Teja Singh, J.
1. These are two connected appeals under Clause 10, Letters Patent, from a judgment of a learned Single Judge of the Lahore High Court.
2. The facts relevant for purposes of the appeal may be shortly stated. Karam Singh and Dipa sons of Amir Singh who were Jats of village Rangian in the Tehsil and District of Ludhiana jointly owned the suit land. On Dipa's death his share devolved upon his son Chanda. Chanda died somewhere in June 1908 and the land was mutated in favour of his mother Mt. Attri. Karam Singh absented himself from the village and in course of time Mt. Attri took possession of his share of the land as well. Mt. Attri also died in the year 1942. On 21st April 1944, Ratna who claimed to be Dipa's collateral brought a suit for possession of the entire land against Mt. Harnam Kaur, the daughter's daughter of Dipa, and four other persons. His allegations inter alia were that Karam Singh had not been heard of for about 27 years and should be regarded as civilly dead, that he was entitled to succeed to the land owned by Karam Singh and Dipa, that on Mt. Attri's death he was entitled to succeed to all the land which once belonged to Karam Singh and Dipa, that Mt. Attri was alleged to have made a will in favour o Mt. Harnam Kaur and a gift in favour of Ram Gopal defendant 5, but he did not admit the factum of the will nor the validity of the will and the gift, and that Mt. Harnam Kaur had no right to keep the possession of the land. Mt. Harnam Kaur denied the plaintiff's allegations and his right to succeed to the land in preference to her. She also denied that Karam Singh could be regarded as civilly dead and alleged that the land was not ancestral qua the plaintiff and that Mt. Attri had made a will in her favour which was valid according to custom. The following issues were framed by the trial Sub-Judge:
1. Has Karam Singh not been beard of for more than seven years last and consequently he is to be considered as civilly dead?
2. If issue No. 1 is not proved, then what is the effect on the case 1
3. Is the land in dispute ancestral qua, the plaintiff f
4. If not what is its effect?
5. Whether the will mada by Mt. Attri in favour of defendant I is legally valid?
6. Whether the gift of land made by Mt. Attri in favour of Ram Gopal defendant 5 is legally valid?
3. The first issue was found in the affirmative and the third, fifth and the sixth in the negative. Issue 2 was left undecided but in view of the findings on the other issues the plaintiff's suit was decreed in its entirety. The District Judge affirmed the decision of the trial Court. On further appeal the learned Single Judge of the Lahore High Court set aside the decrees of the Courts below in respect of half the suit land and confined the decree in the plaintiff's favour to the other half. L.P.A. No. 4 of 1948 is by the plaintiff and L.P.A. No. 9-E of 1947 is by Mt. Harnam Kaur defendant.
4. I shall first deal with Mt. Harnam Kaur's appeal. Ratna's relationship with Dipa and Karam Singh is not denied, and it is clear from the pedigree-table, the correctness of which was admitted by both sides, that his grandfather Pullan and Sardool Singh, grandfather of Dipa and Karam Singh, were brothers to each other, being the sons of Phama. It is also clear from the pedigree-table that Mt. Harnam Kaur's mother Mt. Chandi was Dipa's daughter and Chanda's sister. As I have already observed, half the suit land belonged to Karam Singh and half to Dipa. The learned Single Judge took the view that so far as Karam Singh's share of the land was concerned Mt. Harnam Kaur succeeded to it in preference to the plaintiff. As regards Dipa's share he held that the position of Mt. Harnam Kaur being that of the sister's daughter of Chanda, who was the last holder, she was superseded by the plaintiff. The first point urged by her counsel was that the Courts below were wrong in proceeding on the assumption that the whole of the land which stood in Mt. Attri's name before her death belonged to her husband and her eon Chanda and she had inherited it from the latter. He contended that part of the land belonged to the collaterals of Dipa and Mt. Attri had got it by collateral succession, but this plea was never taken in the Courts below and has been urged for the first time before us. Though the plaintiff did not allege in so many words in the plaint that Karam Singh and Dipa were the owners of the land, the words of para. 2 are capable of this construction and if - Mt. Harnam Kaur's position was that some of the land had come to Mt. Attri by collateral succession from Dipa and Karam Singh's collaterals she should have raised this point clearly in her written statement, but she did nothing of the kind. On the other hand, in the statement that she made before the issues she came forward with allegation that Dipa's land was his self-acquired property. If the statement be read as a whole, there can be no doubt that she was referring to the land to which Mt. Attri succeeded on Chanda's death. As regard Karam Singh's share of the land, her case was that he was still alive and the plaintiff had no locus standi to claim its possession. For these reasons, I am of the opinion that this objection of the counsel must be overruled.
5. The second point urged by the counsel was that because Chanda had died without leaving any descendants and because Mt. Attri succeeded to him not as his mother but as the widow of his father Dipa, it was Dipa who was the propositus and Mt. Harnam Kaur, the daugher's daughter of Dipa, was entitled to succeed in preference to the plaintiff. I agree that according to the general custom of the province a daugher or a daughter's idaughter has a better right to succeed to non-aneestral property than the collaterals of the propositus. Accordingly, if we regard Dipa as the last holder Mt. Harnam Kaur's right to succeed to him in respect of his share is superior to that of the plaintiff, but the trouble is that Dipa died leaving surviving him his son Chanda and it was Chanda who was the last holder. Mr. Mela Ram drew our attention to the Introduction to chap. 11 of Rattigan's Digest of Customary Law (Edn. 1938), page 84, wherein the learned author has laid down four canons governing succession to an estate amongst agriculturists, the second canon being that when the male line of descendants has died out, it is treated as never having existed, the last male who left descendants being regarded as the propositus. I am of the opinion that this canon governs cases involving collateral succession. In any event, it cannot be stretched to the case of a sister of the last-holder so as to treat her as a daughter. The counsel also referred us to the observations made by Broadway, J. in Mamun and Ors. v. Mt. Jowai and Ors. A.I.R. 1927 Lah. 329. In that case, the suit land belonged to one Hashu who on his death was succeeded by his widow and his mother in equal shares. The widow having remarried, the question for decision was whether by custom her husband's collaterals or her mother-in law succeeded to her share in the property. The High Court held that the mother-in-law had the preferential right. Broadway J. while dealing with this point referred to question 21 of the District Customary Law, the answer to which showed that the mother was recognised as one of the heirs, though postponed (to the father and the brothers and their male lineal descendants) of the last holder, and then remarked as follows:
Mr. Nanak Chand, for the respondent has urged that the correct interpretation of this riwaj-i-am is that when a man dies leaving no male issue but a widow and a mother, the estate would devolve upon the widow and that on her death or remarriage the estate in its entirety would go to the mother who would hold during her life. Now, the general principle governing succession to an estate among agriculturists seems to be that where the male line of descendants dies out it is treated se never having existed, so that succession is then reckoned with reference to the last male owner who dies leaving descendants. In the present case it is clear that on the death of Sahibu without issues his widow was entitled to take the entire estate and on her remarriage, following the principle just enunciated, we have to refer back to Hashu, and Mt. Jowai will, therefore, be entitled to the property during her life.
It will thus be seen that this case is also distinguishable from the present case. Moreover, I am inclined to the view that it was not necessary to go back to Hashu, and Mt. Jowai was entitled to the property after the death of the widow of her son as mother of her son, who was the last holder.
6. The other case upon which the counsel relied is Kanshi Ram and Anr. v. Situ and Anr. A.I.R. 1934 Lah. 781. The question involved in that case was whether an adopted son can succeed to share his natural brother's estate in the presence of another natural brother. Tek Chand and Abdul Kashid, JJ. both wrote separate judgments but concurred in answering the question in the negative. It is the remarks of Abdul Rashid, J. appearing at p. 217 of the printed report which the learned Counsel wished to emphasise. This is what the learned Judge said:
It was observed in Sita Ram v. Raja Ram, 12 P.E. 1892 (F.B.), that the general principle which regulates succession to ancestral land in a Punjab village community is fully explained in the Full Bench case Gholam Muhammad v. Muhammad Bahhsh & P.R. 1891 (F.B.). It is there shown that the property of a man who dies without issue first reverts to the ancestor and then descends to the male lineal descendants of that ancestor. Thus a brother succeeds a sonlesa brother not as a brother, but because the estate reverts to the father and descends again to his sons. So too a mother succeeds not as a mother but as the widow of the father to whom the estate has ascended. This also explains what is called 'the principle of representation.
I need not point out that adoption under custom is a pecular institution and the rights of an adopted son are governed by principles which have no application to this case. In support of this view, I refer to the,case, Mt. Fazal Bihi v. Muhammad Hayat and Anr. A.I.R. 1935 Lah. 812, decided by the very Bench. A gift had been made by the mother of the last holder in favour of her daughter, i.e., the sister of such holder. The collaterals of the fourth degree sued to have it set aside. The defence was that the gift was valid under Customary law governing the parties and it was urged on behalf of the donee that the donor held the property not as the mother of the last male holder but as the widow of his father. Abdul Rashid, J. disposed of this contention in the following words:
The learned Counsel maintained that Nur Alam (the last male holder) having died without leaving any descendants, it must be presumed that he never existed and that therefore it must be held that Mt. Afzal Bibi made a gift of the estate of her husband to her daughter. In my opinion, this contention is wholly devoid of force. Fazal Ahmad died before his son Nur Alam and Nur Alam held the property in dispute for a number of years. In these circumstances Fazal Ahmad cannot possibly be regarded as the last male holder of the property in dispute. Nur Alam being the last male holder, Mt. Fazal Bibi succeeded as the mother of Nor Alam and not as the widow of Fazal Ahmad. The gift in question is therefore a gift by the mother of the last male holder of the estate of her son in favour of her daughter. Mt. Fazal Bibi (the donee) must be regarded as the sister of the last male holder, and not as the daughter of his father, vide: Hamira v. Ram Singh 134 P.R. 1907.
Tek Chand, J. agreed with him.
7. Hamira and Ors. v. Ram Singh and Ors. 134 P.R. 1907 is a leading Punjab case bearing on a sister's right to succeed to the property left by her brother, and it was held by the Full Bench that among parties following Customary law the position of a sister of a male proprietor without issue can-not be assimilated for purposes of inheritance to that of a daughter, and she must, therefore, in such matters be regarded as a sister of that proprietor and not as a daughter of his father. Clark C.J. who delivered the judgment of the Pull Bench referred to a number of cases in which a different view had been taken and also to the particular canon governing succession mentioned above, but did not follow them. His observations on the point may be quoted with advantage:
On an independent consideration of the subject itself we are unable to agree with the views adopted in those judgments. Mt. Jaidevi v. Harnam Singh 117 P.R. 1888; Gaman v. Mt. Aman 171 P.R. 1888 and Mt. Desi v. Lehna Singh, 46 P.R. 1891 (F.B.), were relied upon as showing that widows succeeded not as mothers of their deceased sons, but as widows of their sons' fathers, on the principle that when a line dies out it is treated as if it never existed.
In these oases this principle was used to explain why women should lose their life estates by remarriage, which they could not have done If they had succeeded as mothers, but we are asked now to extend this principle, and mate it a governing principle, which should of itself regulate the law of succession.
We do not think that a principle of this kind can be followed up to all its logical conclusions. If it were, absurd results would follow, a paternal aunt and a grand-paternal aunt would in this case be in the same position as daughters.
A principle that would lead to such absurd conclusion cannot be a sound principle to follow to its ultimate conclusion.
In no system of law that we are aware of are the claims of daughters and sisters placed on the same footing, and we cannot imagine that the agriculturists of this province by a subtle train of reasoning would ever have put them on the same footing.
With these remarks I respectfully agree. Admittedly, Chanda succeeded to the land left by his father Dipa on the latter's death and succession to the land on Mt. Attri's death should be traced to him and not to Dipa. It is true that Mt. Attri was Dipa's widow but she was also Chanda's mother and according to Customary law she, could succeed Chanda in her own right. Viewed in this light, Mt. Harnam Kaur being the sister's daughter of Chanda was not one of the heirs and must give place to hia collaterals.
8. Coming now to the plaintiff's appeal: The finding of the Courts below that Karam Singh has not been heard of for more than seven years and he should consequently be regarded as civilly dead has not been challenged before us. The question is when Karam Singh should be taken to have died. If he died during the lifetime of Dipa his share no doubt devolved upon Dipa and after him upon Chanda, and as in the case of Dipa's own share, Ratna would succeed to it in preference to Mt. Harnam Kaur. If Karam Singh's death took place after Dipa, we would then have to find out whether it was during Chanda's life-time or after, because if former was the case Ratna would supersede Mt. Harnam Kaur but not otherwise. The plaintiff has ad-duced evidence, and this evidence has been believed by the Courts below, that Karam Singh has not been heard of for many years.
9. According to Section 108, Evidence Act, this only raises the presumption regarding death but not about the time of death which must be proved by other evidence. In this connexion I invite reference to a' Bench decision of this Court in R.S.A. 743 of 1947, to which I was a party. It was held in that case that Section 108 has nothing to do with the time of death of a person and when a plaintiff comes to Court on the allegation that the person to whose property he wishes to succeed died on a particular date, it is for him to establish this fact. It was also pointed out in that case that the law laid down in Section 108 is based upon the well-known English case Be Phene's Trusts (1870) 5 Ch. A. 139 in which it was held that if a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that 'fact is essential. In the present case, since the plaintiff lays claim to the share of Karam Singh the onus lay upon him to prove that Karam Singh died after Dipa but during the life-time of Chanda, with the result that Chanda succeeded to him, and he being the collateral of Chanda had the right to succeed to that land in preference to Mt. Harnam Kaur. In this he has signally failed. Mr. Dev Raj Sawbney argued that the reason why his client did not prove the date of Karam Singh's death was that the point was not put in issue and he did not feel called upon to adduce any evidence thereon and he urged that the case should be remanded for this purpose.
10. In my judgment, there is no force in this contention because the plaintiff came to Court with the allegation that he was entitled to succeed to the land both of Dipa and Karam Singh and in order that Karam Singh's land should devolve upon him it was for him to establish that Chanda succeeded to it. Moreover, it appears that these objections were not taken by the plaintiff's counsel before the learned Single Judge and taking into consideration the evidence that is already on record I am inclined to think that it is not possible for the plaintiff to prove that Karam Singh died after Dipa's death but during Chanda's life-time and the remand is not likely to serve any useful purpose.
11. Last of all, it was urged by Mr. Dev Raj Sawhney that even if Karam Singh be taken to have died after Chanda, so far as his share of the land is concerned, the plaintiff who is his collateral has a better right to succeed to it than Mt. Harnam Kaur. Had no other heir of Karam Singh been in existence than the plaintiff and Mt. Harnam Kaur there would have been some force in what Mr. Sawhney urged but as the matters stood there was Mt. Attri, who may be assumed to have succeeded to Karam Singh's share, and it is now wellsettled that when a widow succeeds collaterally in her husband's family she does so as a representative of her husband and consequently on her death the property devolves upon her husband's heirs and not the heirs of the person to whom she succeeded. Reference in this connexion is invited inter alia to two Pull Bench decisions of the Lahore High Court in Chiragh Din and Ors v. Ujaggar Singh and Ors. A.I.R. 1946 Lah. 16 and Surain Singh and Ors. v. Ujjagar Singh A.I.R. 1946 Lah. 394. Applying this principle to the present case succession must be traced to Dipa, husband of Mt. Attri, and Mt. Harnam Kaur, Dipa's daughter's daughter, must be preferred to Ratna who is a collateral in the fourth degree.
12. The result, in my opinion, is that both appeals must stand dismissed with costs.
I agree that both appeals must be dismissed with costs.