http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: SMT. DIPO

       Vs.

RESPONDENT: WASSAN SINGH & OTHERS

DATE OF JUDGMENT05/05/1983

BENCH: REDDY, O. CHINNAPPA (J) BENCH: 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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.

JUDGMENT:      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

    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 through out 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. 25