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PETITIONER: MARA AND OTHERS

       Vs.

RESPONDENT: NIKKO AND OTHERS

DATE OF JUDGMENT: 24/03/1964

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR 1821            1964 SCR  (7) 430  CITATOR INFO :  RF         1980 SC2138  (2)

ACT: Inheritance-Jhalli   Jats  of   Tahsil   Ludhiana-Properties Ancestral    or   non-Ancestral-Whether   Sister    excludes collaterals.

HEADNOTE: 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 not. Avtar Singh v. Thakar Singh, 35 I.A. 206, applied. 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, [1959] 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.

JUDGMENT: 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

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Appeal No. 1591 of 1959. Kartar Singh Chawla and Harbans Singh, for the appellants. I. M. Lal and M. R. K. Pillai, for the respondents. 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?"

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             "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 1909-1910  (Exts. 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

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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.

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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. Appeal dismissed. (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. 435