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Bachan Singh Vs. Mt. Nand Kaur - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 473 of 1948
Judge
Reported inAIR1953P& H200
AppellantBachan Singh
RespondentMt. Nand Kaur
Appellant Advocate N.L. Wadhera, Adv.
Respondent Advocate Daljit Singh, Adv.
DispositionAppeal partly allowed
Excerpt:
.....orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against..........in favour of his son bachan. singh, the plaintiff, and his widow nand kaur in equal shares. waryam singh, a collateral of teja singh, then died and his estate was also mutated equally in the names of bachan singh and nand kaur. nand kaur then made an application for partition of the property. thereupon the plaintiff brought a suit for declaration to the effect that he was the sole owner in possession of the land in dispute and that the defendant had no right whatsoever and that the entries in the revenue records had been wrongly made and nand kaur was not entitled to get partition of the land. on both these points the trial court and the first appellate court have held in favour of the widow. -3. according to para. 16 of rattigan's digest of customary law which contains the.....
Judgment:

Kapur, J.

1. This is a plaintiff's appeal against a judgment and decree of Mr. Bedi, District Judge, Ludhiana, affirming the decree of the trial Court in which it was held that a sonless widow has a right to succeed equally with her step son to the estate of the husband and has also the right to share in collateral succession with her step son.

2. Teja Singh, the husband, died and his land was mutated in favour of his son Bachan. Singh, the plaintiff, and his widow Nand Kaur in equal shares. Waryam Singh, a collateral of Teja Singh, then died and his estate was also mutated equally in the names of Bachan Singh and Nand Kaur. Nand Kaur then made an application for partition of the property. Thereupon the plaintiff brought a suit for declaration to the effect that he was the sole owner in possession of the land in dispute and that the defendant had no right whatsoever and that the entries in the revenue records had been wrongly made and Nand Kaur was not entitled to get partition of the land. On both these points the trial Court and the first appellate Court have held in favour of the widow. -

3. According to para. 16 of Rattigan's Digest of Customary Law which contains the general custom in regard to these cases in the presence of a male descendant of the deceased his widow is ordinarily entitled to suitable maintenance whether such descendant is the son of the widow or by another wife. But in Ludhiana there is a special custom in regard to the rights of sonless widows which is contained in answer to question No. 32 of the Riwaj-i-am of the district. There it is stated that a widow with sons take no share, hut a sonless widow in the presence of sons takes a share equal to that of each of the sons though she is sometimes content with less. This shows that if the widow is sonless, she has the right to succeed to her husband's estate equally with the son or sons. In my opinion, both the Courts below have rightly held that the widow has the right to succeed to her husband's estate along with the son by another wife.

4. The question arises as to the estate of Waryam Singh. The right of the widow is to get maintenance from her husband's estate. No doubt if the husband had been alive when, Waryam Singh died and he had inherited his estate, then his own estate plus what he had got from Waryam Singh would have been available to both the son and the widow for respective purposes of inheritance and maintenance. On the death of Teja Singh in such circumstances the widow would have been entitled to maintenance out of the whole estate comprising his own estate plus that which he had obtained from Waryam Singh. But the question arises whether the widow would have a similar right if the estate of a collateral becomes available after the death of her husband. As I have said, the right of a widow is really one of maintenance as she has only a life estate and she is only entitled to that maintenance from out of the estate of her husband. The right to succeed to the collateral is because of relationship with the common ancestor and in a case such as this the right to succeed vests in the son because of his descent from the common ancestor and not through his own father. The whole theory of succession in custom is based on this principle, i.e., descent from the common ancestor. In cases such as this, in my opinion, a widow has not the right to get any share in the estate coming from a collateral because she has no right to get any maintenance from such an estate.

5. It is then submitted that a widow gets it as representing her husband, but in cases of collateral succession I have never come across a case nor has any been cited where a widow has been held to be a representative of her husband along with the sons. As I have said, the son inherits because of his descent from a common ancestor and not merely because he is the son of the father. In these circumstances, I am of the opinion that a widow has no right to succeed equally with a son in regard to the estate of a collateral. I, therefore, hold that the widow was not entitled in this case to get any share out of the estate of Waryam Singh.

6. In the result this appeal succeeds onlywith regard to the share of Waryam Singh andfails in regard to the estate of Teja Singh. Theappeal is partially allowed and the decree ofthe Courts below modified. As neither ofthe parties has wholly succeeded the partieswill bear their own costs throughout.


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