Jai Kaur & Ors Vs. Sher Singh
& Ors [1960] INSC 110 (6 May 1960)
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
CITATION: 1960 AIR 1118
CITATOR INFO :
RF 1961 SC1374 (4) R 1966 SC1555 (4) RF 1980
SC2138 (5)
ACT:
Hindu Law-Jats of Grewal got-Customary law of
succession-Non-ancestral Property-Daughter, if preferred to
collateyals-Doctrine of surrender-Gift to daughter by widow, if accelerates
succession-Rattigan's Customary Law of the Punjab, Para 23-Riwaji-am, 1882, Question
43.
HEADNOTE:
Under the customary law prevalent amongst the
Hindu Jats of Grewal got in Ludhiana, a daughter is a preferential heir to her
father in respect of his self -acquired property to his collaterals. Rattigan's
Digest of Customary Law, paragraph 23, which records the correct law on the
point, is not in conflict with Riwaji-am, 1882, Question NO. 43, which refers
only to ancestral property and not to self -acquired property at all.
Mt. Hurmate v. Hoshiaru, A.I.R. 1944 Lah. 21, approved.
Mohinder Singh v. Kher Singh, A.I.R. 1949 East Punjab 328, disapproved.
Mt. Subhani v. Nawab, A.I.R. 1941 (P.C.) 21, referred
to.
Case-law discussed.
The doctrine of surrender in Hindu Law is
based on a theory of complete self-effacement by the widow in favour of the
reversioner and in order that such surrender can accelerate the reversion, it
must be of the entire interest in the entire property. The law does not
recognise a partial selfeffacement nor a division between ancestral and nonancestral
property. The exception made in respect of a small portion of the property
retained for the widow's maintenance does not detract from the rigour of the
rule.
Rangaswami Gounden v. Nachiappa Gounden,
(1918) L.R. 46 I.A. 72 and Phool Kaur v. Prem Kaur, [1952] S.C.R. 793, referred
to.
Consequently, in a case where a Hindu widow
of the Jat Grewal got made a gift only of the self-acquired property of her
husband to her daughters such gift had not the effect of a surrender in law so
as to accelerate the daughters' succession and the gift could not be valid
beyond her lifetime.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 108/ 56.
Appeal by special leave from the Judgment and
decree dated May 27, 1953, of the Punjab High Court in Regular Second Appeal
No. 176 of 1949, against the judgment and decree dated December 20, 1948, of
the District Judge, Ludhiana, arising out of the Judgment and decree dated
February 6, 1948, of the Subordinate Judge, 11 Class, Ludhiana, in Suit No. 918
of 1946.
Gopal Singh, for the appellants.
C. B. Aggarwala and K. P. Gupta, for the
respondents.
1960. May 6. The Judgment of the Court was
delivered by DAS GUPTA, J.-The suit out of which this appeal has arisen was
instituted by the respondents I and 2 Sher Singh and Labh Singh, for a
declaration that a deed of gift executed by the first appellant, Jai Kaur, in
respect of 8 (1-10) Bighas of land which she had inherited from her husband,
Dev Singh, in favour of her two daughters, the 2nd & 3rd appellants before
us, " shall be null and void against the reversionary rights of the
plaintiffs ", and defendant Nos.
4 to 6 after the death of defendant No. 1
(i.e., Jai Kaur) and shall not be binding upon them. The plaintiffs' case was
that these lands left by Dev Singh were all ancestral lands qua the plaintiffs
and according to the customary law which governs the Jats belonging to Grewal
got to which these parties belong daughters do not succeed to property left by
sonless fathers and so the gift by Dev Singh's widow in favour of her daughters
would be null and void as against the plaintiffs and others who would be
entitled on Jai Kaur's death to succeed to the estate as reversioners. In the
alternative, the plaintiffs contended that even if the land in suit was not
ancestral qua the plaintiffs then also the deed of gift would be null and void
as against their reversionary interests inasmuch as even as regards
nonancestral property daughters do not succeed among the Grewal Jats. The main
contention of defendants 1 to 3 (the appellants before us) was that the suit
land was not ancestral qua the plaintiffs and defendants 977 Nos. 4 to 6, and
that according to the customary law governing the Jats of the Grewal got,
daughters exclude collaterals as regards non-ancestral property and a widow is
competent to make a gift of such property in favour of her daughters. It was
pleaded on behalf of the two daughters that they being preferential heirs in
respect of the land in suit as against the plaintiffs, the gift is tantamount
to acceleration of succession and is valid in every way. The Trial Judge held
that 2B-2B,14-B out of the land in suit was ancestral and the gift was invalid
to that extent, because as regards ancestral property a daughter does not
succeed in the presence of collaterals. As regards the remainder of the suit
land which he held was non-ancestral, the learned Judge was of opinion that the
gift was merely an acceleration of succession as under the customary law
governing the parties daughters exclude collaterals as regards succession to non-ancestral
property. Accordingly he gave the plaintiffs a decree as prayed for as regards
2-B-2B, 14-B out of the land in suit and dismissed it as regards the remaining
portion of the land in suit.
The plaintiffs appealed to the District
Judge, Ludhiana, against this decree and cross-objections were filed by the
defendants Nos. 1 to 3. The Trial Court's finding about a portion -of the land
being ancestral and the rest nonancestral was not disputed before the appeal
court. On the question of custom the learned District Judge agreed with the
Trial Judge's view that among the Grewal Jats of Ludhiana the daughter excluded
collaterals as regards nonancestral property. He held, therefore, agreeing with
the Trial Judge that as regards the non-ancestral property the deed of gift was
merely an act of acceleration of succession and was, therefore, valid and
binding. The appeal was accordingly dismissed and so also were the
cross-objections which appear not to have been pressed.
On second appeal the learned judges of the
East Punjab High Court accepted the contention urged on behalf of the
plaintiffs that a special custom was proved to be in force among the Grewal
Jats under which the daughter does not inherit even as regards 978
non-ancestral property. In that view they held that even as regards the
non-ancestral property the gift by Jai Kaur would be valid only during her
lifetime, and allowed the appeal.
Against this decree of the High Court
defendants Nos. 1 to 3-Jai Kaur and her two daughters, the donees-have filed
this appeal on the strength of special leave granted by this Court.
Two questions arise for consideration in this
appeal. The first is whether under the customary law governing the Jats of the
Grewal got in Ludhiana to which the parties belong, the daughter or the
collaterals are the preferential heirs as regards non-ancestral property. If
the answer to this question be that daughters have preference over collaterals
(the plaintiffs here), the other question which arises is whether this gift is
such acceleration of succession in favour of the daughters as is permissible
under the law.
On the question of custom the appellants rely
on the statements in paragraph 23 of Rattigan's Digest of Customary Law
(Thirteenth Edition) that in regard to the acquired property of her father the
daughter is preferred to collaterals. It is not disputed that nonancestral
property is " acquired property " within the meaning of this
statement by Rattigan. Against this the plaintiffsrespondents rely on the
answers to question No. 43 relating to Hindu Grewal Jats of Ludhiana as appear
in the Riwaji-am prepared at the revised settlement of 1882. The question and
the answer are in these words:Question:
" Under what circumstances can daughters
inherit ? If there are sons, widows or near collaterals, do they exclude the
daughter ? If the collaterals exclude her, is there any fixed limit of
relationship or degree within which such Dear kindred must stand Answer:
" In our tribe the daughter does not
succeed under any circumstances. If a person dies sonless, his collaterals
succeed him. There is no fixed limit of relationship for purposes of excluding
her.
979 If there are no collaterals of the
deceased, the owners of the Thulla or Patti or village would be owners of his
property." The authoritative value of Rattigan's compilation of customary
law is now beyond controversy, having been recognised in the judicial decisions
of the Punjab courts too numerous to mention, which have also received the
approval of the Judicial Committee of the Privy Council.
Therefore it is not, and cannot be disputed
that under the general customary law of the Punjab daughters exclude
collaterals in succession to non-ancestral property. The value of entries in
the Riwaj-i-am has, also however, been repeatedly stressed. That they are
relevant evidence under s. 35 of the Evidence Act is clear and the fact that
the entries therein the the result of careful research of persons who might
also be considered to have become experts in these matters, after an open and
public enquiry has given them a value which should not be lightly
underestimated.
There is ', therefore, an initial presumption
of correctness as regards the entries in the Riwaj-i-am and when the custom as
recorded in the Riwaj-i-am is in conflict with the general custom as recorded
in Rattigan's Digest or ascertained otherwise, the entries in the Riwaj-i-am
should ordinarily prevail except that as was pointed out by the Judicial
Committee of the Privy Council in a recent decision in Mt. Subhani v. Nawab
(1), that where, as in the present case, the Riwaj-i-am affects adversely the
rights of females who had no opportunity whatever of appearing before the
revenue authorities, the presumption would be weak, and only a few instances
would suffice to rebut it.
In the present appeal the oral. testimony
given on behalf of either party is practically valueless to show an-,, instance
in favour of the custom pleaded by them. If, therefore, the -Riwaj-i-am does
show as urged by the plaintiffs a custom of daughters being excluded by
collaterals in respect of nonancestral property, it is clear that Riwaji-i-am
would prevail. The real controversy in this litigation is, however, on the
question whether the entries in the Riwaj-iam on which (1) A.I. R. 1941 (P.C.)
21.
980 the plaintiffs rely refer at all to
non-ancestral property or not. This controversy has 'engaged the attention of
the courts in Punjab for a number of years beginning with 1916.
In that year in Mst. Raj Kaur v. Talok Singh
(1) Sir Donald Johnstone, the Chief Justice held that the Riwaj-i-am as
compiled, did not cover self-acquired property and that where the Riwaj-i-am
talked about succession to land without discrimination between ancestral and
self-acquired, the rule laid down could usually only be taken to apply to
ancestral property. A similar view was taken by Shadilal and Wil be force, JJ.,
in Budhi Prakash v. Chandra Bhan (2 ). The view taken in these cases was
followed by other judges of the High Court in Narain v. Mst. Gaindo (3 ) and
Fatima Bibi v. Shah Nawaz (4). In Sham Das v. Moolu Bai (5) the learned judges
(LeRossignol and Fforde, JJ.) also laid down the same principles, without any
reference to the previous decisions, in these words :"It is true in the
Riwaj-i-ain no distinction is made between ancestral and acquired property, but
it is a wellrecognised rule that unless there are clear indications to the
contrary, such an entry in a record of custom refers only to the succession to
ancestral property. " After this view had been followed in several other
decisions a different line was struck in Jatan v. Jiwan Singh (6).
That was a case between Grewal Jats and the
contest lay between collaterals of the last male holder and his married
daughter with respect to his non-ancestral property. The learned judges were of
opinion that the Question No. 43 in the Riwaj-i-am related to both ancestral
and non-ancestral property and so the answer to the question recorded in
Riwaj-iam proved that as regards the non-ancestral property also the daughter
was excluded by collaterals. In coming to this conclusion they laid stress on
the fact that in two previous decisions, Ishar Kuar v. Raja Singh (7) and
Pratap Singh v. Panjabu (8) the questions and answers in the Riwajiam as
regards daughter's (1) A.I.R. 1916 Lah. 343.
(3) A.I.R 1918 Lah. 304 (5) A.I.R. 1926; Lah.
210 (7) (1911) 9 I.C. 608.
(2) A.T.R. 19T8 Lah. 225.
(4) A.I.R. 1921 Lah. 180.
(6) A.I.R. 1933 Lah. 553.
(8) (1911) 13 I.C. 177 981 right to
succession were interpreted as covering no ancestral property also and if it
was contemplated that a daughter should succeed to self-acquired property, one
would have expected that fact to be mentioned in the answer. It was in view of
the conflicting views which had thus arisen on the question whether Question
No. 43 in the Riwaj-i-ani in the absence of a clear indication to the contrary
related to ancestral property only or to both ancestral and nonancestral
property that a reference was made by Mr. Justice Abdur Rahman in Mt. Hurmate
v. Hoshiaru 1 to a Full Bench of the High Court. The Full Bench reviewed the
numerous decisions of the Punjab courts in this matter and also took into
consideration the fact that Mr. Gordon Walker who had prepared the Riwaj-i-am
in 1882 had stated in the preface that no distinction between self-acquired and
inherited property in land appeared to be recognised and the rules of
succession, restriction on alienation, etc., applied to both alike; and after a
careful consideration of all the relevant factors recorded their conclusion
that " Question No. 43 of the Customary Law of Ludhiana district relates
to ancestral property only and can in no circumstances be so interpreted as to
cover self acquired property as well. " Mr. Justice Din Mohammad who
delivered the leading judgment observed :" The raison d' entre of those
cases which lay down that the manuals of Customary Law were ordinarily
concerned with ancestral property only is quite intelligible. Collaterals are,
as stated by Addison, J., in 13 Lab. 458, really speaking interested in that
property only which descends from their common ancestor and this is the only
basis of the agnatic theory. What a male-holder acquires himself is really no
concern of theirs. It is reasonable, therefore, to assume that when manuals of
Customary Law were originally prepared and subsequently revised, the persons
questioned, unless specific-ally told to the contrary, could normally reply in
the light of their own interest alone and that, as stated above, was confined
to the ancestral property only.
The fact that on some occasions (1) A.I.R.
1944 Lah. 21, 127 982 the questioner had particularly drawn some distinction
between ancestral and non-ancestral property would not have put them on their
guard in every case, considering their lack of education and lack of
intelligence in general.
Similarly, the use of the terms " in no
case " or " under no circumstances " would refer to ancestral
property only and not be extended so as to cover self-acquired property unless
the context favoured that construction. " One would have thought that
after this pronouncement by a Full Bench of the High Court the controversy
would have been set at rest for at least the Punjab courts. Surprisingly,
however, only a few years after the above pronouncement, the question was
raised again before a Division Bench of the East Punjab High Court in Mohinder
Singh v. Kher Singh(1).
The learned judges there chose to consider
the matter afresh and in fact disregarded the pronouncement of the Full Bench
in a manner which can only be said to be unceremonious.
Teja Singh, J., who delivered the leading
judgment said that the Full Bench, though noticing the cases of Ishar Kaur v.
Raja Singh (2) and Pratap Singh v. Panjabu
(3), had not said that those cases had been wrongly decided. It has to be
noticed that the Full Bench in no uncertain terms expressed their conclusion
that question No. 43 of the Customary Law of the Ludhiana district related to
ancestral property only and could in no circumstances be so interpreted as to cover
self-acquired property as well. In coming to that conclusion they had
considered numerous decisions of the Punjab courts in support of the general
proposition that unless there are clear indications to the contrary the
questions relate to ancestral property, considered the cases in which a
contrary view had been taken including the three cases of Jattan v. Jiwan Singh
(4), Ishar Kaur v. Raja Singh (2 ) and Pratap Singh v. Panjabu (3) and gave
their own reasons why the view that unless there are clear indications to the
contrary the manuals of customary law should be taken to refer to ancestral
property only, and after considering the (1) A.I.R. 1949. East Punjab 328 (3)
(1911) 13 I.C. 177.
(2) (1911) 9 I.C. 608.
(4) A.I.R. 1933 Lah. 553.
983 question and answer in question No. 43 in
the case before them as regards the Mohammadan Rajputs, recorded their final
conclusion. It is neither correct nor fair to say that the learned judges of
the Full Bench did not hold Jattan's Case, Pratap Singh's Case and Ishar Kaur's
Case to have been wrongly decided in so far as these decisions held the
question No. 43 of the Customary Law of the Ludhiana district to refer both to
ancestral and non-ancestral property.
It is true that they did not say in so many
words that these cases were wrongly decided; but when a Full Bench decides a
question in a particular way every previous decision which had answered the
same question in a different way cannot but he held to have been wrongly
decided. We had recently occasion to disapprove of the action of a Division
Bench in another High Court in taking it upon themselves to hold that a
contrary decision of another Division Bench on a question of law was erroneous
and stressed the importance of the well recognised judicial practice that when
a Division Bench differs from the decision of a previous decision of another
Division Bench the matter should be referred to a larger Bench for final
decision. If, as we pointed out there, considerations of judicial decorum and
legal propriety require that Division Benches should not themselves pronounce
decisions of other Division Benches to be wrong, such considerations should
stand even more firmly in the way of Division Benches disagreeing with a
previous decision of the Full Bench of the same court.
In our opinion, the view taken by the Full
Bench in Mt. Hurmate v. Hoshiaru (1) is consonant with reasons and consistent
with probability. The fact that the great majority of judges, who brought to
bear on the question, an intimate knowledge of the ways and habits of the
Punjab peasantry thought that when tribesmen were asked about succession to
property, they would ordinarily think that they were being asked about
succession to ancestral property, is entitled to great weight. It cannot, we
think, be seriously disputed that at least in the early years (1) A.I.R. 1944
Lah 21.
984 when the Riwaj-i-am was in course of
preparation most of the property in the countryside was ancestral property, and
" self-acquisitions " were few and far between. This fact, it is
reasonable to think, had the consequence of concentrating the attention of the
tribesmen on the importance of having the tribal custom correctly recorded by
the Settlement Officers and their agents, as regards succession to ancestral
property, and of attracting little attention, if any, to matters regarding
non-ancestral property. Unless the questions put to these simple folk, were so
framed as to draw pointed attention to the fact that the enquiries were in
respect of non-ancestral property also, they could not reasonably be expected
to understand from the mere fact of user of general words in the questions that
these referred to both ancestral and non-ancestral property. As Din Mohammad,
J., said in his judgment in the Full Bench, even the fact that on some
occasions, the questioner had drawn some distinction between ancestral and no
ancestral property, could not have put them-(i.e., the persons questioned)-on
their guard in every case, considering their lack of intelligence in general.
Their minds being obsessed with the idea that such enquiries would only refer
to ancestral property, they would direct their answers to matters in respect of
ancestral property only, and in using forceful terms like " in no case
" and " under no circumstances these persons were really saying that
" in no case would ancestral property devolve in a particular way and have
a particular incidence; and under no " circumstances " would
ancestral property devolve in a particular way, and have a particular
incidence.
These considerations, we think, outweigh the
statement made by Mr. Gordon Walker that no distinction between self acquired
and inherited property in land appeared to be recognised, and the rules of
succession, restriction on alienation, etc., applied to both alike.
We think, therefore,, that the view taken by
the Full Bench, and the many previous cases mentioned in the judgment of the
Full Bench, that questions and answers in the Riwaj-i-am refer ordinarily to
985 ancestral property, unless there is clear indication to the contrary, is
correct. Question No. 43 in the Ludhiana district, appears to be the same for
all the tribes. There is not the slightest indication there that the questioner
wanted information about no ancestral property also. The answer given by the
Grewal Jats to this question also gives no reason to think that the persons
questioned were thinking in giving the answers of both ancestral and
non-ancestral property.
We have, therefore, come to the conclusion
that the entries in the Riwaj-i-am on which the plaintiffs respondents rely do
not refer at all to non-ancestral property, and are, therefore, not even
relevant evidence to establish the existence of a custom among Grewal Jats of
Ludhiana district, entitling collaterals to succession to nonancestral
property, in preference to daughters.
Reliance was next placed on behalf of these
respondents on the fact that the existence of such a custom was recognised in a
number of judicial decisions, viz., Jattan v. Jiwan Singh (1), I shar Kaur v.
Raja Singh (2) and Pratap Singh v. Panjabu (3). If these decisions in so far as
they recognised the existence of such a custom, had been solely or even mainly
based on evidence, other than entries in the Riwaji-i-am, they might have been
of some assistance.
Examination of these cases, however, shows
unmistakably that they were either wholly, or mainly based on the entries in
the Riwaj-i-am on the assumption that these entries referred to both ancestral
and non-ancestral property. This assumption having been established to be
baseless, these decisions are valueless, to show that the custom as alleged by
the plaintiffs-respondents did exist as regards nonancestral property. Further,
the oral evidence produced in the present case is wholly insufficient to prove
such a custom.
It must, therefore, be held that the
customary law among the Grewal Jats of Ludhiana district as regards succession
to non-ancestral property is the same as recorded generally for the Punjab in
Paragraph 23 of Rattigan's Digest-i.e., the daughter is preferred to (1) A.I.R.
1933 Lah. 553. (2) (1911) 9 I.C. 608.
(3) (1911) 13 I.C. 177.
986 collaterals, and consequently, the second
and the third appellants, were the next reversioners to that portion of Dev
Singh's property which has been found to be no ancestral.
This brings us to the question whether the
gift of this portion, by the first appellant to these reversioners, gives them
a good title, beyond the widow's lifetime. We have to remember in this
connection that as regards the ancestral property, these daughters were not the
reversioners, and the further fact that out of the ancestral property, the
house was not included in the deed of gift. The position, therefore, is that
out of the property in which the first appellant held a widow's estate, she
gave by the deed of gift a portion to the reversioners as regards that portion,
a portion to persons who were strangers to the reversion as regards that
portion and a portion was retained by her. The doctrine of Hindu law according
to which, a limited owner can accelerate the reversion, by surrendering her
interest, to the next reversioner, is based on a theory of selfeffacement of
the limited owner. That is why it has been laid down that in order that a
surrender by a limited owner to a reversioner, may be effective, the surrender
must be of the entire interest of the limited owner in the entire property. The
exception made in favour of the retention of a small portion of the property
for her maintenance, does not affect the strictness of the requirement that a
surrender to be effective, must be of the entire interest in the entire
property: Vide Rangasami Gounden v. Nachiappa Gounden (1) and Phool Kaur v. Pem
Kaur (2).) In so far as there is gift to a stranger, there is no effacement of
the limited owner; nor is there any effacement in respect of the property which
is retained. We find it impossible to say, therefore, that there is such
effacement of the limited owner in this case, as would accelerate the
daughter's rights by converting the future contingent right into a present
vested right.
On behalf of the appellants it is argued that
there is certainly a total effacement in respect of the nonancestral property,
so that the right of the next reversioners-the daughters-in that property has
(1) (1918) L.R. 46 I.A. 72.
(2) [1952] S.C.R. 793, 987 been accelerated.
We do not think we shall be justified in recognising this novel doctrine of the
possibility of effacement of the limited owner vis-a-vis the next reversioner
of the non-ancestral property when there is no effacement vis-a-vis the
reversioner of the ancestral property, and vice versa. Effacement cannot be
broken up into two or more parts in this manner; and however much the limited
owner may wish to efface herself only vis-a-vis those next reversioners whom
she wants to benefit, law does not recognise such " partial effacement
".
The Hindu Law doctrine of surrender does not,
therefore, make the gift of the non-ancestral property to the daughters valid
beyond the widow's lifetime.
It is not suggested that there is any
customary law, by which such surrender can be made.
Though, therefore, we have found disagreeing
with the learned judges of the High Court that tinder the customary law
governing the Grewal got of Jats to which the parties belong, the daughters-the
second and the third appellants are preferential heirs to the non-ancestral
portion of the suit land, we hold that their conclusion that this deed of gift
in favour of the daughters is not valid even as regards the non-ancestral
property, beyond the donor's lifetime is correct and must be maintained.
As a last attempt Mr. Gopal Singh, counsel
for the appellants, wanted us to hold that under s. 14 of the Hindu Succession
Act, which became law in 1956, either the mother or the daughters have become
full owners of this property, and so the plaintiffs' suit should be dismissed.
As the Hindu Succession Act was not on the statute-book, when the written
statement was filed or at any time before the suit was disposed of in the courts
below, the defence under s. 14 of that Act could not be thought of and was not
raised. The necessary consequence is that evidence was not adduced, with the
facts material for the application of s. 14 in view, by either party. Mr.
Agarwala has, on behalf of the plaintiffs-respondents, contended that as the
record stands the mother had ceased to be in possession and could not get the
benefit of s. 14 of the Hindu Succession Act, and that the 988 daughters in
possession, would not become full owners under s. 14. We do not think it would
be proper to consider these questions in the present suit in this haphazard
manner when on the all-important question of possession, the appellants
themselves do not wish to say whether the mother was in possession actually or
constructively, whether the daughters' possession was merely permissive, or
whether the daughters were in independent possession, on their own behalf These
and other questions of fact, and the questions of law that have to be
considered in deciding a claim by the first appellant or the other two
appellants under s. 14 of the Hindu Succession Act, should properly be
considered in any suit that -they may bring in future, if so advised. We
express no opinion on any of these questions.
For the reasons which have been mentioned
earlier, we hold that the High Court rightly decreed the suit in favour of the
plaintiffs in respect of the nonancestral property also, and dismiss the
appeal. In the circumstances of the case, we order that the parties will bear
their own costs throughout.
Appeal dismissed.
Back
