Giani Hira Singh vs Mt. Indi and others

The brief facts of the cast out of which this appeal has arisen are as follows: Mt. Attri, widow of Sunder Singh, a Jat of village Biharipur made a will of her land and house to her daughters Mt. Indi and Haro. After Mt. Attri''s death which took place on 14th Poh 1994, Samvat the property bequeathed by her to her daughters was taken possession by them and the land was duly mutated in their names. When the plaintiffs, who are Sunder Singh''s collaterals in the 8th degree, preferred an appeal against the mutation order Mt. Haro surrendered her share in the house and land to them. The remaining share of the house and the land remained with Mt. Indi. On 25th Basakh, 1998 the plaintiffs brought a suit against Mt. Indi for possession of her share of the house and the land. They contended that the property was ancestral qua them and that according to Customary Law by which they were governed their right to succeed to the property of Sunder Singh was superior to that of his daughter. The defendant in addition to denying the correctness of the plaintiffs'' allegation urged that the suit was barred by time and that the plaintiffs had no locus standi to challenge the will. The trial Court found the question of limitation in plaintiffs'' favour but held against them on the remaining points and dismissed their suit. After having unsuccessfully appealed to the District Judge the plaintiffs preferred a second appeal to this Court but failed even here. The present appeal is directed against the order of the learned Judge of this Court whereby he dismissed the plaintiffs'' appeal against the appellate decree of the District Judge.

Two points have been urged before us. One that the Courts below were wrong in holding that the property was non-ancestral qua the plaintiffs and second that even if the property be assumed to be non-ancestral according to the custom as proved by the Wajib-ul-Arz of the village the plaintiffs had better right to succeed to it than the defendant.

The suit property, as already mentioned, consists of a house and agricultural land. So far as the house is concerned it was conceded by the appellants'' Counsel that there was no proof that it was owned by the common ancestor. No direct evidence was forthcoming even with regard to the land but reliance was placed on behalf of the appellants on the copies of revenue records which according to their Counsel raised a presumption that it originally belonged to the common ancestor and had descended to Sunder Singh by succession. According to the copy of the pedigree-table, the correctness of which is accepted by both sides, Bihari was the common ancestor. He had five sons namely, Mathra, sukha, Sutnru, Ramu and Mukhia. Sunder Singh was a descendant of Sukhis while the plaintiffs are the descendants of Bihari''s other sons. It is mentioned in the Kafiat Dehi that the village was founded by Bihari from whom it derived its name and that it consisted of Patties that were named after Bihari''s sons. It was also mentioned in the Kanat Dehi that was prepared at the Settlement of 1922 Samvat that no other people except the descendants of Bihari lived in the village then. The appellants'' learned Counsel argued that in the face of these facts it must be presumed that the suit land was ancestral. Now it is well recognised that in order that a property be held to be ancestral qua the plaintiff, who claims to be the collateral of the last male holder, he must prove (1) that the property was owned by the common ancestor and (2) that the last male holder inherited it from the common ancestor. As was held by Their Lordships of the Privy Council in the well-known case ''ATTAR SINGH v. THAKAR SINGH'', 42 Pun Re 1910 (PC) the onus lies upon the persons alleging the property to be ancestral and if he fails to discharge it by adducing positive proof he cannot derive any assistance from conjectures, howsoever reasonable. Both the conditions mentioned above are positive and unless they are both satisfied the property must be held to be non-ancestral. As regards the first it was held in ''Hira v. Tek Chand'', 107 Ind Cas 487 (Lah) that It must be established that the property was owned by the common ancestor and that mere proof of possession by the common ancestor in any capacity is not enough. So far as the second condition is concerned there is now consensus of opinion that if the property came to the last holder otherwise then by descent it ceased to be ancestral, see in this connection ''SRI RAM v. RAMJI DAS'', 59 Pun Re 1909, which has since been followed in a large number of cases: ''Gurdit Singh v. Mt. Ishar kaur'', 3 Lah 257; ''Mtjnshi Singh v. Uttam Singh'', 64 Ind Cas 428 (Lah) & ''Saip-Ul-Rehman v. Muhammad Ali Khan", 9 Lah 95, etc. Viewed in the light of this, the mere fact that the village was proved to have been founded by the common ancestor and it was stated by his descendants in 1922 that the population of the village did not contain any outsider are not sufficient by themselves to prove that every inch of the property held by them was ancestral. In my opinion, it cannot even be presumed that the property was owned by the common ancestor, then there can be no warrant for thinking that the land had all along been descending upon the different persons who held it generation after generation, by succession and in no other way. It should not be forgotten in this connection that Bihari, the alleged founder of the village, was ancestor of the persons who existed then in the 9th degree and evidently hundred of years must have passed when he founded the village. There is no knowing through what changes, political and social the village passed during all this time. Accordingly there is absolutely no justification for holding that the second of the two conditions mentioned above was satisfied and if that condition is wanting the property cannot be held to be ancestral. Apart from this indications are that the land held by the different descendants of Bihari in 1922 could not be ancestral. As has been pointed out by the learned Single Judge in his judgment the holdings of various branches were different and they did not correspond to ancestral shares. Had the land been ancestral and had it come to every body by succession their holdings would have been equal or at least almost equal but in case of some of them the disparity was quite substantial. For example while the area owned respectively by the descendants of Ramu, Suthra, Sukhia and Mukhia ranged between 140-5-14 and 143-1-7 that owned by the descendants of Mathra was 287-6-7. No explanation was forthcoming as the how Mathra''s descendants came to own almost double the amount of land that belonged to the descendants of other branches. These figures are taken from the copy of the Goshwara of 1922 but the figures given in the Settlement of 1934 reveal the same state of affairs with this difference that the respective areas shown to be the property of the members of various branches were more than those shown in the settlement of 1922 with the exception of the descendants of Sukhia whose land had decreased from 140-5-14 in 1922 to 73-5-1. The only other fact of which I wish to make mention is that the land bequeathed by Mt, Attri to her daughters is much more than the land which the entire branch of Sukhia, to which belonged Sunder Singh husband of Mt. Attri, owned either in 1922 or in 1934. According to the copy of the Goshwara of 1922 the land was 140-5-14 and according to the Fard Intkhab of the same year it was 175-15. There is nothing to show whether the figures denoted Kanals, Marias and Karams or Bighas, Biswas and Biswansies. If we assume for the sake of argument that they denoted the latter the total land owned by the whole branch was about 561 kanals. As I have already pointed out above in 1934 the land decreased to 73-5-1 and taking this also as Bighas, biswa & Biswansies its area in Kanals would be about 293. This means that the suit land includes considerable land over and above the land that was owned by the whole branch of Sukhia in 1922 or in 1934. Where that land had come from we do not know but there is no evidence whatsoever that it was ancestral qua the plaintiffs. I have pointed out this fact with a view to showing that even if the land that stood in name of Sukhia''s descendants in 1922 is assumed to be ancestral since it is now mixed up with other land the entire land must be held to be non-ancestral.

This brings me to the question of custom. The general custom of the Punjab is given in paragraph 23 of the Rattigan''s Digest of the Customary Law. According to that paragraph, the daughter succeeds to the self-acquired property of her father in preference to collaterals and as regards the ancestral property the near male collaterals of her father supersede her. In some cases decided by the Lahore High Court the theory that there was a general custom regarding succession and alienation that was followed by the agricultural classes of the Punjab was not accepted and it was observed that custom varied not only from tribe to tribe but from District to District and even from village to village. Some of the learned Judges even went to the length of holding that there was no such thing as the general custom and that in every case in which particular custom was alleged it ought to be proved by positive evidence. In view of the observations made by their Lordships of the Privy Council in the well known case of AIR 1941 21 (Privy Council) : this view can no longer hold the field and it has to be accepted that so far as the rule of succession is concerned Paragraph 23 of the Rattigan''s Digest lays down what is the general custom of the Punjab. Accordingly the onus lay upon the plaintiffs who are collaterals of the 8th degree of the last male-holder to prove that they would succeed in preference to the daughters of Mt. Attri and sunder Singh even if the property was not proved to be ancestral. Reliance was placed on their behalf on paragraph 9 of the Wajib-ul-Arz of the village prepared in the settlement of 1922. The relevant words of the paragraph are; if an owner in the village dies without any male issue his widow will be entitled to remain in possession of his property provided she does not remarry... In case he leaves no widow the ownership will go to real brother or failing him to a near collateral If he leaves behind descendants from two wives the property will be divided according to the rule of Pagwand as is the ancient custom. Unmarried daughter and the children of the daughter cannot obtain any share but an unmarried daughter shall be entitled to inherit till her marriage. The paragraph in question of the Wajib-ul-Arz which is in Urdu is not happily worded and it is permissible to say that it is altogether silent about the rights of daughters as compared with those of collaterals when there are no sons and when it says that the daughter or the daughter''s children shall not get any share. It only deals with those cases where a man dies leaving behind children, sons as well as daughters, by two wives. In view, however, of the last sentence of the quotation given above and the use of the word ''Waris'' therein I am inclined to think that the words of the Wajib-ul-Arz mean that if a person dies leaving surviving him no sons but daughters and collaterals the daughters have no right to succeed. This, however, cannot help the collaterals in the present case, because according to the well known rule followed in the Punjab a manual of customary law or a Wajib-ul-Arz in the absence of anything to the contrary applies only to the ancestral land. The following observation appearing in the judgment of a Bench Case decided by Shadi Lal C.J. and Wilberforce J. In ''Budhi Parkash v. Chander Bhan'', 123 Pun Re 1918 may be quoted with advantage.

It has been held on frequent occasions by this Court that in (the absence of a clear statement to the contrary an entry in a Riwaj-i-am or Wajib-ul-Arz refers merely to ancestral property. At the time when these records of custom were prepared, acquisition of property by purchase or otherwise being of rare occurrence no enquiry whatever took place regarding succession thereto.

This view has been followed in a large number of subsequent cases by the Chief Court Punjab as well as by the High Court Lahore. In AIR 1934 351 (Lahore) , Addison J. observed as follows:

As held in AIR 1932 353 (Lahore) entries in the Customary Law must be taken as referring only to ancestral property when no mention of self acquired property is made. As regards the self-acquired property, the same considerations do not apply as in the case of ancestral property. Custom on the whole is concerned with the conservation of ancestral holdings though of course in some cases there is a customary rule placing self-acquired property in a similar category to ancestral property but mainly customary law looks to ancestral property. That is the reason why it has always been held that entries in Riwaj-i-ams and Customary Laws of districts refer only to ancestral property unless there is specific mention of self-acquired property, and the reason is obvious.

The only other case to which it is necessary to refer is the Pull Bench decision of the Lahore High Court ''Dharu Indar Pal Singh v. Badri dass Sohanlal, ILR (1944) 25 Lah 287. No case from the Union has been cited before us but I cannot understand why our Riwaj-i-ams and Wajib-ul-Arzs should not be interpreted in the same manner as those of the Punjab. The result is that the appeal fails and is dismissed with costs.

Gurnam Singh, J.

I agree.