LexMARA AND OTHERS versus NIKKO AND OTHERS
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1964 Jlll«AU 430 SUPREME COURT REPORTS [1964) MARA AND OTHERS v. NIKKO AND OTHERS (M. HIDAYATULLAH AND N. RAJAGOPALA AYYANGAR, JJ.] Inheritance-Jhalli Jats of Tahsil Ludhiana-Properties Ancestral or non-Ancestral-Whether Sister excludes collaterals. Claiming inheritance to the properties of one P-a Jhalli J at of Ludhiana TehsiL the respondents, who were P's sister and sister's son filed a suit against the appellants-P's collaterals. The Subordinate Judge decreed the suit and an appeal to the I1istrict Judge was dismissed. They held that the lands in suit were not ancestral and that there was no evidence to show that among the Jhalli Jats of Ludhiana collaterals excluded sisters and sister's son in respect of non-ancestral property. An appeal to the High Court was also dismissed. Held: (i) Where lands are so mixed up that the ar.cestral and non-ancestral portions cannot be separated they must be regarded as non-ancestral unless it is shown which are ancestral and which are not. Avtar Singh v. Thakar Singh, 35 I.A 206, applied. Land ceases to be ancestral if it comes into the hands of any owner otherwise than by descent. Inder Singh v. Gulzara Singh, AI.R. 1951 Punj. 345, Saif-ul- Rahman v. Mohammad Ali Khan, I.L.R. 9 Lah. 95 and Jagtar Singh v. Raghbir Singh, I.L.R. 13 Lah. 165, referred to. (ii) The application of the personal law to "the family by the courts below was correct and paragraph 24 of Rattingan's Digest which excludes sisters from inheritar.ce from non-ances- tral property is too widely stated. Ujagar Singh v. Mst. Jeo, [1959) Supp. 2 S.C.R. 781 and Waryam Singh v. Smt. Sukhi, CA No. 452/61 decided on 23-4-1963 (non-reportable) referred to. CML APPELLATE JURISDICTION: Civil Appeal No. 490 of 1962. Appeal by special leave from the judgment and order dated October 20, 1959 of the Punjab High Court in Regular Second Appeal No. 1591 of 1959. Kartar Singh Chawla and Harbans Singh, for the appel- lants. I. M. Lal and M. R. K. Pillai, for the respondents. March 24, 1964. The Judgment of the Court was deli- vered by Ritlayatvllah,J. HIDAYATULLAH, J.-This is a defendants' appeal by special leave against the order of the High Court of Punjab dated October 20, 1959 dismissing summarily second appeal filed by the appellants. The suit was filed by the respondents for possession of a plot, a house and a Taur and half share in certain lands as preferential heirs of one Pohla after the death r- 7 S.C.R. SUPREME COURT REPORTS 431 1964 of Pohla's widow Punjab Kaur on February 7, 1952. The plaintiffs are Mst. Nikko, sister of Pohla and Jarnail Singh, son of Mst. Har Kaur who was another sister of Pohla. The first appellant Mara is a collateral of 4th degree of Pohla and the other two appellants are Mara's sons. The following genea- logy gives the relationship of the parties: - Mara and Other• v. Niikl:o OlMi Or1. I Sohela I PirBux I Mara defendant No. 1 I :MohindL Singh defendant No2 I Major Singh defendant No. 3 Sultani Pohla (son) I Shrimati Punjab Kaur widow I Baghaila I Jaimal I Mat. Har Kaur (daughter) I Jarna.il son of Arjan Singh Plaintiff No.2 I I Sunder died sonle88 and wifeless I Mat.Nikko alia.s Punjab Kaur (daughter) wife of S&nta Singh J &t, resident of Ayali Kalan, Plaintiff No. I. The parties are Jhalli lats of village Chomon, Tehsil and District Ludhiana. The plaintiffs claimed that the property was non-ancestral and according to the Riwaj applicable to the· family, sisters excluded collaterals in respect of both ancestral and non-ancestral properties. It appears that after the death of Panjab Kaur, Mara got one of the fields mutated in his own name and thereafter took possession of the whole pro. perty. He made gifts to his sons of some of the properties a.nd that is why they were joined in the suit. Mara and his elder son Mohinder Singh filed a joint written statement in which. they raised many pleas the details whereof need not be given here. They claimed that according to the custom applicable to the family, sister and sister's sons were excluded from in- heritance in respect of properties whether ancestral or non- ancestral. They ,however claimed that the property was ances- tral and denied the genealogy. -• The Subordinate Judge, Second Class, Ludhiana framed six issues of which issues No. 2, 3 and 4 alone are important in this appeal. Those issues are: - "2. Whether the property
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