1. This is a plaintiff's appeal against a judgment and decree of Mr. Gurcharan Singh, Senior Subordinate Judge, Ludhiana, dated the 1st October 1948, dismissing the plaintiff's suit lot partition by putting the plaintiff into separate possession.
2. A reference to the pedigree-table which is as follows will help in understanding the case :
| | |
Ramsaran Das Tikam Das Sarju Das
(died issueless) |
Mathra Das Ramji Das
alias Manohar Das alias Ram Ratan Das,
Hem Raj (plaintiff).
3. Sarju Das, it is alleged in the plaint, had separated and other persons shown in the pedigree-table remained joint as members of the joint Hindu family. On the 1st October 1908 Ramsaran Das made a Will Ex. D. 1 which is printed at p. 102 by which he made his two nephews, sons of Tikam Das, as 'chelas' and bequeathed to them the whole of his estate in equal shares and gave certain other directions. In 1925 Ranji Das alias Ram Ratan Das died leaving a son Hem Raj, plaintiff. In 1929 Ramsaran Das died, Hem Raj at that time being a minor was brought up by his uncle Mathra Das 'alias' Manohar Das.
4. A mutation of the agricultural land was entered in the name of Mathra Das alias Manohar Das 'chela' of Ramsaran Das Fakir Bairagi. Opposition to the mutation in the name of Mathra Das came from certain citizens who claimed that the property was 'wakf' and should be entered in the name of the Thakardwara, taut in spite of this opposition the mutation was effected in the name of Mathra Das alone. It appears that he did make statements at that time saying that mutation be entered in the name of his nephew Hem Raj and himself in equal shares but the mutation was entered only in the name of Mathra Das, the defendant.
5. On the 10th November 1945 Hem Raj brought a suit for partition of the property alleging that there was a joint Hindu family and he also relied on the Will and also claimed that on the death of Ramsaran Das the defendant Mathra Das and hewere the heirs according to Hindu law and that rent deeds of the property in dispute were executed in the names of both these persons from the year 1910 to the year 1929. The property was claimed by the plaintiff on these rather contradictory allegations. The defendant admitted that the properties marked 'A', 'B' and 'D' were the joint properties of the parties as they belonged to Tikam Das but the defendant claimed properties (C) and (E) to (K) to be his exclusive property and he also claimed to succeed to Rainsaran Das by virtue of being the 'chela' of the deceased. He denied the joint Hindu family. As to the Will he pleaded that as Ramji Das had died during the lifetime of the testator, he alone was therefore entitled under the Will and not the plaintiff.
6. The learned Senior Subordinate Judge framed the following four issues :
1. Whether the property in dispute is joint Hindu family property, if any, of the plaintiff with the defendant?
2. If issue No. 1 is not proved, whether the plaintiff is entitled to 1/2 share in the suit property under the Will marked Ex. D. 1?
3. Whether the defendant is the sole heir of Ram-saran Das testator?
4. To what relief and to what extent is the plaintiff entitled?
He held that there was no joint Hindu family, that the plaintiff was not entitled to a half share under the Will, Ex. D. 1, as it was governed by Section 106 of the Succession Act and that the defendant was the sole heir of Rainsaran Das, the testator, and the plaintiff was not therefore entitled to any part of the estate. The plaintiff has come up in appeal to this Court.
7. One of the devisees Ramji Das having died during the lifetime of the testator, the question to be decided is what would happen to that share of the property which was devised to him under Will Ex. D. 1. The testator had stated in the Will -
'On my death both my aforesaid Cheias shall be owners and possessors in equal shares of my property of every description, movable and immovable, situate at.....'
The effect of this Will, as I see it, is that if it had taken effect, that is, if the devisees Were to take under the Will, each one of them would take hall share of the property of the testator, but by the death of Ramji Das, in my opinion, the doctrine of lapse would apply which is that a devise or legacy lapses by the death of the devisee or legatee before the testator, or even before the date of the Will : see 'Elliott T. Davenport, 1 P. W. 63 and 'Maybank Y. Brooks', 1 Bro C C 84. This is the statement of the law as given in Theobald on Wills at p. 662. In other words, if a devisee or legatee dies during the lifetime of the testator, the Will to the extent of the devise left to such devisee lapses and there is intestacy to that extent. In the Indian Succession Act in Section 107 it is stated -
'If a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property.'
It has been held in several cases that if the devise fails as to one of the devisees from its being originally void, or subsequently revoked, or by reason of the decease of the devisee in the testator's lifetime there will be a partial intestacy -- to the extent of the share which would have gone to Ramji Das, if he had been alive. This statement of the law is supported by many cases which are collect-ed together at p. 484 of Basu's Indian Succession Act.
8. The learned Senior Subordinate Judge tookthe view that in the present case Section 106 of the Indian Succession Act would apply and, therefore, the whole of the estate would go to the other devisee, i.e., Mathra Das. In my opinion, the learned Judge was in error on this point. In the first place, as I have shown, the Will is differently worded, and on its true construction both the devisees were to take half and half and on the death of Ramji Das the doctrine of lapse would apply; in other words Section 107 of Indian Succession Act would ba applicable and not Section 106, of that Act.
9. Mr. Gosain has relied on a judgment of their Lordships of the Privy Council in 'Jogeshwar Naralndeo v. Ram Chandra Dutt, 23 Cal 670, where Lord Watson observed at p. 678 :
'In his argument for the appellant, Mr Branson raised a new point, which is not indicated in the plaint, and was not submitted to either of the Courts below. He maintained, upon the authority of 'Vydinada v. Nagammal', 11 Mad 258, that, by the terms of the Will, the Rani and the appellant became, in the sense of English law, joint-tenants of the four annas share of Silda, and not tenants in common; and that her alienation of her share before it was served, and without the consent of the other joint tenant, was ineffectual. The circumstances of that case appear to be on all fours with the circumstances which occur here; and, if well decided, it would be a precedent exactly in point. There are two substantial reasons why it ought not to be followed as an authority. In the first place, it appears to their Lordships that the learned Judges of the High Court of Madras were not justified in importing into the construction of a Hindu will an extremely technical rule of English conveyancing. The principle of joint tenancy appears to be unknown to Hindu Law, except in the case of coparcenary between the members of an undivided family. In the second place, the learned Judges misapprehended the law of England, because it is clear, according to that law, that a conveyance, or an agreement to convey his or her personal Interest by one of the Joint tenants, operates as a severance.'
Which means that an estate taken under the Will is a tenancy in common and not in joint tenancy. In 'MT. Jio v. Mt. Rukman', 8 Lah 219, a Division Bench of the Lahore High Court followed the rule laid down in the Privy Council case and also referred to other cases and said as follows :
'These cases, in substance, lay down that when adeed of gift or a Will is in favour of two personswithout any definite specification of the extentof their shares, they take as tenants-in-commonand not as joint owners. In fact the case of'Kishori Dubain v. Mundra Dubain', 33All 665, clearly lays down that the principle ofjoint tenancy is unknown to Hindu Law exceptin connection with the Joint Hindu family.'
10. In a more recent case 'Shiv Devi v. Nau-haria Ram', AIR 1940 Lah 318, ft was held thatif a testator makes a bequest in favour of his wifeand daughters of his property in equal shares inthe absence of any clear exclusion and indicationas to who is to take in case a legatee should die inhis lifetime, the bequest to the wife on her deathduring the lifetime of the testator lapses.
11. Following these authorities I am of the opinion that the proper way to construe the Will in the present case is that the two devisees were not given as joint tenants. As Ramji Das died during the lifetime of the testator, there is intestacy as, to his share as the devise had lapsed and there-fore that portion of the property which was covered by the will and which would have gone to Ramji Das, if he had been alive, would now be available to the heirs of Ramsaran Das and would have to be distributed in accordance with the rule of succession under Hindu Law.
12. The question then arises what is the law applicable in cases of succession under the Hindu Law as applied to the Punjab. Counsel for the respondent relies on the rule as given in Mulla's Hindu Law where the order of succession is given in Section 43, according to which a brother succeeds in preference to a brother's son. But in the Punjab it has been held that the custom recognising the right of representation prevails ail over the province to such an extent that it may be considered to be a part of the general common law of the province. This was held in 'Kanhya Lal v. Kish-na', 39 Pun RE 1884, in the case of Aggarwal Banias of Gurgaon. Amongst high caste Hindus of the Punjab, right of representation in collateral succes-sion has generally been recognised.
13. In 'Devi Suhai v. Mangal Sein', 81 Pun Re 1874 (FB), the parties were Banias of the Am-bala District and custom of representation was established by evidence. At page 247 Melvill, J., said:
'We accept this finding, which besides being supported by the evidence of competent witnesses is to accordance with the law of inheritance prevailing very generally in the Punjab both among Hindus and Mohammadans.'
14. Sir Meredith Plowden, j. in 'Ajudhia Parshad v. Dwarka Das', 71 Pun Re 1882, a case of Mahajans of Kamal, held that a nephew succeeds along with his uncles by right of representation to the estate in the case of collateral succession. At page 200 the learned Judge said :
'There have been many instances in this Court within the recollection of the Judges, in which the right of representation has been admitted without dispute to extend to sons of a collateral relative who would have succeeded if he had survived, and the course of defence taken in the Jagadhri case above referred to, a case also between Agarwal bunniahs, was exactly in accordance with the experience of this Court.'
The next case on this point is 'Kanhya Lal v. Kishna', 39 Pun Re, 1884, to which I have made reference above. This was also a case of Agarwal Banias but of Gurgaon District. There are two Cases of Khatris of Lahore and Amritsar, namely 'Abnashi Ram v. Mul Chand', 44 Pun Re 1884and Shib DIYAL v. mATHRA DAS', 61 Pun Re 1916, in which the right of representation was held proved.
15. In 'Pitambar v. Ganesha Ram', 148 Pun Re 1890, the same rule was found to exist. The Observations of Lal Chand. J. in ' Mehtab-Ud-Din v. Abdullah', 140 Pun Re 1908, are of particular Importance. That was a case of Shamsi Khojas of Lahore and at p. 647 the learned Judge said:
'Moreover the custom alleged by the plaintiffs is established by decisions of this Court to prevail generally in the province and is in no manner rare or exceptional.' The learned Judge also said at p. 644 : 'The usage relating to representation in case of collateral succession is opposed even to the provisions of Hindu law, but it is found to prevail generally in this province without distinction of caste, creed and calling.'
16. In 'Kahni Ram v. Molar', AIR 1937 Lah 710, Tek Chand, J. held that though the Mitak-shara does not recognise the right of representation to succession amongst collateral heirs, yet amongst the Aggarwal Mahajans of Rohtak Dis-trict, the rule of law has been modified by custom and such right is recognised by custom, and the nephew is allowed to succeed along with the uncle to the property of a deceased soniess uncle. The same learned Judge sitting with Beckett, J. in 'Diwan CHAND v. bELI RAM', ILR (1941) Lab 620, held that the right of representation prevails amongst Khatris of Rawalpindi District.
17. In 'Mangta v. Mangat', AIR 1942 Lah 27, Tek Chand, J. again held that the strict Mitak-shara rule in matters of succession is not followed among high caste Hindu tribes of the districts of Rohtak, Kamal and Gurgeon.
18. Against the rule of representation, there to a case of 'Mt. Lpramdo v. Mt. Nihal Devi, 6 Lah 124. But this case is distinguishable as there was no question of collateral succession. The only point to be decided in that case was whether a son of a pre-deceased daughter would succeed equally with the surviving daughters. No reference is there made to any other case excepting the observations of Lal Chand, J. in 'Mehtab-Ud-Din v. Abdullah', 140 Pun Re 1908, and I am very doubtful about the correctness of the decision In that judgment because it is contrary to the general rule which prevails in the Punjab which has been accepted in such a large number of cases. Reference was also made by Mr. Wadehra to 'Murli Dhar v. Amar Nath', 42 Pun L R 348, where in the headnote it is given that under the Hindu Law the brother of the deceased excludes from inheritance deceased's brother's son. There the dispute was between an adopted son and one brother and the son and grandson of another brother. The question whether there was any right of representation was never raised. Moreover, it was a case from Delhi and is not of much assistance to us.
19. Mr. Wadehra took a further objection and that is that in all these cases there was a specific plea taken that the Hindu Law had by custom been varied in the Punjab in regard to representation. But, when a custom has been repeatedly brought to the notice of a Court of a country and has been accepted by them, the Courts may hold that custom to have been introduced into the law without the necessity of proof in each individual case. This was the view taken by the Privy Council in 'Gangadhara Rama Rao v. Rajah Of Pitapur', 41 Mad 778, and in 'E. Amissah v. E. Krabah', 162 Ind Gas 461. In the latter case Lord Maugham said at p. 462 : 'Material custom must be proved in the first instance by calling witnesses acquainted with them until the particular customs have, by frequent proof in the Courts become so notorious that the Courts take Judicial notice of them.' This rule was followed by a Division Bench in the Lahore High Court in 'Tara Singh v. Suraj Kaur', ILR (1941) Lah 546. and by this Count in 'Sukhwant Kaur v. S. Balwant Singh', AIR 1951 Simla 242.
20. I am therefore of the opinion that the plaintiff would be entitled to succeed to half the property which was bequeathed to Ramji Das but which fell into the residue because of the doctrine of lapse, and in regard to this property the rights of Mathra Das and Hem Raj are equal.
21. It is finally to be decided as to which property is to be divided amongst the contestantsOn the 11th June 1947, Mr. Ram Krishan Diwan,Advocate for Hem Raj, made a statement -
'My suit now relates only to the landed propertysituate in village Dholewal, and the propertysituate to Ludhiana Town, as mentioned inpara 4 (Rey) of the plaint.'
To this the reply of the defendant was that the property mentioned belonged to Ramsaran Das and was covered by the Will. On the 19th August 1947 Hem Raj made an application for amendment say-Ing that by a mistake the suit was confined to clause (Rey) of the property given in para 4 and that really he wanted to claim the whose as was given in his plaint. He supported this by an affidavit, but the learned Senior Subordinate Judge dismissed this on the nth January 1948, because the Advocate for the appellant had not put in an affidavit. In my opinion, it was a mistake pure and simple, and, therefore, the learned Judge was in error in disallowing the amendment at that stage. I would, therefore, allow the case to extend to the whole of the property which was men-tioned in para 4 of the plaint. Counsel for the defendant admitted that properties shown as 'A' ('Alif'), 'B' ('Be') and 'D' ('Dal') belonged to Tikam Das, and, therefore, both the plaintiff and the defendant would be entitled to half and half of these properties. But as these are agricultural lands a civil Court can only give a declaration that the parties will be entitled to it in equal shares. Properties 'F' ('Ze') and I' ('Shin') have been admitted to belong to Mt. Dwarki, the wife of the defendant, and, therefore, the plaintiff can have no claim to them. The rest of the property i.e., 'C' ('Jim'), 'E' (Rey'), 'C' ('Yeh'), 'H' ('Sin'), 'J' ('Suad') and 'K' ('Zuad') belonged to Ramsaran Das and was therefore covered by the Will. The share of the plaintiff in these properties which are covered by the Will would be one quarter, as half would go to the defendant under the Will and the rest would be equally divisible between the plaintiff and the defendant by right of succession. Property 'C' ('Jim') is agricultural land. In this also the share of the plaintiff would be one quarter and a civil Court can only give a decree declaring the shares of the two parties, i. e., the plaintiff one quarter and the defendant three-quarters.
22. In the result, this appeal is allowed to the extent indicated above and the decree would be modified accordingly. In the circumstances of this case, I leave the parties to bear their own costs in this Court and the Court below.
23. I agree.