Mahan Kaur Vs. Sundar Das - Court Judgment

Excerpt:
custom - succession--widow's right to succeed collaterally--udaxi sadhs of muktsar tahsil, district ferozepur. - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 1906 it is open to serious doubt whether among agricultural tribes the right of a hindu widow to succeed collaterally is exceptional or unusual, we shall, for the purpose of this appeal, accept the contention that the onus of proving the custom pleaded by mummmat mahan kaur lies upon her. these intances have been discussed in detail by the counsel for the appellant, and practically nothing has been urged by the respondent's pleader to show that they do not afford a reliable evidence of custom. now, we quite concur in the view that single isolated instances, in which there has been mutal consent, are not of great value, but we are of opinion that the very best possible evidence of a custom is that which shows that it has been followed consistently in a number of instances with out dispute.1. the parties to this appeal are sikh jats of the sect of sadh udasis of the muktsar tahsil of the ferozepore district. one ram dass left four sons, narain dass, sadanand, hari das and sunder das. narain das died about fifteen years ago, and left a widow, musammat mahan kaur, the defendant in this case. the share of narain das in the holding held jointly by all the brothers was mutated on his death in favour of mahan kaur. about five years ago sdanand died without issue, and his share was mutated in the names of sunder das, the plaintiff, and musammat mahan kaur, in equal shares, the fourth brother having apparently died prior to the mutation proceedings.2. the defendant, musanunat mahan kaur, applied recently to the revenue authorities for partition of her share in the joint holding, both as regards the land which had been left by her husband, narain das, and in respect of the land to which she had succeeded on the death of sadanand. the plaintiff, sunder das, objected to the partition of the share left by sadanand on the ground that the defendant had no right to succeed collaterally to the said share and that mutation of names in respect of that share had been erroneously effected in her favour. the entries in the revenue papers being in defendant's favour, the revenue authorities referred the plaintiff to a civil court to establish his exclusive title to sadanand's share. hence the present suit.3. the first court held that the defendant had proved a custom under which she was entitled to succeed to the land left by sadanand in the same way as her husband would have succeeded if he had been alive. the plaintiff's suit was, therefore, dismissed. on appeal the learned divisional judge decreed the claim, holding that the instances of widow's collateral succession upon which the first court had relied were insufficient to prove the custom set up by the defendant. the defendant appeals.4. after hearing arguments and carefully considering the evidence on the record, we think that this appeal must succeed. although in view of the recent rulings of this court in saddan v. khemi 15 p.r. 1906 : 117 p.l.r. 1906 and lahori v. radho 72 p.r. 1906 it is open to serious doubt whether among agricultural tribes the right of a hindu widow to succeed collaterally is exceptional or unusual, we shall, for the purpose of this appeal, accept the contention that the onus of proving the custom pleaded by mummmat mahan kaur lies upon her. this onus, we think, she has fully discharged.5. the parties produced no evidence in court on the question of custom. a commission was issued for a local enquiry to the tehsildar who, after having allowed the parties full opportunity to produce evidence and having made as full an investigation as he could make in the locality, reported in favour of the custom set up by the defendant it appears from his report that no judicial decision bearing upon the question under consideration could be traced, but he refers to four mutation orders which go to show that among sikh jats of the sidhu caste in the muktsar tahsil widows have succeeded to the property left by their husbands' collaterals. these intances have been discussed in detail by the counsel for the appellant, and practically nothing has been urged by the respondent's pleader to show that they do not afford a reliable evidence of custom. the custom set up is a tribal, and not a village, custom; and, therefore, the circumstance that the instances in question are not of the village in which the parties reside nor of the got to which they belong (the udasi sadks being admittedly a very small community), is not a material obstacle to our accepting them as sufficiently supporting the defendant's position. in connection with this part of the case we attach the very greatest importance to the fact, the full weight of which has not been appreciated by the lower appellate court, that the plaintiff expressly consented to the mutation of names being effected in defendant's favour in respect of the share in dispute on the death of sadanaud, and that mutation was made, accordingly, on 3rd february 1901. the plaintiffs pleader has not attempted to explain in this court why his client had so consentel if, according to the custom applicable to the parties' got, the defendant was not entitled to succeed collaterally to sadanand's: estate. nor is there much force, it seems to us, in the argument, which apparently commended itself to the lower appellate court, that as none of the mutation entries relied upon for the defendant was made the subject of litigation in court, these are of no value an evidence of custom. we need only quote in this connection the following observations from the judgment of this court in saddan v. khemi 15 p.r. 1906 117 p.l.r. 1906 in which we fully concur:there are also four instances in which widows have been shown by entries in mutation orders to have succeeded without dispute to the property of their husbands' collaterals. the learned divisional judge treats those not very material, and counsel for the respondent urges on the authority of remarks in certain judgments of this court that these instances are of no value as they were not disputed. now, we quite concur in the view that single isolated instances, in which there has been mutal consent, are not of great value, but we are of opinion that the very best possible evidence of a custom is that which shows that it has been followed consistently in a number of instances with out dispute. even a judicial decision in a contested case shows that at least the custom is not universally admitted. we, therefore, attach a high value to the four instances produced, two in jagraon and two in phillaur, in which widows were allowed, as a matter of course to succeed to the property of their husbands' collaterals without dispute.6. these observations apply with fall force to the present case; and we think, after a careful consideration of the four instances relied upon by the defendant's counsel and of the authorities which are fully reviewed in saddan v. khemi 15 p.r. 1906 : 117 p.l.r. 1906 that the defendant, mnsammal mahan kaur, has proved that she is entitled under the custom by which the parties are governed to succeed to the land left by sadanand in the same way as her husband would have succeeded if he had been alive.7. we, accordingly, accept this appeal and dismiss the plaintiff's suit with costs throughout.