NAROTAM CHAND Vs. MSTDURGA DEVI

JUDGEMENT

(1.) Regular Second Appeal No. 979 of 1946 had been referred to a Full Bench of five Judges to settle two questions of law, the decision of which would result in the decision of the appeal itself. The first question is whether Act (1 of 1920) (Punjab Limitation (Custom) Act) governs suits brought by female heirs or other cognate relations to challenge alienations made by a widow who is in possession of the property of her husband and which had descended to him from his ancestors, The other question is whether the property of a maternal grandfather in the hands of the grandson can be treated ancestral qua his son, and can be regarded as such while it is in the hands of the daughter, in other words, whether any property in the hands of a female heir can be regarded as ancestral immovable property within the meaning of the term as usually understood in Customary Law.

(2.) In the decision of this question, the correctness of the Full Bench decision of the Punjab Chief Court in Lehna V/s. Mt. Thakri 32 P.R.1895 and of the Full Bench decision of the Lahore High Court in Mt. Attar Kaur V/s. Nikkoo A.I.R.1924 Lah.538 has to be examined.

(3.) The facts leading to this reference have been stated in my reference order of 24 June 1948, and may shortly be recapitulated. In the suit giving rise to this second appeal, Mt. Durga Devi, the daughter of one Kalu from Mt. Gauran, challenged two gifts made by her mother in favour of one Mangtu, daughter's son of the same Kalu from his second wife Mt. Kauri. Property described as A in the plaint WBS gifted by her on 5 August 1902 by means of a registered deed of gift, while property B was orally gifted on 7 June 1905 and mutation concerning this gift is Ex. P-9. What is described as property C in the plaint is shamilat land appertaining to the properties described as A and B in the plaint. Mr. Gauran died on 17 August 1942. The present suit was instituted on 12tb April 1943 for recovery of one-half share in the gifted property on the allegation that the plaintiff's mother had no power to make the gift and deprive one of her daughters of the "inheritance of her father. The suit was resisted on a number of pleas by the donees. Inter alia it was pleaded that it was barred by limitation.