# May 6. I960 ]ai Kau v. She, Singh

- **Citation:** [1960] 3 S.C.R. 975
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Bench:** P. B. Gajendragadkar, K. N. W Anchoo, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/may-6-i960-ai-kau-v-she-singh-1909
- **Pages:** 14

## Headnote

Hindu Law-] ats of Grewal got-Customary law of successionN on-ancestral property-Daughter, if pref erred to collateralsDoctrine of surrender-Gift to daughter by widow, if accelerates
succession-Rattigan's Customary Law of the Punjab, para 23-Riwaji-am, r882, Question 43.
Under the customary law prevalent amongst the Hindu Jats
of Grewal got in Ludhiana, a daughter is a preferential heir to
her father in respect of his self-acquired property to his collaterals.
Rattigan's Digest of Customary Law, paragraph 23, which records
the correct law on the point, is not in conflict with Riwaj-i-am,
1882, Question No. 43, which refers only to ancestral property
and not to self-acquired property at all.
Mt. Hurmate v. Hoshiaru, A.I.R. 1944 Lah. 21, approved.
Mohinder Singh v. Kher Singh, A.LR. 1949 East Punjab 328,
disapproved.
Mt. Subhani v. Nawab, A.LR. 1941 (P.C.) 21, referred to.
Case-law discussed.
The doctrine of surrender in Hindu Law is based on a theory
of complete self-effacement by the widow in favour of the reversioner and in order that such surrender·. can accelerate the
reversion, it must be of the entire interest in the entire property.
The law does not recognise a partial self-effacement nor a division
between ancestral and non-ancestral property. The exception
made in respect of a small portion of the property retained for
the widow's maintenance does not detract from the rigour of the
rule.
Rangaswami Gounden v. Nachiappa Gounden, (1918) L.R. 46
I.A. 72 and Phool Kau.r v. Prem Kaur, [1952] S.C.R. 793, referred to.
Consequently, in a case where a Hindu widow of the Jat
Grewal got made a gift only of the self-acquired property of her
husband to her daughters such gift had not the effect of a
surrender in law so as to accelerate the daughters' succession and
the gift could not be valid beyond her lifetime.
Gajsndragadkar j
1960
May 6.
I960
]ai Kau,
v.
She, Singh
Das Gupta J.
076
SUPREME COURT REPORTS
[1960]
C1vrL APPELLA'l'E JURISDICTION: Civil Appeal
No. 108/ 56.
Appeal by special leave from the Judgment and
decree dated May 27, 1953, of the Punjab High
Court in Regular Second Appeal No. 176 of 1949,
against the judgment and decree dated December 20,
1948, of the District ,Judge, Ludhiana, arising <)Ut of
the Judgment and decree dated February 6, 1948,
of the Subordinate Judge, II Class, Ludhiana, in Suit
No. 918 of 1946.
Gopal Singh, for the appellants.
G. B. Aggarwala and K. P. Gupta, for the respondents.
1960. May 6.
The Judgment of the Court was
delivered by
DAS GUPTA, J.-The suit out of which this appeal
has arisen was instituted by the respondents 1 and 2,
Sher Singh and Labh Singh, for a declaration that a
deed of gift executed by the first appellant, Jai Kaur,
in respect of 8 (1-10) Bighas of land which she had
inherited from her husband, Dev Singh, in favour of
her two daughters, the 2nd & 3rd appellants before us,
" shall be null and void against the reversionary rights
of the plaintiffs", and defendant Nos. 4 to 6 after the
death of defendant No. 1 (i.e., Jai Kaur) and shall not
be binding upon them. The plaintiffs' case was that
these lands left by Dev Singh were all ancestral lands
qua the plaintiffs and according to the customary law
which governs the Jats belonging to Grewal got to
which these parties belong daughters do not succeed
to property left by sonless fathers and so the gift by
Dev Singh's widow in favour of her daughters would
·be null and void as against the plaintiffs and others
who would be entitled on Jai Kaur's death to succeed
to the estate as reversioners. In the alternative, the
plaintiffs contended that even if the land in suit was
not ancestral qua the plaintiffs then also the deed of
gift would be null and void as against their reversionary interests inasmuch as even as regards nonancestral property daughters do not succeed among
the' Grewal Jats. The main contention of defendants
1 to 3 (the appellants before us) was that the suit land
was not ancestral qua the plaintiffs and defendants

## Text

....,....
,._~ -._,
3 S.C.R. SUPREME COURT REPORTS
975
on the important question of law in regard to the
c960
construction of s. 22 (l)(d) of the Act.
Under the R
-- c
circumstances of this case we think the ends of justice anI';::;::~/2~a.
would be met if we convict the respondents of the
v.
offence charged and direct that each one of them Jatin Chakravo1ty
should pay a fine of rupee one.
Appeal allowed.
JAI KAUR & OTHERS
v .
SHER SINGH & OTHERS.
(P. B. GAJENDRAGADKAR, K. N. W ANCHOO and
K. c. DAS GUPTA, JJ.)
Hindu Law-] ats of Grewal got-Customary law of successionN on-ancestral property-Daughter, if pref erred to collateralsDoctrine of surrender-Gift to daughter by widow, if accelerates
succession-Rattigan's Customary Law of the Punjab, para 23-Riwaji-am, r882, Question 43.
Under the customary law prevalent amongst the Hindu Jats
of Grewal got in Ludhiana, a daughter is a preferential heir to
her father in respect of his self-acquired property to his collaterals.
Rattigan's Digest of Customary Law, paragraph 23, which records
the correct law on the point, is not in conflict with Riwaj-i-am,
1882, Question No. 43, which refers only to ancestral property
and not to self-acquired property at all.
Mt. Hurmate v. Hoshiaru, A.I.R. 1944 Lah. 21, approved.
Mohinder Singh v. Kher Singh, A.LR. 1949 East Punjab 328,
disapproved.
Mt. Subhani v. Nawab, A.LR. 1941 (P.C.) 21, referred to.
Case-law discussed.
The doctrine of surrender in Hindu Law is based on a theory
of complete self-effacement by the widow in favour of the reversioner and in order that such surrender·. can accelerate the
reversion, it must be of the entire interest in the entire property.
The law does not recognise a partial self-effacement nor a division
between ancestral and non-ancestral property. The exception
made in respect of a small portion of the property retained for
the widow's maintenance does not detract from the rigour of the
rule.
Rangaswami Gounden v. Nachiappa Gounden, (1918) L.R. 46
I.A. 72 and Phool Kau.r v. Prem Kaur, [1952] S.C.R. 793, referred to.
Consequently, in a case where a Hindu widow of the Jat
Grewal got made a gift only of the self-acquired property of her
husband to her daughters such gift had not the effect of a
surrender in law so as to accelerate the daughters' succession and
the gift could not be valid beyond her lifetime.
Gajsndragadkar j
1960
May 6.
I960
]ai Kau,
v.
She, Singh
Das Gupta J.
076
SUPREME COURT REPORTS
[1960]
C1vrL APPELLA'l'E JURISDICTION: Civil Appeal
No. 108/ 56.
Appeal by special leave from the Judgment and
decree dated May 27, 1953, of the Punjab High
Court in Regular Second Appeal No. 176 of 1949,
against the judgment and decree dated December 20,
1948, of the District ,Judge, Ludhiana, arising <)Ut of
the Judgment and decree dated February 6, 1948,
of the Subordinate Judge, II Class, Ludhiana, in Suit
No. 918 of 1946.
Gopal Singh, for the appellants.
G. B. Aggarwala and K. P. Gupta, for the respondents.
1960. May 6.
The Judgment of the Court was
delivered by
DAS GUPTA, J.-The suit out of which this appeal
has arisen was instituted by the respondents 1 and 2,
Sher Singh and Labh Singh, for a declaration that a
deed of gift executed by the first appellant, Jai Kaur,
in respect of 8 (1-10) Bighas of land which she had
inherited from her husband, Dev Singh, in favour of
her two daughters, the 2nd & 3rd appellants before us,
" shall be null and void against the reversionary rights
of the plaintiffs", and defendant Nos. 4 to 6 after the
death of defendant No. 1 (i.e., Jai Kaur) and shall not
be binding upon them. The plaintiffs' case was that
these lands left by Dev Singh were all ancestral lands
qua the plaintiffs and according to the customary law
which governs the Jats belonging to Grewal got to
which these parties belong daughters do not succeed
to property left by sonless fathers and so the gift by
Dev Singh's widow in favour of her daughters would
·be null and void as against the plaintiffs and others
who would be entitled on Jai Kaur's death to succeed
to the estate as reversioners. In the alternative, the
plaintiffs contended that even if the land in suit was
not ancestral qua the plaintiffs then also the deed of
gift would be null and void as against their reversionary interests inasmuch as even as regards nonancestral property daughters do not succeed among
the' Grewal Jats. The main contention of defendants
1 to 3 (the appellants before us) was that the suit land
was not ancestral qua the plaintiffs and defendants
r
~.
I -
-
3 S.C.R. SUPREME COURT REPORTS
977
Nos. 4 to 6, and that according to the customary law
governing the Jats of the Grewal got, daughters
exclude collaterals as regards non-ancestral property
and a widow is competent to make a gift of such property in favour of her daughters. It was pleaded on
behalf of the two daughters that they being preferential heirs in respect of the land in suit as against
the plaintiffs, the gift is tantamount to acceleration
of succession and is valid in every way. The Trial
Judge held that 2B-2B,14-B out of the land in suit
was ancestral and the gift was invalid to that extent,
because as regards ancestral property a daughter
does not succeed in the presence of collaterals. As
regards the remainder of the suit land which he held
was non-ancestral, the learned Judge was of opinion
that the gift was merely an acceleration of succession
as under the customary law governing the parties
daughters exclude collaterals as regards succession to
non-ancestral property.
Accordingly he gave the
plaintiffs a decree as prayed for as regards 2-B-2B,
14-B out of the land in suit and dismissed it as regards
the remaining portion of the land in suit.
The plaintiffs appealed to the District Judge,
Ludhiana, against this decreeand cross-objections were
filed by the defendants Nos. 1 to 3. The Tria.l Court's
finding about a portion of the land being ancestral
and the rest non-ancestral was not disputed before
the appeal court. On the question of custom the
learned District Judge agreed with the Trial Judge's
view that among the Grewal Jats of Ludhiana the
daughter excluded collaterals as regards non-ancestral
property. He held, therefore, agreeing with the Trial
Judge that as regards the non-ancestral property the
deed of gift was merely an act of acceleration of
suc~ession and was, therefore, valid and binding. The
appeal was accordingly dismissed and so also were the
cross-objections which appear not to have been
pressed.
On second appeal the learned judges of the East
Punjab High Court accepted the contention urged on
behalf of the plaintiffs that a special custom was
proved to be in force among the Grewal J ats under
which the daughter does not inherit even as regards
/ai Kaur
v.
Sher Singh
Das Gupta ].
I960
.Jai Kaur
v
Sher '-i"ingh
Das Gupta ].
978
SUPREME COURT REPORTS
(1960]
non-ancestral property. In that view they held that
even as regards the non-ancestral property the gift by
Jai Kaur would be valid only during her lifetime,
and allowed. the appeal.
Against this decree of the High Court defendants
Nos. 1 to 3-Jai Kaur and her two daughters, the
donees-have filed this appeal on the strength of
special leave granted by this Court.
Two questions arise for consideration in this appeal.
The first is whether under the customary law governing the Jats of the Grewal got in Ludhiana to which
the parties belong, the daughter or the collaterals are
the preferential heirs as regards non-ancestral property. If the answer to this question be that daughters
have preference over collaterals (the plaintiffs here),
the other question which arises is whether this gift is
such acceleration of succession in favour of the daughters as is permissible under the law.
On the question of custom the appellants rely on
the statements in paragraph 23 of Rattigan's Digest
of Customary Law (Thirteenth Edition) that in regard
to the acquired property of her father the daughter is
preferred to collaterals. It is not disputed that nonancestral property is " acquired property " within
the meaning of this statement by Rattigan. Against
this the plaintiffs-respondents rely on the answers to
question No. 43 relating to Hindu Grewal Jats of
Ludhiana as appear in the Riwaj-i-am prepared at
the revised settlement of 1882. The question and. the
answer are in these words :-
Question:
"Under
what circumstances can
daughters
inherit ? If there are sons, widows or near collaterals, do they exclude the daughter? If the
collaterals exclude her, is there any fixed limit of
relationship or degree within which such near
kindred must stand ?"
Answer:
r
<.-
(
· " In our tribe the daughter does not succeed under
1any circumstances. If a person dies sonless, his
collaterals succeed him. There is no fixed limit of
relationship for purposes of excluding her.
-
3 S.C.R. SUPREME COURT REPORTS
979
If there are no collaterals of the deceased, the
owners of the Thulla or Patti or village would be
owners of his property."
The authoritative value of Rattigan's compilation
of customary law is now beyond controversy, having
Leen recognised in the judicial decisions of the Punjab
courts too numerous to mention, which have also
received the approval of the Judicial Committee of the
Privy Council.
Therefore it is not, and cannot be
disputed that under the general customary law of the
Punjab daughters exclude collaterals in succession to
non-ancestral property. The value of entries in the
IUwaj-i-am has, also however, been repeatedly stressed.
That they are relevant evidence under s. 35 of the
Evidence Act iR clear and the fact that the entries
therein are the result of careful research of persons
who might also be considered to have become experts
in these matters, after an open and public enquiry has
given them a value which should not be lightly underestimated. There is, therefore, an initial presumption
of correctness as regards the entries in the Riwaj-i-am
and when the custom as recorded in the Riwaj-i-am
is in conflict with the general custom as recorded in
Rattigan's Digest or ascertained otherwise, the entries
in the Riwaj-i-am should ordinarily prevail except
that as was pointed out by the Judicial Committee of
the Privy Council in a recent decision in Mt. Subhani
v. Nawab (1), that where, as in the present case, the
Riwaj-i-am affects adversely the rights of females
who had no opportunity-whatever of appearing before
the revenue authorities, the presumption would be
weak, and only a few instances would suffice to rebut
it.
In the present appeal the oral testimony given on
behalf of either party is practically valueless to show
any instance in favour of the custom pleaded by them.
If, therefore, the Riwaj-i-am does show as urged by the
plaintiffs a custom of <laughers being excluded by
collaterals in respect of non-ancestral property, it is
clear that Riwaji-i-am would prevail. The real controversy in this litigation is, however, on the question
whether the entries in the Riwaj-i-am on which.
(I) A.I. R. I!i14I (P.C.) 21.
Jai Kaur
v.
Sher Singh
Das Gupta j
\
I960
}ai /(aur
v.
S'her Singh
Das Gupta j.
980
SUPREME COURT REPORTS
[1960)
the plaintiffs rely refer at all to non-ancestral ·property or not. This controversy has engaged the
attention of the courts in Punjab for a number of
years beginning with 1916. In that year in Mst. Raj
Kaur v. Talok Singh (1) Sir Donald Johnstone, the
Chief Justice held that the Biwaj-i-am as compiled,
did not cover self-acquired property and that where
the Riwaj-i.am talked about succession to land without discrimination between ancestral and self-acquired, the rule laid down could usually only be taken to
apply to ancestral property.
A similar view was
taken by Shadilal and Wilberforce, JJ., in Budhi Prakash v. Chandra Bhan (2).
The view taken in these
cases was followed by other judges of the High Court
in Narain v. Mst. Gaindo (')and Fatima Bibi v. Shah
Nawaz ('). In ShamDasv. Moolu Bai(') the learned
judges (LeRossignol and Fforde, JJ.) also laid down
the same principles, without. any reference to the
previous decisions, in these words :-
"It is true in the Riwaj-i-am no distinction is
made between ancestral and acquired property, but
it is a well-recognised rule that unless there are
clear indications to the contrary, such an entry in a
record of custom refers only to the succession to
ancestral property. "
After this view had been followed in several other
decisions a different line was struck in J atan v. J iwan
Singh('). That was a case between Grewal Jats and
the contest lay between collaterals of the last male
holder and his married daughter with respect to his
non-ancestral property. The learned judges were of
·opinion that the Question No. 43 in the Riwaj-i-am
rebted to both ancestral and non-ancestral property
and so the answer to the question recorded in Riwaj-iam proved that as regards the non-ancestral property
also the daughter was excluded by collaterals. In
coming to this conclusion they laid stress on the fact
that in two previous decisions, Ishar Kuar v. Raja
Singh {7) and Pratap Singh v. Panjabu {8) the questions
and answers in the Biwaj-i-am as regards daughter's
(1) A.l.R. 1916 Lah. 343.
(2) A.T.R. 19T8 Lah. 225.
(3) A.I.R 1918 Lah, 304
(4) A.I.F. 1q2r Lah. 180.
(5) A.I.R. 1926; Lah. 210.
(6) A.LR. 1933 lab. 553·
(7) (19n) 9 I.e. 6o8.
\8) (19n) 13 r.c. 177
-
-
... -;
3 S.C.R. SUPREME COURT REPORTS
981
right to succe~sion were interpreted as covering nonancestral property also and if it was contemplated
that a daughter shottld succeed to self-acquired property, one would have expected that fact to be
mentioned in the answer. It was in view of the
conflicting views which had thus arisen on the question whether Question No. 43 in the Riwaj-i-arri in the
absence of a clear indication to the contrary related to
ancestral property only or to both ancestral and nonancestral property that a reference was made by
Mr. Jm;tice Abdur H,ahman in Mt. Hurmate v. Hoshiaru1
to a Full Bench of the High Court. The Full Bench
reviewed the numerous decisions of the Punjab courts
in this matter and also took into consideration the
fact that Mr. Gordon Walker who ha.d prepared the
Riwaj-i-am in 1882 had stated in the preface that no
distinction between self-acquired and inherited property in land appeared to be recognised a.nd the rules
of succession, restriction on alienation, etc., applied to
both alike ; and after a careful consideration of all the
relevant factors recorded their conclusion that "Question No. 43 of the Customary Law of Ludhiana
district relates to ancestral property only and can in
no circumstances be so interpreted as to cover selfacquired property as well." Mr. Justice Din Mohammad who delivered the leading judgment observed:-
"The raison d' entre of those cases which lay
down that the manuals of Customary Law were
ordinarily concerned with ancestral property only
is quite intelligible. Collaterals are, as stated by
Addison, J., in 13 Lah. 458, really speaking interested in that property only which descends from their
common ancestor and this is the only basis of the
agnatic theory.
What a
male-holder acciuires
himself is really no concern of theirs. It is reasonable, therefore, to assume that when manuals of
Customary Law were originally prepared and subsequently revised, the persons questioned, unless
specifically told to the contrary, could normally
reply in the light of their own interest alone and
that, as stated above, was confined to the ancestral
property only. The fact that on some occasions
( r) A.I.R. 1944 Lah. 21.
127
Jai Kaur
v.
Das Gupta].
.Jai Kautv.
She.- S'ingh
082
SUPREME COURT REPORTS
[1960]
the questioner had particularly drawn some distinction between ancestral and non-ancestral property
would not have put them on tkeir guard in every
case, considering their lack of education and lack of
intelligence in general.
Similarly, the use of the
terms '' in no case " or " under no circumstances''
would refer to ancestral property only and not be
extended so as to cJver self-acquired property
unless the context favoured that construction."
One would have thought that after this pronouncement by a Full Bench of the High Court the controversy would have been set at rest for at least the
Punjab courts. Surprisingly, however, only a few years.
after the above pronouncement, the question was
raised again before a Division Bench of the East
Punjab High Court in Mohinder Singh v. Kher Singh(').
The learned judges there chose to consider the matter
afresh and in fact disregarded the pronouncement of
the Full Bench in a manner which can only be said
to be unceremonious. Teja Singh, J., who delivered
the leading judgment said that the Full Bench, though
noticing the cases of lshar Kaur v. Raja Singh(') and
Pratap Singh v. Panjabu ('), had not said that those
cases had been wrongly decided. It has to be noticed
that the Full Bench in no uncertain terms expressed
their conclusion that question No. 43 of the Customary
Law of the Ludhiana district related to ancestral
property only and could in no circumstances be so
interpreted as to cover self-acquired property as well.
In coming to that conclusion they had considered
numerous decisions of the Punjab courts in support of
the general proposition that unless there are clear indications to the contrary the questions relate to ancestral
property, considered the cases in which a contrary
view had been taken including the three cases of
Jattan v.
Jiwan Singh ('), lshar Kaur v.
Raja
Singh (2 ) and Pratap Singh v. Panjabu (') and gave
their own reasons why the
view that unless
there are clear in di cations to the contrary the
manuals of customary law should be taken to refer
to ancestral property only, and after considering the
(1) A.I.R. 1949. East Punjab 328
(3) (1911) 13 LC. 177.
(2) (19u) Q LC. 608.
(4) A.I.R. 1933 Lah. 553.
--
-
,,.. .. ~
.....
-
3 S.C.R.
SUPREME COURT REPORTS
983
question and answer in question No. 43 in the case
before them as regards the Mohammadan Rajputs,
recorded their final conclusion. It is neither correct
nor fair to say that the learned judges of the Full
Bench did not hold Jattan's Case, Pratap Singh's
Case and Ishar !four's Case to have been wrongly
decided in so far as these decisions held the question
No. 43 of the Customary Law of the Ludhiana district to refer hoth to ancestral and non-ancestral
property. It is true that they did not say in so many
words that these cases were wrongly decided; but
when a Full Bench decides a question in a particular
way every previous decision which had answered the
same question in a different way cannot but he held
to have been wrongly decided. We had recently
occasion to disapprove of the action of a Division
Bench in anothee High Court in taking it upon themselves to hold that a contrary decision of another
Division Bench on a question of law was erroneous
and stressed the importance of the well recognised
judicial practice that when a Division Bench differs
from the decision of a previous decision of another
Division Bench the matter should be referred to a
larger Bench for final decision. If, as we pointed
out there, considerations of judicial decorum and
legal propriety require that Division Benches should
not themselves pronounce decisions of other Division
Benches to be wrong, such considerations should
stand even more firmly in the way of Division
Benches disagreeing with a previous decision of the
Full Bench of the same court.
In our opinion, the view taken by the ]'ull Bench
in Mt. Hu,rmate v. Hoshiarn (1 ) is consonant with
reasons and consistent with probability. The fact
that the great majority of judges, who brought to
bear on the question, an intimate knowledge of the
ways and habits of the Punjab peasantry thought
that when tribesmen were asked about succession to
property, they would ordinarily think that they were
being asked about succession to ancestral property,
is entitled to great weight. It cannot, we think, be
seriously disputed that at least in the early years
(I/ A.I. R. 1944 Lah
l I.
]ai Kaur
v.
Sher Singh
Das Gupta].
.1960
Jai Kaur
v.
Sher Singh
Das Gupta].
984
SUPREME COURT REPORTS
[1960]
when the Riwaj-i-am was in course of preparation most
of the property in the countryside was ancestral
property, and " self-acquisitions " were few and far
between. This fact, it is reasonable to think, had
the consequence of concentrating the attention of
the tribesmen on the importance of having the tribal
custom correctly recorded by the Settlement Officers
and their agents, as regards succession to ancestral
property, and of attracting little BJttention, if any,
to matters regarding non-ancestral property. Unless
the questions put to these simple folk, were so framed
as to draw pointed attention to the fact that the
enquiries were in respect of non-ancestral property
also, they could not reasonably be expected to understand from the mere fact of user of general words in
the questions that these referred to both ancestral
and non-ancestral property.
As Din Mohammad, J.,
said in his judgment in the Full Bench, even the
fact that on some occasions, the questioner had
drawn some distinction between ancestral and nonancestral property, could not have put them-(i.e.,
the persons questioned)-on their guard in every case,
considering their lack of intelligence in general.
Their minds being obsessed with the idea that such
enquiries would only refer to ancestral property, they
would direct their answers to matters in respect of
ancestral property only, and in using forceful terms
like " in no case " and " under no circumstances",
these persons were really saying that "in no case"
would ancestral property devolve in a particular way
and have a particular incidence ; and under no " circumstances " would ancestral prop.erty devolve in a
particular way, and have a particular incidence.
These considerations, we think, outweigh the statement made by Mr. Gordon Walker that no distinction between self-acquired and inherited property in
land appeared to be recognised, and the rules of
succession, restriction on alienation, etc., applied to
both alike.
We think, theFefore, that the view taken by the
Full Bench, and the many previous cases mentioned
in the judgment of the Full Bench, th.at questions
and answers in the Riwaj-i-am refer ordinarily to
;.
I
-
/
3 S.O.R.
SUPREME COURT REPORTS
985
ancestral property, unless there is clear indication
to the contrary, is correct. Question No. 43 in the
Ludhiana district, appears to be the same for all the
tribes. There is not the slightest indication there
that the questioner wanted information about nonancestral property also.
The answer given by the
Grewal Jats to this question also gives no reason to
think that the persons questioned were thinking in
giving the answers of both ancestral and non-ancestral property.
We have, therefore, come to the conclusion that the
entries in the Riwaj-i-am on which the plaintiffsrespondents rely do not refer at all to non-ancestral
property, and are, therefore, not even relevant evidence
to establish the existence of a custom among Grewal
J ats of Ludhiana district, entitling collaterals to
succession to non-ancestral property, in preference to
daughters.
Reliance was next placed on behalf of these respondents on the fact that the e;cistence of such a custom
was recognised in a number of judicial decisions, viz.,
Jattan v. Jiwan Singh (1), I shar Kaur v. Raja Singh (2)
and Pratap Singh v. Panjabu (3). If these decisions in
so far a:> they recognised the existence of such a
custom, had been solely or even mainly based on
evidence, other than entries in the Riwaji-i-am, they
might have been of some assistance. Examination of
these cases, however, shows unmistakably that they
were either wholly, or mainly based on the entries in
the Riwaj-i-am on the assumption that these entries
referred to both ancestral and non-ancestral property.
This assumption having been established to be baseless, these decisions are valueless, to show that the
custom as alleged by the plaintiffs-respondents did
exist as regards non-ancestral property. Further,
the oral evidence produced in the present case is wholly
insufficient to prove such a custom.
It must, therefore, be held that the customary law
among the Grewal J ats of Ludhiana district as regards
succession to non-ancestral property is the same as
recorded generally for the Punjab in Paragraph 23 of
Hiattigan's Digest-i.e., the daughter is preferred to
(I) A.I.R. I9H Lah. ~53·
(2) (rgu) 9 I.C. 608,
;3) (19111 13 1.c. 177,
1960
] ai Kaur
v.
Sher Singh
IJas Gupta ].
Jai /{aur
v.
Sher Singh
Das Guptri ].
986
SUPREME COURT REPORTS
[1960]
collaterals, and consequently, the second and the third
appellante, were the next reversioners to that portion
of Dev Singh's property which has been found to be
non-ancestral.
This brings us to the question whether the gift of
this portion, by the first appellant to these reversioners, gives them a good title, beyond the widow's
lifetime.
We have to remember in this connection
that as regards the ancestral property, these daughters
were not the reversioners, and the further fact that
out of the ancestral property, the house was not
included in the deed of gift. The position. therefore, is
that out of the property in which the first appellant
held a widow's estate, she gave by the deed of gift a
portion to the reversioners as rAgards that portion, a
portion to persons who were strangers to the reversion
as regards that portion and a portion was retained by
her. The doctrine of Hindu law according to which,
a limited owner can accelerate the reversion, by surrendering her interest, to tjie next reversioner, is based
on a theory of self-effacement of the limited owner.
That is why it has been laid down that in order that
a surrender by a limited owner to a reversioner, may
be effective, the surrender must be of the entire interest of the limited owner in the entire property. The
exception made in favour of the retention of a small
portion of the property for her maintenance, does not
affect the strictness of the requirement that a surrender to be effective, must be of the entire interest in the
entire property: Vide Rangasami Gounden v. Nachiappa Gounden(') and Phool Kaur v. Pem Kaur(').)
In so far as there is gift to a stranger, there is no
effacement of the limited owner; nor is there any
effacement in respect of the property which is retained.
We find it impossible to say, therefore, that there is
such effacement of the limited owner in this case, as
would accelerate the daughter's rights by converting
the future contingent right into a present vested right.
On behalf of the appellants it is argued that there
is certainly a total effacement in respect of the non.
ancestral property, so that the right of the next
reversioners-the daughters-in that property has
(1) (1918) L.R. 46 I,A. 7'-
(2) [1952] S.C.R. )93·
,_
I
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....
3 S.C.R.
SUPREME COURT REPORTS
987
been acceler.1ted.
We do not think we shall be
justified in recognising this novel doctrine of the
possibility of effa.cement of the limited owner vis-a-vis
the next reversioner of the non-ancestral property
when there is no effacement vis-a-vis the reversioner
of the ancestral property, and vice versa.
Effacement cannot be broken up into two or more parts in
this manner; and however much the limited owner
may wish to efface herself only vis-a-vis those next
reversioners whom she wants to benefit, law does not
recognise such " partial effacement ".
The Hindu Law doctrine of surrender does not,
therefore, make the gift of the non-ancestral property
to the daughters valid beyond the widow's lifetime.
It is not suggested that there is any customary law
by which such sunender can be made.
Though, therefore, we have found disagreeing with
the learned judges of the High Court that under the
customary law governing the Grewal got of Jats to
which the parties belong, the daughters-the second
and the third appellants-:1rn preferential heirs to the
non-ancestral portion of the suit lu.nd, we hold that
their conclusion that this deed of gift in favour of the
daughters is not v,1lid even a" regard.:1 the non-ancestral property, beyond the donor's lifetime is correct
and must be maintained .
As a last attempt Mr. Gopal Singh, counsel for the
appellants, wanted us to hold that under s. 14 of the
Hindu Succession Act, which became law in 1956,
either the mother or the daughters have become full
owner.:1 of thiil property, and S'J the plaintiffs' suit
should be dismissed.
As the Hindu Succession Act
was not on the statute-book, when the written statement was filed or at any time before the suit was
disposed of in the courts below, the defence under
s. 14 of that Act could not be thought of and was not
raised. The necessary consequence is that evidence
was not adduced, with the facts material for the
application of s. 14 in view, by either party. Mr. Agarwala has, on behalf of the plaintiffs-respondents,
contended that as the record stands the mother had
ceased to be in possession and could not get the benefit of s. 14 of the Hindu Succession Act, and that the
]at f{aur
v.
,'-i'her S·1ngh
Da> Gupta .J.
Jai i<aur
v.
Sher Singh
Das Gttpta J.
Ig60
May 6.
988
SUPREME COURT REPORTS
[1960]
dJ.ughters in posses~ion, would not become full
owners under s. 14. We do not think it would be
proper to consider these questions in the present suit
in this haphazard manner when on the all-important
question of possession, the appellants themselves do
not wish to say whether the mother was in possession
actually or constructively, whether the danghters'
possession was merely permissive, or whether the
daughters were in independent possession, on their
own behalf.
These and other questions of fact, and
the questions of law that have to be considered in
deciding a claim by tho first appellant or the other
two appellants under s. 14 of the Hindu Succession
Act, should properly be considered in any suit that
they may bring in future, if so advised. We express
no opinion on any of these questions.
For the reasons which have been mentioned earlier,
we hold that the High Court rightly decreed the snit
in favonr of the plaintiffs in respect of the nonancestral property also, and dismiss the appeal. In
the circumstances of the case, we order that the parties
will bear their own costs throughout.
Appeal dismissed.
THE COMMISSIONER 0]' INCOME TAX,
BOMBAY CITY I, BOMBAY
v.
M/S. NARSEE NAGSEE AND CO., BOMBAY.
(S. K. DAS, J. L. KAPUR and M. HrnAYATUI,LAH, JJ.)
Business Profits Tax-Limitation for assessment-Notice under
Business Profits Tax Act issued beyond four years-Validity-
,, Profits escaping assessm-ent ", meaning of-Excess JYrofits Tax Act,
1940 (15 of 1940), ss.13, 15-Indian Income-tax Act,1922 (II of 1922),
ss. 22(2), 34(1)-Income Tax and Excess Profits Tax Amendment
Act, 1947 (22 of 1947)-Business Profits Tax Act, 1947 (21 of 1947),
SS. II(I), 14.
The assessee firm which was doing business in Bombay \vas
served with a notice on January 21, 1953, by the Income-tax
,
Officer under s. n(1) of the Business Profits Tax Act, 1947· in
respect of the chargeable accounting period from November 13,
1947, to October 31, 1948, calling upon it to submit its return. It
filed the return under protest stating that the notice was barred
under s. 14 of the Act as it was served beyond the period of four
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