Mara And Others vs Nikko And Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 490 of 1962

Decision Date: 24 March 1964

Coram: M. Hidayatullah, N. Rajagopala Ayyangar

In the matter titled Mara And Others versus Nikko And Others, the Supreme Court of India delivered its judgment on the twenty‑fourth day of March, 1964. The opinion was authored by Justice M. Hidayatullah, who sat on a bench together with Justice N. Rajagopala Ayyangar. The petition was filed by the appellants identified as Mara and the other respondents were identified as Nikko and the others. The case was recorded under the citations 1964 AIR 1821 and 1964 SCR (7) 430, with a related citation reference of RF 1980 SC2138 (2). The dispute concerned an inheritance matter involving members of the Jhalli Jat community of Tehsil Ludhiana, specifically the question of whether certain lands were ancestral or non‑ancestral and whether a sister was excluded from inheriting collaterals. The respondents, who were the sister of the deceased individual designated as P and the sister’s son, launched a suit against the appellants, who were identified as collaterals of P. The Subordinate Judge decided in favour of the respondents and the District Judge dismissed the subsequent appeal. The lower courts held that the lands in question were not ancestral and observed that there was no evidence that the customary law among the Jhalli Jats of Ludhiana excluded sisters and a sister’s son from inheriting non‑ancestral property. The High Court also dismissed the appeal. The Supreme Court set out two principal holdings. First, it held that where land parcels are so intermingled that the ancestral and non‑ancestral portions cannot be distinguished, the entire land must be treated as non‑ancestral unless the parties can specifically demonstrate which portions are ancestral. In reaching this conclusion the Court applied the principle in Avtar Singh v. Thakar Singh, 35 I.A. 206, and reiterated that land ceases to be ancestral when it passes into the possession of any person other than by descent, citing Inder Singh v. Gulzara Singh, A.I.R. 1951 Punj. 345, Saif‑ul‑Rahman v. Mohammad Ali Khan, I.L.R. 9 Lah. 95, and Jagtar Singh v. Raghbir Singh, I.L.R. 13 Lah. 165. Second, the Court observed that the application of personal law by the lower courts was appropriate, but it noted that the statement in paragraph 24 of Rattingan’s Digest, which excludes sisters from inheriting non‑ancestral property, was overly broad. The Court referred to the authorities Ujagar Singh v. Mst. Jeo, [1959] Supp. 2 S.C.R. 781 and Waryam Singh v. Smt. Sukhi, CA No. 452/61 decided on the twenty‑third day of April, 1963, which were not reported.

The appeal before the Supreme Court was filed as Civil Appeal No. 490 of 1962, taken by special leave from the judgment and order dated the twentieth day of October, 1959, issued by the Punjab High Court in Regular Second Appeal No. 1591 of 1959. The counsel for the appellants consisted of legal representatives known as Kartar Singh Chawla and Harbans Singh, while the respondents were represented by counsel identified as I. M. Lal and M. R. K. Pillai. The judgment was pronounced on the twenty‑fourth day of March, 1964, and delivered by Justice Hidayatullah. The Court characterized the proceeding as a defendants’ appeal by special leave against the Punjab High Court order that had dismissed the appellants’ second appeal summarily. The underlying suit had been instituted by the respondents seeking possession of a plot of land, a house and a half share in certain lands, asserting that they were preferential heirs of one Pohla following the death of Pohla’s widow, Punjab Kaur, on the seventh day of February, 1952. The plaintiffs in the original suit were identified as Mst. Nikko, who was Pohla’s sister, and Jarnail Singh, who was the son of Mst. Har Kaur, another sister of Pohla. The first appellant, Mara, was described as a fourth‑degree collateral of Pohla, with the remaining two appellants being the sons of Mara. The genealogical details provided in the record linked the parties as members of the Jhalli Jat community of the village Chomon in the Tehsil and District of Ludhiana. The plaintiffs contended that the property in question was non‑ancestral and that, according to the customary law applicable to the family, sisters were excluded from inheriting collaterals in both ancestral and non‑ancestral properties. The Court noted that after the death of Punjab Kaur, Mara obtained one of the fields by registration in his own name and subsequently assumed possession of the entire property, later transferring portions of the land as gifts to his sons. The Supreme Court’s analysis therefore incorporated the factual matrix, the procedural history, and the relevant legal principles to reach its conclusions on the nature of the property and the applicability of customary inheritance rules.

In this matter the two additional appellants were identified as the sons of Mara. The court was provided with a genealogical chart to explain the familial connections among the parties. The chart showed that Sualtani was an ancestor, followed by Sohela Baghaila, then Mara, who was the first defendant. Pir Bux Jaimal Sunder, who had died without children or a spouse, was also listed. Mohinder Singh, identified as a major, was related to Singh Pohla, Mst. Har Kaur and Mst. Nikku, who were indicated as defendants and as the daughter‑in‑law respectively. The chart further recorded that a person named Punjab Kaur, also known as the widow of Arjun, was the plaintiff, together with her son Jarnail Singh, a resident of Ayali Kalan. All the individuals belonged to the Jhalli Jat community of the village of Chomon in the Tehsil and District of Ludhiana. The plaintiffs asserted that the disputed land was not ancestral and that, under the customary law (Riwaj) followed by their family, sisters and the sons of sisters were excluded from inheriting both ancestral and non‑ancestral property. After the death of Punjab Kaur, the records indicated that Mara succeeded in having one field transferred into his name and subsequently assumed possession of the entire property. He then conveyed portions of the property to his sons, which explained why his sons were joined as co‑defendants in the suit. Mara and his elder son, Mohinder Singh, filed a joint written statement raising numerous defenses, the particulars of which were not reproduced in the present discussion. In that statement they maintained that, according to the family custom, sisters and their sons were barred from inheriting any property, whether ancestral or not, and they further contended that the land in question was ancestral, thereby denying the genealogical description offered by the plaintiffs.

The Subordinate Judge of the Second Class at Ludhiana formulated six questions for determination, of which questions numbered two, three and four were directly relevant to the present appeal. The questions were: (i) whether the property was ancestral as regards Pohla and Mara; (ii) whether the classification of the property as ancestral or non‑ancestral was material to the resolution of the case; and (iii) whether the plaintiffs were preferential heirs to the estate of Mst. Panjabo, the widow of Pohla. Both parties presented extensive oral testimony, but the Subordinate Judge elected not to rely on that testimony, and the present appeal made no reference to any portion of it. The judge concluded that the lands sought in the suit were not ancestral and that no evidence had been produced to establish that any of the other lands were ancestral. In addressing the third issue, the judge referred to question No. 52 of the Riwaj‑i‑am concerning the settlements of 1882 and 1909‑1910 (Exhibits D‑1 and D‑2), which stated that among the Jhalli Jats of Tehsil Ludhiana, sisters or the sons of sisters never succeeded to inheritance. Nevertheless, relying on the authority of Ahmad v. Mohammad and others, the judge held that the question concerned only ancestral property and therefore the nature of the property was indeed material. Concerning the fourth issue, the judge relied upon the answer to question No. 52 to determine that sisters and their sons were excluded from inheriting ancestral property, but observed that this conclusion did not extend to non‑ancestral property, a distinction that formed the basis of the court’s subsequent reasoning.

In this proceeding, the Court observed that personal law would govern the parties unless a special custom could be demonstrated. Consequently, the burden of proof was placed on the defendants, who relied upon the authorities Harnam Singh v. Mst. Gurdev Kaur (2), Mst. Sukhwant Kaur v. S. Balwant Singh and others (3) and Mst. Jeo v. Ujagar Singh (4). Since the Subordinate Judge had already dismissed the oral evidence and no other evidence established that the property was ancestral, the trial Judge decreed in favor of the plaintiff. The aggrieved party appealed to the District Judge of Ludhiana, who returned three specific issues to the trial Judge for determination. The first issue asked whether any custom existed that governed the parties such that the plaintiffs were entitled to succeed to both ancestral and non‑ancestral lands left by Pohla ahead of the defendant Mara. The second issue inquired whether, under the same custom, the defendant Mara was a preferential heir over the plaintiffs with respect to both ancestral and non‑ancestral property of the deceased Pohla. The third issue considered, if the alleged custom could not be proved, whether the plaintiffs were preferential heirs to the defendant under the personal law applicable to the parties. On these issues, the Subordinate Judge, First Class, Ludhiana rendered a report opposed to the defendants’ contentions. The District Judge, aligning with that report, held that the lands in suit were not ancestral and further found no evidence that, among the Jhalli Jats of Ludhiana, collaterals excluded sisters and the sons of sisters in relation to non‑ancestral property. The Judge cited extracts 9, 10, 12 and 13, which comprised judgments in other cases that supported the opposite view, and consequently dismissed the appeal. The subsequent second appeal was dismissed summarily by the High Court. The principal question before the Court was whether the lands in dispute were ancestral or non‑ancestral. Both lower courts concurred that none of the properties were ancestral, and the High Court found no reason to depart from that conclusion. The plaintiffs argued, relying on a Kafiat of Thulla Malla prepared at the settlement of 1882, that the land had come into possession of Sekhu, who was acknowledged as a common ancestor, and therefore should be treated as ancestral. They further contended that the lower courts erred because they failed to consider this Kafiat together with extracts from the Records of Rights for 1882 and 1909‑1910, which listed Jaimal and Sunder, sons of Baghela, and Pir Bux, son of Sohila, as holding half‑shares in the lands. Based on this, the plaintiffs asserted that the lands were ancestral, being held by the common ancestor Sekhu and governed by the Riwaj‑i‑am as indicated in question

No. 52 is applicable to the present case. However, both the Kafiat and the Record of Rights indicate that the lands in question were at one time abandoned and, when persons returned, Sekhu acquired possession of certain portions. In addition to those portions, the descendants of Sekhu later obtained the share of one Dalpat in the Thulla, and subsequently the entire estate of another holder, namely Maidas, was purchased by Jaimal, Sunder and Sohila. These facts demonstrate that the disputed lands are not wholly ancestral; rather, they consist of both ancestral and non‑ancestral portions. Punjab case law has consistently held that when ancestral and non‑ancestral lands become intermingled such that the portions cannot be separated, the entire parcel must be treated as non‑ancestral unless a clear distinction can be made between the ancestral and non‑ancestral parts. This principle was articulated by the Privy Council in Avtar Singh v. Thakar Singh(1). Further, Mr Justice Kapur, then serving as a judge, affirmed this rule in Indar Singh v. Gulzara Singh and others(2), relying on Saif‑ul‑Rahman v. Mohammand Ali Khan(3) and Jagtar Singh v. Raghbir Singh(4), and held that land ceases to be ancestral when it passes to an owner by means other than descent. On that basis, the District Judge’s decision not to apply the answer to question No. 52 to the non‑ancestral portion was correct. It should be noted that the answers to the questions are confined to ancestral property, a point not disputed at the hearing. The respondents argue that some decisions recognize the right of collaterals even in respect of non‑ancestral land, excluding sisters and their sons, yet no authority from the Law Reports was cited. References to cases from the Ambala and Amritsar districts were made, but such decisions cannot be regarded as binding because custom in Punjab varies from district to district, tehsil to tehsil, and pargana to pargana. The Supreme Court has previously held that paragraph 24 of Rattingan’s Digest, which excludes sisters from inheritance of non‑ancestral property, is overly broad (see Ujagar Singh v. Mst Jeo(5) and Waryam Singh and Others v. Smt Sukhi and another, Civil Appeal No. 452 of 1961, decided 23 April 1963). The learned District Judge cited instances where sisters and their sons were allowed to succeed ahead of collaterals. One document filed by the defendants (Exhibit D‑6) also supports the respondents’ position. Consequently, it cannot be said that the lower courts erred in applying personal law to the family. The respondents further maintain that the rulings only exclude collaterals of the fifth degree and that no case excludes a fourth‑degree collateral. If personal law applies, a fourth‑degree collateral would also be excluded.

In this case the Court observed that where the personal law governing the parties is applicable, the rule likewise excludes a collateral of the fourth degree from inheritance. The Court therefore concluded that the appeal presented before it could not succeed because the substantive issue raised by the appellant was already decided against the position asserted in the appeal. As a result the Court determined that the appeal must fail and that the appropriate order was to dismiss it. The Court further ordered that the costs of the proceedings be awarded against the appellant, noting that the dismissal of the appeal carried with it the liability for costs. Consequently the final direction of the Court was that the appeal be dismissed with costs. In reaching this conclusion the Court cited several authorities that support the principle applied, namely the decisions reported in (1) 35 I.A. 206, (2) A.I.R. 1951 Pb. 345, (3) I.L.R. 9 Lah. 95, (4) I.L.R. 13 Lah. 165, and (5) (1959 Supp. 2 S.C.R. 781). These references were relied upon to confirm that the exclusion of a fourth‑degree collateral is consistent with established case law, and therefore the appeal was dismissed in accordance with that legal precedent.