GHURPATARI Vs. SAMPATI

JUDGEMENT

(1.) THE following question has been referred to the Full Bench for opinion: -

(2.) THE trial court decresed the suit on 23rd December, 1964. Against that decision an appeal was preferred by the defendants. They got their written statement amended to the effect that Smt. Sampatti, daughter of Smt. Baldei was alive when Smt. Jaggo died; hence even if there was a custom excluding daughters from inheritance, the daughter's daughter was not excluded from inheritance and the plaintiffs had, therefore, no title in the house in dispute. The appellate court below allowed the appeal and remanded the case to the trial court. Thereafter Smt. Sampati filed a Suit No. 119 of 1965 claiming relief for possession over the property in dispute and alleging that she had succeeded to Smt. Jaggo, her mothers' mother. Both the suits were tried together by the trial court which found that Smt. Jaggo was legally wedded wife of Khilawan, that Smt. Baldei and Smt. Rajdei were daughters of Khilawan and Smt. Jaggo; that Smt. Sampati was daughter of Baldei but she was not born when Smt. Jaggo died; that under the cusom among the Ahirs of the village to which caste the parties belonged there was a custom excluding daughters from inheritance, hence Smt. Sampati and Sarju Din being daughter and son of Baldei could not inherit. On these findings Suit No. 180 of 1964 was decreed and Suit No. 119 of 1965 was dismissed. Smt. Sampati preferred an appeal No. 21 of 1966, whereas Lalai and Mangaru, defendants Nos. 1 and 2 of Suit No. 180 of 1964 preferred Civil Appeal No. 22 of 1966. The appellate court below found that, the house in suit originally belonged to Khilawan, that Smt. Jaggo was his legally wedded wife, that Rajdei and Baldei were daughters of Khilawan and Jaggo and that Smt. Sampatti was the daughter of Baldei, that the parties to the dispute are Ahirs by caste, that there was a custom amongst the Ahirs of village Nasirpur, district Faizabad where the property in suit is situated which excluded daughters from inheritance and that this custom was mentioned in Wajibularz, (Exhibit No. 2). Placing reliance on Vikram Singh v. Parbati Kunwar, 1960 All LJ 918 = (AIR 1961 All 97), the appellate court below held that custom excluded daughters and their sons from inheritance but did not exclude daughter's daughter; hence Smt. Sampati being daughter's daughter was not excluded from inheritance. It, therefore, decreed the Suit No. 119 of 1965 and dismissed the Suit No. 180 of 1964. Aggrieved by that decision Ghurpatri and others the defendants in Suit No. 119 of 1965 filed Second Appeal No. 68 of 1968. They also filed another Second Appeal No. 69 of 1968 against the decision dismissing their suit.

(3.) IT is manifest from Wajibularz Ex. 2 that there was a custom amongst the Ahirs of Pargana Bidhar district Faizabad that under no circumstance daughter whether having a son or no son would be entitled to have share in the property of the propositus by inheritance. Both the parties have accepted that there did exist such a custom amongst the Ahirs of village Nasirpur, Pergana Bidhar, district Faizabad. For the appellants it was, however, urged that the daughter's daughters were also excluded from inheritance because of this custom, whereas the contention on behalf of respondents was that the custom recorded in Ext. 2 excluded only daughters from inheritance but not daughter's daughter. The question which, therefore, falls for determination is whether the said custom which excluded daughters from inheriting the property of their father also by implication excluded the daughter's issues both males and females from inheritance.