Naginder Singh And Others v. Tek Singh And Others

Mahajan, J.:— In order to understand the facts of this case it is necessary to set down a short pedigree-table—

On the 8th of November 1915 Ramditta died and was succeeded to by his son Ajaib Singh who died on the 16th of November 1923. On his death his mother Mst. Bholi succeeded to his estate. On the 16th of January, 1924 Mst. Bholi gifted the entire land which she had inherited from her son to her daughter Mst. Bhajni. This gift was challenged by the reversioner of her husband and a decree was obtained on the 3rd of August, 1925 declaring that the gift was invalid and would not affect their reversionary rights. The judgment of the trial Court is Exhibit P. 2. On appeal this decision was affirmed. The appellate decision is dated the 11th of December 1925 and is Exhibit P. 3. It may be mentioned here that Mst. Bholi retained one house out of the son's entire estate of the value of about Rs. 300/-. In the year 1944 Mst. Bhajni died and the land which was gifted in her favour and of which she had taken possession was mutated along with the house in favour of Tek Singh defendant. It will be of interest to note that the house which she had retained was sold by her in the vear 1938 to defendants Nos. 5 to 7 for a sum of Rs. 300/-. Before her death she had also mortgaged a part of the land out of the land in dispute to defendants 2 and 3. Both these alienations of 1938 and 1942 were successfully challenged by the reversioner and it was held that after the death of Ms. Bholi they would not be binding on their reversionary rights. As I have already said, on the death of Mst. Bhajni the entire estate of Ram Ditta was mutated in the name of Tek Singh. Defendant No. 4 had taken the land in dispute in exchange from Tek Singh defendant No. 1 who was a minor.

2. The present suit was filed by Naginder Singh and Inder Singh descendants of the reversioners who had challenged the previous alienations by Mst. Bholi for possession of the estate of Ajaib Singh. This suit was decreed by the trial court on 23rd of March, 1950. It was held that the previous judgment operated as res judicata and the defendant Tek Singh was bound by it. The suit was held to be within time. It was also held that the plaintiffs were seventh degree collaterals of Ajaib Singh. The exchange was held not to be binding. On appeal the learned District Judge by his judgment dated the 22nd of February, 1952, upset the decision of the trial Court and held that the suit was barred by time and that the previous decision was not res judicata and in any case it did not bind Tek Singh as he was not claiming through Mst. Bhajni who was alone party to that decision. He was also of the view that the succession to the estate of Ajaib Singh was governed by the rule of Hindu Law and as such the sister of Ajaib Singh was a preferential heir than his seventh degree collaterals. Dissatisfied with this decision the plaintiffs have come up in second appeal to this Court.

3. It may be mentioned here that it is not disputed that the parties are Jats and are governed by custom. The observations of the learned District Judge to the contrary are not correct and the learned counsel for the respondent has not even tried to justify them. Moreover, in view of the previous litigation they have no substance at all.

4. The sole contention raised by Mr. Sodhi, the learned counsel for the appellants, is that in the previous decision, Exhibit P. 3, it was settled inter partes that Mst. Bhajni was not an heir to Ajaib Singh in preference to his collaterals and that, that decision operates as res-judicata and accordingly the plaintiffs are entitled to succed to the property in dispute. In any case, the counsel urges that the 1925 suit would have failed if the sister was the next heir to Ajaib Singh inasmuch as the gift in her favour wold amount to acceleration of succession and could not have been set aside. On the other hand. Mr. Mital, learned counsel for the respondent— sister's son Tek Singh—contends that Exhibit P. 3 did not decide in fact that Mst. Bhajni was not a better heir than the collaterals of Ajaib Singh. Moreover, according to the learned counsel it was not necessary to decide this point, and in any case, he contends, there was no valid surrender inasmuch as while gifting the property to her daughter Mst. Bhajni, Mst. Bholi had retained part of the estate, namely, a house. The whole estate was not parted with and therefore there was no valid, surrender and consequently the gift would be invalid. It is well settled that a widow under the customary law has no power to make a gift.

5. After hearing the learned counsel for the parties we are of the view that this appeal must succeed. In the previous decision (Exhibit P. 3) in was held—

“The riwaj-i-am of the Ludhiana District is against the succession of sisters, and the Answer to Question No. 52 of the Customary Law compiled by Mr. Dunnette shows that sisters and their sons do not succeed in the presence of any collateral's who can prove their relationship to the deceased. In the face of this entry in the riwaj-i-am, it was the duty of the appellant to prove that according to custom she was a better heir than the plaintiff, but she has failed to do so”.

This decision did settle that qua the property in dispute Mst. Bhajni the sister of the last male holder was not an heir in the presence of his collaterals. This decision would operate res-judicata and it cannot now be held that she is a better heir. In any case, the previous suit would have failed if Mst. Bhajni was the next heir. The gift in her favour would be valid as it did amount to acceleration of succession. Thus the question whether Mst. Bhajni was the next heir in preference to the collaterals was directly and substantially in dispute. Under section 11 of the Code of Civil Procedure any matter which might and ought to have been made a ground of defence is deemed to have been directly and substantially in issue. As the previous suit was decreed, it means that her claim to succeed in preference to the collaterals of her brother was negatived. Thus in the present dispute which is between her or persons claiming through her on one hand and those very collaterals on the other the former decision would operate as res-judicata. Accordingly it has to be held that she is not an heir to the estate of her brother.

6. The other argument of Mr. Mittal that there was no acceleration of succession because part of the estate was retained by Mst. Bholi cannot be accepted. It is a settled proposition of law that a surrender will not become invalid merely because a very small part of the estate is not parted with. In this connection reference may be made to the decision of their Lordships of the Supreme Court reported as Gopal Singh v. Ujagar Singh . 1955 1 S.C.R 86., in the case before the Supreme Court the widow had intentionally retained a residential house but had parted with the entire property of her husband to the next heir. The argument that the surrender was partial and therefore invalid was negatived and it was held that the same was valid. The instant case does not admit of any distinction.

7. Belore concluding this judgment it is necessary to point out an error committed by the learned District Judge in his judgment, wherein he has held that a sister's son does not claim through his mother, but has an independent right like any other reversioner of the last male holder. In his judgment, he observes as under:—

“If Tek Singh could claim to inherit the property of Ajaib Singh, he claimed not as the son of Mst. Bhajni, but as the sister's son of the last male holder. When a male proprietor dies and his property is inherited by his widow, at the death of the widow when a collateral claims the property, he does not claim the same as the heir of the widow, but as the heir of the last male holder. It is the relationship with the last male holder that gives the right to a reversioner or the heir.”

8. It is too late in the day to hold that a daughter's son claims independently of his mother. It is a settled proposition of law that a daughter's son or a sister's son can only succeed to property to which his mother could have succeeded. In this connection reference may be made to the Privy Council decision in Balgobind v. Badri Prasad . A.I.R 1945 All. 413., and a decision of the Lahore High Court reported as Khazir Hayat v. Allah Yar Shah . I.L.R 7 Lah. 4.. The principle on which one reversioner is said to have a claim independently of the other reversioner is based on a totally different footing. The basis of that principle is that each reversioner is deemed to have a residuary interest in the property acquired by the common ancestor which has come down by inheritance and is deemed as ancestral property. It is only qua this type of property that it has been held that one reversioner does not claim through another, but derives his right from the common ancestor and thus can challenge an alienation of such property but this doctrine is not applicable to the case of a daughter's son or of a sister's son as already indicated above. Mr. Mital also could not seriously Support these observations though at one stage he did try to do so. No authority has been cited for the proposition that a sister's or daughter's son stand on the same footing as a reversioner, of the last male holder.

9. For the reasons given above, this appeal succeeds. The judgment and decree of the District Judge is set aside and that of the trial Court is restored. In the circumstances of the case, the parties will bear their own costs throughout.

Dulat, J.:—I agree.

Appeal allowed.