Achhru Ram, J.
1. This second appeal has arisen under the following: circumstances On 1st December 1942, Niaz Ahmad defendant 7 sold the land in dispute to defendants 1 and 2 for a consideration of Rs. 1,300. The vendees re-sold the land to defendant 6. On 23rd March 1943, the suit giving; rise to the present second appeal was instituted by Shahab Din, a collateral of Niaz Ahmad vendor, for possession of the aforesaid land by means of pre-emption. The suit was resisted by defendant 6 on the plea that the plaintiff's right of preemption was not superior to his own.
2. It was alleged by the aforesaid defendant that the land in suit originally belonged to his collaterals Pir Bakhsh and Himan who gifted the same to Mt. Umri, daughter of Himan; that the aforesaid Mt. Umri in turn accelerated the succession of her son Niaz Ahmad vendor by making a gift in his favour; that the land in the hands of Pir Bakhsh and Himan was ancestral qua him; and that, accordingly, on the extinction of the line of the donee, it was to revert to the donors' line. It was further alleged by him that in default of nearer reversioners of the donor entitled to reversion of the suit land on the extinction of donee's line, the land would devolve upon him in preference to the heirs and collaterals of Niaz Ahmad.
3. The two Courts below have repelled the contentions of defendant 6 and have decreed the plaintiff's claim. They have held that although ⅘th of the land in suit has been proved to be ancestral in the hands of Pir Bakhsh and Himan qua defendant 6, the gift in favour of Mt. Umri daughter of Himan having been made in lieu of services, there can be no reversion to the donor's line on the extinction of the line of the donee, and that, under the circumstances, the plaintiff, as a collateral of Niaz Ahmad, had a right of preemption superior to that of defendant 6. The latter, feeling aggrieved from the decree passed in the plaintiff's favour, has come up in second appeal to this Court.
4. After hearing the learned Counsel and looking at the record I am unable to discover any evidence on which a finding as to the gift in favour of Mt. Umri having been made in lieu of services could be based. Exhibit p-4 is an attested copy of mutation order No. 317 by which the gift by Pir Bakhsh and Himan in favour of Mt. Umri was given effect to in the revenue papers. It was nowhere stated during the mutation proceedings that the gift had been made in favour of Mt. Umri in lieu of services. The only evidence relied on by the learned Senior Sub-Judge in support of his finding as to the aforesaid gift having been made in lieu of services is the statement made by Mt. Umri more than 20 years after the gift in his favour, during the course of the mutation proceedings relating to gift by her in favour of her son Niaz Ahmad, that her husband Allah Ditta had discharged the debt of her father when the latter had gifted the land in her favour. I have very grave doubts if this statement can at all be regarded as evidence in the case. Even so, the mere circumstance of the donee's husband having either before or after the gift, discharged a debt due from the donor cannot make the gift as one made in lieu of services. In the circumstances, I find it impossible to uphold the decision of the two Courts below on the question of fact.
5. However, even if it be assumed that the gift by Pir Bakhsh and Himan in favour of Mt. Umri was in fact made in lieu of services, I can see no ground at all for holding that in case of such a gift the rule of reversion to the donor's line on failure of the donee's descendants does not apply. Reliance has been placed by the Courts below on a Single Bench judgment of Rangilal, J. in Aiziz Mohammad and others v. Mt. Hajran and Ors. A.I.R. 1934 Lah. 894. In the aforesaid judgment the learned Judge made the following observations:
The rule of reversion relied on by the learned Counsel has no application to this case. The gift was in lieu of services and it is well established that in fluch cases the rule of reversion does not come into operation.
6. With all respect to the learned Judge, I have not been able to lay my hands on any authority in support of the proposition laid down by him. I am not aware of any single decided case in which this view may have been taken and the learned Counsel for the respondent on being questioned by me, quite frankly conceded that he could not cite any such case. Under the circumstances, I cannot see on what ground the learned Judge said that it was well established that in such cases the rule of reversion did not come into operation.
7. Treating the case as one of first impressions, I can see no reasonable ground for refusing to apply the rule of reversion to the donor's line on failure of all lineal descendants of the donee to a gift, otherwise falling within the principle of Pull Bench judgment in Sitaram v. Rajaram 12 P.R. 1892 merely because it had been made in lieu of services rendered by the donee to the donor. The principle underlying the Full Bench judgment is that where custom allows a departure from the ordinary rules of inheritance relating to ancestral immovable property and a diversion of such property in favour of blood relations in the female line, the presumption is that it does so out of tender regard for such relations and their lineal descendants and with the object of benefiting such descendants only so that on the failure of such descendants the property should revert to its original owner or, in case of his being dead, to his male descendants, or to his collateral heirs, in case he has left no descendants. Such diversion may be effected by means of a gift or by means of an adoption. More often than not the gift in such a case will be motivated either by the donee being associated with the donor in cultivation or by her or his looking after him and ministering to his comforts in the past, or by a desire on the part of the donor that she or he may do so in the future. Indeed, in case of most of the tribes custom insists on some such thing as a condition for the validity of the gift, a gift simpliciter of ancestral immovable property in favour of such relations to the prejudice of agnatic heirs being recognized as valid amongst only a few tribes. To hold that in cases of gifts made in lieu of services, the donoted property does not, on the failure of the lineal descendants of the donee, revert to the donor or his heirs, but devolves on the heirs of the donee who are perfect strangers to the donor will defeat what, according to the Full Bench, must be presumed to be the object of the gift and the motive for the custom to extend its recognition to it. Such gifts cannot be regarded as standing on the same footing as a hiba bil-iwaz of the Muslim law which for all practical purposes, is a sale and has been generally held to be subject to all the legal incidents of the sale.
8. It must be remembered that the rule of reversion to the original line is as much applicable to cases of adoptions as to those of gifts. In fact in Sitaram v. Rajaram 12 P.R. 1892 the contest between the parties was whether on the extinction of an adoptee's line the land inherited by him from his adoptive father was to devolve on his own collateral heirs or was to revert to the adopter or his heirs. It is a notorious fact that, unlike the adoption of Hindu law, customary adoption is altogether secular in its origin and character. By recognizing adoption custom only enables a sonless proprietor to select one from amongst his relations, whom custom regards as eligible for the purpose, to take him as a son so that he may help him in cultivating his land and may look after him in his old age. In substance there does not seem to be any real distinction between a person to whom land is gifted in lieu of services rendered or to be rendered and one on whom a right to inherit such land has been conferred in consideration of his under taking to treat the present owner as a father. If the rule of reversion applies to the latter case, there is no reason why it should be held not to apply to the former case.
9. For the reasons given above, I accept this appeal and in modification of the decree passed in the plaintiff's favour by the learned Senior Sub-Judge grant him a decree for possession of a 1/5th share in the suit land subject to payment by him of a sum of Rs. 260 into Court for payment to defendant 6. If the sum of Rs. 1,300 has been deposited by him in compliance with the decree passed in his favour by the Courts below, the balance shall be re-funded to him. In case he has not already made the deposit under the terms of the decree passed in his favour, the suit has to stand dismissed and I do not propose to give him any further time for making the deposit.
10. In the circumstances of the case I make no order as to the costs of this appeal.