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

1. The suit out of which this appeal has arise was instituted by the respondents 1 and 2, Sher Singh and Labh Singh for a declaration that a deed of gift executed by the first appellant Jai Kaur in respect of 8 (1-10) Bighas of land which she had inherited from her husband Dev Singh in in favour of her two daughters the 2nd and 3rd appellants before us "shall be null and void against the reversionary rights of the plaintiffs," and defendants Nos. 4 to 6 after the death of defendant No. 1 (i.e. Jai Kaur) and shall not be binding upon them. The plaintiffs case was that these lands left by Dev Singh, were all ancestral lands qua the plaintiffs and according to the customary law which governs the Jats belonging to Grewal Jats to which these parties belong daughters do not succeed to property left by sonless fathers and so the gift by Deva Singhs widow in favour of her daughters would be null and void as against the plaintiffs and others who would be entitled on Jai Kaurs death of succeed to the estate as reversioners. In the alternative, the plaintiffs contended that even if the land in suit was not ancestral qua the plaintiffs then also the deed of gift would be null and void as against their reversionary interests inasmuch as even as regards non-ancestral property daughters do not succeed among the Grewal Jats. The main contention of defendants 1 to 3 (the appellants before us) was that the suit land was not ancestral qua the plaintiffs and defendants Nos. 4 to 6, and that according to the customary law governing the Jats of the Grewal Jats, daughters exclude collaterals as regards non-ancestral property and a widow is competent to make a gift of such property in favour of her daughters. It was pleaded on behalf of the two daughters that they being preferential heirs in respect of the land in suit as against the plaintiffs, the gift is tantamount to acceleration of succession and is valid in every way. The trial Judge held that 2D-2B-14-B out of the land in suit was ancestral and the gift was invalid to that extent, because as regards ancestral property a daughter does not succeed in the presence of collaterals. As regards the remainder of the suit land which he held was non-ancestral, the learned Judge was of opinion that the gift was merely an acceleration of succession as under the customary law governing the parties daughters exclude collaterals as regards succession to non-ancestral property. Accordingly he gave the plaintiffs a decree as prayed for as regards 2-B-2B, 14-B out of the land in suit and dismissed it as regards the remaining portion of the land in suit.      2. The plaintiffs appealed to the district Judge, Ludhiana against this decree and cross-objections were filed by the defendants Nos. 1 to 3. The trial Courts finding about a portion of the land being ancestral and the rest non-ancestral was not disputed before the appeal court. On the question of custom the learned District Judge agreed with the trial Judges view that among the Grewal Jats of Ludhiana the daughter excluded collaterals as regards non-ancestral property. He held therefore agreeing with the trial Judge that as regards the non-ancestral property the deed of gift was merely an act of acceleration of succession and was therefore valid and binding. The appeal was accordingly dismissed and so also were the cross-objections which appear not to have been pressed.      3. On second appeal the learned judges of the East Punjab High Court accepted the contention urged on behalf of the plaintiffs that a special custom was proved to be in force among the Grewal Jats under which the daughter does not inherit even as regards non-ancestral property. In that view they held that even as regards the non-ancestral property the gift by Jai Kaur would be valid only during her life-time, and allowed the appeal.      4. Against this decree of the High Court defendants Nos. 1 to 3 - Jai Kaur and her two daughters, the donees - have filed this appeal on the strength of special leave granted by this Court.

Reasoning: 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.