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SMT. DIPO

v.

WASSAN SINGH & OTHERS

May 5, !983

(D. A .. DESAI AND 0. CHINNAPPA, REDDY J}.]

_ Hindu Law-Property inherited fro1n paternal ancestors is 'ancestral pro,

perty' ouly tis regards as male issue of propositus-As regards other relations it

is his abso/UJe property.

:Rules of procedure-Meant to advance cause of juslice; not to _short circuit;

iecision on merits.

Th~ appellant filed a suit to recover possession of properties belonging

to her deceased brother Bua Singh claiming to be his nearest heir The suit

was contested

by the sons of Bua

Singh's paternal uncle. JVIost of the suit

properties were ancestral, while only a few of them were non-ancestral. Pro·

ceeding on the basis that according to t11e custom, the sister was .exc1uded by

the collaterals in the case of ancestral property, the trial court held that the

appellant

was entitled to succeed only

to· the non-ancestral property_ of Bua.

Singh.· While the first appeal was rejected· on the ground that she did not

present the appeal

in person as required by

0.33, r. 3, the second appeal was

rejected on the ground that a copy

of the

trial court judgment was filed after

the

_expiry of the period of limitation.

Allowing the appeal,

J-lELD : 1. Property inherited from paternal ancestors is 'ancestral

property' as regards the male issue of the propositus, but

it is his absolute

F property and not ancestral property as regards other relations. [23 A]

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Mulla:

Principles of Hindu law, 15th ed., pp. 289 and 291 relied on.

IO the instant case, no doubt, the prOperties· which have been found by

the lower courts to be 'ancestral properties' in the hands ·or Bua Singh are

properties which originally belOnged to Bua Singh's ancestors. But Bua Singh

was the last male holder of the property and he had no mal~ issue. There ·was

no surviving:membe(of a joint family, be it a descendent -or otherwise, who

could take the property by survivorship. The respondents

were collaterals of

Bua

Singh and as regards them the property was nqt 'ancestrel property' and

hence the appellant

was the Preferential

heir. The appellant was, therefore,

entitled to a decree in respect

of all

·the plaint properties.

2. Rules of procedure are meant to advance the cause of justice and not

tQ shQr~·circuit.decision or merits. The lower Col,lrts w~re i.n error in dismissing

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DIPO v. WASSAN SINGH (Chinnappa Reddy, J.) 2i

the appeals preferred by the appellant. When the District Judge had admitted

the

first appeal there was no point in dismissing it thereafter on the ground A

that the memorandum of appeal had not been presented by the party herself.

The High Court should

havC condoned the delay in filing a copy of the_trial

collrt's judgment and the second appeal should have been disposed of on

merits.

CIVIL APPELLATE JURISDICTION

1970.

Civil Appeal No. 1938 of

Appeal by Special leave from the Judgment and Order dated

the 22nd September,

1969 of the Punjab and Haryana High Court

B

in

R.S.A. No. 1021 of 1964. C

N. K. Aggarwal for the Appellant.

S. L. Aneja for the Respondent.

· The Judgment of the Court was delivered by

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CHINNAPPA REDDY, J. Smt. Dipo, plaintiff in Suit No. 8of1692

in the Court of the Subordinate Judge 1st Class, Amritsar is .the

appellant in this appeal by special leave. She sued to recover posses­

sion

of the properties which belonged to her brother, Bua

Singh, who

died

in 1952.

She claimed to be the nearest heir of Bua Singh. The

suit

was filed in forma pauperis. The suit was contested by the defen­

dants

who are.

the som of Ganda Singh, paternal uncle of Bua Singh .

The grounds

of contest were that

Smt. Dipo ":as not the sister of Bua

Singh and that even if she was the sister, the defendants were

preferential heirs according to custom, as the whole

of the

land was

ancestral in the hands of Bua Singh. The learned Subordinate Judge

held that the plaintiff,

Smt. Dipo was the sister of Bua Singh.

He.

found that most of the suit properties were ancestral properties, in

the hands

of Bua

Singh, while a few were not ancestral. Proceeding

on the basis that according to the custom, the sister

was excluded by

collaterals in the case

of ancestral property while she was entitled to

succeed to non-ancestral property, the learned Subordinate Judge

granted

.a decree in favour of the plaintiff for a 2959/34836 share of

the plaint Alaf schedule lands and.a

13;80th share of the iand descri­

bed in the plaint

Bey schedule. The plaintiff

preferred an . appeal to

the District Juc\ge, Amritsar. The appeal was purported to be filed· in.

fQrma pauperis. It was dismissed on the . gro)nd tjiat· the plaintiff

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22 SUPREME COURT REPORTS (1983 3 s.C.R. ,

did not present the appeal in person as required by Order 33 Rule 3.

The defendants also preferred an appeal, but that was also dismissed; _

There was a second appeal to the High Court of Punjab and Haryana

by the plaintiff. The second appeal

was dismissed as barred by

limitation.

It appears that a copy of the trial court's judgment was

not filed along with the memorandum of second appeal. Though the

memorandum

of second appeal was filed within time, the

ccipy of the

decree

was filed afther the

expiry of the period of limitation and it

was on that ground that the second appeal was dismissed.

,.

We do not think that the High Court was justified in dismissing

the second appeal on the ground of limita:ion. The defect was techni­

cal as the second appeal itself had been presented

in the

-time. It was

only a copy of the trial courts judgment that was filed after the expiry

of the period of limitation. The delay in filing a copy of the trial

courts judgment should have been condoned and the second appeal

should have been entertained and disposed of on merits.

We are also

satisfied that the learned District Judge

was in error in

iismissing

the appeal on the ground that the appellant-plaintiff had not hereself

presented the memorandum of appeal. The appeal had been admit·

ted_by the District Judge earlier and there. was no point in dismissing

it thereafter on the ground that the memorandum

of appeal had not

been presented

by the party bereself. Rules of procedure are meant

to advance the cause

of justice and not to short circuit decision on

merits.

We have no option, but to set aside the judgments of the

District'Judge and the High Court. Instead of sending the case back

to the District Judge for disposal on merits,

we have ourselves

, beard

the appeal on merits. The finding that Smt. Dipo

is the sister

of Bua

Singh is a concurrent findiU'g and we accept it. We also proceed on

the basis that according to the prevailing custom of the area, colla·

t_erals and not the sister are preferenti~l heir. to ancestral property

in the hands of a propositus,

while the sister and not the collateral is

a pereferential heir

in regard to non-ancestral property. We must add

here that

we are not quite satisfied that the custom has been properly

established,

but for the purposes of the present case, we proceed on

the basis that the custom bas been established. But that

is not the

end of the problem before

us. No doubt the properties which have

been found by the lower courts to

be ancestral properties in. the hands

·of Bua Singh are properties which originally belonged to Bua Singh's

a!lcestors. But Bua Singh

was the last male holder of the property

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n1Po ii. WASSAN SINGH ( Chinnappa Seddy, J.) 23

and he had no male issue. There was no surviving member of a joint

family,

be it a descendant or otherwise, who could take the property

by survivorship.

Property inherited from paternal. ancestors is, of

course, 'ancestral property' as regards. the male [issue ·of the· propo•

situs, but it is his absolute property and not ancestral property as

regards other relations.

In Mulla's

Principles of Hindu Law (15th

Edition), it

is stated at page 289 :

" ........ .if A inherits property, whether movable or

immovable, from his father or father's father, or father's

father's father, it

is ancestral propety as regards his male

issue.

If A has no son, son's

soii, or son's son's son in

existence at the time when he inherits the property, he

jtolds the property as absolute owner thereof, and he can

deal with

it as he pleases . A person 'inheriting

pro­

perty from his three immediate paternal ancestors holds

it, and must hold it,

in coparcenary with his sons, sons'

sons and sons' sons' sons' but

as regards other

relations

he holds it and is entitled .to hold it, as his absolute

property."

Again at page 291, it is stated :

"The share which a coparcener obtains on partition

of ancestral property is ancestral property as .regards his

male issue. They take an interest in it

by brith, whether

they are

in existence at the time of partition or are born

subsequently.

Such share, however, is ancesfral proper(y

only as regards his male issue. As regards other relations,

it

is separate property, and if the coparcener dies without

leaving male issue, it passes to his heirs by succession."

We are, therefore, of the view that the Lower Courts were

wrong in refusing to grant a decree in favour of .the

plaintiff as

regards property described

by them as ancestral . property'. The

defendants were collaterals of Bua Singh and as regards

·them the

property

was not 'ancestral property' and hence the plaintiff was the

preferential heir. The plaintiff

was entitled to a decree in respect of

all the plaint.s properties. The judgments and decrees of the learned

Subordinate Judge, District Judge and High Court are set aside and

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there will be a decree in favour of the plaintiff for all the plaint

properties.

The plaintiff

is also entitled to get her costs through out from

the defendants. The defendants

will pay the court fee due to

·the

Government in the suit, appeal, second appeal and the appeal to this

Court.

H.L.C.

Appeal allowed.

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