SHAM KAUR Vs. HARI SINGH

JUDGEMENT

(1.) THE following pedigree-table which is borne out by the record. Illustrates the relationship of the parties: Kesar Singh | --------------------------------------------------------------| | Moti Singh Hakumant Singh | | --------------------------------------------------------------- | | | | | Baswa Singh ahna Nanda Chhaba Sunder | | Singh (Extinot) Singh | ---------------------------------- --------------------------------------------------| | | | | | | Bachna Ram Ram Singh Gurdit Singh Dharam Singh Karnam Singh | (Defendant No. 1) ------------------------------------| | Sham Kaur Waryam Singh (daughter Pltf.) (died before 1951) The land in dispute, measuring 183 Karnals and 12 Marlas, situate in the revenue estate of village Burj Tharor, is comprised in Khewat No. 63, Kahatuni Nos. 87 to 96 of Jamabandi 1952-53. Sham Kaur daughter of Dharam Singh deceased, instituted the suit for joint possession of the aforesaid land, with these allegations; Karam Singh and Waryam Singh shown in t he above pedigree table, were joint owners of the suit land in equal shares. Waryam Singh died issueless and widowless sometime before 1951. Karam Singh uncle of the deceased, mortgaged different parcels of he landed estate of the deceased in favour of defendants 9 to 22. Subsequently, by a registered deed, dated 30-9-1951 he sold 100 Bighas and 19 Biswas of the mortgaged land in favour of defendants 2 to 8 for Rs. 25,000/ -. According to the agricultural custom, which governed the parties in matters of inheritance at the time of Waryam Singh's death, plaintiff succeeded to the estate of Waryam Singh deceased as his sister to the exclusion of Karam Singh and, as such, became owner of on-half share in the joint estate, and the alienations effected by Karam Singh to the extent of Waryam Singh's Share, were illegal and ineffectual qua her right. The contesting defendant resisted the suit inter alia on the ground that the land was ancestral in the hands of Waryam Singh deceased and consequently according to custom Karam Singh had inherited it to the exclusion of the deceased's sister the plaintiff.

(2.) THE trial Court, proceeding under order 17, Rule 3, Civil Procedure code, held that it had not been proved that the land was ancestral, and in consequence, partially decreed the suit. Against that decree, dated 22-9-1960. of the trial court, and appeal was preferred to the District Judge, who called for a report under Order 41. Rule 25. Civil Procedure Code, from the trial court with regard to the issue as to whether the suit land was ancestral. The sub ordinate Judge recorded further evidence produced by the parties and submitted his report dated 16-6-1961. to the effect, that the land in dispute had not been proved to be ancestral qua Karam Singh defendant. The learned District Judge, however, did not agree with that report and held that the evidence on record established that the suit land was ancestral qua the parties concerned. He therefore, allowed the appeal and dismissed the plaintiff's suit with costs throughout. Against that judgment and decree, dated 27-7-1961, the plaintiff has come in second appeal before this court.

(3.) WARYAM Singh, deceased, admittedly died before the coming into force of the Hindu succession Act. 1965. It is common ground that the parties, who are Jats, were at the material time, governed by agricultural custom in matters of alienation and succession. If the land was ancestral, them according to that custom, the collateral, Karam Singh, would exclude the sister of the last male holder from inheritance. If the land was non-ancestral then Sham Kaur, as sister of the deceased, would be the sole heir to his estate to the exclusion of Karam Singh. Thus the whole case hinged around the question whether or not the suit land was ancestral qua Karam Singh and the deceased. Ordinarily, a decision on this question is one of fact and cannot be assailed in second appeal. Where, however, such a finding is based on no evidence or is the result of a misreading of material evidence. It would amount to an error of law, warranting an interference in second appeal. In the instant case, as will be presently discussed, the finding of the learned District Judge on this point is based on conjectural grounds, coupled with a gross misconstruction of the revenue record which was the crucial evidence on this issue.