. According to the plaintiff, besides him, he has two more brothers. Being son of defendant No. 1, he is within three degrees and thus can maintain the suit. Plaintiff and defendants are Rajputs who are governed by agricultural custom of Kangra District in the matter relating to alienation of property. Thus, defendant No. 1 had no right to have alienated the property by means of above said gift deed. He further pleaded that gifted property is inherited by his father from his fore-fathers, thus is ancestral in character. According to him gift is void abinitio and has been executed by defendant No. 1 in favour of his grand-sons, defendants No. 2 to 6 in connivance with their parents with a view to debar the plaintiff of his legitimate share. Besides this, there was no legal necessity for defendant No. l to execute the same as the plaintiff was maintaining the said defendant. Besides this, there was no legal necessity for defendant No. l to execute the same as the plaintiff was maintaining the said defendant. Since the defendants refused to concede the claim of the plaintiff to get the gift deed as well as mutation in question set aside, hence this suit. 4. Defendants when put to notice, contested and resisted the suit of the plaintiff, as according to them, suit properties are not properly described in the plaint, plaintiff has not given details of other heirs of defendant No.1. Property being ancestral as well as defendant No. 1 having inherited it from his ancestors was also denied. It was also pleaded that plaintiff had always been maltreating and misbehaving with his parents as a result of which his mother died. It was specifically pleaded that plaintiff never cared to maintain his parents. Respondents are not governed by agricultural custom. The gift in question has been executed by defendant No. 1 in lieu of services rendered by Rattan Chand and Prithvi Chand, his two other sons. Consequently, gift is valid in favour of defendants No. 2 to 6 and plaintiff has no right to question the same, as defendant No. l was free to have dealt with this property. On merits, amongst other things while disputing the claim of the plaintiff, cryptically and in a vague manner it was also alleged that the suit for mere declaration is not legally maintainable. 5. Replication was filed to the written statement of the defendants wherein averments made in the written statement, which were contrary to the plaint, were denied and case set-up in the plaint was reiterated. Trial Court framed the following issues:- 1. Whether the parties are governed by agricultural custom in matters of alienation as alleged? If so what that custom is? O.P.P. 2. Whether the land in suit is ancestral qua the plaintiff and defendant No. 1? O.P.P. 3. Whether the gift dated 17.12.1994 by defendant No. 1 in favour of defendants No. 2 to 6 is valid and binding on the plaintiff as alleged? O.P.D. 4. Whether the suit is not maintainable as alleged in preliminary objection No. 2? O.P.D. 5. Whether description of land in suit has not been correctly given as alleged? If so its effect? O.P.D. 6. Relief. 6. Issue No. 1 was decided in favour of the plaintiff. O.P.D. 4. Whether the suit is not maintainable as alleged in preliminary objection No. 2? O.P.D. 5. Whether description of land in suit has not been correctly given as alleged? If so its effect? O.P.D. 6. Relief. 6. Issue No. 1 was decided in favour of the plaintiff. Issue No. 2 was also decided in favour of the plaintiff. Under issue No. 3, it was held that out of the total land, 2 kanal 14 marlas was non ancestral and regarding 8 kanal 9 marlas gift was held to be good, as it was justified and thus binding on the plaintiff regarding rest of the land, it was held to be not binding on the plaintiff. Issues No. 4 and 5 were not pressed. In this manner, suit of the plaintiff was partly decreed and partly dismissed. 7. Defendants filed appeal against the aforesaid judgment and decree so far findings were recorded against them. Plaintiff preferred cross objections in it to the extent his suit was dismissed. 8. First appellate Court allowed the appeal as well as cross objection, thereby decree dated 30.6.1988 passed by the trial Court was modified holding that the gift of the land measuring 17 kanal 7 marlas 1/2 share out of 34 kanal 15 marlas was void and ineffective qua the rights of the plaintiff and qua the remaining, the suit was dismissed. 9. In the aforesaid background, Darshan Ram-plaintiff has filed this appeal wherein cross objections have been filed by Gajjan and other defendants, as both sides are dis-satisfied with the decree in question. This appeal was admitted on 22.12.1995 on the following substantial questions of law:- 1. Whether the proper construction of the provisions of the Kangra Customary Law by which the parties were governed, it is open to the father to make a gift of his property to the extent of half share? 2. Whether the entire property in the hands of Gajjan was ancestral and the inferences drawn by the court below in respect of Khasra number 345 and 165 are based on mis-construction of jamabandi entries to which presumption of truth was attached? 10. While issuing notice pending admission, respondents were restrained from selling, transferring or encumbering the property in any manner whatsoever and also from cutting or felling the trees standings thereon by this Court. This order was confirmed at the time of admission. 10. While issuing notice pending admission, respondents were restrained from selling, transferring or encumbering the property in any manner whatsoever and also from cutting or felling the trees standings thereon by this Court. This order was confirmed at the time of admission. However, it was clarified that respondents can lop the branches and cut the trees for agricultural purposes or repair of their houses in accordance with law. 11. Learned Counsel for the parties have been heard on the aforesaid substantial questions of law. 12. At the time of hearing the facts on which parties were not at variance, were that the parties being Rajput of Hamirpur district are governed by Kangra custom in the matter of alienation of property. It was further n6t disputed that out of the total holding of defendant No. 1, Gajjan, of 36 kanal 9 marla, entire land except khasra No. 165/1, 0-4 marla and khasra No. 345, 1 kanal 10 marla, total 1-14, rest is ancestral. 13. Another fact that needs to be clarified here is that Gajjan had executed gift deed Ex. D-3 in favour of defendants No. 2 to 6 in respect of his 7/8th share out of the total area. Out of its 7/8th hare, non ancestral land comes to 1 kanal 10 marla. Thus, 31 kanals and 8 marlas was the area that had been gifted by Gajjan, defendant No. 1, in favour of defendants No. 2 to 6. Defendants No. 2 and 3 have been given 1/2 share of the gifted land in equal shares; and the remaining 1/2 share in equal shares has been given to defendants No. 4 to 6. 14. In the aforesaid background, Mr. Sood learned Counsel appearing for the appellant, submitted that dispute is within very narrow compass. By referring to customary law of Kangra District excluding Kullu, he referred to question No. 86 in Section X, under the heading Gift, which is extracted herein below:— "Question-86.—Are there any special rules relating to death-bed gifts? Can a man make a gift on his death-bed to a relation, or in charity or for religious merits? • Can he do so for the whole or any part of his property? If of part, what part? Can he give a larger share with the consent of his next-of-kin? Can a man make a gift on his death-bed to a relation, or in charity or for religious merits? • Can he do so for the whole or any part of his property? If of part, what part? Can he give a larger share with the consent of his next-of-kin? Answer.—All the tribes except the Brahmans of Palampur Tehsil and Jats of Nurpur say that a man can make a gift of his self acquired property and moveable property to anybody he likes, while as to the ancestral immovable property he can give only a small share according to his means to a relation or others in charity or for religious merit. The Brahmans of Palampur and Jats of Nurpur say that no gift can be made without the consent of the heirs and collaterals. This is scarcely on consonance with the actual practice which does not fetter the power of a man to dispose of his moveable and self acquired property." 15. By referring to the custom which governed the parties, he submitted that gift made vide Ex. D-3 is liable to be set aside in its entirety. He pointed out that admittedly, parties are Rajputs of Hamirpur district and defendant No. 1 thus could make a gift of his self acquired property and moveable property to whom he liked however, qua ancestral and immovable properly, he could gift only a small share according to his means to a relation or otherwise in charity or for religious merit. Thus, he could not gift his 7/8 share out of total area of 36 kanal 9 marlas. According to Shri Sud, two khasra Nos. 165/1 and 345 being non-ancestral the gift qua those could be made. As such gift of 7/8 share out of these two khasra numbers is upheld. 16. So far second question, referred to hereinabove is concerned; it does not call for any finding in view of the stand of the parties, as noted hereinabove. 17. Question No. 1 is the core question in this case being substantial question of law on which the parties addressed the Court. Ancestral property could be gifted under the custom which governed the parties, but it could only be made qua the small share according to means of the donor to a relation or to others in charity or for religious merit. Ancestral property could be gifted under the custom which governed the parties, but it could only be made qua the small share according to means of the donor to a relation or to others in charity or for religious merit. There being nothing set-up as a defence so as to show that the gift was made for charity or for religious merit, that too of a small share, according to means of Gajjan, both the courts have fallen into error in ignoring this vital aspect of the case as per Mr. Sood. 18. On the other hand, Ms. Rama Mehta, learned Counsel appearing for the defendants, has controverted the pleas urged on behalf of the plaintiff by Mr. Sood. At the same time she submitted that gift in this case is legally valid and deserves to be upheld by allowing the cross objections and setting aside the decree under appeal consequently dismissing the suit of the plaintiff. She further submitted that if this submission does not find favour, then gift may be treated as analogous to a testamentary disposition like will and thus her clients are covered by the decision of this court reported in Kartari Devi and others v. Tola Ram, 1992 (1) SLC 402. Because the custom stands abrogated, therefore, appeal of the appellant deserves to be dismissed while upholding the gift executed by defendant No. 1 in favour of defendants No. 3 to 6. 19. After having heard learned Counsel for the parties and after going through the records of the case. Particularly the written statement of the defendants, it is for the first time this plea has been set-up. Its perusal shows that no plea regarding abrogation of custom and gift being analogous to will as was urged in this appeal was put up before the trial Court. Thus, in my considered view, defendants cannot be permitted to raise this plea at the time of hearing of this second appeal. Though a feeble attempt was made to persuade the court that being purely a legal question, her clients may be permitted to argue the case on its basis. Again when a reference is made to the written statement, defendants have specifically pleaded that the gift made by defendant No. 1 in favour of defendants No. 2 to 6 was in lieu of the past services rendered by the respective fathers of the said defendants. Again when a reference is made to the written statement, defendants have specifically pleaded that the gift made by defendant No. 1 in favour of defendants No. 2 to 6 was in lieu of the past services rendered by the respective fathers of the said defendants. On the other hand, plaintiff is alleged to have not provided anything either to defendant No. l or to his late wife. Rather it is specific case of the defendants that he used to maltreat them. Even in the gift deed Ex. D-3, service rendered by Rattan Singh father of defendants No. 2 and 3 Prithvi Chand and other defendants 4 to 6, is the sole reason for its execution. 20. Once this conclusion is arrived at and when parties admitted that they are governed by custom; then unless the case was brought within the answer to question No. 86 supra, defendant No. 1 could not have gifted the ancestral property in favour of defendants No. 2 to 6. As such, findings recorded to the contrary by the courts below cannot be upheld. 21. Ms. Rama Mehta, learned Counsel appearing for the defendants, while praying for dismissal of appeal and allowing cross objections, placed reliance on a decision of the High Court of Judicature for the province of East Punjab at Shimla in Mussammat Orku v. Jai Nand (R.S.A. No. 854 of 1947), dated 1.4.1948 and urged that while dismissing the appeal and allowing the cross objections, the suit of the plaintiff may be dismissed. A perusal of this decision shows that it does not in any manner advance case of the defendants any further. Reason being the circumstances of this case, as well as admitted position, as noted hereinabove. 22. Reliance is also placed by the learned Counsel on a decision of Kartari Devi v. Tota Ram supra. What is relevant in this judgment and applies to the present case is extracted herein below:— "......in other words, the bar created by way of custom that the coparcenary property is not capable of being alienated by executing a will by one of the coparceners is taken away and the rule of survivorship is finished to a-limited extent. But, it continues to apply in the case of gift and other alienations, which are inter vivos." (Emphasis supplied) 23. But, it continues to apply in the case of gift and other alienations, which are inter vivos." (Emphasis supplied) 23. In the face of this legal position, this decision also does not in any manner advance the case of the defendants. 24. In the context of written statement, it may be noted that making of gift as per question No. 86 supra, is in the nature of an exception. Plea urged by Ms. Rama Mehta, learned Counsel for the defendants, that gift needs to be protected having been lawfully executed, is a plea raised simply to be rejected. In case defendants really wanted to bring it within the exception as carved out in answer to question No. 86 supra, foundation was required to be laid in the written statement by pleading it, but there is nothing in the written statement, to that effect. In this behalf reference can be made to a Division Bench decision of this Court in the case of Rikhi Ram v. Thakru (SLJ 1971 H.R 85), wherein it was held that under customary law of district Kangra gift being governed by custom exception is to be first laid and then proved by the party asserting it. At the risk of repetition it may be observed that there is no such foundation laid in the written statement. 25. A reference was also made on behalf of the defendants to a Division Bench decision in the case of Jagatram v. Makhan Ram and others, SLJ 1974 (HC) (4) 813. A reference to this judgment also shows that it also does not in any manner advance the case of the defendants. No other point is urged. 26. In view of the aforesaid discussion, answer t6 question No. 1 above, is that defendant No. 1 could only alienate a small share out of ancestral immovable property in the present case to his relation in charity or for religious merit. There being nothing on record of this case to that effect, gift made by him to defendants No. 2 to 6 vide gift deed, Ex. D-3, registered at Sr. There being nothing on record of this case to that effect, gift made by him to defendants No. 2 to 6 vide gift deed, Ex. D-3, registered at Sr. No. 978 on 17.12.1984 in the office of Sub Registrar, Hamirpur is declared to be not in any manner effecting the reversionary rights of the plaintiff except 7/8 share in land comprised in Khasra No. 165/1, measuring 0-4 marla and 345, measuring 1 kanal 10 marlas, kitas 2, measuring 1 kanal 14 marlas. Suit of the plaintiff is dismissed to this extent only. As a further consequence of it mutation No. 133 is also held to be not binding on the plaintiff as prayed by him in the suit except to the extent of 7/8 in the two khasra numbers (supra). Appeal is allowed in these terms and cross objections dismissed. No costs. Appeal allowed.