Gopal Singh & Ors Vs. Ujagar Singh
& Ors  INSC 37 (2 April 1954)
BOSE, VIVIAN MUKHERJEA, B.K.
HASAN, GHULAM AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 579 1955 SCR 86
CITATOR INFO :
R 1955 SC 226 (9) R 1974 SC 665 (9)
Custom-Succession-Agricultural Jats of
village Ralla, Tahsil Mansa, District Barnala, State Pepsu-Non-ancestral
property Daughter's sons v. collaterals-Gift by daughter of non-ancestral
property in favour of her sons- Whether amounts to acceleration-Commission to
include a small portion of the whole property in the gift Surrender-Validity
Held, that among agricultural Jats of Village
Relia, in the District of Barnala, State of Pepsu, daughter's sons will
inherit, to the exclusion of collaterals, the non- ancestral lands which had
devolved by inheritance on their mother.
A gift by the daughter to her sons would
amount to acceleration of succession. Omission to include a small portion of
the whole property due to ignorance or oversight does not affect the validity
of the surrender when it is otherwise bona fide.
Lehna v. Mst. Thakri (32 Punjab Record 1892
F.B.); Lal Singh v. Boor Singh (55 P.L.R. 168 at 172); Mulla's Hindu Law, 11th
Edition, page 217; Rattingan's Digest of Customary Law, para. 23(2) referred
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 174 of 1952.
Appeal from the Judgment and Decree dated the
27th June, 1950, of the High Court of Judicature of Patiala and East Punjab
States Union in Second Appeal No. 219 of 1949-50 against the Judgment and
Decree dated the 21st September, 1949, of the Court of the Additional District
fudge, Bhatinda, in Appeal No. 61 of 1948, arising from the Judgment and Decree
dated the 10th August, 1948, of the Court of the Sub-Judge 11 Class, Mansa, in
Case No. 134 of 1947.
87 Gopal Singh and Sardar Singh for the
Achhru Ram (K. L. Mehta, with him) for the
1954. 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 daughter 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 daughter's alienation. The
third line of defence related to a portion of the property which is not in
dispute before us.
The property in suit consisted of three
(1) 253 bighas of Khas land;
(2) a half share in 3 big has 19 biswas; and
(3) a share in certain shamlat property.
The defendants say that Harnam Singh gifted
123 bighas of the Khas land to the second defendant : that the gift was
absolute and so the plaintiffs cannot get that portion of the property in any
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 learned Judge dismissed the plaintiffs Suit, 88 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 not passed on to the next heir there was no acceleration. The
learned Judge took evidence on this point and 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 the property.
Before them also the point was conceded by
the plaintiff's 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
property was non-ancestral the daughter's sons were the nearest heirs, so the
gift accelerated the estate and, vested it in the donees despite the exclusion
of the house. Accordingly, they reversed the 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 89 his estate and
placed the mortgagees in possession. When he died some of his collaterals took
possession of the unencumbered portion of the estate. The daughter Mat. 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. Mist. Biro succeeded on the ground that the property
was non-ancestral. These findings are obviously res-judicata and if the
plaintiffs' learned counsel had not conceded the point the question 'would at
once have been raised and the previous 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 heir ship.
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 on the property to another
male, whose descent from her father in the female line is allowed under
exceptional circumstances 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 90 or if their male issue 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, just as it would have done if no exception to the general
rule of agnatic succession had ever been in her favour." This is supported
by at least two decisions from the Punjab.
In Lehna v., Mst. Thakri (1) 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 proper 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 learned 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 mayor 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 (1) 32 Punjab Record 1895.
(2) 55 Punjab Law Reporter 168 at 172.
91 estate, The extent of the property covered
by the gift is over 253 bighas. 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
completely. 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 accelerate the succession. That being the case, the plaintiffs are no
longer the reversions 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
The appeal fails and is dismissed with costs.