D.K. Mahajan, J.
1. This second appeal if directed against the decision of the Additional District Judge, Ludhiana, reversing, on appeal, the decision of the trial Court decreeing the plaintiff's suit.
2. In order to appreciate the controversy in the present second appeal, it is necessary to set out a short genealogical tree of the parties:
= Mst. Premo (Died on 12-8-1931)
= Mst. BhanKaur, mother of Mehnga (Died on 28-9-1953.)
Mehnga was the last male-holder of the land in dispute.
He died in the year 1918. His land was mutated in the name of his widow, Mst. Kishno on 25th of December, 1918 (Mutation Ex. P-4). It is clear that at the time of mutation, both Mst. Premo and Mst. Bhan Kaur laid claim to Mehnga Singh's estate; whereas Mst. Kishno stated that she was the sole heir. However, the mutation was ultimately sanctioned in favour of Mst. Kishno to the exclusion of Mst. Premo and Mst. Bhan Kaur. It may also be mentioned that Mst. Kishno had stated, during the course of mutation proceedings, that these widows Mst. Bhan Kaur and Mst. Premo were living with her and were entitled to maintenance. An appeal by both these widows against the mutation order failed. It appears mat both Mst. Premo and Mst. Bhan Kaur were not satisfied with the mutation order. Exhibit P-4, and either they levied a threat of litigation or there was some sort of arrangement with Mst. Kishno, the result being that mutation Exhibit P-2, was sanctioned on 2nd of March, 1919. By this mutation, the entir' land of Mehnga was shown to belong to Mst. Premo, Mst. Bhan Kaur and Mst. Kishno in equal shares on account of succession.
Mst. Premo was the first to die and on her death, one-third land of Mehnga was mutated in equal shares in favour of Mst. Bhan Kaur and Mst. Kishno. The next to follow suit was Mst. Bhan Kaur. On her death, the mutation has been sanctioned in the name of Mst. Kishno; and this has led to the present suit by Mst. Partap Kaur, daughter of Mst. Bhan Kaur. She claims the property held by Mst. Bhan Kaur or, in other words, half of the estate of Mehnga, on the basis of a will executed by Mst. Bhan Kaur in her favour. The will was executed on 29th August, 1953 and Mst. Bhan Kaur died on 28th September, 1953. Various pleas taken by the parties are apparent from the following issues that were struck in the case:--
'(1) Did Bhan Kaur deceased make a valid will in favour of the plaintiff?
(2) Can the defendant No. 1 challenge the legality of the will?
(3) If issue No. (1) is not proved, is the plaintiff entitled to succeed to the land in suit as an heir?
(5) Whether Shrimati Kishno made a valid gift of the two-thirds share of the land inherit-ed by her from her husband in favour of Bhan Kaur and Premo at alleged?
(6) Whether Bhan Kaur and Premo became owners of the land in suit by adverse possession? And
(7) If Issue No. (6) is proved, can defendant No. 1 challenge the validity of the gift?
The trial Court held that Mst. Bhan Kaur had made a valid will in favour of the plaintiff. It was also held that the defendant could not challenge the validity of the will, as he was not a heir to Mst. Bhan Kaur. In view of the decision on issue No. (1), issue No. (8) was not decided. Issue No. (5) was decided, against the plaintiff and it was held 'that Mst. Kishno did not make any valid gift of the two-third of the land inherited by her from her husband in favour of Mst. Bhan Kaur and Mst. Premo.' On issue No. (6), it was held that Mst. Bhan Kaur and Mst. Premo had become full ownen of the land in suit held by them by adverse possession. Issue No. (7) was not decided in view of the decision on issue No. (5).
Against this decision, Mst. Kishno preferred an appeal. The lower appellate Court has allowed the appeal and reversed the decision of the trial Court. It has found that Mst. Premo and Mst. Bhan Kaur have not become owners by adverse possession. It has further been found that Mst. Bhan Kaur and Mst. Premo got the two-thirds of the estate of Mehnga by way of an arrangement with Mst. Kishno and as such, their possession was permissive and could not be adverse. It has further been held that if Mst. Bhan Kaur and Mst. Premo got into possession of the estate of Mehnga, they merely prescribed a life estate in it and not a full estate; and as Mst. Bhan Kaur was a limited owner her interest in land would come to an end with her death and she could not make a testamentary disposition of the property which was to take effect after her death. It is against this decision that the present second appeal has been preferred by Mst. Par-tap Kaur.
3. The first contention of Mr. Daljit Singh, learned counsel for the appellant is that Mst. Bhan Kaur and Mst. Premo had no right to succeed to the estate of Mehnga in the presence of his widow and, therefore, when they got the property, to which they were not entitled, they have become absolute owners of the same by prescription and, therefore, the property would go to their respective heirs. This contention is really devoid or force. There is no justification for the assumption that Mst. Bhan Kaur was not entitled to succeed to Mehnga. Though there seems to be considerable force in the suggestion of the learned counsel that Mst. Premo was not entitled to succeed, but the fact remains that Mst. Premo asserted that she was an heir to Mehnga and seems to have been allowed to take possession of one-third of his estate on that basis.
Therefore, it cannot be said that she pres-cribed an absolute estate to the extent of one-third share left by Mehnga. So far as Mst. Bhan Kaur is concerned, under the Customary Law, she was entitled to succeed equally with Mst. Kishno. In this connection, reference may be made to the Customary Law by Dunnett, Vol. V, p. 70--Question and Answer 39. It is stated therein that the custom of tribes undoubtedly is that the widowed mother, wife and daughter-in-law succeed jointly and in equal shares. This statement of custom does not stand by itself alone but is supported by as many as 12 instances All these instances are of jagraon tehsil to which the parties belong ana are collated at p. 71. They start from No. 23 and end on p. 72 at No. 34.
As a matter of fact, there are instances of other tehsils of this district where this custom has been repeatedly recognised and it appears to me that the universal custom in Ludhiana district is that, among the Jats. the widow and mother of the last male-holder succeed equally, in any event, in the present case, all the three succeed together, as is clear from Exhibit P-2. Therefore, on the death of Mst. Premo, by the rule of survivorship, the other two got her estate in equal shares. It similarly Follows that on the death of Mst. Bhan Kaur, her estate would go to Mst. Kishno by the rule of survivor ship. In this view of the matter, Mst Bhan Kaur will not come into the picture at all and would have no right to make a will of that estate.
4. The matter can be viewed from another aspect also. Mst. Bhan Kaur succeeded as the I mother of Mehnga and got one-half of the property which she was, under the customary law, entitled to. on the death of her son, Mehnga, in presence of his widow. Mst. Kishno, who was entitled to the other half; and on her death, the succession will have to be traced either from Mehnga or from Puran, her husband. If the succession is traced from Mehnga, his widow would be the preferential heir. If the succession is traced from Puran, then the pre-deceased son's widow, that is, Puran's widow will be the preferential heir. So far as the pre-deceased son's widow is concerned, the custom in Ludhiana district again seems to be well settled. Question and Answer 36 of Dun-nett's Customarv Law p 69, is in the following terms:--
' Question 36.--Where a deceased leaves sons and also sons of deceased sons, are the latter entitled to a share as well as the former?
Answer.--There is no question about this. The right of succession by representation is established and admitted among all tribes. It extends to the recognition of daughters-in-law and grand-daughters-in-law in presence of sons. In this respect, all Muhammadans disregard the Shara. The custom is so well established (it has also the sanction of 91, Punjab Record, 1879) that I need not quote examples beyond instances where grand-daughters-in-law succeeded.'
It clearly lays down that a pre-deceased son's widow is entitled to succeed equally with the son and the basis of the rule is the doctrine of representation. Therefore, in presence of the widow of Mehnga, even if the succession is to be traced from Mst. Bhan Kaur's husband Puran, Mst. Kishno would be the preferential heir as compared to Mst. Bhan Kaur's daughter.
5. Mr Daljit Singh Chehal. learned counsel for the appellant, has drawn my attention to the decision in Mst. Kirpal Kaur v. Bachan Singh, AIR 1958 SC 199, for his contention that so far as the land held by Mst. Partap Kaur, that is one-third of the estate of Mehnga, is concerned, that estate had become the absolute property of Mst. Premo and for this proposition, he relies on the aforesaid decision. In ray opinion, this decision does not help the learned counsel because, in the present case, Mst. Premo got the property on the basis that she was the heir of Mehnga. In other words, claiming merely the widow's estate, as represented her husband Sarmukh Singh. In Mst. Kirpal Kaur's case, their Lordships did not doubt the correctness of the decision of the Privy Council in Lajwanti v. Safa Chand, (1924) ILR 5 Lah 192 = (AIR 1924 PC 121), wherein their Lordships laid down the following proposition:--
' It was then argued that the widows could only possess for themselves; that the last widow Devi would then acquire a personal title; and that the respondents and not the plaintiff were the heirs of Devi. This is quite to misunderstand the nature of the widow's possession. The Hindu widow, as often pointed out, is not a life renter but has a widow's estate, that is to say, a widow's estate in her deceased husband's estate. If possessing as widow she possesses adversely to anyone as to certain parcels, she does not acquire the parcels as stridhan but she makes them good to her husband's estate. The result is the mauzas art Jawahar Mal's estate, the respondents having no title to attack them, and as such the plaintiff is entitled as heir to her father to take them.'
It is only in those cases, where a female heir takes possession of property without any right and without representing anybody, that she will hold absolutely, as held by Supreme Court, in Mst. Kirpal Kaur's case, AIR 1958 SC 199. In my opinion, the present case is governed by the decision in Lajwanti's case, (1924) ILR 5 Lah 192 = (AIR 1924 PC 121).
6. I do not, however, agree with the decision of the lower appellate Court that Mst. Bhan Kaur and Mst. Premo got the estate by way of maintenance, as Mr. Chawla contends; or that they got the estate on account of good grace on the part of Mst. Kishno and, therefore, their possession was merely permissive possession. I have already shown that, so far as Mst. Bhan Kaur is concerned, she was, in law, entitled to the estate for she was entitled to succeed equally with Mst. Kishno. Mehnga's widow, being the mother of Mehnga. So far as Mst Premo is concerned, undoubtedly she got the property without any right; but she based her claim to the property as an heir of Mehnga and. In any event, her possession will be of no consequence because, on her death, the property has gone half and half to Mst. Kishno and Mst. Bhan Kaur. Mst. Bhan Kaur's daughter is not in the line of heirs to Mst. Premo or to Sarmukh Singh, particularly, in the presence of Mst. Kishno, the widow of Mehnga.
7. For the reasons recorded above, this appeal fails and is dismissed; but the parties are left to bear their own costs throughout.
8. An oral request made by the learned counsel for the appellant for a certificate for leave to appeal under Clause 10 of the Letters Patent, is declined.