T.S. Misra, J.
1. The following question has been referred to the Full Bench for opinion: --
'Whether a custom under which daughters are excluded from inheriting the property of their father can by implication exclude the daughters' issues both males and females, also from such inheritance ?'
The facts to the extent they are material are these. Ghurpattari and others filed Suit No. 180 of 1964 for securing possession of a house situate in Mauza Nasirpur, pergana Bidhar, Tehsil Tanda, Dist. Faizabad, alleging that the suit house belonged to Lautan, ancestor of the parties, that Khilawan great grandson of Lautan had illicit relations with Smt. Jaggo who gave birth to three daughters, but all of them died of Cholera, and that Jaggo's sister had two daughters, Baldei and Rajdei who were brought up by Khilawan and Jaggo as their own daughters. Sarju Din defendant No. 2 was son of Baldei, Khilawan died about 20 years before the institution of the suit. Smt. Jaggoo had no right in the property, but in order to provide her maintenance, she was kept in the house and her name was not entered in the revenue papers. Jaggoo died 10 or 11 years before the institution of the suit and Raj Dei got her name entered in the revenue papers, Sarju Din filed a collusive suit against Raj Dei and entered into a compromise in terms whereof a decree declaring his right was passed. It was alternatively pleaded that even if Smt. Baldei and Rajdei were held to be daughters of Khilawan, they were excluded from inheritance because of a family custom. It was alleged Sarju Din had executed a fictitious sale deed in favour of Mangaru and Lalai, defendants 1 and 2 and while the plaintiffs were absent, the defendants 1 to 3 got illegal possession of the house. That sale deed was said to be void. The plaintiffs, therefore, claimed possession of the house. In reply, the defendants pleaded that Smt. Jaggo was a legally wedded wife of Khilawan and Rajdei and Baldei were their daughters, that the house in dispute did not belong to Lautan but was built by Prahlad and Khilawan and after the death of Prahlad, Khilawan became the owner of the house and on his demise Smt. Jaggo succeeded to all of his property. After the death of Jaggo, her daughters Rajdei and Baldei succeeded to the properly. The sale deed in favour of defendants 1 and 2 had been executed with the consent of Baldei by Suraj Din. Rajdei also sold her half share. They denied that there was any custom excluding daughters from inheritance.
2. The trial court decreed the suit on 23rd December, 1964. Against that decision an appeal was preferred by the defendants. They got their written statement amended to the effect that Smt Sampatti, daughter of Smt. Baldei was alive when Smt. Jaggo died; hence even If there was a custom excluding daughters from inheritance, the daughters' daughter was not excluded from inheritance and the plaintiffs had, therefore, no title in the house in dispute. The appellate court below allowed the appeal and remanded the case to the trial court. Thereafter Smt. Sampati. filed a Suit No. 119 of 1965 claiming relief for possession over the property in dispute and alleging that she had succeeded to Smt. Jaggo, her mothers' mother. Both the suits were tried together by the trial court which found that Smt. Jaggo was legally wedded wife of Khilawan, that Smt. Baldei and Smt. Raj-dei were daughters of Khilawan and Smt. Jaggo; that Smt. Sampati was daughter of Baldei but she was not born when Smt. Jaggo died; that under the custom among the Ahirs of the village to which caste the parties belonged there was a custom excluding daughters from inheritance, hence Smt. Sampati and Sarju Din being daughter and son of Baldei could not inherit. On these findings Suit No. 180 of 1964 was decreed and Suit No. 119 of 1965 was dismissed. Smt. Sampati preferred an appeal No. 21 of 1966, whereas Lalai and Mangaru, defendants Nos. 1 and 2 of Suit No. 180 of 1964 preferred Civil Appeal No. 22 of 1966. The appellate court below found that, the house in suit originally belonged to Khilawan, that Smt. Jaggo was his legally wedded wife, that Rajdei and Baldei were daughters of Khilawan and Jaggo and that Smt. Sampatti was the daughter of Baldei, that the parties to the dispute are Ahirs by caste, that there was A custom amongst the Ahirs of village Nasirpur, district Faizabad where the property in suit is situate which excluded daughters from inheritance and that this custom was mentioned in Wajibularz, (Exhibit No. 2). Placing reliance on Vikram Singh v. Parbati Kunwar : AIR1961All97 , the appellate court below held that custom excluded daughters and their sons from inheritance but did not exclude daughter's daughter; hence Smt. Sampati being daughter's daughter was not excluded from inheritance. It, therefore, decreed the Suit No. 119 of 1965 and dismissed the Suit No. 180 of 1964. Aggrieved by that decision Ghurpatri and others the defendants in Suit No. 119 of 1965 filed Second Appeal No. 68 of 1968. They also filed another Second Appeal No. 69 of 1968 against the decision dismissing their suit.
3. The learned single Judge who heard the above two appeals observed that in Sheo Mangal Singh v. Jagpal Singh, ((1909) 12 Oudh Gas 63), Jainath Kuar v. Dhannal Singh, 1947 Oudh WN 197 = (AIR 1947 Oudh 164) and Balgovind v. Badri, 50 Ind App 196 = (AIR 1923 PC 70) a view had been taken that a custom which excluded daughters from, inheritance also excluded daughter's son. On the other hand in Vikram Singh v. Parbati Kunwar : AIR1961All97 a Division Bench of this Court took the view that a daughter's daughter who had been made an heir under the Hindu Law of Inheritance (Amendment) Act, 1929, could not be excluded under a custom existing prior to that Act which excluded daughters from inheritance. Since there were divergent views and the point was considered of sufficient importance, the question mentioned herein above has been referred to the Full Bench for opinion. That is how the said question has been placed before us.
4. It is manifest from Wajibularz Ex. 2 that there was a custom amongst the Ahirs of Pargana Bidhar district Faizabad that under no circumstance daughter whether having a son or no son would be entitled to have share in the property of the propositus by inheritance. Both the parties nave accepted that there did exist such a custom amongst the Ahirs of village Nasirpur, Pergana Bidhar, district Faizabad. For the appellants it was, however, urged that the daughter's daughters were also excluded from inheritance because of this custom, whereas the contention on behalf of respondents was that the custom recorded in Ext. 2 excluded only daughters from inheritance but not daughter's daughter. The question which, therefore, falls for determination is whether the said custom which excluded daughters from inheriting the property of their father also by implication excluded the daughter's issues both males and females from inheritance.
5. In the case of Sheomangal Singh v. Jagpal Singh (1909) 12 Oudh Cas 63 (supra) the male owner was Bandhan Singh who died leaving two daughters Sheoraj Kuar and Achchan Kuar who took the estate. Achchan Kuar died first, leaving three daughters. The second widow Sheoraj Kuar retained the estate till her death. On her demise Bhawani Singh and Jagpal Singh commenced an action to recover possession of the property in question alleging that there was a custom prevailing in the family which excluded the daughters from inheriting the estate of their father, hence they were entitled to take the whole of their maternal grandfather's estate. The collaterals, on the other hand, pleaded that according to the custom of the family and of the clan to which they belonged both daughters and daughter's sons were excluded from inheritance, hence the plaintiffs had no title to the property. The trial court found that the custom set up by the defendants was not satisfactorily proved and decreed the suit On appeal the appellate court found that according to the custom set forth in the Wajibularz the daughter of a sonless Hindu was expressly excluded from inheriting her father's estate. The appellants pleaded that as the parties were Avadh Thakurs and in view of the fact that the reason for the exclusion of the daughter was the great solicitude of the Hindu Thakurs in Avadh to preserve the inheritance of land to the tribe and family to which it belonged, the exclusion of the daughters necessarily implied the exclusion of the daughter's sons, and that the intention of those who had the Wajibularz recorded must clearly have been that the daughter's sons were excluded by custom, otherwise the very object of the exclusion would be defeated. It was also urged that, under the ordinary rules of Hindu Law applicable, no daughter's son could succeed his maternal grandfather till all the daughters were exhausted and where daughters were excluded by custom, daughter's sons were necessarily excluded otherwise there would be an obvious absurdity, namely that succession passing by Hindu Law to daughter's son during the lifetime of his mother and her sisters, although by that law he took no interest at all till his mother and the last daughter capable of being an heiress were dead. The appellate court noticed that there had been similar suits in relation to other clans of Thakurs in other portions of Avadh in which the Wajib-ul-arz came to be interpreted. In some the daughter's son had been expressly excluded from inheritance; in others, though the daughter's son had not been expressly excluded by the language of the document, still there had been other provisions therein from which the exclusion of the daughter's son could very clearly be implied. The Court observed that:--
'............ in nearly all these casesthe Courts have recognised that the cause of the exclusion of a daughter and daughter's son, in the case of Oudh Thakurs, has been their solicitude to preserve the inheritance of the land in the tribe and family to which it has always belonged.'
Referring to Second Civil Appeal No. 269 of 1894 it was stated that in that case even the daughter was not expressly excluded. The daughter's sons were not mentioned even in the Wajib-ul-arz; but there was other language by which they were impliedly excluded. Referring to First Civil Appeal No. 99 of 1897 wherein the expression 'Aulad Dukhtari' was construed as meaning daughters and their issues, it was noticed that in that case as well there was also other language in the Wajib-ul-arz from which the exclusion of daughter's son could be implied. It was then noticed in Sheomangal Singh's case (1909) 12 Oudh Cas 63 (supra) by the Court that the paragraph in the Wajib-ul-arz relating to adoption was a clear indication that the family customs of those Thakurs were directions to the retention of their properties within their clans and families, hence it was observed that if the object of the Thakurs of Avadh in excluding daughters from inheritance was to preserve the inheritance of the land in the tribe and the family to which it belonged, it seemed that the exclusion of the daughters' sons necessarily followed the exclusion of the daughters. Further it was observed that the omission to enter language, expressly excluding the son in the Wajib-ul-arz was due either to a careless preparation of the record or because the parties who had it prepared thought the exclusion of the daughters necessarily implied the exclusion of their sons. In these circumstances it was held that the exclusion of a daughter necessarily implied the exclusion of her son as well, otherwise the very object of the exclusion was thought to be defeated. Further, it was noticed that no daughter or daughter's son in the village of Alampur had ever laid claim to the estate of the maternal grandfather. That fact was considered to be quite significant to hold that the exclusion of the daughter amongst those Thakurs necessarily implied the exclusion of the daughter's son.
6. It was thus laid down in Sheomangal Singh's case (1909) 12 Oudh Cas 63 (supra) that if the daughter's son had not been expressly ex-eluded by the language of the Wajib-ul-arz still if there were other provisions in the document from which the exclusion of the daughter's son could very clearly be implied, the custom excluding the daughter would also exclude the daughter's son. So, there must be some provision or some indication in the Wajib-ul-arz from which it could be inferred that not only the daughter but daughter's issues were also excluded from inheritance. In other words, if there is no such provision in the Wajib-ul-arz the daughter's son could not by necessary implication be excluded from inheritance merely on the ground that the Wajib-ul-arz recorded a custom excluding daughters from inheritance,
7. In the case of Balgovind, 50 Ind App 196 = (AIR 1923 PC 70) (Supra) Balgovind Pandey and his brothers constituted a joint Hindu family which was governed by Mitakshara Law subject to any lawful variation of that law by custom. The Wajib-ul-arz in question contained a statement to the effect that on the death of a co-sharer his sons became owners of his share in equal shares and the daughter did not get any share by inheritance. If a co-sharer had several wives of whom one had one son and the other several then on the death of the co-sharer his share would be divided equally among his sons. Their Lordships construed this entry in the Wajib-ul-arz thus:--
'On the death of an owner of the village no daughter of his is under any circumstances entitled to a share in the property by right of inheritance, whether he had left sons or not. How such a custom would operate in cases in which an owner died leaving no relation but a daughter who could inherit it is not necessary now to consider. If a daughter had no right to inherit her issue could not inherit. The provision that on the death of a co-sharer his sons became owners of his share in equal shares was probably inserted to exclude any claim under a custom of primogeniture which is not an uncommon custom in Oudh.'
In that case there was no express provision in the Wajib-ul-arz that the daughter's son was excluded from inheritance. The custom recorded in the Wajib-ul-arz expressly excluded the daughter from getting any share by inheritance. Their Lordships were of the view that if a daughter had no right to inherit her issues could not inherit.
8. In Mst Jainath Kuar v. Danpal Singh, 1947 Oudh WN 197 = (AIR 1947 Oudh 164) a daughter's daughter having a preferential claim under Act II of 1929 entered into a family settlement with the ultimate reversioners under which she gave up her title to the possession of the whole estate in lieu of a share therein with no limitations placed on her rights with regard to it. It was held that the rights of the parties to the family settlements were governed by its terms and not by any rule of the law of inheritance and that the daughter's daughter acquired a full estate in the share allotted to her under the family settlement so that on her death the share passed to her sons and not to the reversioners.
9. In that case the last male owner of the property in dispute was Mahabir Singh, who was a Kshatriya by caste. He died in the year 1906 leaving behind two widows Balraj Kuar, and Marjad Kuar and their daughters Bishunath Kuar, Jadunath Kuar and Jainath Kuar, The two widows succeed to the property jointly under the Hindu law. Marjad Kuar died in 1924. Thereafter on 26-4-1926 Balraj Kuar executed a gift of the property in suit with the exception of eight plots in favour of two sons of Bishunath Kuar, the daughter of Mahabir Singh. Bishunath Kuar and Jadunath Kuar another daughter of Mahabir Singh were then not alive, the second daughter of Mahabir Singh, namely, Jainath Kuar was however then alive. Balraj Kuar then executed a permanent lease on 8th September, 1932 in favour of Jainath Kuar. Balraj Kuar died on 28th September, 1934. The plaintiffs claiming to be the next reversioners of Mahabir Singh then filed a suit for possession of the properties in question against Jainath Kuar and the two sons of Bishunath Kuar alleging that by a custom of the tribe and family of Mahabir Singh the daughters and their sons were excluded from inheritance. The defendants 1 to 3 denied the custom of exclusion of daughters and their sons. Instead they set up a custom prevailing in Puranpur whereunder the widows became the absolute owners hence those defendants being the transferees from Mst. Balraj Kuar were not liable to be dispossessed. During the course of the proceedings Vidya Kuar the daughter of Jainath Kuar, was impleaded as a plaintiff. Vidya Kuar alleged that she was the nearest heir of Mahabir Singh, Thereafter she entered into an agreement, called family settlement with other plaintiffs whereunder she was to get one third of the property and the other plaintiffs would get the remaining two thirds. During the pendency of the proceedings, Vidya Kuar died and in her place her sons were substituted. An issue as to whether daughter's daughters were excluded because of the exclusion of daughters was hence also framed. The trial court found that by family custom daughters and their sons wre excluded and that the question of exclusion of daughter's daughter did not arise because she was dead and even if she wag not excluded she had only a life estate which came to an end with her death and that there was no custom in the family by which widows succeed to a full estate. The suit of the plaintiffs was accordingly decreed. An appeal was then filed by the defendants 1 to 3 in the Chief Court of Oudh. A Division Bench of the court which heard the appeal found that the plaintiffs had not succeeded in proving their pedigree and observed that it was sufficient to dispose of the appeal but as the two points, namely the custom of exclusion of daughters and their sons and the custom that the widow succeeds to the full estate and not to a Hindu Widow's estate, had been argued it considered them as well Construing the terms of the Wajib-ul-arz recording the custom it was held that the custom of exclusion of daughters from inheritance was fully established and then relying upon Balgovind v. Bidri Prasad, (AIR 1923 PC 70) it was also held that the custom set up by the plaintiffs that the daughters and their sons were excluded from inheritance in that family was established.
10. In that case the Division Bench, however, held that Vidya Kuar as a daughter's daughter 'had a preferential claim under the Hindu Law of Inheritance (Amendment) Act II of 1929, but under that Act she had only a life estate'. This would mean that the custom excluding daughter and her sons would not exclude by implication daughter's daughters also-The Wajib-ul-arz in that case recorded that 'daughters universally and the wife in the presence on an issue do not get a share'. It was silent about daughter's sons and daughter's daughters. In fact, the claim of Vidya Kaur, a daughter's daughter, was upheld on the basis of the aforesaid family settlement.
11. In Vikram Singh v. Perbati Kunwar : AIR1962All97 Rewaj-i-am, proved in that case, recorded a custom pertaining to Inheritance in the following terms:--
'Agar Dukhtar na Kat Khuda howe to uska kuch haq wa HISSA NAHIN HAI.
Sirf guzara pati bain aur shadi uski shurkyan jaddi to hissa pate hain, karte bain.'
From the words of the Rewaj-e-am it appeared that the unmarried daughters were excluded from inheritance. It was, however, silent about the case of married daughters or the issues of daughters. Construing the entries in the Rewaj-e-am the Division Bench observed that it was doubtful whether it was intended to exclude even a son of the daughter who is the legal heir of the maternal grandfather under the Mitakshara Law. However, the court of fact had found in that case that on the strength of oral evidence it was proved that the daughters and their sons could not be heirs of the property of deceased Amethiya Thakurs.
12. The daughter's daughter claimed the estate as an heir. It w,as held that though the daughter's son was excluded according to the alleged customary law as the daughter herself, the allegation that daughter's daughters were also excluded had not been sustained. In fact at the time a custom of excluding the daughters had grown, the daughter's daughter was not an heir according to the Benaras School of Hindu Law. The daughter's daughter was recognised as heir for the first time by Hindu Law under Act II of 1929. Hence it was held that a custom therefore could not contemplate the exclusion of a person from inheritance who was not an heir at the time when the custom came to be recognised.
13. In all the cases noticed above1 custom was pleaded in derogation from personal law of inheritance and a custom excluding daughters from inheritance was established. The question which was then considered was whether the custom excluding daughter from inheritance also excluded the daughter's son or daughter's daughter from inheritance.
14. The rules relating to inheritance by widow and daughter were enunciated in the ancient past by various sages and were ultimately elaborated by Vijnyaneshwara in Mitakshara. We may quote from Colebrooke's translation. Katyayan said 'let the widow succeed to her husband's wealth, provided she be chaste; and in default of her let the daughter inherit if married.' Brihaspati stated, 'the wife is pronounced successor to the wealth of her husband; and in her default the daughter; as a son so does the daughter of a man proceed from Ms several limbs, how then shall any other person take her lather's wealth?' Vishnu laid down, 'if a man leaves neither son, nor son's sonv nor wife, nor female issue, the daughter's son shall take his wealth, for in regard to the obsequies of ancestors, daughter's son is considered as son's son.' Manu likewise declared, 'by that male child, whom a daughter, whether formally appointed or not, shall produce from a husband of an equal class, the maternal grandfather becomes the grand sire of a son's son, let that son give the funeral oblation and possess the inheritance.' The right of daughter and daughter's son to succeed to the property was thus well recognised in Mitakshara law. The daughter ranks fifth in the order of succession and the daughter's son ranked sixth. The Hindu Law of inheritance (Amendment) Act II of 1929, (hereinafter called the Act of 1929), for the first time entitled the daughter's daughter, subject to a special family or local custom, to succeed to the property of a male Hindu governed by Mitakshara law. Daughter's daughter then ranked 13th-B in the order of succession. The order of succession to the estate of a Hindu dying intestate and governed by Mitakshara law are set out in paragraph 43 of Mulla's Principles of Hindu Law (14th Edition) as under:--
'The Sapindas succeeded in the following order:--
1.4 A son, grandson, (son's son) and great grandson (son's son's son) and (after 14th April 1937) widow, predeceased son's widow, and predeceased son's predeceased son's widow,
6. Daughter's son
7-12. ...... ...... ...... ...... ...... ......
13. Father's father
13-A Son's daughter
13-B. Daughter's daughter.'
15. This order of succession is stated in identical terms in Mayne's Treatise on Hindu Law (11th Edition) Table-A, at page 616-A. However, before the enforcement of Hindu Succession Act XXX of 1956 a custom having the force of law but inconsistent with the aforesaid rule of succession could be set up to meet the claim of inheritance. Custom has been a vital legal element in the Hindu Society and has played a significant part in its development. Narad said 'Custom is powerful and overrules the sacred law.' The inviolability of custom was maintained both by general law and legislation during the British rule, though during the 19th century and first half of the 20th century prior to Independence bulk of law in our country was codified. The validity of custom was recognised as early as 1781 when by XXI Geo III-C-70, Section 17 and later by Indian Regulations IV of 1793, Section 15, the legislature expressly 'saved' local custom where it differed from the general law. The judicial committee of the Privy Council in Collector of Madras v. Moottoo Linga Sathu Pathy (1884) 12 Ind App 397(PC) explicitly affirmed this principle in the year 1868. So also special family or local custom was 'saved' by the Hindu Law of Inheritance (Amendment) Act of 1929. In Hindu jurisprudence, custom has thus been a source of law and a rule of conduct.
16. A party setting up a custom must however, prove what that custom is. In Halsbury's Laws of England III Edition, Volume II, Article 319, at page 171, it is stated that all customs of which the courts do not take judicial notice must be clearly proved to exist, the onus of establishing that being upon the parties relying upon their existence. So also is the requirement of Section 48 of the Indian Evidence Act. It is thus for the party asserting that he is governed in regard to succession by custom to prove that he is so governed and also to prove what the particular custom is; See; Abdul Hussain Khan v. Bibi Sona Dero, 45 Ind App 10 = (AIR 1917 PC 181) and Ujagar Singh v. Mst. Jeo : AIR1959SC1041 . However if a custom has been repeatedly brought to the notice of the courts and has been uniformally recognised by them, the proof of it becomes unnecessary and the court can take judicial notice thereof under Section 57 of the Evidence Act.
17. The primary function of judicial analysis, therefore, is to examine the nature and reality of custom pleaded by a party in the case, and not to invent new customs or arbitrarily abolish those which are proved to exist. The Court would seldom go beyond determining whether the special family or local custom is, as a matter of established fact, proved to be a recognised social practice. Custom is self-contained, self-sufficient and self-justified law. Its inherent validity lies in its antiquity, continuity, certainty, consistency and reasonableness. A custom having the force of law is in some fundamental respects an exception from the Ordinary law of the land. It is pleaded in derogation from a rule of the personal law. Its application is, however limited. It does not apply to the generality of citizens but only to a particular class of persons or to a particular community or family or to a particular place. It must be proved to exist. If it is not proved to exist, it would necessarily be declared not to be law and to have no validity. Custom could exclude from, inheritance only that person who was otherwise entitled to inheritance under personal law. There could be no question of excluding one from succession who had no legal entitlement to it. Before the enforcement of the Hindu Succession Act, 1956, custom could override an existing rule of Hindu Law relating to succession but if there was no law enabling one to succeed to the property of a propositus there would be no question of custom ousting that person, from inheritance. To illustrate, prior to the Hindu Law of Inheritance (Amendment) Act II of 1929 daughter and daughter's son were recognised and given due place in the order of succession but daughter's daughter was not recognised as an heir. Hence any custom prevailing before the commencement of Act II of 1929 could not have, the effect of excluding daughter's daughter from inheritance. It is however, to be remembered that the right of inheritance conferred on daughter's daughter by Act II of 1929 was made subject to a special family or local custom having the force of law. But such a custom should have pointedly referred to the right of the daughter's daughter and was not to be deduced from a custom which merely excluded daughters from inheritance. In our opinion the view expressed in Vikram Singh's case : AIR1961All97 (supra) with regard to the right of daughter's daughter is correct,
18. So far as the right of daughter's sons to inherit the property of their maternal grandfather was concerned, it was concluded by the decision of the Privy Council in Balgovind's case (AIR 1923 PC 70) (Supra) wherein it was held that under a custom 'if a daughter had no right to inherit, her issue could not inherit' In that case, succession had opened long before the coming into force of the Hindu Law of Inheritance (Amendment) Act II of 1929, and at the relevant time daughter's son and not the daughter's daughter was under law entitled to inherit. The claimant in that case was also daughter's son. It is in that context that their Lordships had observed that if a daughter had no right to inherit her issue could not inherit. Obviously that observation related to the male issue only and could not relate to the female issue of the daughter of the propositus.
19. Our answer to the question referred to the Full Bench, therefore, is that a custom under which daughters were excluded from inheriting the property of their father may by implication exclude the daughter's sons but not the daughter's daughter from such inheritance.
20. Let the record of the case be placed before a learned Single Judge with our answer.
M.P. Mehrotra, J.
21. I agree and have nothing to add.
D.N. Jha, J.
22. I agree.