Rangi (Dead) through LRs. vs Karam Singh

Adarsh Kumar Goel, J.—This appeal has been preferred by the defendants against decree for declaration granted in favour of plaintiffrespondent to the effect that the plaintiff was owner in possession of the suit land.

Case of the respondentplaintiff is that his mother Smt. Parmeshwari was owner in possession of the suit land and after her death, he was her only legal heir.

The defendants contested the suit denying that plaintiff''s predecessor Smt. Parmeshwari was owner in possession of the suit land. It was stated that on 12.10.1954, a mutation was sanctioned in favour of the defendants with the consent of Smt. Parmeshwari herself and thereafter defendants continued in possession as owners. It was also stated that Smt. Parmeshwari inherited the suit land from her father Baru which was to be operative till her marriage and on her marriage in the year 1954 title of the suit land reverted to the defendants who were her collaterals. The defendants pleaded that there was custom by which a female daughter was diverted of her inheritance in the ancestral property on marriage.

Main question before the court was whether the suit land was ancestral and under the custom Smt. Parmeshwari lost her right of inheritance on her getting married in the year 1954.

The trial Court dismissed the suit holding that though suit land was not proved to be ancestral, still under the custom, a female could inherit the property only till the date of her marriage and that the suit was beyond limitation and not maintainable in absence of prayer for consequential relief.

On appeal, lower appellate court reversed the decree of the trial Court and decreed the suit. While affirming the finding of the trial Court that the suit land was not proved to be ancestral, it was held that the custom, that a female could inherit the property only till her marriage, was not proved, in absence of which plaintiff''s predecessor had right to inherit and thereafter plaintiff will be the owner. Findings on suit being beyond limitation and not being maintainable in absence of seeking relief of possession, were also set aside. Hence this appeal.

Mr. Bhoop Singh, learned counsel for the appellants submitted that finding of the courts below that the property was not proved to be ancestral, was erroneous and finding of the lower appellate court that custom was not proved, was also erroneous. He submitted that if custom is applicable and suit property is ancestral, plaintiff''s predecessor ceased to be owner of the suit land on her marriage and the plaintiff did not acquire any right by way of inheritance. He further submitted that even if custom was not applicable, Smt. Parmeshwari having not objected to mutation being sanctioned in favour of defendantappellants on her marriage in the year 1954 and having never asserted her title till her death, she will be deemed to have relinquished her right and the defendants having continued as owners in possession will be deemed to have perfected their title and thus, suit of the plaintiff is liable to be dismissed.

Learned counsel for the respondentplaintiff submitted that finding of both the courts below that suit property was not ancestral, did not call for any interference and, thus, custom had no application. He also submitted that finding of the lower appellate court that Smt. Parmeshwari never agreed for mutation in favour of the appellantdefendants and that Smt. Parmeshwari continued as owner on death of her father Baru and thereafter plaintiff became owner, was correct and ought to be upheld.

I have considered the rival submissions and perused the record of the case. For the reasons that follow, I do not find any merit in this appeal.

I take up the first question whether suit land was ancestral and a custom is proved to the effect that a female daughter was divested of her rights on her marriage.

Learned counsel for the appellants referred to mutations Exhibits D.16, D.20, D.21 and D.23. Ex.D.16 shows that Matu Ram was a cosharer in the suit land and on his death, Baru succeeded as one of the heirs. Ex.D.20 shows that Baru died and his widow Ram Kaur succeeded to him. Ex.21 shows that on remarriage of Ram Kaur, her daughter Parmeshwari succeeded to her rights. Ex.D.23 shows that on marriage of Parmeshwari, mutation was sanctioned in favour of defendants. Both the courts below held that no evidence had been led about ownership of Jairam, the common ancestor and inheritance from Matu to Baru did not make the property ancestral in the hands of Baru, so as to hold that he had a right therein by birth. Furthermore, since Baru had no son, he was absolute owner thereof. This aspect of the matter is discussed in para 223 in Mulla''s Hindu Law (13th Edition).

I, therefore, do not find any ground to interfere with the concurrent finding that the property was not proved to be ancestral.

As regards the plea that a custom was proved showing that a female daughter was divested of her property on her marriage, I am unable to accept contention of the learned counsel for the appellants. The case of the defendantappellants is that such a custom is applicable qua ancestral property. Once it is held that the property was not ancestral, this plea does not stand. In any case, a custom cannot be held to be proved merely by mutation having been sanctioned which was not opposed by Parmeshwari who was present as alleged. To acquire the character of law, custom must be accompanied by the intellectual element, the opinio necessitatis (see judgment of the Apex Court in Kavalappara Kattarathil Kochunni v. Kavalappara Kottarathi Parvathi Nethiar and others, 1969(2) SCR 561). Though, the trial Court in para 9 observed that under Riwajiam, a female can continue in possession of the property left by her father till her marriage but no basis is indicated for this view. In para 7, there is a reference to the oral evidence to the effect that the parties are agriculturists and following the custom of Kareva and following custom in the matter of alienation and succession. There is no clear evidence that there was any established custom that on marriage, a female daughter was divested of her title. The lower appellate court rightly held in para 7 that such a custom was not proved. It was observed that Bhale Ram, DW2 admitted that daughter remained owner till her death and he failed to give any instance in which a daughter is deprived of her right on marriage. Thus, finding of the lower appellate court as recorded in para 8 cannot be held to be erroneous and the same is affirmed.

Further contention raised on behalf of the appellants that since Parmeshwari never objected to the mutation and never asserted her title till her death, she is deemed to have relinquished her right, can also not be accepted. Mere presence and entry in mutation cannot be held to be conscious relinquishment of a right, even though, some times, question of estoppel may arise. The lower appellate court has rightly held that mere mention in the mutation that Parmeshwari was present, will not by itself prove presence of Parmeshwari at the time of sanctioning of mutation. If mutation is held to be not binding, right of the plaintiff could not be extinguished unless possession of the defendants is proved to be adverse. The plaintiff will be treated as cosharer and unless ouster was established, title of the plaintiff will continue. Mere mutation does not amount to ouster. Reference may be made to a Division Bench judgment of this court in Ibrahim v. Smt. Sharifan, AIR 1980 P&H 25.

The contention that in absence of prayer for possession, mere declaration could not be sought, can also not be accepted. If parties are cosharers, declaration of title could be granted and it was not necessary to seek a decree for possession, as possession of one cosharer is possession of the other cosharers.

For the above reasons, I do not find any merit in this appeal and the same is dismissed.