1. Mt. Harnam Kaur, widow of Mangal Singh, mortgaged the suit land for Rs. 1300 in favour of Chet Singh defendant on 10th April 1944. Within a few months of the alienation, Rur Singh plaintiff sued to challenge the mortgage under custom. He alleged that he was a collateral of Mangal Singh, that the land in suit was his ancestral property and that in any case even if it was held that the land was the self-acquired property of Mangal Singh the widow had only a life estate and could not mortgage it without necessity.
2. The mortgagee denied the ancestral nature of the property and pleaded that the widow had an unrestricted power of alienation in respect of the self-acquired property of her husband. It was also said that the mortgage was for consideration and legal necessity.
3. The trial Judge held that the plaintiff being a collateral of Mangal Singh was entitled to challenge the alienation in dispute, that the land had not been proved to be ancestral of the plaintiff and Mangal Singh, that the widow was in possession of it as a limited owner and that the alienation had not been made for necessity. In the result the plaintiff was granted a decree declaring that the mortgage shall not affect his reversionary rights after the death of the widow. Against this decision an appeal was preferred to the Court of the Senior Subordinate Judge, Amritsar.
4. Before the learned Judge the finding of trial Court on the question of consideration and necessity for the mortgage was not challenged. No arguments were addressed on that point. The only point argued before the learned Judge was that the property being the self-acquired property of the husband the widow had an unrestricted power to alienate it. For this proposition reliance was placed on answer to question No. 52 of the Manual of Customary Law of the Amritsar District compiled during the settlement of 1940. The learned Judge held that this answer could not in any way affect the estate held by Mt. Harnam Kaur. When she succeeded to the property of her husband this riwaj-i-am was not in force and having taken the estate under the older riwaj-i-am which conferred on her a life estate she could not by reason of this answer be treated as an absolute owner of this property. The learned Judge further expressed the opinion that the answer to question No. 52 of the riwaj-i-am of 1940 being inconsistent with the rule of general custom on the point and there being no instances in support of it, could not be held to be stating correctly the rule of ancient custom on this point. The result was that the appeal was dismissed with costs.
5. In second appeal it was contended that the Courts below had failed to raise a presumption in support of the entry contained in the riwaj-i-am of 1940, and that on the basis of this entry in the absence of any rebuttal it should have been held that the alien or had an absolute estate in the self-acquired property of her husband and, therefore, could effect a mortgage of it uncontrolled by her husband's reversioners. It is undoubtedly true that an entry contained in the riwaj-i-am of the district carries with it a presumption of correctness unless it is shown that it is not a record of the true custom and is either an expression of opinion of the people who appeared before the Settlement Officer or is otherwise of a kind that it appears that it has not been recorded with care. The earliest riwaj-i-am of the year 1865 prepared for this district gave no powers of alienation to widows even in the self-acquired property of their husbands. The same custom was repeated in the riwaj-i-am prepared by Sir Henry Craik in the settlement of 1910-11. The custom recorded in these riwaj-i-ams was in accordance with the rule of general custom laid down in Article 64 of Rattigan's Digest of Customary Law. It has been held by the Lahore High Court in a number of decisions that the estate of a widow under custom is analogous to her estate under Hindu law and is subject to the same restrictions as prevail under that law. In the property inherited by a widow from her husband she has a limited life estate and she can only alienate it for necessity. It is, therefore, obvious that the answer to question No. 52 of the riwaj-i-am prepared for the Amritsar District in the year 1940 is not only inconsistent with the custom as recorded in the earlier riwaj-i-ams of this district but is also contrary to the rule of general custom and of Hindu law on this point. No instances in support of this custom have been recorded in the riwaj.i-am and no evidence has been led in the present case in support of this entry.
6. In my opinion, this answer records a very extraordinary kind of custom and such a custom has not so far been found to prevail in this province. It seems to me that the persons who appeared before the Settlement Officer dictated the custom as they thought it should be in the future. It is an effort on the part of these persons to legislate rather than to state the existing custom. As pointed out by the learned Counsel for the appellant, a custom may grow in course of time and alter the prevailing custom, but this state of affairs can only come into existence if in a number of cases with the general consensus of the people governed by such custom instances occur where alienations are allowed by females in respect of the self-acquired property of their husbands. No such thing has happened in the present case. 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. For the reasons given, I agree with the learned Senior Sub-Judge in his decision that Mt. Harnam Kaur was not an absolute owner of the property in suit and as a limited owner she had not the power to effect a mortgage of it without necessity.
7. It was argued by the learned Counsel that the alienation had been proved to have been made for necessity. He contended that the statement contained in the judgment of the lower appellate Court to the effect that the learned Counsel appearing before it did not argue this matter, does not seem right. No affidavit has been produced in support of his contention. In law I am bound to presume, in the absence of any affidavit to the contrary by the counsel appearing before the learned Senior Sub-Judge that the statement contained in the judgment is correct. In these circumstances I cannot go into the question of the necessity for the mortgage in dispute.
8. An attempt was also made to argue that the plaintiff was not a collateral of Mangal Singh. That again is a matter which was not argued before the learned Senior Sub-Judge and I, therefore, cannot go into it. The result, therefore, is that this appeal fails and is dismissed with costs.