http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: GOPAL SINGH AND OTHERS

       Vs.

RESPONDENT: UJAGAR SINGH AND OTHERS.

DATE OF JUDGMENT: 02/04/1954

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MUKHERJEA, B.K. HASAN, GHULAM AIYYAR, T.L. VENKATARAMA

CITATION:  1954 AIR  579            1955 SCR   86  CITATOR INFO :  R          1955 SC 226  (9)  R          1974 SC 665  (9)

ACT:     Custom-Succession-Agricultural  Jats of  village  Ralla, Tahsil  Mansa, District Barnala,  State  Pepsu-Non-ancestral property Daughter’s sons v. collaterals-Gift by daughter  of non-ancestral  property  in  favour  of  her  sons-  Whether amounts  to  acceleration-Commission  to  include  a   small portion of the whole property in the gift Surrender-Validity of.

HEADNOTE:   Held,  that among agricultural Jats of Village  Relia,  in the  District  of Barnala, State of Pepsu,  daughter’s  sons will  inherit,  to the exclusion of  collaterals,  the  non- ancestral  lands which had devolved by inheritance on  their mother. A  gift  by  the  daughter  to  her  sons  would  amount  to acceleration  of  succession.  Omission to include  a  small portion of the whole property due to ignorance or  oversight does not affect the validity of    the surrender when it  is otherwise bona fide. Lehna  v.  Mst.  Thakri (32 Punjab Record  1892  F.B.);  Lal Singh v.   Boor  Singh (55 P.L.R. 168 at 172); Mulla’s Hindu  Law, 11th Edition, page 217; Rattingan’s Digest of Customary Law, para. 23(2) referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 174 of 1952.   Appeal  from the Judgment and Decree dated the 27th  June, 1950,  of the High Court of Judicature of Patiala  and  East Punjab  States  Union in Second Appeal No.  219  of  1949-50 against  the Judgment and Decree dated the  21st  September, 1949,  of  the  Court  of  the  Additional  District  fudge, Bhatinda,  in  Appeal  No.  61 of  1948,  arising  from  the Judgment  and  Decree dated the 10th August,  1948,  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

Court  of the Sub-Judge 11 Class, Mansa, in Case No. 134  of 1947. 87 Gopal Singh and Sardar Singh for the appellants. Achhru Ram (K.  L. Mehta, with him) for the respondent. 1954.  April 2. The Judgment of the Court was delivered by BOSE  J.  --The  plaintiffs appeal.  They claim  to  be  the presumptive  reversioners to one Harnam Singh who owned  the property  in dispute.  On 2nd November, 1914,  after  Harnam Singh’s   death,  his  daughter  Mst.   Biro,   the   second defendant, gifted the plaint properties to her sons who have been   grouped  together  as  the  first   defendant.    The plaintiffs  contend that the property is ancestral and  that the  daughter  got only a life estate, so they  sue  for  ’a declaration that the gift will not affect their reversionary rights. The  defendants rely on custom.  They state that,  according to the customary law which governs the parties,  collaterals beyond  the fifth degree are not heirs in the presence of  a daughter  and  her  line.  The  plaintiffs,  they  say,  are collaterals  of  the seventh degree  therefore  they  cannot displace  the daughter.  They also state that  the  property was not ancestral and so the plaintiffs cannot challenge the daughter’s alienation.  The third line of defence related to a portion of the property which is not in dispute before us. The property in suit consisted of three items: (1)  253 bighas of Khas land; (2)  a half share in 3 bighas 19 biswas; and (3)  a share in certain shamlat property. The  defendants say that Harnam Singh gifted 123  bighas  of the  Khas land to the second defendant : that the  gift  was absolute  and so the plaintiffs cannot,get that  portion  of the property in any event. The  trial Judge held, on the admission of  the  plaintiffs’ counsel, that the land in dispute was non-ancestral and that the daughter’s sons would succeed after her to the exclusion of  the  plaintiffs, therefore the gift by her to  her  sons amounted  to  an acceleration of the  estate.   The  learned Judge dismissed the plaintiffs Suit, 88 On  appeal to the lower appellate Court- the  finding  ,that the property was non-ancestral was upheld as the plaintiffs’ learned counsel in that Court did not contest the finding of the first Court on this point.  As regards the acceleration, the  learned Judge thought it necessary to examine  a  point which the plaintiffs had raised in the trial Court but which was  ignored there, namely that a house was not included  in the gift.  Therefore it was argued that as the whole of  the estate  was  not  passed on to the next heir  there  was  no acceleration.  The learned Judge took evidence on this point and  held  that  the house was not  included  and  so  found against   the  defendants.   Accordingly  he   decreed   the plaintiffs’ claim for this part of the estate. In  the High Court the learned Judges upheld the  concurrent finding  about  the non-ancestral nature  of  the  property. Before  them also the point was conceded by the  plaintiff’s counsel.  They also held that the house was not included  in the  gift  but  held that it was such a small  part  of  the estate  that  the  daughter’s  retention  of  it  could  not indicate an intention on her part not to efface herself from the  estate.  They also held in the plaintiffs’ favour  that they  were  collaterals  in the fifth  degree  and  not  the seventh but held that as the property was non-ancestral  the daughter’s  sons  were  the  nearest  heirs,  so  the   gift accelerated the estate and, vested it in the donees  despite

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

the exclusion of the house.  Accordingly, they reversed  the decree of the lower appellate Court and restored that of the learned trial Judge. Before  us, the plaintiffs’ learned counsel tried to  reopen the  concurrent finding of the three Courts about  the  non- ancestral nature of the property but we did not allow him to do so.  The question is a mixed question of law and fact and the  admission  involved both.  We were not  shown  how  the facts admitted could be disentangled from the law so that we could determine whether the conclusion of law drawn from the admitted facts was wrong.  The learned trial Judge said that the  admission was made because of a previous decision in  a former suit between the. same parties or their predecessors, Harnam Singh had mortgaged a part of 89 his estate and placed the mortgagees in possession.  When he died  some  of  his  collaterals  took  possession  of   the unencumbered portion of the estate.  The daughter Mat.  Biro therefore  instituted two suits, one for possession  against the  collaterals including the present plaintiffs  or  their predecessors,  and the other for a declaration  against  the mortgagees in possession.  In this she also joined the  same set  of  collaterals.  Mist.  Biro succeeded on  the  ground that  the  property was non-ancestral.  These  findings  are obviously  res-judicata  and  if  the  plaintiffs’   learned counsel  had not conceded the point the question  ’would  at once have been raised and the previous judgments, which were exhibited  (Exhibits  DD and DF)  would-have  concluded  the matter.  But as the point was conceded in all three’  Courts it was not necessary for the defendants to fall back on  the previous  decisions.   It, must therefore be  accepted  here that the whole of the land in dispute was non-ancestral. That brings us to the question of heirship.  Paragraph 23(2) of Rattigan’s Digest’ of Customary Law says that- In  regard  to  the acquired property  of  her  father,  the daughter is preferred to the collaterals." That is not disputed but what the plaintiffs contend is that she  only succeeds as a limited heir and that after her  the reversion  will go to the father’s heirs in the  usual  way. But  that is not the Punjab custom among the tribe to  which the  parties  belong, namely  agricultural  Jats.   Rattigan quotes  the  following  passage  from page  61  of  Roe  and Rattigan’s Tribal -Law-of the Punjab at page 411 of the 13th edition of his Digest: "  Where a succession of a married daughter is allowed,  the general  principle is that she succeeds not as  an  ordinary heir,, but merely as the means of passing on the property to another  male, whose descent from her father in  the  female line is allowed under exceptional circumstances to count  as if  it  were  descent in the male  line.   She  will  indeed continue  to hold the land in her own name, even  after  the birth of sons and their attaining majority, for her own life but  she has no more power over it than a widow would  have. If  she has sons, the estate will of Course descend to  them and  their lineal male issue, in the usual way.  But if  she has no sons, 12 90 or if their male issue fail, the land will revert, except in some special instances where her husband is allowed to  hold for his life, to her father’s agnates, just as it would have done  if  no  exception  to  the  general  rule  of  agnatic succession had ever been in her favour." This is supported by at least two decisions from the Punjab. In  Lehna  v., Mst.  Thakri (1) two learned  Judges  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

Punjab  Chief  Court  (the third dissenting)  said  ’in  the course  of a Full Bench decision, that even in the  case  of ancestral property the daughter’s sons and their descendants would  exclude collaterals of the father.  In a more  recent case (1953) the Punjab High Court held in Lal Singh v.  Roor Singh  (2)  that in the case of non-ancestral  property  the daughters are preferred to collaterals. We  were told that this rule only applies when the  daughter succeeds  and  has no application when she  predeceases  her father.   We say nothing about this because the case  before us  is  one in which the daughter did succeed  and  all  the authorities  produced before us indicate that in that  event her  sons will exclude the collaterals.  We were  not  shown any  decision which has taken a contrary view.  We are  only concerned  with non-ancestral property here and  express  no opinion   aboutwhat   would  happen  in  the  case   of ancestral  proper  though  the observations of  two  of  the learned   Judges in the fullBench  of  the  Punjab   Chief Court to  whichwe have referred carry the rule over  to ancestral property as well. The learned counsel for the plaintiffs relies on,  paragraph 64  of Rattigan’s Digest where it is stated that  except  in two cases which do -not apply here, no female in  possession of  property from, among others, her father can  permanently alienate  it.  But we are not concerned with  an  alienation here.  The gift to the sons mayor may not be good after Mst. Biro’s  death as a gift.  The question is whether there  was an  acceleration.  If there was, the form it took would  not matter. We  turn, next, to the question of surrender and  the.  only question there is whether the retention by Mst.  Biro of the house would prevent an acceleration of the (1)  32 Punjab Record 1895. (2)  55 Punjab Law Reporter 168 at 172. 91 estate,  The extent of the property covered by the  gift  is over  253  bighas.  She had an absolute right  to  gift  123 bighas of this and so the only portion to which the doctrine of  surrender  would apply would be the  remaining  130  odd bighas.  But the fact that she gave away all her property to her  sons, bar this house, including property to  which  she had  an  absolute  right,  is  relevant  to  show  that  her intention was to efface herself completely.  Now as  regards this  house. Garja Singh (P.W. 1) gives us this  description of it: "  The distance between the door of the Sabbat and  that  of Darwaja  is  only  about  two  karams.   "  (eleven   feet). "opposite to Darwaja there is one Jhallani the door of which opens  into  the Sabbat and not in  the  courtyard.   Except Darwaja,  Sabbat  and  Jhallani there  is  no  other  roofed portion in their house.  There is only one compound for  the cattle." In this tiny dwelling live not only Mst.  Biro but also  her three sons.  It forms, as the High Court held, a very  small part  of  the  whole  property.   The  retention  of   this, particularly  in these circumstances when the  sons  already live  there  with her, would not invalidate  the  surrender. The  law  about this has been correctly set out  in  Mulla’s Hindu Law, 11th edition, page 217, in the following terms: " But the omission, due to ignorance or to oversight,, of  a small  portion  of the whole property does  not  affect  the validity of the surrender when it is otherwise bona fide."’ The  present case is, in our opinion, covered by that  rule. We  agree  with  the  High  Court  that  the  gift  operated accelerate  the  succession.   That  being  the  case,   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

plaintiffs  are no longer the reversions even if they  would otherwise have been entitled to succeed on  failure of the daughter’s sons and their line’  We  need not  decide  whether the plaintiffs, as collaterals  in  the fifth degree, would be heirs at all. The appeal fails and is dismissed with costs.                            Appeal dismissed. 92