KANWAR KHAN Vs. KHATONI

JUDGEMENT

(1.) 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.

(2.) 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 non-ancestral property. The widow can only gift, sall or mortgage and property only with the consent of his husband's collaterals.

(3.) 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 self-acquired 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 Riwaj-i-am. If there is any conflict in the entries of Riwaj-i-am and in the general custom, the entry in the Riwaj-i-am would prevail except where Riwaj-i-am 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 Riwaj-i-am, a general custom will give way to Riwaj-i-am.