Mul Singh and Others vs Mst. Indru and Others

J.N. Bhat, J.—In a suit brought by the Respondents. Mst. Indru Dhanun and Teju against Inder Singh and others for possession of 207

kanals and 3 marlas of land in village Kolau Tehsil R.S. Pura under Khewai Nos. 7/1, 7, 10, 12, 14, 15 and 8/8, 9/11 to the Court of the Sub-

Judge Jammu a decree of half the property was passed in favour of Plaintiffs Mst. Indru and others against the Defendants in that case by the said

Court on 21-12-62. Appeals were preferred by both the Plaintiffs and the Defendants in that case. The appeal preferred by Mst. Indru and others

was not pressed by the learned Counsel for the Appellants and there fore it was dismissed. The other appeal is by the Defendants in that case

which will be decided by this order. This is appeal No 78 instituted on 18-2-63.

The brief facts giving rise to this suit are as under:

The Plaintiffs daughters of one Sham Singh, averred in the plaint that Sham Singh their father and one Tara Singh were the owners of this land

situate in village Kolan Tehsil RS Pura. They were owners of the land in equal shares Sham Singh died in the year 2001 (Bikrami). The Plaintiffs,

daughters of Sham Singh were his sole heirs Tara Singh The other cosharer died in the year 2002 leaving behind his son Ujagar Singh who died in

1956 AD without any wife or, issue it was further averred that the land in dispute belonged to one Khushal Singh who is the great grandfather of

Sham Singh and Tara Singh the parties being Sikh Jats were governed by custom which would make them inherit the entire property belonging to

Sham Singh and Tara Singh Even under the personal law they were entitled to the properly left behind by their father Sham Singh. The Defendants

had got mutation of this land clandestinely effected in their name and had taken possession or the land two years prior to the institution of the suit.

As they were entitled to the land, a decree for possession he passed in their favour.

The defence of the Defendants was that they were entitled to the entire land. They set up a custom quite contrary to the one alleged by the

Plaintiffs They also said that Sham Singh had left no male issue and as Tara Singh had died issueless the whole proparty under the custom would

revert to them. The Plaintiffs would not be entitled to any share. They further alleged that they had been in possession of the properly for a pretty

long time. The suit was barred by time.

Two issues were struck by the trial Court which are to the effect:

Whether the Plaintiff was entitled to succeed to the property left by Sham Singh and Tara Singh under custom and under personal law? OPP

In case, issue 1 is proved, whether the Defendants are in possession of the suit land for the last 12 years? OPD

Both parties produced witnesses. The Plaintiffs almost at the end of the case produced two copies of mutations Nos. 11 and 14.

To support their case the Plaintiffs examined Inder Singh Gyan Singh, Dewan Singh, Hakim Singh and Gyan Chand patwari.

The Defendants produced Manga Singh, Mian Singh Bir Singh, Kapoor Singh and Balwant Singh as their witnesses.

As already stated, the Plaintiffs produced two mutations 11 and 14 of village Chandga. The entire evidence has been considered by the trial

Court it has come to the conclusion that no custom as alleged by either side has been proved in this case the trial Court has considered in detail the

evidence of each witness and the effect of the two mutations. We also have read the statements of these witnesses and we are perfectly satisfied

with the conclusions of the trial Court that neither party has been able to prove the custom it alleges. The Plaintiffs witnesses simply stated that the

parties were governed by Chundwand which means that in the case of a person leaving children from two wives the children of both wives would

be entitled to succeed equally As against the custom of Chundawand there is another custom known as Pagwand which means that no matter from

how many wives the children may be the children of a father are entitled to equal shares left behind by their father. The custom of Chundwand tried

to be proved by the Plaintiffs is of no relevance in this case. The dispute is not here as to what shares the children from different wives by a

common husband should get but the dispute is whether the daughters of a person are entitled to succeed collaterally to his co-sharers 'Hindu law

which is the personal law of the parties does not recognize any such succession No custom has ever been held which would allow any such

collateral succession, nor has any such thing been proved in this case. Therefore the judgment of the trial Court in the absence of proof of custom

as alleged by the Plaintiffs is well founded. It was perhaps with this background that the learned Counsel for the Plaintiffs did not press his appeal

against the decree of the trial Court.

Taking the custom as alleged by The Defendants. There is not a shred of evidence to prove that daughters are not entitled to succeed to the

property left behind by their father. The evidence produced by the Defendants in this case is all oral evidence of persons who do not throw any

light on a matter like the present. No instance having been quoted where daughters have been deprived of their share, a mere mutation here or

there means nothing and to override the personal law of the parties by means of a custom the custom must be proved to have been there in

existence from time immemorial, must have been recognized by Courts and the people, must be definite and uniform in fact as already slated, there

is no evidence worth the name led about any such custom. Therefore to say that the Defendants have proved any custom in derogation of their

personal law would be deciding a matter without evidence. The trial Court has come to the correct conclusion that the, Defendants have not

proved any custom by which daughters shall be deprived of their share, of the properly of their father on his death when the father has left behind

no other heir in the form of a son of wife behind him. Therefore the Defendants cannot get the property of Sham Singh and have rightly been given

only the property of Ujagar Singh son of Tara Singh.

The learned Counsel for the Respondents however raised an objection and stated that the whole appeal must abate in this case it is proved that

Gyan Singh (Defendant 3) S/o Amir Singh and Rattan Singh (Defendant 18) S/o Hakim Singh died during the pendency of the suit in the trial Court

and their legal representatives were not brought on record. Therefore as they were necessary parties in his case the non joinder of the legal

representatives in the suit would abate the whole suit which would result in the wholesale acceptance the present appeal.

We have considered this argument of the learned Counsel for the Appellants carefully. We are of the opinion that the whole suit does not abate

nor will therefore the appeal succeed entirely but the suit in our opinion will abate only to the extent of the shares which the Defendants had in this

property. From a perusal of the record it appears that the land left by Ujaghar Singh was mutated in favour of the Defendants by the revenue

authorities finally on 28-4-56 formerly it was mutated in favour if only some of the Defendants Later on all the Defendants got definite shares in the

land left behind by Ujaghar Singh. According to this mutation Gyan Singh and Rattan Singh along with the other Defendants have got specific

shares in this property Gyan Singh's share is 1/18th. Similarly Rattan Singh's share is 1/4th of 1/3rd which is 1/12. The share of Gyan Singh and

Rattan Singh from this land comes to 5/36. The total land left behind by Ujagar Singh and Sham singh was 207 kanals and 3 marlas. The share

Ujaghar Singh in this land comes to 103 ks. land 11 1/2 marlas or roughly 104 ks. 5/36 of this share comes to about 14 1/2 kanals. Therefore the

appeal of the present Defendants can Succeed only to the extent of 14 1/2 kanals which means that the decree against them passed for 103 ks and

11 1/2 marlas will be reduced by this area keeping the decree intact for 89 ks instead of 103 ks and ll1/2 marlas. Our finding on this point that the

whole suit does not abate is based on a number of authorities of various High Courts. There has been some conflict of opinion also amongst the

different High Courts on this point, but the principle, deducible from the authorities is that if the decree or claim is indivisible and no effective decree

can be passed without joining the legal representative of the deceased party the suit or the appeal as the case may be abates as a whole But if the

shares of the deceased Defendants or Respondents or even the Appellants are ascertainable, the abatement will take place qua the shares of the

deceased only and leave the rest of the decree in tact. For the proposition that the whole appeal abates the following authorities may be mentioned

Jitu Mahton Vs. Widow of Puran Mohton and Others, and.

In AIR 1954 Nag 279 a joint decree for ejectment was passed. One of the respondents died the interest of each of the Respondents was not

ascertainable. The whole appeal was held to abate.

In the other Nagpur case (Supra) a preliminary decree for foreclosure in favour of three persons was passed. An appeal was preferred against

that decree. During the pendency of that appeal one of the Plaintiffs Respondents died. His legal representatives were not brought on record the

whole appeal held to abate.

In the Patna case (Supra) Court had dismissed the suit for ejectment against all the joint trespassers in joint possession. The Plaintiff appealed it

was held that the appeal became untenable by the absence of some co trespassers and could not proceed against the remaining, Respondents.

In the latest Supreme Court authority (Supra) certain land belonging to two brothers jointly was acquired for military purposes and on their

refusal to accept the compensation offered by the Collector the Govt. referred the matter for inquiry to an arbitrator under Rule 10 of the Punjab

land Acquisiton Rules. The arbitrator passed a joint award for a higher compensation. The Government appealed against the award to the High

Court During the pendency of the appeal one of the brothers died and his legal representatives were not brought on record. Their Lordships have

laid down some tests and have said that ordinarily the considerations which weigh with the Court in deciding this question are whether the appeal

between the Appellants and the Respondents other than the deceased can be said to be properly constituted or can be said to have all the

necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms: Courts will

not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision, which will, be in conflict with the

decision between the Appellant and the deceased Respondent and therefore which would lead to a Court, passing a decree which will be

contradictory to the decree which had become final with respect to the same subject matter between the Appellant and the deceased Respondent.

(b) When the Appellant, could not have brought the action for the necessary reliefs against those Respondents alone who are still before the Court

and (c) when the decree against the surviving Respondents, if the appeal succeeds, will, be ineffective, that is to say it could not be successfully

executed.

The Supreme Court after applying these tests to the facts of the case hold that the whole appeal abated.

Although after this enunciation of the law there is no necessity to quote other authorities yet a few of them may be mentioned in passing. The

Nagpur High Court has in AIR 1954 Nag 274 held that the case was an illustration of the class of eases where several persons having separate

and definite interest in the property sued for possession and obtained a decree for possession. It was therefore possible for the Court to determine

the controversy as between the parties before the Court without affecting the interest of the Plaintiff not represented before it. The appeal in the

opinion of their Lordships had not abated as a whole but only as against the heirs of the deceased Respondents. They referred to a large number of

authorities and tried to distinguish the case from the one decided by the same Court reported as AIR 1938 Nag 42.

Even this High Court has in (1949) 8 J &K 147 taken the same view and held that abatement under Order 22, Rule 4 will in the first instance

be only so far as the deceased Defendant or Respondent is concerned. If, how ever on account of the partial abatement it becomes impossible to

proceed with the suit or appeal to its final conclusion the entire suit or appeal must fail From this it naturally follows that if the suit or appeal can

proceed to a final conclusion with respect to the other Defendants or Respondents the partial abatement will not affect the, rest of the suit or

appeal.

In Dadu Raghu Patil and Others Vs. Tukaram Ranaba Dhere and Others, it was held that in a suit for possession by several Plaintiffs if a

decree is passed and before the appeal is decided one of them dies the abatement is qua the share of the Plaintiffs and not in its entirety.

In Swamiprasad Vs. Bada Rai Sawai Singhai Churaman and Others, in a suit for possession, injunction and mesne profits against several

Defendants the legal representatives of some deceased Defendants were not brought on record. It was held that an effective decree can be passed

against the remaining Defendants.

In an earlier Full Bench authority of the Allahabad High Court Faqira and Another Vs. Hardewa and Others the Plaintiffs instituted a suit for

declaration of title. Their case was that in the khewat their proper share was 60 out of an entire quantity of 146 shares; the shares of Defendants 1

to 9 was 79 out of the same quantity; and Defendants 4 to 8 seven out of the same quantity According to the khewat the entire share was divided

into 89 portions and the Plaintiffs were recorded in respect of 3, Defendants 1 to 3 in respect of 79 and the remaining 4 to 8 in respect of 7 shares.

After the institution of the second appeal Defendant 4 died and the heirs were not brought on the record. On these facts it was held that the whole

appeal did not abate. It abated only against Defendants 4 to 8 and not against Defendants 1 to 3.

In a Lahore authority AIR 1933 Lah 556 the two Respondents in appeal were co-owners each entitled to half share in the property. On the

death of one of them the Appellant failed to implead the legal representatives of the deceased within time. It was held that the whole appeal did not

abate. The same view was taken by the Calcutta High Court in Mohammad Abdul Gani Fakir Vs. Mt. Kulsan Nessa Bibi and Others, .

In the Calcutta case (Supra) the annuitants under a deed of wakf brought a suit for removal of the mutwali. The suit was dismissed by the trial

Court but decreed on appeal During second appeal by the Mutwali one of the annuitants died but his heirs were not brought on record within time.

It was held that the appeal as a whole did not abate.

On a careful consideration of the authorities mentioned above and particularly of the Supreme Court the tests laid down when applied to the

facts of the present case reveal that the result of the suit will not ensue in a conflict of decision between the case of the deceased Defendants and

those who are living, nor could the Plaintiffs not bring a suit for the necessary reliefs against the surviving Defendants and the suit will not be

ineffective if it is decreed partly against the surviving Defendants. The result is that the Plaintiffs-Respondents are not entitled to 141/2 kanals of the

land which was the share in this properly of Gyan Singh and Rattan Singh deceased Defendants After deducting their shares from the suit properly

(the property left behind by Rattan Singh) the decree passed in favour of the Respondents will be reduced bv 14 ks and 10 marlas and the decree

will be deemed only for 89 ks instead of 103 ks and 11 1/2 marlas. The decree of the trial Court is modified to that extent With respect to the rest

of the claim the appeal is dismissed, but the parties are ordered to bear their own costs.

S. Murtaza Fazl Ali, J.

I agree.