Ganda Singh and Others vs Fateh Singh and Others

S.K. Kapur, J.—The point for decision in this Defendants'' appeal is whether reversioners of the half-blood are excluded by those of the full blood. It may perhaps be necessary to refer to the pedigree table to understand the facts of this case. The pedigree table is as follows:

The land in dispute was held by Bachint Kaur, the widow of Bhagwan Singh, and on her death 2/3rd of the estate was mutated in the names of Defendants 1 to 4, who are the descendants of Kesria by his second wife Kauran and l/3rd in the name of the Plaintiffs, who are the descendants of Kesria by his first wife Bardhan. The Plaintiffs brought a suit for declaration that the mutation of property given in the plaint would not affect their reversionary rights as the parties are governed by the chundawand rule and not by the pagwand rule. They also prayed for possession of land measuring about 9 bighas which Defendant 5 had taken possession of land, in the alternative for possession of land entered in the plaint. Out of the land in suit Bachint Kaur had mortgaged some land in favour of Defendant 5 by means of a mortgago deed executed on 1-6-1943 for Rs. 3300 and the Plaintiffs alleged that the mortgage was with-out consideration and legal necessity and was, therefore, not binding on them. As to the rest of the land their allegation was that they were in possession and hence they were suing for a mere declaration, and in the alternative they prayed that they might be given a decree for possession of the entire land. They based their claim on the rule of succession being chundawand and not pagwand.

In their reply the Defendants pleaded that the rule of succession was pagwand and even if it was chundawand it had been abrogated and was no longer applicable to the parties. Several issues wore stated, which were:

(1) Whether the rule of succession in parties'' family is chundawand?

(1-a) If it is found that rule of succession in parties'' family was chundawand at one time, then has that rule been; brogated?

(2) Whether the land mortgaged by Mt. Bachint Kaur is ancestral qua the Plaintiffs and, if not, its effect on the suit?

(3) Did the mortgage by Mt. Bachint Kaur take place for consideration and necessity?

(4) Whether the entire land in dispute is ancestral qua the Plaintiffs and, if not, its effect?

(5) Relief.

The learned Subordinate Judge found that Grewals of Mauza Jhanda, which is the village of the parties, and particularly in the family of the parties the rule of succession was chundawand and that that rule must be given effect to in spite of the fact that it had not been followed by the Grewals of other villages of the district. He relied on several instances which will be discussed later. With regard to the mortgage he held that it was for consideration and necessity, and be decreed the Plaintiff''s suit for declaration. Against this decree, the Defendants took an appeal to the learned District Judge, who affirmed the decree of the trial Court, and the Defendants have come up in second appeal this Court.

The case of the Defendants is that whatever may have been the rule at one time the universal custom was to neglect uterine descent so that each son would take an equal share irrespective of the mother, and the learned Advocate for the Defendants relied for this purpose on Question 33 of Dunnett''s Riwaj-i-am of the Ludhiana District of 1911, which says:

Chundawand is rapidly disappearing. Cases still occur, but the rule is now not even a village custom, instance being confined to special families. As far as tribal custom goes, Pagvand is now the universal rule, save among Hindu Rajputs.

He further submitted that even if, the entry in the Riwaj-i-am was in favour of the special custom of Chundawand the burden on the party challenging that entry would be comparatively light in view of the general custom in the province being opposed to the chundawand custom. He relied on Bhag Singh v. Jai Singh 10 Lah. 694 : AIR 1929 Lah. 318, a case from Muktsar Tahsil of Ferozepore District.

Relying on Bui v. Bela Singh AIR 1947 Lah. 233 : 48 P.L.R. 521, he submitted that the rule of Chundawand was an unjust and inequitable rule of succession and therefore the tribes had gradually abandoned it in favour of the more just rule of Pagwand and that since 1892 it was changing and in some places it had completely changed and Ludhiana, according to the Advocate for the Defendants, is a district where this rule has been completely changed as shown by Dunnett''s Riwaj-i-am. He also placed reliance on Labh Singh v. Sarjit Singh AIR 1949 15 E.P. 401 : 51 P.L.R. 225, which was a case of Thind Jats of village Dialpura in Tahsil Samrala of Ludhiana District. There it was held that in view of the entries in the Riwaj-i-ams prepared at the Settlements of 1882 and 1909-10 the custom as recorded in the Wajib-ul-arz of 1852 could no longer be regarded as the custom applicable to Hindu Jats of Dialpura, and that it was doubtful if they even in 1852 followed the rule of Chundawand, but if it was proved that they did follow, the rule had been abandoned before 1882 and since then they had adhered to the pagwand rule. Reliance was also placed on para 7 of Rattigan''s Digest which says: "As a general rule, sons whether by the same or different wives, share equally." On these authorities and on this argument his submission was that the chundawand rule, even if existing at one time, being an unjust and inequitable rule had been abandoned by the tribes of Ludhiana District, which was supported by the entries in the Riwaj-i-ams of 1891-92 and 1911 and therefore the parties should be held to be governed by this rule.

With regard to the instances, which had been relied upon by the learned trial .fudge as well as the learned District Judge, the Advocate submitted that they were not sufficient to rebut the presumption which arose in favour of entire Defendants because of the entries in the Riwaj-i-ams.

In reply to this argument, the Advocate for the Plaintiffs gave a two-fold reply. His first submission was that in the first place Riwaj-i-am did not say that all tribes had given up this rule of succession. On the other hand, Dunnett''s Riwaj-i-am of 1911 definitely gives instances whore rule of chundawand had prevailed among certain tribes and also that "some whole villages of most tribes still declared for chundawand," and from this he submitted that no presumption should be raised in favour of pagwand rule. At any rate, the instances which had been given in this case proved conclusively that Grewals of village Jhanda were still clinging to chundawand rule.

His second submission was that the present case was not one which was covered by the rule given in Question 33 of Dunnett''s Riwaj-i-am or para 7 of Rattigan''s Digest, because those two, according to the learned Advocate, applied to lineal descent and not to collateral succession, and for this purpose he relied on para 26 of Rattigan''s Digest, which says:

In the case of collateral succession, in a contest between relations of the whole blood and those of the half blood, the Court may presume, until the contrary is proved, that

(a) when the property of the common ancestor was distributed according to the rule of Chundawand (perstirpes), the whole blood excluded the half-blood; and

(b) where the property of the common ancestor was distributed according to the rule of Pagwand (per capita), the whole blood and half-blood succeed together.

There seems to be force in what the learned Advocate has submitted. According to the rule laid down in Rattigan''s Digest, when the question to be decided is whether in a matter of collateral succession full-blood excludes the half-blood the original distribution of property has to be taken into consideration. In Gholam Muhammad v. Muhammad Baksh 4 P.R. 1891 F.B., Plowden J., has given a very illuminating judgment on the question now before us. At p. 13 he says:

When, in the first distribution of the original estate the existence of the wives has been recognised, in the subsequent devolution by way of collateral succession of any portion of the estate so distributed, the existence of the wives continues to be recognised; and when, in the first distribution the existence of the wives has been ignored, in the subsequent devolution by way of collateral succession of any portion of the estate so distributed, the existence of the wives continues to be ignored. In other words, in the former case a distinction is made between the whole blood and the half-blood and preference is given to the former: in the latter case, no distinction is made between the whole blood and the half-blood, and they are upon an equality.

And at p. 15 he says:

When the chundavand rule, recognising the wife, has been applied, the distinction between whole blood and half-blood is recognised among the descendants.

At p. 23 he says:

To put the whole matter into the smallest compass, the competition between the whole blood, and the half-blood, in any particular case, seems to mo to resolve itself at least into a question, whether the claimants of the whole blood and of the half-blood are regarded, by the eye of custom, as members of a single family in respect of the subject-matter of dispute. When there has been a chundavand distribution, they are not so regarded, because such a distribution usually entails a splitting up of the family into several distinct households, and an actual partition of the family land....

The learned Judge ends up his views as follows:

In all cases, the first thing is to ascertain the original mode of distribution, and then, how the members of the family have dealt with the land inter se since it occurred...when the first distribution of the estate was remote, the investigation should afford material for either confirming or rebutting the presumption that is authorised by the rule.

In Nabi Bahhsh v. Ahmad Khan 5 Lah. 278 : AIR 1924 P.C. 117 where in 1858 the common ancestor distributed villages between his four sons, of whom two were by one wife and two by another and thereafter each of the two families had separate possession and ownership of the allotted portions and in 1907 a descendant through the second wife died child-loss, it was held by their Lordships of the Privy Council that each portion of property succeeded to by the children of the second wife became a separate entity so that the rules of succession to it were rules of succession to the owner of it; and not to the ancestral owner; and that accordingly the full-blood excluded the half blood. Their Lordships approved of the rule laid down in Gholam Muhammad v. Muhammad Bakhsh 4 P.R. 1891 (F.B.).

To this family the above rule would apply. When Kesria died his estate was divided between the sons of his two wives equally. See Ex. P-9. The pedigree table, Ex. P-15, shows that the descendants through Bardhan as also the descendants through Kauran were both in possession of one hall which means that both the branches of the family were holding equal areas of land. Again, when Sahibo, widow of Lakha, a son of Kauran, died, her estate wont to the descendants of Lakha''s brother; Mana and Gandhi the sons of Kauran. See Ex. P-11. These two instances clearly show that the family had been divided into two separate groups and therefore the succession would be regulated among themselves in the manner that the whole blood will exclude the half-blood.

Coming now to the second part of the argument, that in this tribe living in the village of Jhanda the rule of succession has been chundawand and not pagwand is clear from the instances which the Plaintiffs have placed on the record, and in my opinion both the Courts below have given a right decision on this point. I have already mentioned two instances which relate to this family itself showing the division of the family into two distinct groups and in pursuance thereof succession in one group to members of that group to the exclusion of the other. The other instances of this village are: (1) Bag-hela, son-of Darbari died on 22-3-1905. Mutation Ex. P-12 and the evidence of Ram Singh P.W. 3 show that chundawand rule was followed: (2) Sher Singh son of Nathal died on 15-5-1942, and on his death again, as proved by P.W. 2 and mutation Ex. P-13, the rule of succession was chundawand. (3) Bhan Singh son of Nathal died on 19-7-1938 and as proved by Harnam Singh P.W. 2 and by mutation Ex. P-14, the property was distributed according to the chundawand rule. (4) Exhibit P-10 relates to the estate of Darbari who also belonged to this village. This is of the year 1882. These instances therefore are from the year. 1840 to the year 1942, about a hundred years, which arc proof of the fact that the succession according to chundawand rule is extant in this village right up to now.

The cases relied on by the Advocate for the Appellants are not cases which deal with collateral succession or with succession in the family group itself. Bui v. Bela Singh AIR 1947 Lah. 233 : 48 P.L.R. 521 did not relate to the property which had come from the common ancestor whose descendants had divided the property in accordance with the chundawand rule, but the dispute was relating to a brother of the common ancestor and, therefore, that case cannot be of much assistance in determining the rule in the present case, although the observations made by the two very learned Judges, who decided that case, must receive the highest respect from us. Labh Singh v. Sarjit Singh AIR 1949 E.P. 401 : 51 P.L.R. 225 was not a case of collateral succession but one of lineal descent and the dispute was as to the estate left by the father in a family where one mother had one son and the other two. Chundawand rule was followed in Fazli-Hussain v. Tafazul Hussain 13 Lah. 410 : AIR 1932 Lah. 222 and quite recently in Jawala v. Sadhu Singh AIR 1950 E.P. 15 the rule laid down in para. 26 of Rattigan''s Digest was followed by a Division Bench of this Court, whore it was held that a portion inherited by the children of one wife becomes a separate entity which vests in the members of that group- and the rules of succession to it are rules of succession to the owner of it and not to the ancestral owner, and on this view it was held that there is no competition between full-blood and half blood. In view of these authorities and the evidence led in this case I am of the opinion that when on the death of Kesria the sons by the two wives had taken the property in accordance with the rule of uterine descent the family was divided into the distinct groups and in regard to the property of each group the members of one group are entitled to succeed to the exclusion of the members of the other group. Secondly, although the rule of succession according to chundawand may be taken to have generally been abrogated in this district, even the Riwaj-i-am shows that some tribes in some villages were still governed by it, and even if the onus was on the Plaintiffs, by the instances of the family as well as of other Grewal Jats of their village they have discharged this onus and the Judges of the Courts below rightly hold so. Thirdly, Question 83 of the Riwaj-i-am and para. 7 of the Rattigan''s Digest relate to lineal succession and not to collateral succession.

I am, therefore, of the opinion that the suit of the Plaintiff was rightly decreed, and I would dismiss the appeal of the Defendants. The Respondents will have their costs in this Court as well as in the Courts below.

Harnam Singh, J.

I agree.