Kaur Vs. Ajmer Singh  INSC 583 (19 April 1996)
B.L. (J) Hansaria B.L. (J) Ahmad Saghir S. (J) Hansaria,J.
JT 1996 (5) 324 1996 SCALE (3)616
appellant is window of one late Ranjit Singh who was admittedly the owner of
the property in question. the respondent is the son of Ranjit Singh. he filed a
suit, out of which this appeal arises, for seeking declaration that he was the
exclusive owner of the property and mutation entries made in the name of the appellant
are incorrect. Decree for possession was also prayed the respondent's case that
he being the son and the appellant being a window of Ranjit Singh, he alone was
entitled to succeed to the property as per the custom prevailing in the
society. The appellant, who was the sole defendant, asserted that as per custom
she also was entitled to succeed. Ownership over the suit property was claimed
because of succeed of acquisition of title on the basis of adverse possession
too. The trial court dismissed the suit by answering Issues 3,4 and 5 against
the plaintiff, though it had answered Issue No.1 reading :
the plaintiff is the sole owner of the property in the suit ?" in
affirmative. On appeal being preferred, the Additional District Judge decreed
the suit. The appellant carried the matter to the High court in second appeal
which dismissed. Hence this appeal.
Perusal of the judgment of the trial court shows that following were issues 3.4
Whether the suit is filed within the period of limitation ?
Whether the defendant has become the owner of the property in dispute by
adverse possession? 5 Whether the plaintiff is estopped from filing this suit?
appellate court decided Issue No.3 relating to limitation in favour of the respondent
and disbelieved the case of the appellant regarding her having become owner of
property by adverse possession. As to the claim of the appellant to succeed
because of special custom. the learned Addl. District Judge observed that it
was well settled that under the general custom a widow was not entitled to
inherit property in the presence of a son. when the provisions of the Hindu
Women's Right to Property Act, 1937 were pressed into service by the appellant,
the court observed that the Act was not applicable to PEPSU where the land was
situate for reasons given in para 9 of the judgement. The High Court has
apparently accepted this position.
There is no infirmity in the impugned judgment insofar as the question of
limitation is concerned inasmuch as the suit was filed in 1967 and the
dispossession was in 1956.
is not seriously contested by Shri Verma, learned senior counsel appearing for
the appellant. There are also no materials on record to show that the
appellant's possession was adverse in nature because of which prescriptive
title could have been acquired by her. It is well settled that mere possession
is not enough to claim this title inasmuch as the possession has to be adverse.
real bone of contention is regarding custom prevalent in the society to which
the parties belong. Though in the written statement the appellant had not
claimed inheritance because of any special custom inasmuch as what was stated
in para 1 was that the mutation has been sanctioned according to "law and
custom", this is not material, according to us, because the trial court
did frame Issue no.2 on this aspect of the case which reads as below :
the parties were governed by custom in matters of succession before the
enforcement of the Hindu succession Act. if so, what custom was ?"
establish her case relating to custom, the appellant examined DW.2 and had put
on record some documents. As the trial court has noted the sum and substance of
the oral and documentary evidence led by the appellant, it would be enough to
note what was stated in this regard by that court.
is as below:
learned counsel for the defendant has, on the other hand, urged that according
to the custom also, Kartar Kaur was entitled to succeed t the property left by Ranjit
Singh and in that regard the earned counsel has tried to refer to the
statements of some of the witnesses examined by the defendant and he has also
referred to the mutations/Ext. D-7 and D-8. Ext. D- 7 is the mutation
pertaining to Village Kotha guru purporting to have been sanctioned in the year
1954 and vide that mutation a widow and a son of one deceased Inder Singh
inherited his property in equal shares. Ext. D-8 is the copy of the mutation
pertaining to village Saidoke situated in Tehsil Moga of District Ferozepur and
that mutation shows that a son and widow of one Sewa Singh inherited the
property left by Sewa Singh, in equal shares. The learned counsel for the
defendant has also referred to the statement of one Harnek Singh, D.W.2, who
deposed that at village Madhe, also, a widow and son of a deceased person by a
second widow, i.e. him. This witness seems to refer to the same instance is
given in mutation Ext.
Addl. District Judge affirmed the finding of trial court relating to custom. The
High Court did not specifically advert to this case of the appellant.
are not in position to accept the findings of the courts below on this aspect,
inasmuch as the trial court had rejected the claim by observing in the main
that the evidence brought on record by the appellant did not appertain to the
village in which the parties resided, which was Alia. We do not think if a
custom has to be proved with reference to a village - it really appertains to a
community or tribe. The appellant having led oral and documentary evidence to
show that mutation had been granted in favour of a widow along with the son, we
are of the view that appellant's case relating to there being a special custom
allowing inheritance to a widow along with the son did not merit outright
rejection. We have taken this view because, though it may be that the
provisions of Hindu Women's Right to Property Act did not apply to the area in
then PEPSU, the underlining principle and idea behind that statutory provision
are required to be borne in mind while deciding the claim of a widow relating
to property situate in an area to which an Act might not have applied.
then, the appellant can be regarded as only one of the heirs of Ranjit Singh
who had, apart from the respondent, four other Class-I heirs, namely, Dalip Kaur
another wife of Ranjit Singh; a daughter of Ranjit Singh, through the
appellant, and two sons of Ranjit Singh through Dalip Kaur. It is because of
this that in the counter- affidavit filed by the respondent it has been stated
in para 18 that even if the appellant would be entitled to inherit, she would
be entitled to 1/6th share only. On the facts of the case we accept this
The appeal is, therefore, allowed by declaring that the appellant is legally
entitled to 1/6th share in the suit property. The impugned judgment is modified
to this extent.
suit of the respondent stands decreed accordingly. The concerned Collector
shall proceed to divide the suit property by metes and bounds so as to allot
1/6th specific share to the appellant as visualized by Order 20, Rule 18 CPC.
This would be done within 3 months of the receipt of copy of this judgment; and
the appellant shall hand over the the possession of the remaining part of the
property to the respondent within 3 months thereafter. An undertaking to this
effect shall be filed in this court within 1 month from today, failing which
this appeal shall stand dismissed without reference to the Court. On the facts
and circumstances of the case, we leave the parties to bear their own cost