MOHINDAR SINGH Vs. KEHR SINGH

JUDGEMENT

(1.) This is Letters Patent appeal from a decision of the learned Single Judge of the Lahore High Court. The facts briefly stated are as follows: One Partapa, a Garewal Jat of village Boothgarh, in the Samrala tahsil of district Ludhiana, died leaving surviving him a widow, Mt. Har Kaur, and a daughter, Mt. Punna, and some landed property, Mt. Har Kaur made a gift of the land in favour of Mt. Punna and Mohindar Singh son of Surja, who was a collateral of her husband. After Mt. Har Kaur had died, Kehr Singh, another collateral of Partapa, brought a suit for possession of a share of the land, which formed the subject-matter of the gift, on the allegations that the land was ancestral, that Mt. Har Kaur had no power to make the gift, and that on Mt. Har Kaur's death the property devolved upon him and other collaterals of Partapa. Mt. Punna and Mohindar Singh resisted the suit. They denied the ancestral nature of the property and contended inter alia that the property being non-ancestral, according to custom, daughter's right to succeed to it being superior to that of the collaterals the plaintiff had no locus standi to challenge the gift or to maintain a suit for possession. The trial Subordinate Judge held that the land was non-ancestral and according to custom Partapa's collaterals could not succeed to it in the presence of the daughter. It further held that though Mt. Har Kaur had no right to make a gift under custom the plaintiff could not sue for dispossession of the daughter. In the result, it dismissed the plaintiff's suit with costs. Against this decree, the plaintiff preferred an appeal to the District Judge but failed. In second appeal, a learned Single Judge of the Lahore High Court set aside the judgments and decrees of both the Courts below and decreed the plaintiff's claim to the extent of one-fourth share in the gifted land. The present appeal is by the defendants.

(2.) To start with it was urged by the appellants counsel that since the property has not been found to be ancestral qua the plaintiff according to the general agriculture custom of the province, Mt. Punna, being the daughter of the last male holder, was preferential heir in comparison with his collaterals. He relied in this connection on paragraph 23 of Rattigan's Digest of Customary Law and the latest decision of their Lordships of the Privy Council in Subhani V/s. Nawale reported as . Paragraph 23 relates to the comparative rights of daughters and collaterals and it is stated therein (1) that a daughter only succeeds to the ancestral landed property of her father, if an agriculturist, in default of the heirs mentioned in paragraph 22 and (2) in regard to the acquired property of her father the daughter is preferred to collaterals. It was held in Subhani's case that the above paragraph correctly stated the custom and that the general custom of the province is that a daughter excluded collaterals in succession to self-acquired property, of her father and the initial onus therefore is on the collaterals to show that the general custom in favour of the daughter's succession to self-acquired property of her father has been varied by a special custom excluding the daughter. Sardar Jhanda Singh, learned Counsel for the plaintiff-respondent, did not deny that the general custom in the province was as is stated in paragraph 23 of Rattigan's Digest of Customary Law and affirmed in Subhani's case but urged that there existed a special custom among the Garewals of Ludhiana district which excluded a daughter from succession even to the self-acquired property of her father. It appears that this contention was put forward on behalf of the plaintiff both in the trial and in the Court of the District Judge but they spurned it on the strength of a Full Bench decision of the Lahore High Court in Mt. Harmate and Anr. V/s. Hoshiaru and Ors. A.I.R. 1944 Lah. 21 F.B. The parties to that case were Muslim Rajputs of tahsil Jagraon and the question that came up for consideration was whether question 43 of the Manual of Customary Law of the Ludhiana district related to ancestral as well as non-ancestral property or merely to the ancestral property. Previously there was a divergence of judicial opinion on the point. One Bench of the Court had held that it applied to ancestral property alone. Another Bench had taken a different view and had held that it applied to self-acquired property as well. The Full Bench held that the Manuals of Customary Law of the Punjab should be taken to relate to ancestral property only unless there is a clear indication in them to show that they do contemplate self-acquired property as well. The learned Single Judge accepted the correctness of the Full Bench decision but observed that the only result of it was that answer to question 43, which was to the effect that except in the case of a few tribes, which did not include Garewals, married daughters had no right of succession whatever, could not be availed of by the collaterals to raise a presumption in their favour that daughters were excluded from inheritance by collaterals as regards non-ancestral property and that each case involving non-ancestral property would have to be decided on the basis of evidence led in that particular case. As regards the first part of the observation, the appellants counsel has not been able to convince me that it is in any way erroneous and as regards the second part all that I wish to say is that though decision in each case must depend upon the evidence, in view of what has been held in Subhani's case we must start with the presumption that so far as non- ancestral property is concerned a daughter succeeds in preference to the collaterals of her father and in order that the latter may exclude her they must establish a special custom. The only question that falls for determination in the present case is whether or not the plaintiff was able to prove the special custom and on the decision of this question Mt. Harmate's case A.I.R 1944 Lah. 21 (F.B.) has no bearing.

(3.) The evidence relied upon by the plaintiff in support of the special custom alleged by him consisted (i) of the statements of witnesses and (ii) judicial instances. The oral evidence was not relied upon by the learned Single Judge and Sardar Jhanda Singh did not make any effort to show that the learned Judge was wrong in this. So we are left only with judicial instances. The first case is, Ishar Kuar V/s. Raja Singh 29 P R. 1911, decided by Johnstone and Shah Din, JJ. The full report of the judgment is given in 9 I.C. 608 (Lah.). That was also a case of Garewal Jats of Ludhiana district and one of the questions involved was whether a daughter could succeed to her father's self-acquired property in the presence of collaterals. The evidence on this point consisted of statements made by few witnesses in Court and the report of a local commissioner who examined as many as 123 witnesses in 14 or 15 different villages. It was held that the collaterals in the third degree of a sonless male proprietor excluded daughters even as regards non-ancestral property. The second case is Partab Singh V/s. Panjabu 26 P.R. 1912 in which it was held that among Garewal Jats of the Ludhiana district there was a special custom, contrary to general custom, whereby, daughters were excluded from succession to self-acquired property by collaterals. The parties to the case belonged to a village in Jagraon tahsil. The learned Judges referred to a number of other decided cases in addition to Ishar Kuar V/s. Raja Singh 29 P.R. 1911 and made the following obser-Tations with regard to the last case and paragraph 23 of Rattigan's Digest: The local enquiry and the investigation in Court were all directed to the ascertainment of the rights of daughters of male holders as such. It is clear, then, that the case cannot be effectually distinguished from the present case. And we do not think Mr. Shaft has succeeded in showing us that the ruling in that case was unsound. He refers us to Section 23 of Rattigan's Digest, but that only states the general custom and here there is, for reasons fully given in the other case, which we need not repeat here, a peculiar special custom followed by the section of Jats.