Lachhman and Others vs Amar Singh and Others

Shamsher Bahadur, J.—This appeal is concerned, though somewhat indirectly with the rival claims of a daughter of the last maleholder to succeed to his self-acquired property as against his collaterals, the parties being governed by customary law.

The suit-property consisting of land measuring 106 kanals and 5 marlas was sold by Smt. Surjo to the three defendant brothers, Amar Singh, Basheshar Singh and Mohar Singh, by a registered sale-deed of 13th of February 1941 for a sum of Rs. 5,000/-. The transferor had succeeded as widow to the estate of Nikka, who was the last male-holder. The plaintiffs, Lachhman, Bansi Ram and Sunder, alongwith Naraino, brought a suit for declaration to challenge this alienation in the Court of the Subordinate Judge, Kangra, and the suit was decreed against the vendee-defendants on the 11th of March, 1948. The operative portion of the declaratory decree protected the reversionary rights of the plaintiff''s in disputed land after the death of Smt. Surjo, it having been held that the sale was without consideration and legal necessity. On Smt. Surjo''s death on the 27th of January, 1958 the three plaintiffs'' brought a suit for possession. Naraino having died issueless after the declaratory decree had been granted. The possessory suit was founded on the right which according to the plaintiffs accrued to them by virtue of the declaratory decree granted in their favour on the 11th of March 1948. This suit, instituted on the 30th of May 1956, was decreed by the Subordinate Judge, Hamirpur, on the 26th of November 1953. The defendant-vendees in appeal, however, succeeded before the Senior Subordinate Judge, Kangra, who having held that the collaterals had no right of succession as against Ram Dei, the surviving daughter of Nikka, dismissed the suit on the 15th of April 1957. The plaintiffs feeling aggrieved have now come in further appeal to this Court.

Mr. V.C. Mahajan for the appellant-collaterals relies very strongly on Middleton''s Customary Law of the Kangra District, especially on answers given to questions 49, 50, 51 and 54. Question No. 49 related generally to the rights of daughters to inherit and it is said that in Jagir villages daughters are not allowed to succeed at all, It is, however, important to note that under ''Remarks'' appended to the answer to this question it is stated by the author that "The title of a daughter to the self-acquired property of a proprietor is now beyond dispute according to the latest exposition of the law on the subject". Mr. Mahajan further relies on answer to question No. 50, where it is said that "No distinction is made between moveable and immoveable, and ancestral and self-acquired property". Reliance is next placed on clause (iii) of the answer to question No. 51, where it is said that "A married daughter or a widowed daughter having no child or only a daughter cannot inherit her father''s estate", Ram Dei being a childless widow; according to the learned counsel, is not entitled to succeed at all in view of these answers given in the customary law of the Kangra District. The answer to question No. 54 gives the order of succession to the property of a male proprietor who dies without leaving any male lineal descendant and leaving no widow or daughter entitled to succeed. In such an eventuality the collaterals succeed in preference to the other persons except donees by will. It is true that some of the answers, though favourable to the case of the appellants, run counter to the general custom mentioned in clause (2) of paragraph 23 of the Rattigan''s Digest of Customary Law that, in regard to the acquired property of her father, the daughter is preferred to collaterals. It is now well settled after the decision of their Lordships of the Privy Council in AIR 1941 21 (Privy Council) , that the entries in the riwaj-i-am 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. This presumption would be considerably weakened "where the riwaj-i-am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities and only a few instances would suffice to rebut it". The principle of this ruling has been affirmed lately by their Lordships of the Supreme Court in Jai Kaur and Others Vs. Sher Singh and Others, Examined in this perspective the ruling of AIR 1935 985 (Lahore) assumes great importance. The teamed Judge held in that case that amongst the Brahmans and other tribes of Kangra District, daughters exclude collatarals in inheritance to non-ancestral property of their sonless father, and there is a full discussion in this authority on the questions and answers given in Middleton''s Customary Law, especially to the ''Remarks'' under the answer to question No. 49, to which I have already adverted. The ruling of this decision is entitled to great weight, particularly in view of the latest decision of their Lordships of the Supreme Court in Ujagar Singh Vs. Jeo, , where it was held that a custom giving preference to collaterals over sisters in the matter of inheritance to non-ancestral property should not be taken any judicial notice of by the Courts. When the sisters are preferred to collaterals, there is no reason to treat the daughters, even where they are childless widows, on a different footing.

Mr. Mahajan contends that Ram Dei has not come forward to challenge the right of the collaterals and it does not therefore, lie with the vendees to use her right as a shield in defence of the possessory suit of the plaintiffs in whose favour a declaration has already been granted. The short answer to this contention is that a person in possession of the disputed property can always say that a rightful heir, whose claims are superior to those of the plaintiffs, is actually in existence. Reference may be made to a Division Bench judgment of Mehr Chand Mahajan and Teja Singh, JJ. in Raja Rajinder Chand v. Kishen Ditta ILR (1949) 2 E.P. 193. In the penultimate paragraph of the judgment it is stated by Mehr Chand Mahajan, J., that "the rightful heir to the land in disput is Hakim and not the appellant (Raja Rajinder Chand defendant). The plaintiff (Kishan Ditta), however, is in possession of this land and cannot be ousted from it by anyone except the true owner, namely, Hakim''''. By a parity of reasoning it can acceptably be urged, as has been done by Mr. K.C. Nayar for the respondents, that Ram Dei, though not having claimed the property, is still the rightful owner as against the plaintiff-collaterals, who cannot, because of their inferior title to an existing heir oust the vendees in possession.

It remains to deal with the last contention of the learned counsel for the appellants. It has been vehemently pressed by Mr. Mahajan that the defendant-vendees not having contested the declaratory suit, are no longer free to agitate the question of the better title of Ram Dei in this possessory suit, the right of possession having accrued as a consequential relief to the plaintiffs on the death of Smt. Surjo. Now, it is well settled that an alienation made by a widow is always open to challenge by a declaratory suit at the instance of the collaterals even in the presence of presumptive heirs. As held by Chatterji and Johnstone, JJ. in Muhammad Umar v. Abdul Karim 103 P.R. 1907, in matters of alienation a widow in possession of self-acquired immoveable property of her husband is subject to the same restrictions as if the property were ancestral; and the existence of a daughter does not preclude a near reversioner such as a first cousin, from contesting an alienation effected by such a widow. If that is so, the contest on behalf of the defendent-vendees would have been pointless and ineffective. The succession opened out on the death of Smt. Surjo, and Ram Dei as the daughter of the last maleholder was a preferential heir. That was the crucial time to determine the respective rights of the parties and there can be no manner of doubt that on the death of Surjo Ram Dei had a superior claim to succeed as against the plaintiff collaterals. Mr. Mahajan has cited a Division Bench ruling of the Lahore High Court by Cornelius and Falshaw, JJ., Mt. Shiamun v. Mt. Jasodhan, for the proposition that amongst Rajputs of the Kangra District, where the daughter is married or a widow and is either childless or has no male child, she has no right to inherit to her father. In the view of the Bench such a custom is not contrary to justice, equity and good conscience and is therefore binding. The authority of Tek Chand, J., in Mt Chinto v. Thebu was sought to be distinguished. This is an authority which death with ancestral property and the contest lay between the daughter of the last maleholder and the other descendant, who was a widow. The collaterals did not come into the picture at all. In fact the authority of Tek Chand, J., in Mt. Chinto v. Thebu was distinguished by the Bench in Mt. Shiamun v. Mt. Jasodhan 47, 49 P. L. 311, on the ground that it related to contest between a daughter and the collaterals and not between a daughter and the other heirs as in the case before the Bench.

There is no force in this appeal, which fails and is dismissed. In the circumstances I would leave the parties to bear their own costs.