Holding

Property inherited from paternal ancestors is ancestral only as regards the male issue of the propositus; for other relations it is absolute property, making the sister a preferential heir to all such properties.

Summary

Smt. Dipo sued to recover possession of her deceased brother Bua Singh's properties, claiming to be his nearest heir. The trial court held that she could inherit only the non‑ancestral lands, as under local custom a sister is excluded from ancestral property in favor of collaterals. On appeal, the Supreme Court examined the nature of ancestral property under Hindu law, holding that property inherited from paternal ancestors is ancestral only with respect to the male issue of the propositus and is the absolute property of all other relatives, including a sister. Consequently, the sister is the preferential heir to both ancestral and non‑ancestral lands when the male holder dies without male issue. The Court also ruled that procedural defects—failure to present the appeal in person and late filing of a copy of the trial judgment—cannot be used to short‑circuit justice and should be condoned. The judgments of the Subordinate Judge, District Judge and High Court were set aside and a decree in favour of the plaintiff was ordered.

Issues considered

Whether property inherited from paternal ancestors is 'ancestral property' only as regards the male issue of the propositus and absolute for other relations.
Whether the sister of the deceased is a preferential heir to such property under the prevailing custom.
Whether the procedural defects of non‑personal presentation of the appeal and delayed filing of the trial court judgment copy justify dismissal of the appeals.
Whether the High Court erred in dismissing the second appeal on the ground of limitation.

Legislation cited

Code of Civil Procedure, 1908s. Order 33 Rule 3

Subjects

Hindu lawancestral propertycoparcenarysuccessionpreferential heircollateralprocedural lawappeallimitation

Judgment

• 20

SMT. DIPO
A
v.

WASSAN SINGH & OTHERS

May 5, !983
B .,
(D. A ..DESAI AND 0. CHINNAPPA, REDDY J}.]
·~

_Hindu Law-Property inherited fro1n paternal ancestors is 'ancestral pro,
perty' ouly tis regards as male issue of propositus-As regards other relations it
is his abso/UJe property.
·c :Rules of procedure-Meant to advance cause of juslice; not to _short circuit;
iecision on merits.

Th~ appellant filed a suit to recover possession of properties belonging
to her deceased brother Bua Singh claiming to be his nearest heir The suit
was contested by the sons of Bua Singh's paternal uncle. JVIost of the suit
D properties were ancestral, while only a few of them were non-ancestral. Pro·
ceeding on the basis that according to t11e custom, the sister was .exc1uded by
the collaterals in the case of ancestral property, the trial court held that the
appellant was entitled to succeed only to· the non-ancestral property_ of Bua.
Singh.· While the first appeal was rejected· on the ground that she did not
present the appeal in person as required by 0.33, r. 3, the second appeal was
rejected on the ground that a copy of the trial court judgment was filed after
E the _expiry of the period of limitation.

Allowing the appeal,

J-lELD : 1. Property inherited from paternal ancestors is 'ancestral
property' as regards the male issue of the propositus, but it is his absolute
F property and not ancestral property as regards other relations. [23 A]

Mulla: Principles of Hindu law, 15th ed., pp. 289 and 291 relied on.

IO the instant case, no doubt, the prOperties· which have been found by
the lower courts to be 'ancestral properties' in the hands ·or Bua Singh are
properties which originally belOnged to Bua Singh's ancestors. But Bua Singh
G was the last male holder of the property and he had no mal~ issue. There ·was
no surviving:membe(of a joint family, be it a descendent -or otherwise, who
could take the property by survivorship. The respondents were collaterals of
Bua Singh and as regards them the property was nqt 'ancestrel property' and
hence the appellant was the Preferential heir. The appellant was, therefore,
H entitled to a decree in respect of all ·the plaint properties.

2. Rules of procedure are meant to advance the cause of justice and not
tQ shQr~·circuit.decision or merits. The lower Col,lrts w~re i.n error in dismissing
•
DIPO v. WASSAN SINGH (Chinnappa Reddy, J.) 2i
the appeals preferred by the appellant. When the District Judge had admitted
the first appeal there was no point in dismissing it thereafter on the ground A
that the memorandum of appeal had not been presented by the party herself.
The High Court should havC condoned the delay in filing a copy of the_trial
collrt's judgment and the second appeal should have been disposed of on
merits.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1938 of B
1970.

Appeal by Special leave from the Judgment and Order dated
the 22nd September, 1969 of the Punjab and Haryana High Court
in R.S.A. No. 1021 of 1964. C

N. K. Aggarwal for the Appellant.

S. L. Aneja for the Respondent.
D
· The Judgment of the Court was delivered by
•
CHINNAPPA REDDY, J. Smt. Dipo, plaintiff in Suit No. 8of1692
in the Court of the Subordinate Judge 1st Class, Amritsar is .the
appellant in this appeal by special leave. She sued to recover posses- E
sion 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 defen-
.... dants who are. the som of Ganda Singh, paternal uncle of Bua Singh .
The grounds of contest were that Smt. Dipo ":as not the sister of Bua F
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, Smt. Dipo 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 G
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 Alaf schedule lands and.a 13;80th share of the iand descri-
bed in the plaint Bey schedule. The plaintiff preferred an . appeal to H
the District Juc\ge, Amritsar. The appeal was purported to be filed· in.
fQrma pauperis. It was dismissed on the . gro\)nd tjiat· the plaintiff
22 SUPREME COURT REPORTS (1983 3 s.C.R. ,

A 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 and 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
1'
B memorandum of second appeal was filed within time, the ccipy of the ' '
decree was filed afther the expiry of the period of limitation and it
was on that ground that the second appeal was dismissed.

,.
c We do not think that the High Court was justified in dismissing
the second appeal on the ground of limita:ion. The defect was techni-
cal as the second appeal itself had been presented in the -time. It was
only a copy of the trial courts judgment that was filed after the expiry
of the period of limitation. The delay in filing a copy of the trial
courts judgment should have been condoned and the second appeal
D should have been entertained and disposed of on merits. We are also
satisfied that the learned District Judge was in error in iismissing
the appeal on the ground that the appellant-plaintiff had not hereself
presented the memorandum of appeal. The appeal had been admit·
ted_by the District Judge earlier and there. was no point in dismissing
E it thereafter on the ground that the memorandum of appeal had not
been presented by the party bereself. 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 , beard
F the appeal on merits. The finding that Smt. Dipo is the sister of Bua
Singh is a concurrent findiU'g and we accept it. We also proceed on
the basis that according to the prevailing custom of the area, colla·
t_erals and not the sister are preferenti~l heir. to ancestral property
in the hands of a propositus, while the sister and not the collateral is
a pereferential heir in regard to non-ancestral property. We must add
G
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 bas been established. But that is not the
end of the problem before us. No doubt the properties which have
H 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
a!lcestors. But Bua Singh was the last male holder of the property
n1Po ii. WASSAN SINGH ( Chinnappa Seddy, J.) 23
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 A
by survivorship. Property inherited from paternal. ancestors is, of

'
course, 'ancestral property' as regards. the male [issue ·of the· propo•
situs, 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 :
B

" ........ .if A inherits property, whether movable or
immovable, from his father or father's father, or father's
father's father, it is ancestral propety as regards his male
issue. If A has no son, son's soii, or son's son's son in
existence at the time when he inherits the property, he
c
jtolds the property as absolute owner thereof, and he can
deal with it as he pleases . A person 'inheriting pro-
perty 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 D
he holds it and is entitled .to hold it, as his absolute
property."

Again at page 291, it is stated :
E
"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 brith, whether
they are in existence at the time of partition or are born
subsequently. Such share, however, is ancesfral proper(y
only as regards his male issue. As regards other relations, F
it is separate property, and if the coparcener dies without
leaving male issue, it passes to his heirs by succession."

We are, therefore, of the view that the Lower Courts were
wrong in refusing to grant a decree in favour of .the plaintiff as G
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.s properties. The judgments and decrees of the learned H
''f
Subordinate Judge, District Judge and High Court are set aside and
24 SUPREME COURT REPORTS [1983j ~ s.c.R..
there will be a decree in favour of the plaintiff for all the plaint
A properties. •
The plaintiff is also entitled to get her costs through out from
the defendants. The defendants will pay the court fee due to ·the
Government in the suit, appeal, second appeal and the appeal to this
1
B Court.

H.L.C. Appeal allowed.