Mst. Harnam Kaur and Another vs Maghi Singh and Others

Dulat, J.—The dispute in this case is about the right of succession to the property of Chanan Singh, a jat of village Mari in the Ferozepore district, who died in September 1926 without leaving any issue or widow and on whose death, therefore, the property Was inherited by his widowed mother Mst. Rajji who, in turn, died a few months before the present dispute started. The property consists of an area of agricultural land and one house in the village. The claimants are on the one hand Mst Harnam Kaur and Mst. Kartar Kaur the two sisters of Chanan Singh, and on the other Maghi Singh and others, the fourth degree collaterals of Chanan Singh. The revenue authorities sanctioned mutation in favour of the collaterals, and the present suit was brought by Harnam Kaur and Kartar Kaur claiming that the property was non-ancestral and, under the rule of custom applicable to the parties, they were entitled to succeed in preference to the collaterals. Two matters were in serious dispute-

(1) whether the property was ancestral qua the defendants; and

(2) whether the sisters or the 4th degree collaterals were the better heirs.

The trial court found that the property was non-ancestral and this was in fact conceded on behalf of the defendants at the time of arguments in the trial court. Regarding the second matter, however, the court held that, according to the custom prevalent in the Ferozepore district, the 4th degree collaterals of Chanan Singh were entitled to succeed in preference to the sisters and, in the result, the suit was dismissed with costs. The present is an appeal by Harnam Kaur and Kartar Kaur.

On behalf of the appellants it is pointed out that the trial Court did not give proper weight to the instances concerning succession that had been cited on behalf of the sisters, and that the court was unduly influenced by a general statement in the riwaj-i-am of the district contained in the answer to Question 58 that ''sisters and their sons could never inherit''. Counsel has in this connection referred us to a Full Bench decision of this Court where the position of sisters as against collaterals was considered at length and it was held that the general statement contained in paragraph 24 of Rattigan''s Digest of Customary Law, that sisters hardly ever succeeded to the property of their brother, was not a correct statement, and the view was expressed that sisters were to be preferred to distant collaterals if the property be non-ancestral. This Full Bench decision in Shrimati Sukhi v. Waryam Singh (1959) 61 P.L.R. 291 was made after the decision of the trial court in the present case and was naturally not available at that time, but another decision somewhat on the same lines, Sukhwant Kaur v. Balwant Singh A.I.R. 1951 HP 242 was noticed by the trial Court but was disregarded as that case had concerned the Amritsar district.

We have been taken through the evidence produced in the case. There is an instance of a sister succeeding to her brother''s property in the presence of collaterals in the very tehsil in which the suit property is situated. The trial court disregarded this instance because the sister, who had succeeded, was not called to give evidence nor was the judgment in the case produced. I am not clear if this was sufficient ground for disregarding the instance, particulars of which were mentioned by the plaintiffs'' witnesses but, leaving that alone, there are on the record other instances bearing on the question. To appreciate their importance, it is well to remember that in Rattigan''s Digest of Customary Law a statement appears that sisters, ''as a rule, do not succeed to their brother''s property''. This statement applies generally to every district in the Punjab. Somewhat similar statements appear in many of the riwaj-i-ams of various districts of the Punjab, and at one time the inclination of the Courts was to hold, without strict proof of a special custom, that sisters could not succeed in the presence of collaterals even if the property was non-ancestral. Gradually, however, it came to be realised that this general statement excluding sisters was not accurate and it was felt that the statements in the riwaj-i-ams concerned mostly ancestral property, and further that the rights of females generally tended to be ignored at the time of the preparation of the riwaj-i-am. This matter was considered at considerable length by Kapur J. in Sukhwant Kaur v. Balwant Singh A.I.R. 1951 Simla 242 and he noticed the shift in the approach to such questions particularly after the decision of the Privy Council in Mst. Subhani v. Nawab I.L.R. (sic) 2 Lah 154 = (sic) P.L.R. 318 (P.C.) Kapur, J., with whom Weston C.J. agreed, expressly dissented from what had been said by Harries C.J. in Kirpa and others v. Bakshi Singh (1948) 50 P.L.R. 220 that the onus was on the sisters even where non-ancestral property was concerned, and he said, on the other hand, that the correct approach was to first consider the rule of personal law and then consider whether any custom to the contrary had been established, and he was of opinion that the onus on the sisters was light and the presumption arising out of the general rule mentioned in Rattigan''s Digest was readily displaceable. The particular case in Sukhwant Kaur v. Balwant Singh A.I.R. 1951 HP 242 arose out of the Amritsar district, and it was held that the sisters were better heirs than distant collaterals so far as non-ancestral property was concerned. This view was in substance affirmed by the Full Bench in Shrimati Sukhi v. Waryam Singh (1959) 61 P.L.R. 291, the case having arisen out of the Ambala district Dua J., in delivering the main judgment, observed that the statement in paragraph 24 of Rattigan''s Digest was too broadly worded and did not correctly state the general custom, and further that the statement of custom was generally concerned with ancestral property.

In the present case, judicial instances, which have been proved, all show that in several districts of the Punjab, sisters have succeeded to non ancestral property as against collaterals. Thus Jagat Singh v. Puran Singh (sic) 49 P.L.R 366 arose out of the Ambala distrct, Maula v. Mst. Ishro and others (1950) 52 P.L.R. 261, concerned the Karnal district, and Mst. Jeo v. Ujagar Singh A.I.R. 1953 PandH 177, concerned the Amritsar district. These instances were not given proper weight by the trial Court because of the general statement contained in the riwaj-i-ams of the Ferozepore district. In view of the Full Bench decision of this Court, however, it is clear that much weight cannot be attached to such a general statement which does not materially differ from similar general statements in the riwaj-i-ams of other districts. On the evidence, therefore, it is not possible to say that the appellants, being the sisters of the last male holder, are excluded from succession by the collaterals of the fourth degree, and I would on the other hand, hold that the sisters are better heirs than the fourth degree collaterals as far as non-ancestral property is concerned.

Mr. Puri for the respondents then contends that the finding of the trial Court regarding the nature of the property is not sound and he urges that on the evidence it should be held that the landed property, at any rate, is ancestral. He has taken us through the evidence, but all that he can point to is that at the time of the earliest settlement the sons of the common ancestor were shown as owning different parts of the suit land. The common ancestor was Bakhtawar Singh. As far as the suit land is concerned, it appears that in 1852-53, being the earliest Settlement, one of the khewats bearing No. 43 was owned by five of Bakhtawar Singh''s sons. Another khewat No. 40 was owned by only two of them, and yet another khewat No. 41 was owned by only one of them, while another son of Bakhtawar Singh was shown as the sole owner of yet another khewat No. 42. The trial court found that khewat No. 43 was not in dispute as no part of that land was in suit, while the remaining land was owned separately by the various sons of the common ancestor. The conclusion, therefore, was that these different sons exclusively owning different parts of the land had not inherited it from the common ancestor, for, if it had been a case of inheritance, all the surviving sons would have been shown as jointly owning the entire land. This is a perfectly reasonable inference, and I find it impossible to agree with Mr. Puri that on the evidence any conclusion can be reached that Bakhtawar Singh''s sons had inherited the suit land from him. Mr. Puri made a reference to a decision of the Supreme Court, Sewa Singh and Others Vs. Jangir Singh and Others, , but the facts of that case have no resemblance to the present, for the evidence before the Supreme Court was entirely different, as there it was shown that the entire land in a patti had been originally owned by the common ancestor and at the time of the regular Settlement his descendants were in possession according to their ancestral shares, and there was further evidence that none of the descendants had acquired any land in the patti. As I have said, the present case is wholly different and every indication here is that the common ancestor did not own the suit land, for, if he had, it would all have been inherited in equal shares by his sons and that was not the case at the time of the first Settlement. It is, in the circumstances, impossible to disturb the conclusion of the trial court that the suit property, that is, the agricultural land, is not ancestral.

Regarding the house, of course, there is no evidence whatever that it was inherited from the common ancestor and even Mr. Puri could not make any such suggestion.

No other question arises in the case. On the view, therefore, that the property is non ancestral and the sisters are under custom better heirs than the fourth degree collaterals, this appeal must be allowed and I would, while allowing it, set aside the decree of the trial Court and, instead, grant the plaintiffs-appellants a decree for possession of the suit property but, in all the circumstances, leave the parties to their own costs throughout.

P.C. Pandit, J.

I agree.