Mt. Nihal Kaur vs Natha Singh and Others

Chopra, J.—This second appeal comes up today after a report of the trial Ct. on the fresh issue framed by this Ct. vide its order dated 2-6-1949. The facts of the case have already been given in that order which would form part of this judgment.

The gifted land came to Mt. Fatto the donor, from her sons Baggu & Munshi. Their collaterals in the fifth degree claimed possession on the ground that they excluded the daughter of Baggu from succession to the suit-land which was ancestral qua them. The gift was also challenged on that ground. The deft, denied the land to be ancestral & claimed to be the next heir. The gift was supported on various grounds & the suit was alleged to be beyond, time.

Both the Cts. below have found the suit to be within time & the land to be ancestral. Mr. Jagan Nath while conceding the question of limitation tried to argue that the land had not been proved to be ancestral, but as the point was not specifically taken in the memorandum of appeal he was not allowed to press it at this stage. The concurrent finding as to the nature of the property was based on a clear admission of the Mukhtiar-i-am of the applt. which was to the effect that the land in suit had descended from the common ancestor Tek Singh; & this is also supported by the entries in the revenue records. We must, therefore, accept that the land has been proved to be ancestral.

The main question that arises for decision is who is to inherit the property on the death of Mt. Fatto. It may be mentioned here that Bholla, husband of Mt. Fatto, was succeeded by his two sons Baggu & Munshi. They died in the years 1966 & 1967 respectively & the land was mutated jointly in favour of their widow Mt. Mano & Basant Kaur & their mother Mt. Fatto. On the remarriage of Mt. Basant Kaur & death of Mano the whole was mutated in the name of Mt. Fatto. These facts are clear from the various mutations, copies of which have been placed on the record, & they go to show that the last male-holder of half of the suit-land was Munshi, while the other half devolved from Baggu. It may be remembered that Baggu who died first was not succeeded by his brother Munshi because the former had left a widow. The two, therefore, form separate stocks of descent & the relationship of the claimants to them individually would decide the right of succession to the property left by them.

As regards half of the land of Munshi the deft, being his niece cannot claim to be the next heir in the presence of the collaterals. The gift of this property in her favour can also not be considered to be valid & cannot improve her status. So far as this property is concerned Mr. Jagan Nath has nothing to say & the judgment of the Dist. J. must be maintained.

Now as regards the share of Baggu, the contest is between fifth degree collaterals & a daughter of the last male-holder. The land had already been held to be ancestral in the hands of Baggu qua the pltfs. According to the generally recognised rules of Customary law, by which the parties are admittedly governed, the collaterals exclude the daughter & the onus was on the daughter to prove an exception to this rule. It is significant that no special custom was pleaded by the deft, in her written statement. Some evidence was, however, led in support of the contention that daughters'' claim to property left by their fathers was looked upon with favour as against collaterals, particularly in the family of the parties & generally in Patiala State. Some instances of adoptions of daughters'' sons & gifts in their favour were quoted but they are of little importance because it cannot be said what was the nature of the property & the degree of propinquity of the collaterals in those cases. Mr. Jagan Nath has, therefore, not relied upon those instances during his argument. His main-stay is on an observation made in a judgment of this Ct. in Civil Revn. No. 100 of 2000 (Atma Singh v. Mt. Gauri). It is to the following effect:

So far as a general custom prevailing in the State is concerned the collaterals of the fifth or fourth degree do not exclude daughter from succession to ancestral property.

The contest in the case, as is clear from the judgment itself, was between sixth degree collaterals & a daughter of the last-male-holder. The decision on the point was given as follows:

It is not disputed that computing the degrees in this manner the pltfs. are more distantly related than the fifth degree which is customary limit.

From this it is clear that the question of special custom was not directly involved in the case. Under the generally recognized Customary Law collaterals beyond fifth degree do not exclude daughter from succession to ancestral property. That would have been quite enough for the decision of the case & the Ct. was not sailed upon to decide the rights of fourth or fifth degree collaterals as against a daughter. The observation obviously is obiter dicta & has been made in terms that are too wide. With due respect, if I may say so, it does not lay down the correct rule of succession amongst agriculturists governed by custom. I am not aware of any such general custom prevalent in Patiala State, nor the counsel for the applt. has been able to convince me that any such custom is generally recognised in the State. On the basis of this observation alone, I do not feel inclined to hold that there exists any general custom in the State according to which collaterals within the fifth degree are excluded by daughters from succession to ancestral property. Another decision to which reference has been made by Mr. Jagan Nath is a judgment of the Revenue Minister dated 5th Magh 1937. The contest in that case was between a daughter or daughter''s son of the fast male-holder on the one side & fourth degree collaterals on the other. The daughter & her son, who were found to be since long in possession of the property, were given preference to the collaterals. It is not clear from the judgment as to what was the nature of the property in dispute. The decision would lose all importance as an instance if the property was not ancestral. An adjournment in the present appeal was particularly given to the applt. to satisfy us that the property involved in that case & also in the other instances relied upon by her was ancestral. Mr. Jagan Nath expresses his inability to say anything on the point. I am, therefore, definitely of the view that no such special custom has been proved in the case.

It is next contended that the Doli of the deft, did not leave her parent''s house after the marriage & that her husband was kept as a Khana Damad. No such plea was, however, taken by the deft, in the written statement & therefore, no specific issue on the point was framed. The plea appears to be simply an after-thought. The oral evidence produced by the deft, is not at all convincing. The marriage of Nihal Kaur was performed by Mt. Fatto somewhere in the year 1980 long after the death of Baggu. A widow or a mother under the customary law has no right to appoint a Khana Damad. It was recited in the gift deed that Bhola Singh & Baggu had left instructions to the effect that the property may be gifted to Mt. Nihal Kaur, or her husband may be kepi as a Khana Damad. It may remembered that Bhola left behind him two sons when he died. There was, therefore, no occasion for him to instruct his widow to give away the property to a daughter of one of his sons, who may not be even born then. There is yet Anr. fact which reveals the utter falsity of the recital in the deed. About seven years after the death of Bagu Mt. Fatto gifted away this very property to her own daughter Mt. Punjab Kaur but on the latter''s death, without leaving any heir, it reverted to the former. It was long after this that the property was gifted to the deft. Besides the recital in the deed itself there is no evidence to prove that Bhola or Baggu did in fact give any such instructions. I have, therefore, no hesitation to repel the contention.

I do not see any reason to differ from the decision arrived at by the Dist. J. The appeal is, therefore, dismissed with costs.

Teja Singh, C.J.

I concur.