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2002 DIGILAW 700 (PNJ)

Lakshmi Chand v. Basanti alias Kailash

2002-07-22

N.K.SODHI

body2002
JUDGMENT N.K. Sodhi, J. - the dispute herein is between the brothers, on the one hand, and the sisters, on the other. Chiranji Lal, father of the parties, was a Dohlidar to the extent of one-half share in the land in dispute. Basanti @ Kailash plaintiff and Chanderpati defendant No. 4 are the daughters of Chiranji Lal whereas Lakshmi Chand and Karan Singh are his sons. On the basis of a family partition and settlement the father (Chiranji Lal) suffered a decree on 20.7.1976 in favour of his two sons and the two sisters were deprived of their right of succession to the estate of Chiranji Lal. Basanti filed a suit out of which the present appeal has arisen challenging the aforesaid decree on the ground that dohlidari rights in the land could not be alienated by her father and as such the decree would be void ab initio and would not affect her rights and those of Chanderpati who was arrayed as defendant No. 4 in the suit. Lakshmi Chand and Karan Singh sons of Chiranji Lal were arrayed as defendants No. 1 and 2. Chiranji Lal was also arrayed as a defendant in the suit. The suit was contested by Chiranji Lal and also by his two sons. Chiranji Lal died during the pendency of the suit and his name was thereafter deleted. The relationship between the parties is not disputed. The fact that Chiranji Lal held dohlidari rights in the suit land was admitted. The decree was sought to be justified on the ground that the plaintiff and defendant No. 4 who were females had no right to succeed to the dohlidari rights of Chiranji Lal. It was denied that the decree amounts to alienation. It was also pleaded that the suit was beyond limitation. The trial Court framed the following issues :- "1. Whether the impugned decree is illegal, void and collusive ? If so, the effect thereof ? 2. Whether the impugned decree amounts to an alienation ? If so, the effect thereof ? 3. Whether the suit is barred by time ? OPD 4. Whether the plaintiff has locus standi to file the suit ? OPP 5. Whether the suit is bad for the misjoinder of parties and causes of action ? OPD 6. 2. Whether the impugned decree amounts to an alienation ? If so, the effect thereof ? 3. Whether the suit is barred by time ? OPD 4. Whether the plaintiff has locus standi to file the suit ? OPP 5. Whether the suit is bad for the misjoinder of parties and causes of action ? OPD 6. Relief." On a consideration of the oral and documentary evidence led by the parties, the trial Court decided issues No. 1 and 2 in favour of the plaintiff and against the contesting defendants. It was held that dohlidari rights could not be alienated and that the impugned decree amounted to alienation of those rights and as such it was void and inoperative as against the plaintiff. Issue No. 3 was decided in favour of the plaintiff and it was held that the suit was within limitation. It was also held the plaintiff had a locus standi to file the suit. Consequently, the suit was decreed and the plaintiff was granted a decree for joint possession to the extent of one-fourth share out of the interest held by Chiranji Lal in the suit property. In appeal, the Additional District Judge, Gurgaon affirmed the findings of the trial Court. Hence this second appeal by the defendants. 2. The questions that arise for consideration in this appeal are : (i) whether the decree dated 20.7.1976 amounts to alienation of dohlidari rights and whether such rights could be alienated and (ii) whether the plaintiff being a female could inherit the dohlidari rights of the father. 3. As regards the first question, it is by now settled that dohlidari rights cannot be alienated. It was so held by a learned single Judge in Tirkha and others v. Dwarka Parshad and another, 1972 PLJ 614 wherein reliance was placed on a Division Bench judgment of the Lahore High Court in Sewa Ram v. Udegir, AIR 1922 Lahore 126 and it was observed as under :- "There is a world of difference between a void and a voidable transaction. A void transaction is non est whereas a voidable transaction is good so long as it stands, but becomes void when it is impeached by the person who has a right to get the transaction declared void. The observations of the learned Chief Justice are clear on the point that the alienation of dholi tenure is void ab initio. A void transaction is non est whereas a voidable transaction is good so long as it stands, but becomes void when it is impeached by the person who has a right to get the transaction declared void. The observations of the learned Chief Justice are clear on the point that the alienation of dholi tenure is void ab initio. If it is void, it is non est. On the other hand if it is voidable the alienor could not challenge it. Whereas according to the learned Chief Justice a dholidar can impeach the very alienation he has made. Thus the alienation is void and not voidable. Therefore, it must be held that the defendants could defeat the redemption suit on the short ground that there was no mortgage in favour of the plaintiff." The same view was expressed by a Division Bench of this Court in Dharma v. Smt. Harbi, 1976 Revenue Law Reporter 641. I feel bound by these decision and, therefore, have no hesitation in holding that dohlidari rights cannot be alienated. 4. It is true that another Division Bench of this Court in Baba Badri Dass v. Dharma and others, 1981 PLJ 447 expressed some doubt to the correctness of the aforesaid decision but since this question was not directly involved in that case, the learned Judges left the matter there and did not decide the same as is clear from the following observations :- "The observations of the Bench in Dharmas case (supra) are in the nature of obiter dicta and do not seem to have arisen on the facts of that case. We, therefore, hold that though a dohlidar is not an owner of the land as the term is well understood yet is otherwise a landowner for the purposes of the Act. The other questions whether he is a trustee or that his alienations are void ab inito do not arise in the present case, though we had our doubts about the correctness of the view in that regard taken by the Labour High Court in Sewa Rams case (supra)." In Sewa Rams case (supra), the Lahore High Court also observed that the office of a Dohlidar is similar to that of a trustee. In Khema Nand and others v. Kundan and another, AIR 1937 Lahore 805, Monroe, J. took the view that a Dohlidar is a tenant in perpetuity. In Khema Nand and others v. Kundan and another, AIR 1937 Lahore 805, Monroe, J. took the view that a Dohlidar is a tenant in perpetuity. This view was followed by a learned single Judge in Baba Nand Ram v. Gram Panchayat, 1976 PLJ 586. The learned Judges of the Division Bench in Baba Badri Dasss case (supra) considered these judgments and did not agree with the view that a Dohlidar was a tenant in perpetuity and to this extent they disagreed with the view of the Lahore High Court and reversed the judgment of the learned single Judge in Baba Nand Rams case (supra). This question - whether a Dohlidar is a tenant in perpetuity or not, does not arise in the case before us and I, therefore, express no opinion in this regard. 5. Next question that arises is whether the decree dated 20.7.1976 amounted to alienation of the dohlidari rights. As already observed, Chiranji Lal suffered the decree in favour of his sons on the basis of a family settlement. It is not in dispute that on the basis of that decree the land was mutated in the names of Lakshmi Chand and Karan Singh defendants and the plaintiff and defendant No. 4 were deprived of their rights in the estate of Chiranji Lal. As noticed by the courts below, Lakshmi Chand and Karan Singh had no connection with the land in dispute before the passing of the decree. It obviously amounted to alienation of the dohlidari rights in favour of the two sons to the exclusion of the daughters and the courts below were right in holding that the decree amounted to alienation. The learned senior counsel appearing for the appellants strenuously urged that the decreed did not amount to alienation and that it only amounted to acceleration of succession. This contention cannot be accepted for the simple reason that if the decree was an acceleration of succession then the plaintiff and defendant No. 4 who were also heirs of Chiranji Lal should have inherited the estate but they did not. Therefore, it can be safely concluded that the decree did not accelerate the succession but only alienated the dohlidari right in favour of Lakshmi Chand and Karan Singh to the exclusion of the plaintiff and defendant No. 4. I have, therefore, no hesitation in rejecting the contention of the leaned counsel. Therefore, it can be safely concluded that the decree did not accelerate the succession but only alienated the dohlidari right in favour of Lakshmi Chand and Karan Singh to the exclusion of the plaintiff and defendant No. 4. I have, therefore, no hesitation in rejecting the contention of the leaned counsel. Since the dohlidar rights could not be alienated, the decree was rightly held to be void by the courts below. No fault can, thus, be found with the findings of the courts below in this regard which I hereby affirm. 6. Lastly, it was urged by the leaned senior counsel for the appellants that the plaintiff being a female could not inherit the dohlidari rights. He referred to some paragraphs from the Punjab Settlement Manual by Sir James M. Douie which were noticed by the learned Judges in Baba Badri Dasss case (supra) to contend that a Dohlidar is a malik kabza and that dohli is a tenure which is granted on the specific condition that the grantee would render services in lieu thereof and that the plaintiff being a female residing in a different village could not render those services. The argument is that the services can be rendered only by the sons who are residing in the village and if the females do not render services the tenure is likely to revert back to the original owner. According to the counsel, it should be inferred that only the males can inherit the dohli tenure and not the females. This contention appears to me to be without any merit. Whatever be the nature of a dohli tenure, it is certainly a right in property which will be inherited by the heirs on the death of the Dohlidar and the succession will take place in accordance with the provisions of the Hindu Succession Act. In this view of the matter, the plaintiff who is the daughter of Chiranjit Lal is entitled to succeed to his estate on his death being a class I heir. I am, therefore, in agreement with the findings of the courts below that the plaintiff is entitled to succeed to the estate of Chiranji Lal deceased. In Tirkhas case (supra), it was Smt. Kasturi daughter of Kishan Jiwan who succeeded to the dohli tenure. No other point was raised. I am, therefore, in agreement with the findings of the courts below that the plaintiff is entitled to succeed to the estate of Chiranji Lal deceased. In Tirkhas case (supra), it was Smt. Kasturi daughter of Kishan Jiwan who succeeded to the dohli tenure. No other point was raised. In the result, the appeal fails and the same stands dismissed with no order as to costs. Appeal dismissed.