Case: Jai Kaur &amp; Others Vs. Sher Singh &amp; Others

been established to be baseless, these decisions are valueless, to show that the custom as alleged by the plaintiff-respondents did exist as regards non-ancestral property. Further, the oral evidence produced in the present case is wholly insufficient to prove such a custom. 16. It must therefore be held that the customary law among the Grewal Jats of Ludhiana district as regards succession to non-ancestral property is the same as recorded generally for the Punjab in Paragraph 23 of the Rattigans Digest - i.e., the daughter is preferred to collaterals, and consequently, the second and the third appellants were the next reversioners to that portion of Devi Singhs property which has been found to be non-ancestral. 17. This brings us to the question whether the gift of this portion, by the first appellant to these reversioners, gives them a good title, beyond the widows life time.We have to remember in this connection that as regards the ancestral property, these daughters were not the reversioners, and the further fact that out of the ancestral property, the house was not included in the deed of gift. The position therefore is that out of the property in which the first appellant held a widows estate, she gave by the deed of gift a portion to the reversioners as regards that portion, a portion to persons who were strangers to the reversion as regards that portion and a portion was retained by her. The doctrine of Hindu law according to which, a limited owner can accelerate the reversion, by surrendering her interest, to the next reversioner, is based on a theory of self-effacement of the limited owner. That is why it has been laid down that in order that a surrender by a limited owner to a reversioner may be effective, the surrender must be of the entire interest of the limited owner in the entire property. The exception made in favour of the retention of a small portion of the property for her maintenance, does not affect the strictness of the requirement that but for this exception, a surrender to be effective, must be of the entire interest in the entire property (Vide: Rangaswami v. Nachiappa, 46 Ind App 72: (AIR 1918 PC 196) and Phool Kaur v. Pem Kaur, 1952 SCR 793 : (AIR 1952 SC 207 ). 18. In so far as there is a gift to a stranger, there is no effacement of the limited owner nor is there any effacement in respect of the property which is retained. We find it impossible to say therefore that there is such effacement of the limited owner in this case, as would accelerate the daughters rights by converting the future contingent right into a present vested right. 19. On behalf of the appellants it is argued that there is certainly a total effacement in respect of the non-ancestral property, so that the right of the next reversioners - the daughters - in that property has been accelerated. We do not think we shall be justified in recognising this novel doctrine of the possibility of effacement of the limited owner vis-a-vis the next reversioner of the non-ancestral property when there is no effacement vis-a-vis the reversioner of the ancestral property, and vice-aviersa. Effacement cannot be broken up into two or more parts in this manner; and however much the limited owner may wish to efface herself only vis-_is those next reversioners whom she wants to benefit, law does not recognise such "partial effacement". 20.The Hindu Law doctrine of surrender does not therefore make the gift of the non-ancestral property to the daughters valid beyond the widows life time. 21. It is not suggested that there is any customary law by which such surrender can be made. 22. Though therefore we have found disagreeing with the learned judges of the High Court that under the customary law governing the Grewal got of Jats to which the parties belong, the daughters - the second and the third appellants - are preferential heirs to the non-ancestral portion of the suit land, we hold that their conclusion that this deed of gift in favour of the daughter is not valid even as regards the non-ancestral property, beyond the donors life time is correct and must be maintained. 23. As a last attempt Mr. Gopal Singh, counsel for the appellants, wanted us to hold that under S. 14 of the Hindu Succession Act, which became law, in 1956 either the mother or the daughters have become full owners of this property, and so the plaintiffs suit should be dismissed. As the Hindu Succession Act was not on the Statute-book, when the written statement was filed or at any time before the suit was disposed of in the courts below, the defence under S. 14 of the Act could not be thought of and was not raised. The necessary consequence is that evidence was not adduced, with the facts material for the application of S. 14 in view, by either party. Mr. Agarwala, has on behalf of the plaintiffs-respondents contended that as the record stands the mother had ceased to be in possession and could not get the benefit of S. 14 of the Hindu Succession Act, and that the daughters in possession would not become full owners under S. 14. We do not think it would be proper to consider these questions in the present suit in this happhazard of possession, the appellants themselves do not wish to say whether the mother was in possession actually or constructively, whether the daughters possession was merely permissive, or whether the daughters were in independent possession, on their own behalf. These and other questions of fact, and the questions of law that have to be considered in dealing a claim by the first appellant or the other two appellants under S. 14 of the Hindu Succession Act, should properly be considered in any suit that they may bring in future, if so advised. We express no opinion of any of these questions.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]8. In the present appeal the oral testimony given on behalf of either party is practically valueless to show any instance in favour of the custom pleaded by them. If therefore the riwaj-i-am does show as urged by the plaintiffs a custom of daughters being excluded by collaterals in respect of non-ancestral property, it is clear that Riwaj-i-am would prevail. The real controversy in this litigation is however on the question whether the entries in the riwaj-i-am on which the plaintiffs rely refer at all to non-ancestral property or not11. In our opinion, the view taken by the Full Bench in AIR 1944 Lah 21 (supra) is consonant with reason and consistent with probability. The fact that the great majority of judges, who brought to bear on the question, an intimate knowledge of the ways and habits in the Punjab peasantry thought that when tribesmen were asked about succession to property, they would ordinarily think the they were being asked about succession to ancestral property, is entitled to great weight. It cannot, we think, be seriously disputed that at least in the early years when the riwaj-i-am was in course of preparation, most of the property in the countryside was ancestral property, and "self-acquisitions" were few and far between. This fact, it is reasonable to think, had the consequence of concentrating the attention of the tribesmen on the importance of having the tribal custom correctly recorded by the Settlement Officers and their agents, as regards succession to ancestral property, and of attracting little attention, if any, to matters regarding non-ancestral property. Unless the questions put to these simple folk, were so framed as to draw pointed attention to the fact that the enquiries were in respect of non-ancestral property also, they could not reasonable by expected to understand from the mere fact of user of general words in the questions that these referred to both ancestral and non-ancestral property. As Din Mohammad J., said in his judgment in the Full Bench, even the fact that on some occasions, the questioner had drawn some distinction between ancestral and non-ancestral property, could not have put them - (i.e., the persons questioned) - on their guard in every case, considering their lack of intelligence in general. Their minds being obsessed with the idea that such enquiries would only refer to ancestral property, they would direct their answers to matters in respect of ancestral property only, and in using forceful terms like "in no case" and "under no circumstances", these persons were really saying that "in no case" would ancestral property devolve in a particular way and have a particular incidence; and under no "circumstances" would ancestral property devolve in a particular way, and have a particular incidence12. These considerations, we think, outweigh the statement made by Mr. Gordon Walker that no distinction between self-acquired and inherited property in land appeared to be recognised, and the rules of succession, restriction on alienation, etc., applied to both alike13. We think therefore that the view taken by the Full Bench, and the many previous cases mentioned in the judgment of the Full Bench, that questions and answers in the riwaj-i-am refer ordinarily to ancestral property, unless there is clear indication to the contrary, is correct. Question No. 43 in the Ludhiana district, appears to be the same for all the tribes.There is not the slightest indication there that the questioner wanted information about non-ancestral property also. The answer given by the Grewal Jats to this question also gives no reason to think that the persons questioned were thinking in giving the answers of both ancestral and non-ancestral property14. We have therefore come to the conclusion that the entries in the riwaj-i-am on which the plaintiffs-respondents rely do not refer at all to non-ancestral property, and are, therefore, not even relevant evidence to establish the existence of a custom among Grewal Jats of Ludhiana district, entitling collaterals to succession to non-ancestral property, in preference to daughters18. In so far as there is a gift to a stranger, there is no effacement of the limited owner nor is there any effacement in respect of the property which is retained. We find it impossible to say therefore that there is such effacement of the limited owner in this case, as would accelerate the daughters rights by converting the future contingent right into a present vested right19. On behalf of the appellants it is argued that there is certainly a total effacement in respect of the non-ancestral property, so that the right of the next reversioners - the daughters - in that property has been accelerated. We do not think we shall be justified in recognising this novel doctrine of the possibility of effacement of the limited owner vis-a-vis the next reversioner of the non-ancestral property when there is no effacement vis-a-vis the reversioner of the ancestral property, and vice-aviersa. Effacement cannot be broken up into two or more parts in this manner; and however much the limited owner may wish to efface herself only vis-_is those next reversioners whom she wants to benefit, law does not recognise such "partial effacement"22. Though therefore we have found disagreeing with the learned judges of the High Court that under the customary law governing the Grewal got of Jats to which the parties belong, the daughters - the second and the third appellants - are preferential heirs to the non-ancestral portion of the suit land, we hold that their conclusion that this deed of gift in favour of the daughter is not valid even as regards the non-ancestral property, beyond the donors life time is correct and must be maintained23. As a last attempt Mr. Gopal Singh, counsel for the appellants, wanted us to hold that under S. 14 of the Hindu Succession Act, which became law, in 1956 either the mother or the daughters have become full owners of this property, and so the plaintiffs suit should be dismissed. As the Hindu Succession Act was not on the Statute-book, when the written statement was filed or at any time before the suit was disposed of in the courts below, the defence under S. 14 of the Act could not be thought of and was not raised. The necessary consequence is that evidence was not adduced, with the facts material for the application of S. 14 in view, by either party. Mr. Agarwala, has on behalf of the plaintiffs-respondents contended that as the record stands the mother had ceased to be in possession and could not get the benefit of S. 14 of the Hindu Succession Act, and that the daughters in possession would not become full owners under S. 14. We do not think it would be proper to consider these questions in the present suit in this happhazard of possession, the appellants themselves do not wish to say whether the mother was in possession actually or constructively, whether the daughters possession was merely permissive, or whether the daughters were in independent possession, on their own behalf. These and other questions of fact, and the questions of law that have to be considered in dealing a claim by the first appellant or the other two appellants under S. 14 of the Hindu Succession Act, should properly be considered in any suit that they may bring in future, if so advised. We express no opinion of any of these questions.