Case: Mara And Others Vs. Nikko And Others

The suit was filed by the respondents for possession of a plot, a house and a Taur and half share in certain lands as preferential heirs of one Pohla after the death of Pohlas widow Punjab Kaur on February 7, 1952. The plaintiffs are Mst. Nikko, sister of Pohla and Jarnail Singh, son of Mst. Har Kaur who was another sister of Pohla. The first appellant Mara is collateral of 4th degree of Pohla and the other two appellants are Maras sons. The following genealogy gives the relationship of theThe parties are Jhalli Jats of village Chomon, Tehsil and District Ludhiana. The plaintiffs claimed that the property wasand according to the Riwaj applicable to the family, sisters excluded collaterals in respect of both ancestral andproperties. It appears that after the death of Punjab Kaur, Mara got one of the fields mutated in his own name and thereafter took possession of the whole property. He made gifts to his sons of some of the properties and that is why they were joined in the suit. Mara and his elder son Mohinder Singh filed a joint written statement in which they raised many pleas the details whereof need not be given here. They claimed that according to the custom applicable to the family, sister and sisters sons were excluded from inheritance in respect of properties whether ancestral orThey, however, claimed that the property was ancestral and denied the genealogy.The parties led voluminous oral evidence in the case but the Subordinate Judge did not rely upon it. We have not been referred to any portion of this evidence in this appeal. The learned Subordinate Judge held that the suit lands were not ancestral and further that no evidence was produced to prove that the other properties were ancestral. On the third issue he referred to question No. 52 from therelating to the settlements of 1882 and2) in which it is stated that among the Jhalli Jats of Tehsil Ludhiana sisters or sisters sons never succeed. He, however, held on the authority of Ahmad v. Mohammad, AIR 1936 Lah 809 that such question refers only to ancestral property and that the nature of the property was thus material. On the fourth issue he held on the strength of the answer to question No. 52 that sisters and their sons were excluded from ancestral property but as the answer was not applicable toproperty the personal law would apply unless special custom was proved. He, therefore, placed the burden on the defendants relying upon Harnam Singh v. Mst. Gurdev Kaur, 59 Pun LR 609, Mst. Sukhwant Kaur v. S. Balwant Singh. AIR 1951 Punj 242 and Mst. Jeo v. Ujagar Singh, 55 Pun LR. 1: (AIR 1953 Punj 177). As he had already rejected the oral evidence and there was no other proof that the property was ancestral, he decreed the suit.5. On appeal the District Judge, Ladhiana remitted three issues to the trial Judge and they were aser there is any custom by which the parties are governed according to which the plaintiffs are entitled to succeed to the ancestral as well asproperty left by the Pohla in preference to Mara defendant?""Issue No.under the custom by which parties are governed the defendant Mara is a preferential heir to the plaintiffs in respect of the ancestral as well asproperty of Pohla deceased?""Issue No. 4BIf the custom set out by the parties is not proved, whether the plaintiffs are preferential heirs to Mara defendant under personal law applicable to thethese issues the report of the Subordinate Judge, First class, Ludhiana was against the contention of the defendants. The learned District Judge held, in agreement with the Subordinate Judge, that the lands in suit were not ancestral and he held also that there was no evidence to show that among the Jhalli Jats of Ludihiana collaterals excluded sisters and sisters sons in respect ofproperty. He referred to Exts. 9, 10, 12 and 18 which were judgments in other cases as evidencing the contrary. He accordingly dismissed the appeal. The Second appeal filed thereafter was dismissed summarily by the High Court.

Court's reasoning:
Now, it has been ruled in the Punjab consistently that where lands are so mixed up that the ancestral andportions cannot be separated they must be regarded asunless it is shown which are ancestral and which are not. This was laid down by the Privy Council in Attar Singh v. Thakar Singh, 35 Ind App. 206 (PC). It was held by Mr. Justice Kapur (as he then was) in Indar Singh v. Gulzara Singh, AIR 1951 Punj 345 basing himself uponv. Mohammad Ali Khan, ILR 9 Lah 95: (AIR 1928 Lah 285) and Jagtar Singh v. Raghbir Singh, ILR 13 Lah 165: (AIR 1932 Lah 85) that land ceases to be ancestral if it comes into the hands of an owner otherwise than by descent. Once these conclusions are reached, it is quite obvious that the decision of the District Judge not to apply the answer to question No. 52 toland was right. It may be mentioned that the answers to questions refer to ancestral property only and this is now firmly established. In fact, it was not denied at thelearned District Judge cited some instances in which the sisters and sisters sons were allowed to succeed in preference to collaterals. One of the documents filed by the defendants in the suit (Ext.also supports the contention of the respondents. In this view of the matter it cannot be said that the application of the personal law to the family by the courts below waspersonal law applies, as it does, a collateral of the 4th degree is also excluded.