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Chamel Kaur Vs. Charan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 104 of 1948
Judge
Reported inAIR1953P& H191
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 - Order 22, Rule 9(2); Hindu Law
AppellantChamel Kaur
RespondentCharan Singh and ors.
Appellant Advocate H.R. Sachdeva, Adv.
Respondent Advocate Tek Chand, Adv.
Cases ReferredLallubhai Bapubhai v. Cassibai
Excerpt:
.....passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 2650/-,that defendant 2 being of dhindsa got, was entitled to a share in the estate of narain singh, that defendant 2 had failed to establish that partap singh plaintiff and other proprietors had consented to the sale in her favour, that the application for impleading munshi was not made within time, that the suit abated as regards bishna's share and that the plaintiffs were entitled to immediate possession. clearly, it would not be just to reopen issues nos......to set out the material facts of the case in some detail.3. narain singh owned the property in suit. narain singh dying, the property in suit devolved upon mst. kulvanti, widow of narain singh. on 1-11-1938 mst. kulvanti sold the property in suit to mst. qhambel kaur, wife of dalip singh for rs. 3500/- on the foot of sale deed, ex. d. 1. mst. kulwanti sold other property for rs. 225/-to deva singh, lather of defendants 2 and 3, on 7-7-1937, but we are not concerned in these proceedings with that sale.4. on 8-6-1944, plaintiffs instituted civil suit no. 227 of 1945 for possession of the iand and the house sold by mst. kulwanti to mst. chambel kaur on 1-11-1938. in the plaint it was said that mst. kulwanti had contracted 'karewa' marriage-with sarmukh singh before 1-11-1938, and.....
Judgment:

Harnam Singh, J.

1. This order disposes of Eegular Appeals Nos. 104 and 293 of 1948.

2. In order to appreciate the questions that arise in these proceedings, it is necessary to set out the material facts of the case in some detail.

3. Narain Singh owned the property in suit. Narain Singh dying, the property in suit devolved upon Mst. Kulvanti, widow of Narain Singh. On 1-11-1938 Mst. Kulvanti sold the property in suit to Mst. Qhambel Kaur, wife of Dalip Singh for Rs. 3500/- on the foot of sale deed, Ex. D. 1. Mst. Kulwanti sold other property for Rs. 225/-to Deva Singh, lather of defendants 2 and 3, on 7-7-1937, but we are not concerned in these proceedings with that sale.

4. On 8-6-1944, plaintiffs instituted Civil Suit No. 227 of 1945 for possession of the iand and the house sold by Mst. Kulwanti to Mst. Chambel Kaur on 1-11-1938. In the plaint it was said that Mst. Kulwanti had contracted 'karewa' marriage-with Sarmukh Singh before 1-11-1938, and therefore Mst. Kulwanti could not pass any title to Mst. Chambel Kaur. In any case, it was said in the plaint that the sale in suit was without consideration and legal necessity.

5. On 24-7-1944, Bisram plaintiff 1 died. On, 19-10-1944, an application under Rule 3 of Order 22, Civil P. C., was made that Munshi son of Bishna may be brought on the record as legal representative of Bishna. The application was thumb-marked by Munshi and signed by 'Lala' Babu Ram Gupta for 'Sardar' Gurbakhsh Singh. Mst. Chambel Kaur objected that the application, which was made on 19-10-1944, was not made by an authorised person, and that the suit had abated in toto.

6. Defendant 2 resisted the suit on pleas which gave rise to the following issues:

(1) Are the plaintiffs alone heirs of Narain Singh the last male proprietor?

(2) Had Mst. Kulwanti entered into a 'karewa' before the alienation in dispute?

(3) Was Mst, Kulwanti competent to make the alienation in dispute and was that alienation for consideration and legal necessity?

(4) Is defendant 2 also an heir of Narain Singhand what is its effect on the alienation inher favour?

(5) Were Partap Singh plaintiff and other proprietors consenting parties to the alienation in dispute and what is its effect?

(6) Is the application for impleading the legal representative of Bishna deceased plain-tiff within time?

(7) If not, what is its effect?

(8) Does the suit for possession lie?

(9) Relief.

In deciding the suit the Court of first instance found that the plaintiffs were the heirs of Narain Singh, that Mst. Kulwanti married Sarmukh Singh on a date subsequent to 1-11-1938 that Mst. Kulwanti was competent to sell the property in suit for consideration and legal necessity, that the sale was supported by consideration and legal necessity to the extent of Rs. 2650/-, that defendant 2 being of Dhindsa got, was entitled to a share in the estate of Narain Singh, that defendant 2 had failed to establish that Partap Singh plaintiff and other proprietors had consented to the sale in her favour, that the application for impleading Munshi was not made within time, that the suit abated as regards Bishna's share and that the plaintiffs were entitled to immediate possession. In the result the Court of first instance granted the plaintiffs a decree for joint possession of the land and the house in suit against defendant 2 on payment of their proportionate share of Rs. 1,250/- and on redemption of the mortgages evidenced by mutations, Exs. D. 8 and D. 10, if those mortgages were found to be valid. Plaintiffs were allowed two-third costs of the suit.

7. From the decree passed by the Court of first instance, plaintiffs and defendant 2 appealed in the Court of the District Judge. In that Court Mst. Chambel Kaur maintained that the suit abated in toto and that it was not proved that Mst. Kulwanti married Sarmukh Singh before 1-11-1938, while plaintiffs maintained that the finding given by the Court of first instance that Mst. Chambel Kaur belonged to the 'got' of Narain Singh was erroneous in law.

8. In deciding the appeals the learned District Judge maintained the findings given by the Court of first instance except the finding on issue No. 7. On issue No. 7 the Court of first appeal has found that even if the application made on 19-10-1944, was unauthorised, the court of first instance ought, in the circumstances of the case, to have set aside the abatement under Rule 9 of Order 22, Civil P. C. and allowed Munshi to prosecute the suit as legal representative of Bishna. In the result the Court of first appeal allowed the appeal of the plaintiffs and modified the decree passed by the Court of first instance as regards Bishna's snare in the property in suit. In the result the decree of the Court of first instance passed on 22-7-1946, for joint possession of the laud in suit on payment by the plaintiffs of their proportionate share of Rs. 1,250/- was modified to the extent indicated above.

9. From the decree passed by the District Judge on 7-7-1947, Narain Singh plaintiff and Mst. Ohambel Kaur defendant 2 have come up in further appeal to this Court.

10. In Regular Second Appeal No. 104 of 1948 Mr. Sachdeva urges a double-barreled objection. In the first place, it is said that the suit abated 'in toto' by reason of the fact that the application for impleading Munshi as legal representative of Bishna, was not made within time and, in the second place, it is said that it has not been established that Mst. Kulwanti married Sarmukh Singh before 1-11-1938.

11. Dealing with the second objection first I find that it is not open to the defendant-appellant to challenge the correctness of the decision given by the District Judge on issue 2. That finding, being a finding of fact, this Court has no jurisdiction to interfere with that finding. On this point -- 'Wali Mahomed v. Mahomed Baksh', AIR 1930 PC 91 (A), may be seen. In that case Sir Binod Mitter said:

'There is no jurisdiction to entertain a second appeal' on the ground of erroneous finding of facts, however gross the error may seem to be'.

12. On the first objection it is sufficient to state that the Court of first appeal has acted under RULE 9 of Order 22, Civil P. C. In doing so the Court of first appeal has exercised discretion vested by law in that Court. Clearly, it would not be just to reopen issues Nos. 6 and 7 in second appeal.

13. No other point was urged in Regular Second Appeal No. 104 of 1948.

14. In Regular Second Appeal No. 293 of 1948 it is urged that on the facts found Mst. Chambel Kaur defendant 2 did not belong to the 'got' of Narain Singh deceased. If so, Mst. Chambel Kaur was not entitled to succeed to the estate left by Narain Singh.

15. In deciding issue No. 4 the Court of first appeal has based itself upon the answer to Question No. 42, Customary Law of the Ambala District prepared in the Settlement of 1920-21. That answer deals with the nature of the daughter's interest in the property that she inherits on the death of her father. In my judgment, the answer to Question No. 42 has no bearing on the point under consideration. That the Customary Law governing the parties recognises 'gots' is plain from Question No. 51-A, and the answer to that Question, Ex P. 3, but it is common ground that apart from the answer to Question No. 42 there is not a syllable in the Customary Law of the Ambala District on the point under consideration,

16. Now, it is settled rule that where no definite rule of customary law can be found on a point in issue Courts may fall back, as a last resort, on the parties' personal law for a guiding principle.

17. In -- 'Lallubhai Bapubhai v. Cassibai', 5 Bom 110 (P C) (B) one of the questions that arose for decision was : 'What was the 'gotra' of a wife?'

18. In deciding the question stated in the preceding paragraph Sir Montague B. Smith said :

'It is not disputed that on her marriage the wife enters the 'gotra' of her husband, and it can scarcely be doubted that in some sense she becomes a 'sapinda' of his family. It is not necessary to cite authorities on this point. But a statement of the doctrine in a , note by Mr. Borradaile to his reports may be referred to.

He says:

'Because a woman on her marriage enters the 'gotra' of her husband, so respondents being 'sagotrasi' of Pitamber, are 'sagotras' of his wife also.'

19. In para. 130, Principles of Hindu Law by Mulla, 1946 Edition, it is stated 'inter alia' that , females who enter the 'gotra' of a Hindu by marriage are his wife, his father's wife, his father's father's wife, his father's father's' father's wife and the wives of other descendants.

20. In -- 'Radha Nath v. Shaktipado Mukerji', AIR 1936 All 624 (C), the facts were that Nritya Kali married Purna Chandra Banerji who died when Nritya Kali was still a young girl and she subsequently married one Har Prasad Mukerji. In that case it was said that Nritya Kali on her husband's death reverted to her father's 'gotra'. In deciding that case Thom and Raehhpal Singh, JJ., said :

'There is the definite authority of the Judicial Committee of the Privy Council for the proposition that upon marriage the wife passes into her husband's 'gotra', viz., the decision in the case of --'Lallubhai Bapubhai v. Cassibai', (B) referred to above. There is no definite authority (or the other proposition that upon the death of her husband the widow passes again into her father's 'gotra'. In the absence of any clear authority we are not prepared to accept the contention of learned counsel for the respondents and we hold that Nritya Kali passed out of her father's 'gotra' upon her first marriage and therefore the marriage between herself and Mukerji, which marriage was celebrated somewhere about the year 1886, was a valid marriage: and that her sons are legitimate Issue and the legal representative of Purnananda, the founder of the endowed property.'

21. From the above discussion it follows that upon marriage a Hindu wife passes into her husband's 'gotra'. That being the position of law, Mst. Chambel Kaur on marriage ceased to be a member of her father's family and entered the 'gotra' of her husband. In these circumstances Mst. Chambel Kaur cannot be regarded to be an heir of Narain Singh on the ground that she belonged to the 'gotra' of Narain Singh.

22. For the reasons Riven above, I dismiss with costs Regular Second Appeal No. 104 of 1948 and allow with costs Regular Second Appeal No. 293 of 1943.

23. Tn the result possession of the property in suit win be given to the plaintiffs when they pay Rs. 1,250/- to defendent 2 and redeem the mort-pages made by Navain Singh on 20-7-1929, and on 30-8-1931. on the foot of mutations Exs. D. 10 and D. 8. if the morteages are valid and binding.

Khosla, J.

24. I agree.


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