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1973 Supreme(P&H) 47
PUNJAB & HARYANA HIGH COURT
C.G.Suri, J.
Kalu
Versus
Nand Singh
Second Appeal No. 650 of 1965,
Decided On : FEBRUARY 23, 1973
A male proprietor's powers to make transfers inter vivos or by testament are not enlarged by the Hindu Succession Act, 1956.
Headnote:
HINDU SUCCESSION ACT, 1956 - SECTIONS 3(1)(G), 8, 9, 10 - ANCESTRAL PROPERTY - WILL - VALIDITY - CUSTOMARY LAW - APPLICABILITY - JATS - PUNJAB.
Fact of the Case:
Karma, a Jat, died intestate in 1961, leaving behind a one-third share in the joint khata of the parties. His brother, Nand Singh, claimed the share as the nearest heir under the Hindu Succession Act, 1956, while Karma's deceased brother's grandson, Kalu, claimed it under a registered will executed by Karma in 1957.
Finding of the Court:
The courts below found that the will was duly executed and that 6/7th of Karma's share was ancestral while 1/7th was non-ancestral. The suit was decreed in respect of the ancestral part and dismissed for the non-ancestral part.
Issues: 1. Whether the land in dispute is ancestral qua the plaintiff and Karma deceased. 2. Whether Karma executed a valid will in favour of defendant No. 1. 3. Whether customary law applies to the case.
Ratio Decidendi: 1. The definition of "intestate" in Section 3(1)(g) of the Hindu Succession Act, 1956, deems Karma to have died intestate in respect of the ancestral property, which he could not dispose of by will under the general customary law of Punjab. 2. The parties are Jats residing in a rural area, owning agricultural land, which is self-cultivated. These are essential incidents of an agricultural community, indicating that they were governed by custom in matters of succession. 3. Sections 8, 9, and 10 of the Hindu Succession Act, 1956, are applicable as Karma died intestate in respect of the ancestral property. 4. The will is valid and shall have full effect in respect of the non-ancestral property.
Final Decision: The appeal was dismissed, upholding the decision of the courts below.
, J.
1. The following Pedigree table will be of help in stating the facts of this regular second appeal field by Kalu defendant:-
- GULAB ____________________|____________________ | | | Nand Singh Karma Munshi plaintiff (Died issueless in 1961) | ________________________________________|____ | | | Battan Singh Rattan Singh Ujagar Singh Defendant No. 4 Defendant No. 3 Defdt. No. 2 | Kalu minor Defendant No. 1
2 The dispute relates to a one-third share in the joint khata of the parties which had belonged to Karma son of Gulab. Karma died without leaving any widow or issue in 1961 and a dispute has arisen about succession to his one-third share in the joint khata between his brother Nand Singh plaintiff on one side and the sons and a grandson of a pre-deceased brother of the deceased, namely Munshi son of Gulab. As Munshis sons and grandson were described to have gone into unlawful possession of the land, Nand Singh plaintiff claiming to be the nearest heir under Hindu Succession Act, 1956, had filed this suit for the possession of Karmas one-third share in the joint holding. It had been alleged in paragraph 6 of the plaint that before the coming into force of the said Act, the parties who are Jats were governed by Punjab Customary Law in matters of succession to and alienations of property and that Karma had no right to make a will of the land in dispute which was ancestral in his hands qua the plaintiff. In support of the plea of custom, it had been further averred in this paragraph that the members of the family were dependent on agriculture and cultivated lands with their own hands. The deceased was described to have made an unauthorised will dated 26-2-1957 in favour of his deceased brothers grandson Kalu who was a minor at the time of the filing of this suit in 1961.
3. In the written statement filed on behalf of the defendant-appellant. it had been denied that the parties were ever governed by customary law in such matters. Kalu appellant set up the registered will, Exhibit D. 1, dated 26-2-1957 and denied that the land in dispute was ancestral in nature.
4. The trial Court framed following two issues in the first instance:-
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(1) Whether the land in dispute is ancestral qua the plaintiff and Karma deceased.
(2) Whether Karma executed a valid will in favour of defendant No. 1.
5. After the parties had examined their entire evidence, it was brought to notice of the Court during arguments that there was no issue regarding the parties being governed by custom. A third issue with regard to the application of customary law to the case was therefore, added but the parties contented themselves with the evidence that had already been examined in the case. The counsel for the parties further conceded before the trial Court that the effect of the due execution of the will would be that all non-ancestral property of the deceased was to go to Kalu defendant-appellant as the legatee under the will and that the ancestral land was not to be affected by the will and was to go to the legal heirs of the deceased as if he had died intestate.
6. The trial Court found that the registered will, Exhibit D. 1, had been duly proved. 6/7th share out of the one-third share of Karma in the joint holding was found to be ancestral qua the plaintiff-respondent in the hands of the deceased. The suit was therefore, decreed in respect of this ancestral part of the land in dispute while it was dismissed in respect of only a 1/7th part of Karmas one-third share in the joint holding. The judgment and decree of the trial Court was affirmed by the lower appellate Court and the first appeal filed by Kalu was dismissed with costs. Kalu has, therefore, come up in second appeal.
7. The concurrent findings of fact of the two Courts below that the registered will, Exhibit D. 1. had duly executed by the deceased while he was of sound disposing mind and that the land in dispute was ancestral and non-ancestral in the ratio of 6:1 are findings of fact and cannot
