GANGI SAH Vs. HARLAL SAH

JUDGEMENT

(1.) This is an appeal filed by one of three defendants in a suit for declaration of right to, and recovery of possession of, a two-fifth share in certain property which has been decreed by both the Courts below. The parties are residents of a village in the District of Almora and belong to the same family. The following pedigree is given in the plaint and has been admitted, by the defendants:

(2.) Of the eight sons of Shiva Lal, Syam Lal died in his life-time. Subsequently, on Shiva Lal's death, there was a separation among the remaining seven sons of Shiva Lai. Of the seven sons, Lachhi Ram Sah was the first to die and there was a litigation in respect of his property which came up to this Court. The case is reported in Tula Ram V/s. Shyam Lal (1928) 12 A.I.R. All.468. We shall have occasion to refer to this litigation later. The property in dispute in the present suit belonged to Bhawani Das, son of Shri Ram. Bhawani Das died in the year 1918 without leaving any male issue. At the time of his death, Tula Ram Sah, Gangi Sah and Parsi Sah were the only three out of the sons of Shiva Lal Sah alive. Subsequently Parsi Sah and Gangi Sah also died and their respective sons, Nathi Sah and Indarlal Sah, are defendants in the suit, out of which the appeal before us has arisen, along with Gangi Sah, the appellant, who is the son of Tula Ram Sah. The first two plaintiffs are the sons of Joga Sah, plaintiffs 3 and 4 are the sons of Parma Sah and plaintiffs 5 and 6 are the grandsons of Parma Sah, being sons of Mathura Sah, deceased, who was a son of Parma Sah. It may be noted that Shiva Lal Sah had married thrice. Tula Ram Sah was born of one wife, Lachhi Ram Sah and Joga Sah were born of another wife, and the remaining five sons of Shiva Lal Sab, namely Shyam Lal, Parma, Shri Ram, Parsi and Gangi Sah wore born of the third wife.

(3.) There was a second litigation in the family and that related to this very property, namely the property left by Bhawani Das. On Bhawani Das's death, Parsi Sah and Gangi Sail seem to have taken possession of his property to the exclusion of the other members of the family. Parsi Sah mid Gangi Sah died shortly afterwards. Tula Ram, the father of the present appellant, brought a suit in the year 1925 against the sons of Parsi Sah and Gangi Sah, namely Nathi Sah and Indarlal Sah, on the ground that he was equally entitled to succeed to Bhawani Das's property along with Parsi Sah and Gangi Sah. The contention of the defendants in that suit, namely Nathi Sah and Indarlal Sah, was that their lathers, Parsi Sah and Gangi Sah, being full brothers of the father of Bhawani Das Hah, were under the Hindu law entitled to preference over Tula Ram Sah who was only a half brother of Bhawani Das Sah's father. Tula Ram Sah's case, on the other hand was that according to the custom prevailing in Kumaun, which modified the Hindu law, no distinction was recognized between brothers of the full blood and of the half blood, and that the same rule should be applied to a case where the question was as to the succession of uncles to the property of a deceased nephew. Tula Ram Sah based his case on the record of customs contained in Mr. Panna Lal's book, "Kumaun Local Customs". The suit was dismissed by the trial Court, but on appeal by Tula Ram Sah it was decreed by the Commissioner of Kumaun whose Court was the High Court for Kumaum at that time. The custom that Tula Ram Sah relied on in that case is contained in para. 17 of Mr. Panna Lal's book and refers in terms only to case where the inheritance devolves upon brothers to the estate of a deceased brother. The learned Commissioner observed in his judgment: ...It seems to me that a doctrine that applies to two relations as brothers must apply to them as uncles.