Bachan Kaur vs Bishni and Others

Daya Krishan Mahajan, J.—The contest in this second appeal is between the brother''s daughter of the last male-holder and a third degree collateral''s widow. The relationship of both the contestants will be apparent from the following genealogical table--

Sahib Singh

Gulli Ghunna

Kishna Bachan Kaur daughter (deft. No. 1) SunderMst. Dharmo widow DhariSurjit Singh adopted son Atfra Mst. Bishni widow of Attra

Kishna, father of Bachan Kaur, Defendant No. 1 and Mst. Dharmo, widow of Sunder, were owners of the land, part of which is in dispute. By will Exhibit D. 1, dated 24th of August, 1953, Kishna willed away, not only his own interest in the land, but also the interest of Mst. Dharmo, to his daughter Bachan Kaur. Kishna died first and then Dharmo died on the 19th of May, 1955. The mutation of the estate of Mst. Dharmo was sanctioned in favour of Bachan Kaur and this order was maintained in appeal. Thereupon Mst. Bishni, widow of a third degree collateral of Kishna, brought the present suit, on the 7th of June, 1956, for possession of the share of Dharmo. In this suit, the mortgagees of the land were also impleaded, but we are not concerned with them. The suit was resisted by Bachan Kaur alone. According to her, she was the preferential heir to Mst. Dharmo and in other words, to Sunder. The Courts below have, however, negatived this defence and decreed Mst. Bishni''s suit. Against this decision, the present second appeal has been preferred by Bachan Kaur.

It appears to me that the Courts below have gone wrong in decreeing the Plaintiff''s suit. By no stretch of imagination, Bachan Kaur can be postponed to Mst. Bishni in the matter of succession to Sunder. Bachan Kaur is the brother''s daughter of Sunder whereas Mst. Bishni is the widow of a third degree collateral. If the Courts below had kept in view that the rule of representation is of universal application, in this State and sex is no bar to representation, they would not have fallen into the error into which they fell. It seems that they were obsessed with the fact that a widow''s right of collateral succession is recognised, whereas a daughter''s right is not recognised. There is no basis for this distinction. In the matter of representation, all females succeed as representing the male owners, whether they be the sons or fathers or husbands. As far back as 1925 their Lordships of the Privy Council in Hashmat Ali and Anr. v. Mst. Nasib-un-Nisa ILR (1925) 6 Lah 117 observed as follows:

It is settled by judicial decision that a son in matters of inheritance represents his deceased father and the record discloses instances of succession in which a widow was recognised as the representative of her husband and a daughter as the representative of a deceased uncle. It is thus shown that sex is not a bar to representation, but that widows and daughters in the absence of sons can claim the right in their favour.

If a reference is made to Mehtab-ud-Din and Ors. v. Abdullah and Ors. 1908 140 P.R., the force of the observations of the Privy Council, would be fully apparent. Lal Chand, J., in the aforesaid decision, after a review of the authorities, observed as follows:

Customary rule of representation has been found by judicial enquiry as well as experience to prevail generally throughout the province among agriculturists as well as non-agriculturists whenever the matter was disputed and not a single case to the contrary is traceable or was quoted. The presumption, therefore, might be that a custom so generally prevalent was also followed by the parties to the present case.

There is not a single case that has been brought to my notice where a daughter has not succeeded collaterally on the ground that she could not represent her father. It appears to me that the rule of custom is so well-settled in this State and no exception can be taken to it that a daughter is entitled to succeed collaterally representing her father. Of course, the position may be different if the property is ancestral and the daughter is not under the customary rule entitled to succeed. But so far as the present case is concerned, it was never alleged nor proved that the property in dispute was ancestral qua the collaterals of the husband of the widow who is contesting the daughter''s claim to her uncle''s estate. After giving the matter my careful consideration, I am clearly of the view that the decision of the Courts below, cannot be sustained, either on principle or on authority.

I would accordingly allow this appeal'' set aside the judgments and decrees of the Courts below and dismiss the Plaintiff''s suit However. I will make no order as to costs throughout.