PARTAP KAUR Vs. KISHNO

JUDGEMENT

(1.) THIS second appeal if directed against the decision of the Additional District judge, Ludhiana, reversing, on appeal, the decision of the trial Court decreeing the plaintiff's suit.

(2.) IN order to appreciate the controversy in the present second appeal, it is necessary to set out a short genealogical tree of the parties: sarmukh = Mst. Premo (Died on 12singh 8-1931)Puran = Mst. Bhan Kaur, mother of Mehnga (Died on 28-91953.)Mehnga = Mst. Kishno Mst. Pratap Kaur (Daughter ). Mehnga was the last male-holder of the land in dispute. He died in the year 1918. His land was mutated in the name of his widow, Mst. Kishno on 25th of December, 1918 (Mutation Ex. P-4 ). It is clear that at the time of mutation, both Mst. Premo and Mst. Bhan Kaur laid claim to Mehnga Singh's estate; whereas Mst. Kishno stated that she was the sole heir. However, the mutation was ultimately sanctioned in favour of Mst. Kishno to the exclusion of mst. Premo and Mst. Bhan Kaur. It may also be mentioned that Mst. Kishno had stated, during the course of mutation proceedings, that these widows Mst. Bhan kaur and Mst. Premo were living with her and were entitled to maintenance. An appeal by both these widows against the mutation order failed. It appears mat both Mst. Premo and Mst. Bhan Kaur were not satisfied with the mutation order. Exhibit P-4, and either they levied a threat of litigation or there was some sort of arrangement with Mst. Kishno, the result being that mutation Exhibit P-2, was sanctioned on 2nd of March, 1919. By this mutation, the entir" land of Mehnga was shown to belong to Mst. Premo, Mst. Bhan Kaur and Mst. Kishno in equal shares on account of succession. Mst. Premo was the first to die and on her death, one-third land of Mehnga was mutated in equal shares in favour of Mst. Bhan Kaur and Mst. Kishno. The next to follow suit was Mst. Bhan Kaur. On her death, the mutation has been sanctioned in the name of Mst. Kishno; and this has led to the present suit by Mst. Partap Kaur, daughter of Mst. Bhan Kaur. She claims the property held by Mst. Bhan Kaur or, in other words, half of the estate of Mehnga, on the basis of a will executed by Mst. Bhan Kaur in her favour. The will was executed on 29th August, 1953 and Mst. Bhan Kaur died on 28th September, 1953. Various pleas taken by the parties are apparent from the following issues that were struck in the case:-

(3.) THE first contention of Mr. Daljit Singh, learned counsel for the appellant is that mst. Bhan Kaur and Mst. Premo had no right to succeed to the estate of Mehnga in the presence of his widow and, therefore, when they got the property, to which they were not entitled, they have become absolute owners of the same by prescription and, therefore, the property would go to their respective heirs. This contention is really devoid or force. There is no justification for the assumption that Mst. Bhan Kaur was not entitled to succeed to Mehnga. Though there seems to be considerable force in the suggestion of the learned counsel that Mst. Premo was not entitled to succeed, but the fact remains that Mst. Premo asserted that she was an heir to Mehnga and seems to have been allowed to take possession of one-third of his estate on that basis. Therefore, it cannot be said that she pres-cribed an absolute estate to the extent of one-third share left by Mehnga. So far as Mst. Bhan Kaur is concerned, under the Customary Law, she was entitled to succeed equally with Mst. Kishno. In this connection, reference may be made to the Customary Law by Dunnett, Vol. V, p. 70--Question and Answer 39. It is stated therein that the custom of tribes undoubtedly is that the widowed mother, wife and daughter-in-law succeed jointly and in equal shares. This statement of custom does not stand by itself alone but is supported by as many as 12 instances All these instances are of jagraon tehsil to which the parties belong ana are collated at p. 71. They start from No. 23 and end on p. 72 at No. 34. As a matter of fact, there are instances of other tehsils of this district where this custom has been repeatedly recognised and it appears to me that the universal custom in Ludhiana district is that, among the Jats. the widow and mother of the last male-holder succeed equally, in any event, in the present case, all the three succeed together, as is clear from Exhibit P-2. Therefore, on the death of Mst. Premo, by the rule of survivorship, the other two got her estate in equal shares. It similarly Follows that on the death of Mst. Bhan Kaur, her estate would go to Mst. Kishno by the rule of survivor ship. In this view of the matter, Mst Bhan Kaur will not come into the picture at all and would have no right to make a will of that estate.