LACHHAM SINGH MANRAL Vs. JHAGAR SINGH MANRAL

JUDGEMENT

(1.) This is an appeal by Dhyan Singh Manral, defendant 1, and Lachham Singh Manral, defendant 6. The plaintiffs brought a suit for declaration of title in respect to certain property detailed at the foot of the plaint. They alleged that "according to law and family custom the estate of an issueless cosharer devolved upon the full blood collaterals excluding the half blood collaterals," that Mt. Kiri, the wife of Bhawan Singh, died in October 1932 and the plaintiffs and defendants 7 and 8, according to the pedigree printed at p. 7 of the paper-book, became entitled to the estate of Bhawan Singh in preference to defendants 1 to 6, but as the defendants had obtained a mutation order in their favour a cloud had been cast upon the plaintiffs title and a suit for declaration became necessary. Defendants 7 and 8 were by an order dated 17 December 1934 transferred to the array of plaintiffs and became plaintiffs 10 and 11. Bhawan Singh is a descendant of Madho Singh and the plaintiffs are descendants of Prem Singh and Bhim Singh. Madho Singh, Prem Singh and Bhim Singh are the sons of Bache Singh from the first wife. The defendants are the descendants of Narpat Singh who was the son of Bache Singh from the second wife. Plaintiffs 2, 3 and 10 are removed from the common ancestor in the same degree as defendants 1 and 6, whereas the rest of the plaintiffs and the rest of the defendants are a degree lower, but in the plaint no distinction was made and all the plaintiffs claimed the relief equally.

(2.) The defendants pleaded that they were the collaterals of Bhawan Singh, the last male owner of the property in suit and were descendants of the common ancestor Bacha Singh and were entitled to the property in question in the same manner as the plaintiffs and that the property in question should be distributed according to bhai bant (distribution of property according to the number of brothers) and not according to sautiya bant (division of property according to number of wives). There was a further plea that as defendants 1 to 6 were in possession of the property in question and mutation of names had been effected in their favour the plaintiffs suit for mere declaration was not maintainable.

(3.) The Court of first instance held that the possession of the defendants was not proved and therefore a suit for declaration was not defective. It however held that under the Kumaon customs the plaintiffs, although they were the descendants of full blood brothers, were not exclusively entitled to hold the property in suit. The suit of the plaintiffs for declaration was therefore dismissed. The lower Appellate Court held that the custom set up by the defendants had not been satisfactorily proved, and the plaintiffs suit was therefore decreed. In second appeal before us it is contended that the view taken by the lower Appellate Court is wrong and that the decree of the trial Court ought to be restored. It is said that the plaintiffs never asserted that they were governed in matters of inheritance by the Mitakshara School of Hindu law which draws a distinction between the descendants of the full blood and the descendants of the half blood and that further the custom set up by the defendants had been proved. Great reliance is placed by the defendants on Mr. Panna Lall's book Kumaun Local Customs. Mr. Panna Lall, I.C.S., was deputed by the Local Government of the United Provinces to enquire into and collect the customs that were prevailing in Kumaun, and he has accordingly written a book on the general customs applicable to the Hindus of the hill tracts of the Kurnaun Division, excluding certain castes for which rules are given separately. At p. 3, para. 17(a) of Mr. Panna Lall's book it is stated: There is no difference between brothers of the whole blood and consanguine brothers (i.e., having the same father but different mothers).