PAHRA SINGH Vs. BASANT KAUR

JUDGEMENT

(1.) THIS is a second appeal arising out of a suit instituted by the plaintiff-respondent Mst. Basant kaur who is the daughter of one Sundar. The latter was adopted by Haku and on Haku's death sundar succeeded to the land in suit measuring about 128 'bighas'. After Sundar's death his widow Mst. Karmo succeeded him for her lifetime, but on her death the land was mutated in 1942 in favour of the present appellants who are the descendants of Chartu, the brother of Haku. Mst. Basant Kaur thereupon instituted a suit for possession of the land on the ground that she was entitled to inherit in preference to the defendants. The latter contested the suit and on the pleadings of the parties the following issues were framed :

(2.) THE defendants went in appeal to the learned District Judge who dismissed the appeal holding that the documents which the defendants relied on had rightly been excluded by the trial Court and otherwise agreeing with its findings The defendants have accordingly come in second appeal and once again the question of the admission of the disputed documents has been raised. The documents on which the defendants wanted to rely are copies of judicial documents and revenue records such as mutations, and it is doubtful whether in fact the trial Court was wholly justified in refusing to take them into consideration in deciding the question whether the land was ancestral or not, but at the same time is does not seem necessary to decide the question whether the land was ancestral or not, since it would seem that the plaintiff was entitled to succeed even if the land had been held to be ancestral. The learned counsel for the appellants, however, argued that nevertheless a finding should be given on this point in order that the finding of the trial Court based on insufficient evidence would not operate as 'res judicata' against the defendants in the event of their laying claim to the land at some future date if the line of Sundar became extinct. I think, however, that it would be sufficient to say that a proper finding was not given on this point, and that the matter will remain open for decision if and when the contingency contemplated by the appellants arises, and all that is necessary for the decision in the present suit is to hold that the plaintiff was entitled to succeed to the land whether it was ancestral or not.

(3.) ON this point the decision of the Courts below is based chiefly on -- 'gainda v. Mst. Jai Devi', which was decided by a Full Bench of the Lahore High Court consisting of Sir Trevor Harries, c. J. , and Abdul Rashid and Abdur Rahman. JJ. reported in 'air 1944 Lah 90 (P. B.) (A)'. That was a case in which one Ghungar had been adopted by one of his father's brothers named sudaman, the adoption being followed by a gift of Sudaman's land to Ghungar. On the death of ghungar his widow had succeeded him and she made a gift of the land in favour of her daughter. This gift was challenged by Ghungar's natural father and' the son of another brother, who were thus in the position of being the closest possible collaterals of both sudaman the adopter and ghungar the adoptee. The case was referred to a Full Bench because of the existence of conflicting decisions by division Benches of the Lahore High Court, it having been held by Scott-Smith and Fforde JJ. In-- 'nathal v. Mst. Dhan Kaur', AIR 1925 Lah 184 (B), that a female descendant of an appoint-ed heir is in no better position than a female descendant of natural son, while in -- 'mst. Indar Kaur v. Hari Singh', AIR 1931 Lah 615 (C), Harri-son and Dalip Singh JJ. had held that when a person had been appointed an heir under the customary law, the succession must be governed by the same rule as would govern a gift although a resumption would take place on the total extinction of the line of the nominated heir, and his daughter, being as truly his child as his son she must succeed as the child of the appointed heir in preference to his collaterals. It was held by the Full Bench, which fully considered all aspects of the matter, that there is only one difference between the appointment of an heir and a gift and that is that whereas in the latter case the property passes immediately to the donees, in the former the property does not vest in the appointed heir till the death of the adoptive father and in all other essential features the appointment of an heir closely resembles a gift. The differences between the appointment of an heir' under the Punjab Customary Law and adoption under Hindu Law were set out, and it was held that there was no warrant for the contention that the word 'childless' in para, 55 of Rattigan's digest of Customary Law should be read as sonless, and that it refers to lineal descendants both male as well as female. In these circumstances it was held that the gift by the widow in favour of her daughter merely amounted to an acceleration of succession and therefore the plaintiffs were not entitled to challenge the gift in question. In the circumstances I consider that the plaintiff's suit was rightly decreed and would accordingly dismiss the appeal with costs. Kapur, J.