S.M. SIKRI, J.
1.This appeal by special leave is directed against the order of the High Court of Punjab dismissing in limine the second appeal filed by Mst Mahli, plaintiff, now appellant before us, against the decree of the Senior Subordinate Judge (with enhanced appellate powers), dismissing the first appeal from the order and decree of the Subordinate Judge, III Class, Rohtak, filed by the plaintiff and accepting the appeal filed by the respondents. The trial court had decreed the suit of the plaintiff for possession of 1/9th share of the land in dispute.
2. In order to appreciate the points debated before us it is necessary to set out the pedigree table and a few facts.
Nota Shiv Lal Chandgi Bhagwani widow
Defendant 3 Ram Sarup Mst Mahli
plaintiff daughter Phoolmati
Defendant 5 daughter Chhotu
Defendant 4 daughter Hoshiar Singh
Defendant 3 Ranbir Singh
3. Chandgi owned fair amount of land in village Asan, Tehsil and District Rohtak. He was Jat by caste and governed by Punjab Customary Law. On November 21, 1954, he made an oral gift of 2/3rds of the land in favour of Ranbir Singh and Hoshiar Singh, his grandsons, his son Ram Sarup having died. Mutation was entered by the Patwari and submitted for sanction. The mutation was reviewed because this mutation had been “decided (after) the date of possession of land given vide mutation 1290 respecting repartition”. This apparently has reference to repartition proceedings in consolidation proceedings. At any rate, the mutation regarding Tamlik (gift) of 2/3rd share measuring 205-7 Kanals of land, entered at Khewat No. 18, comprising 43 plots, measuring 308-1 Kanals, together with rights in Shamlat was sanctioned.
4. In column 9 headed “Name of the owner with description” is mentioned “Ranbir Singh and Hoshiar Singh, s/o Ram Sarup, s/o Chandgi, s/o Nota, residents of the village in equal shares—2/3 shares, remaining as before 1/3 share”. Under the heading “name of the cultivator with description” in Column 5 is mentioned “under personal cultivation”.
5. On August 16, 1961, Chandgi Ram registered a will and bequeathed the remaining 1/3rd share of the lands in favour of Respondents 1 and 2. On April 6, 1963, Chandgi Ram died. On November 16, 1963, Mst Mahli filed a suit for decree for possession of 1/6th share in the lands in dispute. The main grounds alleged in the plaint were that the gift, dated November 21, 1954, was void because it was made in order to defeat the provisions of the Punjab Security of Land Tenures Act, 1953, and further that no possession had been transferred to the donees Ranbir Singh and Hoshiar Singh who were minors at that time. The will was challenged on various grounds but we are only concerned with one ground, namely, that the land being ancestral in his hands, Chandgi Ram could not make a will and, at any rate, the plaintiff was entitled to challenge this alienation because she had become an heir under Section 8 of the Hindu Succession Act. The trial court decreed the suit to the extent of 1/9th of the land in dispute.
6. On appeal, however, the suit was dismissed by the Senior Subordinate Judge. He held that both the gift and the will were valid and the plaintiff was not entitled to challenge the alienation, even if the property was ancestral in the hands of Chandgi Ram. He further held that there had been transfer of possession under the gift, and relying on Faujdar v. Bhamma1 he held that, at any rate, the possession of the donor was on behalf of the donees as the donees were minors who lived alongwith their mother with the donor.
7. The High Court dismissed the appeal of Mst Mahli in limine and the learned Single Judge refused to grant a certificate of fitness for appeal to the Letters Patent Bench. Having obtained special leave, the appeal is now before us.
8. The learned counsel for the appellant, Mr B. Datta, contends (1) that the gift was not valid because possession had not been delivered, and (2) that the plaintiff was entitled to challenge the will as she had been made an heir under the Hindu succession Act.
9. Coming to the first point, we agree with the finding of the Senior Sub-Judge that under the circumstances possession had been delivered. The donees were minors and they were living with the donor, and the donor had done all that he could to effectuate the gift. Mutation was entered and it clearly showed that there had been change of possession. Further, the Khasra Girdawari papers also show the name of cultivator as under the personal cultivation of the owners, the owners being Chandgi s/o Sheo Lal, etc., as entered in Khewat No. 19. The entries in Khewat No. 19 are not printed in the record but the Senior Sub-Judge refers to these as showing that the owners of Khewat No. 19 are Chandgi's two grandsons, Ranbir Singh and Hoshiar Singh. The learned counsel points to Ext. P-2, Khasra Girdawari for 1961-62 where under the heading “name of owner” only the name of “Chandgi s/o Sheo Lal entered at Khewat No. 19” had been mentioned. It appears that the word “etc.” had been omitted in the first page of this document because we find that on the next page in the entry the word “etc.” is added.
10. Be that as it may, it was a gift of a share in the land and it was gift in favour of minors, and it seems to us that the learned Senior Subordinate Judge was right in applying the decision in Faujdar v. Bhamma1. In that case Barkley, J., observed:
“As regards possession not having been delivered, if the custom requires that the provisions of Muhammadan law in this respect should be complied with, the fact that the donees are minors, who, with their mother, live with the donor, is a sufficient reason for regarding the possession of the latter as on behalf of the donees, as their guardian. See the decision of the Judicial Committee of the Privy Counsel in 15 Bengal Law Reports, 67, 68, and No. 86 of Punjab Record for 1882.”
11. The learned counsel drew our attention to a decision of the Lahore High Court in Lalu v. Baldev Singh2. There the facts were different. The deed of gift had been obtained from a man who was a simpleton and who had no friends and relations to advise him, and it was held that mere mutation of name was not sufficient proof of delivery of possession.
12. Coming to the second point, it seems to us that the Hindu Succession Act has not made any change as far as the right of a female to challenge an alienation made by the last male holder of ancestral land is concerned. It is true that under Section 8 of the Hindu Succession Act a daughter is an heir if a male Hindu dies intestate. But Section 30 of the Act provides that “any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus”. The Punjab Customary Law is a law for the time being in force within the meaning of Section 30 and was applicable to the testator Ghandgi Ram. Under the Punjab Customary Law applicable to Jats in Rohtak District, Chandgi Ram could alienate his property except for immoral purposes. In Abdul Rafi Khan v. Lakshmi Chand3 it was held by a Division Bench of the Lahore High Court that “by custom an alienation of ancestral property by a male proprietor of the Gohana Tehsil of the Rohtak District cannot be challenged unless it is made for immoral purposes”. Rattigan states in para 56(b) that “customary law recognises no distinction between the power of making verbal or written transfers of property inter vivos, nor where an unrestricted power of transfer is recognised to exist, between a transfer inter vivos and one to take effect upon the death of the transferor. The form of alienation is treated as immaterial”.
13. Under the Punjab Custom (Power to Contest) Act (Punjab Act II of 1920) only a person descended in male lineal descent from the great-great grandfather of the person making the alienation or appointment can challenge an alienation of ancestral immovable property (Section 6), and “alienation” includes any testamentary disposition of property.
14. It follows from the above discussion that before the enactment of the Hindu Succession Act the plaintiff had no right to contest alienations made by Chandgi Ram, and the Hindu Succession Act has made no change in this respect. The fact that she is an heir now does not bring her within the provisions of Section 6 of the Punjab Custom (Power to Contest) Act, 1920.
15. In the result the appeal fails and is dismissed, but there will be no order as to costs.