Maulu vs Mt. Ishro and others

Soni, J.—The pedigree-table of the parties as given by the learned counsel for the appellant is as follows:

After Ramji Lal''s death, he was succeeded by his widow, Ziro. On Ziro''s remarriage a mutation was sanctioned in favour of Ramji Lal''s sister Ishro. This was on 19th April 1942. On 2nd August 1943, a suit was brought by Maulu, son of Deva Singh and by Bishna and Kishna, sons of Basawa Singh and the ground urged was that they were preferential heirs to the property of Ramji Lal and that the mutation that had been sanctioned in favour of Ziro would have no effect against them. It appears that Maulu was in possession of the property. It is not known what relationship Bishna and Kishna bore to Ramji Lal. Before the trial Court two issues were raised :

(1) Whether the plaintiffs are collaterals of Ramji Lal deceased.? If so, in what degree ?

(2) Are plaintiffs entitled to succeed to the estate of Ramji Lal to the exclusion of the defendant, sister of the deceased ?

It will be noticed that there is no issue regarding the ancestral nature of the property and we must take it that it has not been proved that the property was ancestral. The trial Judge decreed the claim on 8th January 1944. He held that the plaintiffs were collaterals of the fifth degree. On the second issue he observed that eight witnesses had been examined by the plaintiffs who deposed that under no circumstances a sister succeeds to the estate of a brother, while the defendant had examined five witnesses to the contrary. Neither party was in a position to cite any instance in support of his statement. The trial Court purported to follow AIR 1937 701 (Lahore) and the Riwaj-i-am of which a copy Ex. P-11 was exhibited in the case and held that the plaintiffs had a better title to succeed to Ramji Lal than the defendant. From the judgment an appeal was taken to the District Judge. The District Judge held that the relationship between the parties was not of the fifth but of the sixth degree. He also purported to follow AIR 1937 701 (Lahore) and held that as the collaterals were collaterals of a degree remoter than the fifth the preferential heir was the sister. He, therefore, accepted the appeal and dismissed the plaintiffs'' suit. This was on 23rd October 1944. From the judgment of the District Judge, an appeal was taken to the High Court at Lahore and it came up for hearing before Mahajan J. Before that learned Judge AIR 1937 701 (Lahore) was again quoted. The learned Judge observed as follows:

Ramji Lal was a Jat of village Thandran in Thanesar Tehsil in the AIR 1937 701 (Lahore) lays down the rule of succession among the Jats of Thanesar Tehsil to the effect that where there are no collaterals of the fifth degree or less, a daughter or daughter''s son succeeds in preference to collaterals of a more remote degree and a sister or sister''s son succeeds in preference to collaterals of a remoter degree than the fifth in the absence of a daughter, or daughter''s son. This decision clearly covers the present case, and sitting in a Single Bench I am bound to follow it.

He accordingly dismissed the appeal but granted a certificate to file an appeal under the Letters Patent.

This appeal was accordingly filed and it has come up for hearing before us Mr. Nathu Lal Wadhera has appeared for the appellant who is Maulu alone. Bishna and Kishna not having preferred an appeal have been joined as respondents. There has been no appearance either on behalf of the sister or on behalf of Bishna and Kishna and the appeal has been heard against them ex parte.

Mr. Wadhera drew our attention to Ex. p-11. In that exhibit answers to two Questions 28 and 47 are given. They relate to the Riwaj of the Jats of Pipli area, Tehsil Ambala, now Tehsil Thanesar, District Karnal, of the year 1888, Question 28 was to this effect-

If on the death of a person his widow or widows, son or son, daughter or daughters, brothers or other relations be in existence, then who is the heir ?

The answer was that if a son or sons are in existence, then the sons would get the property in equal share, and if there be no descendents of the sons but a widow or widows be in existence then the widows would be entitled to a life estate in share, provided they do not remarry. If the widows be not in existence but a daughter or daughters be in existence then the daughter or daughters do not inherit. If brother or brothers exist and there are no other heirs then they get in equal shares. In the absence of them, nearer relations inherit who are descended from great great-grandfather. It boils down to that in the absence of the persons specified in this the answer collaterals within five degrees are entitled to succeed.

Coming to Question 47 which was to the effect whether in any circumstances sisters or sisters'' son or sons succeed, the answer was that amongst Jats if a person holding property dies without issue and his sister''s sons exist, sisters'' sons are not heirs. It will be noticed that the answer does not refer to sisters at all. It is not stated whether the sisters would succeed or would not succeed.

In the present case, the collaterals have been found by the District Judge to be collaterals of the sixth degree so that they would not come in as heirs in presence of nearer relations. There is no bar in the answer to Question 47 against the sisters succeeding. The property has not been shown to be ancestral. In these circumstances there is no reason why the sisters should not succeed

AIR 1937 701 (Lahore) related to Jats of village Surkhpur of this very Tehsil Thanesar. In that case the contest was between sisters and their sons as compared with collaterals of the seventh degree. Dalip Singh J. in that case observed as follows:

It appears from a copy of the Customary Law of Ambala District where questions 28 and 47 referred to by the learned District Judge are given, that the learned District Judge was right in holding that daughters were preferred to collaterals of higher than the fifth degree, according to the answer to Question 28 and that further answer to Question 47 showed that sisters or sisters'' sons were entitled to succeed in the absence of a daughter or daughter''s son. The answers to the questions read together would, therefore, appear to show that where there were no collaterals of the fifth degree or less, a daughter or daughter''s son would succeed in preference to collaterals of a more remote degree and that a sister or sister''s son would succeed in preference to collaterals of a remoter degree than the fifth in the absence of a daughter or daughter''s son.

If there be no rule of custom proved in any particular case the rule applicable under the Hindu law as prevails in the state at the moment would apply. Under the Hindu law as now prevailing, sisters are preferential heirs to remote collaterals. Therefore, in either case, in my opinion, the sister succeeds. This appeal is for the reasons given, dismissed. As there is no appearance on behalf of the respondents there will be no order as to costs.

Kapur, J.

I am of the same opinion and have nothing to add to what my learned brother has said.