BACHAN KAUR Vs. BISHNI AND ORS.

JUDGEMENT

(1.) THE contest in this second appeal is between the brother's daughter of the last male -holder and a third degree collateral's widow. The relationship of both the contestants will be apparent from the following genealogical table - -

(2.) KISHNA , father of Bachan Kaur, Defendant No. 1 and Mst. Dharmo, widow of Sunder, were owners of the land, part of which is in dispute. By will Exhibit D. 1, dated 24th of August, 1953, Kishna willed away, not only his own interest in the land, but also the interest of Mst. Dharmo, to his daughter Bachan Kaur. Kishna died first and then Dharmo died on the 19th of May, 1955. The mutation of the estate of Mst. Dharmo was sanctioned in favour of Bachan Kaur and this order was maintained in appeal. Thereupon Mst. Bishni, widow of a third degree collateral of Kishna, brought the present suit, on the 7th of June, 1956, for possession of the share of Dharmo. In this suit, the mortgagees of the land were also impleaded, but we are not concerned with them. The suit was resisted by Bachan Kaur alone. According to her, she was the preferential heir to Mst. Dharmo and in other words, to Sunder. The Courts below have, however, negatived this defence and decreed Mst. Bishni's suit. Against this decision, the present second appeal has been preferred by Bachan Kaur.

(3.) IT appears to me that the Courts below have gone wrong in decreeing the Plaintiff's suit. By no stretch of imagination, Bachan Kaur can be postponed to Mst. Bishni in the matter of succession to Sunder. Bachan Kaur is the brother's daughter of Sunder whereas Mst. Bishni is the widow of a third degree collateral. If the Courts below had kept in view that the rule of representation is of universal application, in this State and sex is no bar to representation, they would not have fallen into the error into which they fell. It seems that they were obsessed with the fact that a widow's right of collateral succession is recognised, whereas a daughter's right is not recognised. There is no basis for this distinction. In the matter of representation, all females succeed as representing the male owners, whether they be the sons or fathers or husbands. As far back as 1925 their Lordships of the Privy Council in Hashmat Ali and Anr. v. Mst. Nasib -un -Nisa, I.L.R. (1925) 6 Lah 117 observed as follows: