# I•g·· -Shri Audh .J1eh'a1j. Singh v. GtJ.jadhar .Jiiipuria ·and Others

- **Citation:** [1955] 1 S.C.R. 86
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-g-shri-audh-j1eh-a1j-singh-v-gtj-jadhar-jiiipuria-and-others-1209
- **Pages:** 6

## Headnote

I•g··
-Shri Audh
.J1eh'a1j. Singh
v.
GtJ.jadhar
.Jiiipuria ·and
Others.
1954
-April 2
86
SURR1EMiE C0URT RRP0R11S
[1$5]
couldi-eject-.. his.• .owh tanants .in: exerdse,.of..the.,right: of
pre-emption .. ,,:fhe. ·· .apJ'ellaM,;wilLhave ·_the- cost_s, -,of, this
appeal:from respondent-- -No .. L, Further, costs ..• wi!).,ahide
the~iresult>., 1 11
• ,:.
•Ii·
.. ,,1:1;,,;. ·
.• , ... ; ·1: .• , ,.
• '
'
~
I
' I
,,
"'' ' ' Appe~z; al,lo'wed:
q
'
'
• 1 "." "•(.
I
:
, . •
;
• < '
.I ;
I! . 1
!
·''
"' J
;
.:. ·UJAGAR SINGH AND OTHERS.
[B: k. MuKHEkJ~..\; Vi~A;, Bosii, GfiuLA'.M fJ:.s..\:N'
.
'• .,
•' '"''
11
\'
••
/'·
.. !
·.
·" ,;,'
•.
__ , .
, , al)q YJ;;NK~TAl}AMAAX\'.AR JJ,.] ..... , , "
Custom-Succession-Agricultural /ats of village
Ralla, !Tahsil
Mansa,.
Dis(rict B,arnala,
State
Pep;u-Non-ancestrql
property-
.l)aughter;'s so,n.r ~-
coll~t~rals:_Gift by daufiht(r of n.on~'ahcestfal pro_perty in favOU1; OJ h-e;.· sofis..:...... Whether qmou'ntS to· 'acceleration-Omission io' include a Small Portibn ·of' th~ ·.whole . property in 'the giftSurrender:--.-:V alidity of.·
• ', < •- .
: ~
·,
-Held, that among ag'Ficulturak· 1·ats -of · Village
Ralla,. in the
·District, .of ·Barn~la, Sμte· .of Pepsu,. daughter'~' ~9p.s v,:ill inher:it, to
the .. exclusiOJ).:'.9£
1c;9Jla_t.era;l~,, ·~he· f!On-a,nce~tra~.
~aμqs whicP.. had
devolved by inherit~nce_ on -.~h~ii: motlier. ,
·
. ' A. g'i.fr
q~; the_ d,~ughF~
1~
~o ht;!r· ~~,ns~ ~oul?. ~.m9unt.· tQ, acce\eration of su"ccession.. Omission to includt;" a Sm<!-11 portion Of the whole
Property' due ·to ignoiap.t~ ·or ove'rsight does not affect the validity
·of the surrencler·When'•it is'otherWise bona fide.
-'.·;:
i,:.
Lehna v: Mst. Th~kti'•(32 Punjl!b Rec~rd 1£92 •F.B:); 1:.al• Singh
v. Roor Singh (55 P.L;Rc !68 'at 172).;' Mulla's :Hindu Law, 11th
Edition, page 211; Ratt;.'gan's Digest, ·of Customaiy .I-,tiw Para. P(2)
Ieferred tp,-.
.,,
, .,. 1 )1 11 ,, ..... :.
,
,_., ...
, CIVIL·· APPEM;ATF; ,.JURISDICTION·.: .Civ,iL-Appeal. No,
174-of-1952,. ,,, .. ,,y,._ "'"
.. · .. ,.,; •. •-: .. ,,,,._.,
.,_
App~ir 'frorii the'' Judgme'nt" 'lnd 'Decree · dated ihe
27th fu'ne;· 1950; 'of 'ihe"·High Court of-Judicature of
Patia!a -an~~· East' Pupjah-'St~tes "Union 'in S~i:ond -Appeal
No. 219. 'of'1949-)0. agi\nst' t)l:e Judgment . and·'~Decree
<lated the 21st 'Septe!+iber; i949,' of tht COurf of' the "Addition~i 'D,lstriet' Judge; Bh'a'tirida, in' 'Appeal Nc:i. '61 of
1948, ar1£foit 'fr<Jin the' Judgfl)eiit 'a(id Decree· dated ·'the
10th 'Ai.igus~' '1948; 1' '1:)£' the Oiurt ''ot''tli'e
s\ib;JU'dg~ II
Class, Mansa, in Case No. 134 of 1947.
. , .
'' · · ·
'
·---
--
-
-'4.-
•
-
~. ·~
S.C.R.
SUPRK\IE COURT REPORTS
87
GopalSin(jh and Sardar Singh for the appellants.
Achhru Ram (K. L. Mehta, with him) for the
respondent.
195!. April 2. The Judgment of the Court was
delivered by
BosE J. -,The plaintiffs-appeal. They claim to be the
presumptive reversioners to one Harnam Singh who
owned the property in dispute. On 2nd November,
1914, after Harnam Singh's death, his daughti;r Mst.
Biro, the second defendant, gifted the plaint properties to her sons who have been grouped together as the
first defendant. The plaintiffs contend that _the property is ancestral and that the daughter got only a
life estate, so they sue for a declaration that the gift
will not affect their reversionary rights.
The defendants rely on custom: They state that,
according to the customary law which governs the parties, collaterals beyond the fifth degree are not heirs in
the presence of a daughter and her line. The plaintiffs,
they say, are collaterals of the seventh degree, therefore they cannot displace the daughter. They also state
that the property was not ancestral and so the plaintiffs cannot challenge the daugh_ter's alienation. The
third line of defence related to a portion of the property
which is not in aispute before us.
. .
The property in suit consisted of three items:
(1) 253 bighas of Khas Jand;
(2) a. half share in 3 bighas 19 bi

## Text

I•g··
-Shri Audh
.J1eh'a1j. Singh
v.
GtJ.jadhar
.Jiiipuria ·and
Others.
1954
-April 2
86
SURR1EMiE C0URT RRP0R11S
[1$5]
couldi-eject-.. his.• .owh tanants .in: exerdse,.of..the.,right: of
pre-emption .. ,,:fhe. ·· .apJ'ellaM,;wilLhave ·_the- cost_s, -,of, this
appeal:from respondent-- -No .. L, Further, costs ..• wi!).,ahide
the~iresult>., 1 11
• ,:.
•Ii·
.. ,,1:1;,,;. ·
.• , ... ; ·1: .• , ,.
• '
'
~
I
' I
,,
"'' ' ' Appe~z; al,lo'wed:
q
'
'
• 1 "." "•(.
I
:
, . •
;
• < '
.I ;
I! . 1
!
·''
"' J
;
.:. ·UJAGAR SINGH AND OTHERS.
[B: k. MuKHEkJ~..\; Vi~A;, Bosii, GfiuLA'.M fJ:.s..\:N'
.
'• .,
•' '"''
11
\'
••
/'·
.. !
·.
·" ,;,'
•.
__ , .
, , al)q YJ;;NK~TAl}AMAAX\'.AR JJ,.] ..... , , "
Custom-Succession-Agricultural /ats of village
Ralla, !Tahsil
Mansa,.
Dis(rict B,arnala,
State
Pep;u-Non-ancestrql
property-
.l)aughter;'s so,n.r ~-
coll~t~rals:_Gift by daufiht(r of n.on~'ahcestfal pro_perty in favOU1; OJ h-e;.· sofis..:...... Whether qmou'ntS to· 'acceleration-Omission io' include a Small Portibn ·of' th~ ·.whole . property in 'the giftSurrender:--.-:V alidity of.·
• ', < •- .
: ~
·,
-Held, that among ag'Ficulturak· 1·ats -of · Village
Ralla,. in the
·District, .of ·Barn~la, Sμte· .of Pepsu,. daughter'~' ~9p.s v,:ill inher:it, to
the .. exclusiOJ).:'.9£
1c;9Jla_t.era;l~,, ·~he· f!On-a,nce~tra~.
~aμqs whicP.. had
devolved by inherit~nce_ on -.~h~ii: motlier. ,
·
. ' A. g'i.fr
q~; the_ d,~ughF~
1~
~o ht;!r· ~~,ns~ ~oul?. ~.m9unt.· tQ, acce\eration of su"ccession.. Omission to includt;" a Sm<!-11 portion Of the whole
Property' due ·to ignoiap.t~ ·or ove'rsight does not affect the validity
·of the surrencler·When'•it is'otherWise bona fide.
-'.·;:
i,:.
Lehna v: Mst. Th~kti'•(32 Punjl!b Rec~rd 1£92 •F.B:); 1:.al• Singh
v. Roor Singh (55 P.L;Rc !68 'at 172).;' Mulla's :Hindu Law, 11th
Edition, page 211; Ratt;.'gan's Digest, ·of Customaiy .I-,tiw Para. P(2)
Ieferred tp,-.
.,,
, .,. 1 )1 11 ,, ..... :.
,
,_., ...
, CIVIL·· APPEM;ATF; ,.JURISDICTION·.: .Civ,iL-Appeal. No,
174-of-1952,. ,,, .. ,,y,._ "'"
.. · .. ,.,; •. •-: .. ,,,,._.,
.,_
App~ir 'frorii the'' Judgme'nt" 'lnd 'Decree · dated ihe
27th fu'ne;· 1950; 'of 'ihe"·High Court of-Judicature of
Patia!a -an~~· East' Pupjah-'St~tes "Union 'in S~i:ond -Appeal
No. 219. 'of'1949-)0. agi\nst' t)l:e Judgment . and·'~Decree
<lated the 21st 'Septe!+iber; i949,' of tht COurf of' the "Addition~i 'D,lstriet' Judge; Bh'a'tirida, in' 'Appeal Nc:i. '61 of
1948, ar1£foit 'fr<Jin the' Judgfl)eiit 'a(id Decree· dated ·'the
10th 'Ai.igus~' '1948; 1' '1:)£' the Oiurt ''ot''tli'e
s\ib;JU'dg~ II
Class, Mansa, in Case No. 134 of 1947.
. , .
'' · · ·
'
·---
--
-
-'4.-
•
-
~. ·~
S.C.R.
SUPRK\IE COURT REPORTS
87
GopalSin(jh and Sardar Singh for the appellants.
Achhru Ram (K. L. Mehta, with him) for the
respondent.
195!. April 2. The Judgment of the Court was
delivered by
BosE J. -,The plaintiffs-appeal. They claim to be the
presumptive reversioners to one Harnam Singh who
owned the property in dispute. On 2nd November,
1914, after Harnam Singh's death, his daughti;r Mst.
Biro, the second defendant, gifted the plaint properties to her sons who have been grouped together as the
first defendant. The plaintiffs contend that _the property is ancestral and that the daughter got only a
life estate, so they sue for a declaration that the gift
will not affect their reversionary rights.
The defendants rely on custom: They state that,
according to the customary law which governs the parties, collaterals beyond the fifth degree are not heirs in
the presence of a daughter and her line. The plaintiffs,
they say, are collaterals of the seventh degree, therefore they cannot displace the daughter. They also state
that the property was not ancestral and so the plaintiffs cannot challenge the daugh_ter's alienation. The
third line of defence related to a portion of the property
which is not in aispute before us.
. .
The property in suit consisted of three items:
(1) 253 bighas of Khas Jand;
(2) a. half share in 3 bighas 19 biswa.s; and
(3) a share in certain shamlat property.·
The defendants say that Harnam Singh gifted 123
big has of the Khas land to the second defendant: that
thii· gift was absolute ·and so the plaintiffs .cannot get
that portion of the property in any event.
·
The trial Judge held, on the admission of the plaintiffs' counsel, that the land in dispute was non-ancestral and that the daughter's sons would succeed after
her to the exclusion of the plaintiffs, therefore the gift
by her to her sons amounted to an acceleration of the
estate. The learne_d Judge dismissed the plaintiffs' suit.
z954
Gopal Singh
and Others
v.
Ujagar Singli
and Others.
BoseJ.
1954
Gopal Singh
and Others
v.
6jagar Singh
and Others.
Bose J.
88
SUPREME COURT REPORTS
[1955]
On appeal to the lower appellate Court, the ·finding
that the property was non-ancestral was upheld as the
plaintiffs' learned counsel in that Court did not contest
the finding of the first Court on this point. As regards
the acceleration,
the learned Judge thought it necessary
to examine a point which the plaintiffs had raised in the
trial Court· but which was ignored there,· namely that a
house was not included in the gift. Therefore: it Was
argued that as the whole of the estate was !iot · passed
on to the next heir there was no acceleration. The
learned Judge took evidence on this point ahd ·held that
the house was not included and so found against the
defendants. Accordingly he decreed the plaintiffs' claim
for this part of the estate.
In the High Court the learned Judges upheld the
concurrent finding · about the
non-ancestral nature of
cthe property. Before them also the point was conceded
by the plaintiffs' counsel. They also held that the house
Was not included in the gift but held that it was such
a small part of the estate that the daughter's retention
of it could not indicate an intention on her part not to
·efface herself from the estate. They also held in the
plaintiffs' favour that they were collaterals in the fifth
.degree and not the seventh but held that as the pro-
:perty was non-ancestral the daughter's
sons were
the
nearest heirs, so the gift accelerated the estate and
vested it m the donees despite the exclusion of the
'house.
Accordingly,
they reversed and decree of the
lower appellate Court and restored that of the learned
trial Judge.
Before us, the plaintiffs' learned counsel tried to
reopen the concurrent finding of the three Courts about
the non-ancestral nature of the property but we did
·not allow him to do so. The . question is a mixed question of law and fact and the admission involved both.
We were not shown how the facts admitted could be
·disentangled from the law so that we could determine
whether the conclusion
of law drawn from. the admitted facts . was wrong. The learned trial Judge said that
the admission was made because of a previous decision
'in ·a former suit between the same parties · or their
predecessors. Harnam Singh had mortgaged a part of
'
/
S.C.R.
SUPREME ·COURT REPORTS
89
his estate· ·and placed the mortgagees m possession.
.when he died . some of his collaterals took . possession of
the unencumbered portion of the estate. The daughter
Mst. Biro therefore instituted two suits, one for possession against the collaterals including the present plaintiffs
or their predecessors, and the other for a declaration against the mortgagees · in possession. In this she
also joined the same set of collaterals. Mst. Biro suc-
<eeded on the ground
that the property was non-ancestral. These findings are obviously res judicata and if the
plaintiffs' ]earned counsel had not conceded· the point
the question would at once have been raised and the
prev10us
judgments, which
were exhibited
(Exhibits
DD and DF) would have concluded the matter. But
as the point was conceded in all three Courts it was not
necessary for the defendants to fall back on the previous decisions. It must therefore be accepted here that
the whole of the land in dispute was non-ancestral.
That brings us to the question of heirship. Paragraph
23(2) of Rattigan's Digest of Customary Law says that-
"In regard to the acquired property of her father,
the daughter is preferred to the collaterals."
That is not disputed but what the plaintiffs contend
is that she only succeeds as a limited heir and that
after her the reversion will go to the father's heirs in the
usual way.
But that is not the Punjab custom among
the tribe to which the parties belong, namely agricultural Jats. Rattigan quotes the following passage from
page 61
of Roe and Rattigan's Tribal Law of the
Punjab at page 411 of the 13th edition of his Digest :
"Where a succession
of
a married daughter is
allowed, the general principle is that she succeeds not
as an ordinary heir, but merely as the means · of passing
{)n the property to another male,
whose descent· from
her father in the female line is allowed under exceptional cir.cumstances to count as if it were descent in the
male line. She will indeed continue to hold the land in
her own name, even after the birth of sons · and their
attaining majority, for her own life but she has no more
power over it than a widow would have. If she has sons,
the estate -will of course descend to them and their lineal
male issue, in the usual way. But if she has no sons,
12
1954
GopalSingh
and Others
v.
Uj agar Singh
and Others.
Bose].
1954
Gopal Singh
and Other
v.
: Ujagar Singh
and Others.
Bose J.
90
·SUPREME 'COlJRT REPORTS
[1955]
or if their male- issue fail; the land will revert; except in
some special instances where her husband is allowed to
hold for his' life, to her•father's,agnates, just1as it· would
·have done if no exception to 1.the general .r.ule of• agnatic
succession had ever been in· her -favour."
1 1
·i
This is supported by at least ·two decisions from the
Punjab. In Le/ma · v. •Mst. · Thakri(') two learned
Judges of the Punjab· Chief• Court (the third dissenting)
said in the course of •a Full . Bench. decision that even
in the case of ancestral. property the daughter's sons
and their descendants would exclude collaterals of the
father. In a more recent case (1953) the Punjab High
Court held in Lal Singh v. Roor Singh( 2 ) that in the
case of non-ancestral property the •daughters
are preferred to collaterals.
We were told that this rule only applies when the
daughter succeeds and has no application when she
predeceases her father.
We
say
nothing about this
because the case before us. is one in which the daughter
did succeed· and all the authorities produced before us
indicate that in that event her sons will exclude the
collaterals. We were. not shown any decision which has
taken a contrary view. We are · only concerned with
non-ancestral
property here and . express
no opinion
about what would happen in the case. of ancestral property, though the observations of two of the learned
Judges in the Full Bench of the Punjab Chief Court to
which we have referred carry the rule over to ancestral
property as well.
The karned counsel for the plaintiffs relies on paragraph 64 of Rattigan's Digest where it is stated that
except in two cases which do not apply here, no female
in possession of property from, among others, her father
can permanently alienate it. But we are not concerned
with an alienation here. The gift to the sons may or
may not be good after Mst. Biro's death as a gift. The
question is whether there was an acceleration. If there
was, the form it took would not matter.
We turn, next, to the question of surrender and the
only question there is whether the retention by Mst.
Biro of the house .would prevent an acceleration of the
(I) 32 Punjab Record i895.·
'2) 55 Punjab Law Reporter 168 at 172,
'
'
...
-
/
-
-
S.C.R.
SUPREME COURT REPORTS
estate. The extent of the property .covered by the gift
is over 253 biglias. She · had an absolute right to gift
123 bighas of this and so the only portion to which the
doctrine of surrender would apply would be the remaining 130 odd bighas. But the fact that she gave away
all her property to her sons, bar this house, including
property to which she had an absolute right, is relevant to show that her intention was to efface herself
completelv. Now as regards this house, Garja Singh
(P. W. 1) gives us this description of it :
"The distance
between the door of the Sabbat and
that of Darwaja is only about two karams."
(eleven
feet). "Opposite to Darwaja there is one Jhallani the
door of which opens into the Sabbat and not in the
courtyard.
Except
Darwaja,
Sabbat
and Jhallani
there is no other roofed portion in their house. There is
only one compound for the cattle."
In this tiny dwelling live not only Mst. Biro but also
her three sons. It forms, as the High Court held, a very
small part of the whole property. The retention of this,
particularly in these
circumstances
when the
sons
already live there with her, would not invalidate the
surrender. The law about this has been correctly set
out in Mulla's Hindu Law, 11th edition, page 217, in
the following terms :
"But the omission, due to ignorance or to oversight, of a small portion of the whole property does
not affect the validity of the surrender when it is otherwise bona fide."
The present case is, in our opinion, covered by that
rule.
We agree with the High Court that the gift
operated to accelerate the succession. That being the
case, the plaintiffs are no longer the reversioners even
if they would otherwise have been entitled to succeed
on failure
of the daughter's sons and their line.
We
need not decide whether the plaintiffs, as collaterals in
the fifth degree, would be heirs at all.
'rhe appeal fails and is dismissecf! with costs.
Appeal. dismissed.
7-86 S. C. India/59
1954
(]opal Singh
arid Oshm
v.
Ujagar Singh
and Others
Bose]