Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 3389 (PNJ)

Dharam Vir v. Bahadur Singh

2006-08-25

ADARSH KUMAR GOEL, RAJESH BINDAL

body2006
JUDGMENT This appeal has been placed before us in pursuance of order of reference by one of us (Adarsh Kumar Goel, J.) dated 5.10.2004 on account of conflict of decisions on the question of alienability of dohli tenure. The order of reference is as under :- "This appeal has been preferred by the defendant against decree of the courts below rejecting Will dated 22.12.1969 in favour of the defendant on the ground that the same was executed by Prithi Singh, who was a dohlidar and on account of customary law, had no right to make a Will in respect of the property. Nature of right of a dohlidar has been considered in various decisions. In Sewa Ram v. Udegir, ILR 2 Lahore 313, it was observed :- "It is beyond dispute that tenure of this kind cannot be alienated by sale or mortgage, and there can be little doubt that any alienation of that character, if made by the dohlidar, would be absolutely void. This being the case, we are not prepared to accept the contention that the present dohlidar, who is the son of the alienor, is precluded by any rule of law from impeaching the alienation made by his father. As the transaction was altogether void, we consider that even the alienor could have successfully pleaded in answer to the plaintiffs suit that the latter could not enforce it in a Court of law. There is, therefore, no reason why the defendant should not be able to impeach the alienation, more especially when we remember that the office of a dohlidar is similar to that of a trustee, and that it is open to one trustee to impeach the validity of an alienation made by his predecessor." The said view has been followed by this Court, inter alia, in Tirkha and others v. Dwarka Parshad and another, 1972 PLJ 614; Sahdev Singh v. Lakshmi Chand and others, 2003(1) RCR(Civil) 300 (P&H) : 2003(1) PLR 573 and Dhani Ram and another v. Gram Sabha and Gram Panchayat of Village Jatmalpur and others, 1984 PLJ 234. The said decisions have been relied on by the learned counsel for the respondents in support of the view taken by the courts below. The said decisions have been relied on by the learned counsel for the respondents in support of the view taken by the courts below. Learned counsel for the appellant referred to the decisions of this Court in Mahant Sirya Nath chela Mahant Puran Nath v. The Financial Commissioner, Haryana and other, 1969 RLR 5; Mahant Karam Singh and others v. Shri Mulakh Raj and another of Amritsar, 1992 HRR 408; Smt. Daljit Kaur v. Smt. Rukman and others, 1989(1) PLR 30 and particularly, a DB judgment of this Court in Baba Badri Dass v. Dharma and others, 1982(1) ILR 491, wherein it was inter alia observed as under :- "Sewa Rams case (supra) gave at the same time two sets of reasonings in our view mutually exclusive, namely that a dohlidar is a trustee and his alienations of the dohli property/rights are void ab initio and the other that the dohlidar is a perpetual tenant. Now this kind of reasoning, with due respect, does not appeal to us. It is well understood in legal annals that a trustee is the legal owner of the property, the actual owner thereof having lost title thereto by the creation of a trust. The equitable ownership is the trust property vests in the beneficiaries. The trust is thus an incident of dual ownership in which the creator of the trust no longer figures. A perpetual tenant, on the other hand, partakes the character of an occupancy tenant and in this relationship his landowner is not divested of the title to the property demised..." (Para 9) "... It is equally inconceivable how a validly created trust in the event of the trustee or his successors-in-interest failing or refusing to perform their duties could warrant the abolition of the trust causing extinguishment of dohli rights or that the property reverts to the original proprietors. The observations of the Bench in Dharmas case (supra) (1976 RLR 641) 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. 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 initio do not arise in the present case, though we have our doubts about the correctness of the view in that regard taken by the Lahore High Court in Sewa Rams case (supra)." (Para 13). "... For these reasons which are only some of them we differ from the view that the dohli tenure is of a perpetual tenancy or is over covered by the concept of tenancy at all. The view to the contrary taken by above referred to two decisions of the Lahore High Court does not appear to us to be correct. We do not expressly follow the decisions of the Lahore High Court in Sewa Rams case and Khema Nands case (AIR 1937 Lahore 805) and overrule the Single Bench decisions afore-quoted taking the view based thereon on this aspect." In spite of the above DB judgment of this Court in Baba Badris case, even subsequently in Dhani Ram and Sahdev Singhs cases (supra), a different view appears to have been taken by this Court. Following question, thus, arises for consideration :- "What are the restrictions on alienability of dohli tenure ?" In view of conflict in decisions of this Court in DB judgment in Baba Badri Dass (supra) and Single Bench judgments of this Court in Dhani Ram and Trikha (supra), it will be appropriate that this matter is considered by a Division Bench, subject to orders of Honble the Chief Justice. The matter is, accordingly, referred to a Division Bench." Facts : 2. Bahadur Singh, plaintiff filed suit for declaration to the effect that Will dated 22.12.1969 in favour of appellant Dharamvir was void and inoperative against the interest of the plaintiff and that plaintiff was dohlidar of 3/4th share of land mentioned in the suit and 2/3rd share in the tubewell and was, thus, entitled to injunction restraining appellant-defendant No. 1 from interfering in the rights of the plaintiff. One of the grounds for questioning the Will was that Prithi Singh, deceased was not owner but dohlidar and had no right to execute Will. Suit was contested by the appellant, Dharamvir. Following issues were framed :- "1. One of the grounds for questioning the Will was that Prithi Singh, deceased was not owner but dohlidar and had no right to execute Will. Suit was contested by the appellant, Dharamvir. Following issues were framed :- "1. Whether the said Prithi Singh, plaintiff and defendant were owners in possession of 1/3rd share each in the tubewell as alleged ? 2. Whether Mool Chand died about 25 years ago ? 3. Whether Dharam Pal defendant No. 2 has not been heard of for the last more than 20 years. If so, to what effect ? 4. Whether the plaintiff is the nearest heir of Prithi Singh, if so to what effect ? 5. Whether Prithi Singh executed a vaid Will in favour of defendant No. 1. If so to what effect ? 6. Whether the plaintiff has no locus standi ? 7. Whether the suit is not maintainable in the present form ? 8. Whether the owners of the land and the Gram Panchayat are necessary party to the suit. If so to what effect ? 9. Whether the plaintiff is estopped from filing this suit ? 10. Whether the suit is time barred ? 11. Whether the civil Court has no jurisdiction ? 12. Whether the valuation of the suit for purposes of court-fee is inadequate ? 13. Relief." 3. The courts below decreed the suit as a result of finding on Issue No. 5. Though, due execution and genuineness of the Will was held to have been proved (Para 22 of trial Court judgment), it was held that Dohli tenure being inalienable, the Will was void. The trial Court observed :- "24. This now brings me to the second attack based on the point that the dohli tenure could not be alienated by Prithi Singh. Admittedly, Prithi Singh was a dohlidar of the suit land. It is laid down in Tirkha and others v. Dwarka Parshad and another, 1972 PLJ 614 and Dharma v. Smt. Harbai, 1976 PLJ 617 that the dohli tenure cannot be alienated and such a restriction on the dohlidar is not void. Any such alienation made by dohlidar is void, ab initio. Even the dohlidar himself is not estopped from challenging the validity of the transaction. It is not disputed that the Will is an alienation of the dohli tenure by Prithi Singh. By executing that document he changed the line of succession. Any such alienation made by dohlidar is void, ab initio. Even the dohlidar himself is not estopped from challenging the validity of the transaction. It is not disputed that the Will is an alienation of the dohli tenure by Prithi Singh. By executing that document he changed the line of succession. In Section 3 of the Punjab Limitation (Custom)-Act of 1920 alienation has been defined as inclusive of any testamentary disposition of property. Though, its definition is not strictly applicable in the present case but there seems to be no other alternative but to hold that by executing the Will Prithi Singh alienated the property inasmuch as he made its transfer to the defendant Dharamvir after his death and otherwise and in the absence of the Will it would have devolved upon the plaintiff. In this situation the execution of the Will being alienation is contrary to the legal position. As pointed out in the aforesaid two judgments the dohli tenure could not be alienated by the dohlidar Prithi Singh." The lower appellate Court affirmed the above finding. 4. We have heard learned counsel for the parties and perused the record. 5. Contention raised on behalf of the appellant is that a substantial question of law as to whether the courts below were justified in declaring the Will to be void on the ground that the testator had no right to make Will as dohli tenure was "inalienable" ? Conflict of decisions of the issue of Alienability of Dohli Tenure : 6. To resolve conflict in decisions of this Court on the question of alienability of dohli tenure, it may be noticed that the term dohli or dohlidar has not been statutorily defined but the said term has been in use in the revenue record and has been dealt with in judicial decisions. 7. First decision to be noticed is a DB judgment of Lahore High Court in Sewa Ram v. Udegir, AIR 1922 Lahore 126 : ILR 2 Lahore 313, wherein following observations were made :- "The dohli tenure is a peculiar kind of tenure to be found in the south- eastern districts of Punjab. It is a rent-free grant of a small plot of land by the village community for the benefit of a temple, mosque or shrine, or to a person for a religious purpose. It is a rent-free grant of a small plot of land by the village community for the benefit of a temple, mosque or shrine, or to a person for a religious purpose. In the revenue records the proprietary body are recorded as the owners of the property, and the grantee is recorded as a tenant in the column of cultivation. So long as the purpose, for which the grant is made, is carried out, it cannot be resumed, but should the holder fail to carry out the duties of his office, the proprietors can eject him and put in some one else under a like tenure." The said observations have continued to be followed in : 1. Khema Nand and others v. Kundan and another, AIR 1937 Lahore 805; 2. Tirkha and others v. Dwarka Parshad, 1972 Punjab Law Journal 614; 3. Baba Nand Ram v. Gram Panchayat of Village Malkos, 1976 Punjab Law Journal 586; 4. Dharma v. Smt. Harbai, 1976 PLJ 617; 5. Dalip Singh and others v. Puran Dass and another, 1977 Punjab Law Journal 178; 6. Dhani Ram and another v. Gram Sabha and Gram Panchayat of Village Jatmalpur and others, 1984 Punjab Law Journal 234; 7. Sittal Dass and another v. Financial Commissioner Haryana and others, 1989 Punjab Law Journal 148; 8. Bhim Singh v. Dalip Singh, 1993(1) Recent Revenue Reports 606; 9. Lakshmi Chand v. Basanti alias Kailash,: 2003(1) PLJ 321; 10. Ghisa Ram v. Surat Singh & Co., (P&H) : 2003(2) Punjab Law Journal 565; 11. Dharam Singh and others v. Smt. Phullan Devi and others, 2005(3) Punjab Law Reporter 175; 12. Dev Dutt and others v. Gram Panchayat Ranila, 1993 PLJ 437 (SB) Para 8. 8. These decisions represent one view, which may be referred to as the first view, while a different view appears to have been taken in a set of judgments of this court out of which leading judgment is DB judgment in Baba Badri Dass v. Dharma and others, 1981 Punjab Law Journal 447 Para 5 : 1982(1) ILR 491, which can be referred to as the second view, which has been followed in Mandir Darbari Lal Ji v. Financial Commissioner, Haryana and others, 1997(1) PLJ 360 (SB), Para 4. First view : 9. First view : 9. Relevant observations in the judgments representing the first view following observations made in Sewa Rams case (supra), are as under :- In Khema Nands case (supra), it was observes as under : "It would appear, therefore, that on a grant in dohli, the proprietors continue to be proprietors of the land and the dohlidar in right of the temple and his successors become tenants in perpetuity." 10. In Tirkhas case (supra), a Single Bench of this Court held as under :- "It is beyond dispute that tenure of this kind cannot be alienated by sale or mortgage, and there can be little doubt that any alienation of that character, if made by the dohlidar, would be absolutely void. This being the case, we are not prepared to accept the contention that the present dohlidar, who is the son of the alienor, is precluded by any rule of law from impeaching the alienation made by his father. As the transaction was altogether void, we consider that even the alienor could have successfully pleaded in answer to the plaintiffs suit that the latter could not enforce it in a Court of law. There is, therefore, no reason why the defendant should not be able to impeach the alienation, more especially when we remember that the office of a dohlidar is similar to that of the trustee, and that it is open to one trustee to impeach the validity of an alienation made by his predecessor." 11. In Baba Nand Rams case (supra), a Single Bench of this Court, while referring to Section 50, and Clause 5 of Section 4 of the Punjab Tenancy Act and defining the word "Tenant" held as under : "It is not disputed that a Dohlidar does not fall within any of sub-clauses (a), (b), (c) and (d) of the definition." xx xx xx "I have no hesitation in holding, therefore, that the status of a dohlidar does not differ from that of tenant, albeit that a tenant is a dohlidar in perpetuity. It is true that the holder of a dohli tenure has no liability to pay rent but then that is so because of the nature of the grant which is rent-free and according to which the tenant, instead of paying the rent, has to perform certain obligations of a religious nature. It is true that the holder of a dohli tenure has no liability to pay rent but then that is so because of the nature of the grant which is rent-free and according to which the tenant, instead of paying the rent, has to perform certain obligations of a religious nature. A dohlidar enters upon the land under the grant which is in the nature of a special contract and according to which he is to pay no rent but is to perform certain other obligations. That being so, he is covered by the definition reproduced above. It follows that Section 50 of the Act applies to a dohlidar as to any ordinary tenant and the result is that a suit for possession of land comprised in his tenancy must be brought by him within a year of his dispossession. Further, such a suit is cognizable only by revenue Courts and not at all by civil Courts in view of the provisions of clause (g) of sub-section (3) of Section 77 of the Act which lays down :" 12. In Dharmas case (supra), a Division Bench held as under : "7. This brings me to the real point in controversy on which elaborate arguments were advanced, i.e. whether the present lease-deed for 99 years amounts to permanent alienation or not. Again, in my view, the answer has to be in the affirmative. The lease-deed Exhibit D-2 is for 99 years on an annual rent of Rs. 480/-. On the expiry of the term of lease the possession is to revert to the lessor and in case of non-payment of rent, the lessor is entitled to take legal action for its realisation. This shows that the lessee could not be evicted from the land before the expiry of full term of 99 years and thus it is a lease from generation to generation and the proprietors could not take possession from the lessee even though the Dohlidar failed to render the services as required under the Sharat Wajib-ul-arz. It is settled law that a person cannot pass title which he himself does not hold. The Dohli is not a permanent tenure and the moment the Dohlidar fails to render the requisite services for which the Dohli was created, the Dohli rights are extinguished and property reverts to the original proprietors. 8. It is settled law that a person cannot pass title which he himself does not hold. The Dohli is not a permanent tenure and the moment the Dohlidar fails to render the requisite services for which the Dohli was created, the Dohli rights are extinguished and property reverts to the original proprietors. 8. In view, the terms and conditions of the lease-deed in question clearly lead to one irresistible conclusion that it was a case of a permanent alienation. I do not agree with Mr. Kapoor that the Dohlidar has a right to create a lease and the same could not be successfully challenged. The Dohlidar, according to the specific condition in Sharat Wajib-ul-arz is debarred from making a sale or mortgage of the Dohli tenure and the present transaction being a permanent alienation has to be held to be void ab initio. On this aspect of the matter, the following observations of a learned Single Judge of this Court in Tirkha and others v. Dwarka Parshad and another, 1972 PLJ 614, may be read with advantage : "There is a world of difference between a void and 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 Dohli 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 Dohlidar can impeach the very alienation he has made. Thus the alienation is void and not voidable." 13. In Dalip Singhs case (supra), a Single Bench of this Court held as under : "7. .... The fact that the land was donated as Dohli further proves beyond doubt that it was donated for a religious purpose. In Sewa Ram v. Udegir, AIR 1922 Lahore 126, the nature of a Dohli tenure came under consideration and it was held that it was a rent-free grant of a small plot of land by the village community for the benefit of a temple, mosque or shrine, or to a person for a religious purpose. In Sewa Ram v. Udegir, AIR 1922 Lahore 126, the nature of a Dohli tenure came under consideration and it was held that it was a rent-free grant of a small plot of land by the village community for the benefit of a temple, mosque or shrine, or to a person for a religious purpose. This decision was followed by Mahajan, J., as he then was, in Tirkha and others v. Dwarka Parshad and another, 1972 PLJ 614, and it was held that the status of a Dohlidar was similar to that of a trustee. 8. xx xx xx 9. ..... According to the learned counsel, a presumption of truth is attached to the entries in the Jamabandis and the said entries show that the land was the personal property of Madho Ram and his descendants. The argument is wholly fallacious. It is admitted that this land was given as a Dohli which by itself shows that it had been given for religious purposes. The fact that it was entered in the name of the then Mahant of the Dharamshala was, therefore, of no consequence...." 14. In Dhani Rams case (supra), a Single Bench of this Court held as under :- "4. I have heard the learned counsel for the parties and have also gone through the case law cited at the bar. In Baba Badri Dasss case (supra), the case has arisen out of a writ petition. The Dohlidar filed an ejectment petition against his lessee/tenants under Section 9(1) on form L of the Punjab Security of Land Tenures Act, 1963, before the Assistant Collector Ist Grade, Rohtak. The tenants resisted the claim of the petitioner inter alia on the ground that the petitioner was not the landowner as defined in the Act, and, therefore, the petition for ejectment was not competent. Thus the matter was considered in view of the provisions of the Punjab Security of Land Tenures Act and, therefore, in the end of para 13 thereof it was observed:- "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 purpose of the Act. The other question whether he is a trustee or that his alienations are void ab initio do not arise in this case, though we have our doubts about the correctness of the view in that regard taken by the Lahore High Court in Sewa Rams case (supra)." In view of these observations, the said case is clearly distinguishable and has no applicability on the facts of the present case, which arises out of a regular suit filed by the landowners against the Dohlidar, as he failed to perform his duties and transferred the land by way of lease. Such a matter was considered by the Division Bench in Dharmas case (supra). It was observed therein in para 7 "that the Dohli is not a permanent tenure and the moment the Dohlidar fails to render the requisite services for which the Dohli was created, the Dohli rights are extinguished and property reverts to the original proprietors." The said observations are fully applicable to the facts of the present case. It has been concurrently held by both the Courts below that the leases executed by defendant No. 1 in favour of defendant Nos. 2 to 4 amount to mortgages and/or alienation and, therefore, are not binding on the proprietors who are entitled to recover possession of the suit land from the defendants. Apart from that the defendants did not produce Sharat Wajib-Ul-Arz in the case to prove that it was outright gift to the Dohlidars and he was thus competent to make the alienation. In the absence of such evidence, it could not be successfully argued on behalf of the appellants that defendant No. 1 being Dohlidar had become the owner of the suit land and, was thus competent to make the alienation. The learned counsel for the respondents also referred to the customary law of the Rohtak District by E. Joseph, I.C.S. Settlement Officer. In reply to question No. 94 relating to the gifts it was stated therein : "All tribes say that a gift must not be conditional or implied. It may be oral or in writing but an oral gift must be entered in the revenue papers. Transfer of possession is in all cases compulsory." Note : The commonest form of gift is that of a Bigha or so of land in Dohli for religious purposes. It may be oral or in writing but an oral gift must be entered in the revenue papers. Transfer of possession is in all cases compulsory." Note : The commonest form of gift is that of a Bigha or so of land in Dohli for religious purposes. Possession in these cases is given though sometimes the landlord retains possession and gives the produce to the dohlidar. It is the essence of a dohli that the landlord pays the revenue. Land may of course be gifted outright to a religious man the donee becoming full owner and paying revenue." Thus under the circumstances, if the defendant No. 1 claimed himself to be the full owner and paying revenue it was obligatory for him to produce the Sharat Wajib-Ul-Arz or any other cogent evidence to support this claim and as observed earlier he has failed to prove it on the record." 15. In Sittal Dasss case (supra), a Division Bench held as under :- "After hearing the learned counsel for the parties and on consideration of the matter, we are of the view that Sewa Rams case (supra) is correctly decided. The principles laid down in the aforesaid judgment were followed in another Division Bench judgment of this Court in Dharma v. Smt. Harbai, 1976 PLJ 617. This Division Bench had followed the observations made by the learned Single Judge in Tirkha and others v. Dwarka Parshad and another, 1972 PLJ 614, who in turn had followed Sewa Rams case (supra). We are of the opinion that all these three cases are correctly decided and lay down unequivocally that the sale, mortgage or any other alienation of Dohli tenure is void ab initio ... ... ..." 16. In Bhim Singhs case (supra), it was held as under :- "4. The defendant challenged the judgment and decree of the trial Court in first appeal. It was urged in that Court that the Dohli was created till enternity and the Dohlidar was competent to alienate the same and the land would not revert to the proprietors. The first appellate Court after examining the entries in mutation Exhibit P-3, under which Dohli was sanctioned in favour of the Dohlidar, came to the conclusion that even if the grant was in perpetuity to the Dohlidar there was no intention on the part of the proprietors to transfer the rights of ownership to the Dohlidar. The first appellate Court after examining the entries in mutation Exhibit P-3, under which Dohli was sanctioned in favour of the Dohlidar, came to the conclusion that even if the grant was in perpetuity to the Dohlidar there was no intention on the part of the proprietors to transfer the rights of ownership to the Dohlidar. The rights of ownership vested in the proprietors and the Dohlidar was allowed to enjoy usufruct of the property till eternity or any indefinite period. It further found that if the intention had been to transfer the rights, it would have been so said in the order of the revenue officer while sanctioning the mutation. The defendant aggrieved against the judgment and decree of the first appellate Court has come up in second appeal. 5. The first appellate Court on the basis of evidence rightly came to the conclusion that the Dohlidar was not to become the owner of the property given in Dohli to him irrespective of the fact whether he performed services or not. The Dohlidar was only given the right to enjoy the usufruct of the property and on the extinction of line of Dohlidar, the property was to revert to the proprietors. The perpetual lease created by Dohlidar will be invalid after his death. No exception can be taken to the conclusion arrived at by the first appellate Court." 17. In Lakshmi Chands case (supra), a Single Bench of this Court held as under : 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. 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 decree 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 N. 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 to 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 learned 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 learned 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. 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 Chiranji 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." 18. In Ghisa Rams case (supra), a Single Bench of this Court held as under : "I have thoughtfully considered the submissions made by learned counsel for the defendant-appellants and regret my inability to accept the same. It is a well settled principle of law that Dohlidars cannot alienate the property by way of sale, mortgage or a permanent lease nor such a lease confers any right on the lease...." 19. In Dharam Singhs case (supra), a Single Bench of this Court held as under : "3. After hearing the learned counsel, I am of the considered view that no question of law warranting admission of appeal would arise for determination of this Court. Firstly, no deed of Dohli has been produced on record wherein the conditions of Dohli might have been enshrined. In the absence of furnishing any proof showing the stipulation that the defendant-respondents were under an obligation to perform Pooja by lighting a Jyoti, it cannot be concluded that any condition of Dohli has been violated once such a stipulation is non-existent. The land which is proved to be in possession of defendant-respondents through their ancestors since 1884 cannot revert back to the plaintiff-appellants. Merely because the entries continued to be in the name of widow and father of the defendant-respondents respectively would not lead to a conclusion that the Dohli has to never back to the plaintiff- appellants or because Dei Ram was not able to nominate any Chela. Merely because the entries continued to be in the name of widow and father of the defendant-respondents respectively would not lead to a conclusion that the Dohli has to never back to the plaintiff- appellants or because Dei Ram was not able to nominate any Chela. The Dohli in fact has been found to be inheritable as it has been proved that after Raje and Section (?), it came to Dhanno and Jug Lal by succession and from Jug Lal to Dei Ram. The documents Exs. D-5 to D-8 and D-10 bear ample testimony to this effect. The aforementioned view has also been taken by the judgment of this Court in the case of Lakshmi Chand (supra). Therefore, there is no room to interfere in the view taken by the learned Additional District Judge. The defendant-respondents cannot be deprived of their rights which have been proved on record since 1884." 20. In Dev Dutts case (supra), it was observed in para 8 :- "8. Dohli tenure is a peculiar kind of tenure to be found in the south- eastern districts of Punjab. It is a rent-free grant of a small plot of land by village community for the benefit of a temple, mosque or shrine or to a person for religious purposes. Invariably, the proprietary body is recorded as owners of the property whereas dohlidar is recorded as a tenant in the column of cultivation. How and in what manner dohli tenure originated is not known. All the same, it is taken that a dohlidar is a trustee who is entitled to retain its possession and has no power to alienate by means of sale, mortgage or gift. Since this is an endowment for the benefit of village community rights of dohlidar flows to chela as well. The plaintiffs who are sons, daughters, and widow of Chandgi Dass, admittedly have not succeeded as Chelas. There is neither an averment nor any proof on record that at any given time they or any one of them had been accepted as a Chela by the village proprietary body. In the absence of any Chela of Chandgi Dass such a dohli must be assumed to have come to an end." Second view : 21-29. Relevant observations in Baba Badri Dasss case (supra), are as under :- "4. In the absence of any Chela of Chandgi Dass such a dohli must be assumed to have come to an end." Second view : 21-29. Relevant observations in Baba Badri Dasss case (supra), are as under :- "4. On the annexation of Punjab to British India the land tenures and rights of landowners came to be governed by two important pieces of legislation. The first was the Punjab Tenancy Act (XXVIII of 1868) which later came to be substituted by the Punjab Tenancy Act, 1887 (XVI of 1887), which held the field till after the independence of the country and still holds the field in a truncated way. The other one was the Punjab Land Revenue Act (XXXIII of 1871) which later came to be substituted by the Punjab Land Revenue Act, 1887 (XVI of 1887), which holds the field till date. These twin legislations i.e. Act XVI and XVII of 1887, have supplemented each other in a variety of ways. Behind each legislation prevails the experience gathered by the British Settlement Officers who had become acquainted with the complex traditions and behaviourisms of the various communities in the State of Punjab. Their experiences, the necessities of proceeding in particular directions in effecting settlements, in regulating land revenue etc. came to be complied in the Punjab Settlement Manual by Sir James M. Douie, K.C.S.I.I.C.S., the first edition of which was published on 6th October, 1899. There have been subsequent editions as well improving the previous ones. We find the expression Dohli or Dohlidar significantly missing from both the Punjab Tenancy Act and the Punjab Land Revenue Act but alluded to only in the Manual in the following manner :- Glossary of Vernacular Words Dohli. - Death-bed gift of a small plot of land to a Brahman. Book II - The Records Rights Chapter VIII - Of tenures and the rights of landowners. Paragraph 142 Malik Kabza. - "Owners are sometimes found in village communities who do not belong to the brotherhood and are not sharers in the joint rights, profits and responsibilities of its members. Their proprietary title is a complete or undivided one, but it is confined to certain fields and does not include any share in the village waste. The name by which this tenure is officially known in the Punjab is malkiyat makbuza, and the holder of it is called malik kabza. Their proprietary title is a complete or undivided one, but it is confined to certain fields and does not include any share in the village waste. The name by which this tenure is officially known in the Punjab is malkiyat makbuza, and the holder of it is called malik kabza. These terms indicate that the interest of the proprietor is limited to the land actually in his own possession. This land he can let, mortgage, or sell as he pleases, and he is responsible for the payment of its revenue. A familiar instance of this form of landholding is the right acquired by a Brahman, who receives a dohli or death-bed gift of a small plot of land from a landowner. The tenure is also created whenever a landowner sells a part of his holding without the appurtenant share of the village common land. The malik kabza tenure is common in the districts of Gujarat, Rawalpindi, Jhelum, Attock and Hazara, where it was introduced at the first regular settlement under circumstances which will be described in a later paragraph. In some cases, the status of malik kabza is combined with that of an inferior proprietor.. ... ... ..." "175. Forms of ownership recognised. - Our officers had in fact to seek for a fair compromise of conflicting claims. In Gujarat, which was the first of the districts to be settled, and where the Sikh mill had ground exceeding small the old owners, known as warisan do not seem to have pressed their claims very hotly. But in Jhelum and Rawalpindi, which then included tahsils now in Attock, the former lords of the soil vehemently contested the proprietary right with the cultivating communities. The original villages of the leading clans often covered very large areas, and cultivators had been located in outlaying dhoks, or hamlets, whose occupants now claimed to be treated as entirely independent communities. Tenants in the parent villages alleged that they also possessed full rights as owners on the ground that the old landholders had received from them no sort of recognition of proprietorship. A similar state of things existed in Hazara, where the settlement did not begin till 1868. Four classes of owners emerged :- (a) talukdars or ala malikan, (b) malikan or warisan, (c) adna malikan, and (d) malikan kabza. A similar state of things existed in Hazara, where the settlement did not begin till 1868. Four classes of owners emerged :- (a) talukdars or ala malikan, (b) malikan or warisan, (c) adna malikan, and (d) malikan kabza. The nature of the tenure of ownership of the last class has been described in paragraph 142. It was introduced into the settlement of the North-West districts of the Punjab under the orders of Mr. Thornton, the Commissioner of Rawalpindi. It has been remarked that he invented the name, but not the thing. At any rate the solution of the ownership problem which he proposed was not unfair, and where it was adopted, the form of landholding produced was not unlike that which had grown up spontaneously in some of the South-Western districts. Of course, new tenures of malikan kabza are created whenever land is sold without its appurtenant share in the common waste". Mr. Douies views in the Settlement Manual are treated with great respect but these cannot take place of statutory provisions. See Sardara Singh and others v. Sardara Singh and others, 1976 PLJ 199 (DB). Still he had feared while prefacing his first edition in 1899 in this manner:- "..... But it must be remembered that the generation familiar with the early revenue history of the Punjab is rapidly passed away, and that experience shows that it is hard to say of any administrative controversy in India that it is really dead, or of any policy that it has been finally abandoned. Some questions which seemed at one time to have been settled are sure to be revived, and it is well that those who may have to take part in the discussion should know, at least in broad outline, what in the past has been urged and decided in regard to them." From the Settlement Manual it becomes clear that the dohli tenure was a holding the right of which had been acquired by a Brahman, who received it as such as a death-bed gift from a landowner, and that as a dohlidar, he was in the status of a malik kabza. It is also clearly recognised vide para 175 ibid that these tenures had spontaneously grown in the South-Western districts of Punjab, but had to be given a name when they were being enforced or made applicable in the Northern districts vide para 142 ibid. It is also clearly recognised vide para 175 ibid that these tenures had spontaneously grown in the South-Western districts of Punjab, but had to be given a name when they were being enforced or made applicable in the Northern districts vide para 142 ibid. Being termed as malik kabza, the dohlidar was held under para 142 ibid to be responsible for the payment of land revenue and otherwise entitled to let, mortgage or sell it as he pleased. 5. Judicial precedents, however, oblivious perhaps of the material available in the Punjab Settlement Manual, appear to have taken a course of their own. In Sewa Ram v. Udegir, AIR 1922 Lahore 126, a Division Bench consisting of Shadi Lal, C.J. and Harrison, J. spelled out the term dohli tenure in these terms :- "the dohli tenure is a peculiar kind of tenure to be found in the south- eastern districts of Punjab. It is a rent-free grant of a small plot of land by the village community for the benefit of a temple, mosque or shrine, or to a person for a religious purpose. In the revenue records the proprietary body are recorded as the owners of the property, and the grantee is recorded as a tenant in the column of cultivation. So long as the purpose, for which the grant is made, is carried out, it cannot be resumed, but should the holder fail to carry out the duties of his office, the proprietors can eject him and put in some one else under a like tenure. It is beyond dispute that tenure of this kind cannot be alienated by sale or mortgage, and there can be little doubt that any alienation of that character, if made by the dohlidar would be absolutely void. This being the case, we are not prepared to accept the contention that the present dohlidar who is the son of the alienor, is precluded by any rule of law from impeaching the alienation made by his father. As the transaction was altogether void, we consider that even the alienor could have successfully pleaded in answer to the plaintiffs suit that the latter could not enforce it in a Court of law. As the transaction was altogether void, we consider that even the alienor could have successfully pleaded in answer to the plaintiffs suit that the latter could not enforce it in a Court of law. There is, therefore, no reason why the defendant should not be able to impeach the alienation more especially when we remember that the office of a dohlidar is similar to that of a trustee, and that it is open to one trustee, to impeach the validity of an alienation made by his predecessor". 6. xx xx xx 7. xx xx 8. In Tirkha and others v. Dwarka Parshad and another, 1972 RLR 563 : 1972 PLJ 614, a Single Bench of this Court relying on Sewa Rams case (supra), held that any alienation by a dohlidar would be void ab initio. It was held to be non est. The latter paragraph of the judgment in Sewa Rams case, as extracted above, was quoted in the judgment to draw sustenance for the view taken. The view taken in Trikhas case was relied upon in Dharma v. Smt. Harbai, 1976 RLR 641 : 1976 PLJ 617 (DB), to hold that an alienation of a dohli was void ab initio. The Bench further went on to say that dohli was not a permanent tenure, and the moment the dohlidar fails to render the requisite services for which the dohli was created, the dohli rights are extinguished and the property reverts to the original proprietors. In Bharat Dass v. Gram Sabha Village Jahajgarh and others, 1973 RLR 280 : 1973 PLJ 117, the tenure in that case was spelled out to be a dohli. The former paragraph, as extracted above from Sewa Rams case, was quoted in the judgment at two places to draw sustenance for the view taken. 9. xx xx xx xx 10. xx xx xx xx 11. xx xx xx xx 12. xx xx xx xx 13. In Baba Nand Rams case (supra), the special contract conceived of by A.D. Koshal, J. in which the dohlidar undertakes not to pay any rent to the landowner but binds himself to perform certain other obligations to others, as it appears to us, is not a special contract but for which he would be liable to pay rent for that land to that other person. It appears to us that the service rendered by a dohlidar to institutions or persons other than the creator of the dohli, strictly speaking does not fall either within the concept of rent or within that of a tenant. The liability to pay rent to the creator of the dohli, or the latters right to claim rent in the event of the terms of dohli not being faithfully observed, is altogether missing in the nature of the creation of the tenure. It is equally inconceivable how a validly created trust in the event of the trustee or his successors-in- interest failing or refusing to perform their duties could warrant the abolition of the trust causing extinguishment of dohli rights or that the property reverts to the original proprietors. 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 initio do not arise in the present case, though we have our doubts about the correctness of the view in that regard taken by the Lahore High Court in Sewa Rams case (supra). 14. A passing reference need be made that out of the four classes of owners mentioned to have emerged in paragraph 175 of Douies Settlement Manual, the ala malikan have ceased to exist and the adna malikan have come to be full proprietors. That instance of dual ownership was abolished by the Punjab Abolition of Ala Malikiyat and Talukdari Rights Act, 1952. This obliterates classes of owners mentioned at serial numbers (a) and (c) and merged in class mentioned at serial number (b). Just two kinds of owners are prevalent now - (i) who are owners of and or their heirs, and (ii) landowners on the basis of possession. 15. The concept of perpetual tenancy as conceived of in Section 8 of the Punjab Tenancy Act in the light of Sections 5, 6 and 7 has also become non- existent on account of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. Occupancy or perpetual tenants have been made owners of the land. 15. The concept of perpetual tenancy as conceived of in Section 8 of the Punjab Tenancy Act in the light of Sections 5, 6 and 7 has also become non- existent on account of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. Occupancy or perpetual tenants have been made owners of the land. This Act came about to carry out agrarian reforms and to remove the intermediaries. And in the dohlidar is a perpetual tenant as conceived of in Sewa Rams and Khema Nands case (supra) of the Lahore High Court followed in the cases of Bharat Dass and Baba Nand Ram by this Court, then there is no reason why such like tenure should be allowed to exist in the face of the aforementioned statute. The reason is obvious. The succession to occupancy tenancy was governed by Section 59 of the Punjab Tenancy Act whereas succession to the dohli tenure is either natural or traditional. The occupancy tenure is capable of sale carrying with it a pre-emptory obligation to offer it in the first instance to the landowner. There is no such obligation in the dohli tenure treating it for the moment, though not holding, that is transferable. The occupancy rights are capable of being sold in execution of a decree against the occupancy tenant, but the rights of a dohlidar are not subject to such permissible process of Court under the law as understood. Alienations made by occupancy tenants are voidable at the instance of the landowner. For these reasons, which are only some of them, we differ from the view that the dohli tenure is of a perpetual tenancy or is ever covered by the concept of tenancy at all. The view to the contrary taken by above referred to two decisions of the Lahore High Court does not appear to us to be correct. We do not expressly follow the decisions of the Lahore High Court in Sewa Rams case and Khema Nands case and overrule the Single Bench decisions afore-quoted taking the view based thereon on this aspect. 16. Now when the dohlidar is not a perpetual tenant as held by us, application of the dohli tenure in Douies Settlement Manual as an instance of malik kabza and hence that of a landowner for the purposes of the Land Revenue Act and derivatively for the purposes of the Act, appears to us crystal clear. 16. Now when the dohlidar is not a perpetual tenant as held by us, application of the dohli tenure in Douies Settlement Manual as an instance of malik kabza and hence that of a landowner for the purposes of the Land Revenue Act and derivatively for the purposes of the Act, appears to us crystal clear. He is a landowner because he is in possession of the land. We take the view as taken by H.R. Sodhi, J. in Mahant Sirya Naths case (supra) and hold that a dohli tenure is an instance of malik kabza and a dohlidar, a landowner for the purposes of the Act." (Underlining supplied). Analysis of the Reasons for the conflict in the two views : 30. The first view proceeds on general assumption about the term dohli as being a grant or trust for religious purpose, while the second view treats the term dohli as gift creating full ownership. If dohli is treated as grant or trust for religious purpose, obviously the dohlidar will be merely a trustee and will have no right to use the property for purposes other than for which trust was created. If the trust property is used for any other purpose, the dohli tenure will come to an end and revert back to the original owner. On the other hand, if dohli was merely a gift, donee will become absolute owner on accepting the gift. 31. Survey of above case-law shows that view taken in Sewa Rams case (supra) by a Division Bench of Lahore High Court has been followed in the other 12 judgments listed above. In the second view, in Baba Badri Dasss case (supra) also by a Division Bench, the earlier view was not over-ruled, though correctness thereof was doubted. It was observed that question whether dohlidar was trustee and whether alienation by him was void ab initio, did not arise in that case, only question therein being whether qua tenant inducted by him, dohlidar was landowner so as to evict the tenant. Thus, even after the decision in Baba Badri Dasss case (supra) on 26.8.1981, view taken in Sewa Rams case (supra) has been followed in judgments mentioned at Sr. Nos. 6 to 12 in the earlier part of this judgment. Thus, even after the decision in Baba Badri Dasss case (supra) on 26.8.1981, view taken in Sewa Rams case (supra) has been followed in judgments mentioned at Sr. Nos. 6 to 12 in the earlier part of this judgment. In Sittal Dasss case (supra), which is again a judgment by Division Bench, it was observed that view taken in Sewa Rams case (supra) continued to hold the field. 32. It may also be noticed that in some of the judgments, question of proving the terms of dohli and result of non-compliance of the terms has also been adverted to. In Dharmas case (supra), it was observed that if "the Dohlidar fails to render the requisite services for which the Dohli was created, the Dohli rights are extinguished and property reverts to the original proprietors." In Dhani Rams case (supra), it was observed :- "Apart from that the defendants did not produce Sharat Wajib-Ul-Arz in the case to prove that it was outright gift to the Dohlidars and he was thus competent to make the alienation. In the absence of such evidence, it could not be successfully argued on behalf of the appellants that defendant No. 1 being Dohlidar had become the owner of the suit land and, was thus competent to make the alienation. The learned counsel for the respondents also referred to the customary law of the Rohtak District by E. Joseph, I.C.S. Settlement Officer. In reply to question No. 94 relating to the gifts it was stated therein : "All tribes say that a gift must not be conditional or implied. It may be oral or in writing but an oral gift must be entered in the revenue papers. Transfer of possession is in all cases compulsory." Note : The commonest form of gift is that of a Bigha or so of land in Dohli for religious purposes. Possession in these cases is given though sometimes the landlord retains possession and gives the produce to the dohlidar. It is the essence of a dohli that the landlord pays the revenue. Possession in these cases is given though sometimes the landlord retains possession and gives the produce to the dohlidar. It is the essence of a dohli that the landlord pays the revenue. Land may of course be gifted outright to a religious man the donee becoming full owner and paying revenue." Thus under the circumstances, if the defendant No. 1 claimed himself to be the full owner and paying revenue it was obligatory for him to produce the Sharat Wajib-Ul-Arz or any other cogent evidence to support this claim and as observed earlier he has failed to prove it on the record." 33. In Lakshmi Chands case (supra), it was observed :- "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 Chiranji Lal is entitled to succeed to his estate on his death being a class I heir." 34. Thus dohli tenure has to be held to be inalienable if dohli is a grant or trust for religious purpose. On the other hand, if dohli is a gift, restriction on alienability will not apply. Crucial issue for holding whether dohli tenure was alienable or not will depend upon terms of dohli, express or implied. Answer to the Question Referred : (I) The dohli tenure may be a rent-free grant for the benefit of a temple, mosque or shrine or to a person for a religious purpose and the grant continues till the holder carries out the duties of his office and can be terminated on failure to carry out the said duties as held in Sewa Rams case (supra). ILR 2 Lahore 313 : AIR 1922 Lahore 326 relied. (ii) Dohlidar may be a landowner qua his tenant in the situation mentioned in Baba Badri Dasss case (supra). 1982(1) ILR 491 relied. ILR 2 Lahore 313 : AIR 1922 Lahore 326 relied. (ii) Dohlidar may be a landowner qua his tenant in the situation mentioned in Baba Badri Dasss case (supra). 1982(1) ILR 491 relied. (iii) Dohlidar may be an owner if dohli is in the nature of gift and at the time of creating dohli, no condition for use of the dohli land for the benefit of a temple, mosque or shrine or other religious purpose is imposed, as noticed in judgments of this Court in Baba Badri Dass case, 1982(1) ILR 491 and Dhani Rams case (supra) (1984 PLJ 234). (iv) If a dohli is held to be a grant for a religious purpose, its management, alienability and succession will not be governed by law of management, alienability or succession of an individuals property but by succession, management or alienation of a religious property. The question stands answered accordingly. Decision in the present case : 35. In the present case, the plaintiff did plead inalienability of dohli tenure but no evidence about origin or terms of dohli has been brought on record. On the other hand, a perusal of Will Ex. D-2 shows that according to the testator, the suit property was personal property of the testator. The defendant, in the written-statement, did not dispute existence of dohli tenure but stated that there was no restriction on alienation. In absence of pleadings about terms of dohli and material showing violation of terms of dohli, finding of inalienability of dohli tenure cannot be sustained. 36. The plaintiff has claimed his rights under the Hindu Succession Act, 1956 implying that the property held by the testator was his personal property. Having taken such a plea, the plaintiff could not plead that the title of testator was not absolute title. On this ground alone, the plaintiffs suit ought to fail. 37. In view of the above, we allow this appeal, set aside the judgment and decree of the courts below and dismiss the suit. Appeal allowed.