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Smt. Dipo Vs. Wassan Singh & Ors [1983] INSC 60 (5 May 1983)

REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA (J) DESAI, D.A.

CITATION: 1983 AIR 846 1983 SCR (3) 20 1983 SCC (3) 376 1983 SCALE (1)582

ACT:

Hindu Law-Property inherited from paternal ancestors is 'ancestral property' only as regards as male issue of propositus- As regards other relations it is his absolute property.

Rules of procedure-Meant to advance cause of justice;

not to short circuit; decision on merits.

HEADNOTE:

The appellant filed a suit to recover possession of properties belonging to her deceased brother Bua Singh claiming to be his nearest heir. The suit was contested by the sons of Bua Singh's paternal uncle. Most of the suit properties were ancestral, while only a few of them were non-ancestral. Proceeding on the basis that according to the custom, the sister was excluded by the collaterals in the case of ancestral property, the trial court held that the appellant was entitled to succeed only to the non-ancestral property of Bua Singh. While the first appeal was rejected on the ground that she did not present the appeal in person as required by 0.33, r. 3, the second appeal was rejected on the ground that a copy of the trial court judgment was filed after the expiry of the period of limitation.

Allowing the appeal, ^

HELD : 1. Property inherited from paternal ancestors is 'ancestral property' as regards the male issue of the propositus, but it is his absolute property and not ancestral property as regards other relations. [23 A] Mulla : Principles of Hindu law, 15th ed., pp. 289 and 291 relied on.

In the instant case, no doubt, the properties which have been found by the lower courts to be 'ancestral properties' in the hands of Bua Singh are properties which originally belonged to Bua Singh's ancestors. But Bua Singh was the last male holder of the property and he had no male issue. There was no surviving member of a joint family, be it a descendent or otherwise, who could take the property by survivorship. The respondents were collaterals of Bua Singh and as regards them the property was not 'ancestral property' and hence the appellant was the preferential heir.

The appellant was, therefore, entitled to a decree in respect of all the plaint properties.

2. Rules of procedure are meant to advance the cause of justice and not to short-circuit decision or merits. The lower Courts were in error in dismissing 21 the appeals preferred by the appellant. When the District Judge had admitted the first appeal there was no point in dismissing it thereafter on the ground that the memorandum of appeal had not been presented by the party herself. The High Court should have condoned the delay in filing a copy of the trial court's judgment and the second appeal should have been disposed of on merits.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1938 of 1970.

Appeal by Special leave from the Judgment and Order dated the 22nd September, 1969 of the Punjab and Haryana High Court in R.S.A. No. 1021 of 1964.

N. K. Aggarwal for the Appellant.

S. L. Aneja for the Respondent.

The Judgment of the Court was delivered by CHINNAPPA REDDY, J. Smt. Dipo, plaintiff in Suit No. 8 of 1692 in the Court of the Subordinate Judge 1st Class, Amritsar is the appellant in this appeal by special leave.

She sued to recover possession of the properties which belonged to her brother, Bua Singh, who died in 1952. She claimed to be the nearest heir of Bua Singh. The suit was filed in forma pauperis. The suit was contested by the defendants who are the sons of Ganda Singh, paternal uncle of Bua Singh. The grounds of contest were that Smt. Dipo was not the sister of Bua Singh and that even if she was the sister, the defendants were preferential heirs according to custom, as the whole of the land was ancestral in the hands of Bua Singh. The learned Subordinate Judge held that the plaintiff, Smt. Dipo was the sister of Bua Singh. He found that most of the suit properties were ancestral properties, in the hands of Bua Singh, while a few were not ancestral.

Proceeding on the basis that according to the custom, the sister was excluded by collaterals in the case of ancestral property while she was entitled to succeed to non-ancestral property, the learned Subordinate Judge granted a decree in favour of the plaintiff for a 2959/34836 share of the plaint Alaf schedule lands and a 13/80th share of the land described in the plaint Bey schedule. The plaintiff preferred an appeal to the District Judge, Amritsar. The appeal was purported to be filed in forma pauperis. It was dismissed on the ground that the plaintiff 22 did not present the appeal in person as required by Order 33 Rule 3. The defendants also preferred an appeal, but that was also dismissed. There was a second appeal to the High Court of Punjab and Haryana by the plaintiff. The second appeal was dismissed as barred by limitation. It appears that a copy of the trial court's judgment was not filed along with the memorandum of second appeal. Though the memorandum of second appeal was filed within time, the copy of the decree was filed after the expiry of the period of limitation and it was on that ground that the second appeal was dismissed.

We do not think that the High Court was justified in dismissing the second appeal on the ground of limitation.

The defect was technical as the second appeal itself had been presented in the time. It was only a copy of the trial courts judgment that was filed after the expiry of the period of limitation. The delay in filing a copy of the trial courts judgment should have been condoned and the second appeal should have been entertained and disposed of on merits. We are also satisfied that the learned District Judge was in error in dismissing the appeal on the ground that the appellant-plaintiff had not herself presented the memorandum of appeal. The appeal had been admitted by the District Judge earlier and there was no point in dismissing it thereafter on the ground that the memorandum of appeal had not been presented by the party herself. Rules of procedure are meant to advance the cause of justice and not to short circuit decision on merits. We have no option, but to set aside the judgments of the District Judge and the High Court. Instead of sending the case back to the District Judge for disposal on merits, we have ourselves heard the appeal on merits. The finding that Smt. Dipo is the sister of Bua Singh is a concurrent finding and we accept it. We also proceed on the basis that according to the prevailing custom of the area, collaterals and not the sister are preferential heirs to ancestral property in the hands of a propositus, while the sister and not the collateral is a preferential heir in regard to non-ancestral property. We must add here that we are not quite satisfied that the custom has been properly established, but for the purposes of the present case, we proceed on the basis that the custom has been established. But that is not the end of the problem before us. No doubt the properties which have been found by the lower courts to be ancestral properties in the hands of Bua Singh are properties which originally belonged to Bua Singh's ancestors. But Bua Singh was the last male holder of the property 23 and he had no male issue. There was no surviving member of a joint family, be it a descendant or otherwise, who could take the property by survivorship. Property inherited from paternal ancestors is, of course, 'ancestral property' as regards the male issue of the propositus, but it is his absolute property and not ancestral property as regards other relations. In Mulla's Principles of Hindu Law (15th Edition), it is stated at page 289 :

".......... if A inherits property, whether movable or immovable, from his father or father's father, or father's father's father, it is ancestral property as regards his male issue. If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases .......... A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons' sons and sons' sons' sons' but as regards other relations he holds it and is entitled to hold it, as his absolute property." Again at page 291, it is stated :

"The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession." We are, therefore, of the view that the Lower Courts were wrong in refusing to grant a decree in favour of the plaintiff as regards property described by them as ancestral property'. The defendants were collaterals of Bua Singh and as regards them the property was not 'ancestral property' and hence the plaintiff was the preferential heir. The plaintiff was entitled to a decree in respect of all the plaints properties. The judgments and decrees of the learned Subordinate Judge, District Judge and High Court are set aside and 24 there will be a decree in favour of the plaintiff for all the plaint properties.

The plaintiff is also entitled to get her costs throughout from the defendants. The defendants will pay the court fee due to the Government in the suit, appeal, second appeal and the appeal to this Court.

H.L.C. Appeal allowed.

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