SAWAI SINGH Vs. UDE SINGH

JUDGEMENT

(1.) The sole point in this plaintiffs' second appeal is whether in the Ambala District collaterals of the seventh degree are preferential heirs than sisters' sons in regard to non-ancestral property.

(2.) According to the Riwaj-i-am of Ambala District the common custom is that a daughter is excluded by the collaterals descending from a common great great- grandfather (shakarbaba) and sisters will succeed in the absence of a daughter or daughter's son, the rule with regard to sons of sister being the same. Mr. Tek Chand has submitted that the Riwai-i-am of Ambala District must be taken to refer, as indeed the other Riwaj-i-ams, to ancestral property and therefore whatever be the right of the sisters or their sons in regard to ancestral property, non-ancestral property must be governed according to the general custom of the Punjab which is contained in paragraph 24 of Rattigan's Digest, and he relies on a judgment of the Lahore High Court in 'Kirpa v. Bakhshish Singh', 50 P L R 220, where collaterals of the fourth degree were preferred to sister's son and the question was decided solely on the basis of paragraph 24 of Rattigan's Digest. This judgment has been followed in two judgments of this Court in 'Santi v. Surjit Singh', L P A 3 of 1948, and 'Banti v. Harnam Singh', L P A No. 15 of 1949. In all these cases the rights were decided in accordance with paragraph 24 of Rattigan's Digest which was held to lay down the general custom of the Punjab and unless it was rebutted it governed the parties.

(3.) In reply Mr. Shamair Chand relied on several judgments -- (1) 'Gurdit Singh v. Baru', AIR (20) 1933 Lah 1005. That was a case from Rupar Tahsil and it was held that sisters were entitled to inherit in the absence of fifth degree collaterals. Although the question has not been discussed at great length, it is a good instance showing the preference of sisters over collaterals of the fifth degree; (ii) 'Munshi v. Niranjan Singh', 39 Pun LR 579. It is a Division Bench case where again It was held that in the absence of fifth degree collaterals a sister or sisters' sons would succeed In preference to collaterals of a more remote degree or of a daughter or daughter's sons. Property in this case was non-ancestral. Reference was made to questions 28 and 47. This is another instance where sisters were held to be entitled to non-ancestral property; (III) 'Jagat Singh v. Puran Singh', 49 Pun L R 366. In this case collaterals of the third degree were the disputants and the case was from the Rupar Tahsil of Ambala District. Mahajan, J., doubted the correctness of paragraph 24 as given in Rattigan's Digest: