Kanwar Jatinder & Others vs Smt. Shanti Devi & Others on 28 November, 2009

RSA No.4086 of 2006                                    -1-


     IN THE HIGH COURT OF PUNJAB AND HARYANA
                  AT CHANDIGARH

                                 CM No.:9950-51-C of 2009 &
                                 RSA No.4086 of 2006
                                 Decided on :28.11.2009

Kanwar Jatinder & others                          ... Appellants

                           versus

Smt. Shanti Devi & others                         ...Respondents


CORAM : HON'BLE MR. JUSTICE AJAY TEWARI

Present : Mr. Arun Jain, Sr. Advocate
          with Mr. Jaivir S. Chandail, Advocate
          for the appellants.

           Mr. Ashok Bector, Advocate
           for the respondent No.2.

           Mr. M.K.Chouhan, Advocate
           for respondents No.5 & 6.

           Mr. Pritam Saini, Advocate
           for respondents No.3, 4 & 7 to 9.

                               ****

1.Whether Reporters of local newspapers may be allowed to see
  the judgment?
2.To be referred to the reporters or not?
3.Whether the judgment should be reported in the Digest?


AJAY TEWARI, J. (ORAL)

Reply filed to the application under order 41 rule 27

CPC has been taken on record.

This appeal has been filed against the concurrent

judgments of the courts below dismissing the suit of the

appellants that they were entitled to inherit half the property left

behind by Randhir Singh or in the alternative 1/3rd share of the
RSA No.4086 of 2006 -2-

property left behind by Randhir Singh. The main case was based

primarily on an alleged custom among the Rajput Chandel

community of Ram Garh, as per which there was a custom of

Chunda Bandh prevalent in the family. The respondents denied

the plea of any custom and pleaded that the parties were

governed by the Hindu Succession Act. On behalf of the

appellants reliance was placed on Ex. P-9 which was a letter dt.

08.12.1954 from the Deputy Commissioner of Ambala on the

subject of succession of Tika Jagjit Singh of Ram Garh. Learned

counsel has relied upon a mention on the last page of this letter,

as per which as far as ancestors of the present parties are

concerned, the custom of Bhai Bandh and not of Chunda Bandh

was mentioned.

As per learned counsel even if his case that the

custom of Chunda Bandh was prevalent is not accepted yet this

letter clearly shows that at last the custom of Bhai Bandh was

prevalent in the family. Learned counsel for the appellants

further argued that the appellant had sought an amendment to

the plaint but that had also been illegally rejected. As per

learned counsel the case would be covered by sub section (ii) of

Section 5 of Hindu Succession Act, which is to the following

effect:

“Act not to apply to certain properties:

(ii) any estate which descends to a single heir by the

terms of any covenant or agreement entered into by

the Ruler of any Indian State with the Government of
RSA No.4086 of 2006 -3-

India or by the terms of any enactment passed before

the commencement of this Act;”

Both the courts below have negatived this claim and

as mentioned above had held that succession in the family has to

be as per Hindu Succession Act since any alleged custom to the

contrary was abrogated. The following questions have been

proposed:

a) Whether in the facts and circumstances of the

instant case, the approach of the ld. Lower Appellate

Court in dismissing the application seeking

amendment of the plaint can be sustained in law when

the plea sought to be taken was based on the order dt.

26.11.1954, which is already on record as Ex.P-9?

b) Whether in the facts and circumstances of the

instant case the appellants, admittedly belonging to

Rajput Chandel community of Tehsil Naraingarh,

predominanntly an agricultural tribe, they are

governed by custom in the matter of succession?

With regard to question No.(a) once it is held that

custom was abrogated, this question does not arise. Apart from

this it has to be noticed that the application for amendment was

filed only before the ld. Lower Appellate Court and in my opinion

in these circumstances the same is barred by delay also.

In my opinion reliance on sub section (ii) of Section 5

is clearly misplaced. Letter Ex.P-9 in no manner can be deemed

to be a covenant or agreement entered into by any Ruler of any
RSA No.4086 of 2006 -4-

Indian State with the Government of India. The best case of the

appellant was that their ancestors were feudal landlords, even

then they could in any case not be deemed to be Ruler of an

Indian State. In this view of the matter sub section (ii) of

Section 5 has no application.

Consequently, this appeal is dismissed. No costs.

Since the main case has been decided, all the pending

civil miscellaneous applications if any, stand disposed of.

November 28, 2009                           (AJAY TEWARI)
sonia                                           JUDGE