Sewa Singh and Ors vs Jangir Singh and Ors

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

Court: Supreme Court of India

Case Number: Appeal (civil) 115 of 1953

Decision Date: 15 December 1954

Coram: M.C. Mahajan, N.H. Bhagwati, B. Jagannadhadas, T.L.V. AIYYAR, B.P. SINHA

The case was titled Sewa Singh and others versus Jangir Singh and others, with the judgment dated 15 December 1954. The Supreme Court of India heard the appeal, identified as civil appeal number 115 of 1953, before a bench comprising Chief Justice M C Mahajan, Justice N H Bhagwati, Justice B Jagannadhadas, Justice T L V Aiyyar and Justice B P Sinha. The judgment was reported in AIR 1956 SC 1 and was delivered by Chief Justice Mahajan. The factual background was concise. Bishan Singh, a Sikh Jat of the Dhande tribe, owned the disputed land located at Patti-Gainda in the village of Naraingarh, within the State of PEPSU. On 8 April 1935, Bishan Singh executed a registered deed adopting Jangir Singh, the plaintiff in the suit, and declared that Jangir Singh would inherit all of Bishan Singh’s movable and immovable property upon his death. Bishan Singh died in April 1944. Subsequent to his death, the land’s mutation was entered in Jangir Singh’s name, but the defendants—who were direct descendants of Gainda and collaterals of Bishan Singh in the fifth degree—took possession of the land. In response, Jangir Singh instituted the present suit for possession, contending that, as the adopted son of Bishan Singh, he was entitled to succeed to the property. The defendants denied both the fact of adoption and the validity of such adoption, and further argued that the land in dispute constituted ancestral property of Bishan Singh, which, according to custom, could not be disposed of by him.

The trial judge, after considering the pleadings, framed four material issues: (1) whether the plaintiff had been adopted by Bishan Singh; (2) whether the adoption was valid; (3) whether the defendants were collaterals of Bishan Singh; and (4) whether the property was ancestral in relation to the defendants. The judge decided the first issue in favour of the plaintiff, but rejected the remaining three issues. Consequently, the plaintiff’s suit was dismissed, and each party was ordered to bear its own costs. Regarding the fourth issue, the judge examined the extract of the record of rights submitted by the defendants and the accompanying pedigree table, concluding that the land was indeed ancestral to the descendants of Gainda, the common ancestor of the family. The judge held the adoption invalid on the ground that, under the prevailing custom among the Jats of that region, Bishan Singh could not adopt a descendant of his maternal grandfather; only a collateral or agnatic relation could be adopted. The appellate court affirmed the trial judge’s decision. The District Judge, on appeal, also affirmed the lower court’s findings and expressed the view that a person who was a stranger to the adopter’s family could not be adopted under the custom governing the parties.

In this case the learned District Judge examined the ancestry of the land and explained that the pedigree table of family No 9 indicated that the defendants were collaterals of the deceased Bishan Singh in approximately the fifth degree of relationship. The common ancestor identified in the table was Gainda, who had seven sons named Chandu, Nagahia, Raja Ram, Himmata, Samonda, Lakha and Dayala. The judge noted that the holdings of these seven brothers were recorded as follows: Chandu held 122 bighas 15 biswas, Nagahia held 115 bighas 8 biswas, Raja Ram held 123 bighas 2 biswas, Himmata held 115 bighas 11 biswas, Samonda held 122 bighas 16 biswas, Lakha held 125 bighas 11 biswas and Dayala held 129 bighas. He observed that the areas possessed by Chandu, Raja Ram, Samonda and Lakha were almost equal, that the areas held by Nagahia and Himmata were also almost equal, and that Dayala’s holding was somewhat larger than the others. Referring to the Pemana Haqiat, the judge pointed out that the descendants of each branch were shown to own one-seventh of the total area, leading to the conclusion that the original land of Gainda Singh had been divided into seven equal shares, each son receiving one-seventh, and that the present descendants possessed the portions derived from those original shares. The slight variations in the sizes of the brothers’ holdings, the judge explained, could be attributed to differences in land quality, because two brothers held almost the same area, while another three held another set of equal areas.

After being unsuccessful before the trial and the District Courts, the plaintiff filed a second appeal to the High Court of PEPSU. The appeal was initially heard by a single judge who expressed doubt about the correctness of the lower courts’ conclusion that the land was ancestral. The single judge noted a new argument raised by the plaintiff: even if the adoption was invalid, the plaintiff claimed that because the property had been self-acquired by Bishan Singh, he could have gifted it to Jangir Singh, and that Bishan Singh’s declaration in the deed of adoption—to have Jangir Singh inherit his movable and immovable property after his death—should make Jangir Singh the rightful owner. Considering the importance of this issue, the judge directed that the matter be referred to the Chief Justice for the formation of a larger bench.

The case was then placed before a Division Bench of the High Court. The Division Bench overturned the earlier finding of the trial and district judges concerning the nature of the property, holding that the land had not been proven to be ancestral. In its opinion the bench stated that the copy of the pedigree table produced by the defendants demonstrated that Gainda Singh was the common ancestor and that Bishan Singh was his descendant in the fifth degree. The bench explained that Gainda Singh’s seven sons gave rise to various lineages, with Samonda being the ancestor of Bishan Singh, while the defendants were the descendants of the other sons. The Division Bench concluded that, based on the evidence before it, the presumption of ancestral ownership could not be sustained.

In this case, the Court noted that the pedigree table submitted by the defendants demonstrated that Gainda Singh was the common ancestor and that Bishan Singh descended from him in the fifth degree, while the other defendants were descended from Gainda Singh’s other sons, some in the fifth degree and some in the sixth. The Court observed that at the time of the first regular settlement, which occurred in 1962 (corresponding to 1905-6 A.D.), the land held by Bishan Singh and the other descendants of Gainda Singh was almost equal in extent. The lower courts had apparently inferred from this equality a presumption that the entire tract of land had originally belonged to Gainda Singh and had subsequently passed to his descendants by succession. The Court expressed the view, echoing the opinion of the learned brother in the referring order, that merely because remote descendants happen to hold equal or nearly equal portions of land at the time of the first settlement, that fact alone cannot generate the presumption that the land descended from the common ancestor. The Court further referred to the copy of the Kafiat-Delhi, which indicated that the village had originally been owned by two tribes, the Rajputs and the Dhande Jats. Later, the Rajputs’ Patti was abolished and the whole village land came under the control of the Jats. Subsequently, other Jat families, one Brahmin family, and one Guosain family were allowed to settle in the village. When, in Samvat 1888, a portion of the village land was allotted to the newly created village of Sangatpura, a fresh allocation of lands took place, and thereafter possession became the measure of right. In view of these historical facts, the Court held it impossible to conclude that the land possessed by every descendant of Gainda Singh at the time of the first settlement had derived from Gainda Singh. Having decided that the land was not proved to be ancestral, the Division Bench referred two questions to a Full Bench. The first question asked whether the term “kinsman” used in paragraph 35 of Rattigan’s Digest of Customary Law meant a collateral relation and, if not, whether a distant relation such as the great-grandson of the adopter’s mother’s father’s brother could be regarded as a “kinsman”. The second question asked whether, if a person governed by Customary Law adopted another as his son and the adoption was later declared invalid under custom, the adopted son could succeed to the non-ancestral property of the adoptive father on the ground that the adoption amounted to a gift or bequest. The Full Bench answered both questions affirmatively. In other words, it held that the expression “kinsman” in the Customary Law referred to an agnatic relationship and that a distant relation such as the adopter’s mother’s father’s brother could not be included within that term. Moreover, the Full Bench held that even if the adoption was invalid, the adopted son could succeed to the self-acquired property of the adopter because, in these parts, the adoption was deemed equivalent to a gift or bequest.

The Court observed that the appeal was allowed and the plaintiff’s suit was decreed in the manner originally prayed for. The matter was certified as appropriate for further appeal to this Court under Article 133 (a) of the Constitution of India, and consequently the appeal presently before the Court arises on the basis of that certification. In the present judgment the Court held that the appeal could be disposed of on a concise ground: there was no justification for disturbing the concurrent finding of the two lower courts on the nature of the land that formed the subject of the dispute. Because that finding remained unchallenged, there was no need to consider the separate legal issue that had been raised, and, in any event, the plaintiff’s suit could not succeed.

According to the entries recorded in the pedigree table compiled at the settlement conducted during 1907-1909, Gainda was the common forefather of both Bishan Singh and the respondents. Gainda had seven sons; Bishan Singh descended from one son named Samonda, while the respondents were the descendants of the remaining brothers of Samonda. At the time of the regular settlement Bishan Singh was recorded as holding 122 bighas 16 biswas of land, which the settlement described as one-seventh of the total family holding. The holdings of the descendants of the other six sons of Gainda were similarly expressed in fractions of one-seventh, with some parties possessing one-half of one-seventh, others one-third of one-seventh, and so forth. This pattern of subdivision reflected the number of descendants belonging to each of Gainda’s seven sons.

An explanatory note attached to the pedigree states that the parcel known as “Patti Gainda” derived its name from the ancestor of the proprietors, that the proprietors possessed the land and paid land revenue upon it, and that for the purpose of dividing the communal village land (Shamlat deh) an amount of Rs 8/2/6 was to be allocated among the parties according to their ancestral shares. From these entries, which are presumed to be truthful, the Court inferred that the entire land once owned by the common ancestor was, at the time of the regular settlement, in the possession of his descendants in accordance with their respective ancestral shares. The communal village land that is also the subject of the present suit was likewise divided on the basis of those ancestral shares.

No allegation had been made that any of Gainda’s descendants had acquired any portion of the Patti by purchasing the share of an outsider or by alienating a part of their ancestral holding. In view of that circumstance, the learned District Judge was justified in concluding, from the equal distribution of holdings and the reference to ancestral shares, that the land forming the subject of the suit had devolved upon Bishan Singh by descent from Gainda. Accordingly, there were no valid grounds for overturning the district judge’s decision. The factual matrix established in the case supports only the theory that the land in question passed to Bishan Singh’s line from the common ancestor, and no other reasonable hypothesis can explain the circumstances presented.

The Court noted that the High Court had based its conclusion on the village history, referred to as “Kafiat Dehi,” which was recorded in the settlement documents. The settlement record stated that originally the Tooni Rajputs and the ancestors of the proprietors Jat Dhande possessed the village estate in equal shares. It further explained that during the period of Muslim rule the Tooni Rajputs fell into arrears of land revenue and, fearing harassment and violence from the ruler, abandoned the village. The common ancestor of the Jats Dhande then paid the outstanding revenue, acquired possession of the entire village, and allotted land to the families that were subsequently called owners. Because the village had become the property of a single owner, later families who migrated into the area received land according to their means. The record continued that in the year 1831-32 A.D. a portion of the village was separated and a new village called Sangatpura was created, which also disrupted the remaining scale of holding, described as “Raha Saha Paimana Haqiyat.” It was decided that any increase or decrease in holdings would depend upon actual possession. The present revenue on ten dirams of land was stated as Rs. 7-15-9, whereas previously the revenue had been Rs. 8/2/6. For the division of the Shamlat deh the original scale of Rs. 8/2/6 was entered in the pedigree table, and six Pattis were named after their ancestors: Sangu, Piru, Jalla, Malla, Hari Chand and Gainda. The Court observed that the document contained no indication of any disturbance in the scale of holding of Patti Gainda. Conversely, the “Paimana Haqiyat” recorded in the settlement clearly showed that Patti Gainda was held by the descendants of Gainda in accordance with ancestral shares. In view of these findings the Court saw no reason to doubt the ancestral character of the land that was the subject of the suit. The Court further expressed the view that this case was not appropriate for overturning the concurrent finding of the first two courts on further appeal, even though that finding was not binding under the law then applicable in PEPSU, and that the High Court was competent to re-examine the finding on a second appeal. Consequently, the Court allowed the appeal, set aside the judgment of the High Court, and restored the trial judge’s order dismissing the plaintiff’s suit. No order as to costs was made in the circumstances of the case.