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PETITIONER: MST. KARTAR KAUR

       Vs.

RESPONDENT: AJMER SINGH

DATE OF JUDGMENT:       19/04/1996

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) AHMAD SAGHIR S. (J)

CITATION:  JT 1996 (5)   324        1996 SCALE  (3)616

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA,J.      The 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  : "whether 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. 2.  A Perusal of the judgment of the trial  court shows that following were issues 3.4  and 5:      "3.  Whether   the  suit  is  filed      within the period of limitation ?      4. 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? 3.   The 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

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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. 4.    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. This 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. 5.    The  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 :      "Whether the  parties were governed      by custom  in matters of succession      before the enforcement of the Hindu      succession Act.  if so, what custom      was ?" 6.To 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. This is as below:      The   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

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    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.      D-8." 7. The  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. 8. We  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. 9. But  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 position. 10. 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. The 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 throughout.