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Hindu Law-Property inherited from paternal ancestors is ‘ancestral property’ only as regards as male issue of propositus- As regards other relations it is his absolute property. Rules of procedure-Meant to advance cause of justice; not to short circuit; decision on merits.

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PETITIONER:
SMT. DIPO

 Vs.

RESPONDENT:
WASSAN SINGH & OTHERS

DATE OF JUDGMENT05/05/1983

BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
DESAI, D.A.

CITATION:
 1983 AIR 846 1983 SCR (3) 20
 1983 SCC (3) 376 1983 SCALE (1)582

ACT:
 Hindu Law-Property inherited from paternal ancestors is
'ancestral property' only as regards as male issue of
propositus- As regards other relations it is his absolute
property.
 Rules of procedure-Meant to advance cause of justice;
not to short circuit; decision on merits.

HEADNOTE:
 The 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. Most of the suit
properties were ancestral, while only a few of them were
non-ancestral. Proceeding on the basis that according to the
custom, the sister was excluded 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 the expiry of the period of limitation.
 Allowing the appeal,
^
 HELD : 1. Property inherited from paternal ancestors is
'ancestral property' as regards the male issue of the
propositus, but it is his absolute property and not
ancestral property as regards other relations. [23 A]
 Mulla : Principles of Hindu law, 15th ed., pp. 289 and
291 relied on.
 In the instant case, 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 descendent or otherwise, who could take the property by
survivorship. The respondents were collaterals of Bua Singh
and as regards them the property was not 'ancestral
property' and hence the appellant was the preferential heir.
The appellant was, therefore, 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 to short-circuit decision or merits. The
lower Courts were in error in dismissing
21
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 that the memorandum
of appeal had not been presented by the party herself. The
High Court should have condoned the delay in filing a copy
of the trial court's judgment and the second appeal should
have been disposed of on merits.

JUDGMENT:
 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1938 of
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.
 N. K. Aggarwal for the Appellant.
 S. L. Aneja for the Respondent.
 The Judgment of the Court was delivered by
 CHINNAPPA REDDY, J. Smt. Dipo, plaintiff in Suit No. 8
of 1692 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 Smt. Dipo 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, 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 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 land
described in the plaint Bey 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
22
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
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.
 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 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 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 Smt. Dipo 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
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 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 :
 ".......... if 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."
 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
plaints properties. The judgments and decrees of the learned
Subordinate Judge, District Judge and High Court are set
aside and
24
there will be a decree in favour of the plaintiff for all
the plaint 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 Court.
H.L.C. Appeal allowed.
25

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