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Manbhari and ors. Vs. Maktul and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 107 of 1949
Judge
Reported inAIR1953P& H268
ActsSuits Valuation Act, 1887 - Sections 11
AppellantManbhari and ors.
RespondentMaktul and anr.
Appellant Advocate Shamair Chand, Adv.
Respondent Advocate F.C. Mital, Adv.
DispositionAppeal allowed
Cases ReferredMuhammad Hussain Khan v. Kishva Nandan
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any 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. - the learned judge said that 'the male collaterals of the original owner have a sort of residuary right in the property,a right of reversion in case of failure of the daughter's line, and..........over that estate.12. in an unreported case, regular second appeal no. 155e of 1947, this bench held property inherited by a grandson from his maternal grandfather to be non-ancestral.13. after considering all these cases i am of the opinion that this question did arise before the full bench inasmuch as it had to be decided there whether the provisions of punjab act 1 of 1920 were applicable to alienations by a female of property which she had inherited from her father, because the period of limitation in the case of ancestral and non-ancestral property would be different. i am unable to hold that the point did not arise and therefore the decision is obiter. the estate which had devolved upon sarup on the death of his maternal grandfather shahzada was therefore non-ancestral 'qua' his.....
Judgment:

Kapur, J.

1. This is a defendants' appeal against a judgment and decree of Mr. Gian Das Jain, Subordinate Judge 1st Class, Panipat, dated 22-3-1948 decreeing the plaintiff's suit in regard to a portion of his claim.

2. In order to understand the case it is necessary to give the following pedigree-table:

_______________________________________

| |

RAM DHAN RUPO (Sister)

|

Moti

__________________________________________|______________

| | | |

Mst. Indo=Shahzada Mst. Rajo Kanhaya Shibbi

=Mst. Singharo | (deasased)

Sarup (Vendor) Wife Singber

|

Makrul (Plaintiff

Sarup defendant No. 8 by a deed of mortgage dated 22-3-1927 mortgaged the land in dispute to Shiv Lal 'alias' Shibba for Rs. 5,000/-. Mutation of this was sanctioned on 11-9-1927. By a registered sale deed, dated 12-4-1929 Sarup soldthe land and half share in the house and an enclosure to the same Shiv Lal for Rs. 11,000/-and mutation was sanctioned on 1-5-1929. Shibba died and his legal representatives are defendants No. 1 to 7. On 7-5-1946 Maktul, a minor son of Sarup, brought a suit for declaration that the mortgage and the sale by Sarup were without consideration and necessity and would not therefore bind his reversionary rights. He alleged that he was governed by custom, that the property was ancestral and therefore he was entitled to challenge the sale.

The ancestral nature of the land was contested by defendants Nos. 1 to 7 and it was also pleaded that the suit was barred by time and the alienations were for consideration and legal necessity. There was no dispute between the parties as to the alienor's family being governed by custom. The trial Judge, Mr. Sewa Singh, by a judgment dated 23-4-1947 held that the land in dispute was ancestral 'qua' the plaintiff because the land belonged to Moti and Rajo was to be treated as a daughter of the penultimate holder and not sister of the last holder. He also relied on a Full Bench judgment of the Lahore High Court, --'Mt. Attar Kaur v. Nikoo', AIR 1924 Lah 538 (A) and held that the other property was also ancestral 'qua' the plaintiff, and that the plaintiff had a 'locus standi' to sue. He also held that the sale was without legal necessity but he could not challenge the mortgage as he was not born at the time. He therefore decreed the suit in regard to the sale but dismissed it in regard to the mortgage.

3. An appeal was taken to the District Judge because the value of the suit was less than Rs. 5,000/-, An objection was there taken that Ram Kala, one of the defendants, had died during the pendency of the suit and therefore the suit had abated. The learned District Judge did not agree with this contention but he set aside the decree of the trial Court and remanded the case because the legal representatives of Ram Kala had been brought on the record in the appeal.

4. On remand the case came before Mr. Gian Das Jain who passed an identical decree as that of his predecessor on 22-3-1948. An appeal was then taken to the District Judge, Karnal, who held that the appeal lay to the High Court as the value of the suit was more than Rs. 5,000/-. The memorandum of appeal was then returned and was filed in this Court on 1-6-1949.

5. A preliminary objection was taken by Mr. Faqir Chand Mital that the appeal was barred by time as it was filed more than 90 days after the date of the decree passed by Mr. Gian Das Jain. The facts of the case are as follows. In the plaint the value of the suit is given as Rs. 4,963/7/-, Rs. 3,000/- being the value of the house property and Rs. 1.983/7/-being the valuation in regard to the land at thirty times the land revenue. In their written statement the defendants took objection to the valuation of the property and in his replication the plaintiff stated that the value was correctly given in the plaint. A commissioner was then appointed and both parties agreed that the value for purposes of jurisdiction was Rs. 4,963/7/-. After the decree was first passed by Mr. Sewa Singh an appeal was taken to the District Judge, but no objection of any kind was taken there as to the valuation of the suit. The suit was againpartly decreed by Mr. Gian Das Jain, and it was only when appeal was taken to the District Judge that an objection was taken on 24-5-1949. The original valuation was fixed by the plaintiff himself and even when objection was taken to the valuation he reiterated the same valuation and it was ultimately decided by the Court that the value was less than Rs. 5,000/-. In those circumstances, it cannot be held that the objection taken by the plaintiff to the competency of the appeal to the District Judge was valid, and even if it was, in my opinion there is sufficient cause for extension of time under Section 5 and for exclusion of the time taken in prosecuting the appeal in the Court of the District Judge under Section 14, Limitation Act.

6. It was then submitted that the order of the District Judge was passed on 24-5-1949 and the appellants should not be allowed time from 24-5-1949 to the 1st June 1949. The affidavit of one of the appellants, however, shows that although the order was dictated by the District Judge on 24-5-1949 the papers were not returned to him till 30-5-1949 for reasons given in paragraphs. 11 and 12 of the affidavit. The appellant and Mr. Mahabir Parshad, an Advocate, started on 30th from Karnal and reached Simla on 31st when Mr. Shamair Chand was engaged, but 31st was a public holiday and therefore the appeal could not be filed till the 1st June. In these circumstances it cannot be said that the appellant has in any way been remiss and therefore I would apply Section 5 to this period and allow extension of time up to 1-6-1949.

7. I have held that the appeal was rightly filed in the Court of the District Judge because it was entertainable by him, the value of the suit being less than Rs. 5,000/-. As the appeal is now in this Court we decided to hear it and not remand it for decision by the District Judge.

8. The next question to be decided is whether the property is ancestral in the hands of Sarup so that ifs alienation can be challenged by Maktul, Sarup's son. The property was inherited by Sarup and the last holder was Shahzada, his mother's brother. The learned Judge is therefore wrong in saying that the property descended to Sarup from his maternal grandfather Moti. The correct way of putting it is that it was inherited by him from his maternal uncle Shahzada. The respondents' counsel has submitted that that will not make any difference, because in the hands of Shahzada the property was ancestral. I would therefore proceed on the premises that the property in dispute was ancestral in the hands of Shahzada.

9. Respondents' counsel relied on -- 'Lehna v. Mt. Thakri', 32 Pun Re 1895 (FB) (B), where by a majority of two to one it was held that property which is inherited from a maternal grandfather is ancestral in the hands of the grandson (daughter's son). Chatterji, J., who was the dissenting Judge, held, however, that property in the hands of a male owner can be described as ancestral if it is found that it has descended to him from a male ancestor, and, in the case of a claim by collaterals, from a male ancestor common to him and the claimants. Four reasons were given by the learned Judge why he was of that opinion, and the fourth reason, which is printed at p. 133 of the report is really important. The learned Judge said that 'the male collaterals of the original owner have a sort of residuary right in the property,a right of reversion in case of failure of the daughter's line, and this gives them the right to object. But to them the property may be ancestral in the sense of having descended from a common male ancestor x x x x, The present suit is not a contest between the daughter's sons and the members of her father's tribe, but among the daughter's sons themselves, and the illustration does not appear to me to furnish a solution of our difficulty. I would further observe in this connection that the tribes of the daughter's sons and of their maternal grandfather would never assimilate among Hindus, but would continue as distinct bodies, no matter how many generations might elapse from the settlement of the former in the midst of the latter. There is also no question that among the daughter's descendants, the property derived through her would acquire the character of ancestral property as soon as it has passed through a male holder.'

This question was considered by a Full Bench of five Judges of the Lahore High Court presided over by Sir Shadi Lal, C. J., in 'AIR 1924 Lah 538 (FB) (A)', and it was held that property, such as this, would be ancestral in the hands of a daughter's son. The learned Chief Justice at p. 538 observed:

'Now, I do not propose to examine the arguments which may be urged in support of the respective contentions, and I concede that there is a good deal to be said in favour of the proposition that, unless the land came to a person by descent from a lineal male ancestor in the male line, it should not be treated as ancestral.'

and the case was decided on the doctrine of 'stare decisis'. This remained as the law of this province till the matter was again .considered by another Full Bench of this Court presided over by Ram Lall, C. J., in -- Narotam Chand v, Mst. Durga Devi', AIR 1949 EP 109 (FB) (C). Here the leading judgment was given by Mahajan, J., who held that the property coming from a maternal grandfather into the hands of a grandson is not ancestral.

10. Mr. Faqir Chand Mital, who appeared for the respondents, submitted that this question did not directly arise & therefore the decision of the Full Bench, was, on this point, really obiter, but I am unable to agree with this submission. At p. 110 Mahajan, J., said as follows: 'The first question is whether Act (1) of 1920 (Punjab Limitation (Custom) Act) governs suits brought by female heirs or other cognate relations to challenge alienations made by a widow who is in possession of the property of her husband and which had descended to him from his ancestors. The other question is whether the property of a maternal grandfather in the hands of the grandson can be treated ancestral 'qua' his son, and can be regarded as such while it is in the hands of the daughter, in other words, whether any property in the hands of a female heir can be regarded as ancestral immovable property within the meaning of the term as usually understood in Customary Law.' After referring to Articles 1 and 2 of Act 1 of 1920, the learned Judge observed at p. 111 as follows:

'In order to bring a suit within the ambit of the Act it is, therefore, necessary that it must relate to an alienation of ancestral immovableproperty which alienation will not be bindingon the plaintiff according to custom x xx x in the case of a female alienorafter her death or forfeiture of her life interest. The question for determination is themeaning of the phrase 'ancestral immovableproperty' as used in various parts of Act 1of 1920 x x x x and it hasalso to be found whether suits brought byfemale heirs or other cognate relations arewithin the contemplation of the statute x xx x.'

The learned Judge then referred to Article 59 of Rattingan's Digest of Customary Law and said at p. 111 :

'It is obvious that on this definition no property can be regarded as ancestral immovable property once it has gone out of the agnatic group and has descended to a daughter or a daughter's son who under the strict theory of custom are regarded as strangers and are not considered members of a village community.'

Again at p. 113 it was observed by the learnedJudge:

'In view of the rule laid down in these decisionsit becomes essential to define the nature ofthe suits instituted to contest an alienation bya female which would be governed by thephraseology employed in Article 1 of Act 1of 1920, because the article clearly speaks ofa female alienor. The suit before it falls withinthe ambit of the Act must be in respect ofancestral immovable property, and it mustbe grounded on the allegation that thealienation is not binding on the plaintiff under custom.xxx.In other words, the true nature of the suit,described in Act 1 of 1920 and in Act 1 of1900 is the same with this further extensionin Act 1 of 1920 that it applies also to castswhere ancestral immovable property has descended to a widow or a mother or even to adaughter and the same is alienated by her& the control is sought to be exercised by amember of the agnatic group, i.e., by a personwho claims that the property alienated wasancestral 'qua' him and 'qua' the husband,the son or the father of the female alienor.Within the scope of this Article I cannot include a suit by a cognate relation or by adaughter x x x x.'

Reference was them made by the learned Judge to the estate of a female as ruled by their Lordships of the Privy Council in -- 'The Collector of Masulipatam v. Cavaly Vencata Narrainapah', 3 Moo Ind App 529 (PC) (D), which was adopted under the Customary Law in --'Gobinda v. Nandu', AIR 1922 Lah 217 (E). Finally the learned Judge said at p. 119:

'Under custom the term ancestral immovable property has been understood in the sense in which it has been defined in Explanation I to Article 59 of Rattigan's Digest of Customary Law and under all canons of construction of statutes it will not be permissible to resort to the dictionary in preference to this definition. The term has a technical meaning in Hindu Law and any use of the dictionary meaning of the term in construing statutes dealing with Hindu Law subjects will be questionable. The same is the case where a statute regulates limitation for suits under custom.'

The Full Bench therefore approved of the definition given of ancestral property in Explanation 1 to Paragraph 59 of Rattigan's Digest.

11. In --'Atar Singh v. Thakar Singh', 42 Pun Re 1910 (PC) (F), it was held by their Lordships of the Privy Council that unless the lands came 'by descent from a lineal male ancestor in the male line they are not deemed ancestral in Hindu Law'. In a later case --'Muhammad Hussain Khan v. Kishva Nandan', AIR 1937 PC 233 (G), their Lordships referred to 'Atar Singh's case (F)', and said:

'This case, however, related to the property which came from male collaterals, and not from maternal grandfather; and it was governed 'by the custom of the Punjab', but it was not suggested that the custom differed from the Hindu Law on the issue before their Lordships.'

It was held in this case that the estate which was inherited by the grandson from his maternal grandfather could not be ancestral property in which the son of such grandson had an interest jointly with him and therefore the grandson had full power of disposal over that estate.

12. In an unreported case, Regular Second Appeal No. 155E of 1947, this bench held property inherited by a grandson from his maternal grandfather to be non-ancestral.

13. After considering all these cases I am of the opinion that this question did arise before the Full Bench inasmuch as it had to be decided there whether the provisions of Punjab Act 1 of 1920 were applicable to alienations by a female of property which she had inherited from her father, because the period of limitation in the case of ancestral and non-ancestral property would be different. I am unable to hold that the point did not arise and therefore the decision is obiter. The estate which had devolved upon Sarup on the death of his maternal grandfather Shahzada was therefore non-ancestral 'qua' his son Maktul, and Sarup had therefore full power of disposal over that estate. On this finding Maktul cannot challenge the alienations made by his father. I would consequently allow this appeal, set aside the judgment and decree of the trial Court and dismiss the plaintiff's suit. As at the time when the suit was brought the case in 'AIR 1949 EP 109 (FB) (C)' had not been decided, I would leave the parties to bear their own costs in this Court and in the Courts below.

Soni, J.

14. I agree.


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