- (1.) The plaintiffs appellants have filed this appeal against the judgment and decree of the Senior Sub Judge, Jullundur, with enhanced appellate powers dated the 5th February, 1975, whereby the decree of the trial Court in favour of the plaintiffs was set aside and their suit was dismissed.
(2.) Balbir Singh was the last male holder of the suit property. He died on 28th January, 1968. During his lifetime, he gifted away the suit property to his son Tarlok Singh defendant, vide registered gift deed, Exhibit D.1, dated the 5th October, 1967. Balbir Singh had five sons, namely, Pyara Singh, Santokh Singh, Tarlok Singh, Wazir Singh and Amir Singh. Wazir Singh and Amir Singh had died during the lifetime of their father Balbir Singh. On the strength of this gift-deed, mutation was sanctioned in favour of Tarlok Singh on 8th January, 1968, i.e. during the life time of Balbir Singh. Major Pyara Singh, Santokh Singh and Parkash Kaur, widow of Wazir Singh (predeceased son), filed the present suit for possession on 20th March, 1968, with the allegation that the parties were governed by customary law and the suit property being ancestral in the hands of Balbir Singh deceased, he was not competent to alienate the same in favour of his son Tarlok Singh depriving his other sons and the widows of the predeceased sons. The suit was contested by defendant Tarlok Singh. On the pleadings of the parties, the trial Court framed the following issues :- 1. Whether the land in suit is ancestral qua the plaintiffs and Balbir Singh ? 2. Whether Balbir Singh made a valid gift of the land in suit in favour of defendant No. 1 ? 3. Whether the parties are governed by custom in matters of alienation ? If so, what is that custom ? 4. If issue No. 2 is proved, whether the gift was made in lieu of services ? 5. Whether plaintiff No. 3 can file this suit to challenge the alienation by Balbir Singh under custom ? 6. Relief. On issue No. 1, the trial Court came to the conclusion that, except one third share of Premo, the rest of the land was ancestral qua the plaintiffs and Balbir Singh. On issue No. 2 the finding is that the gift-deed, Exhibit D.', was a sham transaction secured by Tarlok Singh through his influence over Balbir Singh with the active assistance of Shiv Singh and Gulzar Singh, DWs. Parties were held to be governed by custom in matters of alienation. The material issues having been found against the defendants, the plaintiffs' suit was decreed by the trial Court. During the pendency of the appeal in the Court of Senior Sub Judge, Punjab Custom (Power to Contest) Amendment Act, 1973, came into existence by virtue of which the alienation could not be challenged on the ground that the land was ancestral qua the plaintiffs. Under these circumstances, it was agreed between the parties that only issue No. 2 was involved for the decision by the lower appellate Court. The learned Senior Sub Judge reversed the finding of the trial Court on this issue and came to the conclusion that the gift deed was executed as a result of free exercise of the independent will and that the donor was acting independent of any influence from the donee. Consequently, the appeal was allowed and the plaintiffs' suit was dismissed. Feeling aggrieved against this, the plaintiffs-appellants have come up in appeal in this Court.
(3.) Shri H.L. Sibal, Senior Advocate, learned counsel for the appellants contended that, in view of Exhibit PA dated the 15th April, 1968, a letter written by Tarlok Singh to his brother Santokh Singh, the finding of the lower appellate Court holding the gift to be a valid one, is vitiated. In any case, the conclusion arrived at by the lower appellate Court is perverse and, thus this Court can go into the matter in second appeal. He further contended that there is no explanation in the gift deed for depriving the other sons and the widows of the predeceased sons by the donor Balbir Singh. He further contended that the donor was suffering from "Sangrahni" disease and, therefore, he was not in a sound disposing mind at the time of the execution of the gift-deed. According to the learned counsel, there is no difference between the Will and the gift and the circumstances under which a Will could not be held to be a valid one, will equally apply in the case of a gift as well.;