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Bhim Singh and ors. Vs. Chandgi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 94 of 1948
Judge
Reported inAIR1953P& H135
ActsTransfer of Property Act, 1882 - Sections 122; East Punjab Land Alienation (Saving of Shamilat) Act, 1948 - Sections 3
AppellantBhim Singh and ors.
RespondentChandgi and ors.
Appellant Advocate F.C. Mital, Adv.
Respondent Advocate D.N. Aggarwal, Adv.
DispositionAppeal dismissed
Cases ReferredShahamad v. Ibrahim
Excerpt:
.....and others for a declaration that the entries in the revenue records were wrong and that the defendants were not entitled to any share in the 'shamilat'.tha trial court as well as the district judge held in favour of the defendants and dismissed the plaintiffs' suit and this was affirmed by falshaw j. rup chand',ilr (1937) lah 662, where thewords used in the sale deed were :the agreement is that from today's date thesaid vendee will enjoy possession of the landsold together with the external and internalrights for ever. the two thatched houses together with the four walls situate at the well which are owned by me shall also be considered as. ' 4. the case before us is very much like that which was before their lordships......to the descendants of jug lal in lieu of their share in the 'shamilat' which corresponded to the land gifted to him (jug lal) and this was done by consent of all parties. later on an application was made by the descendants of jug lal for partition of the joint land winch they had received in lieu of 'sharmlal' and on 2-2-1915 a suit was brought by bhim singh and others for a declaration that the entries in the revenue records were wrong and that the defendants were not entitled to any share in the 'shamilat'. tha trial court as well as the district judge held in favour of the defendants and dismissed the plaintiffs' suit and this was affirmed by falshaw j.3. two points have been raised by counselfor the appellants. it is submitted in the firstinstance that the wording of the gift is.....
Judgment:

Kapur, J.

1. This is an appeal against a judgment of Falshaw J. dated 21-10-1948 confirming the appellate decree of the Additional District Judge, Rohtak, dated 8-1-1947 whereby the suit of the plaintiffs was dismissed.

2. The facts of the case briefly are thai Udmi made a gift in favour of Jug Lal on 17-1-1887- This Jug Lal was the son of Udmi's brother's daughter. The following words of the deed of gift are important. After mentioning the various Khatas and Khasra numbers which were owned by him the donor stated :

'Now I have gifted the above mentioned land with all rights appurtenant thereto '(mae jumla haq haqooq)'.....and having taken theland out of my own possession I have given the possession to Jug Lal aforesaid and just as I was the owner in possession of the aforesaid land Jug Lal will also have the same rights '(jis tarah ke main malik aur qabiz arazi mazkur par tha ab isi farah so Jug Lal mazkur rahega)'.'

In this deed of gift Jug Lal was described as the adopted son. Udmi died in 1892 and the entire estate of Udmi was mutated in the name of Jug Lal in 1893 which is evidenced by the mutation Ex. P. 3. In the year 1929 the shamijat was partitioned and Jug Lal was mentioned in the revenue papers as owner of 1/5th share of the 'shamiiat' which fell to the share of this family. The learned District Judge has remarked that this 1/5th share had been allotted to the descendants of Jug Lal in lieu of their share in the 'shamilat' which corresponded to the land gifted to him (Jug Lal) and this was done by consent of all parties. Later on an application was made by the descendants of Jug Lal for partition of the joint land winch they had received in lieu of 'sharmlal' and on 2-2-1915 a suit was brought by Bhim Singh and others for a declaration that the entries in the revenue records were wrong and that the defendants were not entitled to any share in the 'shamilat'. Tha trial Court as well as the District Judge held in favour of the defendants and dismissed the plaintiffs' suit and this was affirmed by Falshaw J.

3. Two points have been raised by counselfor the appellants. It is submitted in the firstinstance that the wording of the gift is suchthat it did not convey any right in the 'shamiiat'to Jug Lal. The words used in the deed ofgift in the present case seem to be very muchlike the words which were used in the casewhich went up to their Lordships of the PrivyCouncil and is reported as -- 'Aya Ram v.Rup Chand', ILR (1937) Lah 662, where thewords used in the sale deed were :

'The agreement is that from today's date thesaid vendee will enjoy possession of the landsold together with the external and internalrights for ever. In future I have been leftno concern or connection with the aforesaidland sold. The two thatched houses together with the four walls situate at the well which are owned by me shall also be considered as. the property of the vendee. But I myself will remove the malba (materials) i.e., timber.'

Interpreting these words Lord Macmjllan observed as follows :

'The sale is not only of the 27 'kanals' but also of 'the external and internal rights for ever' and the vendor declares that in future ho is to have 'no concern or connection with the aforesaid land sold.' There could be nc move emphatic words of divestiture and the suggestion that the vendor who used them nevertheless intended to reserve himself a right to claim an as yet unascertained share of 'shamiiat', which right belonged to him only as the owner of the 207 'kanals' appears to their Lordships untenable. The words 'external rights' arts quite appropriate to include a right in respect of the 207 'kanals' to participate in the ultimate partition of the 'shamiiat'.'

Their Lordships approved of the rule laid down in -- 'Kalu Khan v. Umda', 47 Pun Re 1916, where the words used were 'jumla haquq-o-marafiq hai dakhli wa kharji'.

Their Lordships also approved of the decision in -- 'Shahamad v. Ibrahim', 57 Pun Re 1915, and then it was said at page 670:

'In their Lordships' opinion regard may be had to such considerations in construing the unsophisticated conveyancing of which the deed before them is an example and to which it would be unreasonable to apply the rigid canons of interpretation appropriate to the finished products of Lincoln's Inn.'

4. The case before us is very much like that which was before their Lordships. The words used are similar. Here the words used are. 'jumla haq haqooq' (all rights whatsoever) which must include every kind of right which is attached to the ownership of that piece of land. I am, therefore, of the opinion that the learned Judge has rightly held that the word-ing of the gift deed is sufficient to divest the; donor of all rights which he possessed including the right to 'shamilat'.

5. Mr. Faqir Chand Mital then referred to East Punjab Land Alienation (Saving of Shamiiat) Act, XIX of 1948, which came into force on 10-4-1948. This question was not raised before Mr. Justice Falshaw although the case was heard on 21-10-1948 and Mr. Mital is not entitled to raise that question in the Letters Patent Appeal, but even if he could that Act hat-no application to the facts of this case because that Act applies to construction of contracts and even in the Act (Section. 3) it is definitely stated :

'Unless an intention to convey such share is admitted by the alienor before such Court or authority or can be inferred from his conduct or if the contract bo in writing is apparent on the face of it.'

The last two clauses of this section would certainly cover this case. Besides a gift can hardly be called a contract. Even in Section 25, Con-tract Act, in Explanation 1 it is provided : 'Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made.'

6. I would, therefore, dismiss the appeal with costs throughout.

7. SONI, J.: I agree. The donor in thiscase was related to the donee and one wouldexpect that if he was giving land to the doneeas his adopted son he would give him all rightswhich he himself had. in that land. He wascompletely divesting himself of whatever rightshe had in the land when, he used the expression 'mae jumla haq haqooq,'. The conduct ofthe parties also leads to the same conclusion.In 1929 when the proceedings were going onbefore the revenue authorities there were twooccasions on which this question could havebeen agitated if there was any substance in it,but it was a partition by mutual consent andno objection was raised to the 'shamilal' beinggiven to the present donee. In these circumstances Courts can easily come to the conclusionthat the donor intended to gilt not only theland but also the 'shamilat' appurtenant to theland to the donee. I concur in the order proposed by my learned brother that the appealshould be dismissed with costs.


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