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Ganga Ram Vs. Ishar Singh and ors. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana
Decided On
Reported inAIR1948P& H43
AppellantGanga Ram
Respondentishar Singh and ors.
Cases ReferredGholam Mahomed v. Mahomed Baksh
Excerpt:
.....order/judgment/decree is 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. - 1892 in which the rule of reverter of donated property to the line of the donor on the donee leaving no lineal heirs was fully explained and which is the leading authority on the subject affords a complete reply to the entire argument contained in the judgments of the two lower courts and clearly shows that a case of reversion is no less a case of inheritance than one of devolution of the property on the personal heirs of the last holder:.....of the person 'who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold' who have been given, by sub-clause 'thirdly' of clause (b) of section 15, punjab pre-emption act, a right to pre-empt the sale.4. the view taken by the two courts below that when land comes to a descendant or a collateral of the donor on its reversion to the line of the donor on the extinction of the donee's line, such descendant or collateral cannot be said to inherit the land is obviously incorrect and not supported by any authority. whether the property devolves on the personal heir of the last holder or reverts to some previous holder or to the heir or heirs of such holder, in either case it must be regarded as a case of inheritance. in the former case it may be.....
Judgment:

Achhru Ram, J.

1. This is a second appeal from the judgment of the learned Senior Subordinate Judge of Jullundur affirming on appeal the decision of the Subordinate Judge of Nawanshahr dismissing the plaintiff's suit for possession of 2 kanals and 12 marlas of land by means of pre-emption.

2. The land in dispute was sold on 13-6-1941 by Gahia defendant 2 to Ishar Singh defendant 1 for a consideration of Rs. 180. The plaintiff sued to pre-empt the sale on the ground that the land had orginally been gifted by his father Natha to Gahia, that the land in the hands of Natha was ancestral qua him, and that on the extinction of Gahia's line it would revert to him as the son of the original donor. Both the Courts below have held that on the extinction of Gahia's line the land in suit will revert to the plaintiff as a son of the donor. They have, however, dismissed the suit on the ground that such right of reversion did not make the plaintiff a person entitled to inherit the land sold on the death, of the vendor within the meaning of Sub-clause 'thirdly' in Clause (b) of Section 15, Punjab Pre-emption Act.

3. After hearing the learned Counsel for the respondent at length I am of the opinion that the judgment of the learned Senior Subordinate Judge cannot be sustained. It having been held that the gift by Natha to Gabia was a revertible gift and that on the extinction, of the donee's line the land gifted must revert to the line of the donor, the plaintiff as the son of the donor is quite obviously a person entitled to inherit the land sold on the death of the vendor. The right of pre-emption has been given by the statute to all persons who might inherit the land on the death of the vendor and not merely to the nearest heir or to the person having an immediate right to succeed. Accordingly where the property sold has come to the vendor by means of a revertible gift, or has devolved upon him from a lineal descendant who acquired it by means of such a gift, all descendants or collaterals of the donor who may possess the right to claim the benefit of the doctrine of reversion must be regarded as falling within the category of the person 'who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold' who have been given, by Sub-clause 'thirdly' of Clause (b) of Section 15, Punjab Pre-emption Act, a right to pre-empt the sale.

4. The view taken by the two Courts below that when land comes to a descendant or a collateral of the donor on its reversion to the line of the donor on the extinction of the donee's line, such descendant or collateral cannot be said to inherit the land is obviously incorrect and not supported by any authority. Whether the property devolves on the personal heir of the last holder or reverts to some previous holder or to the heir or heirs of such holder, in either case it must be regarded as a case of inheritance. In the former case it may be said to be a case of direct inheritance and in the latter it may be regarded as one of inheritance by reversion. For example, if in a tribe governed by custom in matters of succession, a widow dies possessed of property inherited by her from her husband, and also of property which she has herself acquired, the inherited property will revert to her husband's heirs and the self-acquired property will devolve on her personal heirs. I do not think it will be seriously contended by any one that the latter is, but the former is not, a case of inheritance. Indeed, in custom, collateral succession, whether it takes place on the death of a male who is regarded as a full owner, or on the death of a female holding only on a life tenure, is always regarded as a case of reversion, the principle governing such succession being that in the event of the last holder dying without male issue the property reverts to the nearest ancestor who has left male descendants and devolves on such descendants. The learned Senior Subordinate Judge has himself conceded that in inheritance the heir may derive his right to succeed either from the last holder or from the common ancestor. The right to the reversion of donated property is also derived from the ancestor common to the donor and the claimant and I do not see how, on the learned Judge's own reasoning such reversion can be looked upon as something different from inheritance. I must confess my inability to follow the observations of the learned Judge that the reversion of gifted property is not a part of the law of inheritance but pertains to the law of gifts. When the holder, for the time being, of gifted property dies, the question that arises, concerning the devolution of such property, necessarily is who irentitled to inherit the same. If he has left lineal descendants they will of course inherit it. If he has died without leaving such descendants, and, having regard to the nature of the property gifted and the relationship existing between the donor and the donee, the principle of reversions to the line of the donor is applicable, the donor or, failing him, his descendants, or, failing them, his collaterals, provided the property can be traced to an ancestor common to themselves and the donor, will inherit it. I have been unable to discover any warrant, either on principle or in any precedents, for the assumption that the devolution of the property, in the latter case, has to be regarded as something different from inheritance. On the other hand, the following passage in the Pull Bench judgment in 12 Sita Ram v. Raja Ram (1992)12 P.R.1892 in which the rule of reverter of donated property to the line of the donor on the donee leaving no lineal heirs was fully explained and which is the leading authority on the subject affords a complete reply to the entire argument contained in the judgments of the two lower Courts and clearly shows that a case of reversion is no less a case of inheritance than one of devolution of the property on the personal heirs of the last holder:

The general principle which regulates succession to ancestral land in a Punjab village community is fully explained in the Full Bench case in Gholam Mahomed v. Mahomed Baksh (1991) 4 P.R.1891. It is there shown that the property of a man who dies without issue first reverts to the ancestor, and then descends to the male lineal descendants of that ancestor. Thus a brother succeeds a sonless brother, not as a brother, but because the estate reverts to the father and descends again to his sons. So, too, a mother succeeds, not as a mother, but as the widow of the father to whom the estate has ascended. This also explains what is called the principle of representation. Applying this rule to the case of adopted sons, or donees, who have left no lineal heirs, it is clear that the estate would be treated as ascending to the person from whom the adopted son or donee derived his title; if, as would almost invariably be the case, that person left no male lineal descendants, the estate would ascend still higher in his line, until an ancestor was found, who had held the estate, and had left descendants. I think that there can be no doubt that the principle laid down in Gholam Mahomed v. Mahomed Baksh (1991) 4 P.R.1891 is the true principle of succession, and under it the persons called, in the cases before us, the collaterals of the donor or adopter have an undoubted right to succeed in preference to the collaterals of the donee, or adopted son, who have really no right of succession at all.5. The question arising in the present case is by no means res Integra and is fully covered by a judgment of a Division Bench of the Punjab Chief Court in Dat Ram v. shiv Ram (1908) 131 P.R.1908. The learned Senior Subordinate Judge has sought to distinguish it on the ground that in that case the vendor had not got the property by means of gift but had got it by means of succession. It is, in my view, impossible to distinguish the judgment on this ground. The person suing to pre-empt the sale was not a personal heir of the vendor. He claimed a superior right of pre-emption on the ground that on the extinction of the vendor's line the property was to revert to him as representing the line of the original owner. The rule of reversion to the original line applies not only to cases of gifts but also to cases where the property had been allowed, for some special reasons, to devolve on a blood relation not in the ordinary line of inheritance, the custom recognising the right of the line of the original owner to get the property in preference to the heirs of the person on whom it had been allowed to devolve other than his lineal descendants. In so far as the operation of the rule of reversion is concerned, the case of a donee is at par with that of a person in whose favour a diversion of the ancestral estate has otherwise been allowed.

6. For the reasons given above, disagreeing with the view of law taken by the two Courts below, I hold that the plaintiff is a person entitled to inherit the suit land and, therefore, has a right of pre-emption superior to that of the vendee who does not claim such a right. I accordingly allow this appeal and setting aside the judgments and the decrees of the Courts below grant the plaintiff a decree for possession of the suit land by pre-emption subject to depositing by him into Court for payment to the vendee the sum of Rs. 180 after deducting therefrom any sum that may have been already deposited by him, on or before 25-5-1948. The plaintiff shall have his costs of all the Courts. In case of default in making the deposit as aforesaid the suit shall standi dismissed with costs of all the Courts.


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