SHRIMATI BUI Vs. GANGA SINGH

JUDGEMENT

(1.) The plaintiffs, who claim to be 7th degree collaterals of Bua Ditta, a Jat of Amritsar, the last male holder, filed the present suit for a declaration that they were owners in possession of the land in suit measuring 121 Kanals 14 Marlas situate in village Sathiala with one Haveli and one vacant site measuring 7 Marlas situate in the same village and in addition they claimed possession of a house. Their case is that Bua Ditta, who was the last male holder, had a sister Bui. On Bua Ditta's death, his mother Mst. Chandi succeeded to the usual life estate. On Mst. Chandi's death, Mst. Bui claimed to have obtained a gift from her mother with regard to the property in dispute. The plaintiffs alleged that Mst. Chandi had no right to make a gift of the property in favour of her daughter in the presence of the plaintiffs-reversioners qua whom the property was ancestral. They also pleaded in the alternative that even if the property was held not to be ancestral, they had a preferential right than the sister of the deceased Bua Ditta. The suit was resisted by Mst. Bui. On the pleadings of the parties the following issues were framed :-

(2.) It may at this stage be stated that on Chandi's death a mutation in favour of the sister had been effected but the reversioners forcibly took possession of a part of the property in dispute with respect to which they prayed for a declaration. The trial Court held that the property was not proved to be ancestral. It was also held that Mst. Chandi succeeded Bua Ditta as a mother and therefore as such she had only life estate and had no right to make the gift. On issue Nos. 1 and 6, however, relying on question and answer 70 of the Riwaj-i-am of Amritsar District compiled in 1914, it was held that sister having no right of succession under custom, the collaterals were entitled to succeed. On an appeal having been preferred by Mst. Bui in the Court of the District Judge that Court also dismissed the appeal relying on cases reported as Hamira v. Ram Singh, 134 P.R. 1907 and Mst. Sant Kaur v. Sher Singh, I.L.R. 4 Lah. 392. It has been observed by the learned District Judge that according to the authorities relied upon by him a, sister does not exclude distant collaterals even as regards succession to self-acquired property.

(3.) Mst. Bui has come up in second appeal to this Court and on her behalf reliance has been placed on Bholi v. Kahna, 35 P.R. 1909 : 45 P.L.R. 1909, a decision by Sir William Clark, Chief Judge. This was a case from Amritsar and it was observed that para 24 of Rattigan's Digest appears to have rather broadly stated that sisters are usually excluded, and this statement is hardly warranted by the authorities quoted for and against. The learned Chief Judge also observed that the fact, that a proprietor can dispose of his acquired property and would presumably prefer to transfer it to his sister rather than to a remote collateral who lived in another village, practically a stranger, was also a consideration in favour of sister's right to succeed qua acquired property in preference to collaterals. On this reasoning the appeal filed by the sister was allowed by the learned Chief Judge. As a matter of fact, recently a Division Bench of this Court had an occasion again to deal with a case from Amritsar, where the right of a sister to succeed to acquired property as against collaterals of the 12th degree was involved (Mt. Sukhwant Kaur v. S. Balwant Singh,1951 AIR(Simla) 242). In that case after reviewing almost the entire case law on the subject the Division Bench (Weston, C.J. and Kapur, J.) came to the conclusion that the sister under the Customary Law was entitled to succeed to acquired property in preference to collaterals. I am in respectful agreement with the views expressed in the reported case. Indeed the learned counsel for the respondents has not denied that under the general custom a sister is entitled to succeed in preference to collaterals, but he says that on the present record special custom in favour of sisters with respect to the Jats of Amritsar has been established. In support of his contention he relies on Exhibits P.13 and P.19.