K.L. Bapna, J.
1. These two appeals arise in a suit for declaration which was subsequently amended so as to become a suit for possession.
2. One Gordhan Ahir resident of Nihalpur Behror, made a gift of his property to his daughter's son Umrao resident of Gugadia, Tehsil Behror by document of 4-2-1954. The gift related to the movable and immovable property & included house property as well as agricultural land. The document was duly registered and in respect of the agricultural land mutation in the name of the donee was effected on 10-1-1946 by transfer No. 48.
The plaintiffs who were collaterals of Gordhan instituted a suit out of which these two appeals have arisen on 28-12-1947 in the Court of the Munsif, Behror for a declaration that the said deed of gift was invalid as it was contrary to the custom of the village. It was alleged that a transfer whether by way of sale mortgage or gift could only be made in favour of the collaterals. Gordhan died during the pendency of the suit and a prayer for possession was also added by the plaintiffs.
Umrao contested the suit. He did not admit the existence of the custom pleaded by the plaintiffs and urged that the gift was valid. It was not disputed that Gordhan was the owner of the property of which he had made a gift. The trial court framed an issue 'whether it was not valid for Gordhan to make a gift of his entire property in favour of his daughter's son in the presence of his collaterals and whether the gift was ineffectual against the plaintiffs.'' Two other issues were framed but which are not relevant at this stage & the fourth issue was'whether the plaintiffs are entitled to possession of the property in dispute'.
3. The learned Munsif decided issue No. against the plaintiffs and dismissed the suit. On appeal the learned District Judge of Alwar by his judgment dated 8-1-1952 held that the custom as narrated in the Wajibularz of the village prohibited transfer by way of gift to a stranger and accordingly held tho gift invalid so far as the agricultural lands were concerned.
He held that the Wajibularz did not affect other movable property or the house property. He accordingly gave a decree to the plaintiff for possession of the agricultural land held by Gordhan of which he had made a gift to Umrao but dismissed the suit with respect to the house and other movable property included in the gift.
The plaintiff Jaidayal and others have come in appeal in respect of that portion of the suit which has been dismissed while Umrao has filed an appeal in respect of the agricultural land for which the decree has been given to the plaintiffs.
4. We take up defendant's appeal first. A certified copy of the Wajib-ul-arz was produced along with the plaint and the relevant portion of which has been relied upon by the plaintiffs is as follows:
^^fjokt ekydku fuLcr bUrdkygdh;r%
ifgys dksbZ jgu oks cS; gekjs nsg esaugha gqvk A vc pqadh bl ckjs esa 21 fnlEcj lu~ 1898 bZLoh dks tnhn dok;n ukfQtgks xbZ gS blfy;s c ikcUnh mudh vk;Unk v'kn t:jr dh lwjr esa vxj dksbZ fgLlsnkjviuh gdh;r dks c; ok jgu o fgck nsg djuk pkgsxk rks gLc tSy vey gksxk%
1- tqeys vkjkft;kr tjbZ o tqt ,dtf;ktehnkjku flduk; nsg ;k c ntsZ etcwjh tehnkjku ge dkSe dh vkSj fdlh ds ukeeqUrfdy u dh tkosxh ysfdu dOy vt bUrdky btktr njckj o gftLVh c lhxs egdesa ekyykteh gS A
2- c; o jgu o fgck c nLr frtkjris'k drbZ euk gS A
3- vxj bkQkdu dksbZ 'k[l ctfj;s c; o jgu o fgck ds c f[kykQ dk;ns nks;e esa gDd fo'osnkjh gkafly djs rksmldks ykfte gksxk rkjh[k glwy ls tek eqljho'kk ij nks vkuk Qh :i;k ij T;knk jktesa vnk djs A**
'Custom of the Biswedar Malkan in respect of the transfer of their rights:
Formerly there was no case of sale or mortgage in our village. Now as rules have been framed in this behalf and brought into force from 21-12-1898, therefor, in case of extreme necessity if any co-sharer wants to transfer his right by sale, mortgage or gift, it shall be done as follows:
1. All agricultural lands shall not be transferred except to the collaterals residents of the village, or if this is not possible then to agriculturists of the same caste, but before making a transfer, permission of the Government, the Registration Department and the Revenue Department shall invariably be taken.
2. A sale or mortgage or gift to person of the merchant class is prohibited.
3. If any person acquires any right by transfer through sale, mortgage or gift contrary to Rule No. 2, he shall pay enhanced revenue at the rate of -/2/- in a rupee from the date of succession of right.'
5. The learned District Judge took this entry in the Rewaj-i-Am as a custom prohibiting transfer by way of gift to any person other than a collateral or a Zamindar of the same caste. The learned District Judge was of opinion that as the present gift was made by Gordhan to a person who was not a collateral and further not of same caste in the village, the transfer was against the custom of the village and, therefore, void so far as the agricultural lands were concerned.
6. A careful perusal of the Wajib-ul-Arz, however, snows that it does not purport to record any custom but only records as to what should be the practice for future. It states clearly that there had been no case of transfer previous to the enforcement of certain rules which were brought into force from 21-12-1898. It may also be mentioned that this Wajib-ul-Arz was compiled during the period from 1897 to 1898.
Since the rules which gave a right of transfer appear to have been enforced with effect from 21-12-1898, there was as mentioned in the Wajib-ul-Arz, no case of transfer by a sale or mortgage previously. The entry only purports to record the wishes of the Biswedars of the village as to what should be the practice for future. Where the entries in the Wajib-ul-Arz are of this nature, the observations of their Lordships of the Privy Council in Thakur Anant Singh v. Thakur Durga Singh, 37 Ind App 191 (A) are very pertinent:
'It has been pointed out more than once at this Board that there is no class of evidence that is more likely to vary in value according to circumstances than that of the Wajib-ul-Arzes. and where, as here, from internal evidence it seems probable that the entries recorded connote the views of individuals as to the practice that they would wish to see prevailing rather than the ascertained fact of a well-established custom, the learned Judicial Commissioners properly attached weight to the fact that no evidence at all was forthcoming of any instance in which the alleged custom had been observed.'
In the case of Mst. Pirthi Pai Kunwar v. Mt. Suraj Kunwar, AIR 1940 Oudh 269 (B) the above observations were relied upon and it was held that
'where Wajib-ul-Arzes sometimes recorded not the custom but the wishes of those who dictated them or their conception of the law onthe subject the court can disregard the Wajib-ul-Arzez in the absence of evidence of any instance in which a particular custom has been observed :
To the same effect are found the observations in the case of Muhammad Aii Khan v. Ghazanfar Ali Khan, GO Ind Cas 147: (AIR 1920 Oudh 123 (2) ) (C). It was held that 'where a Wajib-ul-arz contains a record merely of the wishes and opinions of the parties it cannot be regarded as establishing any binding custom at variance with the personal law of the parties'.
The Wajib-ul-Arz by itself is of little value in the present case. No instance has been cited where a co-sharer was unable to make a gift to any person outside the circle of collaterals or caste-man of the village.
The evidence that has been led on behalf of the plaintiffs is that there was no case of any gift. Now instances of gifts are by their very nature not of common occurrence. If there has been no instance of gift it does not prove that the custom was to restrict the gifts to cer-j tain class of persons only. The lower court has committed error in holding the Wajib-ul-Arz to be proof of the custom prohibiting the making of a gift to any person outside the circle of collaterals or caste-men of the village.
7. It may also be pointed out that a custom in order to be valid and binding must among other things be reasonable. The case of transfer by way of sale or mortgage stands on a different footing than transfer by way of gift. In case of transfer by mortgage or sale the purpose of transfer is served when the transferee obtains money in lieu of his property and it does not matter to him whether the transferee is A or B or C. For this reason certain restrictions upon transfer by way of sale or mortgage have in some cases been upheld on the ground of custom.
In the case of gift the consideration is not money or its equivalent but it is the satisfaction which is obtained by making a transfer to a particular person on whom the favour is to be conferred. More often it is due to natural love and affection but sometime it is an account of services rendered or for the spiritual benefit of the person making the gift. It is unreasonable in this class of cases for a restriction to be put that a gift can only be made to a particular person or class of persons and to no others. From this view also the restriction as to the class of persons to whom the gift can be made is unreasonable and is not one which can be enforced in a court of law.
8. It was argued by learned counsel for the plaintiffs that the gift in the present case has not bsen completed inasmuch as there was no delivery of possession arid for this reason whatever may have been the value of the gift if completed, the transfer was not complete in the present case and, therefore, the plaintiffs as collaterals were entitled to obtain possession of the property left by Gordhan.
9. It may at once be said that the case-was not made out clearly that the gift had notbeen completed. There was no issue that the gift was not valid on the ground of its nothaving been completed. In the second place in paragraph 4 of the plaint, it is admitted that after the gift had been made by a duly registered deed, the mutation was made in favour of the donee by Intkal No. 48 of 10-1-1946. There is also an admission of Jaidayal plaintiff P. W. 11 that Umrao came to live with Gordhan for a period of two years prior to the making of the gift.
This admission shows that Umrao was living with Gordhan in the same house which was later on gifted to Umrao. Where the donor and the donee lived in the same house and the gift is made subsequently by a registered deed, it is not necessary that the donor should leave the house in order to complete the gift. Reliance is placed on behalf of the plaintiffs to a document Ex. PL filed in the trial court in which it is shown with respect to Smt. Year 2001 that some of the lands transferred were entered as Khudkast of Gordhan.
There is however a note in the remarks column that the lands had been gifted away to Umrao under Mutation No. 48. This document by itself is of no value until there was further evidence to show that Umrao had nothing to do with this land. There is no evidence directly on the point that the gift was not completed by a transfer of possession. In the document it is recited that possession had been transferred. This question was not directly agitated in the lower court and it is too late now to laystress on that aspect of the case.
If the question would have been raised in the trial court the defendant would have had an opportunity of rebutting the suggestion that may have been made in this respect. The decision of the lower court granting a decree to the plaintiffs in respect of the agricultural lands is not correct. The defendant's appeal is accordingly allowed and the suit of the plaintiffs for possession of the agricultural land which was the subject of gift by Gordhan to Umrao must be dismissed.
10. As to the plaintiffs' appeal. It cannot succeed since the gift in respect of the agricultural land has been upheld. The Wajib-ul-Arz related only to agricultural lands and even in respect of that kind of property it has been held that the entry does not amount to be a record of custom. In respect of house and other movable the entry has no significance whatsoever. There is no other evidence of any custom. The prayer in that respect has been rightly disallowed by the first appellate court as also the trial court.
11. The result is that the appeal of the defendant is allowed with costs. The decree ofthe first appellate court in so far as it is infavour of the plaintiffs is set aside, and thewhole of the suit stands dismissed. The appealof the plaintiffs is dismissed with costs. Thedecree of the trial court is thus restored. Theplaintiffs will pay costs to the defendants inall the three courts.