MST. KARTAR KAURversusAJMER SINGH

                         MST. KARTAR KAUR                                      A
                                 v.
                           AJMER SINGH

                             APRIL 19, 1996

          [B.L. HANSARIA ANDS. SAGHIR AHMED, .TJ.J                             B

        Hind11 Law-Hindu Women's Right to Prope1ty Act, 1937-Right of
inlte1itance to prope1ty by widows--,Applicability of~PEPSU area-Held, the
plinciple behind the Act to be bome in mind.
                                                                               c
      The respondent tiled a suit against the Appellant for declaration and
possession of suit property situated in PEPSU area which belonged to his
deceased father. He contended that since he was the son of the deceased
and appellant was a \\'idow of deceased, he alone was entitled to sUcceed
as per the custom prevailing in their Society, and thatthe mutation entries
are incorrect. The Appellant contended that as per custom she was entitled     D
to succeed, that she got title on the basis of adverse possession and led in
evidence to ~how that in other villages the widows have succeeded to their
husband's properties.

      The trial Court though held !hat the Appellant is the sole mrner,        E
dismissed the suit on the ground of limitation, adverse possession a!ld
estoppel.

      On first Appeal the District Court decreed the suit and held that the
suit was not barred by limitation, that there was no adverse possession,
that as per general custom the widow was nut entitled to inherit and the       F
Act of 1937 was not applicable to PEPSU where the land was situated. The
Appeal by Appellant was dismissed by the High Court, and findings of the
District Court were affirmed.

      Partly allowing the Appeal, this Court
                                                                               G
      HELD : 1. Though the' provisions of Hindu Women's Right to
Property Act did not apply to the area in the then PEPSU, the underlining
principle and idea behind that statutory provision are required to be borne
in mind while deciding the claim of a widow relating to property situated
In an area to which an Act might not have applied. On the oral and H
                                    587
    588                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A documentary evidence, the appellant's case relating to there being a special
    custom allowing inheritance to a widow alonbiwith the son cannot be
    rejected. [591-A-C]

            2. There are no materials on record to show that the appellant's
    possession was adverse in nature because of which prescriptive title could
B have been acquired by her. [589-F-G]

         3. The Appellant is legally entitled to 1/6th share in the suit property.
    The suit of the respondent is decreed accordingly.

       (This Court directed the Collector concerned divide the suit property
c by metes and bounds so as to allot l/6th specific share to the appellant as
    visualised by Order 20 Rule 18 CPC, the possession of the remaining part
    was directed to be given to the Respondent within 3 months.) [591-E-F]

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4222 of
D   1983.

         From the Judgment and Order dated 21.9.82 of the Punjab &
    Haryana High Court in R.S.A. No. 1813 of 1973.

            M.P. Verma, Ujjal Singh, R.C. Kaushik and J.P. Singh for the Ap-
E pellant.
            Ujjagar Singh, S.C. Paul and T.S. Arora, for the Respondent.

            The Judgement of the Court was delivered by

F          HANSARIA, J. The appellant is widow of one late Ranjit Singh who
    was admittedly the owner of the property in question. The respondent is
    the son of Ranjit Singh. He filed a suit, out of which this appeal arises, for
    seeking declaration that he was the exclusive owner of the property and
    mutation entries made in the name of the appellant are incorrect. Decree
    for possession was also prayed. The respondent's case was that he being
G   the son and the appellant being a widow of Ranjit Singh, he alone was
    entitled to succeed to the property as per the custom prevailing in the
    society. The appellant, who was the sole defendant, asserted that as per
    custom she also was entitled to succeed. Ownership over the suit property
    was claimed because of acquisition of title on the basis of adverse posses-
H   sion too. The trail court dismissed the suit by answering Issues 3, 4 and 5
            KARTAR KAUR v. AIMER SINGH [HANSARIA, J.]                       589

against the plaintiff, though it had answered Issue No. 1 reading: "Whether       A
the plaintiff is the sole owner of the property in the suit ?" in affirmative.
On appeal being preferred, the Additional District Judge decreed the suit.
The appellant carried the matter to the High Court in second appeal which
was dismissed. Hence this appeal.

     2. A perusal of the judgment of the trial court shows that following         B
were Issues 3, 4 and 5 :

         "3. Whether the suit is filed within the period of limitation '!

         4. Whether the defendant has become the owner of the property
         in dispute by adverse possession ?                                       C

         5. Whether the plaintiff is estopped from filing this suit ?"

      3. The appellate court decided Issue No. 3 relating to limitation in
favour of the respondent and disbelieved the case of the appellant regard-
ing her having become owner of property by adverse possession. As to the          D
claim of the appellant to. succeed because of special custom, the learned
Addi. District Judge observed that it was well settled that under the general
custom a widow was not entitled to inherit property in the presence of a
son. When the provisions of the Hindu Women's Right to Property Act,
1937 were pressed into service by the appellant, the court observed that          E
the Act was not applicable to PEPSU where the land was situate for
reasons given in para 9 of the judgment. The High Court has apparently
accepted this position.

       4. There is no infirmity in the impugned judgment insofar as the
question of limitation is concerned inasmuch as the suit was filed in 1967        F
and the dispossession was in 1956. This is not seriously contested by Shri
Verma, learned senior counsel appearing for the appellant. There are also
no materials on record to show that the appellant's possession was adverse
in nature because of which prescriptive title could have been acquired by
her. It is well settled that mere possession is not enough to claim this title    G
inasmuch as the possession has to be adverse.

      5. The real bone of contention is regarding custom prevalent in the
society to which the parties belong. Though in the written statement the
appellant had not claimed inheritance because of. any special custom
inasmuch as what was stated in para 1 was that the mutation has been              H
    590                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A sanctioned according to "law and custom", this is not material, according
    to us, because the trial Court did frame Issue No. 2 on this aspect of the
    Case which reads as below :

            "Whether the parties were governed by custom in matters of
            succession before the enforcement of the Hindu Succession Act.
B           If so, what that customs was ?"

          6. To estaulish her case relating to custom, the appellant examined
    DW. 2 and had put on record some documents. As the trial court has noted
    the sum and substance of the oral and documentary evidence Jed by the
c   appellant, it would be enough to note what was stated in this regard by that
    court. This is as below :

            "The learned counsel for the defendant has, on the other hand,
            urged that according to the custom also, Kartar Kaur was entitled
            to succeed to the property left by Ranjit Singh and in that regard
D           the learned counsel has tried to refer to the statements of some of
            the witnesses examined by the defendant and he has also referred
            to the mutations/Ext. D-7 and D-8. Ext. D-7 is the mutation
            pertaining to Village Katha Guru p'urporting to have been sanc-
            tioned in the year 1954 and vide that mutation a widow and a son
            of one deceased Inder Singh inherited his property in equal shares.
E
            Ext. D-8 is the copy of the mutation pertaining to village Saidoke
            situated in Tehsil Moga of District Ferozepur and that mutation
            shows that a son and widow of one Sewa Singh inherited the
            property left by Sewa Singh, in equal shares. The learned counsel
            for the defendant has also referred to the statement of one Harnek
F           Singh, D.W. 2, who deposed that at village Madhe, also, a widow
            and son of a deceased person by a second widow, i.e. both,
            succeeded to the property left by him. This witness seems to refer
            to the same instance is given in mutation, Ext. D-8. 11

G         7. The Addi. District Judge affirmed the fmding of trial court relating
    to custom_ The High Court did not specifically advert to this case of the
    appellant.

          8. We are not in a position to accept the findings of the courts below
    on this aspect, inasmuch as the trial court has rejected the claim by
H   observing in the main that the evidence brought on record by the appellant
           KARTAR KAUR v. AJMER SINGH [HANSARIA, J.]                  591

did not appertain to the village in which the parties resided, which was A
Aklia. We do not think if a custom has to be proved with reference to a
village it really appertains to a community or tribe. The appellant: having
led oral and documentary evidence to show that mutation had been granted
in favour of a 1vidow along with the son, we are of the view that appellant's
case relating to there being a· special custom allowing inheritance to a
widow along with the son did not merit outright rejection. We have taken
                                                                              B
this view because, though it may be that the provisions of Hindu Women's
Right to Property Act did not apply to the area in then PEPSU, the
underlining principle and idea behind that statutory provision are required
to be borne in mind while deciding the claim of a widow relating to
property situate in an area to which an Act might not have applied.          c
       9. But then, the appellant can be regarded as only one of the heirs
of Ranjit Singh who had, apart from the respondent, four other Class-I
heirs, namely Dalip Kaur another wife of Ranjit Singh; a daughter of Ranjit
Singh, through the appellant, and two sons of Ranjit Singh through Dalip D
Kaur. It is because of this that in the counter-affidavit fded by the respon-
dent it has been stated in para 18 that even if the appellant would be
entitled to inherit, she would be entitled to 1/6th share only. On the facts
of the case we accept this position.

       10. The appeal is, therefore, allowed by declaring that the appellant E
is legally entitled to 1/6th share in the suit property. The impugned judg-
ment is modified to this extent. The suit of the respondent stands decreed .
accordingly. The concerned Collector shall proceed to divide the suit
property by meters and bounds so as to allot 1/6th specific share to the
appellant as visualised by Order 20, Rule 18 CPC. This would be done F
within 3 months of the receipt of copy of this judgment; and the appellant
shall hand over the possession of the remaining part of the property to the
respondent 1vithin 3 months thereafter. An undertaking to this effect shall
be fdcd in this court within 1 month from today, failing which this appeal
shall stand dismissed without reference to the Court. On the facts and
circumstances of the Case, we leave the parties to bear their own cost G
throughout.

V.M.                                                      Appeal allowed.