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Jaimal Singh Basant Singh Vs. Mst. Thakuri and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 4 of 1950
Judge
Reported inAIR1954P& H1
AppellantJaimal Singh Basant Singh
RespondentMst. Thakuri and anr.
Appellant Advocate K.L. Gosain and; K.S. Thapar, Advs.
Respondent Advocate Shamair Chand and; P.C. Jain, Advs.
DispositionAppeal dismissed
Cases ReferredIbrahim v. Mst. Zainab
Excerpt:
.....227 of the constitution. - the learned trial 1954 punjab/1 & 2 .judge found that the parties were not members of a joint hindu family and were governed by custom and that the daughter was a better heir than the collaterals, the property being self-acquired. mohammad abdul latif, senior subordinate judge, after referring to several cases came to the conclusion that the brother was a better heir than the daughter. the learned judge placed the onus on the daughter and held that she had failed to discharge it. in any case, i do not think that this is a correct interpretation at law nor is it a good instance. held this riwaj-i-am not to be reliable document. it is not necessary to multiply these cases because after the decision of their lordships of the privy council in -subhani's..........also relied upon 5 instances of these. p. 5 is at p. 38 and is a judgment of mr. marten, district judge, jullundur. the parties were jats. the donor was one mst. partapi and the case was decided against the gift in favour of the daughters on the ground that the donor had a life estate and could not make a gift going beyond her life and that the case was not one of acceleration of succession. reference was made to the parties being hindu jats governed by custom but there is no discussion of any kind and, in my view, this judgment is of no assistance to the plaintiffs.5. the next judgment relied upon is p. 8 which is a case from hoshiarpur and cannot be of any assistance. p. 7 relates to rajputs of tehsil jullundur and the property in dispute was a sum of rs. 408/- and the dispute arose.....
Judgment:

Kapur, J.

1. This is a plaintiff's appeal against a judgment and decree of Mr. Gulal Chand Jain, Sub-Judge 1st Class, Nawanshahr, dated 16-2-1950, dismissing the plaintiffs' suit and holding that amongst Rajputs of Nawanshahr tehsil in Jullundur district daughters exclude collaterals from inheritance to self-acquired property.

2. The property in dispute is a sum of Rs. 17,686/1/- which were lying in deposit in the post office and in the Imperial Bank of India in the name of Narain Singh deceased. Mst. Thakri, a daughter of Narain Singh, obtained a succession certificate and the plaintiffs, who are a brother and a nephew of Narain Singh, have brought a suit for declaration that they have a preferential right to succeed on the ground that Narain Singh and they formed a joint Hindu family and that even under custom they have a preferential tight to succeed to that of Mst. Thakri, who is a daughter. The learned trial 1954 Punjab/1 & 2 . Judge_ found that the parties were not members of a joint Hindu family and were governed by custom and that the daughter was a better heir than the collaterals, the property being self-acquired.

3. It was found by the learned Judge that out of the amount in dispute the deceased had brought a part from Australia and the rest he had made in India and therefore the whole of the amount was self-acquired. The parties are Menton Rajputs belonging to a village and are amongst the dominant agricultural tribes of the State and it has been rightly held that they are not governed by Hindu Law but by custom.

4. The only point to be decided in this appeal is whether the plaintiffs would exclude the daughter. After the decision given by their Lordships of the Privy Council in -- 'Mst. Subhani v. Nawab', AIR 1941 PC 21 (A), the onus is on the plaintiffs to show that they exclude the daughter. They have produced fifteen witnesses who have deposed to a custom of daughters being excluded by collaterals and also relied upon 5 instances of these. P. 5 is at p. 38 and is a judgment of Mr. Marten, District Judge, Jullundur. The parties were Jats. The donor was one Mst. Partapi and the case was decided against the gift in favour of the daughters on the ground that the donor had a life estate and could not make a gift going beyond her life and that the case was not one of acceleration of succession. Reference was made to the parties being Hindu Jats governed by custom but there is no discussion of any kind and, in my view, this judgment is of no assistance to the plaintiffs.

5. The next judgment relied upon is P. 8 which is a case from Hoshiarpur and cannot be of any assistance. P. 7 relates to Rajputs of tehsil Jullundur and the property in dispute was a sum of Rs. 408/- and the dispute arose between a real brother and a married daughter of the last holder. In the year 1943, Mr. Mohammad Abdul Latif, Senior Subordinate Judge, after referring to several cases came to the conclusion that the brother was a better heir than the daughter. The learned Judge placed the onus on the daughter and held that she had failed to discharge it. A large number of cases of Jullundur district which are all collected at p- 387 of the new edition of Sir William Rattigan's Digest of Customary Law do not seem to have been referred to. In any case, I do not think that this is a correct interpretation at law nor is it a good instance.

6. The next document relied upon is P. 13 Which has no relevancy to this case.

7. Reliance was placed on the Riwaj-i-am of the Jullundur district prepared by Mr. Hotu Singh and reference was made to questions and answers 45-A and 45-B. They no doubt support the plaintiffs but in more cases than one it has been held that the Riwaj-i-am compiled by Mr. Hotu Singh is not a carefully prepared document and has been rejected in many cases. To refer only to two, there is -- 'Chiragh Din v. Dilawar Khan', AIR 1934 Lah 465 (6), where a Bench consisting of Sir Shadi Lal C. J., and Abdul Qadir J., held against the reliability of this Riwaj-i-am though the question in dispute was another one. So also in -- 'Mst. Santi v. Dharam Singh', AIR 1935 Lah 834 (C), Tek Chand and Skemp JJ. held this Riwaj-i-am not to be reliable document.

8. As against the evidence which has been led by the plaintiffs there are a large number of eases where the daughters were held to exclude the collaterals in regard to succession to self-acquired property. First of all there is a case of Jats of Jullundur district who had gone and settled in Lyallpur where it was so held. This was -- 'Harbans Kaur v. Nagina Singh', AIR 1936 Lah 273 (D). The case of Sainis where this was held is -- 'AIR 1935 Lah 834' (C). The same was held in the case of Dasoanjh Jats of Phillaur tehsil in -- 'Narain Singh v. Mst. Chand Kaur', AIR 1935 Lah 607 (E), 'Ibrahim v. Mst. Zainab', AIR 1935 Lah 613 '(F), is a case of Arains of Jullundur district where the same was held. It is not necessary to multiply these cases because after the decision of their Lordships of the Privy Council in -- 'Subhani's case' (A) it has been decided in the Courts in the Punjab that the onus to prove the exclusion of daughters in regard to self-acquired property lies on the collaterals and in this case all that they rely upon are fifteen witnesses who have given oral evidence but no well-defined instance has been proved. I am, therefore, of the opinion that the learned Judge has rightly held that in this case the daughter is a preferential heir than the collaterals. I would, therefore, dismiss this appeal with costs.

Falshaw , J.

9. I agree.


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