Case: Gopal Singh And Others Vs. Ujagar Singh And Others

have concluded the matter. But as the point was conceded in all three Courts it was not necessary for the defendants to fall back on the previous decisions. It must therefore be accepted here that the whole of the land in dispute was non-ancestral.That brings us to the question of heirship. Paragraph 23(2) of Rattigans Digest to Customary Law says that -"In regard to the acquired property of her father, the daughter is preferred to the collaterals."5. That is not disputed but what the plaintiffs contend is that she only succeeds as a limited heir and that after her the reversion will go to the fathers heirs in the usual way. But that is not the Punjab custom among the tribe to which the parties belong, namely agricultural Jats. Rattigan quotes the following passage from page 61 of Roe and Rattigans Tribal Law of the Punjab at page 411 of the 13th edition of his Digest :"Where a succession of a married daughter is allowed, the general principle is that the she succeeds not as an ordinary heir, but merely as the means of passing on the property to another male, whose descent from her father in the female line is allowed under exceptional circumstances to count as if it were descent in the male line. She will indeed continue to hold the land in her own name, even after the birth of sons and their attaining majority, for her won life but she has no more power over it than a widow would have. If she has sons, the estate will of course descend to them and their lineal male issue, in the usual way. But if she has no sons, or if their male issue fail, the land will revert, except in some special instances where her husband is allowed to hold for his life, to her fathers agnates, just as it would have done if no exception to the general rule of agnatic succession had ever been in her favour."6. This is supported by at least two decisions from the Punjab. In Lehna v. Mst. Thakri (32 Punjab Record 1895) two learned Judges of the Punjab Chief Court (the third dissenting) said in the course of a Full Bench decision that even in the case of ancestral property the daughters sons and their descendants would exclude collaterals of the father. In a more recent case (1953) the Punjab High Court held in Lal Singh v. Roor Singh (55 Punjab Law Reporter 168 at 172) that in the case of non-ancestral property the daughters are preferred to collaterals.We were told that this rule only applies when the daughter succeeds and has no application when she predeceases her father. We say nothing about this because the case before us is one in which the daughter did succeed and all the authorities produced before us indicate that in that event her sons will exclude the collaterals. We were not shown any decision which has taken a contrary view. We are only concerned with non-ancestral property here and express no opinion about what would happen in the case of ancestral property, though the observations of two the learned Judges in the Full Bench of the Punjab Chief Court to which we have referred carry the rule over to ancestral property as well.7. The learned counsel for the plaintiffs relies on paragraph 64 of Rattigans Digest where it is stated that except in two cases which do not apply here, no female in possession of property from, among others, her father can permanently alienate it. But we are not concerned with an alienation here. The gift to the sons may or may not be good after Mst. Biros death as a gift. The question is whether there was an acceleration. If there was, the from it took would not matter.8. We turn, next, to the question of surrender and the only question there is whether the retention by Mst. Biro of the house would prevent an acceleration of the estate. The extent of the property covered by the gift is over 235 bighas. She had an absolute right to gift 123 bighas of this and so the only portion to which the doctrine of surrender would apply would be the remaining 130 odd bighas. But the fact that she gave away all her property to her sons, bar this house, including property to which she had an absolute right, is relevant to show that her intention was to efface herself completely. Now as regards this house, Garja Singh (P.W. 1) gives us this description of it :"The distance between the door of the Sabbat and that of Darwaja is only about two karams." (eleven feet). "Opposite to Darwaja there is one Jhallani the door of which opens into the Sabbat and not in the courtyard. Except Darwaja, Sabbat and Jhallani there is no other roofed portion in their house. There is only one compound for the cattle."9. In this tiny dwelling live not only Mst. Biro but also her three sons. It forms, as the High Court held, a very small part of the whole property. The retention of this, particularly in these circumstances when the sons already live there with her, would not invalidate the surrender. The law about this has been correctly set out in Mullas Hindu Law, 11th edition, page 217, in the following terms :"But the omission, due to ignorance or to oversight, of a small portion of the whole property does not affect the validity of the surrender when it is otherwise bona fide."10. The present case is, in our opinion, covered by that rule. We agree with the High Court that the gift operated to accelerate the succession. That being the case, the plaintiffs are no longer the reversioners even if they would otherwise have been entitled to succeed on failure of the daughters sons and their line. We need not decide whether the plaintiffs, as collaterals in the fifth degree, would be heirs at all.11.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We were not shown how the facts admitted could be disentangled from the law so that we could determine whether the conclusion of law drawn from the admitted facts wasfindings are obviously res judicata and if the plaintiffs learned counsel had not conceded the point the question would at once have been raised and the previous judgments, which were exhibited (Exhibits DD and DF) would have concluded the matter. But as the point was conceded in all three Courts it was not necessary for the defendants to fall back on the previous decisions. It must therefore be accepted here that the whole of the land in dispute waswere told that this rule only applies when the daughter succeeds and has no application when she predeceases her father. We say nothing about this because the case before us is one in which the daughter did succeed and all the authorities produced before us indicate that in that event her sons will exclude the collaterals. We were not shown any decision which has taken a contrary view. We are only concerned with non-ancestral property here and express no opinion about what would happen in the case of ancestral property, though the observations of two the learned Judges in the Full Bench of the Punjab Chief Court to which we have referred carry the rule over to ancestral property aswe are not concerned with an alienation here. The gift to the sons may or may not be good after Mst. Biros death as apresent case is, in our opinion, covered by that rule. We agree with the High Court that the gift operated to accelerate the succession. That being the case, the plaintiffs are no longer the reversioners even if they would otherwise have been entitled to succeed on failure of the daughters sons and their line. We need not decide whether the plaintiffs, as collaterals in the fifth degree, would be heirs at all.