1. This is a plaintiffs' appeal against the judgment of a learned Single Judge dated the 5th April 1948, by which he allowed the appeal against the judgment of the Senior Subordinate Judge.
2. The facts which have given rise to this appeal are that Gurmej Kaur, widow of Vir Singh, on the 12th of November 1943 sold 5 Kanals 11 Marias of land to Jaswant Kaur for Rs. 2,000/-. This land consisted of four fields Nos. 432, 435, 453 and 426. On the 8th of July 1944, Gurbachan Singh and Harbhajan Singh who have been found to be ninth degree collaterals of Vir Singh brought a suit to contest this alienation on the ground of want of consideration and necessity. This suit was decreed by both the Courts and it was held that the land was not ancestral qua the plaintiffs but was ancestral of Vir Singh, and it was also held that out of the consideration of Rs. 2,000/-, Rs. 1,000/- was for necessity, and the trial Court and the Senior Subordinate Judge held that this amount shall remain a charge on the property. The suit was decreed and the sale was not- to affect the reversionary rights of the plaintiffs except to the extent indicated above.
3. The learned Single Judge held that the provisions of Section 6 of the Punjab Custom (Power of Contest) Act II of 1920 applied and as the plaintiffs were collaterals beyond five degrees they could not contest the alienation.
4. The question to be decided is what is the right of the plaintiffs in regard to this alienation. According to the general custom of the Punjab as given in paragraph 64 of Rattigan's Digest of Customary Law all alienations made by a widow except when they are for necessity are challengeable by reversioners howsoever remote. Even the non-ancestral property which is held by a widow can be challenged by reversioners. At page 373 in Rattigan's Digest it is stated: 'The reversionary heirs of the last male holder are entitled to contest an alienation made by such female even if the property is not proved to be ancestral, i.e., it is not necessary, in such circumstances, to prove that the property was held by the common ancestor (see 1927, 107 I C 489; 1935, 167 I C 693, and 1931, 133 I C 880).'
5. It is next submitted by counsel for the respondent that in Amritsar District the custom is different from what it is in other parts of the Punjab and reliance is placed on Question No. 52 of the Riwaj-i-am of 1940. Question No. 52 and the Answer thereto are given at pages 45, 46, 47 and 48 of the manual of Customary Law of 1940.
'Question (52) If the estate devolves upon the widow, define her interest therein. What rights has the widow to alienate by sale, gift, mortgage or bequest?
(i) Are there any special circumstances or expenses on account of which alienation is permissible? If so, what are these? (ii) Is there any distinction in respect of movable or immovable, ancestral or acquired property, or in respect of alienation to the kindred of the deceased husband?
(iii) Supposing alienation to be permissible, whose consent is necessary to make it valid?
'Answer (52) A widow's interest has the nature of a life-estate. Her rights of alienation are restricted.
(i) She may mortgage but not sell, gift, or bequeath, for necessity and only so much of the estate as is required to satisfy that necessity. Recognised necessities are the performance of rites connected with the husband's death, children's nurture and marriages, sickness, deceased husband's debts, land revenue. (ii) There is no restriction on the alienation of movable property. Alienation of ancestral immovable property is permissible only to the extent shown in (i) above. Alienation of immovable property acquired by the husband is permissible to the same extent as he could have alienated it. It makes no difference in any of these cases whether or no the alienee is related to the deceased husband. (iii) Where alienation is permissible no consent is necessary to make it valid.'
6. According to this a widow has full power of alienation only with regard to that movable property which was acquired by her husband and her powers are the same in regard to such property. This question and answer to it do not deal with property which was inherited by the husband from his ancestors. At page 4 of the introduction to this Riwaj-i-am the author states:
'I need not embark on a discussion of the weight of customary law or indicate the directions in which statute has narrowed its range. Judicial officers will never lack abundance of arguments on such points from the Bar. Nor do I propose to recapitulate even in outline the customs which the answers in this volume bring out. I shall conclude this introduction by indicating as briefly as possible where custom has changed, or at least is differently stated, in the quarter century which has passed since it was last recorded.'
7. With regard to question No. 52 of the present Hiwaj-i-am and No. 55 in the old Riwaj-i-am of 1914 the author says: 'Even for necessity the only form of alienation of immoveable property permitted to a widow is mortgage. There is no restriction on her alienation of moveable property'. The answer given at page 48 to question 52 (ii) does not therefore seem to be correct. Quite recently in a judgment of the Supreme Court in -- 'Gokal Chand v. Parvin Kumari', A. I. R. 1952 S. C. 231 their Lordships have stated the value to be placed on manuals of customary law as well as on the opinion of the authors of such digests. In the old Riwaj-i-am of 1914 in answer to question No. 55 it was stated:
'All the tribes are agreed that the widow cannot alienate by gift or will. As to her right to sell or mortgage, no such alienation is permitted except for necessity and no distinction is made between ancestral or acquired property or in respect of alienation to the kindred of the deceased husband'. Then the items which give the various kinds of necessary purposes are given. Mr. Justice Mahajan when he was a Judge of this Court had occasion to deal with this question No. 52 and the learned Judge observed in -- 'Chet Singh v. Rur Singh', AIR 1949 E. P. 209:
'I can, therefore, safely presume that the answer to question No. 52 of the Riwaj-i-am of the Amritsar District prepared in the year 1940 so far as it states that widows have absolute powers of alienation in the self-acquired property of their husbands is not a true statement of the existing custom but is only a statement of persons who appeared before the Settlement Officer and who 'wished that this should be the custom hereinafter'.
8. I am therefore of the opinion that the plaintiffs had locus standi to challenge the alienation and that according to general custom as well as the custom of Amritsar District a widow could not alienate the property except for necessitv. and that the answer to question 52 in the Riwaj-i-am of 1940 is not a correct statement of custom of the District. This appeal must therefore succeed and the suit of the plaintiffs will be decreed to this extent that the alienation will not bind their reversionary rights except to the extent of a charge of R.s. 1,000/-. The plaintiffs will have their costs in this Court and in the Courts below.
9. SONI J.: There is no ground for supposing that a widow who holds a life-interest under custom has any wider powers of alienation than those of a widow who holds a similar estate under Hindu Law. Under Hindu Law, a widow has no power to alienate property even in the absence of blood relations except for necessary purposes. Mulla in his book on Hindu law says as follows in Section 176 at page 168 (1946, 10th Edition) :
'The restrictions on a widow's power of alienation are inseparable from her estate, and their existence does not depend on that of heirs capable of taking on her death. If, for want of heirs, the right to the property passes to the Crown, the Crown has the same power that an heir would have of protecting its interests by impeaching any unauthorized alienation'.
10. The fact that the plaintiffs were collaterals ofthe ninth degree is an irrelevant consideration.It is expressly provided is Section 5, Punjab Custom(Power to Contest) Act, II of 1920 on whichplaintiffs placed their reliance that nothing inthe Act applied to any alienation by a female.Any person having an interest in the successionis entitled to impeach her alienation. Thequestion in the present suit really was whatwere the powers of the widow regarding heralienation. Those powers as observed by mylearned brother were extremely limited. I concur in the order proposed to be made by him.