Chajja Singh vs Pritam Singh

Teja Singh, C.J.—This second appeal is directed against the appellate decree of the District Judge Patiala, whereby he dismissed the Plaintiff''s appeal from the decree of the trial Sub-Judge. The Plaintiffs are the sons of Mt. Lachhmi who sold 45 bighas and 6 biswas of agricultural land for Rs. 2,400 in favour of Muqaddam Singh and Asa Singh on 13-8-1996. The Plaintiff''s case was that Mt. Lachhmi being a limited owner and the sale being by her without consideration and valid necessity the same was not binding upon them and Pritam Singh Defendant 5 who was their brother. Accordingly they prayed that a decree be granted in their favour that the sale did not affect their reversionary interests. Pritam Singh and Amar Singh who were described in the plaint as Defendant 1 were impleaded because their father Garja Singh had brought a suit for pre-emption in respect of the sale and bad obtained a decree and also because they were in possession of the land. It is these Defendants that resisted the suit. They raised a number of objections, the most important of them were (i) that Mt. Lachhmi was full owner, and (ii) that the Plaintiffs had no locus standi to bring the action, because they were not related to Dhian Singh, who was the last male owner of the land. The trial Sub-Judge framed only the following preliminary issue:

Whether the Plaintiffs are the reversioners of Dhian Singh and therefore, they have locus standi to challange the alienation in dispute?

The issue was found against the Plaintiffs and their suit was dismissed. On appeal the District Judge, as mentioned above, maintained the decree of the trial Court. The second appeal in the High Court came up before my learned brothers who thought that the questions involved in the case were important as well as complex and so referred it to the Full Bench.

The question relating to the nature of the estate held by Mt. Lachhmi was not directly put in issue nor do I think it was covered by the issue that was actually framed by the trial Sub-Judge but the Courts below have gone into it. They have held that Mt. Lachhmi''s estate was not similar to that of a customary or Hindu widow and her powers of alienation were unrestricted. This point was also argued before us at considerable length and must, therefore, be determined.

Both sides are agreed that the land beloved originally to Dhian Singh, brother of Mt. Lachhmi''s father Lehna Singh, and that Lehna Singh had predeceased Dhian Singh. The Defendants maintained that though Mt. Lachhmi acquired the land on Dhian Singh''s death she did not do so as his heir and accordingly she took as an absolute owner. On the other hand, it was urged on behalf of the Plaintiffs that the land devolved upon Mt. Lachhmi as an heir of Dhian Singh, because she was the brother''s daughter of the deceased and had, therefore, a right to succeed to him in the absence of nearer heirs. The Plaintiff''s counsel further argued that in principle there is no difference between the nature of the estate held by a widow and other female heirs and in any case the daughter of the brother of the propositus so far as her powers of alienation are concerned stands on the same footing as his widow, daughter and mother. My own opinion is that in view of the circumstances under which the land was acquired by Mt. Lachhmi and the Revenue authorities agreed to have it mutated in her favour, it is not necessary to hold whether she was in fact an heir of Dhian Singh and whether according to the law by which Dhian Singh was governed she could have succeeded to him. It appears that Dhian Singh died in Jeth 1983 without leaving any issue, widow or other near heirs. According to the law of Escheat then prevalent in the erstwhile Patiala State, the Revenue authorities took hold of the land and left it to the persons who claimed to be entitled to it to establish their right to succeed to the deceased. Two persons came forward as rival claimants: (1) Nathu Ram who alleged that he was Dhian Singh''s adopted son, and (2) Mt. Lachhmi, daughter of Lehna Singh. A perusal of the Tahsildar''s report on the merits of the respective claims of Mt. Lachhmi and Nathu would go to show that the position taken up by the former was that Nathu had no connection with Dhian Singh that he was not the adopted son of Dhian Singh and that she being the daughter of Dhian Singh''s brother had a right to inherit the land in the absence of the nearer heirs of the deceased. The view of the Tahsildar as stated in the report was that whereas Nathu had not adduced any evidence in support of his alleged adoption, a copy of a decision brought on record by Mt. Lachhmi went to show that in the absence of the male lineal descendants of the deceased female descendants upto the seventh degree can inherit in preference to the Crown and since Mt. Lachhmi was the brother''s daughter''s daughter (sic) of the propositus no question of escheat to the Crown could arise. It was obviously on the strength of this report that the Revenue Minister by his order dated 3-4-1988 released the land in Mt. Lachhmi''s favour and she was recorded its ownor in the revenue papers.

From this it is clear that Mt. Lachhmi got the land because she represented herself to be Dhian Singh''s heir and her claim was accepted by the Revenue Minister, otherwise the land would have been escheat to the Crown. It cannot be denied that the contesting Defendants derived their right, title and interest from Mt. Lachhmi, that they are bound by her act and representation and it does not lie in their mouth now to assert that she had no right to the land in law and that it was given to her wrongly. In my judgment, the contesting Defendants being the representatives in interest of Mt. Lachhmi stand in her shoes and it is not open to them to raise a defence which would not be permissible to Mt. Lachhmi herself. Perhaps the case does not strictly fall within the scope of Section 115, Evidence Act, but neither that section nor the sections that immediately follow it are exhaustive of the rule of estoppel. As has been pointed out by several High Courts in India in a large number of cases estoppel is based on equity and good conscience and the object is to prevent fraud and secure justice between parties by promotion of honesty and good faith and by preventing them from approbating and reprobating at the same time. Sir Edward Coke defined estoppel in the following words: "An estoppel is where a man''s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth." In the well-known Law of Evidence by Woodroffe and Amir Ali (Edn. 1941) the following passage occurs at p. 862 regarding the scope of Sections 115 to 117:

In dealing with this and the following sections it is to be remembered, firstly, that they are not exhaustive of the law of estoppel, since all rules of estoppel are not also rules of evidence; secondly, that neither this nor it may be added, the following section enacts as law in India anything different from the law of England on the subject of estoppel. Cases of estoppel may, therefore, arise which are not within such purview of these sections at all, and those which are within such purview will (in the absence of an authoritative ruling of the Courts of this country) be determinable upon the principles which regulate English Courts.

The following observations made by Garth C.J., in the Ganges Manufacturing Co. v. Souruj Mull 5 Cal. 669 : 5 C.L.R. 533, may also be quoted with advantage:

It has been further contended by the Appellant, that Sections 115 to 117 contained in Chapter 8, Evidence Act, lay down the only rules of estoppel which are now intended to be in force in British India, that those rules are treated by the Act as rules of evidence; and that by Section 2 of the Act, all rules of evidence are repealed, except those which the Act contains. But if this argument were well founded, the consequences would indeed be serious. The Courts here would then be debarred from entertaining any questions in the nature of estoppel which did not come within the scope of Sections 115 to 117, however important those questions might be to the due administration of the law. The fallacy of the argument is in supposing that all rules of estoppel are also rules of evidence. The enactment in Section 115 is no doubt, in one sense, a rule of evidence. It is founded upon the well-known doctrine laid down in Pickard v. Sears (1887) 6 Ad. E. 469 : 45 P.R. 538... In such a case the rule of estoppel becomes so far a rule of evidence, that evidence is not admissible to disprove the fact or state of circumstances which was represented to exist. But ''estoppels'' in the sense in which the term is used in English legal phraseology, are matters of infinite variety, and are by no means confined to the subjects which are dealt with in Chapter 8, Evidence Act. A man may be estopped not only from giving particular evidence, but from doing acts, or relying upon any particular arguments or contention which the rules of equity and good conscience prevent his using as against his opponent.

Lord Thankerton C.J. in Canada and Dominion Sugar Co. v. Canadian National (West Indies) Steamship A.I.R 1947 P.C. 40 : 228 I.C. 614 remarked that a question of estoppel must be decided on ordinary common law principles of construction and of what is reasonable without fine distinction or technicalities. While dealing with estoppel by representation this is what Woodroffe and Amir Ali say:

The representation may be express or implied : whatever word, action or conduct conveys a clear impression as of a fact is embraced in that term. There is no necessity for an express verbal statement or indeed any verbal statement whatsoever. An act may involve and amount to a distinct declaration which will found an estoppel. (p. 872)

In the present case, Mt. Lachhmi not only did hold herself out as the legal heir of her father''s brother but her claim on that score was accepted by the Crown with the result that the land which would have been escheat to the Crown, had Mt. Lachhmi not been recognised as an heir of the last male holder, became her property. The simple question is, could in these circumstances Mt. Lachhmi have been allowed to take up the position that she had no right to succeed to her father''s brother as his heir or that she was a mere trespasser? In my opinion the answer cannot but be in the negative, and if Mt. Lachhmi could not be permitted to deny that she acquired the land as an heir no better right can be claimed by the persons who bought the land from her. It is true that the contesting Defendants in the case were not the original vendees but are the sons of Garja Singh who successfully pre-empted the sale, but in law the position of a pre-emptor is exactly like that of a vendee, the sale in whose favour he preempts and he acquires the same rights and is subject to same liabilities as the vendee.

Let us, however, examine the question on merits. It is not denied that Dhian Singh was a Jat and an agriculturist and his family was governed by ordinary agricultural custom. In the circumstances, all that we have to determine is whether Mt. Lachhmi was an heir according to customary law. The Respondent''s counsel made an effort to show that Hindu law did not recognise brother''s daughter as an heir. He also cited before us certain authorities in support of his contention. In the first place, the facts of all those cases are distinguishable from those of the present case, inasmuch as the claims of the brother''s daughter were considered vis-a-vis ''sapindas'' and ''samanodkhas'' and without doubt a brother''s daughter has no right in their presence. So far as this case is concerned, the record does not show that any ''Sapinda'' or ''Samanodkha'' of the propositus was in existence and for this reason my opinion is that, even if Hindu law applied the brother''s daughter who must be regarded as the ''Bhin-Gotra'' Sapinda or ''Bandhu'' would have succeeded. To say that she could not succeed under Hindu law in any case, is to treat her as a stranger which undoubtedly she is not. I am aware that in a Lahore case it was held that a brother''s daughter is not even a ''Bandhu'' but a different view has been taken not only by Bombay and Madras High Courts but also by the Allahabad High Court and the Court of the Nagpur Judicial Commissioner. These cases will be referred to hereafter. Secondly, the rights of Mt. Lachhmi must be decided in accordance with custom and not Hindu law, because as I have already observed, it was not denied before us that custom was the rule of law in the present case.

The general rule of succession among the agriculturists is that the sons are first entitled to the inheritance and after them their male descendants. In the absence of male lineal descendants the widow of the deceased ordinarily succeeds to a life estate. See in this connection paras. 6 and 11, Digest of Customary Law by Rattigan. After the widow comes the mother of the deceased and in default of the mother the property goes to collaterals. In case the daughter of the deceased survives him and the property is non-ancestral she is preferred to collaterals. These are the only heirs specifically mentioned in the Digest. Paragraph 28 of the Digest is to the effect that, subject to the exceptions hereinunder mentioned in the event of a deceased proprietor dying without heirs, his estate ordinarily escheats to Government. It is, therefore, clear that the list of heirs given in the Digest is not by any means exhaustive and if a male proprietor dies without leaving behind a male lineal descendant, a widow, a mother, a daughter or a collateral and some distant relation of his comes forward as an heir, the mere fact that that relation is not mentioned as a possible heir in the Digest or even in the Wazab-ul-arz or the Riwaj-i Am of the locality or the tribe to which the case may relate cannot be a bar to the assertion of his claim and it will be for the Courts to decide whether he has a right to inherit and hence the property of the deceased cannot escheat to Government. In some places local custom recognises the right of the village proprietary body to succeed to the property left by a male proprietor in the absence of his heirs and when a case relates to such a place and a distant relative of the deceased puts forward his claim to inherit, the Courts to decide whether the proprietary body has any right in the presence of that relation. Cases relating to succession by distant relations are no doubt rare, but they are not by any means non-existent and the principle deducible from the decided cases is that in the absence of nearer heirs such as a son, a widow, a mother or a daughter, the agnates, and in their absence the cognates howsoever distantly related are allowed to succeed in preference to the stranger or even to the village proprietary body. This is what appears at para 156, Rattigan''s Digest of Customary Law (Edn. 12):

The general principle of Customary law is that in the absence of all agnates of a childless proprietor, any cognate however distantly related to him, is entitled to succeed to his property in preference to the proprietary body of the village or a stranger.

Ellis in his notes on Punjab Custom sums up the rights of the coguates in the following words (para 97):

Generally speaking, the rights of cognates are postponed till after the agnatic heirs are exhausted. They are nevertheless ultimate heirs and particularly in the case of daughter''s son their position is becoming more and more favourable, there is no fixed rule as to what degree of relationship an agnate must be in order to exclude a cognate.

At one time agnatic theory held the field in the Punjab and the rights of female heirs were not frequently recognised (see in this connection Badhawa v. Dewa Singh 1893 P.R141 . but subsequent inquiry and knowledge since acquired have led to considerable modification of these views, and as was held in Waryama v. Hira Nand 1908 P.R.63 : 1908 P.W.R.126 it would be difficult to say now that the sole claim to succession under Customary law is community of agnatic blood. It was held in Rehman v. Karim Bakash 1917 P.R.28 : A.I.R.1917 Lah. 157 that in the absence of proof of custom to the contrary the father''s sister''s son, among the Muhammadan Rajputs, of the deceased proprietor had a preferential right of succession to the village proprietary body. In Mt. Dyal Kaur v. Mt. Mehtab Kaur A.I.R 1921 Lah. 168 : 74 I.C. 639 the question that came up for consideration before the High Court was whether daughters of the collateral of the deceased in the 5th degree and their sons could be regarded as heirs in the absence of agnates. The facts of the case were that the widow of one Bishan Singh who had died childless alienated some of the land left by her husband in favour of her brother''s son. Two suits were brought to set aside the alienation, one by the daughters of one of the collaterals of Bishan Singh in the 5th degree and the other by the sons of those daughters. This is what the learned Judges observed:

The relationship of the parties is not in dispute and though there is no evidence on the question of custom as regards the right of succession, the Plaintiffs are certainly ''Bandhus'' and (vide Mangat Ram v. Devi Chand 1906 P.R.20 : 1906 P.L.R.69 heirs in the absence of agnate collaterals. We note in this connection that it was found by the first Court that the common ancestor Karam Singh who had originally obtained his property in Mauza Khapar Kheri by gift, was of a different stock from the general proprietary body and that there is no claim either by that body or by Government on the ground of escheat.

It was held that the Plaintiffs being heirs could challenge the alienation by the widow.

The other case in point is Tara Singh v. Bibi Suraj Kaur A.I.R 1940 Lah 416 : ILR (1941) Lah. 546. The suit property belonged to one Nihal Singh, a Dhillon Jat of a village in Ambala District. After his death the property devolved upon his widow who made a will of it in favour of her nephew. On the widow''s death, the daughters of Raja Bhagwan Singh, who was Nihal Singh''s collateral in the 6th degree, brought a suit for possession on the allegation that in the absence of nearer heirs of Nihal Singh they had a right to succeed to his property on his widow''s death and that the will made by the widow was invalid and inoperative against them. A number of questions were raised by the Defendant who was in possession of the land by virtue of the will, one of them being that the Plaintiffs had no right of succession under the Custom. The appeal in the High Court was heard by a Bench consisting of Tek Chana and Abdul Rashid JJ. who held that the Plaintiffs were entitled to succeed to Nihal Singh''s widow, in preference to a stranger and since the widow had no right to make a will the property which was the subject-matter of the will devolved upon them. A large number of cases dealing with the right of succession of a cognate of the deceased proprietor were discussed and this is what the learned Judges observed:

The cases relating to the succession of cognates in the total absence of all agnates are necessarily of very rare occurrence in this Province. It is, therefore, significant that whenever a case of this nature has arisen the decision has always been that a cognate (qarbati) has succeeded as heir in preference to the proprietary body or other strangers. The oases referred to above show that the custom relied upon by the Plaintiff had been given effect to by a large number of Judges of this Court and the Punjab Chief Court for a period of over fifty years. No decision to the contrary was cited at the bar, and we are not aware of any. The custom whereby cognates however distantly related, exclude strangers from succession is in accordance with the sentiments of the agriculturists in this province. The agriculturists invariably favour a relation to a stranger so far as devolution of agricultural land is concerned. It may be correct to say that there is no general customary law of the Punjab, in the sense that ovary parson residing in the Punjab would be governed by it. There are, however, certain customs which are almost universally prevalent in the Punjab, of which in the words of their Lordships of the Privy Council, judicial notice should be taken, once it is established that the parties are governed by custom.

The judgment in this case was written by Abdul Rashid J. and Tek Chand J. concurred with him. It is interesting to note that Tek Chand J. was a party to the previous decision of Jang Bir v. Mst. Jamna 12 Lah. 534 : A.I.R.1932 Lah. 37 in which it was held that under Hindu law a sister had no right to succeed to the property of her deceased brother. This ease was not referred to in Tara Singh''s case A.I.R 1940 Lah. 416 : ILR (1941) Lah. 546 and the reason for this could only be that when a case is to be decided according to custom, and a custom on the point exists, no attention need be paid to the provisions of Hindu law.

Counsel for the Defendants had not cited before us a single authority in support of his contention that the brother''s daughter of a deceased proprietor cannot inherit his property even though he had left no other heir. He, however, referred us to a Bench decision of this Court in Mst. Kako v. Mst. Ishar Kaur civil Appeal No. 825 of 2003. The parties were governed by custom and one of the questions that fell for determination was whether on failure of agnatic line the brother''s daughter of the last male owner could exclude his sister. The learned Judges of the High Court answered the question in the negative. The mattes went up in further appeal to the Judicial Committee and the decision of the High Court was upheld. The High Court in the course of its judgment discussed a number of cases in which it was held that a sister is not an heir under custom and concluded by saying that it was not right to say that the sister was not an heir at all and that where there is no agnate of the last male owner alive and there is no better heir than her in existence the sister has a right to succeed to his property. The other point that the High Court discussed was whether a brother''s daughter was an heir to her uncle, and after referring to a number of cases made the observation that neither under Hindu law nor according to custom in the matter of succession brother''s daughters, are heirs. If I may say so with respect, the dictum is very widely worded and is in addition obiter. Two persons claimed in preference to each other, the sister of the deceased and his brother''s daughter and all that had to be decided was who had the better right. The question whether the brother''s daughter can inherit even if there is no sister and no other heir did not arise in the case and the Court was not called upon to pronounce any opinion thereon. I therefore, venture to think that this ruling cannot help the Defendants in the present case. As regards the Judicial Committee, no doubt their Lordships upheld the decision of the High Court, but this only means that they decided that the brother''s daughter of the last male owner had no right to succeed in preference to a sister. There is not a word in the judgment of their Lordships from which it can be inferred that according to their opinion the brother''s daughter cannot succeed to her uncle in any case, not even in the absence of all other heirs, near and remote. In addition, the concluding words of the judgment of the Judicial Committee make it plain that what they accepted as correct was the conclusion arrived at by the High Court and not all the arguments that were given in the judgment of the High Court in support thereof. This is what they said:

We are of the opinion that the conclusion arrived at by the High Court is perfectly sound and correct and nothing has been brought to our notice to show that the judgment is vitiated in any way whatsover by an error or wrong appreciation of the proposition of law.

As a last resort, the Defendants'' counsel made a half-hearted effort to convince us that because the term ''cognate'' does not include a female, Mt. Lachhmi could not derive any benefit from the principle that a cognate must be preferred to a stranger. He referred us to a few cases in which it was observed that the word ''cognate'' has the same meaning in customary law as ''Bandhu'' under Hindu law, and argued that since no female can be regarded as a ''Bandhu'' under Hindu law, Mt. Lachhmi could not be Dhian Singh''a cognate. Now, ''Bandhus'' of a person are his blood relations or ''Sapindas'' connected through one or more females and according to one school of thought no female can be regarded as a Bandhu,'' but the opinion on this point is not by any means unanimous. Both the Bombay and Madras High Courts have held that a person''s daughter or the daughter of his Sagotra. Sapinda is a ''Sapinda'' but when she gets married in another ''Got'' she becomes a ''Bhin-gotra'' sapinda and must, therefore, be regarded as a ''Bandhu.'' See in this connection Saguna v. Sadashiv Pandu 26 Bom. 710 : 4 Bom L.R. 527 and Jaganmdham v. Adilakashmi A.I.R 1940 Mad. 645 : ILR (1940) Mad. 784. The same view was taken by the Allahabad High Court in Nahni v. Gauri Shankar 28 ALL. 187 and by the Nagpur Judicial Commissioner''s Court in Madho v. Janks 36 I.C. 514 : A.I.R 1916 Nag. 35. It is however, not necessary to go into this matter in greater detail, because my opinion is that the term ''cognate'' is used in Customary law in a very wide sense and it means a blood relation other than an agnate and includes a female relation. Both in Mt. Dial Kaur''s case AIR 1921 Lah 168 : 74 I.C. 639 and in Tara Singh v. Bsbs Suraj Kaur A.I.R 1940 Lah. 416 : ILR (1941) Lah. 546 referred to above, the rights of females were recognised. In the judgment of the latter case the words ''female cognates'' appear at more than one stage and in the quotation given above, the term cognate is used as the equivalent of ''qar-bati'' which means a blood relation. In Fazal Hag v. Mt. Said Nur AIR 1948 Lah. 113, Achhru Ram J. observed that among the agricultural tribes of the Punjab generally in the absence of all agnates of a childless proprietor any cognate, whether male or female, however distantly related to him, is entitled to succeed to his property in preference to a stranger. I may also point out that here we are not interpreting a statute and accordingly the canons of construction that must be observed while dealing with a statute and on the strength of which a narrow construction would be justified have no application. For this reason also, the interpretation of the term ''cognate'' must be very liberal and wide On the strength of the authorities quoted above, I have no hesitation in coming to the conclusion that a female relative, provided she is a blood relation must be regarded as a cognate.

The matter may be looked at from another point of view. A brother of a deceased proprietor is admittedly one of his heirs. The question is whether in his absence his daughter can also claim a right to succeed. In view of the principle of representation, my answer is in the affirmative. The principle of representation is that when a person has a right to succeed to another person and he pre-deceases the latter his immediate heir can take his place. This is, of course, subject to the condition that at the time the succession opens there does not exist anyone, else whose right to succeed is superior to that of the said heir. The authority for the proposition that the principle of representation is recognised by customary law is AIR 1925 99 (Privy Council) . This case was recently followed by the East Punjab High Court in Surat Singh v. Mt. Lachhman Kaur A.I.R 1948 E.P. 64. In Balwant Singh v. Mt. Bhullan A.I.R 1949 E.P. 275 : , (51 P.L.R. 269) which was a case relating to Jats of a village in Rohtak District, the brother''s daughter of the deceased proprietor was held entitled to succeed to the property left by him in the absence of his male lineal descendants and widow. For all these reasons I hold that Mt. Lachhmi was Dhian Singh''s heir and she rightly succeeded to his land.

The next question that calls for determination is whether Mt. Lachhmi was an absolute owner. Counsel for the Defendants based his case on paras 64 and 66, Rattigan''s Digest of Customary Law. Paragraph 64 says that except as provided in para. 89 or para. 62, no female in possession of immovable property acquired from her husband, father, grandfather, son or grandson otherwise than as a free and absolute gift can permanently alienate such property. While para. 66 is to the effect that property which a female acquires from her own relatives, other than those mentioned in Section 64, or as an absolute gift, she can generally dispose of as she likes. It is true that Dhian Singh, from whom Mt. Lachhmi acquired the land, did not come within the category of any of the relations mentioned in para. 64 but as appears from the comments of the learned author below the paragraph, it is not exhaustive and does not cover the case of all female owners. While dealing with the authorities and on the basis of Ahmad Din v. Fatima Bibi 107 I.C. 489 : AIR 1928 Lah. 290, this is what is stated at p. 371 (Edn. 12) :

The rule of customary law is firmly established that a female Inheriting landed estate (whether ancestral or self-acquired) from a male, holds the property on a life tenure, and it is immaterial whether the female is a widow, daughter or a mother.

Later on, there is the following observation at p. 372 under the heading "female heir not competent to alienate ancestral or even acquired property inherited from a male except for necessity":

A female governed by the Customary Law (whether a widow, a daughter or a mother) inheriting landed estate (ancestral or self-acquired) from a male, holds the property on a life tenure, and has no power to alienate such property, except for legal necessity.

Mul Singh v. Khanu 1909 P.R.90 : 1904 P.L.R.55 was a case relating to a daughter and it was held that as a general rule a daughter''s tenure of her father''s land until death or marriage is very analogous to that of a widow in her husband''s property. While discussing the point, this is what Chatterji J, observed:

All female inheriting land presumably hold on a tenure similar to that of a widow.

Ahmed Din v. Mt. Fatima Bibi 107 I.C. 489 : A.I.R 1928 Lah. 290, quoted in the Rattigan''s Digest was decided by a Bench consisting of Shadi Lal C.J., and Bhide J., and though the alienation with which they were dealing was by a widow the observation made by them, as is dear from its words, applies to all females in Writing property from a male proprietor. The same Bench in Kanhi Ram v. Ruldu 114 I.C. 700 : A.I.R 1929 Lah. 323, held as follows:

The general rule of Customary Law is to the effect that a female in possession of immovable property acquired from her husband, father or grandfather, son or grandson, otherwise than as a free and absolute gift cannot permanently alienate the property.

I cannot see why the same rule should not apply in the case of a female who acquires property from her father''s brother and the Defendants'' counsel could not cite a single case to the effect that the aforesaid remarks, in so far as they relate to the tenure of an estate of all females inheriting property from a male proprietor, run counter to the principle of Customary Law on the subject. It is admitted that an estate of a widow under the Customary Law is subject to the same restrictions as that of a widow under Hindu Law and there is consensus of opinion among all well-known writers on Hindu law that in all Provinces except Bombay the restrictions on the estate of a widow apply to all females that inherit property from male proprietors. This is what Mayne says at p. 765 of his well-known treatise on Hindu Law and Usage Edn. 10:

The typical form of estate inherited by a woman from a male is the widow''s estate. The same limitations apply to all estates derived by a female by descent from a male, or a female, whether she inherits as daughter, mother, grand-mother, sister or as any other relation.

...In the phraseology of English law, her estate is neither a fee nor an estate for life, nor an estate tail. This is the view in all the schools except in Bombay.

Mulla remarks at p. 163, Edn. 9 of his Book:

The estate taken by a Hindu widow in property inherited by her from her husband is called "widow''s estate" or "Woman''s estate". The estate taken by every other limited heir is similar in its incidents to a widow''s estate.

Raghavachariar (Hindu Law-Principles and Precedents) is also of the same opinion. He observes at p. 550 of his book (Edn. 1947) that with the exception of those females in the Bombay Presidency who take an absolute estate on inheritance, all the females inheriting another''s property take only a limited estate. By analogy these provisions of Hindu law must apply to all females acquiring immovable property from a male proprietor otherwise than by an absolute gift.

As regards para. 66, Rattigan''s Digest, in so far as it relates to property inherited by a female from persons other than those enumerated in para. 64, with all deference to the learned author, it does not appear to me to lay down the correct law and is negatived by what appears in other parts of the book and to which reference has already been made. The only authority cited under the paragraph in the earlier editions was C.A. 1399 of 1916, but in Edn. 12 Amir Singh v. Khan Singh 1870 P.R 56 was also added. The unpublished decision is not available here but I have gone through the Punjab Record case and I do not and anything in it supporting the construction that the Defendants'' counsel would have us place upon the paragraph.

Now, let us assume that no definite custom on the point is proved. In that case the only alternative would be to fall back upon Hindu law as a last resort and as I have shown that so far as the restricted nature of the estate of a female heir is concerned, Hindu law makes no difference between a widow and other female heirs it must be held that Mt. Lachhmi was not an absolute owner and that her powers of alienation were as much restricted as those of a widow.

As regards the Plaintiff''s locus standi to challenge the alienation, the point need no elaborate discussion. There is abundant authority for the proposition that when a female owner having restricted power of alienation disposes of any immovable property every person who would inherit the property on her death can sue to have the alienation set aside on proper grounds. It has been held that in an extreme case even the Crown would be competent to challenge the widow''s alienation and this is consistent with the principle that restrictions on a widow''s power of alienation are inseparable from her estate and their existence does not depend on that of heirs capable of taking on her death. It is sufficient to cite in this connection the latest ruling of the Lahore High Court, Fazal Hag v. Mt. Said Nur AIR 1948 Lah. 119 mentioned above in which it was held that among the agricultural tribes of the Punjab, any cognate, whether male or female, however, distantly related to him would be entitled to succeed to his property in preference to a stranger and when such a cognate has a right to succeed he or she can also contest the validity of any alienation that may have been made by the female owner in possession on the usual life tenure. That the Plaintiffs in this case would have a right to succeed to the land on Mt Lachhmi''s dea h cannot be denied They are on the one hand her sons and immediate heirs and on the other they are the cognates of Dhian Singh, being the sons of his brother''s daughter. Accordingly, this point is also decided in Plaintiffs'' favour.

In the result I would allow the appeal, set aside the judgments and decrees of the Courts below and remand the case for decision on other points raided by the Defendants In view of the difficult nature of the questions involved, I would leave the parties to bear their own coats throughout. Parties counsel have been directed to cause their respective cheats to appear in the trial Court on the 18th instant.

Chopra, J.

I have had the advantage of reading the judgments proposed to be delivered by the learned Chief Justice and my learned brother Kesho Ram Passey J. The facts and points in dispute have already been given and discussed in detail by the learned Chief Justice and the same need not be recapitulated because I am in respectful agreement with the conclusion arrived at by him. I am of the view that under the general Customary Law of the Punjab in the absence of all agnates of a child-less proprietor a cognate, however, distantly related, is entitled to succeed to his property as an heir. I am further of the opinion that a female cognate inheriting such property holds it on a life tenure and has no better power to alienate it than a widow a daughter or a mother.

Under custom the right of a cognate to succeed in the absence of all agnates can now be taken to be well recognised in the Punjab. It has been accepted in a number of authorities cited at the bar and referred to in the judgments of my learned brothers. The custom on the point has not been shown to be in any way different in the Patiala State to which the parties belonged. At one time I was, no doubt, of the opionion that there being no specific issue on the point the parties had no time to prove the particular custom that may be applicable to them. But taking into consideration that none of thorn ever alleged any special custom nor during arguments did they place reliance on any special custom of the family, tribe or by the locality, the matter can fairly be dealt with and decked on the custom that is almost universally prevailing in the Punjab. If a cognate under custom is allowed to succeed even though it be only in preference to the proprietary body or escheat, he succeeds because of his relation to the deceased and as an heir. He may thus be a remote heir entitled to succeed only in the absence of all agnates but that does not mean that he gets the property as a stranger and not as an heir. The right of a cognate to succeed under such conditions was accepted even by the Division Bench of this Court in Mt. Kako v. Mt. Ishar Kaur Civil Appeal No. 825 of 2003, which has been cited by the learned Counsel for the Respondent as an authority binding on us because the decision in the case was upheld by the then Judicial Committee. The learned Judges made the following observation in the judgment:

The Customary Law of the Punjab and well recognised rules of agricultural custom in the Patiala State do not oust a cognate, howsoever distantly related to the last male owner from succession subject to the condition that the line of agnates has become extinct.

The contest in this case was between a brother''s daughter and a sister and the latter was found to be a nearer heir than the former. The observation makes it clear that the learned Judges never meant to exclude a brother''s daughter from the category of cognates who would be entitled to succeed in the absence of agnates. The learned Counsel for the Respondent has laid great stress on another observation made in the concluding portion of the judgment which is to the following effect:

Neither under Hindu Law nor according to custom in the matter of succession brother''s daughters are heirs.

This observation must be interpreted in the light of the facts of the case and all that the learned Judges probably meant to say was that a brother''s daughter was not entitled to succeed in the presence of a sister. If it was intended to be a dictum for general application I would with the greatest respect say that it goes contrary to the prior observation that has also been reproduced above. I cannot agree with the learned Counsel for the Respondent that their Lordships pf the Judicial Committee by upholding the decision meant to hold that a brother''s daughter was not one of the cognates who were entitled to succeed in the absence of all agnates. By accepting the conclusions arrived at by the Division Bench the Judicial Committee only held that a brother''s daughter could not be preferred to a sister of the last male bolder. The right of a brother''s daughter to succeed in the absence of a sister being not in dispute in the case the judgment cannot have a binding force as suggested by the learned Counsel.

The contention of the learned Counsel for the Respondent that even if a brother''s daughter be admitted to be entitled to succeed on certain contigency she does not succeed as an heir has no force. She gets the property because of her relations with the last male holder and not as a stranger. She may be a remote heir entitled to succeed only in the absence of well recognised nearer heirs but when she succeeds she does so as an heir.

As regards the nature of the estate acquire by a brother''s daughter when she succeeds to the property of her uncle I see no reason why it should be in any way different from what it would be if she had succeeded her own father. No direct authority on the point has been cited before us at the bar but the observations made in most of the cases do favour the view that a female inheriting an estate (whether ancestral or self-acquired) from a male proprietor under custom holds it on a life tenure akin to a widow''s estate. The following observation made by Chatterji J. in Mul Singh v. Khan 1903 P.R.(90 : 1904 P.L.R. 65 may particularly be referred to:

All females inheriting land presumably hold on a tenure similar to that of a widow.

The question in this case no doubt was with respect to the power of alienation of property acquired by a daughter from her father but as already observed I see no reason why a daughter succeeding to her father''s brother should have better rights than when she succeeds her own father. It was for the party alleging such a distinction to prove that the case would be different when she gets the property from her uncle. The learned Counsel for the Respondent has not been able to point out any such distinction.

While dealing with the nature of the estate that a sister gets on inheriting property from her brother the following remark is found to be made by Om Parkash in his book on Customary Law at p. 489.

Sister''s estate, like that of any other female, is ordinarily one for life only. She may, like a daughter under certain circumstances, transmit it to her own son.

In my opinion the case of a brother''s daughter cannot be different to that of a sister.

It cannot be denied that in Mitakshara Hindu Law, is generally followed in this part of the country, every female inheriting property from a male gets only a widow''s estate with limited powers of alienation. Even if it be admitted that there is no generally recognised rule of custom, as regards the nature of the estate acquired by a cognate and we were to fall back upon the personal law of the parties the result would not be different. I am, therefore, of the opinion that a brother''s daughter when allowed to succeed under custom holds it only on a life tenure and not as an absolute. In my opinion para. 64, Rattigans Digest of Customary Law, only mentions the females that are generally recognised as heir in the presence of agnates and is not exhaustive so as to exclude other females having only a remote chance of succession. In the result I would agree with the order proposed by the learned Chief Justice.

Kesho Ram Passey, J.

In spite of having had the advantage of reading the judgment of the learned Chief Justice in which all material facts are exhaustively set out, I do not feel converted to the view that Mt. Lachhmi had succeeded to a life estate and that her powers of dealing with it are no better than those of a widow under Hindu Law or Custom. In the triangular contest that ensued on the demise of Dhian Singh regarding succession to this estate, the Crown withdrew releasing the property in favour of Mt. Lachhmi and Nathu, the third claimant, was left to have the dispute settled between her and himself in a civil Court and there are no indications that he attempted to have any judicial decision on the controversy. Several years after the mutation was sanctioned in her name, she sold the land in dispute to Mukadam Singh and Asa Singh, who were divested of proprietary title and possession and substituted by Pritam Singh and Amar Singh pursuant to a pre-emption decree granted in respect of the sale to the latter (Pritam Singh and Amar Singh). The present suit was instituted by the sons of Mt. Lachhmi, who urged that she held the land on a life tenure and had alienated it without justifiable or valid necessity. A declaratory decree that the alienation would have no effect upon their reversionary interest was prayed for. Mt. Lachhmi in her written statement supported the Plaintiffs but the suit has been resisted by Pritam Singh and Amar Singh, successful pre-emptors in possession on ground inter alia that the alienor was a full owner and that her sons had no locus standi to impeach the transfer. Only one issue namely

Whether the Plaintiffs are the reversioners of Dhian Singh and therefore they have locus standi to challenge the alienation in dispute

framed in the case has been decided by both the Courts below against the Plaintiffs and the suit has been dismissed. The issue does not appear to be comprehensive enough to cover the points of law now raised but there can be no doubt that the parties knew that the crux of the dispute between them was the nature of the estate acquired by Mt. Lachhmi and the extent of her power to deal with it. Even with this knowledge the Plaintiffs, to discharge the onus cast upon them, examined the village Patwari only whose evidence does not go beyond stating that the land had in the circumstances mentioned above come to Mt. Lachhmi from her father''s brother. No evidence oral or documetary was produced by the Plaintiffs concerning custom governing such devolutions or alienations. The suit should fail for want of evidence to prove the issue and the correctness of the decisions of the Courts below becomes unquestionable but we have been referred to general principles of Customary Law relating to succession and alienations and we have now to Bee if they can help the Plaintiffs.

The problem in this case is as to whether a brother''s daughter is an heir of her uncle according to general custom prevailing in the Patiala State, and if the answer be in the affirmative, would she succeed to his estate as an absolute owner or hold it subject to the incidents of a life tenure. As mentioned above, there is no evidence which could be helpful for arriving at a satisfactory conclusion and only decided oases have to a large extent to be looked to for guidance. Let us first see whether a brother''s daughter is an heir under Hindu Law. She does not belong to the heritable class of Bandhus as held by Jai Lal and Abdul Qadir JJ. in Mt. Gur Kaur v. Mt. Bhagan 134 I.C. 208 : 82 P.L.R. 369, and she does not come in at all as heir under the Mitakshara School of Hindu Law. It was further held in that case that she has consequently no locus standi to continue a suit as the heir of her uncle. In Mt. Bibi Sodhan v. Harsa Singh 1916 P.R.51 : A.I.R 1916 Lah. 188 while deciding the question whether under the Hindu Law of Mitakshara, the daughter of the uncle of the last male owner is entitled, in the absence of all other heirs to inherit the property, Rattigan J. observed:

In my opinion this question must be answered, upon the authorities, in the negative, as it would now appear to be settled law, that according to the Benares School, females do not succeed to males unless their right of inheritance is expressly recognised by some text in their favour. Females whose rights are so recognised are: (1) the widow; (2) the daughter, (3) the mother, (4) the father''s mother and (5) the father''s father''s mother. The daughter of a cousin is nowhere recognised as an heir and whatever may be the law prevailing in the Bombay and Madras Presidencies (where female heirs to males are more favoured than in Punjab and by the Benares School) there can be no doubt that a woman in the position of the present Plaintiffs has no possible claim to succeed to her father''s male cousin according to the Mitakshara system.

This decision was referred to and followed in Surjan Devi v. Jagiri Mal 59 I.C. 124 : 1 Lah. 608 and Mt. Gurkaur v. Mt Bhajan 134 I.C. 203 : (32 P.L.R 369). In Shambhu Nath v. Mt. Ralli 52 I.C. 591 : AIR 919 Lah. 318 a sister was not considered competent to continue a suit or appeal as the legal representative of her brother, as under the Mitakahara School of Hindu Law, she was not an heir at all to her brother. In Maulu v. Smail A.I.R 1935 Lah. 304 a Division Bench of the Lahore High Court consisting of Tek Chand and Abdul Rashid JJ. held that a daughter of a Jat cannot succeed to his collaterals. In Mt. Jawali v. Lal Singh A.I.R 1942 Lah. 164 : 201 I.C. 675 decided by Dalip Singh and Din Mohd. JJ. the following observations have a bearing on the question involved in the present case:

Whether Sant Singh died before Man Singh or vice versa does not alter the situation in any manner... Qua Man Singh therefore the status of the Plaintiffs is that brother''s daughters... Counsel of the Appellants has failed to show that there is anything contained in the Riwaj-i-Am which favours the Appellant''s contention that they are preferential heirs even in respect of Man Singh''s estate. In the absence of custom we can only fall back on personal law but it is frankly conceded that under Hindu Law brother''s daughters are not treated as heirs at all.

Surjan Devi v. Jagiri Mal AIR 1920 Lah. 514 : 1 Lah. 608 is another case decided by a Division Bench of the Lahore High Court in which it has been held that under Hindu Law, the only females entitled to inherit are the widow, the daughter, the mother, the father''s mother, and the father''s father''s mother and that a brother''s daughter is not Bandhu with rights of inheritance. Cases of Bombay and Madras cannot be in point, as in Bombay the Dayabhaga (sic) rule prevails and in Madras, as judgments of that High Court show, females have consistently been more favoured than the Benares School contemplates. The authorities cited above prove abundantly that according to Mitakshara a brother''s daughter is not an heir.

Now coming to Customary Law, it was held by a Division Bench of this Court in Mt. Kako v. Mt. Ishar Kaur, (C.A. No. 325 of 2003 decided on 6-11-2005) that

neither under Hindu Law nor according to Custom in the matter of succession, brother�s daughters are heirs. Mt. Ishar Kaur has thus to be regarded as a stranger.

The unsuccessful daughter of the brother of the last male owner went in appeal to the Judicial Committee but the learned President and Member by their judgment of affirmation dated 26-6-2006/11-10-1949 dismissed the appeal with the concluding observation that:

we are of the opinion that the conclusion arrived at by the High Court is perfectly Bound and correct and nothing has been brought to our notice to show that the judgment is vitiated in any way whatsoever by as error or wrong appreciation of the position of law.

This decision of the Judicial Committee is binding on this Court irrespective of the fact that the Judicial Committee does no longer exist.

I now come to the theory of the right of representation according to which it is contended on behalf of the Appellant that Mt. Lachmi succeeded to the property of her uncle. Para. 25 of Rattigans Digest says that

by virtue of the right of representation whereby descendants in different degrees from a common ancestor succeed to the share which their immediate ancestor, if alive, would succeed to, and which presumably prevails amongst agriculturists, all collateral heirs succeed together and not to the exclusion of each other, whether they were associated with or separated from, the deceased.

Developing his argument and relying upon this paragraph the learned Counsel argued that on the death of Dhian Singh his property, if his brother Lehna Singh were alive would have devolved upon him and since Lehna Singh predeceased Dhian Singh, he should now he taken to be represented by his daughter, and unless there is anything repugnant to her right of succession she should be accepted in the absence of all other heirs, to be the next heir of Dhian Singh. Reliance is also placed upon, Hashmat Ali v. Nasib-u-Nisa A.I.R 1926 P.C. 99 : 6 Lah. 117 and Surat Singh v. Mt. Lachhman Kaur AIR 1948 E.P. 64 AIR 1925 99 (Privy Council) was a case of inheritance of Arab Sayyeds of village Kharkhauda in the Rohtak District. Special custom was found to exist in the family which recognised the right of an uncle''s daughter to be her father''s representative for purposes of inheritance. In the particular circumstances of the case and on account of the existence of that custom, it was held by their Lordships that it would be anomalous and arbitrary to withhold from a brother''s daughter the same right which the uncle''s daughter enjoyed. Sakhawat Ali v. Hashmat Ali A.I.R 1927 Lah. 793 : 102 I.C. 751 was also a case of the same family of Sayyeds of Kharkhaunda in which, Hashmat Ali v. Nasib-ul-Nisa AIR 1926 P.C. 99 : 6 Lah 117 was followed and it was held that the daughter of a pre-deceased brother of the last male proprietor excluded the son of a sister. The judgment of their Lordships proceeded on the basis of a special custom that had been proved by previous instances in the family. This is what their Lordships observed:

Sirfaraz Ali was dead and the Plaintiff, his daughter, alleges that by the Code of customary rules regulating succession in this family, the principle of representation is sanctioned, and she claims chat by virtue of it she, as Sirfraz Ail''s daughter, in the absence of male issue, represents him and stands in his place. Their Lordships agree that representation is a part of the rules of succession in his family. It is settled by Judicial decision that a sen 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 hut that widows and daughters in the absence of sons can claim the right in their favour... But if there be a rule that entitles uncle''s daughter to be her father''s representative for the purpose of inheritance, it would be anomalous and arbitrary to withhold from a brother''s daughter the same right and their Lordships hold that the High Court rightly decided in Mt. Nasibul Nisa''s favour.

It is clear from these lines that a custom recognising the right of an uncle''s daughter to represent her cousin had been established to prevail in the family and instances had been disclosed recognising a widow to be the representative of her husband and a daughter as a representative of a deceased uncle. It was, therefore, that their Lordships agreed with the High Court of Lahore that representation was a part of the rules of succession in that family. No such custom has been proved or alleged in the case under examination.

The other case to which our attention has been drawn is Surat Singh v. Lachman Kaur A.I.R 1948 E.P. 64 decided by a Division Bench. In that case, one Deva Singh was the last male holder whose son Budha Singh and grand son Wasawa Singh died before him. Deva Singh on his demise was succeeded by his widow Mt. Nand Kaur and on her death Mt. Lachman Kaur, widow of the pre-deceased grand son of Deva Singh succeeded to the land left by Deva Singh Mt. Lachhman Kaur made a gift of that land to her own daughter Mt. Kartar Kaur. The collaterals of Deva Singh attacked the gift on the ground of the land being ancestral and the alienation having been made by a widow who had a life interest in the property only. The Plaintiffs failed to prove the land to be ancestral and on this ground alone the learned Judges held that the Plaintiffs should be non-suited. They however, relying upon, Inayat v. Mt. Bharai 9 Lah. 180 : A.I.R 1928 Lah. 291 and AIR 1925 99 (Privy Council) used the theory of representation as an additional ground for dismissing the Plaintiff''s suit. As observed above, AIR 1925 99 (Privy Council) was a case of special family custom which recognised the right of a brother''s daughter to represent the estate of her uncle and Inayat v. Mt. Bharai 9 Lah. 180 : A.I.R 1928 Lah. 291 was a case of representation of the last male-holder by his great grand-sons. The gift was challenged by one Inayat who was a member of the same Got as the last male-holder. On the strength of evidence which favoured custom in that behalf in that tribe the daughter''s sons of a pre-deceased son of the last male owner were given preference over the Plaintiffs. The relevant part of the judgment that indicates that the decision proceeded on the foot of a special custom were these:

This indicates that the right of representation is recognised to the fullest extent amongst the members of this tribe. This answer is in accord with the general agricultural custom of the province which on the whole favours the right of the descendants of a predeceased person to succeed.

The remark in the second sentence between inverted commas must not be taken to have been made widely as there is no uniform rule of customary law either in the Punjab or in the Patiala State, which recognised the theory of representation as enunciated in para 25 of Rattigans Digest, to be applicable to females as well. Local, family or tribal custom may in certain cases permit the recognition of the principle of representation but before advantage can be taken of such a rule by the person advancing it he must prove what the essentials of that rule are and how far they govern the family or the tribe or the village or district to which he belongs. It was argued in Surat Singh v. Mt. Lachhman Kaur A.I.R.1948 E.P. 64 that females are also recognised as heirs representing the descendants of the deceased and that in no case was sex a bar to the representation. Khosla J. who wrote the judgment did not accept the full implications of that contention, but he felt inclined to lay down that so far as the descendants of the last male-holder were concerned, sex was no bar to representation up to the 3rd degree. Even for that view no authority was cited expressly nor were any reasons given but it would appear that he referred to Inayat v. Mt. Bharai 9 Lah. 180 : A.I.R 1928 Lah. 291 and AIR 1925 99 (Privy Council) , which have been discussed above. The principle of representation, in my view, applies mainly to descendants and where a female comes forward and bases a claim on that principle, she has to prove that the principle applies to her and that she is entitled to take benefit of it. In the present case, it was not alleged by the Plaintiffs in the plaint that Mt. Lachhmi had succeeded to Dhian Singh''s property as the representative of her father and the mere fact that the Crown withdrew in her favour is no proof of the fact that a custom recognising her right to represent her father and thus to succeed collaterally to her uncle had been established or recognised. I would thus hold that the theory of representation cannot help the Plaintiffs particularly when it was not urged by them at any stage of the proceedings prior to their coming up before us.

I am aware that in several rulings of the Lahore High Court which can now be said to form a string, it has been held that in the Punjab, in the absence of an agnate of a last male proprietor, a cognate, however, distantly related to him, is entitled to succeed to his property in preference to a stranger. In all those cases, e.g., Tara Singh v. Bibi Suraj Kaur A.I.R 1940 Lah. 416 : ILR (1941) Lah. 546; Surat Singh v. Mt. Lachhman Kaur A.I.R 1948 E.P. 64; and Fazl Hag v. Mt. Said Nur A.I.R 1948 Lah. 118 and Bal want v. Mt. Bhullan A.I.R 1949 E.P. 275 : 51 P.L.R 269, the contest was between the cognates on the one side and the Crown or the proprietary body in a homogenous village on the other. They related to alienation by females with admittedly restricted powers of alienation over the properties conveyed and the right of cognates, however, distantly related to the last male owner to succeed to his estate where escheat was the alternative to succession was far extensively admitted and recognised. The remotest cognate even was held to be a better penultimate heir than the ultimate heir which the Crown claimed to be. Recognition to the cognates'' right of succession was accorded irrespective of the fact whether he or she was a heritable cognate or not. It cannot, therefore, follow as a matter of course that a cognate who is preferred to the Crown or the proprietary body necessarily belongs to that class whose rights of heirship are indisputably established under general rules of Punjab Custom. Further it does not follow as a corollary that a female cognate who has succeeded in her contest with the Crown and has thus acquired property, has done so for her life only and that she is to serve as a conduit to pass on that property to her heirs without having herself any right to transfer it except for necessity. The Plaintiffs have not proved any custom whereby they get a right to control the alienation of their mother in respect of property which came to her hands from her uncle.

The learned Counsel of the Appellants contends that the Defendants cannot in view of the position taken up by Mst. Lachhmi in the Nazool proceedings and her representation that she was an heir of Dhian Singh and entitled to succeed to his property now turn round and be heard to say that she got the land on a misrepresentation as she was not in law his heir. The argument is that the contesting Defendants who have been substituted in place of the transferees from Mst. Lachhmi, are now to all intents and purposes her representatives and stand in her shoes and are bound by her admission representing herself to be the heir of Dhian Singh with a right to succeed to his land. To decide this, objection it is necessary to refer to the rule of estoppel as embodied in Section 115, Evidence Act. That section lays down that

Where one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives shall be allowed, in any suit or proceeding between himself and such person or his representatives to deny the truth of that thing.

The obvious object of this provision is that a litigant in the same or another suit or proceeding between himself and the same opponent must, not take a somersault, or play fast and loose with his adversary or his representative. Not only the party taking up a particular position is forbidden to change it but the option to do so is denied to his representative as well. While the rule of estoppel given in Section 115, Evidence Act, has no application to criminal cases; in civil law as administered in India it is a rule of evidence as distinguished from a rule of substantive law capable no doubt of affecting substantive rights of parties and helping in the administration of justice between them. The operation of the principle of estoppel as however to be restricted to its scope which extends to binding the parties or their privies. The stage at which the plea of estoppel is raised has also a material bearing on the propriety or legality of its being permitted to be taken up. In this case the grounds upon which Mst. Lachmi based and preferred her preferential claim are not before us, not even the copy of her application to oppose escheat has been produced, and the plea of estoppel, for deciding which facts require to be investigated, was not taken up or urged in any of the Courts below, not even before the Division Bench by which this appeal has been referred to this larger Bench and I see little justification in allowing the Appellants counsel to argue on it particularly when it would be necessary to adduce evidence to substantiate or refute it. Even if the learned Counsel is permitted to raise the objection as an additional ground of appeal at this stage, I do not think he can gain. The proper person to urge estoppel would be the Crown or its representatives, which the Plaintiffs decidedly are not and the present litigation is not between the Crown or its representatives and Mst. Lachmi or her representatives. The Plaintiffs who are her sons and would therefore be her representatives in interest are arrayed on one side and the successful pre-emptors who have been sub-stituted in place of the original vendees and whom the Appellants'' counsel would call her successors-in-interest on the other. It is, in my opinion, doubtful if these pre-emptors can come within the category of representatives of Mst. Lachmi as the word is employed in Section 116 and it is again doubtful if the plea of estoppel can at all arise among several representatives of the same person inter se, whether arrayed on the same side or opposite sides. The representation that Mst. Lachmi made during the escheat proceedings that she was entitled to succeed in preference to the Crown, even if caused the Crown to act on its faith, could not be regarded to have created an estoppel as the facts and legal aspects governing the rights of the contestants were well within the knowledge of the Crown who in spite of such knowledge withdrew from the contest in her favour. Assuming however there was a surrender of its rights by the Crown in Mst. Lachmi''s favour, due to some misconception about the law of succession caused by the wrong representation about her right to get the land, the plea could in a subsequent suit or proceeding between Mst. Lachmi and the Crown, be urged by the Crown alone and not by persons who were no party to the former proceedings. I would thus hold that the Plaintiffs cannot set up the plea of estoppel in furtherance of their claim for no representation was made to them by Mt. Lachmi and they had not in any manner acted on the faith of any of her representations. The Defendants can in law resist the suit on the ground that she had secured release of the land from the control of the Crown without being an heir of Dhian Singh.

The next question is whether Mt. Lachmi is a full owner of the land that has come to her possession on the demise of her uncle. The alienor and her sons are Jat agriculturists and it is not disputed that in matters of alienation they are governed by custom'' according to which property which a female acquires from her relatives other than her husband, father, grand-father, son or grand-son, she can generally dispose of as she likes. This maxim and the rules of custom defining the rights of female heirs to dispose of property to which they have succeeded as heirs is set out in paras. 64 and 66, Rattigan''s Digest of Customary Law Paragraph 64 contains the uniformally accepted and well-recognised rule of custom as prevalent in the Punjab that except as provided in para. 39 or para. 62, no female in possession, of immovable property acquired from her husband, father or grandfather son or grand-son otherwise than as a free and absolute gift can permanently alienate such property. The restrictions imposed in Para. 64 do not however as would be clear from a reading of Para. 66 apply to females not described in para. 64. Paragraph 66 says that

Property which a female acquires from her own relatives, other than those mentioned in Para. 64, or as an absolute gift, she can generally dispose of at her pleasure.

Now a brother''s daughter does not belong to the category of female heirs specified in para. 64 and according to the rule of alienation enunciated in Para. 66, there are no limitations on her power of disposition. Referring to the decision in Ahmad Din v. Mt. Fatima, 107 I.C. 489 : A.I.R 1928 Lah. 290 it is no doubt mentioned in Rattigans Digest Edn. 12p. 371 that

the rule of Customary Law is firmly established that a female inheriting landed estate, whether ancestral or self-acquired, from a male holds the property on a life tenure and it is immaterial whether the female is a widow, or a daughter or a mother.

A perusal of the judgment of the Division Bench (Shadi Lal C.J. and Bhide J.) would however show that in that case a declaratory suit had been instituted by the 6th degree collaterals of the husband of the mortgagor to impugn the mortgage effected by her and it was held that in the presence of his daughters, the Plaintiffs were not entitled to inherit his estate. It was in connection with the powers of a widow succeeding to a Life estate to alienate property that had come to her from her husband, that relying intsr aha upon the decision in Abdul Hasan v. Habib Ullah 1906 P.R 18. : 1906 P.L.R.114 that the learned Judges made the remark but obviously it extended to the powers of disposition of a widow a mother or a daughter. The lines on p. 372 of Rattigan''s Digest mentioned above that a female governed by Customary Law inherting landed estate (ancestral or self-acquired) from a male holds the property as a life-tenure and has no power to alienate such property, except for legal necessity, also relate to the powers of alienation by a widow, a daughter and a mother. Mul Singh v. Khanu 90 P.R. 1903 : 55 P.L.R. 1904, was also a case of a sale by a daughter holding land until her marriage for payment of alleged necessary debts. It was held that the daughter''s tenure of the father''s land until death or marriage h very analogous to that of a widow in her husband''s property until death or marriage. The observation that "All females inheriting land presumably hold on a tenure similar to that of the widow" is in the nature of an obiter dictum as that question was not before the Division Bench in that case. It was held, by the learned Judge, who wrote the judgment, when comparing the rights of a daughter with a widow as would be evident from the lines following those containing that observation, that "The widow could sell under the circumstances disclosed and the daughter presumably could do so." The presumption raised was with regard to the powers of a widow or a daughter. Kashi Ram v. Ruldoo 114 I.C. 700 : A.I.R.1929 Lah. 323, was also a case decided by Shadi Lal C.J. and Bhide J. relating to custom prevailing among Bagri Jats of village Kahbra Kalan, in the Hissar district and it was held that it (custom of Bagri Jats) was similar to the general rule of customary law that a female in possession of immovable property acquired from her husband, father or grand-father son or grandson-son otherwise than as a free and absolute gift cannot permanently alienate the property. The alienation in chat case was also by a widow. In none of the cases mentioned above an alienation by a female other than a mother, a daughter or a widow was brought in question and they are, therefore, I venture to say, no authority or precedents for propounding the existence of a general custom placing restrictions on the power of alienation of every female succeeding to property of any male in the family of her birth or marriage. The learned Counsel admitted his inability to cite a single case in which an alienation by a female not covered by Para. 64 of Rattigan''s Digest was set aside or in which it might have bean hold that the estate in her hand obtained from Kara-bties was to be-retarded as a life tenure only.

It has next been contended that when a mother, a widow or a daughter according to custom in circumstances mentioned in para. 64, acquires a life interest only, other cognate relations including a brother''s daughter should also be presumed to succeed to a limited interest and no more. I am unable to accept this argument as custom does not warrant the raising of such a presumption and the general custom of the Punjab on the point is contained in para. 66 of Rattigan''s Digest. The onus of proving a coustom contrary to the general rule set forth in Para. 66 is upon the person alleging it and there are no grounds to suppose that this paragraph does not correctly incorporate the rule of custom as prevailing in the Punjab generally. Rattigan''s book is a well-recognised compendium of established customary rules and it has been held by their Lordships of the Privy Council to be a book of unquestioned authority in the Punjab. See AIR 1941 21 (Privy Council) . Mr. Puran Chand has further argued that by analogy the rule of Hindu Law, that the estate taken by a Hindu widow in property inherited by her from her husband is called widow''s estate and the estate taken by every other limited heir is similar in its incidents to a widow''s estate, should be made applicable to all females succeeding to property of a male proprietor under custom. To do so in my view, would not only be anomalous and unreasonable but capricious. The principle of Hindu law enunciated by the learned Counsel obviously applies to Hindu female heirs and not to those females (Hindus) who do not fall within the category of heirs. Consequently, if the doctrine cannot place any disability regarding alienation on the powers of a brother''s daughter who is not a Bandhu and therefore not an heir according to Mitakshara rules of inheritance, how can that doctrine be extended to cover the case of a brother''s daughter governed by custom? The disability cannot be engrafted upon such females governed by custom who according to Hindu law are outside the enumeration of heir a, and if customary restriction on their powers are alleged, they have to be proved by the person advancing that plea. I would, therefore, hold that Mt. Lachmi was the full proprietor of the property in dispute and her sons cannot challenge the sale effected by her. I would, therefore, dismiss this appeal but in view of the contentious points of law involved leave the parties to bear their own costs.