1. This is a plaintiffs' appeal against a judgment and decree of the Senior Subordinate Judge allowing an appeal and modifying a decree of the trial Court, to the extent that the plaintiffs were given a decree for joint possession of one-half of the suit land.
2. The relationship of the parties will be clear from the pedigree-table which is as fol-lows:
| | |
Mehtab Singh Punjab Singh Dilbar Singh
_____________|________ | ______|_____
| | | | | |
Gandhi died Hazara Singh Jaimal adopted son Basawa Basawa (adopted Sundar died
Issueless | | =Widow Mat, Sukban by Punjab Singh) Issuless
| Rora dled (ber esiate is in
| issucless dispute)
| Dewa Singh
| | | |
Narain Hira Waryama Pltff. No. 4 Bhola
____|_________ | _______|________
| | Ishar Pltff. No. 3. | |
Sucha Harditts Pltff Ujagar Singh Pltff. Jangir Singh Pltff.
| No. 1. No. 6. No. 5.
Bagga Singh Pliff. No. 2
3. Basawa son of Didar Singh was adopted by Punjab Singh. On the death of Basawa the property was mutated in the name of his son Dewa Singh and on his dying childless without leaving a widow, the property was mutated in the name of Mt. Sukhan, the widow of Basawa. Mt. Sukhan made a will on the 30th November, 1936, in favour of her daughters Mt. Jiwani and Mt. Punjab Kaur who are thus the sisters of the last male-holder. Mt. Sukhan mortgaged the suit land to three persons who are the original defendants in the suit. On the 1st of May. 1944, Mt. Sukhan died and her estate was mutated in the names of the plaintiffs by the Collector. The plaintiffs brought a Suit for possession of the land alleging that they were the owners of the land, that Mt. Sukhan had merely a life estate, that she had mortgaged the land with possession with the defendants but had no right to do so, and that the mortgage was without consideration and legal necessity.
4. It has been found that Basawa was the adopted son of Punjab Singh and therefore the collaterals of Punjab Singh had no right to succeed to the property which was inherited by Basawa as the adopted son of Punjab Singh. The Senior Subordinate Judge relied on a Full Bench judgment of the Lahore High Court in 'GAINDA v. JAI DEVI', ILR (1944) Lah 519.
5. In appeal, Mr. Gosain has submitted that descendant should mean only sons and not daughters also. But in 'GAINDA v. JAI DEVI', ILR (1944) Lah 519, this question was raised and it was held that the position of an appointed heir under the Punjab Customary Law is materially different from the position of a son adopted under the Hindu Law. In the former case only a personal relationship is established between the appointed heir and the appointer. There is no transplantation of the adopted son from his natural family into the family of his adoptive father and the appointment of an heir only affects the parties thereto, i.e., the appointing father and the appointee. It was also held that the word 'childless' in paragraph 55 of Rattigan's Digest of Customary Law cannot be read to mean 'sonless' only. It refers to lineal descendants both male as well as female. I am in respectful agreement with the rule laid down in this judgment and I therefore dismiss this appeal and affirm the judgment of the Senior Subordinate Judge. The respondent will have his costs in this Court and in the Courts below.
6. Mr. Sachdev for the State submits thathe should be given costs as he has been unnecessarily impleaded. I do not see any reasonwhy be should have costs. His prayer is therefore dismissed.