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Dipo Versus Wassan Singh

1983 (5) TMI 263 - Supreme Court Of India

C.A. 938 OF 1970 - Dated:- 5-5-1983 - Desai D.A. And Reddy O. Chinnappa, JJ. N. K. Aggarwal for the Appellant. S. L. Aneja for the Respondent. JUDGMENT: Chinnappa O.Reddy, 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 .....

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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 ap .....

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h 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 af .....

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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 ac .....

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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 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, a .....

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