SUKHI Vs. BARYAM SINGH

JUDGEMENT

(1.) THE circumstances in which this case has been referred to Full Bench are these.

(2.) THE parties to this litigation are Tats of Kharar Tehsil, District Ambak, and sawan, the last male holder of the property in dispute, died some time in the year 1947. The plaintiffs who are Sawan's sisters have filed the present suit for possession of the land (fully described in the plaint) as heirs entitled to succeed to their brother Sawan's property according to the custom of the tribe. It may be stated that on the death of Sawan the mutation was effected in favour of the defendants on the ground that they were collaterals and were, therefore, entitled to succeed. The plaintiffs allege that the mutation has been wrongly sanctioned in favour of the defendants and they (the plaintiffs) being the preferential heirs to the nonancestral property left by their deceased brother were entitled to claim possession. Jit Singh, one of the defendants, though served, did not come to contest the suit and was, therefore, proceeded against ex parte. Waryam Singh and Rulia Singh, defendants Nos. 1 and 2, alone contested the suit and in their joint written statement they admitted that the plaintiffs were the sisters of Sawan deceased the last mate owner of the suit property, but denied the plaintiffs' claim to be preferential heirs. They admitted that the parries were governed by the general Zamindara Custom in matters of succession but they asserted that according to the correct rule of custom the collaterals excluded sisters both in respect of ancestral and nonancestral property. On these pleadings the following issues were framed by the trial Court: "1. Whether the defendants are collaterals of Sawan deceased? 2. Whether according to custom the defendants collaterals succeed in preference to the plaintiffs sisters? 3. Relief.

(3.) IT may, at this stage, also be observed that the plaintiffs had in their plaint asserted that the suit property was not ancestral qua the defendants and Sawan deceased, the last male holder, and though the defendants had in their written statement denied this assertion and had pleaded that the property was anscertal, no specific issue on this plea was claimed by the defendants, with the result that no issue on the question of ancestral nature of property was framed by the trial court, at the time of settling the issues. When this omission came to the notice of the next presiding officer of the trial court he thought of framing an issue regarding the ancestral character of the property but the defendants' counsel at that stage made a statement on 27-51948 that the defendants had only incidentally alleged that the suit property was ancestral and that they were not relying in support of their case on this assertion. In view of this statement the learned Subordinate Judge considered it unnecessary to frame additional issue relating to the ancestral nature of the property. The trial court in this connection observed that the counsel for the defendants had deliberately adopted this attitude at a later stage as he seemed to have discovered in the meanwhile that the position of the collaterals in respect of non-ancestral property was perhaps better than in respect of ancestral property.