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TMI Blog1960 (5) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... nd void as against the plaintiffs and others who would be entitled on Jai Kaur's death to succeed to the estate as reversioners. In the alternative, the plaintiffs contended that even if the land in suit was not ancestral qua the plaintiffs then also the deed of gift would be null and void as against their reversionary interests inasmuch as even as regards non-ancestral property daughters do not succeed among the Grewal Jats. The main contention of defendants 1 to 3 (the appellants before us) was that the suit land was not ancestral qua the plaintiffs and defendants Nos. 4 to 6, and that according to the customary law governing the Jats of the Grewal got, daughters exclude collaterals as regards non-ancestral property and a widow is competent to make a gift of such property in favour of her daughters. It was pleaded on behalf of the two daughters that they being preferential heirs in respect of the land in suit as against the plaintiffs, the gift is tantamount to acceleration of succession and is valid in every way. The Trial Judge held that 2B-2B, 14-B out of the land in suit was ancestral and the gift was invalid to that extent, because as regards ancestral property a daughte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration of succession in favour of the daughters as is permissible under the law. 6. On the question of custom the appellants rely on the statements in paragraph 23 of Rattigan's Digest of Customary Law (Thirteenth Edition) that in regard to the acquired property of her father the daughter is preferred to collaterals. It is not disputed that non-ancestral property is acquired property within the meaning of this statement by Rattigan. Against this the plaintiffs-respondents rely on the answers to question No. 43 relating to Hindu Grewal Jats of Ludhiana as appear in the Riwaj-i-am prepared at the revised settlement of 1882. The question and the answer are in these words :- Question : Under what circumstances can daughters inherit ? If there are sons, widows or near collaterals, do they exclude the daughter ? If the collaterals exclude her, is there any fixed limit of relationship or degree within which such near kindred must stand ? Answer : In our tribe the daughter does not succeed under any circumstances. If a person dies sonless, his collaterals succeed him. There is no fixed limit of relationship for purposes of excluding her. If there are no c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnstone, the Chief Justice held that the Riwaj-i-am as compiled, did not cover self-acquired property and that where the Rijah-i-am talked about succession to land without discrimination between ancestral and self-acquired, the rule laid down could usually only be taken to apply to ancestral property. A similar view was taken by Shadilal and Wilberforce, JJ., in Budhi Prakash v. Chandra Bhan A.I.R. 1918 Lah. 225 The view taken in these cases was followed by other judges of the High Court in Narain v. Mst. Gaindo A.I.R. 1918 Lah. 304 and Fatima Bibi v. Shah Nawaz A.I.R. 1921 Lah. 180 In Sham Das v. Moolu Bai A.I.R. 1926 Lah. 210 the learned judges (LeRossignol and Fforde, JJ.) also laid down the same principles, without any reference to the previous decisions, in these words :- It is true in the Riwaj-i-am no distinction is made between ancestral and acquired property, but it is a well-recognised rule that unless there are clear indications to the contrary, such an entry in a record of custom refers only to the succession to ancestral property. 9. After this view had been followed in several other decisions a different line was struck in Jatan v. Jiwan Singh A.I.R. 1933 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estor and this is the only basis of the agnatic theory. What a male-holder acquires himself is really no concern of theirs. It is reasonable, therefore, to assume that when manuals of Customary Law were originally prepared and subsequently revised, the persons questioned, unless specifically told to the contrary, could normally reply in the light of their own interest alone and that, as stated above, was confined to the ancestral property only. The fact that on some occasions the questioner had particularly drawn some distinction between ancestral and non-ancestral property would not have put them on their guard in every case, considering their lack of education and lack of intelligence in general. Similarly, the use of the terms in no case or under no circumstances would refer to ancestral property only and not be extended so as to cover self-acquired property unless the context favoured that construction. 10. One would have thought that after this pronouncement by a Full Bench of the High Court the controversy would have been set at rest for at least the Punjab courts. Surprisingly, however, only a few years after the above pronouncement, the question was raised again b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision Bench on a question of law was erroneous and stressed the importance of the well recognised judicial practice that when a Division Bench differs from the decision of a previous decision of another Division Bench the matter should be referred to a larger Bench for final decision. If, as we pointed out there, considerations of judicial decorum and legal propriety require that Division Benches should not themselves pronounce decisions of other Division Benches to be wrong, such considerations should stand even more firmly in the way of Division Benches disagreeing with a previous decision of the Full Bench of the same court. 11. In our opinion, the view taken by the Full Bench in Mr. Hurmate v. Hoshiaru A.I.R. 1944 Lah 21 is consonant with reasons and consistent with probability. The fact that the great majority of judges, who brought to bear on the question, an intimate knowledge of the ways and habits of the Punjab peasantry thought that when tribesmen were asked about succession to property, they would ordinarily think that they were being asked about succession to ancestral property, is entitled to great weight. It cannot, we think, be seriously disputed that at least in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there that the questioner wanted information about non-ancestral property also. The answer given by the Grewal Jats to this question also gives no reason to think that the persons questioned were thinking in giving the answers of both ancestral and non-ancestral property. 14. We have, therefore, come to the conclusion that the entries in the Riwaj-i-am on which the plaintiffs-respondents rely do not refer at all to non-ancestral property, and are, therefore, not even relevant evidence to establish the existence of a custom among Grewal Jats of Ludhiana district, entitling collaterals to succession to non-ancestral property, in preference to daughters. 15. Reliance was next placed on behalf of these respondents on the fact that the existence of such a custom was recognised in a number of judicial decisions, viz., Jattan v. Jiwan Singh A.I.R. 1933 Lah. 553 Ishar Kaur v. Raja Singh (1911) 9 I.C. 608 and Pratap Singh v. Panjabu (1911) 13 I.C. 177 If these decisions in so far as they recognised the existence of such a custom, had been solely or even mainly based on evidence, other than entries in the Riwaj-i-am, they might have been of some assistance. Examination of these cases, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (1952) S.C.R. 793 18. In so far as there is gift to a stranger, there is no effacement of the limited owner; nor is there any effacement in respect of the property which is retained. We find it impossible to say, therefore, that there is such effacement of the limited owner in this case, as would accelerate the daughter's rights by converting the future contingent right into a present vested right. 19. On behalf of the appellants it is argued that there is certainly a total effacement in respect of the non-ancestral property, so that the right of the next reversioners - the daughters - in that property has been accelerated. We do not think we shall be justified in recognising this novel doctrine of the possibility of effacement of the limited owner vis-a-vis the next reversioner of the non-ancestral property when there is no effacement vis-a-vis the reversioner of the ancestral property, and vice versa. Effacement cannot be broken up into two or more parts in this manner; and however much the limited owner may wish to efface herself only vis-a-vis those next reversioners whom she wants to benefit, law does not recognise such partial effacement . 20. The Hindu Law do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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