Gopal Singh and Others vs Ujagar Singh and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 174 of 1952

Decision Date: 2 April 1954

Coram: Vivian Bose, B.K. Mukherjea, Ghulam Hasan, Ghulam Aiyyar, T.L. Venkatarama

In the matter titled Gopal Singh and Others versus Ujagar Singh and Others, the Supreme Court delivered its judgment on 2 April 1954. The case was reported in the 1954 All India Reporter at page 579 and also appears in the 1955 Supreme Court Reports at page 86. The bench that heard the appeal comprised Justice Vivian Bose, Justice B K Mukherjea, Justice Ghulam Hasan, Justice Ghulam Aiyyar and Justice T L Venkatarama. The appeal, designated Civil Appeal No 174 of 1952, arose from a cascade of earlier decisions: the judgment and decree dated 27 June 1950 of the High Court of Judicature of Patiala and East Punjab States Union in Second Appeal No 219 of 1949-50; the judgment and decree dated 21 September 1949 of the Court of the Additional District Court, Bhatinda, in Appeal No 61 of 1948; and the judgment and decree dated 10 August 1948 of the Sub-Judge, 11th Class, Mansa, in Case No 134 of 1947. Counsel appearing for the appellants were Gopal Singh and Sardar Singh, while the respondent was represented by counsel identified as Achhru Ram assisted by K L Mehta.

The dispute concerned property that had originally belonged to a deceased landowner named Harnam Singh. After his death, his daughter, identified as Mst Biro, transferred the subject land to her sons, who are collectively described as the first defendant. The appellants assert that they are the presumptive reversioners of Harnam Singh’s estate and contend that the property in question is ancestral. They maintain that the daughter possessed only a life interest and therefore seek a declaration that the gift to her sons does not impair their reversionary rights. The respondents relied upon the customary law governing agricultural Jats of the village Ralla in Tahsil Mansa, District Barnala, State of Pepsu. Under this custom, it is alleged that collaterals beyond the fifth degree are excluded from inheritance when a daughter and her line are present. Accordingly, the respondents argued that the appellants, described as collaterals of a more remote degree, cannot prevail over the daughter’s line. The headnote of the reported decision summarises the Court’s holding: among the agricultural Jats of Village Relia in Barnala, the daughter’s sons inherit the non-ancestral lands to the exclusion of collaterals, and a gift by the daughter to her sons constitutes an acceleration of succession. The Court further observed that an omission to include a small portion of the property due to ignorance or oversight does not invalidate the surrender if it is otherwise made in good faith. The judgment referenced earlier authorities including Lehna v Mst Thakri (32 Punjab Record 1892), Lal Singh v Boor Singh (55 P.L.R. 168 at 172), Mulla’s Hindu Law (11th edition, page 217) and Rattingan’s Digest of Customary Law, paragraph 23(2).

The defendants argued that the plaintiffs were collaterals of the seventh degree and therefore could not displace the daughter’s right to the property. They also contended that the land was not ancestral, which meant that the plaintiffs had no standing to challenge the daughter’s alienation of the estate. A third line of defence related to a portion of the property that was not in dispute before the Court. The subject matter of the suit comprised three distinct items: first, 253 bighas of Khas land; second, a half-share in 3 bighas and 19 biswas; and third, a share in certain shamlat property. The defendants maintained that Harnam Singh had gifted 123 bighas of the Khas land to the second defendant and that the gift was absolute, thereby precluding the plaintiffs from claiming that portion of the property in any event. The trial Judge, relying on the admission made by the plaintiffs’ counsel, held that the land in dispute was non-ancestral and that the daughter’s sons would succeed after her to the exclusion of the plaintiffs. Consequently, the Judge concluded that the daughter’s gift to her sons amounted to an acceleration of the estate and dismissed the plaintiffs’ suit.

On appeal to the lower appellate Court, the finding that the property was non-ancestral was upheld because the plaintiffs’ counsel in that Court did not contest the trial Judge’s determination on that point. Regarding the issue of acceleration, the appellate Judge considered a point raised by the plaintiffs in the trial Court but ignored there: the house was not part of the gifted estate. The plaintiffs argued that because the entire estate had not been transferred to the next heir, acceleration could not be said to have occurred. After taking evidence on this question, the appellate Judge held that the house was indeed excluded from the gift and therefore ruled against the defendants, granting the plaintiffs’ claim for that portion of the estate. In the High Court, the learned Judges reaffirmed the concurrent finding that the property was non-ancestral, a point conceded by the plaintiffs’ counsel. They also agreed that the house was not included in the gift but held that the house was a very small part of the estate and that the daughter’s retention of it did not demonstrate an intention to remove herself from the estate. The High Court further held that the plaintiffs were collaterals in the fifth degree rather than the seventh, but because the property was non-ancestral, the daughter’s sons were the nearest heirs; therefore, the gift accelerated the estate and vested it in the donees despite the exclusion of the house. Accordingly, the High Court reversed the decree of the lower appellate Court and restored the decree of the trial Judge. Before the present Court, the plaintiffs’ counsel attempted to reopen the unanimous finding of the three lower Courts concerning the non-ancestral nature of the property, but the Court did not permit that. The matter presented a mixed question of law and fact, and the admissions involved both elements. The Court was not shown how the admitted facts could be separated from the applicable law to assess whether the legal conclusion drawn from those facts was erroneous.

In order to examine whether the legal conclusion drawn from the admitted facts was erroneous, the Court first separated the factual findings from the legal principles. The trial judge had explained that the admission of those facts was made because a previous decision in an earlier suit involving the same parties or their predecessors had been relied upon. In that earlier suit, Harnam Singh had mortgaged a portion of his estate and allowed the mortgagees to take possession of that mortgaged part. After Harnam Singh’s death, some of his collaterals entered into possession of the portion of the estate that remained unencumbered by the mortgage. The daughter, Mat. Biro, consequently instituted two separate actions: one seeking possession against the collaterals, which included the present plaintiffs or their predecessors, and another seeking a declaration against the mortgagees who were then in possession. In both actions she joined the same set of collaterals as parties. Mat. Biro succeeded in the possession suit on the ground that the property in dispute was non-ancestral. Those findings have become res judicata. If the plaintiffs’ counsel had not conceded that point, the issue would have been raised immediately and the earlier judgments, exhibited as Exhibits DD and DF, would have settled the matter. Because the point was conceded before all three courts, the defendants did not need to rely on the previous decisions, and the Court must accept that the entire land under consideration was non-ancestral.

This acceptance leads to the question of heirship. Paragraph 23(2) of Rattigan’s Digest of Customary Law states that, with respect to the acquired property of a father, the daughter is preferred to the collaterals. That proposition is not contested. However, the plaintiffs argue that the daughter’s right is limited to a restricted heirship, after which the property would revert to the father’s heirs in the ordinary manner. Such a view does not reflect the customary law of the agricultural Jat tribe to which the parties belong. Rattigan quotes a passage from Roe and Rattigan’s Tribal Law of the Punjab (page 61, page 411 of the thirteenth edition) which explains that when a married daughter is allowed to succeed, she does so not as a regular heir but as a conduit for transmitting the property to another male descendant. Her lineage from the father, though through the female line, may be treated as if it were a male line in exceptional circumstances. The daughter retains the land in her name for her lifetime, even after the birth of sons who reach majority, but her authority over the land is comparable to that of a widow. If she has sons, the estate will descend to them and their male issue in the normal way. In the absence of sons, or if the male issue fails, the land will revert, except in special cases where the husband may hold it for his life, after which it returns to the father’s agnates, as if no exception to agnatic succession had ever existed.

The Court observed that the proposition is backed by at least two decisions from the Punjab jurisdiction. In the earlier case of Lehna v. Mst. Thakri (1) two learned Judges of the Punjab Chief Court, with a third Judge dissenting, held, during a Full Bench proceeding, that even where the property was ancestral the sons of a daughter and their descendants would take precedence over any collaterals of the father. A later decision, rendered in 1953 by the Punjab High Court in Lal Singh v. Roor Singh (2), extended the same principle to non-ancestral property, holding that a daughter would be preferred to collaterals in that context as well. Counsel for the plaintiffs was informed that the rule applies only when the daughter actually succeeds and has no effect when she predeceases her father. The Court indicated that it would not address that contention because, in the present matter, the daughter did succeed, and every authority cited before the Court supported the view that her sons would exclude the collaterals. No authority was produced that adopted a contrary view. While the matter before the Court concerned non-ancestral property, the Court expressly refrained from commenting on the consequences that might follow in cases involving ancestral property, although the observations of the two learned Judges in the Punjab Chief Court Full Bench have been interpreted by some to extend the rule to ancestral holdings as well. The learned counsel for the plaintiffs relied upon paragraph 64 of Rattigan’s Digest, which states that, except in two specific situations that do not arise here, a female in possession of property derived from her father cannot permanently alienate it. The Court clarified that the present dispute was not about an alienation. The question rather was whether the purported gift to the sons would constitute an acceleration of the estate after the death of Mst. Biro, and if an acceleration had occurred, the form it took would be immaterial.

The Court then turned to the issue of surrender, focusing on whether Mst. Biro’s retention of a particular house would preclude an acceleration of the estate. The total property subject to the gift comprised more than 253 bighas. Mst. Biro possessed an absolute right to convey 123 bighas of that land, leaving roughly 130 bighas that could potentially be affected by the doctrine of surrender. The fact that she had transferred all of her property to her sons, except for the house in question, and that she held an absolute right over the transferred portion, was considered evidence of her intention to divest herself entirely of the estate. Regarding the house, Garja Singh (P.W. 1) described it as follows: the distance between the door of the Sabbat and that of the Darwaja measured about two karams, approximately eleven feet; opposite the Darwaja stood a Jhallani whose door opened into the Sabbat rather than into a courtyard; apart from the Darwaja, Sabbat and Jhallani, there was no other roofed area within the dwelling, and there existed only a single cattle compound. This modest dwelling was occupied not only by Mst. Biro but also by her three sons. The Court noted that, given the sons already resided there, the retention of this small portion would not defeat the surrender. The legal principle, set out in Mulla’s Hindu Law, 11th edition, page 217, holds that the omission, whether due to ignorance or oversight, of a minor portion of the whole property does not invalidate a surrender that is otherwise bona fide. Applying that rule, the Court concluded that the gift had indeed accelerated the succession, thereby extinguishing the plaintiffs’ claim to the reversionary interest, even if they might otherwise have succeeded on the failure of the daughter’s sons and their lineal male issue. Consequently, there was no need to determine whether the plaintiffs, as fifth-degree collaterals, would be heirs at all. The appeal was dismissed with costs.

The Court observed that the property in question was occupied not only by Mst. Biro but also by her three sons, and that, as the High Court had held, this portion constituted a very small part of the entire estate. The Court noted that the continued possession of this small portion, especially because the sons already resided there together with their mother, did not defeat the validity of the surrender. Referring to the authority found in Mulla’s Hindu Law, eleventh edition, page two hundred seventeen, the Court quoted the passage stating that the omission, whether caused by ignorance or by oversight, of a minor portion of the whole property does not affect the validity of a surrender when the surrender is otherwise made in good faith. Applying this principle, the Court held that the present case fell squarely within that rule. The Court further agreed with the finding of the High Court that the gift had the effect of accelerating the succession. Consequently, the plaintiffs could no longer be regarded as the reversionary interest holders, even though they might have been entitled to succeed in the event of failure of the daughter’s sons and their line. The Court declared that it was unnecessary to determine whether the plaintiffs, as collaterals in the fifth degree, would be heirs at all. Accordingly, the appeal was dismissed with costs, and the order of dismissal was affirmed.