Decided on May 11,1954



Kapur, J. - (1.) This appeal is brought by defendant No. 2 Captain Parmodh Singh against an appellate decree of the Senior Subordinate Judge, Dharamsala, reversing the decree of the trial Court dismissing the plaintiffs' suit with costs.
(2.) The facts which have given rise to this appeal are that on 4-7-1928 one Gulaba obtained 19 'Kanals' 10 'Marias' by a compromise which was arrived at in original suit No. 78 decided on 18-7-1928 in the Court of the Senior Subordinate Judge, Dharamsala. This compromise is dated 4-7-1928 and one of its terms was that 19 Kanals 10 marlas was to be given, to Gulaba. The deed of compromise further recites: "On this' land I, the plaintiff (Gulaba) will remain in possession as 'Malik Kamal Dwami'. I shall not be entitled to mortgage or sell the land to anybody else. * * * * * If I, the plaintiff, die without any sons, then the land above referred to 19 'kanals' 10 'marlas' will without the payment of any compensation revert to Mehr Singh defendant No. 2." And a mutation was entered on the basis of this on 9-10-1928. On 14-4-1933 Gulaba gifted 20 'kanals' 2 'marlas' of land to his wife, Mst. Panjabo. The area does not seem' to be quite correct, and the done in her turn sold the land in dispute to Parmodh Singh defendant No. 2 for Bs. 1,500/- on 2312- 1938. The successors-in-interest of Mehr Singh, who entered into the compromise, brought a suit on 6-5-1944 for declaration that the alienation made by the widow will not affect their right of reversion obtained by them under the deed of compromise The suit was dismissed by the trial Court, but on appeal the learned Judge held that Question No. 54 of Middleton's Riwaj-i-am of Kangra District applied and as the plaintiffs fell within the third category of persons entitled to inherit, they were entitled to challenge the sale and gave the declaration in favour of the plaintiffs.
(3.) In appeal it is contended that the transaction was not a gift at all and that it was really nothing more than a transfer, and reliance is placed on the following words in the deed of compromise: "The defendants after going home (meaning after going from the Court) will get the ownership transferred in my (the plaintiff's) name in the revenue papers." But as against this Mr. Nayar has pointed out that in the beginning of the deed it is stated that this land was being given to Gulaba for his maintenance and he also points out that the other terms of this compromise show that if the original plaintiff, Gulaba, had any lineal descendants then they will after the death of Gulaba be entitled to the property and his submission is two-fold (1) that it was given by way of maintenance to Gulaba and his lineal descendants and (2) that there is an express condition of reversion on the line of Gulaba becoming extinct.;

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