MAKTUL Vs. MANBHARI

JUDGEMENT

(1.) If a Hindu governed by the customary law prevailing in the Punjab succeeds to his maternal grandfather's estate, is the property in his hands ancestral property qua his own sons This is the short and interesting question of law which arises in this appeal. The appellant is the son of Sarup, respondent 10. On the death of his mother Musammat Rajo, respondent 10 inherited the suit properties from his maternal grandfather Moti. On March 22, 1927, he executed a registered mortgage deed in respect of the said properties in favour of Shibba the ancestor of respondents 1 to 9 for Rs. 5,000. Subsequently, on April 12, 1929, he sold the equity of redemption to the said mortgagee Shibba for Rs. 11,000. In suit No. 145 of 1946 filed by the appellant in the court of the Sub-Judge. Panipat, from which the present appeal arises, the appellant had claimed a declaration that the two transactions of mortgage and sale in question did not bind his own reversionary rights, because the impugned transactions were without consideration and were not supported by any legal necessity. His allegation was that his family was governed by the custom prevailing in the Punjab and, under this custom, the property in suit was ancestral property and he was entitled to challenge its alienation by his father respondent 10. Respondents 1 to 9 disputed the appellant's right to bring the present suit and urged that the alienation by respondent 10 were for consideration and for legal necessity. It was, however, common ground that respondent 10 and the appellant were governed by the custom prevailing in the Punjab. The learned trial Judge held that the property in dispute was ancestral qua the appellant and that the impugned alienations were not effected for consideration or for legal necessity. He, however, held that the appellant was not born at the time when the mortgage deed in question was executed and so he was not entitled to challenge it. In the result the appellant was given a declaration that the sale in dispute did not bind the appellant's reversionary rights in the property after the death of respondent 10. The appellant's claim in regard to the mortgage was dismissed. Respondents 1 to 9 went in appeal against this decree to the District Judge at Karnal and contended that the suit had abated in the trial court as a result of the death of one of the defendants pending the decision of the learned trial judge. The learned District Judge rejected this contention but he set aside the decree and remanded the suit for proceedings for substituting the legal representatives of the deceased defendant Ram Kala. After remand the legal representatives of the deceased Ram Kala were brought on record and ultimately the original decree passed by the trial court was confirmed by the learned trial judge. Respondents 1 to 9 again challenged this decree by preferring an appeal to the District Judge at Karnal. The learned District Judge held that the value of the subject-matter of the suit was more than Rs. 5,000 and so he ordered that the memorandum of appeal should be returned to respondents 1 to 9 enable them to file an appeal before the High Court. That is how respondents 1 to 9 took their appeal to the High Court of Punjab. The High Court took the view that the appeal had in fact been properly filed in theDistrict Court; but even so it did not ask respondents 1 to 9 to go back to the District Court, but condoned the delay made by the said respondents in the presentation of the appeal before itself and proceeded to deal with the appeal on the merits. The High Court held that the property inherited by respondent 10 was not ancestral property qua the appellant, and so it allowed the appeal preferred by respondents1 to 9 and dismissed the appellant's suit. In view of the fact that the point of law raised before the High Court was not free from doubt the High Court ordered that parties should bear their own costs throughout. The appellant then applied for and obtained a certificate from the High Court under the first part of S. 110 of the Code of Civil Procedure. It is with this certificate that the present appeal has come before this Court and the only point which has been raised for our decision is whether the property in suit can be held to be ancestral property between the appellant and respondent 10.

(2.) Under the Hindu law, it is now clear that the only property that can be called ancestral property is property inherited by a person from his father, father's father or father's father's father. It is true that in Venkayyamma Garu vs. C. Venkataramanayyamma, 29 Ind App 156 (PC)(A) the Privy Council had held that under Mitakshara law the two sons of a Hindu person's only daughter succeed on their mother's death to his estate jointly with benefit of survivorship as being joint ancestral estate. This decision had given rise to a conflict of judicial opinion in the High Courts of this country. But in Muhammad Husain Khan vs. Kishva Nandan Sahai, 64 Ind App 250 (B) this conflict was set at rest when the Privy Council held that under Hindu law a son does not acquire by birth an interest jointly with his father in the estate which the latter inherits from his maternal grandfather. The original text of the Mitakshara was considered and it was observed that the ancestral estate in which, under the Hindu law, a son acquires jointly with his father an interest by birth, must be confined to the property descending to the father from his male ancestor in the male line. Sir Shadi Lal, who delivered the judgment of the Board, explained the earlier decision of the Privy Council in 29 Ind App 156 (PC) (A), and observed that in the said case "it was unnecessary to express any opinion upon the abstract question whether the property which the daughter's son inherits from his maternal grandfather is ancestral property in the technical sense that his son acquires therein by birth an interest jointly with him". The learned Judge further clarified the position by stating that the phrase 'ancestral property' used in the said judgment was used in the ordinary meaning, viz., property which devolves upon a person from his ancestor and not in the restricted sense of the Hindu law which imports the idea of the acquisition of interest on birth by a son jointly with his father. Thus there is no doubt that under the Hindu law property inherited by a person from his maternal grandfather is not ancestral property qua his sons. The question which arises in the present appeal is:what is the true position in regard to such a property under the Customary law prevailing in the Punjab

(3.) This question has been considered by Full Benches of the High Court of Punjab on three occasions. Let us first consider these decisions. In Lehna vs. Mt. Thakri, 32 Pun Re 1895 p. 124 (C), it was held by the Full Bench (Roe, S. J. and Rivaz J., Chatterji J. dissenting) that