AMAR CHAND Vs. SHANKARI

JUDGEMENT

(1.) This is a first appeal by the plaintiff Amarchand in a suit for declaration and possession, and was first heard by this Court some time in 1952. By a judgment dated 14th July, 1952, the case was remanded to the trial Court for fresh trial and report on the most important issue in the case which related to custom and which issue was recast by this Court in its proper form The earlier judgment of this Court shall be read as part of this judgment.

(2.) The facts of the case have been narrated fully in the earlier judgment and we need not state them at length again. It. is enough to say that the parties are Allhuwalias of the Punjab, who originally lived in village Bherunwal in the Hoshiarpur district, and thereafter migrated to the former State of Bikaner. The dispute relates to ten 'Murabtaas Noa. 29 to 38 measuring 248 Bighas in Chak 12-Z in the former State of Bikaner, which were purchased by the deceased Indersingh. Indersingh died some time in 1933-34 leaving him surviving three sons Amarchand who is the plaintiff, and Keharchand and Krishan Deo who are pro forma defendant-respondents, and Mt. Shankari widow of the predeceased son Meharchand who is the contesting defendant-respondent. Meharchand died in 1908. The plaintiff's case, as disclosed in the amended plaint, was that although he and his other two brothers were the lawful heirs to the estate of the deceased Indersingh, Mt. Shankari had somehow obtained mutation in her name with respect" to l/4th share of the land mentioned above and got into possession thereof. It was contended that Mt. Shankari had no right of succession to Indersingh's estate according to custom or law, and the plaintiff, therefore, prayed for a declaration as to his own title and that of his brothers (pro forma defendants) and for possession in respect of the share mutated in Mt. Shankari's name. The main defence put forward by Mt. Shankari in her amended written statement was that according to the custom applicable to Allhuwalias in the Punjab, she as widow of a pre-deceased son was the lawful heir of the deceased Indersingh and was entitled to the same share to which her husband would have been entitled if he had survived his father Indersingh. She also raised the plea that she had provided a considerable portion of the funds, that is, Rs. 6500/- to her father-in-law for the purchase of the ten Murabbas of land, and in lieu thereof the latter had agreed to give her half share thereof; but out of regard for her husband's brothers, she had agreed to accept one-fourth share only of which she was in possession. It was further prayed that in case the Court came to the conclusion that she was not entitled to the share claimed and held by her, she may be allowed to remain in possession of the suit land as maintenance and her possession in respect of it may not be disturbed.

(3.) It is obvious from the contentions of the parties set out above that one of the main issues for determination in this case was whether the widow of a predeceased son among the Allhuwalias in the Punjab had a right of succession to her father-in-law's estate equal to her own husband's share, and the burden of this issue must have been laid on the defendant who really set up the custom; but the trial Court placed the burden of this issue upon the plaintiff and did so wrongly. This Court, therefore, held by its judgment dated 14-7-1952, for reasons mentioned at length therein and which it is unnecessary to repeat that the issue as respects custom had been incorrectly framed so as to cast its burden upon the plaintiff and that that had resulted in a defective trial, and consequently, that issue was recast and remitted to the trial Court for fresh trial. The issue framed by this Court is in the following terms: