A gift made by a father to his illegitimate sons is supportable under custom which allows gifts to relations who have rendered services to the donor.

Inder Dev Dua, J.

1. This is a second appeal by the defendants from the judgment and decree of the Additional District Judge, Gurgaon, dismissing the appeal from the decree of the Senior Subordinate Judge, Gurgaon decreeing the plaintiff suit for possession of the allegation that the gift made by Duli Chand on 28th May, 1951 in favour of the defendants was contrary to custom and, therefore void as against the plaintiff. The defendants contested the suit urging that Duli Chand was their father and the gift was, therefore, valid and binding on the plaintiffs. The trial Court framed the following issues on the pleadings :-

(1) Is the gift by means of mutation dated 28th May, 1951 valid ?

(2) Is the suit land not ancestral qua the parties ?

(3) What is the effect of the judgment of the Honourable High Court on the present suit ?

2. It appears that in another proceeding in which a gift made by Tulla Ram plaintiff in favour of his daughter was contested, this Court held that Daljit, Bed Rem and Kanwal Singh (the three defendants in the present litigation) were not proved to be the sons of Duli Chand and that they were the sons of Sher Singh and, therefore, not entitled to challenge the gift by Tulla Ram in favour of his daughter.

3. The trial Court held the land to be ancestral and the earlier judgment to be conclusive with the result that the donees in the present case were held not to be the sons of Duli Chand. On these findings the gift was held to be bad as against the plaintiff and his suit was accordingly decreed.

4. On appeal, the learned District Judge upheld the conclusions of the Court of first instance and dismissed the appeal. It was also urged before the Court of first appeal that the gift had been made by Duli Chand in lieu of services rendered by the donees but since there was no such plea in the written statement, the lower Appellate Court declined to entertain it. The Court also in passing observed that the property in dispute being ancestral property no gift could be made to a stranger.

5. On second appeal, after reading the judgments of the two Courts below, Shri Hoshiarpuri has concentrated on the prayer that the written statement should be allowed to be amended and the plea of gift in lieu of services to be allowed to be included in the written statement. The counsel has referred to the earlier decision by a learned Single Judge of this Court in Tulla Ram v. Bhartu etc., RSA 377 of 1956, decided on 24.11.1960, where this Court on second appeal held Bed Ram, Daljit Singh and Bharte alias Kamla not to be the sons of Duli Chand. According to the findings given in the earlier case, Duli Chand had abducted one Smt. Daryai and that during the period of her abduction the present donees were born to her. From this fact, the learned Single Judge declined to conclude Smt. Daryais children to be the sons of Duli Chand "because admittedly Sher Singh with whom Smt. Daryai was lawfully married before she was abducted by Duli Chand was not only alive when the plaintiffs were born but he was also living in the same house as Smt. Daryai and Duli Chand. The marriage between Sher Singh and Smt. Daryai had never been dissolved." No custom suggesting validity of marriage between Duli Chand and Smt. Daryai was pleaded in prior litigation.

6. It is contended that the gift appears to have been made in favour of the donees by Duli Chand because they were in fact born from his loins and that it was on account of the technicalities of law that in the previous litigation they were held not to be the sons of the donor. It is emphasised that the donees used actually to serve Duli chand and the gift was also made in lieu of services. It is on this basis prayed that the written statement should be allowed to be amended and trial of the additional issue directed. In support of the plea, following authorities have been cited on behalf of the appellants. Kartar Singh Hira Singh v. Mal Singh Surjan Singh etc., AIR 1954 Pep. 39, in which a