- (1.) 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 plaintiff's 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. 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(2) RCR(Rent) 62 (P&H) : 1992 HRR 408; Smt. Daljit Kaur v. Smt. Rukman and others, 1988(2) R.C.R.(Rent) 650 : 1989(1) RCR(Rent) 394 (P&H) : 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 Ram's 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 Dharma's 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. 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 Ram's 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 Ram's case and Khema Nand's 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 Badri's case, even subsequently in Dhani Ram and Sahdev Singh's 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 Hon'ble 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. 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." 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. 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.
(3.) WE have heard learned counsel for the parties and perused the record.;