{"id":29337,"date":"1960-05-06T00:00:00","date_gmt":"1960-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jai-kaur-others-vs-sher-singh-others-on-6-may-1960"},"modified":"2015-05-06T18:54:07","modified_gmt":"2015-05-06T13:24:07","slug":"jai-kaur-others-vs-sher-singh-others-on-6-may-1960","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jai-kaur-others-vs-sher-singh-others-on-6-may-1960","title":{"rendered":"Jai Kaur & Others vs Sher Singh & Others on 6 May, 1960"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jai Kaur & Others vs Sher Singh & Others on 6 May, 1960<\/div>\n
Equivalent citations: 1960 AIR 1118<\/div>\n
Author: K D Gupta<\/div>\n
Bench: Gupta, K.C. Das<\/div>\n
           PETITIONER:\nJAI KAUR & OTHERS\n\n\tVs.\n\nRESPONDENT:\nSHER SINGH & OTHERS.\n\nDATE OF JUDGMENT:\n06\/05\/1960\n\nBENCH:\nGUPTA, K.C. DAS\nBENCH:\nGUPTA, K.C. DAS\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\n\nCITATION:\n 1960 AIR 1118\n CITATOR INFO :\n RF\t    1961 SC1374\t (4)\n R\t    1966 SC1555\t (4)\n RF\t    1980 SC2138\t (5)\n\n\nACT:\nHindu  Law-Jats of Grewal got-Customary law of\tsuccession--\nNon-ancestral\t Property-Daughter,   if    preferrted\t  to\ncollateyals-Doctrine of surrender-Gift to daughter by widow,\nif  accelerates succession-Rattigan's Customary Law  of\t the\nPunjab, Para 23-Riwaji-am, 1882, Question 43.\n\n\n\nHEADNOTE:\nUnder the customary law prevalent amongst the Hindu Jats  of\nGrewal got in Ludhiana, a daughter is a preferential heir to\nher father in respect of his self -acquired property to\t his\ncollaterals.  Rattigan's Digest of Customary Law,  paragraph\n23,  which records the correct law on the point, is  not  in\nconflict with Riwaji-am, 1882, Question NO. 43, which refers\nonly  to  ancestral  property  and  not\t to  self  -acquired\nproperty at all.\nMt.  Hurmate v. Hoshiaru, A.I.R. 1944 Lah. 21, approved.\nMohinder  Singh v. Kher Singh, A.I.R. 1949 East Punjab\t328,\ndisapproved.\nMt.  Subhani v. Nawab, A.I.R. 1941 (P.C.) 21, referred to.\nCase-law discussed.\nThe doctrine of surrender in Hindu Law is based on a  theory\nof  complete self-effacement by the widow in favour  of\t the\nreversioner and in order that such surrender can  accelerate\nthe  reversion,\t it must be of the entire  interest  in\t the\nentire property.  The law does not recognise a partial self-\neffacement  nor\t a  division  between  ancestral  and\tnon-\nancestral  property.   The exception made in  respect  of  a\nsmall  portion\tof  the property retained  for\tthe  widow's\nmaintenance does not detract from the rigour of the rule.\nRangaswami Gounden v. Nachiappa Gounden, (1918) L.R. 46 I.A.\n72 and Phool Kaur v. Prem Kaur, [1952] S.C.R. 793,  referred\nto.\nConsequently,  in  a  case where a Hindu widow\tof  the\t Jat\nGrewal got made a gift only of the self-acquired property of\nher husband to her daughters such gift had not the effect of\na  surrender  in  law so as  to\t accelerate  the  daughters'\nsuccession  and\t the  gift could not  be  valid\t beyond\t her\nlifetime.\n976\n\n\n\nJUDGMENT:\n<\/pre>\n
 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 108\/ 56.
\n Appeal\t by special leave from the Judgment and decree\tdated
\n May  27,  1953, of the Punjab High Court in  Regular  Second
\n Appeal\t No.  176 of 1949, against the\tjudgment  and  decree
\n dated\tDecember 20, 1948, of the District  Judge,  Ludhiana,
\n arising  out  of the Judgment and decree dated\t February  6,
\n 1948, of the Subordinate Judge, 11 Class, Ludhiana, in\t Suit
\n No. 918 of 1946.\n<\/p>\n
 Gopal Singh, for the appellants.\n<\/p>\n
 C.   B. Aggarwala and K. P. Gupta, for the respondents.
\n 1960.\tMay 6. The Judgment of the Court was delivered by
\n DAS  GUPTA, J.-The suit out of which this appeal has  arisen
\n was  instituted  by the respondents I and 2 Sher  Singh  and
\n Labh  Singh, for a declaration that a deed of gift  executed
\n by  the  first appellant, Jai Kaur, in respect of  8  (1-10)
\n Bighas of land which she had inherited from her husband, Dev
\n Singh,\t in  favour  of\t her two daughters,  the  2nd  &  3rd
\n appellants  before us, ” shall be null and void against  the
\n reversionary rights of the plaintiffs “, and defendant\t Nos.
\n 4  to 6 after the death of defendant No. 1 (i.e., Jai\tKaur)
\n and  shall not be binding upon them.  The  plaintiffs’\t case
\n was  that these lands left by Dev Singh were  all  ancestral
\n lands qua the plaintiffs and according to the customary  law
\n which\tgoverns\t the Jats belonging to Grewal  got  to\twhich
\n these\tparties belong daughters do not succeed\t to  property
\n left by sonless fathers and so the gift by Dev Singh’s widow
\n in favour of her daughters would be null and void as against
\n the  plaintiffs  and  others who would be  entitled  on  Jai
\n Kaur’s\t death to succeed to the estate as reversioners.   In
\n the  alternative, the plaintiffs contended that even if  the
\n land in suit was not ancestral qua the plaintiffs then\t also
\n the  deed  of gift would be null and void as  against\ttheir
\n reversionary\tinterests   inasmuch  as  even\t as   regards
\n nonancestral  property\t daughters do not succeed  among  the
\n Grewal Jats.  The main contention of defendants 1 to 3\t (the
\n appellants  before  us)  was  that the\t suit  land  was  not
\n ancestral qua the plaintiffs and defendants
\n 977<\/span>
\n Nos.  4  to  6,  and that according  to  the  customary  law
\n governing  the\t Jats of the Grewal  got,  daughters  exclude
\n collaterals as regards non-ancestral property and a widow is
\n competent  to make a gift of such property in favour of  her
\n daughters.   It was pleaded on behalf of the  two  daughters
\n that they being preferential heirs in respect of the land in
\n suit  as against the plaintiffs, the gift is  tantamount  to
\n acceleration  of succession and is valid in every way.\t  The
\n Trial Judge held that 2B-2B,14-B out of the land in suit was
\n ancestral  and the gift was invalid to that extent,  because
\n as regards ancestral property a daughter does not succeed in
\n the  presence of collaterals.\tAs regards the\tremainder  of
\n the  suit land which he held was non-ancestral, the  learned
\n Judge\t was  of  opinion  that\t the  gift  was\t  merely   an
\n acceleration  of  succession  as  under  the  customary  law
\n governing  the\t parties  daughters  exclude  collaterals  as
\n regards  succession to non-ancestral property.\t  Accordingly
\n he  gave  the plaintiffs a decree as prayed for  as  regards
\n 2-B-2B,  14-B\tout of the land in suit and dismissed  it  as
\n regards the remaining portion of the land in suit.
\n The  plaintiffs  appealed to the District  Judge,  Ludhiana,
\n against  this decree and cross-objections were filed by  the
\n defendants  Nos. 1 to 3. The Trial Court’s finding  about  a
\n portion  -of  the  land being ancestral and  the  rest\t non-
\n ancestral was not disputed before the appeal court.  On  the
\n question  of custom the learned District Judge\t agreed\t with
\n the  Trial  Judge’s  view  that among\tthe  Grewal  Jats  of
\n Ludhiana  the daughter excluded collaterals as regards\t non-
\n ancestral  property.  He held, therefore, agreeing with  the
\n Trial\tJudge that as regards the non-ancestral property  the
\n deed of gift was merely an act of acceleration of succession
\n and  was,  therefore,\tvalid and binding.   The  appeal  was
\n accordingly dismissed and so also were the  cross-objections
\n which appear not to have been pressed.\n<\/p>\n
 On second appeal the learned judges of the East Punjab\t High
\n Court\taccepted  the  contention  urged  on  behalf  of  the
\n plaintiffs  that a special custom was proved to be in\tforce
\n among\tthe  Grewal Jats under which the  daughter  does  not
\n inherit even as regards
\n 978<\/span>
\n non-ancestral property.  In that view they held that even as
\n regards  the  non-ancestral property the gift\tby  Jai\t Kaur
\n would\tbe  valid only during her lifetime, and\t allowed  the
\n appeal.\n<\/p>\n
 Against  this decree of the High Court defendants Nos. 1  to
\n 3-Jai Kaur and her two daughters, the donees-have filed this
\n appeal\t on  the strength of special leave  granted  by\t this
\n Court.\n<\/p>\n
 Two  questions arise for consideration in this appeal.\t  The
\n first is whether under the customary law governing the\t Jats
\n of  the Grewal got in Ludhiana to which the parties  belong,
\n the  daughter or the collaterals are the preferential\theirs
\n as  regards non-ancestral property.  If the answer  to\t this
\n question be that daughters have preference over  collaterals
\n (the  plaintiffs here), the other question which  arises  is
\n whether  this\tgift is such acceleration  of  succession  in
\n favour of the daughters as is permissible under the law.
\n On  the  question  of\tcustom the  appellants\trely  on  the
\n statements in paragraph 23 of Rattigan’s Digest of Customary
\n Law  (Thirteenth  Edition) that in regard  to\tthe  acquired
\n property  of  her  father  the\t daughter  is  preferred   to
\n collaterals.  It is not disputed that nonancestral  property
\n is  ”\tacquired  property  ”  within  the  meaning  of\t this
\n statement   by\t Rattigan.   Against  this  the\t  plaintiffs-
\n respondents rely on the answers to question No. 43  relating
\n to Hindu Grewal Jats of Ludhiana as appear in the  Riwaji-am
\n prepared  at the revised settlement of 1882.\tThe  question
\n and the answer are in these words:-\n<\/p>\n
 Question:\n<\/p>\n
 ” Under what circumstances can daughters inherit ? If\tthere
\n are  sons, widows or near collaterals, do they\t exclude  the
\n daughter  ?  If the collaterals exclude her,  is  there  any
\n fixed limit of relationship or degree within which such Dear
\n kindred must stand
\n Answer:\n<\/p>\n
 ”  In\tour  tribe the daughter does not  succeed  under  any
\n circumstances.\t  If a person dies sonless,  his  collaterals
\n succeed  him.\tThere is no fixed limit of  relationship  for
\n purposes of excluding her.\n<\/p>\n
 979<\/span><\/p>\n
 If  there are no collaterals of the deceased, the owners  of
\n the  Thulla  or  Patti or village would  be  owners  of  his
\n property.”\n<\/p>\n
 The   authoritative  value  of\t Rattigan’s  compilation   of
\n customary  law\t is  now  beyond  controversy,\thaving\t been
\n recognised  in the judicial decisions of the  Punjab  courts
\n too  numerous\tto  mention, which  have  also\treceived  the
\n approval  of  the Judicial Committee of the  Privy  Council.
\n Therefore  it is not, and cannot be disputed that under  the
\n general  customary  law  of  the  Punjab  daughters  exclude
\n collaterals  in succession to non-ancestral  property.\t  The
\n value\tof entries in the Riwaj-i-am has, also however,\t been
\n repeatedly stressed.  That they are relevant evidence\tunder
\n s.  35\t of the Evidence Act is clear and the fact  that  the
\n entries  therein  the\tthe result  of\tcareful\t research  of
\n persons who might also be considered to have become  experts
\n in these matters, after an open and public enquiry has given
\n them  a  value which should not be  lightly  underestimated.
\n There is ‘, therefore, an initial presumption of correctness
\n as regards the entries in the Riwaj-i-am and when the custom
\n as  recorded  in  the Riwaj-i-am is  in  conflict  with  the
\n general   custom  as  recorded\t in  Rattigan’s\t  Digest   or
\n ascertained otherwise, the entries in the Riwaj-i-am  should
\n ordinarily  prevail  except that as was pointed out  by  the
\n Judicial Committee of the Privy Council in a recent decision
\n in Mt.\t Subhani v. Nawab (1), that where, as in the  present
\n case, the Riwaj-i-am affects adversely the rights of females
\n who  had  no opportunity whatever of  appearing  before  the
\n revenue authorities, the presumption would be weak, and only
\n a few instances would suffice to rebut it.\n<\/p>\n
 In the present appeal the oral. testimony given on behalf of
\n either party is practically valueless to show an-,, instance
\n in favour of the custom pleaded by them.  If, therefore, the\n<\/p>\n
 -Riwaj-i-am does show as urged by the plaintiffs a custom of
\n daughters  being excluded by collaterals in respect of\t non-
\n ancestral  property,  it  is clear  that  Riwaji-i-am\twould
\n prevail.   The\t real  controversy  in\tthis  litigation  is,
\n however, on the question whether the entries in the Riwaj-i-
\n am on which
\n (1)  A.I. R. 1941 (P.C.) 21.\n<\/p>\n
 980<\/span><\/p>\n
 the  plaintiffs rely refer at all to non-ancestral  property
\n or not.  This controversy has ‘engaged the attention of  the
\n courts in Punjab for a number of years beginning with\t1916.
\n In that year in Mst.  Raj Kaur v. Talok Singh (1) Sir Donald
\n Johnstone,  the  Chief Justice held that the  Riwaj-i-am  as
\n compiled,  did\t not cover self-acquired  property  and\t that
\n where the Riwaj-i-am talked about succession to land without
\n discrimination between ancestral and self-acquired, the rule
\n laid down could usually only be taken to apply to  ancestral
\n property.   A similar view was taken by Shadilal and Wil  be
\n force, JJ., in Budhi Prakash v. Chandra Bhan (2 ). The\t view
\n taken\tin  these cases was followed by other judges  of  the
\n High Court in Narain v. Mst.  Gaindo (3 ) and Fatima Bibi v.
\n Shah  Nawaz (4).  In Sham Das v. Moolu Bai (5)\t the  learned
\n judges (LeRossignol and Fforde, JJ.) also laid down the same
\n principles, without any reference to the previous decisions,
\n in these words :-\n<\/p>\n
 “It  is  true\tin the Riwaj-i-ain  no\tdistinction  is\t made
\n between  ancestral and acquired property, but it is a\twell-
\n recognised  rule that unless there are clear indications  to
\n the  contrary,\t such an entry in a record of  custom  refers
\n only to the succession to ancestral property.\t”
\n After this view had been followed in several other decisions
\n a  different  line was struck in Jatan v. Jiwan  Singh\t (6).
\n That  was  a case between Grewal Jats and  the\t contest  lay
\n between collaterals of the last male holder and his  married
\n daughter  with respect to his non-ancestral  property.\t  The
\n learned  judges were of opinion that the Question No. 43  in
\n the  Riwaj-i-am related to both ancestral and\tnon-ancestral
\n property  and\tso  the answer to the  question\t recorded  in
\n Riwaj-iam proved that as regards the non-ancestral  property
\n also the daughter was excluded by collaterals.\t In coming to
\n this  conclusion  they laid stress on the fact that  in  two
\n previous decisions, Ishar Kuar v. Raja Singh (7) and  Pratap
\n Singh\tv.  Panjabu  (8) the questions\tand  answers  in  the
\n Riwajiam as regards daughter’s
\n (1)  A.I.R. 1916 Lah. 343.\n<\/p>\n
 (3)  A.I.R 1918 Lah. 304
\n (5)  A.I.R. 1926; Lah. 210
\n (7)  (1911) 9 I.C. 608.\n<\/p>\n
 (2)  A.T.R. 19T8 Lah. 225.\n<\/p>\n
 (4)  A.I.R. 1921 Lah. 180.\n<\/p>\n
 (6)  A.I.R. 1933 Lah. 553.\n<\/p>\n
 (8)  (1911) 13 I.C. 177
\n 981<\/span>
\n right\t to   succession   were\t  interpreted\tas   covering
\n nonancestral property also and if it was contemplated that a
\n daughter should succeed to self-acquired property, one would
\n have  expected that fact to be mentioned in the answer.   It
\n was  in view of the conflicting views which had thus  arisen
\n on  the question whether Question No. 43 in the  Riwaj-i-ani
\n in the absence of a clear indication to the contrary related
\n to  ancestral\tproperty only or to both ancestral  and\t non-
\n ancestral property that a reference was made by Mr.  Justice
\n Abdur\tRahman in Mt.  Hurmate v. Hoshiaru 1 to a Full\tBench
\n of  the  High Court.  The Full Bench reviewed\tthe  numerous
\n decisions of the Punjab courts in this matter and also\t took
\n into  consideration the fact that Mr. Gordon Walker who  had
\n prepared  the Riwaj-i-am in 1882 had stated in\t the  preface
\n that no distinction between self-acquired and inherited pro-
\n perty\tin  land appeared to be recognised and the  rules  of
\n succession, restriction on alienation, etc., applied to both
\n alike; and after a careful consideration of all the relevant
\n factors recorded their conclusion that ” Question No. 43  of
\n the Customary Law of Ludhiana district relates to  ancestral
\n property only and can in no circumstances be so  interpreted
\n as  to cover self acquired property as well.  ” Mr.  Justice
\n Din Mohammad who delivered the leading judgment observed :”
\n The  raison d’ entre of those cases which lay down that  the
\n manuals  of  Customary Law were  ordinarily  concerned\t with
\n ancestral property only is quite intelligible.\t  Collaterals
\n are,  as  stated  by Addison, J., in  13  Lab.\t 458,  really
\n speaking  interested  in that property only  which  descends
\n from their common ancestor and this is the only basis of the
\n agnatic  theory.   What a male-holder\tacquires  himself  is
\n really\t no concern of theirs.\tIt is reasonable,  therefore,
\n to assume that when manuals of Customary Law were originally
\n prepared  and subsequently revised, the persons  questioned,
\n unless\t specific-ally told to the contrary,  could  normally
\n reply in the light of their own interest alone and that,  as
\n stated\t above, was confined to the ancestral property\tonly.
\n The fact that on some occasions
\n (1) A.I.R. 1944 Lah. 21,
\n 127<\/span>
\n 982<\/span>
\n the  questioner  had  particularly  drawn  some  distinction
\n between ancestral and non-ancestral property would not\t have
\n put  them  on their guard in every case,  considering\ttheir
\n lack  of  education  and lack of  intelligence\t in  general.
\n Similarly, the use of the terms ” in no case ” or ” under no
\n circumstances\t” would refer to ancestral property only  and
\n not be extended so as to cover self-acquired property unless
\n the context favoured that construction.  ”
\n One  would have thought that after this pronouncement\tby  a
\n Full Bench of the High Court the controversy would have been
\n set  at rest for at least the Punjab courts.\tSurprisingly,
\n however, only a few years after the above pronouncement, the
\n question  was\traised again before a Division Bench  of  the
\n East  Punjab High Court in Mohinder Singh v. Kher  Singh(1).
\n The learned judges there chose to consider the matter afresh
\n and in fact disregarded the pronouncement of the Full\tBench
\n in  a\tmanner which can only be said  to  be  unceremonious.
\n Teja Singh, J., who delivered the leading judgment said that
\n the  Full Bench, though noticing the cases of Ishar Kaur  v.
\n Raja  Singh  (2) and Pratap Singh v.  Panjabu (3),  had  not
\n said  that those cases had been wrongly decided.  It has  to
\n be  noticed  that  the\t Full Bench  in\t no  uncertain\tterms
\n expressed  their  conclusion  that question No.  43  of  the
\n Customary Law of the Ludhiana district related to  ancestral
\n property   only  and  could  in  no  circumstances   be   so
\n interpreted as to cover self-acquired property as well.   In
\n coming\t to  that  conclusion they  had\t considered  numerous
\n decisions  of\tthe Punjab courts in support of\t the  general
\n proposition  that unless there are clear indications to  the
\n contrary   the\t questions  relate  to\tancestral   property,
\n considered the cases in which a contrary view had been taken
\n including  the\t three cases of Jattan v.  Jiwan  Singh\t (4),
\n Ishar\tKaur v. Raja Singh (2 ) and Pratap Singh  v.  Panjabu
\n (3)  and  gave their own reasons why the  view\t that  unless
\n there\tare clear indications to the contrary the manuals  of
\n customary law should be taken to refer to ancestral property
\n only, and after considering the
\n (1)  A.I.R. 1949.  East Punjab 328
\n (3)  (1911) 13 I.C. 177.\n<\/p>\n
 (2)  (1911) 9 I.C. 608.\n<\/p>\n
 (4)  A.I.R. 1933 Lah. 553.\n<\/p>\n
 983<\/span><\/p>\n
 question  and answer in question No. 43 in the\t case  before
\n them as regards the Mohammadan Rajputs, recorded their final
\n conclusion.  It is neither correct nor fair to say that  the
\n learned judges of the Full Bench did not hold Jattan’s Case,
\n Pratap\t Singh’s  Case\tand Ishar Kaur’s Case  to  have\t been
\n wrongly  decided  in  so far as  these\t decisions  held  the
\n question  No. 43 of the Customary Law of the  Ludhiana\t dis-
\n trict to refer both to ancestral and non-ancestral property.
\n It is true that they did not say in so many words that these
\n cases were wrongly decided; but when a Full Bench decides  a
\n question  in a particular way every previous decision\twhich
\n had answered the same question in a different way cannot but
\n he  held  to  have been wrongly decided.   We\thad  recently
\n occasion to disapprove of the action of a Division Bench  in
\n another High Court in taking it upon themselves to hold that
\n a contrary decision of another Division Bench on a  question
\n of law was erroneous and stressed the importance of the well
\n recognised  judicial  practice that when  a  Division\tBench
\n differs from the decision of a previous decision of  another
\n Division  Bench  the matter should be referred to  a  larger
\n Bench\tfor  final decision.  If, as we\t pointed  out  there,
\n considerations\t of  judicial  decorum\tand  legal  propriety
\n require   that\t Division  Benches  should   not   themselves
\n pronounce  decisions of other Division Benches to be  wrong,
\n such considerations should stand even more firmly in the way
\n of Division Benches disagreeing with a previous decision  of
\n the Full Bench of the same court.\n<\/p>\n
 In  our  opinion, the view taken by the Full  Bench  in  Mt.
\n Hurmate  v.  Hoshiaru\t(1) is\tconsonant  with\t reasons  and
\n consistent  with  probability.\t  The  fact  that  the\tgreat
\n majority of judges, who brought to bear on the question,  an
\n intimate  knowledge  of the ways and habits  of  the  Punjab
\n peasantry  thought  that  when tribesmen  were\t asked\tabout
\n succession  to\t property, they would ordinarily  think\t that
\n they\twere  being  asked  about  succession  to   ancestral
\n property, is entitled to great weight.\t It cannot, we think,
\n be seriously disputed that at least in the early years
\n (1)  A.I.R. 1944 Lah 21.\n<\/p>\n
 984<\/span><\/p>\n
 when the Riwaj-i-am was in course of preparation most of the
\n property  in the countryside was ancestral property,  and  ”
\n self-acquisitions ” were few and far between.\tThis fact, it
\n is reasonable to think, had the consequence of concentrating
\n the  attention of the tribesmen on the importance of  having
\n the  tribal  custom  correctly recorded  by  the  Settlement
\n Officers   and\t their\tagents,\t as  regards  succession   to
\n ancestral  property, and of attracting little attention,  if
\n any,  to matters regarding non-ancestral  property.   Unless
\n the questions put to these simple folk, were so framed as to
\n draw  pointed attention to the fact that the enquiries\t were
\n in  respect of non-ancestral property also, they  could  not
\n reasonably  be expected to understand from the mere fact  of
\n user  of general words in the questions that these  referred
\n to  both  ancestral  and  non-ancestral  property.   As  Din
\n Mohammad,  J., said in his judgment in the Full Bench,\t even
\n the  fact that on some occasions, the questioner  had\tdrawn
\n some\tdistinction   between  ancestral   and\t nonancestral
\n property,  could  not\thave  put  them-(i.e.,\tthe   persons
\n questioned)-on their guard in every case, considering\ttheir
\n lack of intelligence in general.  Their minds being obsessed
\n with  the  idea  that such enquiries  would  only  refer  to
\n ancestral  property,  they  would direct  their  answers  to
\n matters in respect of ancestral property only, and in\tusing
\n forceful  terms  like\t”  in  no  case\t ”  and\t ”  under  no
\n circumstances these persons were really saying that ” in  no
\n case  would ancestral property devolve in a  particular  way
\n and  have  a  particular  incidence; and  under  no  ”\t cir-
\n cumstances   ”\t would\tancestral  property  devolve   in   a
\n particular way, and have a particular incidence.
\n These considerations, we think, outweigh the statement\t made
\n by  Mr.  Gordon  Walker that no  distinction  between\tself-
\n acquired  and\tinherited  property in land  appeared  to  be
\n recognised,  and  the rules of\t succession,  restriction  on
\n alienation, etc., applied to both alike.\n<\/p>\n
 We think, therefore,, that the view taken by the Full Bench,
\n and the many previous cases mentioned in the judgment of the
\n Full  Bench,  that questions and answers in  the  Riwaj-i-am
\n refer ordinarily to
\n 985<\/span>
\n ancestral property, unless there is clear indication to  the
\n contrary,  is\tcorrect.   Question No. 43  in\tthe  Ludhiana
\n district, appears to be the same for all the tribes.\tThere
\n is  not the slightest indication there that  the  questioner
\n wanted\t information about nonancestral property  also.\t  The
\n answer given by the Grewal Jats to this question also\tgives
\n no reason to think that the persons questioned were thinking
\n in  giving the answers of both ancestral  and\tnon-ancestral
\n property.\n<\/p>\n
 We have, therefore, come to the conclusion that the  entries
\n in  the Riwaj-i-am on which the plaintiffs respondents\t rely
\n do  not  refer at all to non-ancestral\t property,  and\t are,
\n therefore,  not  even\trelevant evidence  to  establish  the
\n existence  of\ta  custom  among  Grewal  Jats\tof   Ludhiana
\n district,  entitling  collaterals  to\tsuccession  to\t non-
\n ancestral property, in preference to daughters.
\n Reliance  was next placed on behalf of these respondents  on
\n the fact that the existence of such a custom was  recognised
\n in  a\tnumber of judicial decisions, viz., Jattan  v.\tJiwan
\n Singh (1), I shar Kaur v. Raja Singh (2) and Pratap Singh v.
\n Panjabu  (3).\t If  these  decisions  in  so  far  as\t they
\n recognised  the existence of such a custom, had been  solely
\n or even mainly based on evidence, other than entries in  the
\n Riwaji-i-am,  they  might  have  been\tof  some  assistance.
\n Examination of these cases, however, shows unmistakably that
\n they  were either wholly, or mainly based on the entries  in
\n the Riwaj-i-am on the assumption that these entries referred
\n to   both  ancestral  and  non-ancestral   property.\t This
\n assumption  having  been established to be  baseless,\tthese
\n decisions are valueless, to show that the custom as  alleged
\n by  the  plaintiffs-respondents did exist  as\tregards\t non-
\n ancestral property.  Further, the oral evidence produced  in
\n the  present  case is wholly insufficient to  prove  such  a
\n custom.\n<\/p>\n
 It must, therefore, be held that the customary law among the
\n Grewal\t Jats of Ludhiana district as regards  succession  to
\n non-ancestral property is the same as recorded generally for
\n the  Punjab in Paragraph 23 of Rattigan’s  Digest-i.e.,  the
\n daughter is preferred to
\n (1) A.I.R. 1933 Lah. 553.\t(2) (1911) 9 I.C. 608.\n<\/p>\n
\t\t   (3) (1911) 13 I.C. 177.\n<\/p>\n
 986<\/span><\/p>\n
 collaterals,  and  consequently, the second  and  the\tthird
\n appellants,  were the next reversioners to that  portion  of
\n Dev  Singh’s  property\t which\thas been  found\t to  be\t non-
\n ancestral.\n<\/p>\n
 This  brings  us to the question whether the  gift  of\t this
\n portion, by the first appellant to these reversioners, gives
\n them a good title, beyond the widow’s lifetime.  We have  to
\n remember  in this connection that as regards  the  ancestral
\n property, these daughters were not the reversioners, and the
\n further  fact that out of the ancestral property, the\thouse
\n was  not  included  in\t the deed  of  gift.   The  position,
\n therefore,  is that out of the property in which  the\tfirst
\n appellant  held  a widow’s estate, she gave by the  deed  of
\n gift a portion to the reversioners as regards that  portion,
\n a portion to persons who were strangers to the reversion  as
\n regards that portion and a portion was retained by her.  The
\n doctrine  of Hindu law according to which, a  limited\towner
\n can accelerate the reversion, by surrendering her  interest,
\n to  the  next\treversioner, is based on a  theory  of\tself-
\n effacement  of the limited owner.  That is why it  has\t been
\n laid down that in order that a surrender by a limited\towner
\n to a reversioner, may be effective, the surrender must be of
\n the  entire  interest\tof the limited owner  in  the  entire
\n property.  The exception made in favour of the retention  of
\n a  small portion of the property for her  maintenance,\t does
\n not affect the strictness of the requirement that a  surren-
\n der  to be effective, must be of the entire interest in  the
\n entire property: Vide Rangasami Gounden v. Nachiappa Gounden
\n (1) and Phool Kaur v. Pem Kaur (2).)
\n In  so\t far  as there is gift to a  stranger,\tthere  is  no
\n effacement of the limited owner; nor is there any effacement
\n in  respect of the property which is retained.\t We  find  it
\n impossible to say, therefore, that there is such  effacement
\n of  the limited owner in this case, as would accelerate  the
\n daughter’s rights by converting the future contingent\tright
\n into a present vested right.\n<\/p>\n
 On  behalf  of\t the appellants it is argued  that  there  is
\n certainly a total effacement in respect of the\t nonancestral
\n property,  so\tthat the right of the  next  reversioners-the
\n daughters-in that property has
\n (1) (1918) L.R. 46 I.A. 72.\n<\/p>\n
 (2) [1952] S.C.R. 793,
\n 987<\/span>
\n been accelerated.  We do not think we shall be justified  in
\n recognising  this  novel  doctrine  of\t the  possibility  of
\n effacement   of  the  limited\towner  vis-a-vis   the\t next
\n reversioner  of the non-ancestral property when there is  no
\n effacement  vis-a-vis\tthe  reversioner  of  the   ancestral
\n property,  and vice versa.  Effacement cannot be  broken  up
\n into two or more parts in this manner; and however much  the
\n limited  owner\t may wish to efface  herself  only  vis-a-vis
\n those next reversioners whom she wants to benefit, law\t does
\n not recognise such ” partial effacement “.
\n The  Hindu  Law doctrine of surrender does  not,  therefore,
\n make the gift of the non-ancestral property to the daughters
\n valid beyond the widow’s lifetime.\n<\/p>\n
 It  is\t not suggested that there is any  customary  law,  by
\n which such surrender can be made.\n<\/p>\n
 Though,  therefore,  we  have\tfound  disagreeing  with  the
\n learned  judges of the High Court that tinder the  customary
\n law  governing the Grewal got of Jats to which\t the  parties
\n belong,  the daughters-the second and the third  appellants-
\n are  preferential heirs to the non-ancestral portion of  the
\n suit  land, we hold that their conclusion that this deed  of
\n gift in favour of the daughters is not valid even as regards
\n the  non-ancestral property, beyond the donor’s lifetime  is
\n correct and must be maintained.\n<\/p>\n
 As  a\tlast  attempt  Mr.  Gopal  Singh,  counsel  for\t  the
\n appellants, wanted us to hold that under s. 14 of the\tHindu
\n Succession Act, which became law in 1956, either the  mother
\n or  the daughters have become full owners of this  property,
\n and  so  the plaintiffs’ suit should be dismissed.   As  the
\n Hindu\tSuccession Act was not on the statute-book, when  the
\n written  statement was filed or at any time before the\t suit
\n was disposed of in the courts below, the defence under s. 14
\n of that Act could not be thought of and was not raised.  The
\n necessary consequence is that evidence was not adduced, with
\n the facts material for the application of s. 14 in view,  by
\n either\t  party.   Mr.\tAgarwala  has,\ton  behalf   of\t  the
\n plaintiffs-respondents, contended that as the record  stands
\n the mother had ceased to be in possession and could not  get
\n the  benefit of s. 14 of the Hindu Succession Act, and\t that
\n the
\n 988<\/span>
\n daughters in possession, would not become full owners\tunder
\n s. 14.\t We do not think it would be proper to consider these
\n questions in the present suit in this haphazard manner\t when
\n on the all-important question of possession, the  appellants
\n themselves  do\t not wish to say whether the  mother  was  in
\n possession   actually\t or   constructively,\twhether\t  the
\n daughters’ possession was merely permissive, or whether  the
\n daughters  were  in  independent possession,  on  their  own
\n behalf These and other questions of fact, and the  questions
\n of law that have to be considered in deciding a claim by the
\n first\tappellant or the other two appellants under s. 14  of
\n the  Hindu Succession Act, should properly be considered  in
\n any suit that -they may bring in future, if so advised.   We
\n express no opinion on any of these questions.
\n For  the reasons which have been mentioned earlier, we\t hold
\n that  the High Court rightly decreed the suit in  favour  of
\n the plaintiffs in respect of the nonancestral property also,
\n and  dismiss the appeal.  In the circumstances of the\tcase,
\n we  order  that  the  parties\twill  bear  their  own\tcosts
\n throughout.\n<\/p>\n
 Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jai Kaur & Others vs Sher Singh & Others on 6 May, 1960 Equivalent citations: 1960 AIR 1118 Author: K D Gupta Bench: Gupta, K.C. Das PETITIONER: JAI KAUR & OTHERS Vs. RESPONDENT: SHER SINGH & OTHERS. DATE OF JUDGMENT: 06\/05\/1960 BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-29337","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJai Kaur & Others vs Sher Singh & Others on 6 May, 1960 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jai-kaur-others-vs-sher-singh-others-on-6-may-1960\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jai Kaur & Others vs Sher Singh & Others on 6 May, 1960 - 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