Smt. Payar Kaur and others vs Smt. Harbans Kaur and others

G.C. Mital, J.—Smt. Bhagan''s estate is in dispute. Her daughter Smt Harbans Kaur pleaded that she succeeded Smt. Bhagan as daughter along with Shabeg Singh and Angrez Singh son of another predeceased daughter of Smt. Bhagan and prayed for declaration to that effect besides claiming injunction restraining Dhian Singh and Mala Singh defendants from interfering in their peaceful possession The suit was contested by the aforesaid two defendants who pleaded that Smt. Bhagan inherited the land from her husband which was ancestral property and they being third degree collaterals of her husband were preferential heirs with regard to ancestral property as compared to the daughter and pre-deceased daughter''s sons of Smt. Bhagan. The trial Court dismissed the suit after recording findings that Smt. Bhagan died before the Hindu Succession Act, 1956, (here in after called ''the Act'') came into force. The plaintiff was daughter of Smt. Bhagan and Shabeg Singh and Angrez Singh pre deceased daughter''s sons of Smt. Bhagan. Since property was held to be ancestral, it was concluded that the two contesting defendants as third degree collaterals were the next heirs. On plaintiff''s appeal, the lower appellate Court recorded a finding that the property in dispute was not proved to be ancestral and, therefore, the daughter and pre-deceased daughter''s sons were the next heirs as compared to third degree collaterals. Consequently, the appeal was allowed and the suit was decreed. This is collaterals second appeal.

After hearing learned counsel for the parties at length and on perusal of the record, I find no ground for interference with the well considered judgment and decree of the lower appellate Court is made out.

The collaterals in the presence of daughter and another predeceased daughters sons can succeed only if it is proved that the land in dispute is ancestral In this behalf not an iota of evidence has been brought on record, because the collaterals have not traced the land in dispute to the common ancestor. In the absence of that the only finding which has to be recorded is that the land was self-acquired property of the husband of Smt. Bhagan and, therefore, was non-ancestral and even before the Act came into force daughters and pre-deceased daughter''s sons were preferential heirs as compared to third degree collaterals. It was faintly sought to be argued that before the Revenue Officer Harbans Kaur plaintiff had made her statement that she has relinquished her rights in the land in dispute. By such a statement no person can relinquish rights in in movable property of the value of more than Rs. 100/- nor by such a statement title can vested in any other person Moreover, this point was not raised before the lower appellate Court

For the reasons recorded above, there is no merit in this appeal and the same is dismissed with no order as to costs.