Mara & Ors Vs. Nikko & Ors
 INSC 90 (24 March 1964)
24/03/1964 HIDAYATULLAH, M.
AYYANGAR, N. RAJAGOPALA
CITATION: 1964 AIR 1821 1964 SCR (7) 430
RF 1980 SC2138 (2)
Inheritance-Jhalli Jats of Tahsil Ludhiana-Properties
Ancestral or non-Ancestral-Whether Sister excludes collaterals.
Claiming inheritance to the properties of one
P-a Jhalli Jat of Ludhiana Tehsil, the respondents, who were P's sister and
sister's son filed a suit against the appellants-P's collaterals. The
Subordinate Judge decreed the suit and an appeal to the District Judge was
dismissed. They held that the lands in suit were not ancestral and that there
was no evidence to show that among the Jhalli Jats of Ludhiana collaterals excluded
sisters and sister's son in respect of non-ancestral property. An appeal to the
High Court was also dismissed.
Held: (i) Where lands are so mixed up that
the ancestral and non-ancestral portions cannot be separated they must be
regarded as non-ancestral unless it is shown which are ancestral and which are
Avtar Singh v. Thakar Singh, 35 I.A. 206,
Land ceases to be ancestral if it comes into
the hands of any owner otherwise than by descent.
Inder Singh v. Gulzara Singh, A.I.R, 1951 Punj.
345, Saif- ulRahman v. Mohammad Ali Khan, I.L.R. 9 Lah. 95 and Jagtar Singh v.
Raghbir Singh, I.L.R. 13 Lah. 165, referred to.
(ii) The application of the personal law to
the family by the courts below was correct and paragraph 24 of Rattingan's
Digest which excludes sisters from inheritance from non- ancestral property is
too widely stated.
Ujagar Singh v. Mst. Jeo,  Supp. 2
S.C.R. 781 and Waryam Singh v. Smt. Sukhi, CA No. 452/61 decided on 23-4- 1963
(non-reportable) referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 490 ,of 1962.
Appeal by special leave from the judgment and
order dated October 20, 1959 of the Punjab High Court in Regular Second Appeal
No. 1591 of 1959.
Kartar Singh Chawla and Harbans Singh, for
I. M. Lal and M. R. K. Pillai, for the
March 24, 1964. The Judgment of the Court was
delivered by HIDAYATULLAH, J.-This is a defendants' appeal by special leave
against the order of the High Court of Punjab dated October 20, 1959 dismissing
summarily second appeal filed by the appellants. The suit was filed by the
respondents for possession of a plot, a house and a Kaur and half share in
certain lands as preferential heirs of one Pohla after the death 431 of Pohla's
widow Punjab Kaur on February 7, 1952. The plaintiffs are Mst. Nikko, sister of
Pohla and Jarnail Singh, son of Mst. Har Kaur who was another sister of Pohla.
The first appellant Mara is a collateral of 4th degree of Pohla and the other
two appellants are Mara's sons. The following genealogy gives the relationship
of the parties:- Sualtani :
Sohela Baghaila : :
Mara --------------------- defendant No.1 : :
Pir Bux Jaimal Sunder : : died sonless : :
and wifeless ------------------------ ------------------------------- : : : : :
Mohinder Singh Major : : :
Singh Pohla Mst. Har Kaur Mst. Nikku
defendant defendant (son) (daughter) alias Punjab No.2 No.3 : : Kaur (daughter)
: : wife of Santa Shrimati Jarnail son Singh Jat, Punjab of Arjun resident of
widow Plaintiff Ayali Kalan, No.2 No.2 Plaintiff No.2 The parties are Jhalli
Jats of village Chomon, Tehsil and District Ludhiana. The plaintiffs claimed
that the property was non-ancestral and according to the Riwaj applicable to
the family, sisters excluded collaterals in respect of both ancestral and
non-ancestral properties. It appears that after the death of Panjab Kaur, Mara
got one of the fields mutated in his own name and thereafter took possession of
the whole property. He made gifts to his sons of some of the properties and
that is why they were joined in the suit.
Mara and his elder son Mohinder Singh filed a
joint written statement in which they raised many pleas the details whereof
need not be given here. They claimed that according to the custom applicable to
the family, sister and sister's sons were excluded from inheritance in respect
of properties whether ancestral or nonancestral. They however claimed that the
property was ancestral and denied the genealogy.
The Subordinate Judge, Second Class, Ludhiana
framed six issues of which issues No. 2, 3 and 4 alone are important in this
appeal. Those issues are:- "2. Whether the property is ancestral qua Pohla
and Mara?" "3. Whether the question of the nature of the property is
material for the decision of tons case?" 432 "4. Whether the
plaintiffs are preferential heirs to the estate of Mst. Panjabo widow of
Pohla?" The parties led voluminous oral evidence in the case but the
Subordinate Judge did not rely upon it. We have not been referred to any
portion of this evidence in this appeal.
The learned Subordinate Judge held that the
suit lands were not ancestral and further that no evidence was produced to
prove that the other properties were ancestral. On the third issue he referred
to question No. 52 from the Riwaj-i- am relating to the settlements of 1882 and
D-1. and D-2) in which it is stated that
among the Jhalli Jats of Tehsil Ludhiana sisters or sisters' sons never
succeed. He, however, held on the authority of Ahmad v. Mohammad and others(1)
that since question refers only to ancestral property and that the nature of
the property was thus material. On the fourth issue he held on the strength of
the answer to question No. 52 that sisters and their sons were excluded from
ancestral property but as the answer was not applicable to non-ancestral
property the personal law would apply unless special custom was proved. He
therefore placed the burden on ,he defendants relying upon Harnam Singh v. Mst.
Gurdev Kaur, (2) MSt. Sukhwant Kaur v. S.
Balwant Singh and others(3) and Mst. Jeo v.
Ujagar Singh.(4) As he had already rejected the oral evidence and there was no
other proof that the property was ancestral, he decreed the suit.
On appeal the District Judge, Ludhiana
remitted three issues to the trial Judge and they were as follows:--
"Issue No. 4: - Whether there is any custom by which the parties are
governed according to which the plaintiffs are entitled to succeed to the
ancestral as well as non-ancestral left by the Pohla in preference to Mara
defendant?" "Issue No. 4A:- Whether under the custom by which parties
are governed the defendant Mara is a preferential heir to the plaintiffs in
respect of the ancestral as well as non-ancestral property of Pohla
deceased?" (1) A.I.R. 1936 Lah. 809. (2) 1957 P.L.R. 609.
(3) A.I.R. 1951 Simla 242. (4) 1953 P.L.R. 1
433 "Issue No. 4B:- If the custom set out by the parties is not proved,
whether the plaintiffs are preferential heirs to Mara defendant under personal
law applicable to the parties?" On these issues the report of the
Subordinate Judge, First Class, Ludhiana was against the contention of the
defendants. The learned District Judge held, in agreement with the Subordinate
Judge, that the lands in suit were not ancestral and he held also that there
was no evidence to show that among the Jhalli Jats of Ludhiana collaterals
excluded sisters and sisters' sons in respect of non- ancestral property. He
referred to Exts. 9, 10, 12 and 13 which were judgments in other cases as
evidencing the contrary. He accordingly dismissed the appeal. The Second appeal
filed thereafter was dismissed summarily by the High Court.
The first question to decide is whether these
lands are ancestral or non-ancestral. The concurrent finding of the two courts
below is that none of the properties in dispute is ancestral. The High Court
prima facie saw no reason to differ from any of the conclusions of the courts
below. It is contended on the strength of a Kafiat of Thulla Malla prepared at
the settlement of 1882 that this land came into possession of one Sekhu who was
admittedly a common ancestor in the family and the property, which is now in
dispute, must be regarded as ancestral. It is contended that the finding is
vitiated because the two courts below did not read this Kafiat alongwith the
extracts from the Records of rights of the years 1882 and 1909-1910 in which
the names of Jaimal and Sunder, sons of Baghela, and of Pir Bux son of Sohila
are shown as persons in enjoyment of half shares in these lands. It is argued
that the lands in suit are thus proved to be ancestral as they belonged to
Sekhu the common ancestor and the Riwaj-i-am as disclosed in question No. 52
applies to the case. It appears, however, from the Kafiat as well as the Record
of Rights that these lands were once abandoned and when people came back Sekhu
got possession of some lands but in addition to these Sekhu's descendants had
acquired the share of one Dalpat in the Thulla and subsequently the entire
estate of another holder, namely, Maidas was purchased by Jaimal, Sunder and
Sohila. This shows that the lands in dispute are not entirely ancestral but are
made up of lands which may be described as ancestral and non-ancestral.
Now, it has been ruled in the Punjab
consistently that where lands are so mixed up that the ancestral and
nonancestral, portions cannot be separated they must be regarded 434 as
non-ancestral, unless it is shown which are ancestral and which are not. This
was laid down by the Privy Council in Avtar Singh v. Thakar Singh(1). It was
held by Mr. Justice Kapur (as he then was) in Indar Singh v. Gulzara Singh and
others(2) basing himself upon Saif-ul-Rahman v. Mohammand Ali Khan(3) and
Jagtar Singh v. Raghbir Singh(4) that land ceases to be ancestral if it comes
into the hands of an owner otherwise than by descent. Once these conclusions
are reached, it is quite obvious that the decision of the District Judge not to
apply the answer to question No. 52 to non-ancestral land was right. It may be
mentioned that the answers to questions refer to ancestral property only and
this is now firmly established. In fact, it was not denied at the hearing.
It is, however, contended that there are
decisions to show that the right of the collaterals was recognised in respect
of even non-ancestral land to the exclusion of sisters and their sons. No
ruling from the Law Reports has been brought to our notice. Some cases from the
Ambala and Amritsar Dis- tricts are cited but those obviously cannot be any
authority, because, as is well-known, custom in the Punjab changes from
district to district, tehsil to tehsil and pargana to pargana. It has been
ruled in this Court that paragraph 24 of Rattingan's Digest which excludes
sisters from inheritance from non-ancestral property is too widely stated. (See
Ujagar Singh v. Mst. Jeo(5) and (Waryam Singh and Others v. Smt. Sukhi and
another) (Civil Appeal No. 452 of 1961 decided on April 23, 1963). The learned
District Judge cited some instances in which the sisters and sisters' sons were
allowed to succeed in preference to collaterals.
One of the documents filed by the defendants
in the suit (Ext. D-6) also supports the contention of the respondents.
In this view of the matter it cannot be said
that the application of the personal law to the family by the courts below was
erroneous. It is contended lastly that the rulings only show that collaterals
of 5th degree are excluded and there is no case showing that a collateral of
4th degree was excluded. If personal law applies, as it does, a collateral of
the 4th degree is also excluded.
In our judgment this appeal must fail and is
accordingly dismissed with costs.
(1) 35 I.A. 206. (2)A.I.R. 1951 Pb. 345.
(3) I.L.R 9 Lah. 95. (4) I.L.R. 13 Lah. 165.
(5) (1959 Supp. 2 S.C.R. 781.