Gopal Singh and Others. v. Ujagar Singh and Others

Judgment

I•g·· -Shri Audh .J1eh'a1j. Singh GtJ.jadhar .Jiiipuria ·and Others. -April 2 86 SURR1EMiE C0URT RRP0R11S [1$5] couldi-eject-.. his.• .owh tanants .in: exerdse,.of..the.,right: of pre-emption .. ,,:fhe. ·· .apJ'ellaM,;wilLhave ·_thecost_s, -,of, this appeal:from respondent-- -No .. L, Further, costs ..• wi!).,ahide the~iresult>., 1 11 •Ii· .. ,,1:1;,,;. · .• , ... ; ·1: .• , ,. I "'' ' ' Appe~z; al,lo'wed: q • 1 "." "•(. I .I ; I! . 1 "' J .:. ·UJAGAR SINGH AND OTHERS. [B: k. MuKHEkJ~..\; Vi~A;, Bosii, GfiuLA'.M fJ:.s..\:N' 11 , , al)q YJ;;NK~TAl}AMAAX\'.AR JJ,.] ..... , , " Custom-Succession-Agricultural /ats of village Ralla, !Tahsil Mansa,. Dis(rict B,arnala, State Pep;u-Non-ancestrql property- .l)aughter;'s so,n.r ~- coll~t~rals:_Gift by daufiht(r of n.on~'ahcestfal pro- _perty in favOU1; OJ h-e;.· sofis..:......

Whether qmou'ntS to· 'acceleration-Omission io' include a Small Portibn ·of' th~ ·.whole . property in 'the gift- Surrender:--.-:V alidity of.· -Held, that among ag'Ficulturak· 1·ats -of · Village Ralla,. in the ·District, .of ·Barn~la, Sµte· .of Pepsu,. daughter'~' ~9p.s v,:ill inher:it, to the .. exclusiOJ).:'.9£ 1c;9Jla_t.era;l~,, ·~he· f!On-a,nce~tra~. ~aµqs whicP.. had devolved by inherit~nce_ on -.~h~ii: motlier. , . ' A. g'i.fr q~; the_ d,~ughF~ ~o ht;!r· ~~,ns~ ~oul?. ~.m9unt.· tQ, acce\eration of su"ccession.. Omission to includt;" a Sm<!-11 portion Of the whole Property' due ·to ignoiap.t~ ·or ove'rsight does not affect the validity ·of the surrencler·When'•it is'otherWise bona fide. i,:. Lehna v: Mst. Th~kti'•(32 Punjl!b Rec~rd 1£92 •F.B:); 1:.al• Singh v. Roor Singh (55 P.L;Rc !68 'at 172).;' Mulla's :Hindu Law, 11th Edition, page 211; Ratt;.'gan's Digest, ·of Customaiy .I-,tiw Para. P(2) Ieferred tp,-. , .,.

1 )1 11 ,, ..... :. , CIVIL·· APPEM;ATF; ,.JURISDICTION·.: .Civ,iL-Appeal. No, 174-of-1952,. ,,, .. ,,y,._ "'" App~ir 'frorii the'' Judgme'nt" 'lnd 'Decree · dated ihe 27th fu'ne;· 1950; 'of 'ihe"·High Court of-Judicature of Patia!a -an~~· East' Pupjah-'St~tes "Union 'in S~i:ond -Appeal No. 219. 'of'1949-)0. agi\nst' t)l:e Judgment . and·'~Decree <lated the 21st 'Septe!+iber; i949,' of tht COurf of' the "Addition~i 'D,lstriet' Judge; Bh'a'tirida, in' 'Appeal Nc:i. '61 of 1948, ar1£foit 'fr<Jin the' Judgfl)eiit 'a(id Decree· dated ·'the 10th 'Ai.igus~' '1948; 1' '1:)£' the Oiurt ''ot''tli'e s\ib;JU'dg~ II Class, Mansa, in Case No. 134 of 1947. -'4.- S.C.R. SUPRK\IE COURT REPORTS 87 GopalSin(jh and Sardar Singh for the appellants. Achhru Ram (K. L. Mehta, with him) for the respondent. 195!. April 2. The Judgment of the Court was delivered by BosE J. -,The plaintiffs-appeal. They claim to be the presumptive reversioners to one Harnam Singh who owned the property in dispute.

On 2nd November, 1914, after Harnam Singh's death, his daughti;r Mst. Biro, the second defendant, gifted the plaint properties to her sons who have been grouped together as the first defendant. The plaintiffs contend that _the property is ancestral and that the daughter got only a life estate, so they sue for a declaration that the gift will not affect their reversionary rights. The defendants rely on custom: They state that, according to the customary law which governs the parties, collaterals beyond the fifth degree are not heirs in the presence of a daughter and her line. The plaintiffs, they say, are collaterals of the seventh degree, therefore they cannot displace the daughter. They also state that the property was not ancestral and so the plaintiffs cannot challenge the daugh_ter's alienation. The third line of defence related to a portion of the property which is not in aispute before us. The property in suit consisted of three items: (1) 253 bighas of Khas Jand;

(2) a. half share in 3 bighas 19 biswa.s; and (3) a share in certain shamlat property.· The defendants say that Harnam Singh gifted 123 big has of the Khas land to the second defendant: that thii· gift was absolute ·and so the plaintiffs .cannot get that portion of the property in any event. The trial Judge held, on the admission of the plaintiffs' counsel, that the land in dispute was non-ancestral and that the daughter's sons would succeed after her to the exclusion of the plaintiffs, therefore the gift by her to her sons amounted to an acceleration of the estate. The learne_d Judge dismissed the plaintiffs' suit. z954 Gopal Singh and Others Ujagar Singli and Others. BoseJ. Gopal Singh and Others 6jagar Singh and Others. Bose J. 88 [1955] On appeal to the lower appellate Court, the ·finding that the property was non-ancestral was upheld as the plaintiffs' learned counsel in that Court did not contest the finding of the first Court on this point.

As regards the acceleration, the learned Judge thought it necessary to examine a point which the plaintiffs had raised in the trial Court· but which was ignored there,· namely that a house was not included in the gift. Therefore: it Was argued that as the whole of the estate was !iot · passed on to the next heir there was no acceleration. The learned Judge took evidence on this point ahd ·held that the house was not included and so found against the defendants. Accordingly he decreed the plaintiffs' claim for this part of the estate. In the High Court the learned Judges upheld the concurrent finding · about the non-ancestral nature of cthe property. Before them also the point was conceded by the plaintiffs' counsel. They also held that the house Was not included in the gift but held that it was such a small part of the estate that the daughter's retention of it could not indicate an intention on her part not to ·efface herself from the estate.

They also held in the plaintiffs' favour that they were collaterals in the fifth .degree and not the seventh but held that as the pro- :perty was non-ancestral the daughter's sons were the nearest heirs, so the gift accelerated the estate and vested it m the donees despite the exclusion of the 'house. Accordingly, they reversed and decree of the lower appellate Court and restored that of the learned trial Judge. Before us, the plaintiffs' learned counsel tried to reopen the concurrent finding of the three Courts about the non-ancestral nature of the property but we did ·not allow him to do so. The . question is a mixed question of law and fact and the admission involved both. We were not shown how the facts admitted could be ·disentangled from the law so that we could determine whether the conclusion of law drawn from. the admitted facts . was wrong.

The learned trial Judge said that the admission was made because of a previous decision 'in ·a former suit between the same parties · or their predecessors. Harnam Singh had mortgaged a part of S.C.R. SUPREME ·COURT REPORTS 89 his estate· ·and placed the mortgagees m possession. .when he died . some of his collaterals took . possession of the unencumbered portion of the estate. The daughter Mst. Biro therefore instituted two suits, one for possession against the collaterals including the present plaintiffs or their predecessors, and the other for a declaration against the mortgagees · in possession. In this she also joined the same set of collaterals. Mst. Biro suc- <eeded on the ground that the property was non-ancestral. These findings are obviously res judicata and if the plaintiffs' ]earned counsel had not conceded· the point the question would at once have been raised and the prev10us judgments, which were exhibited (Exhibits DD and DF) would have concluded the matter.

But as the point was conceded in all three Courts it was not necessary for the defendants to fall back on the previous decisions. It must therefore be accepted here that the whole of the land in dispute was non-ancestral. That brings us to the question of heirship. Paragraph 23(2) of Rattigan's Digest of Customary Law says that- "In regard to the acquired property of her father, the daughter is preferred to the collaterals." That is not disputed but what the plaintiffs contend is that she only succeeds as a limited heir and that after her the reversion will go to the father's heirs in the usual way. But that is not the Punjab custom among the tribe to which the parties belong, namely agricultural Jats. Rattigan quotes the following passage from page 61 of Roe and Rattigan's Tribal Law of the Punjab at page 411 of the 13th edition of his Digest :

"Where a succession of a married daughter is allowed, the general principle is that she succeeds not as an ordinary heir, but merely as the means · of passing {)n the property to another male, whose descent· from her father in the female line is allowed under exceptional cir.cumstances to count as if it were descent in the male line. She will indeed continue to hold the land in her own name, even after the birth of sons · and their attaining majority, for her own life but she has no more power over it than a widow would have. If she has sons, the estate -will of course descend to them and their lineal male issue, in the usual way. But if she has no sons, 12 GopalSingh and Others Uj agar Singh and Others. Bose]. Gopal Singh and Other : Ujagar Singh and Others. Bose J. 90 ·SUPREME 'COlJRT REPORTS [1955] or if their maleissue fail; the land will revert; except in some special instances where her husband is allowed to hold for his' life, to her•father's,agnates, just1as it· would ·have done if no exception to 1.the general .r.ule of• agnatic succession had ever been in· her -favour."

This is supported by at least ·two decisions from the Punjab. In Le/ma · v. •Mst. · Thakri(') two learned Judges of the Punjab· Chief• Court (the third dissenting) said in the course of •a Full . Bench. decision that even in the case of ancestral. property the daughter's sons and their descendants would exclude collaterals of the father. In a more recent case (1953) the Punjab High Court held in Lal Singh v. Roor Singh( 2 ) that in the case of non-ancestral property the •daughters are preferred to collaterals. We were told that this rule only applies when the daughter succeeds and has no application when she predeceases her father. We say nothing about this because the case before us. is one in which the daughter did succeed· and all the authorities produced before us indicate that in that event her sons will exclude the collaterals. We were. not shown any decision which has taken a contrary view.

We are · only concerned with non-ancestral property here and . express no opinion about what would happen in the case. of ancestral property, though the observations of two of the learned Judges in the Full Bench of the Punjab Chief Court to which we have referred carry the rule over to ancestral property as well. The karned counsel for the plaintiffs relies on paragraph 64 of Rattigan's Digest where it is stated that except in two cases which do not apply here, no female in possession of property from, among others, her father can permanently alienate it. But we are not concerned with an alienation here. The gift to the sons may or may not be good after Mst. Biro's death as a gift. The question is whether there was an acceleration. If there was, the form it took would not matter. We turn, next, to the question of surrender and the only question there is whether the retention by Mst. Biro of the house .would prevent an acceleration of the (I) 32 Punjab Record i895.· '2)

55 Punjab Law Reporter 168 at 172, S.C.R. estate. The extent of the property .covered by the gift is over 253 biglias. She · had an absolute right to gift 123 bighas of this and so the only portion to which the doctrine of surrender would apply would be the remaining 130 odd bighas. But the fact that she gave away all her property to her sons, bar this house, including property to which she had an absolute right, is relevant to show that her intention was to efface herself completelv. Now as regards this house, Garja Singh (P. W. 1) gives us this description of it : "The distance between the door of the Sabbat and that of Darwaja is only about two karams." (eleven feet). "Opposite to Darwaja there is one Jhallani the door of which opens into the Sabbat and not in the courtyard. Except Darwaja, Sabbat and Jhallani there is no other roofed portion in their house. There is only one compound for the cattle." In this tiny dwelling live not only Mst. Biro but also her three sons.

It forms, as the High Court held, a very small part of the whole property. The retention of this, particularly in these circumstances when the sons already live there with her, would not invalidate the surrender. The law about this has been correctly set out in Mulla's Hindu Law, 11th edition, page 217, in the following terms : "But the omission, due to ignorance or to oversight, of a small portion of the whole property does not affect the validity of the surrender when it is otherwise bona fide." The present case is, in our opinion, covered by that rule. We agree with the High Court that the gift operated to accelerate the succession. That being the case, the plaintiffs are no longer the reversioners even if they would otherwise have been entitled to succeed on failure of the daughter's sons and their line. We need not decide whether the plaintiffs, as collaterals in the fifth degree, would be heirs at all. 'rhe appeal fails and is dismissecf! with costs. Appeal. dismissed. 7-86 S. C. India/59 (]opal Singh arid Oshm Ujagar Singh and Others Bose]