Full Judgment Text
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CASE NO.:
Appeal (civil) 12395 of 1996
PETITIONER:
Smt. Ass Kaur (Deceased) by L.Rs
RESPONDENT:
Kartar Singh (Dead) by L.Rs. & Ors
DATE OF JUDGMENT: 18/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
1. A question of some importance in relation to applicability of
custom in the matter of inheritance and succession under the Hindu
Women’s Right to Property Act, 1937 falls for our consideration in this
appeal which arises out of a judgment and order dated 21.01.1991 passed by
the High Court of Punjab & Haryana in Civil Regular Second Appeal No.
2166 of 1978.
2. The relationship between the parties is not in dispute, which
would appear from the following genealogical table :
Sohan Singh
---------------------------------------------------------------------------
| |
|
Jiwan Singh Hira Singh-Wife Raj Kaur Relu Singh-Wife Sobhi \026 Raj K
aur
[died before | |
[Wife]
09.12.84] Sham Singh |
| | ------- --------------------
----
| Nand Singh | |
|
| [Deft. No. 4 ] Inder Singh Mehar Singh Ass Kaur
| [died in 1926] [died in 1937]
[died]
| T
hrough L.Rs.
-----------------------------
| | |
Kartar Gulzar Mukhitiar
Singh Singh Singh
[Deft.No.1] [Deft. No. 2] [Deft. No.3]
[died]
Represented through L.Rs.
3. We are concerned with the branch of Relu Singh. He had two
wives, namely, Sobhi and Raj Kaur. Raj Kaur was originally married to the
brother to his brother Hira Singh, who had died in the year 2001. Relu
Singh married to Raj Kaur on the death of brother under the customary law
of the land. Relu Singh died in the year 1907. He was succeeded by his two
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wives and two sons Inder Singh and Mehar Singh alias Dalip Singh and
daughter, the appellant. Inder Singh died in the yar1926 and Mehar Singh
died in the year 1937. Sobhi, the first wife of Relu Singh and the mother of
Mehar Singh and Inder Singh, died in the year 1950. Raj Kaur died about
five years prior to the institution of the suit i.e. in the year 1970. Ass Kaur,
daughter of Sobhi and sister of Mehar Singh and Inder Singh claimed =
share in the property. The defendants-respondents contended that after the
death of her husband Hira Singh, Raj Kaur contracted Karewa marriage with
Relu Singh in accordance with custom. She had a son through Hira Singh.
It was urged that under the Punjab customary laws governing inheritance
and succession of Sidhu Jats after the death of Relu Singh, his two sons and
two widows succeeded to his estate. After the death of Inder Singh and
Mehar Singh, their properties were mutated in the name of their mother
Sobhi and their step mother Raj Kaur. Again purported to be in terms of the
rule of survivorship in accordance with the local and tribal customs her
name was mutated after the death of Sobhi. She remained in exclusive
possession of the said property and upon coming into force of the Hindu
Succession Act, 1956, she became the absolute owner thereof. It was also
contended that Sobhi was a limited owner and on her death in the year 1950,
Raj Kaur succeeded to her by rule of survivorship. It was furthermore
pleaded that under the customary law, the appellant herein had no right of
succession in preference to the widow.
4. The courts below while holding that the appellant herein was
daughter of Sobhi, opined that the parties were governed by the customary
laws in the matter of inheritance and succession in terms whereof Raj Kaur
succeeded to the estate of Relu Singh after the death of Sobhi and that her
estate was enlarged into full ownership after coming into force of the Hindu
Succession Act. The High Court held :
"\005Smt. Sobhi died on December 3, 1953 and mutation
regarding her share was made in favour of Smt. Raj Kaur
being the co-widow of her late husband Relu Singh on
July 31, 1955 i.e before coming into force of Hindu
Succession Act. In para 13 of the Rettigan on Customary
Law, on the death of a co-widow the other surviving
widow takes the property survivorship. Revenue
Officers rightly sanctioned the mutation of the estate of
Smt. Sobhi in favour of Smt. Raj Kaur, her co-widow\005"
5. Keeping in view the importance of the question involved, as
also the fact that nobody appeared on behalf of the respondents, we
requested Mr. R. Sundravardan, the learned Senior Counsel, to assist us in
the matter.
6. Contentions of Mr. Sundravardan and Mrs. Palli are as under :
i) Relu Singh having only 1/3rd share in the property; the other co-
sharers thereof being Inder Singh and Mehar Singh, on his death his
1/3rd share devolved upon his two wives jointly as also, his two sons
Inder Singh and Mehar Singh.
ii) On Inder Singh’s death his interest in the property devolved upon
Mehar Singh who became the absolute owner in respect thereof. On
Mehar Singh’s death which took place on 05.06.1937, the properties
devolved upon his mother Sobhi. On Sobhi’s death, in terms of the
provisions of the Hindu Law of Inheritance (Amendment) Act, 1929,
(1929 Act) the appellant herein succeeded her as heir of Relu Singh.
iii) Sobhi having life interest in the property, on her death the same
devolved upon the appellant herein as daughter of Relu Singh, as a
reversioner.
iv) A step mother being not an heir or a relation for the purpose of
inheritance and succession; she could not inherit the interest of Inder
Singh and Mehar Singh.
v) Custom prevailing in the family which had been relied upon being a
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general custom and not a special or personal custom would be
subservient to the 1929 Act and Hindu Women’s Right to Property
Act, 1937 being Act XVIII of 1937.
vi) Purported reliance upon the customary law by the courts below is
misplaced.
7. Before embarking on the contentions of the learned counsel, we
may notice the following findings of the courts below, wherein it is stated
that Sidhu Jats were governed by Zimindara custom :
"There is no dispute that the defendants are Sidhu
Jats who are predominantly agricultural tribe and were
governed by agricultural custom in matters of marriage
succession alienation etc. Necessary evidence on the
point has been supplied by all the witnesses of the
defendant who were pushed in to prove relationship of
Sham Singh, Raj Kaur and Hira Singh as their son. It
may also be observed that though the defendants denied
in the written statement that the suit property was allotted
during consolidation of holding in lieu of the land held
by Relu the learned counsel for the defendants made their
statements on 26.3.1977 admitting this fact. The copies
of the revenue record Exhibits D3 to D30, however
establish beyond doubt that the suit land was held by
Sohna Singh father of Relu Singh and Hira Singh and
after his death it was inherited by them. It is therefore
the common case of the parties that the suit land was
ancestral in the hands of Relu Singh. Now at the time
of the death of Relu Singh about 60 years back these
Sidhu Jats of Muktsar Tehsil who were obviously
governed by Zimindara custom, the daughter was in the
presence of sons. No share was to be given to the
plaintiff at the time of the death of her father Relu Singh
and this estate was mutated correctly in the names of
Inder Singh and Mehar Singh alias Dalip Singh.
Similarly after the death of Inder Singh the estate was
mutated in the name of his other brother Mehar Singh.
However, when Mehar Singh died issueless, the estate
reverted back to his father and Sobha and Raj Kaur
succeeded to her not as her mother or step mother but as
widows of his father\005"
8. There cannot be any dispute in law that Raj Kaur did not inherit
the interest of Mehar Singh in whom the interest of Inder Singh had also
vested upon his death. His interest under the general law had devolved upon
Sobhi. The question, however, which remains as to whether in a case of
this nature the customary law would prevail in regard to the question as to
whether Appellant or the said Raj Kaur inherited the interest of Sobhi.
9. Custom is one of the three sources of Hindu Law. Custom may
override a statute subject, of course, to a clear proof of usage.
10. Hindu law recognizes three types of customs : local custom,
class custom and family custom. The courts below have held that the parties
were governed by Zimindara custom. Whether the said custom is a general
custom, or a special custom or for that matter a family custom has not been
stated. The customary law prevailing in the State of Punjab has received a
statutory sanction by reason of the Punjab Laws Act, 1872, Sections 5 and
7 whereof read as under :
"5. Decisions in certain cases to be according to
Native law.- In questions regarding succession, special
property of females, betrothal, marriage divorce, dower,
adoption, guardianship, minority, bastardy, family
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relations, wills, legacies, gifts, partitions, or any religious
usage or institution the rule of decision shall be \026
(a) any custom applicable to the parties
concerned, which is not contrary to justice, equity or good
conscience, and has not been by this or any other
enactment altered or abolished, and has not been declared
to be void by any competent authority.
(b) the Muhammadan law, in cases where the parties
are Muhammadans and the Hindu law, in cases where the
parties are Hindus, except in so far as such law has been
altered or abolished by legislative enactment, or is opposed
to the provisions of this Act, or has been modified by any
such customs as is above referred to."
"7. Local customs and mercantile usages when
valid.-All local customs and mercantile usages shall be
regarded as valid, unless they are contrary to justice, equity
or good conscience, or have, before the passing of this Act,
been declared to be void by any competent authority."
11. Amongst the Sikh Jats of Punjab province, there exists a
custom, where the widow marries her first husband’s brother in the Karewa
form, remarriage would not cause forfeiture of her own share. [See
Chunnilal v. Mst. Attar Kaur \026 AIR 1933 Lah. 69].
12. In respect of Jats belonging to Firozepur district, it has been
held that a widow who remarried her first husband’s brother succeeds to a
co-widow in preference to collaterals. But the widow’s right only accrues
on husband’s death, and if it does not accrue then, it cannot accrue later by
the death of subsequent heir. The fact, if the widow is a Karewa widow it
would not affect her right in a suit the parties to which were the two widows
of a Manhas Rajput resident in the Shakargarh Tehsil of Gurudaspur
District, had that the plaintiff (upon whom under the circumstances the onus
lay) had failed to prove a custom in her favour, excluding the defendant,
who was a co-widow by a Karewa marriage, from succeeding to a share in
the deceased husband’s estate (Mst. Dakho v. Mst. Gano \026 22 P.R. 889].
Even a woman who had contracted such marriage may not forfeit her life
estate, if any, in her deceased husband’s property despite the provisions of
the Hindu widows Remarriage Act, 1856. However, the said principle
would not apply where a remarriage is not with the brother of her deceased
but with some other relative.
13. In Shrimonai Gurdwara Parbandhak Committee and Others v.
Harcharan Singh [AIR 1934 Lahore 1], a Division Bench of the Lahore High
Court held :
"First of all, it was objected that Harcharan Singh
was not the legal representative of his deceased brother
Gurcharan Singh, but that his mother Mr. Uttam Kaur,
was his legal representative. Counsel for Harcharan
Singh stated before the Tribunal that he had no objection
to the mother also being impleaded as the legal
representative of the deceased Gurcharan Singh, if it was
held that she was one. It was denied however that she
was the legal representative of the deceased Gurcharan
Singh, and this contention was upheld by the Tribunal on
the unrebutted testimony of the witness examined. There
is no question that this decision is right. A mother as a
rule in the Punjab, where custom is the rule of decision,
only succeeds when there are no sons and the succeeds
not as the mother of the sons but as the widow of her
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deceased husband. See in this connection the replies to
questions 35, 41 and 53 of Currie’s Customary Law of
the Ferozepore District. In reply to the last question
there is a note to the effect that the mother succeeds
really as the widow of her husband and not as the mother
of the last owner. There are numerous decisions to this
effect as well. It follows that, where there are sons they
exclude the mother and if a son dies he is succeeded by
his brother but when the last surviving son dies without
issue then the mother succeeds in her capacity as widow
of her deceased husband. I may here refer to one
authority that of a Full Bench, reported as Mt. Desi v.
Lehna Singh. It is clear from this case that there were
two sons who both died without issue and it was not till
the death of the second that their mother set up a claim as
against the collaterals. She was however non-suited on
the ground that she had remarried and could not therefore
be looked upon as the widow of her first husband."
[Emphasis supplied]
14. Yet again in Diwan Singh and Another v. Natha Singh and
Others [AIR 1937 Lahore 468], it was held :
"\005The case of a mother inheriting property on the
death of her son obviously stands on a different footing
and cannot, I think, be considered to be analogous to
the present case. In the present instance, it seems clear
that when the widow Mt. Utmi succeeded collaterally
on the death of Jowala Singh and Mihan Singh, she
succeeded to the estate as the representative of her
husband and not of Jowala Singh or Mihan Singh.
Consequently on her death the estate must, I think, be
treated as though Prem Singh himself had succeeded to
it\005"
15. Our attention has, however, been drawn to a decision of this
Court in Ujagar Singh v. Mst. Jeo [AIR 1959 SC 1041], wherein this Court
upon noticing a large number of conflicting decisions, came to the
conclusion that existence of a general custom entitling the collaterals to
succeed in preference to sister had not been proved. It, therefore, seemed to
Their Lordships that in the interest of justice the respondent therein (sister)
should succeed in the suit as her brother’s heir under the Hindu law.
16. In absence of any proof of custom, indisputably the Hindu Law
would apply. A’ fortiori Hindu Law of Inheritance (Amendment) Act, 1929
in terms whereof a sister becomes an heir in preference to the collaterals
would be applicable in regard to devolution of property.
17. We may, however, notice that customary law has been recorded
in Rattigan’s Digest of Customary Laws. The courts below have
categorically held the law to be applicable in the instant case is the
customary law having regard to the fact that the parties belonged to the
community of Sidhu Jats.
18. In R.B.S.S. Munnalal and Others v. S.S. Rajkumar and Others
[AIR 1962 SC 1493], this Court was considering the question as to whether
a Jain widow could adopt a son to her husband without his express authority,
being governed by the custom which had by long acceptance become part of
the law applicable to them. Therein, it was observed :
"\005It is well-settled that where a custom is repeatedly
brought to the notice of the Courts of a country, the
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courts may hold that custom introduced into the law
without the necessity of proof in each individual
case\005"
19. The court can also take judicial notice of such customs in terms
of Section 57 of the Evidence Act, 1872. As and when custom has
repeatedly been recognized by the courts, the same need not be proved.
Reference in regard to the Punjab ’general custom’ may be made to Ujagar
Singh (supra), and Bawa v. Taro [AIR 1951 Punjab 239]
20. In Harcharan Singh v. Mohinder Kaur [AIR 1987 P&H 138]
Paragraph 22 of the Rattingan’s Digest was noticed, holding that in terms
thereof there is a custom in Punjab to the effect that in default of male lineal
descendants and of a widow the mother of the deceased succeeds to a life
interest, provided she had not remarried. It reads as under :
"22. In default of male lineal descendants and of a
widow the mother of the deceased succeeds to a life
interest, provided she has not remarried."
21. In Chunnilal (supra), Lahore High Court observed :
"Where a person dies leaving two widows and one
of them remarries the whole estate of the deceased passes
to the other widow and the mere retention of the re-
married widow’s name in the revenue records would not
place her in adverse possession of her share qua the co-
widows and owing to her intervening between the estate
and the reversioner the latter’s rights would not be
affected."
22. The learned trial Judge categorically held that Relu Singh
belonged to Sidhu Jats of Muktsar Tehsil, who were governed by Zimindara
custom, stating :
"\005Since the property was ancestral according to para 13
of the Digest of customary law on the death of one of
the two co-widows the survivor took the entire estate by
survivorship. Raj Kaur was therefore entitled to succeed
to the estate of Sobhi by the rule of survivorship to the
exclusion of the plaintiff\005"
23. Para 13 of the said Digest reads as under :
"13. On the death of one of two co-widows the survivor
takes by survivorship, even if she has remarried by
Karewa, provided such re-marriage has not caused a
forfeiture of her own share."
24. Rattigan’s Digest was also referred to by this Court in Daya
Singh (Dead) through L.Rs. and Another v. Dhan Kaur .[AIR 1974 SC 665 :
(1974) 1 SCC 700], but therein again existence of such a custom had not
been proved. It is no doubt true that if the1929 Act applies, the appellant
would succeed to the interest of her brother after her mother’s death; but the
said Act of 1929 is also subject to applicability of customary law.
25. As statutory law did not exclude the applicability of the
customary law, the principle that customary law would prevail over the
statutory law would apply. It was so found by the courts below.
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26. A serious contention was raised that the validity of customs
must be judged on the touchstone of justice, equity and good conscience.
No such contention had been raised before the learned Trial Judge or before
the High Court. It is one thing to say that customary law had no application
or the custom had not been proved; but it is another thing to say despite its
acceptance and proof the same should not be applied on the ground of
equity, justice and good conscience. We, therefore, cannot go into such a
contention.
27. No contention had also been raised before the courts below that
the custom in question is not a special or local custom, but merely a general
custom. Such a contention again cannot be allowed to be raised for the first
time before this Court particularly in view of the fact that they have
categorically held that the Jats are governed by customary law; the principle
being ’keeping of the property within the family’.
28. Raj Kaur, who was a widow of Hira Singh, was married to
another brother just to safeguard the family property. She succeeded under
the customary laws to her husband after the death of her co-widow. In that
view of the matter, if the daughters who were married were to be excluded
by customary law, no exception thereto can be taken.
29. In Daya Singh (dead) through L.Rs. (supra), paragraph 23 of
Rattingan’s Digest of Customary Law of Punjab has been noticed. It was
held :
"It is on the basis of this Customary Law that the
reversioners succeeded in the suit filed by them
questioning the gift made by the respondents mother to
her. There is no doubt that Rattigans work is an
authoritative one on the subject of Customary Law in
Punjab. This Court in Mahant Salig Ram v. Musammat
Maya Devi said:
The customary rights of succession of daughters as
against the collaterals of the father with reference to
ancestral and non-ancestral lands are stated in para 23 of
Rattigans Digest of Customary Law. It is categorically
stated in sub-para (2) of that paragraph that the daughter
succeeds to the self-acquired property of the father in
preference to the collaterals even though they are within
the fourth degree. Rattigans work has been accepted by
the Privy Council as a book of unquestioned authority in
the Punjab. Indeed, the correctness of this para was not
disputed before this Court in Gopal Singh v. Ujagar
Singh "
30. However, therein the customary law was not applied in view of
the application of Section 8 of the Hindu Succession Act, 1956.
31. We may furthermore notice that the customary law has been
specifically been excluded in terms of Section 4 of the Hindu Succession
Act, 1956. If the intention of the makers of the statute in the 1929 was to
completely exclude the applicability of the customary law, it would have
been said so explicitly.
32. Reliance has been placed on Smt. Dipo v. Wassan Singh and
Others [(1983) 3 SCC 376], wherein the sister was held to be a preferential
heir as it was found that the entire property was an ancestral property,
stating :
"\005We also proceed on the basis that according to the
prevailing custom of the area, collaterals and not the
sister are preferential heirs to ancestral property in the
hands of a propositus, while the sister and not the
collateral is a preferential heir in regard to non-ancestral
property. We must add here that we are not quite satisfied
that the custom has been properly established, but for the
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purposes of the present case, we proceed on the basis that
the custom has been established. But that is not the end
of the problem before us. No doubt the properties which
have been found by the lower courts to be ancestral
properties in the hands of Bua Singh are properties which
originally belonged to Bua Singhs ancestors. But Bua
Singh was the last male holder of the property and he had
no male issue. There was no surviving member of a joint
family, be it a descendant or otherwise, who could take
the property by survivorship. Property inherited from
paternal ancestors is, of course, ancestral property as
regards the male issue of the propositus, but it is his
absolute property and not ancestral property as regards
other relations. In Mullas Principles of Hindu Law (15th
Edn.), it is stated at p. 289:
. . . if A inherits property, whether movable or
immovable, from his father or fathers father, or
fathers fathers father, it is ancestral property as
regards his male issue. If A has no son, sons son,
or sons sons son in existence at the time when he
inherits the property, he holds the property as
absolute owner thereof, and he can deal with it as
he pleases. . . .
*
A person inheriting property from his three immediate
paternal ancestors holds it, and must hold it, in
coparcenary with his sons, sons sons and sons sons sons,
but as regards other relations he holds it, and is entitled to
hold it, as his absolute property.
Again at p. 291, it is stated:
The share which a coparcener obtains on partition
of ancestral property is ancestral property as
regards his male issue. They take an interest in it
by birth, whether they are in existence at the time
of partition or are born subsequently. Such share,
however, is ancestral property only as regards his
male issue. As regards other relations, it is
separate property, and if the coparcener dies
without leaving male issue, it passes to his heirs by
succession.
3. We are, therefore, of the view that the lower courts
were wrong in refusing to grant a decree in favour of the
plaintiff as regards property described by them as
ancestral property. The defendants were collaterals of
Bua Singh and as regards them the property was not
ancestral property and hence the plaintiff was the
preferential heir. The plaintiff was entitled to a decree in
respect of all the plaint properties\005"
33. There is no dispute in regard to the aforementioned proposition
of law. To the same effect is the decision of this Court in Dharma Shamrao
Agalawe v. Pandurang Miragu Agalawe and Others [(1988) 2 SCC 126] and
Sheela Devi and Others v. Lal Chand & Another [2006 (10) SCALE 75]
The said decisions, however, for the reasons stated hereinbefore, have no
application in the fact of the present case.
34. For the reasons aforementioned, the appeal being devoid of any
merit is dismissed. However, in the facts and circumstances of the case,
there shall be no order as to costs.