1. The following pedigree table, which is not in dispute between the parties, would be helpful in disposing of this regular second appeal filed by the plaintiff appellants in a suit for possession by pre-emption of the agricultural land described in the plaint:--
LABH SINGH____________________________|____________________________|||Hazara--Widow Singh Smt. IndiTara Singh (Plaintiff)Gurdial Singh (Plaintiff)(remarried many years ago.)|_______|______________||Wassan SinghMakhan Singh(Died on 27-2-1959)--Widow Smt. Puro (Vendor)
2. Smt. Puro, widow of Makhan Singh, has sold her share in the land described in the plaint which she was owning jointly with the plaintiff-appellants, as may appear from the copy of the latest jamabandi, Exhibit P. 1 for the years 1958-59. The registered sale deed relating to this transaction is Exhibit D. 1 dated 10-12-1963. The plaintiff-appellants, who are the father's brothers of Makhan Singh, the deceased husband of the vendor, have filed this pre-emption suit claiming a superior right on the grounds, firstly that they are collaterals of the last male holder and secondly that they are co-sharers in the holding from which the vendor has sold her share of the land. The Courts below have dismissed the suit on the ground that the case falls in its entirety under Section 15(2) of the Punjab Pre-emption Act. As the plaintiff-appellants are not related to the vendor in the manner specified in that sub-section, they have no right of pre-emption. As the case was found to fall under sub-section (2) in respect of the entire land said by Smt. Puro, sub-section (1) of S. 15 was held to be inapplicable so that the plaintiff-appellants had no right of pre-emption even on the ground of their being co-sharers in the land. In respect of a half share in the land, it is conceded by the appellants that Smt. Puro had succeeded through her husband and that Clause (b) of S. 15(2) would be applicable. As regards the other half share in the land, Smt. Indi, the mother of the deceased, was entitled to succeed along with the deceased's widow to an equal share. Smt. Indi was alive at the time of the sale and there was no question in the devolution of any part of her property having taken place by inheritance, succession or reversion during her lifetime. The question is whether in respect of that other half share in the land, Smt. Puro vendor could be described to have succeeded through her father or brother or husband or son.
3. The last male holder of this land was Makhan Singh who had died on 27-2-1959, that is to say, some years after the coming into force of the Hindu Succession Act 1956. On his death, the land was to devolve on his heirs according to the provisions of that Act and there was no question of custom being the rule of decision in the matter of succession to this land. Sections 8, 9 and 10 read with the Schedule to the Hindu Succession Act which were to govern the succession make no distinction between ancestral or non-ancestral nature of the property or as to where from or how the deceased had got it.
4. At the time of Makhan Singh's death on 27-2-1959, his heirs according to Class I given in the Schedule to the Hindu Succession Act, were his widow Smt. Puro vendor and his mother, Smt. Indi, widow of his father Hazara Singh. The fact that Smt. Indi had remarried many years before the death of her son Makhan Singh did not in any manner break up the relationship between the mother and the son and, notwithstanding the remarriage Smt. Indi continued to be the mother of Makhan Singh. There was no question of Smt. Indi losing the right to succeed to a half share in her son's land in accordance with the provisions of the Hindu Succession Act notwithstanding her remarriage with a stranger some years before her son's death. What she got was an absolute estate with unrestricted powers under the law to transfer, waste, neglect or abandon the land and no reversioner or heir had the right to object to the manner in which she managed or mismanaged the property. The Courts below may seem to have got into an error as they were trying to mix up the customary law with the provisions of the Hindu Succession Act. Even under custom, the remarriage of a widow would not take away her right to succeed to family members others than 1st husband as has been laid down in paragraphs 32 and 33 of the Rattigan's Digest of Customary Law. The plaintiff-appellants' counsel may appear to have introduced confusion into the case by his wrong reliance on these paragraphs of the customary law before the lower appellate Court when he should have confined himself only to the provisions of the Hindu Succession Act which had abrogated the customary law in matters of succession to property after 1956. The reason given by the two Courts below for holding that Smt. Indi had lost her right to succeed to a share in the land on the death of her son was that she was supposed to have succeeded not as the mother of Makhan Singh but as the widow of Hazara Singh. This again was a wrong conception imported from the customary law when the inheritance was to be governed strictly in accordance with the provisions of the Hindu Succession Act. Having dealt with cases under the customary law for generations, we find it difficult to disabuse our minds of some old conceptions which keep haunting our thoughts, even after these have become legally untenable.
5. Widow and mother are both Class I heirs according to the Schedule and Section 8 of the Hindu Succession Act says that on a male Hindu dying intestate, his property shall devolve first upon the heirs being the relatives specified in Class I of the Schedule. Section 9 then says that amongst the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs and that the property of the intestate shall be divided among the heirs in Class I according to the provisions of Section 10 of the Hindu Succession Act. The widow and the mother were to share the property of the deceased in equal shares. The mutation of succession Exhibit P. 4 had actually been attested in favour of these two ladies who were not present at the time of the attestation presumably because they had both been married in other villages. It is not known under what circumstances the village patwar put up another mutation after a few weeks reporting, in the absence of the parties, that Smt. Indi had remarried about 20 years earlier and that she was not entitled in her absence and Smt. Puro was shown in the latter mutation order, Exhibit P. 5, attested on 1-1-1963, to have succeeded to the entire share in the land left by her husband Makhan Singh. The Court below may appear to be of the erroneous opinion that the mutation order, Exhibit P. 4, had been wrongly attested and that the correction brought about in the entries in the records of rights by the later mutation order, Exhibit P. 5, had been rightly made. The Courts below would not have come to these conclusions if they had not made the mistake of mixing up customary law with the provisions of the Hindu Succession Act. It may appear that we have so got used to certain Pet conception and notions under customary law, having dealt with the subject for generations, that we cannot fully appreciate or realise the fact that the provisions of the Hindu Succession Act have completely abrogated any text, rule or interpretation of Hindu Law or any custom or usage in force immediately before the commencement of the said Act. For the removal of any doubts. Section 4(1) of the Hindu Succession Act could be reproduced at this stage:--
'4. Overriding effect of Act--
(1) Save as otherwise expressly provided in this act,--
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions sustained in this Act.
6. Succession never remains in abeyance and takes effect immediately at the exact moment of the death of a person by operation of law. The vesting of the property on the eligible heirs according to the law of inheritance or succession does not depend upon any act of parities or their active or passive attitude towards their rights to succeed. On Makhan Singh's death on 27-2-1959, the succession to the property in favour of his widow and mother took effect automatically even though both these ladies may appear to have been absent from the village. The mutation of succession, Exhibit, P. 4, was therefore, correctly attested by the Revenue Officer on the report of the village Lambardar. It was by the proverbial mischief of the village patwari that this correct order may appear to have been disturbed and interfered with. Smt. Indi was not present even at the time of the attestation of the later mutation order, copy Ext. P.5, though Smt. Puro had got more active and had produced some evidence and copies before the Revenue Officer. This would not however, mean that a half share in Makhan Singh's land had not been correctly mutated in favour of his mother Smt. Indi. The appellants had taken up the plea in the Courts below that Smt. Puro had acquired Smt. Indi's half share in the land in dispute under some gift. They had failed to prove that plea of gift and that was why their suit has been dismissed in its entirety by both the courts below. The exact circumstances under which Smt. Puro succeeded in acquiring Smt. Indi's half share in the land in dispute are not ascertainable from the material on record. The mutation order, Ext. P. 5, recites that Smt. Puro had produced copy of some deed of compromise that she had entered into with her mother-in-law. There could be a hundred and one ways in which the vendor Smt. Puro may have helped herself to that half share which had rightly devolved on Smt. Indi as the mother on the death of her son Makhan Singh but succession through any male relatives by the modes of devolution contemplated in any of the two clauses of Section 15(2) of the Punjab Pre-emption Act was not the course that a half share in the land had taken while coming from Smt. Indi to Smt. Puro. It could be that Smt. Indi's absence of laches or non-assertion of her rights had facilitated Smt. Puro in helping herself to the share of her mother-in-law. In any case, she had no valid claim under the law of inheritance or succession to that half share. In whatever other mode Smt. Puro may have acquired Smt. Indi's half share in the land, it is obvious that this half share had not devolved on Smt. Puro in the modes contemplated by any of the two clauses of Section 15(2) of the Punjab Pre-emption Act. Smt. Puro had no doubt succeeded to half share through her husband and in respect of that half share, the plaintiff-appellants may appear to have no right of pre-emption as sub-section (2) of S. 15 would apply and no right of pre-emption could be claimed under sub-section (1) of that Section. As regards the other half share to which Smt. Indi was entitled to succeed under the provisions of the Hindu Succession Act, the devolution to Smt. Puro was not by succession through their husband or father and in respect of that other half share in the land, the plaintiff-appellants may appear to have a right of pre-emption as co-sharers under Section 15(1) of the Punjab Pre-emption Act. This appeal, therefore, deserves to succeed in respect of that other half shares of the eland to which Smt. Indi had automatically succeeded by operation of law on the death of her son Makhan Singh in accordance with the provisions of the Hindu Succession Act, 1956. This devolution of a half share could not be said to have been held in abeyance by any act of parties. Shri Majithia, the learned counsel for the respondents, had relied upon the Full Bench decision of this Court in Karta Ram v. Om Parkash 1970 Pun LJ 815=(AIR 1971 Punj 423) (FB) but this ruling has no bearing on the facts of the present case. In that case, an intestate succession from a female was under consideration of the Full Bench and Sections 15 and 16 of Hindu Succession Act were found to be applicable. There was, therefore, room for bringing in of the legal fictions contemplated by the two clauses of sub-section (2) of S. 15 of the said Act. No such fictions creep in on the facts of the present case as intestate succession to a Hindu male is to be governed by different provisions of the Hindu Succession Act.
7. The lower appellate Court has found that out of the price of Rs. 10,000/- mentioned in the sale deed, Exhibit D.1 the passing of consideration to the extent of Rs. 9,125/- only had been proved by the vendee-respondents. They were also found entitled to a sum of Rs. 626.12 paise as conveyancing charges. One half of this pre-emption amount would come to Rs. 4875.56 paise. The findings of the lower appellate Court on these issues have not been challenged before me. The plaintiff-appellants should deposit this amount, after adjusting the amount already deposited, on or before 31-1-1973.
8. The appeal is accordingly accepted and the suit filed by the plaintiff-appellants is decreed in respect of a half share of the land sold by Smt. Puro. Parties to bear their own costs. If the pre-emption amount mentioned above is not deposited by the appellants on or before the specified date their suit shall stand dismissed in its entirety with costs throughout.
9. Appeal allowed.