1. This is a Letters Patent appeal against a judgment of Achhru Ram, J. dated 25th February 1947 affirming a decision of the Senior Subordinate Judge, Kangra, in a suit for declaration that the plaintiff is the owner in possession of the land in suit.
2. The facts are that one Suba, Rajput, of Saproh in the Tehsil of Hamirpur (Kangra District) was the last owner of the suit land. He was succeeded by his widow Mt. Basanti who died on 26th November 1940 leaving her surviving a daughter, Mt. Patto. Before the mutation could be sanctioned in her name she also died on 10th July 1941. Before her death on 3rd July 1941 she, however, executed a will in respect of this land in favour of the plaintiff. The Revenue Authorities entered mutation of the land in favour of the defendant Raja Rajindar Chand of Nadaun who is ala malik in the village where the land is situate. This village is a jagir village of the Raja of Nadaun. As a result of this mutation, Kishen Ditta, the legatee under the will, instituted the suit out of which this appeal arises, alleging that Mt. Patto had a full estate under custom and, therefore, on the basis of the will made by her he was owner in possession of the land in dispute and that the mutation in favour of the Raja was invalid. He claimed a declaration to the effect that he was in possession of the land in dispute as its owner and rightfully entitled to it under the will of Mfc. Patto. It was further alleged by him that in the presence of one Hakim who was the husband's brother of Mt. Patto the ala malik could not claim the estate and that he was entitled to remain in possession and could not be ousted by anyone else excepting the true owner.
4. The defence to the suit was that the plaintiff was not in possession of the land in dispute, that Mt. Basanti got the land in suit as a life estate and that Mt. Patto was not at all an heir to the estate of Suba, and in any case the will made by her was void because even if Mt. Patto was an heir to Suba's estate she could only hold it for life and had no power to will it away. It was contended that after the death of Mt. Basanti the defendant as ala malik was entitled to the land. These pleadings gave rise to four issues.
1. Whether Mt, Patto was absolute owner of the land in suit?
2. Did Mt. Patto execute a valid will in favour ot the plaintiff and was she entitled to do so?
3. Whether Hakim, a nearer reversioner of Mt, Patto, is alive, and what is its efiect?
4. Is the plaintiff in possession of the suit land and what is its effect?
The trial Judge found on all these issues in favour of the plaintiff and decreed his suit. On appeal as well as on second appeal, this decision was upheld. The learned Single Judge, however, thought that this was a fit case for a Letters Patent appeal.
4. The first contention raised on behalf of the appellant, the Eaja of Nadaun, was that Mt. Patto was not an heir to the estate of Suba in preference to the ala malik and that being so, the plaintiff who had derived his title from her could not be declared'to be the owner of the land in dispute. This contention was supported on the basis of an entry in the riwaj-i-am of the Hamirpur Tehsil prepared in the settlement of 1918-19, vide Ex. D. 14. This entry recites the answer to question No. 54 of the Rajput tribes residing in the Hamirpur Tehsil. The question was put in these terms:
Q. If a person dies without male descendants and without leaving hirn surviving a widow, daughter, br daughter's descendants', in that case who is the next heir to him?
The answer was given thus:
A. If a person dies without leaving male lineal descendants or male agnates or without leaving him surviving a widow, then in case of jagir villages in presence of the daughter or her issue and even in her absence Jagirdar inherits the property. In khalsa villages if there is no daughter or the descendants of a daughter, sister or descendants of a siBter, then the property escheats to the Government.
5. If this answer correctly represents the custom in the Kangra District then the contention raised on behalf of the appellant has considerable force. Reliance was also placed on Ex. D. 13, the wajib-ul-arz of the village to which the deceased Suba belonged. The wajib-ul-arz states that if a person dies without leaving near or remote heirs then the property escheats to the Raja. I do not think that this entry helps the case of either party because it does not mention the list of heirs who are included in the phrase 'Qaribi ya door Ka waris' (near or remote heirs). The question to decide is whether the riwaj-i-am entry, Ex. D. 14, represents the true custom of the tribes residing in the Hamirpur Tehsil of the Kangra District on this point. It appears that though separate riwaj i-ams were prepared for each Tehsil in the Kangra District they were eventually consolidated by the Settle, ment Officer, Mr. Middleton in his English Edition of the riwaj-i-am and mention has been made regarding each Tehsil separately wherever it was considered necessary while stating the answers of the tribes on a particular question put to them. Question No. 54 in the printed riwaj-i-am prepared by Mr. Middleton for the district is in identical terms with the question-that was put to the tribes residing in the Hamirpur Tehsil. The answer to this question, however, has been differently stated by Mr. Middleton in his book than it has been stated in Ex. D. 14. This answer is in these terms:
Answer.-The order of succession is generally stated to be--
(1) donees by will; (2) collaterals according to their relationship; (3) persons from whom the deceased had received the land in gift;
(4) ala maliks ;
(5) descendants of the founders of the Tika.
The widows of brothers and others as well as mothers have been left out owing to the limited nature of their right. They do succeed as shown elsewhere, but to a life-estate only.
Brothers and their descendants would naturally come first. Those that are dead will be represented by their widows, and after brothers, etc, would come the mother. Donees by will will succeed only if the reversionary heirs do not assert their right to challenge the alienation of ancestral property.
Underneath the answer instances have been given of all the Tehsils. This answer by itself is not very satisfactory as donees by will cannot be put in the list of heirs under the law of sue-cession. The ala malik can also not be regarded as an heir because the property goes to him by escheat. Be that as it may, the answer to this question as contained in the published riwaj-i-am of the District as well as contained in Ex. D-14 is the same to the extent that daughter is regarded as a preferential heir to the ala malik. As regards the Jagir villages the answer that is contained in Ex. D-14 has been translated in the answer to question No. 49 of the published riwaj-i-am of the district. In this it is stated that in Jagir villages daughters are not allowed to succeed at all. It is, therefore, clear that what has been stated in Ex. D-14, in answer to question No. 54 put to) the tribes in the Hamirpur Tehsil is contained j in the answers to questions Nos. 54 and 49 in the! printed edition of the riwaj-i-am prepared by Mr. Middleton. Mention has been made of all' the Tehsils including Hamirpur in the illustrations appended to question No. 49. The answers to both these questions Nos. 54 and 49 were considered by a Division Bench of the Lahore High Court in Narendar Chand v. Tarapat A.I.R. 1935 Lah. 513 and it was held that the Raja had failed to prove that by the custom prevailing in Tehsil Hamirpur of the Kangra District, on the death of an adna malik without male issue, the ala malik succeeds in preference to a daughter. As regards the last sentence in the reply to question No. 49 wherein it was stated that the daughter is no heir in the Jagir villages the learned Judges made the following; observations:
It may also be mentioned that the last sentence in: the reply to question No. 49 occurs for the first time in. the Customary Law comptled in 1914-18. In view of he fact that adna maliks refused to sign the tvajib-ul-arz which contained a provision of a similar nature, it appears to me that this sentence crept in at the instance oi the Raja or his agents and was not the opinion expressed by the adna maliks. This is apart from the tact that the proper reply to consider in the present case is that given to question No. 34.
With great respect, I am in entire agreement with the observations made above. It may also be observed that in the Jagir villages in two instances the Raja claimed to succeed in preference to a daughter and failed. These were cited in this case. One of these took place in August 1905 and the other in May 1922. The Raja was unable to show a single instance in which he had succeeded in preference to'' daughters in Jagir villages. The decision in Baja Narendar Chand's case A.I.R. (22) 1935 Lah. 513 was given in the year 1934 by the Letters Patent Bench though the case had started in the year 1928. The claim of the Raja failed in all the Courts upto the Letters Patent Bench. This is a very strong judicial instance against the entries in the riwaj-i-am relied upon by the learned Counsel for the appellant. It must, therefore, be held that the entry in the riwaj-i-am of the Hamirpur Tehsil as contained in Ex. D-14 about the Jagir villages and last sentence of the answer to question No. 49 in the printed riwaj-i-am does not represent truly the custom of the tribes residing in the Hamirpur Tehsil or in the Jagir villages of that Tehsil. Such an entry obviously could not have been made at the instance of the adna maliks or of anyone representing them. So far as daughters are concerned, they would never have been represented before the Settlement Officer. Be that as it may, Raja Narendar Chand's case A.I.R. (22) 1935 Lah. 513 certainly settles the custom in favour of the daughters in Jagir villages, and after a lapse of twenty years it is not possible to hold that the custom is different than was laid down in that decision. No fresh material by way of instances or illustrations has been placed on this record. For the reasons given, I affirm the decision of the Courts below and of the learned Single Judge to the effect that the appellant's |contention that in Jagir villages daughters are jno heirs in preference to the aid malik cannot be sustained. The first contention of the learned Counsel is, therefore, repelled.
6. It was next contended that the learned Single Judge and the Courts below have erred in holding that whenever a daughter succeeds as an heir under custom she gets an absolute estate in the property so inherited. Reliance has been placed in support of the absolute estate of the daughter whenever she succeeds as an heir on the entry in the riwaj-i-am of the Hamirpur Tehsil prepared in the same settlement and which gives a reply to question No. 52 put to the tribes. This is Ex. P-4 on the present record. The question and answer were in these terms:
Q. State the rights of a daughter in the property which she inherits. Can she make a sale, gift, mortgage or will in respect of this property 1
A. Whatever inheritance the daughter gets, in this she had all rights of alienation. She can sell it, gift it, mortgage it or can will it away.
The Courts below as well as the learned Single Judge were of the opinion that this answer states the special custom of the Rajputs of the Hamirpur Tehsil and the custom having been stated in favour of females who are seldom represented before the Settlement Officer was a strong piece of evidence in support of that custom and that even though the custom was of a very exceptional character a presumption arose in its favour in view of this entry in the riwaj-i-am unless it was rebutted, and that from the circumstance that the general custom was against it or that the answer was also repugnant to Hindu law it oould not be held that the presumption stood rebutted. In my judgment, it is not possible to support this view of the learned Single Judge and of the two Courts below. Question No. 52 put to the tribes of the Hamirpur Tehsil is the same as question No. 52 of the published riwaj i am of the District by Mr. Middleton. The answer, however, as contained in the printed riwaj-i-am is different from the one that is recorded in Ex. P-4. This answer reads thus:
Where a daughter succeeds by inheritance she succeeds to a limited life-estate, but the relatives of her father do not control her acts. If she has children she succeeds as full owner for the only persons who control her acts are her children. Where unmariied daughters remain in possession they have no powers of alienation and can only retain possession until marriage.
Illustrations of Tehsil Hamirpur are cited underneath this answer and one instance of Saproh, the village of the parties, is also mentioned therein. It is obvious, therefore, that Mr. Middleton while preparing the final edition of this riwaj-iam for the district took into consideration the riwaj-i-ams prepared for the various Tehsils including the riwaj-i-am prepared for the Hamirpur Tehsil as stated in Ex. P. 4. It appears that he rejected the entry made in Ex. P-4 on the ground that it incorrectly stated the custom and he substituted for it the answer given in the printed riwaj-i-am above cited. If Mr. Middleton had not considered the Hamirpur Tehsil's riwaj-i-am in preparing his printed book the matter may have been different, but where a compiler of the riwaj-i-am has considered the answers given by the various tribes in different Tehsils and has not accepted them but has framed the answer after a consideration of the whole matter, differently, in that case reliance cannot be placed on the entries contained in the tehsil Iawaj-i-ams as they have been rejected by the officer whose duty it is to compile the riwaj-i-am. Answers contained in the printed riwaj-i-am of the district must, therefore, be given preference to any answers contained in the riwaj-i ams prepared for the tehsils which finally were incorporated in the district riwaji-am. So far as the answer given by Mr. Middleton's book is concerned, it definitely says that wherever a daughter succeeds, she succeeds to a limited life estate.
7. Though it has been said that where she has children she is full owner, this has been qualified further by the statement that her children control her acts. In other words, even when the daughter has children she has a limited estate till the inheritance passes to the children. The answer given to question No. 52 above cited is in accord with the general custom of the Province and also with the personal law of the parties, and, that being so, it is difficult to maintain the decision of the learned Single Judge and the two Courts below on the point that in the Hamirpur Tehsil whenever a daughter succeeds she gets an absolute estate which she can even give away by will. This view is further supported by the decision in Narendar Chanel v. Tarapat A.I.R. 1935 Lah. 513 cited above. In that case, the learned Judges clearly held that the daughter was a limited owner and as she had died it was unnecessary to consider whether the sale was for consideration and necessity. I cannot help observing that during the last thirty years this is one rare case where I have come across a decision from the Kangra District holding that in that district wherever a daughter succeeds she gets an absolute estate.
8. In my opinion, the person who re-corded the answer to question No. 52 in the Hamirpur Tehsil did not either accurately understand what the tribes stated or did not record the custom on the point correctly and it was for this reason that Mr. Middleton had to disregard the reply contained in Ex. P-4. I, therefore, hold that Mt. Patto had only a life interest in the land of her father that she got on the death of her mother Mt. Basanti and had no power to make a will of it in favour of the plaintiff and he cannot, therefore, on the foot of this will claim ownership of the land in dispute.
9. Though in view of my finding on the question of the nature of the estate held by Mt. Patto in the land in dispute, the appeal was bound to succeed, it, however, fails on a point that was not considered by the learned Single Judge. Under issue 3, the learned trial Judge held that Hakim, the brother of Mt. Patto'a husband, was the next heir to land held by her and that came to her by inheritance in view of the reply to question No. 53 of the riwaj.i-am and that he had actually inherited the rest of the landed property left by Mt. Patto excepting the land in dispute. The learned Judge further found on issue No. 4 that as the plaintiff was in possession of the suit land, on the basis of his possessory title, he is entitled to the declaration that he had asked for in the plaint as his possession could not be interfered with by anybody else excepting the true owner of the land, namely, Hakim. This decision of the trial Judge was affirmed on appeal by the Senior Subordinate Judge. The learned Single Judge, however, did not examine this matter. The learned Counsel for the respondent attempted to support the decision of the learned Single Judge on the basis of the findings given under issues 3 and 4 by the two Courts below. I am of the opinion that the position taken up by the learned Counsel is correct and he is entitled to defeat the defendant's appeal by reason of these findings provided they are sustained by us. After a careful consideration of this matter, I have reached the conclusion that both the Courts below were right in their decision that in the presence of Hakim the Raja had no right whatsover to the land last held by Mt. Patto. Question No. 53 of the riwaj-i-am is in these terms:
Question 63.--After daughters do daughters' sons succeed? Do their daughters also succeed? If so, is the property equally divided amongst all the sons of several daughters, or are the shares proportioned to the number of daughters who have sons?
If the daughter die without male issue who succeeds--her father's kin or her husband's?
Answer.--After daughters their sons succeed, and the property is equally divided among all the sons of several daughters, one share going to each daughter. The Mahajans of Nurpur and all the tribes of Dehra and Hamirpur Tahsils say that if the daughter dies without male issue her husband's kindred succeed, while the rest' of the tribes say that the father's kin succeed, but as a daughter generally inherits in the absence of collaterals her husband's relatives will naturally succeed. As the succession of daughters is not very common there seems to be no well-defined custom on this point.
Exhibit P-5 is the entry of the tehsil riwaj-i-am about question No. 53 and it states that if the daughter dies without male issue then her property descends to the relations of her husband. Hakim is the brother of Mt. Patto's husband and in view of the replies to question No, 53 as given in the Tehsil as well as the district riwaj-I-ams he is certainly entitled to the land in dispute, particularly in view of the fact that he has already inherited the rest of her land and the Baja has raised no objection to that inheritance. No instance to the contrary has been cited by the learned Counsel for the appellant. In the absence of the children of a daughter and collaterals of her father the property is bound to go to her husband's collaterals in preference to the ala malik. This custom is in accord again with the general custom of the Province and it is not repugnant to any provisions of the personal law. The result, therefore, is that the rightful heir to the land in dispute is Hakim and not the appellant. The plaintiff, however, is in possession of this land and cannot be ousted from it by anyone except the true owner, namely, Hakim. That being so, the two Courts below rightly held that on the basis of his possessory title he was entitled to the declaration claimed by him.
10. For the reasons given above, this appeal fails though on a ground different from the one on which it was dismissed by the learned Single Judge. In the circumstances of this case, I would make no order as to costs in this Court. The order of costs made by the learned Single Judge is not varied in any way.
Teja Singh, J.
I agree in the order proposed.