1. This is an appeal against the judgment and decree of Mr. Sansar Chand Bhandari, District Judge, Hoshiarpur, dated 1-12-1948 allowing an appeal against the decree of the trial Court which had dismissed the plaintiff's suit.
2. In order to understand the case it is necessary to refer to the pedigree-table.
| | |
Attar Singh = Mt. Radbi Bhana (died issueless) Rall(sic) = Mt Hukam
| | (deft. 2)
| Gurditta Ram (alleged
_______|_________________ adopted son)
Ch. Gurditta Ram Sundar Ram = Mt Ram Kuar
(deft. 1) (deceased) (plaintiff)
Chaudhri Gurditta Ram is alleged to have been adopted by Bhana, his uncle (Father's Brother). Ram Kaur plaintiff is the widow of Sundar Ram, a predeceased son of Attar Singh. On the death of Attar Singh disputes arose as to succession to his estate between Gurditta Ram and Ram Kaur, the widow of the predeceased brother. Ram Kaur brought a suit for possession claiming that she was entitled to the estate of Attar Singh because Gurditta Ram had been adopted by Bhana and had therefore lost his right of succession to the estate left by his natural father and in the alternative she claimed the land in lieu of maintenance. The parties are Sainis and are governed by custom of the Hoshiarpur District.
3. The trial Court held that Gurditta Ram had not been adopted and that Ram Kaur was the widow of a predeceased son and therefore she was entitled only to maintenance and Gurditta Ram was entitled to exclude her and succeed to the estate of his father Attar Singh. On appeal the District Judge found that Bhana had not only made a will in favour of Gurditta Ram but had also adopted him, that according to the custom of Sainis of this district a widow of a predeceased son had the right to succeed to her father-in-law's estate and that as Gurditta Ram had been adopted in another family he could not succeed in his natural family and therefore Ram Kaur was entitled to the whole of the estate left by Attar Singh.
4. According to Question 49 of the Riwaj-i-Am of Hoshiarpur District of the year 1914 when a man dies without male lineal descendants his estate goes in the first instance to his father, and then to his brother and his descendants. Amongst Sainis like Gujars, Arjains, Chhanas and Brahmins the widow of a predeceased son succeeds along with the brothers of her deceased husband. In support of this there are four instances given at pages 134 and 135 of this Riwaj-i-Am which relate to Sainis. At page 92 there are several other instances given where the widow of a predeceased son had succeeded equally with the brothers of her husband. In 'Kanhya Singh v. Mt. Premi' 322 Pun L R 1913 which is a Bench decision of the Punjab Chief Court it was held, after considering a large number of instances, that amongst Sainis a daughter-in-law represents her husband for the purpose of inheritance to the estate of the father-in-law, and there is no doubt therefore that amongst the Sainis of Hoshiarpur a widow of a predeceased son has the right to inherit the estate which her husband would have inherited if he had been alive. But this does not settle the question now before me.
5. The finding by the first Court was that Gurditta Ram was not the adopted son of Bhana. The appellate Court, however, found otherwise. It does not seem to be necessary to adjudicate on the correctness of either of these two positions. Whether Gurditta Ram is the adopted son or he got the estate of Bhana by virtue merely of a will would not make any difference. According to the general custom of the Punjab as given in paragraph 48 of Rattigan's Digest of Customary Law an appointed son does not lose his right to succeed to property in his natural family as against his collaterals, but does not succeed in the presence of his natural brothers. No case is cited in the Rattigan's Digest and researches of counsel have not succeeded in discovering one nor do I know of any where in the presence of a widow of a predeceased brother a brother who has gone out by adoption has been excluded from Inheritance to his father's estate. So, even if Gurditta Ram is the adopted son of Bhana he cannot be excluded under custom from inheritance to the estate of his deceased natural father. He will have the right to inherit to the estate of Attar Singh, but Ram Kaur has under Question 36-A of the Riwaj-i-Am the right to succeed along with Gurditta Ram and is therefore entitled to half the share of the estate left by Attar Singh.
6. In the result, this appeal succeeds to the extent that Ram Kaur will be entitled to half the estate left by Attar Singh and the other half will be inherited by Gurditta Ram. I therefore allow this appeal to this extent and modify the decree leaving the parties to bear their own costs throughout.