Smt. Dipo v. Wassan Singh (1983) 3 SCC 376: AIR 1983 SC 846

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O. CHINNAPPA REDDY, J. – SmtDipo, plaintiff in Suit No. 8 of 1962 in the court of the
Subordinate Judge 1st Class, Amritsar is the appellant in this appeal by special leave. She sued to
recover possession 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 defendants who are the sons of Ganda Singh, paternal uncle of Bua Singh.
The grounds of contest were that SmtDipo was 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, SmtDipo 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 A schedule
lands and a 13/80th share of the land described in plaint B schedule. The plaintiff preferred an
appeal to the District Judge, Amritsar. The appeal was purported to be filed in forma pauperis. It
was dismissed on the ground that the plaintiff 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 & 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 copy of the decree was filed after the expiry of the period of limitation and
it was on that ground that the second appeal was dismissed.

2. We do not think that the High Court was justified in dismissing the second appeal on the
   ground of limitation. The defect was technical as the second appeal itself had been presented in
   time. It was only a copy of the trial court’s judgment that was filed after the expiry of the period
   of limitation. The delay in filing a copy of the trial court’s 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 dismissing the appeal on the ground that
   the appellant-plaintiff had not herself presented the memorandum of appeal. The appeal had been
   admitted 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 herself. 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 heard the
   appeal on merits. The finding that Sm tDipo is the sister of Bua Singh is a concurrent finding and
   we accept it. We also proceed on the basis that according to the prevailing custom of the area,
   collaterals and not the sister are preferential heirs to ancestral property in the hands of a
   propositus, while the sister and not the collateral is a preferential 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 has
   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 ancestors. But Bua Singh was the last male
   holder of the property 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 propositus, 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:
   (I)f A inherits property, whether movable or immovable, from his father or father’s
   father, or father’s father’s father, it is ancestral property as regards his male issue. If A
   has no son, son’s son, or son’s son’s son in existence at the time when he inherits the
   property, he holds the property as absolute owner thereof, and he can deal with it as he
   pleases. . . .
   A person inheriting property 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 birth, whether they are
   in existence at the time of partition or are born subsequently. Such share, however, is
   ancestral property 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.
3. 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 properties. The judgments and decrees of the learned Subordinate Judge,
   District Judge and High Court are set aside and there will be a decree in favour of the plaintiff for
   all the plaint properties.