CASE NO.: Appeal (civil) 115 of 1953 PETITIONER: SEWA SINGH & ORS. RESPONDENT: JANGIR SINGH & ORS. DATE OF JUDGMENT: 15/12/1954 BENCH: M.C. MAHAJAN (CJ) & N.H. BHAGWATI & B. JAGANNADHADAS & T.L.V. AIYYAR & B.P. SINHA JUDGMENT:
JUDGMENT
AIR 1956 SC 1
The Judgment was delivered by :
MAHAJAN C. J. : The facts giving rise to this appeal lie within a narrow
compass, and can be shortly stated. One Bishan Singh, a Sikh Jat belonging
to the Dhande tribe, was the owner of the land in dispute which is situated
in Patti-Gainda of village Naraingarh in the State of PEPSU.
On 8-4-1935 he adopted Jangir Singh, the plaintiff in the suit, by means of
a registered deed and declared therein that Jangir Singh would inherit to
all his movable and immovable properties after his death. Bishan Singh died
sometime in April 1944. The mutation of the land, after his death, was
entered in the name of Jangir Singh but possession of it was taken by the
defendants who are direct descendants of Gainda and are collaterals of
Bishan Singh in the fifth degree.
In this situation Jangir singh filed the present suit for possession
alleging that he being the adopted son of Bishan Singh was entitled to
succeed to the property. The defendants denied the factum and validity of
his adoption, and further pleaded that the land in suit was ancestral
property of Bishan Singh and under custom he had no right to dispose it of.
2. On the pleadings of the parties the trial Judge framed four material
issues :
(1) Whether the plaintiff was adopted by Bishan Singh?
(2) Whether the adoption was valid?
(3) Whether the defendants were collaterals of Bishan Singh?
(4) Whether the property in dispute was ancestral qua the defendants?
Issue No. 1 was decided in favour of the plaintiff but all the other issues
were decided against him. In the result the plaintiff’s suit was dismissed,
the parties being left to bear their own costs. On issue No. 4 the learned
Judge held that from the extract of the record of rights placed by the
defendants on the record and the copy of the pedigree table it was clear
that the land in dispute was ancestral qua the descendants of Gainda, the
common ancestor of this family.
The adoption of the plaintiff was held invalid on the ground that according
to custom Bishan Singh could not adopt a descendant of his maternal
grandfather and it was only a collateral or an agnatic relation who could
be adopted amongst the Jats of these parts.
3. The decision of the trial Judge was affirmed in appeal by the District
Judge who also took the view that a stranger to the family of the adopter
could not be adopted under custom by which the parties were governed. On
the ancestral nature of the property the learned District Judge observed as
follows :
“The pedigree table of family No. 9 shows that the defendants are
collaterals of Bishan Singh deceased in about the 5th degree. The
common ancestro was Gainda, who had seven sons, namely, Chandu,
Nagahia, Raja Ram, Himmata, Samonda, Lakha and Dayala. The holdings
shown are Chandu 122 bighas 15 biswas, Nagahia 115 bighas 8 Biswas,
Raja ram 123 bighas 2 Biswas, Himmata 115 Bighas 11 Biswas, Samonda 122
bighas 16 biswas, Lakha 125 bighas 11 biswas and Dayala 129 bighas. It
will be observed that the holdings of Chandu, Raja Ram, Samonda and
Lakha are almost equal, and those of Nagahia and Himmata are again
almost equal, and that of Dayala is somewhat larger than the others.
In the Pemana Haqiat the descendants of each branch are shown to hold
land as 1/7th share of the total area. This leads to the conclusion
that the land of Gainda, the common ancestor, was divided into seven
shares and each one of the seven sons got 1/7th share of the whole and
consequently the descendants of each son are shown to possess shares of
the that 1/7th. The slight disparity in the areas held by these seven
brothers must be due to the quality of the land, because out of seven
brothers two hold almost equal areas and again three hold equal areas.”
The plaintiff having been unsuccessful in the first two courts preferred a
second appeal to the High Court of PEPSU. This appeal was in the first
instance heard by a single Judge who expressed of doubt as to the
correctness of the opinion of the two courts below regarding their
decisions on the ancestral character of the land.
A new point was urged before him that even if the adoption was invalid, the
property being self-acquired Bishan Singh could make a gift in favour of
Jangir Singh and Bishan Singh having declared in the deed of adoption that
Jangir Singh would inherit to his movable and immovable properties after
his death, Jangir Singh was entitled to them.
The learned Judge thinking that this question was of sufficient importance
to be decided by a larger bench directed the case to be laid before the
Chief Justice for constituting a bench. The appeal was then heard by a
Division Bench of the court. The bench reversed the concurrent finding of
the first two courts on the question of the nature of the property and held
that it had not been proved to be ancestral. The decision on this point was
stated in these terms :
“The copy of the pedigree table produced by the defendants goes to show
that Gainda Singh was the common ancestor and Bishan Singh was his
descendant in the fifth degree. Gainda Singh had seven sons. Of these
Samonda was the ancestor of Bishan Singh, and the defendants are the
descendants of his other sons, some in the fifth degree and some in the
sixth.
At the time of the first regular settlement which took place in 1962
(1905-6 A. D.) the land held by Bishan Singh and other descendants of
Gaina Singh were almost equal and it was from this fact that the Courts
below appear to have drawn the presumption that the whole of the land
was once owned by Gainda Singh and it devolved upon his descendants by
succession.
This is my opinion, and to the same extent was the opinion of my
learned brother as expressed in the referring order, that the mere fact
that remote descendants of a person are found to hold equal or almost
equal amount of land at the time of first settlement, cannot by itself
raise the presumption that the land came from the common ancestor. In
the present case a reference to the copy of the Kafiat Delhi would go
to show that the land was probably not owned by Gainda. According to
that document the village was originally owned by two tribes, Rajputs
and Dhande Jats. Later on the Rajputs’ Patti was abolished and the
entire land of the village was taken hold of by the Jats.
Afterwards certain other Jats and one family of Brahmans and one
Guosains was allowed to settle in the village and in Samvat 1888 when a
part of the village land was given to village Sangatpura, which then
came into existence, there was a fresh allotment of lands and after
that possession became the measure of right. In view of this fact, it
is impossible to hold that the land of which every descendant of Gainda
Singh was in possession at the time of first settlement, had devolved
upon him from Gainda.”
The Division Bench having decided that the land was not proved to be
ancestral proceeded to refer the following questions to a Full Bench :
“(1) Does the term” kinsman
“used in paragraph 35 of Rattigan’s Digest of Customary Law mean a
collateral and if not, can a distant relation like the great-grandson
of the adopter’s mother’s father’s brother be regarded a “kinsman”.
(2) If a person governed by Customary Law adopts another person as his
son and the adoption is later on set aside as invalid according to
custom, can the adopted son succeed to the non-ancestral property of
the adoptive father on the ground that his adoption was tantamount to a
gift or bequest”
.
The Full Bench answered both these questions in the affirmative. In other
words it held that the expression “kinsman” referred in the Customary Law
had reference to and meant agnatic relation and that a distant relation
like that of the adopter’s mother’s father’s brother could not be included
within it. It further held that even if the adoption was invalid, the
adopted son could succeed to self-acquired property of the adopter on the
basis that the adoption in these parts in tantamount to a gift or a
bequest.
In the result the appeal was allowed and the plaintiff’s suit was decreed
as laid. The case was however certified to be a fit one for appeal to this
court under Art. 133 (a) of the Constitution of India. This appeal is now
before us in view of that certificate.
4. In our judgment the appeal can be disposed of on the short ground that
there was no justification whatsoever for setting aside the concurrent
finding of the first two courts on the question of the character of the
land in dispute, and there is thus no necessity to resolve the legal
question raised, as in that view of the case the plaintiff’s suit is
admittedly bound to fail. It appears from the entries in the pedigree table
prepared at the settlement of 1907-09 that Gainda, the common ancestor of
Bishan Singh and of the defendants, had seven sons and Bishan Singh and the
defendants represent the line of these sons, Bishan Singh having descended
from Samonda, while the defendants being the descendants of the other
brothers of Samonda.
Bishan Singh at the time of the regular settlement held 122 bighas 16
biswas of land which was described as being 1/7the share of the total
family holding. The shares of the descendants of the other sons of Gainda
Singh were also described in similar terms. Some of them held one-half of
1/7th, others held one third of 1/7th and so on. This subdivison was in
accordance with the number of the descendants of each one of the seven
sons. An explanatory note is appended to this pedigree and it is in these
terms :
“This Patti Gainda is known after the name of the ancestor of the
proprietors and they are in its possession and pay land revenue.
However, for division of Shamlat deh Rs. 8/2/6 in all according to the
ancestral shares is entered in column……….”
From these entries which carry a presumption of truth it is clear that the
whole of the land which was once owned by the common ancestor was at the
time of the regular settlement in possession of his descendants according
to ancestral share and the shamlat deh which is also in suit was also
divisible according to ancestral shares.
It has not been suggested that any to the descendants of Gainda Singh
acquired any land in this Patti by purchase of introduced strangers in it
by selling any portion of their ancestral holding. That being so, the
learned District Judge was justified in drawing the inference from the
circumstance of equality of holdings and the reference to these in terms of
ancestral shares, that the land in suit had develved on Bishan Singh by
descent from Gainda, and there were no valid grounds for referring that
decision.
The circumstances established in the case are compatible only with the
theory that this land came to his sons from Gainda and these circumstances
cannot be explained on any other reasonable hypothesis.
5. The High Court for its conclusion placed reliance on the “Kafiat
Dehi”(village history) as given in the settlement record, this is what is
stated therein :
“Originally Tooni Rajputs, and our ancestors, that is, the ancestors of
the proprietors Jat Dhande were in possession of the estate of this
village in equal shares. In the times of Muslim Rulers the land revenue
fell in arrear against Tooni Rajputs who absconded out of fear of
harassment and violence at the hands of the then ruler. The common
ancestor of Jats Dhande on payment of the arrears of land revenue
acquired possession of the whole village and called the following
families also and distributed them land as owners ……………….
Since the village had passed into the ownership of a sole owner, the
families who migrated afterwards got land according to their means.
In 1831-32 A. D. some area of this village was set apart and a separate
village named Sangatpura came into being, whereby the remaining scale
of holding (Raha Saha Paimana Haqiyat) was also disturbed. It has been
decided that the enhancement or reduction will depend upon the
possession. That is to say, at present the revenue of Rs. 7-15-9 is
paid on the land of ten dirams. As a matter of fact previously the sale
was Rs. 8/2/6; ……… for the division of the Shamlat deh the
original scale of Rs. 8/2/6 was entered in the pedigree table. The
following six Pattis are named after the names of the ancestors; Sangu,
Piru, Jalla, Malla, Hari Chand and Gainda.”
There is nothing in this document from which an inference could be drawn
that there was any disturbance in the scale of holding in Patti Gainda. On
the other hand the “Paimana Haqiyat”(measure of right) as given in the
records clearly indicates that the Patti is being held by the descendants
of Gainda according to ancestral shares. In these circumstances there was
no reason for doubting the ancestral character of the land in dispute in
this case.
We are further of the opinion that this was not a fit case in which a
concurrent finding of the first two courts should have been set aside on
further appeal even if the finding was not binding under the law then
prevailing in PEPSU and the High Court could re-examine the finding in
second appeal.
6. The result is that this appeal is allowed, the judgment of the High
Court is set aside, and that of the trial judge dismissing the plaintiff’s
suit is restored. In the circumstances of this case, we make no order as to
costs.