R.S.A. No. 2438 of 1983 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2438 of 1983 Date of Decision : 8.2.2010 Hari Singh .......... Appellant Versus Joginder Singh (dead) & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Vikas Singh, Advocate for the appellant. Mr. K.S. Sidhu, Sr. Advocate with Mr. G.S. Benipal, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 3.9.1983, passed by the learned lower appellate Court vide which suit filed by the plaintiff / appellant for possession of land measuring 44 Kanal 17 ½ Marla by way of succession stands dismissed. The case set up by the plaintiffs / appellant was that Thakur Singh was the holder of the property, which was inherited by his three sons i.e. Punna Singh, Sawan Singh and Kartar Singh alias Nidhan Singh. The plaintiffs are sons of Sawan Singh, whereas the defendant were Kartar Singh and his sons. The case of the plaintiff was, that during the life time of Punna Singh, he executed a gift deed in favour of defendants No.1 & 2 i.e. sons of R.S.A. No. 2438 of 1983 2 Kartar Singh, his nephews. The plaintiff / appellant challenged the gift deed executed by Punna Singh in favour of defendants No.1 & 2 on the plea, that the property in the hands of Punna Singh was coparcenary Hindu joint family property, and the parties being Jat's of Ambala District, were governed by the custom, therefore, Punna Singh had no authority to gift the agricultural land in his hands. Though, the suit was dismissed by the learned Courts below but the regular second appeal filed by the plaintiffs / appellant was allowed, and the mutation dated 1.1.1960 executed in favour of defendants No.1 & 2 was set side vide judgment and decree dated 12.3.1976. After the death of Punna Singh the property was mutated in favour of Kartar Singh being living brother in preference to the plaintiffs, who were the nephews of Punna Singh, as per the Hindu Succession Act. The appellant in the suit claimed, that as the parties were governed by customary law, therefore, the mutation in favour of Kartar Singh was liable to be set aside, as under the custom the property was to be equally shared by the plaintiff and defendants. The suit was contested by the defendant / respondents by taking a plea, that the parties were governed by Hindu Succession Act as Punna Singh was issueless and died intestate, and as per Hindu Succession Act it was Kartar Singh defendant No.3, who was alone entitled to inherit the property in preference to the plaintiffs, as per schedule attached to the Hindu Succession Act. R.S.A. No. 2438 of 1983 3 On the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether Kartar Singh has renounced the world as alleged by the plaintiffs, if so, its effect?OPP 2. Issue No.1 is not proved whether the plaintiffs have locus standi to file the present suit ?OPP 3. Whether the parties are governed by custom in matters of alienation etc. if so what that custom is and to what effect? OPP 4. Whether the parties are governed by Hindu Law, if so, its effect?OPD 5. Relief.” On consideration of pleading and evidence, the learned trial Court on issues No.1 and 2 was pleased to hold that in view of the revenue record showing Kartar Singh to be in possession of the property it could not be said that he had renounced the world. The Court also held that Kartar Singh had got mutation of inheritance sanctioned in his favour. The learned Court further held that on death of Punna Singh, the property was to devolve upon Kartar Singh and not the plaintiff. In view of pleadings referred to above, it was also held that plaintiff / appellant had no locus standi to file the suit. In view of statement made by the counsel for the defendants, issue No.3 was decided in favour of the plaintiffs/ appellant by holding, that the parties were governed by the custom in the matter of alienation etc. However, nothing was shown that under the custom also plaintiff could R.S.A. No. 2438 of 1983 4 succeed to the property in preference to Kartar Singh. Issue No.4 was not pressed, therefore, decided against the defendants. In view of findings recorded on issues No.1 & 2, the suit filed by the plaintiffs/ appellant was dismissed. The learned lower appellate Court by placing reliance on the Full Bench judgment of this Court in the case of Pritam Singh Vs. The Assistant Controller of Estate Duty, Patiala, 1976 Current Law Journal (Civil) 193, dismissed the appeal. The learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law for consideration by this Court :- 1. Whether in view of the previous judgment inter se between the parties, it was open to the Court to apply the provisions of the Hindu Succession Act for inheritance in preference to custom? 2. Whether the appellant was to be treated as coparcener with Punna Singh during his life time in view of the ancestral nature of the property? In support of the substantial question No.1, the learned counsel for the appellant vehemently contends, that once the finding was recorded by this Court inter se between the parties, that the property was joint Hindu Property of the parties, and that the parties were governed by custom. It was not open to the learned Court now to record a finding that the inheritance was to be by way of Succession. The judgment and decree passed by the learned Courts below, therefore, was outcome of misreading R.S.A. No. 2438 of 1983 5 of documentary evidence on record, by way of judgment and decree passed by the Hon'ble High Court of Punjab & Haryana in RSA No. 378 of 1965, decided on 12.3.1976. It was further the contention of the learned counsel for the appellant, that once the property was inherited by Punna Singh from Thakur Singh, who was grandfather of the plaintiffs /appellant, the property was to be treated as joint Hindu coparcenary property in which the plaintiffs / appellant had right by birth being coparcener. The contention of the learned counsel for the appellant was, that the substantial questions of law be decided in favour of the appellant, and the judgment and decree, passed by the learned Courts below be set aside. Mr. K.S. Sidhu, learned senior counsel appearing on behalf of the respondents, rebutted the contentions raised by the learned counsel for the appellant, by contending that though the property in the hands of Punna Singh was held to be coparcenary Hindu family property governed by the custom, and the gift deed was set aside. As a result of the decree the property reverted back to Punna Singh. On the death of Punna Singh when the inheritance opened, the custom stood abrogated, therefore, inheritance was to be governed by the Hindu Succession Act. The contention of the learned Senior counsel was, that as per the provisions of the Hindu Succession Act Kartar Singh had a preferential right of inheritance being brother to that of defendant / appellant. The learned Courts below, therefore, rightly held that the plaintiff had no claim to the property in preference to Kartar Singh. The provision of inheritance R.S.A. No. 2438 of 1983 6 was rightly applied in his favour and the suit dismissed. The learned senior counsel for the appellant further contended, that the respondent / defendant could not be treated to be coparcener, as the property was inherited by three brothers from Thakur Singh and this property was separate and distinct from that of plaintiff and others. The property was partitioned earlier i.e. the reason why it was gifted to defendants No.1 & 2. The contention of the learned senior counsel for the respondent was, that the plaintiff / appellant could not be treated to be coparcener with Punna Singh, as the right of coparcenary could be claimed by plaintiffs / appellant only with Thakur Singh whose property was inherited by three sons separately to the extent of 1/3rd share. Once share of each son stood determined it amounted distribution of Hindu joint family property. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The full Bench of this Court in the case of Pritam Singh Vs. The Assistant Controller of Estate Duty, Patiala, (supra), on which reliance was placed by the learned lower appellate Court, was pleased to lay down as under :- “17. Therefore, it is clear that section 5 of the Punjab Laws Act, 1872 does not raise any presumption in favour of the existence of custom to the exclusion of personal law and if any person alleges that he or any other person is governed by custom, then he must plead and prove the alleged custom by cogent and reliable evidence. It is undisputed that for purposes of Hindu Succession Act the Sikhs are Hindus and their personal law is Hindu law. Consequently R.S.A. No. 2438 of 1983 7 the personal law i.e. Hindu law will apply to the Sikh Jats in matters of succession unless a custom at variance with the Hindu Law is alleged and proved. If the parties are governed by their personal law and the mere fact that there has been a departure from personal law in one respect it does not necessarily follow that the personal law has been abrogated. In Punjab, among the parties admittedly governed by Hindu law, the Hindu law had been modified by custom to this extent that t he adoption of a daugher's son is valid, but apart from this modification of the personal law, the legal consequences that ensue from such an adoption must be looked for in the Hindu law, vide Baldeo Sahai v. Ram Chander and others, (931) ILR 13 Lahore 126. The fact that in the matter of succession, the parties follow customary law, would not necessarily follow that the custom is also followed in matter of alienations and vice versa. In Daya Ram v. Sohel Singh, 110 Punjab Records 906 at page 390 (Full Bench), it was held that among parties generally following customary law, it is permissible to fall back as a last resort on their personal law for the decision of the point in issue where no definite rule of the former law applicable to the case before a court can be found. According to these decisions, custom has to be alleged and proved by the party pleading the same. Custom could not be extended by logical process or by analogy. 18. Prior to June 17, 1956, when the Hindu Succession Act came into force, there were four leading cannons governing succession to an R.S.A. No. 2438 of 1983 8 estate among the agriculturists as laid down in Rattingan's Digest of Customary law, Edition 1953, at page 233, and these are : First, that male descendants invariably exclude the widow and all other relations, second, that when the male line of descendants had died out, it is treated as never having existed, last male who left descendants being regarded as the proprietor, third, that a right of representation exists, whereby descendants in different degrees from a common ancestor succeed to the share which their immediate ancestor if alive, would succeed to; fourth, the females other than the widow or mother of the deceased are usually excluded by near made collaterals, an exception being occasionally allowed in favour of daughters or their issue, chiefly amongst tribes that are strictly endogamous. Thus, the general rule of succession under the Customary law in the Punjab is that the last male holder to the exclusion of female descendants, and failing them, subject to certain life estates in favour of some female, to the collaterals, among whom the right of representation, exists, all heirs sharing equally by degrees. Custom excludes females and their offsprings with varying degrees of strictness. As a rule, daughters and their sons, as well as sisters and their sons, are excluded by near male collaterals. As regards the succession of ancestral property, the above mentioned was the customary law prevalent in the State of Punjab, including the present State of Haryana, prior to the coming into force of the Hindu Succession Act.” R.S.A. No. 2438 of 1983 9 The Full Bench of this Court has been upheld again in Mihan and another Vs. Inder and another (2008-3) PLR 354. In view of the authoritative pronouncement by the Full Bench of this Court, the substantial questions of law, raised by the appellant are answered against the appellant. It is held that inheritance of Punna Singh was governed by the Hindu Succession Act, and that Kartar Singh had a preferential right to inherit the property being heir under Class II entry 2, whereas the appellant was in entry No.4 in Class II. The appellant had also failed to show or prove that under the custom there was any right with the plaintiff to claim preferential inheritance. The appeal, being without any merit is ordered to be dismissed but with no order as to costs. 8.2.2010 ( VINOD K. SHARMA ) 'sp' JUDGE