Kanwar Khan and others vs Khatoni and others

Hemant Gupta, J.

This judgment shall dispose of Regular Second Appeal Nos. 669 of 1983 and 2087 of 1987 as both these appeals raise identical question of law and fact i.e. right of alienation of Khatoni widow of Bamboo.

One Bamboo was the last male holder who died without leaving any male issue. The plaintiffs are the collaterals of Bamboo whereas defendant No. 1 is the widow. It is the case of the plaintiffs that the parties are Meos by caste and follow the agricultural custom of Punjab and Haryana in the matters of alienation and succession. Under the custom, the power of alienation of widow is restricted both in respect of ancestral and nonancestral property. The widow can only gift, sall or mortgage and property only with the consent of his husband''s collaterals.

Issue No. 2 was whether the suit land is ancestral of plaintiffs qua Bamboo deceased ? The concurrent finding of fact recorded is that the suit land is not ancestral. Such finding has not been challenged in the present appeal. Though the plaintiffs raised the plea that defendant No. 1 has entered into Kareva with defendant No. 2 and she is living an unchaste life and, thus, forfeited her right, but the only surviving question in the present appeals is whether Khatoni, widow of Bamboo, is governed by the agricultural custom of Punjab and Haryana and whether such widow has the power to alienate non ancestral property only with the consent of her husband''s collaterals.

Learned counsel for the appellants has relied upon the judgment of this Court reported as Smt. Hussain Bai v. Kalu and others, 1969 PLR 819 to contend that the rule of customary law regarding the powers of alienation of a widow is that she is owner of property for the time being and she can, with the consent of her husband''s relatives, alienate by sale, gift or mortgage the immovable property which has devolved on her from her husband and no distinction is made between the ancestral and selfacquired property. Learned counsel for the appellants relied upon the judgment reported as Jai Kaur and others v. Sher Singh and others, AIR 1960 Supreme Court 1118 to contend that there is presumption of correctness in favour of the entries in Riwajiam. If there is any conflict in the entries of Riwajiam and in the general custom, the entry in the Riwajiam would prevail except where Riwajiam adversely affects the right of the female, the presumption would be weak. In view of the said judgments, the argument raised is that since there is no evidence to rebut the entries in Riwajiam, a general custom will give way to Riwajiam.

In fact, the entries in Riwajiam are the entries in respect of ancestral property. The finding that there is no distinction in respect of custom applicable to selfacquired or ancestral property as held in Smt. Husan Bai''s case (supra) is not tenable in law. In fact, the judgment relied upon by the Supreme Court in Jai Kaur''s case (supra) affirms the judgment of Full Bench of Lagore High Court reporting as such that questions and answers in the Riwajiam refer ordinarily to ancestral property, unless there is clear indication to the contrary. It was held to the following effect :

"We think therefore that the view taken by the Full Bench, and the many previous cases mentioned in the judgment of the Full Bench, that questions and answers in the Riwajiam refer ordinarily to ancestral property, unless there is clear indication to the contrary, is correct. Question No. 43 in the Ludhiana district, appears to be the same for all the tribes. There is not the slightest indication there about nonancestral property also. The answer given by the Grewal Jats to this question also gives no reason to think that the persons questioned were thinking in giving the answers of both ancestral and nonancestral property.

We have therefore come to the conclusion that the entries in the riwajiam on which the plaintiffsrespondents rely do not refer at all to nonancestral property and are, therefore, not even relevant evidence to establish the existence of a custom among Grewal Jats of Ludhiana district, entitling collaterals to succession to nonancestral property, in preference to daughters."

Hon''ble Supreme Court in a judgment reported as AIR 1955 SC 266 (Salig Ram v. Mst. Maya Devi) has held that the general custom of Punjab is that a daughter excluded the collaterals from succession to selfacquired property of her father. The onus thereof is on the collaterals to show that this general custom has been varied by a special custom which excludes daughter. Still further, although the entries in the Riwajiam are entitled to initial presumption in favour of their correctness, but the quantum of evidence necessary to rebut that presumption will vary with the facts and circumstances of each case. Where the Riwajiam adversely affects the rights of female, who had no opportunity whatever of appearing before the Revenue Authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it. It was held to the following effect :

"There is no doubt or dispute as to the value of the entries in the Riwaji am. It is well settled that though they are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and circumstances of each case. Where for instance, the Riwajiam lays down the custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption; but where, on the other hand, the custom as recorded in the Riwajiam is opposed to the custom generally prevalent, the presumption will be considerably weakened. Likewise, where the Riwajiam affects adversely the rights of the females who had the opportunity whatever of appearing before the Revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it (See Khan Beg v. Mt. Fateh Khatun, Jagat Singh v. Mst. Jiwan). The principles laid down in these cases were approved of by the Judicial Committee in Mst. Subhani''s case (supra).

Learned counsel appearing for the appellant contends that even if the presumption as to the correctness of the Riwajiam be weak, the respondent has not cited a single instance of a daughter having excluded the collaterals from succession to the selfacquired property of her father and has, therefore, failed to discharge the onus that was thrown on her as a result of the production by the appellant of the Riwajiam of 1913 and consequently, the appellant must succeed. This argument overlooks the fact that in order to enable the appellant to discharge the general custom recorded in Rattigan''s work and to shift the onus to the respondent the appellant must produce a Riwajiam which is a reliable and trustworthy document."

The said view was reiterated in Jai Kaur''s case (supra) and Kehar Singh and others v. Chanan Singh and others, AIR 1968 Supreme Court 806.

Keeping in view the principles of law enunciated by judgments referred to above, it is apparent that entries in Riwajiam are in respect of ancestral property only. Therefore, the presumption sought to be raised by the appellants in terms of Riwajiam contained in Appendix VII of Rattigan''s Digest of Customary Law, Fifteen Edication (1995 reprint) in respect of custom of Gurgaon district would be only in respect of ancestral property. Such Riwajiam adversely affects the rights of the famel, who had no opportunity whatever appearing before the Revenue Authorities, the presumption even in respect of ancestral land is weak. But in the absence of any instance of respective right of female in respect of nonancestral land, the presumption of general custom cannot be deemed to have been rebutted.

Still further, this Court has held in the judgment reported as Mohammad Yunis v. Malooki widow of Nabi Khan and others, 2004(1) RCR(Civil) 476 (P&H) : 2004(1) PLR 330 that restricting rights of a woman existing in pre Constitution era cannot be recognised by the Court unless it meet the approval of equality clause of the Constituion. Reliance was placed upon John Vallamattom v. Union of India, 2003(3) RCR(Civil) 691 (SC) : 2003(6) Supreme Court Cases 611 and C. Masilamani Mudaliar v. The Idol of Sri Swaminathaswami Thirukoli, 1996(2) RRR 161 (SC) : AIR 1996 SC 1697. In view of the said judgment, the restrictive right to woman to deal with the property inherited from her husband negates the right of equality before law. The plaintiffs are fifth degree collaterals depriving the widow the right to enjoy the fruits of the property inherited by her husband is concept of remote past. Such principle does not satisfy the touchstone of equality and fair play under the Constitution of India.

Therefore, following the said view, I am of the opinion that the plaintiffs will have no right to challenge the alienation effected by Khatoni widow.

Consequently, I do not find that any substantial question of law arises for determination by this Court in second appeal.

Dismissed.