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2017 DIGILAW 987 (HP)

Ram Singh v. Kamla Devi

2017-08-30

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The plaintiffs' suit for rendition of a decree for possession of the suit land upon the defendants, suffered dismissal, under, concurrently recorded judgments and decrees rendered by both the learned Courts below. In sequel thereto, the plaintiffs/appellants herein are driven to institute the instant appeal herebefore. 2. Briefly stated the facts of the case are that the original plaintiff Harnam Singh had filed a suit against the defendants for possession with respect to the suit land as detailed in the plaint. It is pleaded that plaintiff Harnam Singh executed a gift deed of 21.4.1992 in favour of defendant No.1 and transferred possession of the suit land in her favour. The gift deed was in the form of a Gift Bakhshish and not for services. It is pleaded that the words “past services” written in the recital of the gift, have been wrongly mentioned since defendant No.1 or her husband defendant No.2 were not related to the plaintiff nor they rendered any services to him. It was further averred that on the same date i.e. on 21.04.1992, an agreement was also executed between the plaintiff and the defendants, whereby, it was agreed that the defendants shall look after the plaintiff till his life time and fulfill his all genuine demands. It was also agreed that the defendants would pay a sum of Rs.150/- per month to the plaintiff, apart from looking after him till his life. It was also condition in the agreement that in case the defendants failed to pay the aforesaid amount regularly, the entire arrears of the amount would be payable by the defendants with interest at the rate of 15%. Hence, it was averred that both these documents should be read as part of the same transaction. It was further averred that the parties being Rajput, are the dominant agricultural tribes and as such, governed by agricultural customs of Kangra District. It was further averred that as per the aforesaid custom, when the gift is made for services as in the present case, the gift could be revoked, if the conditions of the gift were not fulfilled. It was alleged that the defendants, who agreed to look after the plaintiff and to pay Rs.150/- per month to him regularly, failed to look after and server the plaintiff after 12.5.1992, and refused to fulfill the conditions as agreed upon. It was alleged that the defendants, who agreed to look after the plaintiff and to pay Rs.150/- per month to him regularly, failed to look after and server the plaintiff after 12.5.1992, and refused to fulfill the conditions as agreed upon. Hence, it was submitted that under the aforesaid circumstances, the plaintiff was entitled to the possession of the suit property gifted to the defendants. The plaintiff requested the defendants to handover the possession of the suit land to the plaintiff, but they refused to do so and as such, the cause of action arose to the plaintiff on 12.5.1992. 3. The defendants contested the suit and filed written statement, wherein, they have pleaded that the suit was not legally maintainable since the gift was absolute and right of revocation had not been reserved. It was also submitted that after the death of plaintiff Harnam Singh, the right to sue did not survive since plaintiff Harnam Singh had sued for revocation of the gift in favour of defendant No.1 under custom and it being a personal right, therefore, question of the continuity of suit did not arise. On merits, it was submitted that the defendants were owners in possession of the suit land after the aforesaid gift deed. It was further submitted that the gift was executed and the possession was also transferred in favour of the defendants. It was denied that plaintiff Harnam Singh was not looked after by the defendants. It was asserted that aforesaid Harnam Singh was looked after by the defendants. It was further submitted that the only condition of the agreement was that in case the defendants failed to pay the amount, the aforesaid Harnam Singh was entitled to recover the same. It was further submitted that the parties were not governed by the customs. Moreover under the customs, power to revoke the gift was only to the donor, but when the gift is conditional and personal, the said right cannot be survived after his death and therefore, the present plaintiffs i.e. successors-in-interest of Shri Harnam Singh, could not maintain the suit. It was further submitted that there was no such condition and the gift was irrevocable. It was further submitted that the plaintiff Shri Harnam Singh was being paid a sum of Rs.150/- per month by the defendants, hence, no question of violating the terms of conditions of the gift or agreement arose. 4. It was further submitted that there was no such condition and the gift was irrevocable. It was further submitted that the plaintiff Shri Harnam Singh was being paid a sum of Rs.150/- per month by the defendants, hence, no question of violating the terms of conditions of the gift or agreement arose. 4. The plaintiffs/appellants herein filed replication to the written statement of the defendants/respondents, wherein, they denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled to the relief of possession as prayed for? OPP. 2. Whether the parties are governed by custom in the matter of gift? If so, what that custom is? OPP 3. Whether the suit land is ancestral as alleged? OPD 4. Whether the gift in question is gift “Bakhshish”? If so, its effect? OPD. 5. Whether agreement dated 21.4.1992 was executed, as alleged? OPD. 6. Whether the suit is not maintainable, as alleged? OPD. 7. Whether the plaintiffs are estopped to file the suit by their act and conduct? OPD 8. Whether the right to sue does not survive, as alleged? OPD. 9. Whether the suit is liable to be stayed? OPD. 10. Whether the gift in question is liable to be revoked? OPP 11. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom by the plaintiffs/appellants before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 7. Now the plaintiffs/appellants herein, have instituted the instant Regular Second Appeal before this Court wherein they assail the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 7.8.2008, this Court, admitted the appeal instituted by the plaintiffs/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the judgments and decree passed by the learned Courts below is result of misreading, misconstruing and mis-interpretation of the gift deed, exhibit DW1/A as well as agreement Ext. D-1 dated 21.04.1992? 2. Whether the judgments and decree passed by the learned Courts below is result of misreading, misconstruing and mis-interpretation of the gift deed, exhibit DW1/A as well as agreement Ext. D-1 dated 21.04.1992? 2. Whether the learned Courts below are right in not holding the gift deed to be liable to be revoked in view of the violation of the terms and conditions of the agreement dated 21.04.1992, Ex. D-01? 3. Whether the impugned judgment and decree is the result of complete misreading as well as mis-interpretation of question No.94 of the Kangra Customary Law? 4. Whether the learned Lower Appellate Court below is right in not considering the judgment of this Hon'ble Court passed in RSA No.23/2005 decided on 29.03.2005, Ex. Px in which the wills executed by late Sh. Harnam Singh in favour of the present appellants/plaintiffs were upheld? Substantial questions of Law No.1 to 4. 8. Under a registered deed of conveyance borne in Ex.DW1/A, donor Harnam Singh made a gift of the suit property upon defendant No.1. No contest has emanated before this Court in respect of validity of execution of gift deed borne in Ex.DW1/A. Its rescission besides its validity is concerted to be impugned, on anvil of its embodying there within a condition subsequent comprised in the donor casting an injunction upon the donees in respect of him/hers maintaining him, breach whereof entailing the sequel of its ipso facto visiting Ex.DW1/A with a rescinding effect. In case, the aforesaid condition subsequent is in fact embodied in Ex.DW1/A or in case Ex.DW1/A is a contingent gift, thereupon, evidence, if any, in succor thereof warrants allusion. However, a closest reading of Ex.DW1/A does not unveil of its there within holding any condition subsequent or it being a contingent gift, comprised in the factum of the donor in thereunder making the apposite bestowments of the suit property vis-a-vis defendant No.1, his casting any obligation upon them/him to render services vis-a-vis him. The omission of the aforesaid condition subsequent in Ex.DW1/A, renders it to be not construable to be a contingent instrument of bestowal of the suit property borne therein, thereupon, omissions, if any, of the defendants/respondents to not serve or maintain the donor, would concomitantly not entail the consequence of thereupon Ex.DW1/A being visited with a vice of invalidation or ipso facto rescission. Even a perusal of Ex.DW1/A does not unfold that any obligation stood therein cast upon the defendants for theirs maintaining or serving the donor, whereupon, also it is befitting to conclude that dis-service or ill-service, if any, of the donees vis-a-vis the donor would not result in Ex.DW1/A suffering the ill-fate of its ipso facto rescission. 9. Be that as it may, it is not disputed inter se the parties at contest that in respect of matters of alienation of the extant suit property, theirs standing governed by Kangra Customary Law, Customary Laws whereof hold prevalence in the area whereat the suit property is located. Even though, question No. 94 of the Kangra Customary Law which stands extracted hereinafter:- “State in what circumstances a gift is revocable and in what circumstances irrevocable? Specify particularly the effects of (I) possession on the part of the donee, (ii) relationship between the donee and the donor. Answer: Conditional gifts, e.g., in return for services are revocable if the conditions are not fulfilled, otherwise gifts are not revocable. Possession and relationship do not affect this.” does reveal that a conditional or a contingent gift is revocable, upon the conditions subsequent, for hence its taking full binding effect being evidently not fulfilled, yet for attracting the aforesaid Kangra Customary laws vis-a-vis the gift deed, it was imperative for both Ex. D-1 and Ex.DW1/A, to therein hold absolute or categorical recitals in respect of it being a contingent instrument of gift besides rendition of service by the donees vis-a-vis the donor being an imperative condition subsequent, for it, to take full binding force or evident breaches thereof warranting its revocation. However, as aforestated, a closest reading of both Ex.D-1 and Ex. DW1/A does not reveal of any conditions subsequent, being comprised therein in respect of the donees being imperatively enjoined to serve the donor nor obviously any purported breaches thereof warrant rescission of Ex.DW1/A. In aftermath, no reliance can be placed upon the aforestated Kangra customary law. 10. The learned counsel appearing for the plaintiffs/appellant has alluded to the conclusive and binding judgments recorded by Courts of law, in Civil Suit No. 560/1998/95 in respect of validity therein being imputed to Wills borne therein, Wills whereof stand respectively exhibited therein as Ex.PW5/A and as Ex.PW6/A, wherefrom, he contends that thereupon the validity of Ex.DW1/A standing ipso facto scored off. However, even though conclusive binding judgments in respect of validity standing imputed to execution of Ex. DW5/A and of Ex.DW6/A, by Harnam Singh, stood pronounced in the aforesaid Civil Suits, nonetheless, imputation of validity to Ex.DW5/A and to Ex.DW6/A would not per se invalidate the execution of the extantly litigated registered deed of conveyance, through, a gift borne in Ex.DW1/A, conveyance deed whereof stands evidently validly executed prior thereto. Any executions thereafter of testamentary dispositions by Harnam Singh vis-a-vis the plaintiffs, would also not belittle the legality of Ex.DW1/A, dehors ascription of validity to testamentary dispositions aforestated subsequently executed by Harnam Singh vis-a-vis the plaintiffs, preeminently also when courts of law concerned remained not seized with Ex.DW1/A executed prior thereto, whereupon, they could have tested the inter se compatibility of validity of Ex. DW1/A vis-a-vis Ex.DW5/A and Ex.PW6/A, whereas, with the Civil Courts concerned not standing seized with Ex.DW1/A renders any ascription of validity to the subsequent thereto executed testamentary dispositions by Harnam Singh, to not, prevail upon prior thereto executed Ex.DW1/A, rather the subsequent thereto executed testamentary dispositions by Harnam Singh were unexecutable by him, given the deceased testator prior thereto under Ex.DW1/A divesting himself from any right, title or interest vis-a-vis the suit property. 11. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court being based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. All the substantial questions of law are answered in favour of the respondents/defendants and against the plaintiffs/appellants. 12. In view of the above discussion, there is no merit in the instant appeal, which is accordingly dismissed. The impugned judgments and decrees are maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back.