- (1.) The following pedigree-table lends assistance in understanding the facts of the case giving rise to this regular second appeal by the four defendants.
(2.) Bhagwan Singh owned one-fourth share in land measuring 255 Kanals 7 Marlas, the details of which appear in the plaint. He died issueless early in 1962 and the two plaintiffs filed the suit out of which this appeal has arisen for possession of one-half of the land owned by Bhagwan Singh claiming that the latter had only two brothers named Gian Singh and Inder Singh. No reference in the plaint was made to Bhagwan Singh's daughter-in-law named Harbans Kaur but it was pleaded that Shangara Singh defendant No. 1 claimed to be the owner of the entire land left by Bhagwan Singh by virtue of a gift which was not admitted by the plaintiffs who averred that such a gift would in any case be void and inoperative on the following grounds :- (a) At the time of his death Bhagwan Singh was 90 Years old and had been ailing for 4 or 5 years during which period he did not have a disposing mind while Shangara Singh defendant No. 1 held a dominant position over him and, taking advantage of the same, had the alleged gift brought about in his favour through undue influence. (b) No possession passed to defendant No. 1 under the gift which was, therefore, ineffective according to the agricultural custom prevailing in District Lahore to which the parties belonged. (c) The property covered by the gift was ancestral in the hands of Bhagwan Singh qua the plaintiffs and according to the said agricultural custom no owner of ancestral land could alienate the same without legal necessity.
(3.) The defendants averred in their written statement that Bhagwan Singh had gifted the entire land to Shangara Singh defendant no. 1 by means of a registered deed of gift executed on the 31st March, 1958, and that the gift was valid and was made when Bhagwan Singh had a disposing mind. Shangara Singh defendant No. 1 was stated not to enjoy any dominant position over Bhagwan Singh over whom, according to him, no influence was claimed to be non-ancestral in the lands of Bhagwan Singh and it was asserted that the parties were not bound by any such custom as had been pleaded by the plaintiffs. Such custom was also stated to have been abrogated. It was further pleaded that the plaintiffs were not related to Bhagwan Singh in any way.;