Arjan Singh vs Smt. Pingle Devi and Others

V.K. Mehrotra, J.—One Baisakhi made a Will of certain property on September 24, 1963 in favour of plaintiff-appellant Arjan Singh. Baisakhi died on March 7, 1964.

The plaintiff as well as the defendants -in the suit, out of which the present second appeal has arisen, are admittedly collaterals of Baisakhi who was the last male holder of the property in question.

On the basis of the Will aforesaid, Arjan Singh claims possession of the entire property which was the subject matter thereof. What was pleaded by the defendants, however, was that it was not open to Baisakhi to alienate any part of the ancestral property through a Will. According to the defendants, the parties inherited the property, to the extent they were entitled to, as far as the property which was ancestral in the hands of Baisakhi was concerned. They did not dispute the due execution of the Will. We may mention that the only advantage that the plaintiff gets under the Will is that the share which came to him under the Will is a little more than that which he would have got in case the ancestral property came to him by inheritance as a collateral.

The trial Judge decreed the suit on June 17, 1974. In the operative portion of the judgment, he observed that:

"in view of my findings as aforesaid, I grant the plaintiff a decree for possession against the defendants regarding the non-ancestral property as held under issue No. 1 and dismiss his suit regarding the ancestral property held as such under Issue No. 1. However, in the ancestral property as held under Issue No. 1, plaintiff shall have 1/10th share by inheritance.........."

The plaintiff was not satisfied with the aforesaid decree. Nor were the defendants. Consequently, the matter reached the Court of District Judge as Civil Appeal No. 102 of 1979 at the instance of the plaintiff and as cross objection No. 103 of 1979 therein at the instance of the defendants. The case was heard and decided by the learned Additional District Judge, Dharamshala on September 24, 1979. The appeal of the plaintiff wad dismissed while the cross-objection was allowed. What was held by the learned Additional District Judge was :--

".........accordingly the impugned judgment and decree are up-held subject to the modification made above, specifically to the effect that Khasra Numbers pointed out as part of Khata Nos, 526, Khata No. 526 read with 539 shall also be treated as non-ancestral and the plaintiffs suit to that extent of the ancestral nature of the property, as detailed in the preceding paras of this judgment shall be deemed to be dismissed. However, the plaintiff shall be entitled to have 1/10th share of inheritance in the ancestral property, as held by the learned court below.........."

The plaintiff then came to this Court through the present R.S.A.

The second appeal was heard by one of us (Kamlesh Sharma, J.) and a reference was made to a larger bench on November 9, 1991. A prayer was made by learned counsel for the parties jointly on that day that there was an apparent conflict in three decisions of the Supreme Court in respect of the legal position about the question whether under the Punjab Customary Law, last male holder having no issue is competent to alienate the ancestral property inherited by him from common ancestors or the collaterals have a right to inherit such property under the rule of survivorship and can challenge the alienation so made.

We heard the matter partly on January 9, 1992 and deferred further hearing till after the intervening winter vacations. We have heard it further today.

Shri K. D. Sood, appearing for the plaintiff-appellant, has urged that, in reality, there is no difference of opinion to be found in the three judgments of the Supreme Court to which reference was made by the counsel for both the parties before the learned single Judge on July 9, 1991 namely Smt. Dipo Vs. Wassan Singh and Others, ; Gurbachan Singh and Others Vs. Puran Singh and Others, and Giasi Ram and Others Vs. Ramjilal and Others, and that reference to a larger Bench appears to have been sought on misapprehension about what was actually laid down by the Supreme Court in these cases. He has urged that the question which is before this Court for consideration in the present second appeal stands answered directly and completely by the Supreme Court in its decision in Smt. Dipo v. Wassan Singh. Also, that the other two decisions of the Supreme Court do not touch this question at all.

In Smt. Dipo Vs. Wassan Singh and Others, Bua Singh was the last male holder of the property and had left no male issue. There was no surviving member of the joint family, a descendant or otherwise, who could take the property by survivorship. Smt. Dipo was his sister. According to the custom prevailing in the area, a sister was excluded from inheritance in respect of the ancestral property. The Supreme Court eventually took the view, after noticing the statements of law contained in Mulla''s Principles of Hindu Law on the subject, that, inasmuch as, the defendants were collaterals of Bua Singh and the property was not ancestral, plaintiff Smt. Dipo was a preferential heir. She was entitled to a decree in respect to the entire property claimed by her in the suit.

The principle which has been accepted by the Supreme Court in tha above case has been stated by Mulla in the following words:--

"....... If A inherits property, whether movable or immovable, from his father or father''s father, 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, son''s sons and son''s son''s sons, but as regards other relations he holds it, and is entitled to hold it, as his absolute property."

On the law declared by the Supreme Court in Smt. Dipo, it is clear that in the circumstances of the present appeal as well, plaintiff Arjan Singh would be entitled to the entire share which Baisakhi gave to him through his Will dated September 24, 1963 even in the property which was ancestral in nature in the hands of Baisakhi earlier. The Will had been duly proved and, as noticed earlier, had not been disputed on behalf of the defendants. Under it, Baisakhi had given 2/5th share in the property which was ancestral in his hands to the first defendant-respondent and 3/5th share therein to the plaintiff while the remaining defendants were excluded from inheritance in respect of their share.

In Gurbachan Singh and Others Vs. Puran Singh and Others, the observations made in paragraph 5 of the judgment are:--

"It is true that in the present case the land was held by a remote ancestor and not by the immediate common ancestor but the history of the land which has been referred to above clearly shows the ancestral nature of the land in the hand of the descendants, the parses to the present appeal. It, therefore, is ancestral."

The court was not called upon, nor did it express any opinion, on the question as to what would be the nature of the property in the hands of the last male holder who did not leave any male lineal descendant to claim rights therein by survivorship.

Giasi Ram and Others Vs. Ramjilal and Others, , also dealt with an altogether different situation. What the Supreme Court held in the case was that a declaratory decree obtained in a suit instituted by a reversioner, competent to sue, has the effect of restoring the property alienated to the estate of the alienor and further that the property alienated reverted to the estate of the alienor at the point of his death, and all persons who were, but for the alienation, entitled to inherit the same would do so.

Since as we have held the dictum in Smt. Dipo''s case is fully applicable to the facts of the present appeal, we allow the appeal and set aside the judgment and decree of the learned Additional District Judge, in so far as it relates to the property which was ancestral in the hands of Baisakhi, and hold that plaintiff Arjan Singh would be entitled to that property to the extent it was bequeathed to him under the Will dated September 24, 1963 by Baisakhi. Arjan Singh would be entitled to a decree for possession in respect of that property as well.

In the circumstances of the present case, however, we leave the parties to bear their own costs in this court.