1. The subject-matter of this appeal is property which belonged to Nanda deceased. Nanda married twice. By his first wife Partapi, he had a daughter Ralli who is the plaintiff-appellant in this case. By his second wife Santi, he had a daughter Gur-nam Kaur who is a defendant-respondent. Nanda died in 1924 and soon after his death his second widow Santi remarried. Nanda's property devolved upon his widow Santi and then on his unmarried daughter Gurnam Kaur as Santi by her remarriage lost her right in her deceased husband's property. The mutation in favour of Gurnam Kaur was sanctioned on 1-10-1926. Ralli was at that time alive but she was a married woman. She had apparently married before Nanda's death. She laid no claim to the property and did not take any steps to get any share of her deceased father's inheritance. On the other hand the collaterals of Nanda entered into a contest with Gurnam Kaur. The proceedings before the revenue officers lasted a considerable time but eventually Gurnam Kaur's rights were preferred to those of Nanda's collaterals. The result was that on 1-10-1926 Gurnam Kaur was entered as the sole heir of Nanda.
Gurnam Kaur married in 1938 or thereabouts. Then in 1944 Ralli brought the present suit for possession of half share of the property left by Nanda. In the plaint Ralli alleged in paragraph 3:
'About six years ago Gurnam Kaur defendant No. 1 married. The plaintiff was already married. so now after the marriage of defendant No. 1 the plaintiff's rights of inheritance have been born and now after the marriage of defendant No. 1 the plaintiff is entitled to claim a half share of the property of Nanda her deceased father, in land and houses as his daughter. The plaintiff by the custom of Hindus is an heir of the property of Nanda deceased to the extent of one half share.' In another part of the plaint she alleged that Gurnam Kaur was entitled to hold her father's property only till her (Gurnam Kaur's) marriage.
2. The plaintiff impleaded a number of other persons who had acquired interests in the land but the suit was contested in the main by Gurnam Kaur who pleaded that when inheritance opened, she, being the unmarried daughter of Nanda, was his sole heir. She denied that Ralli was a daughter of Nanda and further pleaded that the suit was barred by time, as she had been in adverse possession of the land for more than 12 years and as the plaintiff had not brought the suit within 12 years of the date when her right to sue accrued. There was also a plea to the effect that the suit could not be brought in the present form with regard to the land under mortgage. The trial Court framed the following issues:
1. Is Mst. Ralli plaintiff, daughter of Nanda deceased?
2. Whether the houses in dispute belonged to Nanda deceased?
3. If so, whether defendants Nos. 2 to 4 and 10 are in adverse possession of these houses since over 12 years?
4. Is plaintiff's suit within limitation?
5. Is defendant No. 1 in adverse possession of the property in dispute since over 12 years as against the plaintiff?
6. Whether plaintiff can bring the present suit in this form regarding the land under mortgage?
7. If issue No. 1 is proved in plaintiff's favour then is any previous conduct of her a bar to the present suit?
3. It has been found by the Courts below that Ralli is the daughter of Nanda. Issues 2 and 3 were found in favour of defendants 2 to 4 and 10,' and the only matter we are now concerned with is the question of limitation. The lower appellate Court has found that the suit of the plaintiff was barred by time.
4. The contention of the learned counsel for the appellant is that Ralli was an heir in her capacity of Nanda's daughter. So she was entitled to take possession of one half share of Nanda's property as soon as Santi remarried. Gurnam Kaur in her capacity of co-heir took possession of the entire property but she was holding Ralli's share on her behalf. Gurnam Kaur did not at any time assert her title to the entire property to the knowledge of Ralli and therefore Gurnam Kaur cannot be said to have been in adverse possession of Ralli's portion at any time. Ralli is therefore entitled to claim her share at any time and her suit is within limitation. This argument is based on the assumption that married and unmarried daughters have an equal right of inheritance according to the custom by which the parties are governed, and failing that according to the personal law of Hindus. It is also assumed that Gurnam Kaur did not at any time assert her exclusive right to her deceased father's property.
5. The facts of this case, however, do not warrant any of these assumptions. Parties belong to Ludhiana district and are Jats. They are quite clearly governed by custom for they are agriculturists and it was not contended by any side that they were governed by personal law and not by custom. The custom which relates to the inheritance of daughters is set out in Question and Answer No. 43 in Dunnptt's Customary Law of Ludhiana District published in 1911. The answer clearly states that married daughters have no rights of succession whatever. As between daughters and collaterals daughters are preferred, but as between daughters an unmarried daughter must be preferred otherwise the statement that married daughters have no rights of succession whatever will have no meaning.
Ralli clearly realised the exact position for she never made an attempt to claim any part of her father's inheritance on the re-marriage of Santi, the only surviving widow. She allowed Gurnam Kaur to fight a lone battle with Nanda's collaterals and allowed Gurnam Kaur to lake possession of the entire property. In her plaint, too, she stated clearly that her rights were born only with Gurnam Kaur's marriage. She appeared to think that Gurnam Kaur being an unmarried daughter was the only one in the field entitled to the possession of the property and that it was only when she earned a disqualification by marrying several years later that she (Ralli) acquired any rights at all.
Mr. Bahri argued that what Ralli meant was that there was a special custom by which an unmarried daughter took possession of her deceasedfather's property until her marriage only and on her marriage succession reopened a second time. This, however, would be straining the phraseology of the plaint and putting a construction upon it which was never intended by the plaintiff. There is no allegation that there was any special custom and indeed no such special custom exists. Mr. Bahri frankly conceded that even if the plaint intended to allege ft special custom of this type no such custom had been proved.
He next went on to say that under general custom all daughters inherit equally whether they are married or unmarried, and drew our attention to paragraph 23 of Rattigan's Customary Law. But before discussing paragraph 23, it must be pointed out once again that the special custom of Ludhiana district is contained in the Answer to Question No. 43 and this clearly shows that marrieddaughters are excluded by unmarried daughters.
6. With regard to paragraph 23, it does not lay down the rights of daughters 'inter se', and it says nothing about whether an unmarried daughter is to be preferred to a married daughteror not. Paragraph 23 merely deals with the rights of daughters 'vis-a-vis' the collaterals and therefore paragraph 23 of Rattigan's Customary Law is no authority for the view that Ralli and Gurnam Kaur were entitled to succeed to Nanda's propertyalthough one of them was married and the other unmarried. Mr. Bahri was unable to point to any case in which a contest between married and unmarried daughters arose and both were held entitled to succeed equally and simultaneously.
In view of the statement contained in Dunnett's Customary law I must take the view that, when succession opened on Santi's remarriage, Gurnam Kaur was the only one entitled to succeed to Nan-da's property and Ralli was not to be treated as an heir. So Gurnam Kaur entered into possession of the property as sole heir to the exclusion of everyone else including Ralli and her adverse possession began. Once limitation begins to ran, it cannot stop, and as a mutation in her favour was sanctioned in 1926, and the suit was not brought till 1944, the suit is clearly barred by time.
7. The above argument is based on the assumption that Ralli was not an heir at all and on this assumption she did not acquire any rights on Gurnam Kaur's marriage, and therefore she is not entitled to bring this suit in any event. Let us now assume that Ralli was also an heir and that owing to her negligence, misapprehension or error she did not assert her rights until 1944. The question will then arise is her suit within limitation because her co-heir must be presumed to have held the property on her behalf.
In this case, however, we find that there wasa clear assertion of adverse and exclusive title by Gurnam Kaur. It was she alone who contested the claim of Nanda's collaterals and Ralli did not at any time come forward to assist her or to assert her own claim. She knew that Gurnam Kaur was making an exclusive claim to the property, she cannot claim ignorance of those proceedings. Indeed she admits that she knew all about what was happening. In the plaint she stated that her rights came into existence only on Gurnam Kaur's marriage. Therefore at best this admission means that she was not aware of what her rights were when a mutationwas sanctioned in favour of Gurnarn Kaur. She was under a mistaken belief that Gurnam Kaur alone was entitled to succeed as the unmarried daughter and it was only when Gurnam Kaurmarried that she came to a realisation of her ownrights. In this view of the matter also, the suit is clearly barred by time because Gurnam Kauri asserted her exclusive right to the property to the knowledge of Ralli and Ralli did not choose to; question the correctness of this assertion perhaps because she was under a mistaken belief about her own rights.
She was examined before issues and she then stated:
'After Nanda's death his land was first mutated in the name of Mst. Santi and then in the name of Gurnam Kaur after her remarriage. I did not claim my rights previously because Gurnam Kaur was a minor while I was married.'
She was again examined as a witness and thenshe stated
'I never asserted my claim to the land in dispute alter the remarriage of Mst. Santi.'
Prom these statements and the assertion which she made in the plaint it is quite clear that Ralli was never in ignorance of the fact that Gurnam Kaur was making an exclusive claim to the property of her deceased father and had actually come into possession of it. Possession of Gurnam Kaur adverse to Ralli therefore began in 1926 and since the suit was brought more than 12 years after this date the suit is barred by time.
8. The contention of the learned counsel for the appellant that the right to sue accrued on the marriage of Gurnam Kaur is without any force. Her marriage could not confer any rights on Ralli. Gurnam Kaur's marriage might entitle the collaterals of Nanda to oust her but it cannot give any rights to a daughter who is already married. Either the married daughter was an heir when succession opened out or she was not an heir. She cannot become an heir on the marriage of an unmarried daughter who was looked upon as and was, the sole heir. Therefore It is clear that limitation began not in 1938 when Gurnam Kaur married but in 1926 when she came into adverse possession of the property.
9. Therefore whether Ralli was an heir in spite of her being married, by virtue of general custom, personal law or for any other reason, her rights were extinguished in 1938, i.e., 12 years after Gur-nam Kaur had been in exclusive possession of the property in dispute to Ralli's knowledge.
10. An argument advanced at the Ear was that none of the land was actually in possession of Gurnam Kaur for the entire land in dispute was under mortgage and so Gurnam Kaur could not be said to have been in adverse possession. There can be, however, adverse possession of the equity of redemption, & some part of the land was not under mortgage when inheritance opened on Santi's remarriage. 25 'bighas' 17 'biswas' and 18 'biswansis' remained in actual possession of Gurnam Kaur till 1928 when she herself mortgaged it for a period of 20 years (vide Exhibit D. 10). The mortgage, of the land, however, makes no difference to the case as the entire proceedings were within the knowledge of Ralli and she knew that Gurnam Kaur was taking possession of the ownership rights left by Nanda as sole heir.
11. The suit therefore must be held to be barred by limitation. I would accordingly dismiss the appeal with costs.
12. I agree.