Jai Kaur and Others vs Sher 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. 108/56

Decision Date: 6 May 1960

Coram: K.C. Das Gupta, P.B. Gajendragadkar, K.N. Wanchoo

In the matter titled Jai Kaur and others versus Sher Singh and others, the Supreme Court of India delivered its judgment on May sixth, 1960. The case was reported in the All India Reporter at citation 1960 AIR 1118 and was also referenced in several citator reports, namely RF 1961 SC1374 (4), R 1966 SC1555 (4) and RF 1980 SC2138 (5). The bench that heard the appeal consisted of Justice K.C. Das Gupta, Justice P.B. Gajendragadkar and Justice K.N. Wanchoo. The petitioners were Jai Kaur and several other respondents were Sher Singh and others. The judgment was authored by Justice Das Gupta. The legal issue involved the customary law applicable to Hindu Jats of the Grewal got in Ludhiana concerning succession to self‑acquired, non‑ancestral property. According to the customary law recorded in Rattigan’s Digest of Customary Law of the Punjab, paragraph twenty‑three, a daughter is a preferential heir to her father for his self‑acquired property among his collaterals. This rule is not inconsistent with the observations in Riwaji‑am, 1882, Question Number forty‑three, which dealt only with ancestral property and therefore does not address self‑acquired holdings. The Court referred to earlier decisions, approving the view expressed in Mt. Hurmate v. Hoshiaru, A.I.R. 1944 Lah. 21, and disapproving the reasoning in Mohinder Singh v. Kher Singh, A.I.R. 1949 East Punjab 328, while also mentioning Mt. Subhani v. Nawab, A.I.R. 1941 (P.C.) 21 for guidance. The doctrine of surrender in Hindu law, as explained by the Court, rests on the premise that a widow must completely relinquish all her interest in the entire property in favor of the reversioner for the surrender to accelerate the reversionary right. Partial surrender or a division of the property into ancestral and non‑ancestral portions is not recognized, although a small portion may be retained for the widow’s maintenance without weakening the rule. The Court cited Rangaswami Gounden v. Nachiappa Gounden, (1918) L.R. 46 I.A. 72 and Phool Kaur v. Prem Kaur, [1952] S.C.R. 793, to support this principle. Consequently, the Court held that when a Hindu widow of the Grewal got gave only the self‑acquired property of her husband to her daughters, such a gift did not constitute a legal surrender capable of accelerating the daughters’ succession, and therefore the gift could not remain valid beyond the widow’s lifetime.

The judgment formed part of Civil Appeal No. 108 of 1956, which was taken by special leave from the Punjab High Court’s decree dated May twenty‑seven, 1953, in Regular Second Appeal No. 176 of 1949. That decree itself had been passed against a judgment and decree dated December twentieth, 1948, of the District Judge, Ludhiana, which arose from the judgment and decree dated February sixth, 1948, of the Subordinate Judge, 11 Class, Ludhiana, in Suit No. 918 of 1946. The appellants were represented by counsel Gopal Singh, while the respondents were defended by counsel C. B. Aggarwala and counsel K. P. Gupta. On the day of the hearing, May sixth, 1960, the judgment of the Court was delivered by Justice Das Gupta. The Court began its analysis by referring to the suit from which the present appeal originated, noting the procedural history and the substantive questions concerning the validity of the gift made by the widow of the deceased husband and its effect under the customary law governing the Jats of the Grewal got.

The suit that gave rise to this appeal had been instituted by the respondents identified as Sher Singh and Labh Singh, seeking a declaration that a deed of gift executed by the first appellant, Jai Kaur, concerning eight Bighas of land she had inherited from her husband, Dev Singh, in favour of her two daughters—the second and third appellants—should be declared null and void with respect to the reversionary rights claimed by the plaintiffs, and that the deed should not bind defendants numbered four to six after the death of the first appellant, Jai Kaur. The plaintiffs contended that the lands left by Dev Singh were all ancestral in relation to them, and that under the customary law governing the Grewal Jats to which these parties belong, daughters do not succeed to property left by fathers who die without male heirs; consequently, the widow’s gift to her daughters would be void as against the plaintiffs and any others who would inherit the estate as reversioners upon Jai Kaur’s death. In an alternative line of argument, the plaintiffs asserted that even if the land in dispute were not ancestral to them, the deed of gift would still be void against their reversionary interests because, according to the same custom, daughters do not succeed to non‑ancestral property among the Grewal Jats. The principal contention advanced by defendants one through three, who are the appellants before this Court, was that the land forming the subject of the suit was not ancestral in relation to the plaintiffs and defendants numbered four to six, and that under the customary law of the Grewal Jats, daughters are excluded from collaterals concerning non‑ancestral property, thereby permitting a widow to make a valid gift of such property to her daughters. The two daughters, acting as preferential heirs regarding the land in dispute, pleaded that the gift amounted to an acceleration of succession and was valid in every respect. The Trial Judge held that two specific portions—identified as 2B‑2B and 14‑B—of the land were ancestral and consequently declared the gift invalid to that extent, reasoning that a daughter does not succeed to ancestral property in the presence of collaterals. Regarding the remainder of the land, which the Judge determined to be non‑ancestral, he opined that the gift constituted merely an acceleration of succession, based on the customary law that excludes daughters from collaterals in matters of non‑ancestral property. Accordingly, the Trial Judge granted the decree sought by the plaintiffs for the ancestral portions (2B‑2B and 14‑B) and dismissed the claim concerning the remaining portion of the land. The plaintiffs appealed this decree to the District Judge of Ludhiana, and the defendants numbered one to three filed cross‑objections. The finding of the Trial Court concerning the division of the land into ancestral and non‑ancestral portions was not contested before the appellate court.

In the appeal before the District Court, the learned District Judge examined the question of custom and concurred with the Trial Judge that, among the Grewal Jats of Ludhiana, a daughter is excluded from inheritance in favor of collaterals with respect to non‑ancestral property. Accordingly, the District Judge held that the deed of gift concerning the non‑ancestral portion of the land constituted merely an acceleration of succession, and therefore it was valid and binding. On that basis, the appeal was dismissed, and the cross‑objections, which appear not to have been actively pursued, were also dismissed.

Upon the second appeal, the learned judges of the East Punjab High Court accepted the plaintiffs’ submission that a special custom existed among the Grewal Jats whereby a daughter does not inherit even in relation to non‑ancestral property. In view of that finding, the High Court held that the gift made by Jai Kaur would be effective only during her lifetime and allowed the appeal. The defendants—identified as Jai Kaur and her two daughters, who were the donees—filed the present appeal before this Court under the special leave granted to them.

Two principal questions arise for consideration. The first question is whether, under the customary law governing the Grewal Jats of Ludhiana to which the parties belong, the daughter or the collaterals are the preferential heirs with respect to non‑ancestral property. Should the answer be that daughters enjoy preference over collaterals, the second question is whether the deed of gift represents an acceleration of succession in favour of the daughters that is permissible under the law.

On the custom issue, the appellants rely upon paragraph 23 of Rattigan’s Digest of Customary Law (Thirteenth Edition), which states that, with regard to the acquired property of a father, the daughter is preferred to collaterals. It is not contested that non‑ancestral property falls within the meaning of “acquired property” as used by Rattigan. The plaintiffs‑respondents, however, invoke the answer to question No. 43 recorded in the Riwāj‑i‑ām prepared at the revised settlement of 1882 concerning Hindu Grewal Jats of Ludhiana. The question and answer read as follows: “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 dear kindred must stand?” The answer given is: “In our tribe the daughter does not succeed under any circumstances. If a person dies sonless, his collaterals succeed him. There is no fixed limit of relationship for purposes of excluding her. 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 been recognized in numerous decisions of the Punjab courts.

The Court observed that the statements regarding customary law in Punjab have also received the approval of the Judicial Committee of the Privy Council. Consequently, it is not open to dispute that, according to the general customary law of the Punjab, daughters are excluded by collaterals when succession to non‑ancestral property is concerned. The Court further emphasized that the entries recorded in the Riwaj‑i‑am have repeatedly been regarded as valuable. It is clear that those entries constitute relevant evidence under section thirty‑five of the Evidence Act, and the fact that they are the product of careful research undertaken by persons who may be considered experts in the field, after an open and public enquiry, gives them a weight that should not be lightly underestimated. Accordingly, the Court said there exists an initial presumption of correctness in respect of the entries in the Riwaj‑i‑am. When the custom recorded in the Riwaj‑i‑am conflicts with the general custom as set out in Rattigan’s Digest or ascertained by other means, the entries in the Riwaj‑i‑am should ordinarily prevail. However, the Court noted that the Judicial Committee of the Privy Council, in its recent decision in Mt Subhani v Nawab, pointed out that where, as in the present case, the Riwaj‑i‑am adversely affects the rights of females who had no opportunity to appear before the revenue authorities, the presumption of correctness becomes weak and can be overturned by only a few instances that rebut it. In the appeal before the Court, the oral testimony presented by either party was found to be virtually worthless for showing any instance in favour of the custom pleaded by them. Therefore, if the Riwaj‑i‑am, as urged by the plaintiffs, indeed demonstrates a custom of daughters being excluded by collaterals with respect to non‑ancestral property, the Riwaj‑i‑am would prevail. The true controversy, however, concerns whether the entries in the Riwaj‑i‑am on which the plaintiffs rely refer at all to non‑ancestral property. This question has occupied the courts of Punjab for many years, beginning with the 1916 case of Mst Raj Kaur v Talok Singh, where Chief Justice Sir Donald Johnstone held that the compiled Riwaj‑i‑am did not cover self‑acquired property and that where the Riwaj‑i‑am spoke of succession to land without distinguishing between ancestral and self‑acquired land, the rule could normally be taken to apply only to ancestral property. A similar view was adopted by Justices Shadilal and Wil Be Force in Budhi Prakash v Chandra Bhan. That view was subsequently followed by other judges of the High Court in Narain v Mst Gaindo and Fatima Bibi v Shah Nawaz. In Sham Das v Moolu Bai, Justices Le Rossignol and Fforde also laid down the same principles, stating that although the Riwaj‑i‑am makes no distinction between ancestral and acquired property, it is a well‑recognised rule that, unless clear indications to the contrary exist, an entry in a record of custom refers only to succession to ancestral property.

The earlier decisions established a recognised rule that, unless a record of custom expressly indicates otherwise, an entry in such a record must be understood to refer only to succession to ancestral property. After that rule was applied in a number of subsequent judgments, a contrasting view emerged in the case of Jatan v. Jiwan Singh (6). In that dispute the parties were members of the Grewal Jat community and the contention was between the collaterals of the last male owner and his married daughter concerning property that was not ancestral but had been acquired by the male owner himself. The judges hearing the case held that Question No. 43 in the Riwaj‑i‑am dealt with both ancestral and non‑ancestral property. Consequently, they concluded that the answer recorded in the Riwaj‑i‑am showed that, even with respect to non‑ancestral property, the daughter was excluded by the collaterals. In arriving at this conclusion the judges stressed that two earlier decisions, Ishar Kuar v. Raja Singh (7) and Pratap Singh v. Panjabu (8), had interpreted the questions and answers in the Riwaj‑i‑am concerning a daughter's right of succession as covering non‑ancestral property as well. The judges further observed that, had the compilers of the Riwaj‑i‑am intended to allow a daughter to succeed to self‑acquired property, such an exception would have been expressly mentioned in the answer.

The existence of these conflicting interpretations prompted Mr Justice Abdur Rahman, in the case of Mt. Hurmate v. Hoshiaru (1), to refer the matter to a Full Bench of the High Court. The Full Bench examined the many Punjab decisions dealing with this issue and also took note of the preface written by Mr Gordon Walker, the compiler of the Riwaj‑i‑am in 1882. In that preface Walker stated that no distinction was made between self‑acquired and inherited land and that the rules of succession, restrictions on alienation, and related doctrines applied equally to both kinds of property. After a careful consideration of all relevant materials, the Full Bench concluded that Question No. 43 of the Customary Law of Ludhiana district relates solely to ancestral property and that, under no circumstances, may it be interpreted to include self‑acquired property. Mr Justice Din Mohammad, who delivered the leading judgment, explained that the purpose of the earlier cases limiting the manuals of Customary Law to ancestral property is clear. He cited Addison, J., in 13 Lab. 458, noting that collaterals are interested only in property that descends from their common ancestor, which is the basis of the agnatic theory. Property acquired by a male holder on his own is, therefore, not within the concern of the collaterals.

It was reasonable to presume that when the manuals of Customary Law were first prepared and later revised, the individuals who were questioned would ordinarily respond based on their own personal interest, which was limited solely to ancestral property, unless they were expressly instructed otherwise. The occasional instance in which a questioner, as noted in A.I.R. 1944 Lah. 21, explicitly distinguished between ancestral and non‑ancestral property would not have alerted the respondents in every case, given their general lack of education and limited intelligence. Likewise, the expressions “in no case” or “under no circumstances” were to be understood as referring only to ancestral property and were not to be extended to cover self‑acquired property unless the surrounding context required such a construction. One might have expected that after the Full Bench of the High Court issued this pronouncement, the controversy would have been settled, at least within the Punjab courts. Contrary to that expectation, a few years later the same issue resurfaced before a Division Bench of the East Punjab High Court in Mohinder Singh v. Kher Singh. The judges of that Division Bench chose to re‑examine the matter and, in doing so, disregarded the earlier Full Bench decision in a manner that could be described as unceremonious. Justice Teja Singh, delivering the leading opinion, observed that although the Full Bench had noted the cases of Ishar Kaur v. Raja Singh and Pratap Singh v. Panjabu, it had not expressly declared those earlier decisions to be erroneous. Nevertheless, the Full Bench had unequivocally concluded that question No. 43 of the Customary Law of the Ludhiana district pertained only to ancestral property and could not, under any circumstances, be interpreted as encompassing self‑acquired property. In arriving at that conclusion, the Full Bench had examined numerous decisions of the Punjab courts that supported the general principle that, absent clear contrary indications, the questions relate to ancestral property. It had also considered the three cases—Jattan v. Jiwan Singh, Ishar Kaur v. Raja Singh, and Pratap Singh v. Panjabu—where a contrary view had been taken, and it provided reasons for maintaining that, unless there are explicit indications to the contrary, the manuals of customary law should be read as referring only to ancestral property. After evaluating the question and answer in question No. 43 as they applied to the Mohammadan Rajputs, the Full Bench recorded its final conclusion. It would therefore be neither correct nor fair to assert that the Full Bench judges failed to hold the decisions in Jattan’s case, Pratap Singh’s case, and Ishar Kaur’s case to be wrongly decided insofar as those decisions had held question No. 43 to refer to both ancestral and non‑ancestral property.

The Court noted that question number 43 of the Customary Law of the Ludhiana district was interpreted to refer to both ancestral and non‑ancestral property. The Court observed that the earlier Full Bench had not expressly declared those earlier cases to be wrongly decided; however, the Court held that when a Full Bench adopts a particular interpretation of a question, any earlier decision that answered the same question in a different manner must be regarded as incorrectly decided. The Court recalled a recent instance in which it had disapproved of a Division Bench of another High Court for unilaterally holding that a contrary decision of a different Division Bench on a point of law was erroneous. In that instance, the Court emphasized the well‑recognised judicial practice that, when a Division Bench disagrees with the decision of a prior Division Bench, the dispute should be referred to a larger Bench for a conclusive determination. The Court further explained that, as it had pointed out earlier, considerations of judicial decorum and legal propriety prohibit Division Benches from directly declaring the decisions of other Division Benches to be wrong; these considerations are even more compelling when a Division Bench seeks to disagree with a previous decision of the Full Bench of the same court. In the present matter, the Court expressed the opinion that the view adopted by the Full Bench in Mt. Hurmate v. Hoshiaru (1) was consistent with reason and with probability. The Court highlighted that the overwhelming majority of judges who examined the issue possessed an intimate knowledge of the customs and habits of the Punjab peasantry, and they concluded that when tribal persons were questioned about succession to property, they would ordinarily understand the enquiry to pertain to succession to ancestral property; this observation was accorded great weight. The Court added that it could not be seriously disputed that, at least in the early years when the Riwaj‑i‑am was being prepared (see (1) A.I.R. 1944 Lah 21), most of the land in the countryside was ancestral, and self‑acquired holdings were rare. The Court reasoned that this circumstance likely focused the attention of the tribal people on ensuring that the tribal custom governing succession to ancestral property was correctly recorded by the Settlement Officers and their agents, while attracting little attention, if any, to matters concerning non‑ancestral property. Accordingly, unless the questions presented to these simple folk were expressly framed to draw their attention to the inclusion of non‑ancestral property, they could not reasonably be expected to infer from the use of general wording that the enquiries covered both ancestral and non‑ancestral property. The Court quoted Justice Din Mohammad, who observed in the Full Bench judgment that even on occasions when the questioner had attempted to distinguish between ancestral and non‑ancestral property, such distinctions could not place the respondents—i.e., the persons being questioned—on guard in every case, given their generally limited intelligence. Their minds, the Court concluded, were pre‑occupied with the idea that such enquiries concerned only ancestral property.

In this case, the Court observed that the tribal informants believed the inquiries concerned only ancestral property, and therefore they limited their answers to matters of ancestral inheritance. They employed emphatic phrases such as “in no case” and “under no circumstances” to stress that ancestral property would never devolve in a particular manner or have a specific incidence. The Court held that these observations outweigh the statement made by Mr. Gordon Walker that no distinction was recognized between self‑acquired and inherited land, and that the rules of succession and restrictions on alienation applied equally to both categories. Consequently, the view expressed by the Full Bench and reiterated in many earlier cases—that questions and answers recorded in the Riwaj‑i‑am normally refer to ancestral property unless there is a clear indication to the contrary—was deemed correct.

The Court noted that Question No 43 in the Ludhiana district was identical for all tribes and contained no suggestion that the questioner sought information about non‑ancestral property. The answer given by the Grewal Jats likewise provided no indication that the respondents contemplated both ancestral and non‑ancestral property in their replies. Accordingly, the Court concluded that the entries in the Riwaj‑i‑am relied upon by the plaintiffs‑respondents do not pertain to non‑ancestral property and therefore cannot be used as relevant evidence to establish a custom among Grewal Jats of Ludhiana that allows collaterals to inherit non‑ancestral property in preference to daughters. The respondents also cited several judicial decisions—Jattan v. Jiwan Singh (1), Ishar Kaur v. Raja Singh (2) and Pratap Singh v. Panjabu (3)—which purportedly recognized such a custom. The Court examined those cases and found that they were either wholly or primarily based on the same Riwaj‑i‑am entries, assuming those entries covered both ancestral and non‑ancestral property. Because that assumption has been rejected, those decisions were considered of no value in demonstrating the alleged custom regarding non‑ancestral property. Moreover, the oral evidence presented in the present proceedings was found wholly insufficient to prove the existence of such a custom. The Court therefore held that the customary law governing succession to non‑ancestral property among the Grewal Jats of Ludhiana district is the same as the general rule recorded for Punjab in Paragraph 23 of Rattigan’s Digest, namely that a daughter is preferred over collaterals.

In this case, the second and third appellants were identified as the next reversioners of the portion of Dev Singh’s property that the Court had classified as non‑ancestral. The central issue was whether the first appellant’s deed of gift of that particular portion conferred a valid title upon the reversioners that would survive beyond the widow’s lifetime. It was necessary to recall that, with respect to the ancestral portion of the estate, the daughters were not reversioners, and the house situated in the ancestral land had been expressly excluded from the deed of gift. Consequently, the situation was that the first appellant, while holding a widow’s estate, transferred by deed a part of the property to the reversioners, transferred another part to individuals who were strangers as to the reversion interest, and retained a remaining part for herself. Under Hindu law, a limited owner may accelerate a reversion by surrendering her interest to the next reversioner, a principle that rests on the notion of the limited owner’s self‑effacement. The law, as articulated in precedent, requires that such a surrender be of the entire interest of the limited owner in the entire property for the surrender to be effective. Even when a small portion is retained for the owner’s maintenance, the requirement that the surrender encompass the whole interest remains strict, as affirmed in Rangasami Gounden v. Nachiappa Gounden and Phool Kaur v. Pem Kaur. In the present case, however, a portion of the property was gifted to strangers, and another portion was retained by the widow; therefore, no effacement of the limited owner occurred with respect to either the gifted portion or the retained portion. The Court found it impossible to say that the limited owner’s effacement took place in a manner that would convert the daughters’ future contingent right into an immediate vested right. The appellants argued that a total effacement had occurred with respect to the non‑ancestral property, thereby accelerating the daughters’ rights as next reversioners. The Court was not persuaded that such a novel doctrine of partial effacement could be recognized. It held that effacement cannot be applied selectively to different portions of property, and the law does not acknowledge a “partial effacement” whereby the limited owner would efface herself only with respect to the reversioners she wishes to benefit. Accordingly, the Hindu law doctrine of surrender does not make the gift of the non‑ancestral portion valid beyond the widow’s lifetime.

In this case, the Court noted that the Hindu Law doctrine of surrender does not make a gift of non‑ancestral property to the daughters valid beyond the widow’s lifetime, and it was not suggested that any customary law permitted such a surrender. The Court disagreed with the High Court’s finding that, under the customary law governing the Grewal got of Jats, the second and third appellants were preferential heirs to the non‑ancestral portion of the suit land, and held that the High Court’s conclusion that the deed of gift to the daughters is not valid even with respect to the non‑ancestral property after the donor’s death is correct and must be upheld. As a final argument, counsel for the appellants asked the Court to hold that Section 14 of the Hindu Succession Act, which became law in 1956, made either the mother or the daughters full owners of the property, thereby requiring dismissal of the plaintiffs’ suit. The Court observed that the Hindu Succession Act was not in force when the written statement was filed or at any time before the lower courts disposed of the suit, so a defence under Section 14 could not have been raised, and consequently neither party produced evidence relating to facts necessary for applying Section 14. Counsel for the plaintiffs‑respondents argued that the record showed the mother had ceased to be in possession and could not claim the benefit of Section 14, and that the daughters in possession would not become full owners under that provision. The Court found it inappropriate to consider these questions in the present suit in a haphazard way, especially because the appellants did not clarify whether the mother was in actual or constructive possession, whether the daughters’ possession was merely permissive, or whether the daughters held independent possession on their own behalf. The Court indicated that such factual and legal questions, including any claim by the first appellant or the other two appellants under Section 14, should be addressed in a separate suit that they may file in the future if advised. No opinion was expressed on those unresolved matters. Accordingly, for the reasons previously stated, the Court held that the High Court rightly decreed the suit in favour of the plaintiffs concerning the non‑ancestral property and dismissed the appeal. The Court ordered that each party bear its own costs throughout the proceedings, and the appeal was dismissed.