Ram Phal and Others vs Smt. Khazani Devi and Others

Laxmi Narain Mittal, J.—Defendants (including legal representatives-L.Rs. of some of the deceased defendants) but excluding defendants No. 3 and 9/respondents No. 2 and 3 have filed this second appeal having lost in both the Courts below. Suit was filed by respondent No. 1-plaintiff Khazani Devi (since deceased and represented by L.Rs. ) against appellants and respondent No. 2 and 3 as defendants.

Shorn of unnecessary details, the plaintiff claimed herself to be daughter of Ram Nath and Ram Kaur. Ram Nath was owner of the suit land. He had no male issue. Plaintiff was the only issue of her parents. On death of Ram Nath, the suit land was inherited by his widow Ram Kaur. On death of Ram Kaur, the plaintiff inherited the suit land and became owner thereof. However, defendants (including predecessors of some of the defendants) got sanctioned inheritance mutation No. 1485 of Ram Kaur regarding suit land in their favour. The said mutation is null and void. The plaintiff, therefore, filed suit for possession of the suit land.

The defendants controverted the plaintiff''s version. It was denied that plaintiff is daughter of Ram Nath and Ram Kaur. It was pleaded that Ram Nath and Ram Kaur died issueless. The defendants being collaterals of Ram Nath claimed to have inherited the suit land from Ram Kaur who had allegedly inherited only limited life estate therein from Ram Nath. Defendants also alleged that even if plaintiff is held to be daughter of Ram Nath, even then Ram Kaur having died before enforcement of the Hindu Succession Act, 1956 arid the parties then being governed by old Hindu Law, defendants inherited the suit land. The defendants also raised plea of acquiring ownership by adverse possession, besides pleading the suit to be time barred. Some other pleas were also raised.

Both the Courts below have decreed the suit of the plaintiff. Feeling aggrieved, defendants have filed this second appeal.

I have heard learned counsel for the parties and perused the case file including records of the Courts below with their assistance.

Counsel for the appellants fairly conceded at the Bar that plaintiff is proved to be daughter of Ram Nath and Ram Kaur. However, counsel for the appellants relying on answer to question No. 56 in Customary Law of Rohtak District by E. Joseph, contended that daughter has no right to inherit the land of her father and, therefore, in the instant case, respondent No. 1-plaintiff as daughter of Ram Nath and Ram Kaur could not inherit the land of her parents. Counsel for the appellants relying on judgment of Hon''ble Supreme Court in the case of Mara and Others Vs. Nikko and Others, , also contended that custom in Punjab (which included Haryana) changed from District to District, Tehsil to Tehsil and Pargana to Pargana and therefore, customs of one District or Tehsil cannot be applied to another District or Tehsil and in the instant case, specific customary law of Rohtak District (which included Jhajjar) is applicable.

On the other hand, counsel for L.Rs. of respondent No. 1 relying on judgment of this Court in the case of Smt. Chambeli v. Smt. Kago, 1967 C.L.J. (Punjab & Haryana), 476, contended that aforesaid answer to question No. 56 in customary law is not correct law and daughter has right to inherit the property of her father to the exclusion of the collaterals. Counsel for L.Rs. of respondent No. 1 also contended that the plea of custom was not even raised before the lower appellate Court.

I have carefully considered the rival contentions. There is no quarrel with the proposition as laid down by Hon''ble Supreme Court in the case of Mara (supra) that customary law changes from District to District, Tehsil to Tehsil and Pargana to Pargana and custom of one District or Tehsil may or may not be applicable to another District or Tehsil. However, in the instant case, answer to question No. 56 in Customary Law of Rohtak as relied on by counsel for the appellants is not correct law as held by this Court in the case of Smt. Chambeli (supra). Coincidently Mr. R.S. Mittal, Senior Advocate representing appellants in the instant case, also represented respondent in the case of Smt. Chambeli (supra) and he even conceded in that case that the question and answer No. 56 of Rohtak Customary Law by Joseph, disinheriting the daughter, is untenable. Counsel for the appellants submitted that it was a wrong concession on point of law in that case. However, irrespective of the said concession also, it was held with reasons in the case of Smt. Chambeli (supra) that aforesaid answer No. 56 in Customary Law of Rohtak by Joseph is not the correct law. In other words, the plaintiff as daughter was not excluded from inhering the property of her parents by the customary law.

In addition to the aforesaid, as rightly pointed Out by counsel for L.Rs. of respondent No. 1, no contention on the basis of customary law was even raised before the lower Appellate Court. Consequently, the said contention cannot be raised in the instant second appeal.

The matter does not rest here. On pointed enquiry, counsel for appellants could not point out from the written statement, including amended written statement, that any such plea of customary law was even raised in the written statement. Additional issue No. 7-A relating to custom was, of course, framed by the trial court. However, the said issue appears to have been framed without any such pleading on behalf of the defendants. In fact, the defendants in the written statement themselves pleaded that custom was not applicable because the defendants specifically pleaded in additional objection No. 2 of the amended written statement dated 28.01.1985 filed in the trial court on 04.02.1985 that the parties including Ram Nath and Ram Kaur deceased were governed by old Hindu law in matters of inheritance and succession. The defendants thus specifically pleaded that the parties were governed by old Hindu law and not by custom in matters of inheritance and succession. Consequently, the aforesaid contention raised by counsel for the appellants based on custom cannot be accepted being completely beyond and contrary to pleadings.

It may also be added that the suit land is also not proved to be ancestral land of Ram Nath, since deceased. The defendants did not lead any evidence to depict that plaintiffs father Ram Nath inherited the suit land from his own father. Consequently, the suit land is not proved to be ancestral in the hands of Ram Nath. In fact, there appears to be also no pleading by the defendants that suit land was ancestral in the hands of Ram Nath. In this view of the matter also, the suit land being self-acquired property of Ram Nath, the plaintiff being" his daughter could not be excluded from inheritance by distant collaterals. Defendants are said to be collaterals of Ram Nath in sixth degree. Consequently, they could not inherit the land from Ram Nath and his wife to the exclusion of plaintiff who is daughter of Ram Nath. For the reasons aforesaid, I find that suit of the plaintiff has been rightly decreed by the Courts below. There is concurrent finding recorded by both the Courts below in favour of the plaintiff. The said finding is not shown to be perverse or illegal or based on misreading or mis-appreciation of the evidence on record so as to call for interference by this Court in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is meritless and is accordingly dismissed leaving, however, the parties to suffer their respective costs throughout.