MAULU Vs. MT. ISHRO AND OTHERS
HIGH COURT OF PUNJAB AND HARYANA
Mt. Ishro And Others
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Soni, J. -
(1.) THE pedigree -table of the parties as given by the learned counsel for the appellant is as follows:
(2.) AFTER Ramji Lal's death, he was succeeded by his widow, Ziro. On Ziro's remarriage a mutation was sanctioned in favour of Ramji Lal's sister Ishro. This was on 19th April 1942. On 2nd August 1943, a suit was brought by Maulu, son of Deva Singh and by Bishna and Kishna, sons of Basawa Singh and the ground urged was that they were preferential heirs to the property of Ramji Lal and that the mutation that had been sanctioned in favour of Ziro would have no effect against them. It appears that Maulu was in possession of the property. It is not known what relationship Bishna and Kishna bore to Ramji Lal. Before the trial Court two issues were raised :
(1) Whether the plaintiffs are collaterals of Ramji Lal deceased.? If so, in what degree ?
(2) Are plaintiffs entitled to succeed to the estate of Ramji Lal to the exclusion of the defendant, sister of the deceased ?
It will be noticed that there is no issue regarding the ancestral nature of the property and we must take it that it has not been proved that the property was ancestral. The trial Judge decreed the claim on 8th January 1944. He held that the plaintiffs were collaterals of the fifth degree. On the second issue he observed that eight witnesses had been examined by the plaintiffs who deposed that under no circumstances a sister succeeds to the estate of a brother, while the defendant had examined five witnesses to the contrary. Neither party was in a position to cite any instance in support of his statement. The trial Court purported to follow Munshi v. Naranjan Singh, : A. I. R. 1937 Lah. 701 : (171 I. C. 959) and the Riwaj -i -am of which a copy Ex. P -11 was exhibited in the case and held that the plaintiffs had a better title to succeed to Ramji Lal than the defendant. From the judgment an appeal was taken to the District Judge. The District Judge held that the relationship between the parties was not of the fifth but of the sixth degree. He also purported to follow Munshi v. Naranjan Singh, : A. I. R. 1937 Lah. 701 : (171 I. C. 959) and held that as the collaterals were collaterals of a degree remoter than the fifth the preferential heir was the sister. He, therefore, accepted the appeal and dismissed the plaintiffs' suit. This was on 23rd October 1944. From the judgment of the District Judge, an appeal was taken to the High Court at Lahore and it came up for hearing before Mahajan J. Before that learned Judge Munshi v. Naranjan Singh, : A. I. R. 1937 Lah. 701: (171 I. C. 959) was again quoted. The learned Judge observed as follows:
Ramji Lal was a Jat of village Thandran in Thanesar Tehsil in the Karnal District. Munshi v. Naranjan Singh, : A. I. R. 1937 Lah. 701 : (171 I. C. 959) lays down the rule of succession among the Jats of Thanesar Tehsil to the effect that where there are no collaterals of the fifth degree or less, a daughter or daughter's son succeeds in preference to collaterals of a more remote degree and a sister or sister's son succeeds in preference to collaterals of a remoter degree than the fifth in the absence of a daughter, or daughter's son. This decision clearly covers the present case, and sitting in a Single Bench I am bound to follow it.
He accordingly dismissed the appeal but granted a certificate to file an appeal under the Letters Patent.
(3.) THIS appeal was accordingly filed and it has come up for hearing before us Mr. Nathu Lal Wadhera has appeared for the appellant who is Maulu alone. Bishna and Kishna not having preferred an appeal have been joined as respondents. There has been no appearance either on behalf of the sister or on behalf of Bishna and Kishna and the appeal has been heard against them ex parte.;
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