B.R. Tuli, J.
1. Smt. Gulab Kaur filed the suit on May 22, 1956. against Surjit Inder Singh, her grandson, for the recovery of Rs. 1,000/- per mensem, as maintenance allowance, or. in the alternative, for possession of half share of the property of her deceased husband, in forma pauperis. She alleged that her husband. S. Gobinder Singh Sibia, died on December 15, 1954, and at the time of his death, he owned and possessed considerable property, moveable and immovable, in the Districts of Sangrur, Patiala, Ludhiana and Simla. After his death, Surjit Inder Singh. defendant, took possession of his entire moveable and immovable property as his heir. S. Gobinder Singh had two wives, that is, the plaintiff and Smt. Dalip Kaur. The plaintiff was sonless while Smt. Dalip Kaur gave birth to one son, S. Gurbachan Singh, father of the defendant. S. Gurbachan Singh died during the lifetime of his father and. therefore, Surjit Inder Singh was entitled to inherit the property of his grandfather. He took possession of the entire property as owner and turned out the plaintiff from the house. She, therefore, claimed maintenance at the rate of Rs. 1,000/- per mensem or in the alternative, half of the property details of which were mentioned in the plaint. The suit was resisted by the defendant who admitted that the plaintiff was the widow of his grandfather. S. Gobinder Singh and also that he was in possession of the property described in the plaint, but denied that the plaintiff was ever turned out of the house by him. He pleaded that she had left her husband in his lifetime and had been living away from him for about 40 years before his death and thus she had forfeited all her rights to maintenance. It was also pleaded that the amount of maintenance claimed was excessive. On the pleadings of the parties, the learned District Judge framed the following issues on February 1, 1957:--
1. Whether the plaintiff is entitled to maintenance. If so, in what amount ?
2. Whether the plaintiff had deserted her husband and she is disentitled to claim maintenance on that score ?
3. Whether this Court has no jurisdiction to try and determine this suit During the trial of the suit, the defendant made an application dated August 20, 1957 and along with that produced a will dated November 26, 1945, alleged to have been executed by S. Gobinder Singh, with a prayer that he should be allowed to amend his written statement in the light of that will. The application was disallowed by the learned trial Judge, but in revision, this Court allowed the amendment prayed for on payment of costs. On the basis of the amended written statement, the following additional issues were framed on March 20, 1958:--
1. Whether S. Gobinder Singh executed a will dated 26th November, 1945
2. If Issue No. 1 is proved, whether S. Gobinder Singh executed the will with a sound disposing mind ?
3. If issues Nos. 1 and 2 are proved, whether the will was ineffective against the right of the plaintiff for maintenance and whether the right of maintenance of the plaintiff was a charge on the property of S. Gobinder Singh?
4. Whether the will is ineffective without the letters of probate having been taken out on the basis thereof
Another issue was added on July 9. 195S, as under:--
Whether the parties are governed by custom of the agriculturists of the Punjab and erstwhile Pepsu in the matters of maintenance. If so, whether the plaintiff is entitled to a share in the property of the defendant and to what extent? On June 25, 1958, Smt. Gulab Kaur moved an application for the amendment of the plaint so as to substitute her claim for the possession of half of the property in lieu of maintenance by one for possession of 1/2 share of the property as heir, but that application was rejected by the learned trial Court. The amendment was, however, allowed by this Court in revision. Consequently, the amended plaint was filed on March 4, 1959, in which it was prayed that 'a decree for declaration to the effect that the plaintiff is entitled to receive one thousand rupees per mensem, viz., Rs. 12,000/- per annum as maintenance allowance during her lifetime and in the alternative to a decree for possession of 1/2 share of the property of her deceased husband by way of inheritance qua the defendant, step grandson of the plaintiff according to general custom of Punjab and District Ludhiana, Tehsil Jagraon, and the same may be granted with costs against the defendant in favour of the plaintiff, or any other relief deemed expedient by the Court, may be granted.'
In the plaint it was alleged that the plaintiff had asked the defendant to agree to pay her Rs. 1,000/- per mensem as maintenance allowance during her lifetime or deliver the possession of 1/2 share of the property left by her husband, to her as his heir, but he had refused to do so. Written statement to the amended plaint was filed on March 6, 1959, Soon thereafter Smt. Gulab Kaur died on March 10, 1959, and her daughter Smt. Jaswant Kaur made an application for being brought on the record as her legal representative. That application was resisted by the defendant but was allowed by the learned Subordinate Judge 1st Class, Sangrur, on March 15, 1960. He, however, held that the right of the plaintiff to sue for possession of 1/2 share of the property of S. Gobinder Singh, as heir, survived and Smt. Jaswant Kaur was entitled to prosecute the same, but the suit with regard to maintenance allowance abated as that was a purely personal right of Smt Gulab Kaur, which died with her. The issues bearing on maintenance thus became redundant. Smt. Jaswant Kaur also made an application that she should be permitted to continue the suit in forma pauperis. This plea was resisted by the defendant, but was allowed by the learned trial Court by order dated August 9, 1962. Smt. Jaswant Kaur then filed replication to the written statement of the defendant on September 18, 1962. On October 1, 1962, the following additional issues were framed on the basis of the additional pleadings of the parties:--
1. Whether the deceased plaintiff was entitled to succeed to 1/2 share in the suit property ?
2. Whether the parties were governed by custom in matters of succession. If so, what was that custom ?
After trial, the suit of the plaintif, Smt Jaswant Kaur, was decreed for possession of the property in dispute to the extent of 1/2 share against Surjit Inder Singh, defendant, on June 29, 1964. Against that decree, the present appeal was filed by Surjit Inder Singh. During the pendency of the appeal, he died and his legal representatives have been brought on the record who have prosecuted the same.
2. The undisputed facts are that S. Gobinder Singh married Smt. Gulab Kaur and from that union Smt Jaswant Kaur was born. S. Gobinder Singh then married Dalip Kaur and from that union one daughter, Gurparkash Kaur and one son, Gurbachan Singh, were born. Gurbachan Singh died during the lifetime ofhis father leaving behind Surjit Inder Singh (son) and Smt. Palvinder Kaur (daughter). Surjit Inder Singh married Smt. Amrit Kaur daughter of S.B.S. Ranjit Singh and from their union, three sons were born, who along with Smt. Amrit Kaur are now appellants, being the legal representatives of Surjit Inder Singh.
3. S. Gobinder Singh died on December 15. 1954 and Smt. Gulab Kaur died on March 10, 1959. S. Gobinder Singh had shifted from District Ludhiana to District Sangrur and was governed by agricultural custom. The general custom is stated in paragraphs 16, 17 and 21 of Rattigan's Digest of Customary Law, which read as under:--
'16. In the presence of a male descendant of the deceased his widow is ordinarily only entitled to suitable maintenance, whether such descendant is the issue of the surviving widow or of another wife.
17. Such maintenance is a charge against the whole and every part of the husband's estate, and subject to the two succeeding paragraphs, is enforceable against the heir in possession, or those claiming under him.
21. The widow's right to maintenance is not dependant on residence with the husband's family.'
It is thus clear that under the general custom, Smt. Gulab Kaur was only entitled to maintenance and not to any part of the property left by her husband. According to the answer to question No. 32 recorded in the Riwaj-i-Am of Ludhiana District compiled in 1911, 'a widow with sons takes no share but a sonless widow in the presence of sons takes a share equal to that of each of the sons, though she is sometimes content with less.' Various instances of this custom have been reproduced in the Riwaj-i-Am. The plaintiff also produced some instances which are as under:--
1. Exhibit P.Q. is an order passed by Ch. Karam Ilahi, Naib Tehsildar, Jagraon, regarding mutation No. 925 of village Patehgarh Sibian, Tehsil Jagraon, District Ludhiana. It relates to the family of S. Gobinder Singh and it was held that Mst. Sham Kaur widow of Sher Singh was to inherit the property left by her husband, equally with his son Gurbakhsh Singh. Gurbakhsh Singh was the son of Sher Singh from the womb of Smt. Basant Kaur. It was thus held that Smt. Sham Kaur, the sonless widow, was entitled to inherit the property of her deceased husband along with the son of her co-widow.
2. Another instance is contained In Exhibit P. N., an extract from the Register of Mutations relating to village Fateh Garh Sibian. In that case, Ajmer Singh had two wives, from one of whom Devinder Singh and Rajinder Singh were born. The other wife was named Smt. Dalip Kaur and she was allowed 1/2 share in the property left by Aimer Singh, in accordance with the custom of Ludhiana District, mentioned above.
3. Still another instance concerns the estate of S. Rattan Singh. father of S. Gobinder Singh, grandfather of Surjit Inder Singh, which is mentioned in Exhibit P, 3. Rattan Singh had two sons, Gobinder Singh and Maneal Singh. His estate devolved upon the successors --Smt. Partap Kaur (first wife). 1/2 share and Mangal Singh and Gobinder Singh sons of Smt. Bishan Kaur (second wife), 1/2 share. On the death of Mangal Singh, Gobinder Singh and Smt. Partap Kaur succeeded equally to his estate. It is thus evident from these instances relating to the family of the parties that the sonless widow was entitled to succeed equally with the son or sons from the other wife of the deceased. On the basis of this custom, Smt. Gulab Kaur was entitled to succeed to 1/2 share of the property left by S. Gobinder Singh and Surjit Inder Singh was entitled to the other half. This would have been so if S. Gobinder Singh had died without making a will. In this case, however, Surjit Inder Singh has produced the will alleged to have been executed by S. Gobinder Singh and, therefore, it has to be decided whether it has been proved that this will was, in fact, executed by S. Gobinder Singh and was his last will and testament. If the will is proved to have been executed by S. Gobinder Singh, it could not be challenged by Smt. Gulab Kaur because under the Punjab Custom (Power to Contest) Act, 1920, only male descendants from the common ancestor within five degrees could have challenged the alienation made by a will and not any female heir. Smt. Gulab Kaur, being not a male lineal descendant of S. Gobinder Singh, could not challenge the will under that Act. If the will is proved to have been executed by S. Gobinder Singh, then the only claim that Smt. Gulab Kaur could make against the defendant, Surjit Inder Singh, was for maintenance, which could have been recovered from the property of S. Gobinder Singh in case Suriit Inder Singh did not pay the same. However, the claim of Smt. Gulab Kaur for maintenance, being a personal right, died with her on March 10, 1959, and Smt. Jaswant Kaur, her legal representative, could not claim that amount. The trial Court held that the claim to maintenance had abated with the death of Smt. Gulab Kaur andthat decision was not challenged by Smt. Jaswant Kaur and became final. For this reason, no decree for payment of maintenance was passed in this case nor can be passed in appeal as an alternative to the decree for the possession of one-half of the property left by S. Gobinder Singh.
4. In order to prove the will, the defendant produced Shri Prem Sarup, Deputy Secretary, Finance. Chandigarh, D.W. 1, who stated that S. Gobinder Singh was an old friend of his father and Raia Maheshinder Singh, son-in-law of S. Gobinder Singh was an old friend of his. He had been meeting S. Gobinder Singh at Simla whenever the witness happened to go to his brother who was a tenant of S. Gobinder Singh there. About 2 or 2 1/2 years before his death, S. Gobinder Singh had started a Co-operative Farming Society of which the witness was a member. He had seen S. Gobinder Singh writing and signing and could identify his writing and signatures. He and S. Gobinder Singh had been corresponding with each other. The signatures marked 'X' on the will Exhibit D-1, were of S. Gobinder Singh Sibia. He also identified the signatures of S. Gobinder Singh, marked 'Y' on the power of attorney Exhibit D. 2. He was cross-examined at considerable length, but no question was put to him with regard to the signatures of S. Gobinder Singh. Ramji Dass, an attesting witness of the power of attorney. Exhibit D. 2, appeared as D. W. 2, and stated that he retired as Headmaster of a High school after putting in 30 years' service. He had seen document. Exhibit D. 2, which was attested by him as a witness. He identified the signatures of S. Gobinder Singh on that document. Janki Dass appeared as D. W. 3, and stated that S. Gobinder Singh had executed registered deed Exhibit D. 2, for appointing him as his Mukhtar-i-Am. Shri R. S. Marya, Member of Public Service Commission, Patiala. D. W. 7, deposed that S. Gobinder Singh was well known to him because he had been his family doctor since 1924-25. Whenever S. Gobinder Singh was away from Patiala, he used to write to the witness for medical advice or on other matters. He had received numerous letters from S. Gobinder Singh. He was thus able to identify the signatures of S. Go-binder Singh and he stated that the signature marked 'X' on document Exhibit D. 1, was of S. Gobinder Singh. He also identified the signatures of S. Gobinder Singh, marked 'Y', 'Y/1' and 'Y/2' on registered deed. Exhibit D-2. He further stated that S. Gobinder Singh died at the age of above 70 years, and had been keeping good health all along. The cross-examination of this witness is not helpful on the point.
5. The attesting witnesses of the will, Shri Dinshaw H.M. Framjee and Shri Pali Ram, were examined on commission. Shri Framjee stated that he knew S. Gobinder Singh who brought to him a will to witness his signatures thereon, which be appended in his presence. He also admitted his own signatures on the will Exhibit D. 1 and stated that it was also attested by Shri Pali Ram. wh was his Manager then. The witness signed Exhibit D. 1 in the presence of S. Gobinder Singh, but did not read the whole will. He only saw the beginning and the end of the will as it was not necessary for him to read it. S. Gobinder Singh was quite hale and hearty and the witness met him many times after the will was signed by him. On the day the will was signed, S. Gobinder Singh was quite normal mentally, and even thereafter remained healthy. The signatures of S. Gobinder Singh, marked 'X' on Exhibit D. 1, were his, which he had appended in his presence and that of Shri Pali Ram. In cross-examination, he stated that S. Gobinder Singh introduced his wife and children to him and his wife. He had one son and one daughter. He attested the will at his business premises. The Mall, Simla. He could not say whether S. Gobinder Singh signed Exhibit D. 1 with the same pen as the witness. He usually used his own pen. He could not give the contents of the will as he had not read it. He could not give approximate time when he attested the will, that is, whether it was forenoon, afternoon, evening or night as it had happened many years age, but he was definite that it was not night.
6. Shri Pali Ram, the other attesting witness of the will, stated that Exhibit D. 1 was the same will which S. Gobinder Singh had signed in his presence and he signed the same in the presence of S. Gobinder Singh, who was mentally and physically quite fit on that day. He read the will before he signed it. In cross-examination he stated that he did not remember the date or the year of the execution of the document, but it was probably in 1945. He gave this year without making reference to the document. On the day of the execution of the will, he was working in Framjee and Co. Ltd. and was sent for by Mr. D. H. M. Framjee from the business premises to his residence in the upper storey, which he had been occupying. When the witness reached the upper storey, Mr. Dinshaw Framjee had not already signed the document. He signed it in the presence of the witness and thereafter the witness signed the document in his presence. The document was not read out in his presence to any one, but he read it before affxing his signatures. He did not remember whether S. Gobinder Singh had told them thecontents of the will, but he did say that it was his will The witness knew S. Go-binder Singh since 1934 or 1935. The witness remained in the service of Framjee and Co. Ltd., from 1925 to 1949, and was the Manager of the said Company from the year 1935 onwards. S. Gobinder Singh used to visit Shri Dinshaw occasionally. He did not know any other member of S. Gobinder Singh's family, but he could recognise them. He did not know how many members of S. Gobinder Singh's family were. All that he knew was that in 1935 or 1936, S. Gobinder Singh had a son, whom he could recognise by appearance, but did not know his name. He denied the suggestion that Harbhajan Singh contacted him about 15 to 20 days prior to the date of his evidence, at Simla, in connection with this case. He received the summons from the District Judge, Sangrur, through the Court at Simla, probably on May 1, 1958. The bailiff of the Simla Court brought the summons to him and he wrote on the back of the same that expenses of his journey should be sent.
7. Surjit Inder Singh appeared as his own witness and stated that he had been seeing his grandfather, S. Gobinder Singh, writing and signing, and could identify his signatures. The signature marked 'X' on Exhibit D. 1 was that of S. Gobinder Singh, He also identified the signatures marked 'Y', 'Y/1' and 'Y/2' on Exhibit D. 2 as those of S. Gobinder Singh, his grandfather. He accidentally came by the will, Exhibit D. 1, in the papers of his grandfather, which he was looking up in August 1957, and then made an application to the Court for permission to produce and prove it. He had no knowledge about the existence of the will prior to that day. He made application to the Court for the production of the will three or four days after he had found it. He had gone through the contents of the will and was prepared to abide by the wishes of his grandfather. In cross-examination, he stated that he could not state from his memory any particular paper on which his grandfather had written or signed in his presence. The will, Exhibit D. 1, was not executed in his presence and, therefore, he did not know as to where it was written. S, Gobinder Singh never mentioned about the will to him after 1845, uptil his death. Before 1945 also he never expressed his intention to the witness, his mother or to any other person, in his presence, that he intended to make a will of Ms property. He admitted that he had instituted a suit for injunction against his grandfather in 1953 and the case was decided on a compromise, which was reduced into writing and filed in the Court He denied the suggestion that the will. Exhibit D. 1, was falselyprepared by him during the pendency of the suit in collusion with Pali Ram and Dinshaw Framjee, who were known to him since his childhood. He also denied that there was any special custom in his family of not executing such wills.
8. It is evident from the above evidence that there are no suspicious circumstances about the execution or the contents of the will. S. Gobinder Singh made provision for his family members. He gave one estate at Simla to his wife, Smt. Dalip Kaur, for residence and enjoyment during her life. He allowed maintenance of Rs. 50/- per month to his second wife. Smt, Gulab Kaur, if she came to reside in a part of his house in Sangrur, intended for women. The rest of the property was bequeathed in favour of his grandson Surjit Inder Singh. He executed the will without informing the legatees about it and it was attested by two independent witnesses who were known to him, but had no interest in him or in his property. Their testimony having been given after about 13 years, was consistent although discrepant in some minor details. Surjit Inder Singh did not know about the existence of the will after the death of his grandfather and he accidentally discovered it amongst his papers in August 1957 and then produced the same in Court. It is urged on behalf of the respondent that contrary to the will, S. Gobinder Singh had made alienations of his land and the estate at Simla, known as Kennilworth, during his lifetime, which showed that he had revoked the alleged will of 1945. Reliance is placed on a judgment of the Calcutta High Court in Brajabala Dhar v. Nityamayee Biswas, AIR 1934 Cal 17, the facts of which were, however, different. In that case, no will was found after the death of the testator and oral evidence was given that he had executed a will. It was also found that he had dealt with his property contrary to the contents of the will and on those facts it was held that the alleged will must have been revoked by the testator. In the present case the will was discovered and is in existence. Its execution and genuineness have been proved beyond any doubt it appears that Smt Dalip Kaur died in the lifetime of her husband, S. Gobinder Singh, and that Is why the estate known as Kennilworth, which was given to her for her maintenance and residence during her lifetime, was transferred in favour of Surendar Singh, minor son of his grandson Surjit Inder Singh. He made gifts of some land also in favour of third parties vide Exhibits PH, PK, PL, PJ, PU, PV, PW, PX, PZ, P.W. 5/A and P.W. 2/A but for that resason it cannot be said that he had revoked the will. According to the will Surjit Inder Singh was to be the owner of all his movable and immovable property found at the time of his death, and during his lifetime he had complete freedom to deal with his property in the manner he liked. If any property was left at the time of his death, the same was to be owned by Surjit Inder Singh. The gift vide Exhibit PH was made in favour of Smt. Amrit Kaur, wife of his grandson, Surjit Inder Singh while some land was transferred in favour of Surjit Inder Singh vide Exhibit PL. These alienations seem to have been made in 1953-54 because of the contemplated legislation providing for ceiling on land holdings. The mere fact of these alienations having been made by S. Gobinder Singh during his lifetime, does not cast any doubt on the genuineness of the will, nor can it be concluded that he had revoked it. He left considerable property on his death to his grandson. I, therefore, hold that S. Gobinder Singh had executed the will, Exhibit D. 1, according to which Suriit Inder Singh was entitled to all the property that was left on his death and Smt. Gulab Kaur had no right to any part thereof. She would have had the right to inherit 1/2 share of his estate, had S. Gobinder Singh not made the will, Exhibit D. 1. That will could not be challenged by Smt Gulab Kaur under the Punjab Custom (Power to Contest) Act, 1920. Only male descendants or collaterals within five degrees could challenge the same. The will could be challenged only by Surjit Inder Singh or his son, but not by Smt. Gulab Kaur, widow of S. Gobinder Singh.
9. For the reasons given above, the suit of Smt. Gulab Kaur, now represented by her daughter, Smt. Jaswant Kaur, for possession of 1/2 share of the estate left by S. Gobinder Singh, cannot be decreed. Smt. Gulab Kaur was only entitled to maintenance allowance which right died with her on her death. In the result, the appeal, is accepted and the suit of the plaintiff-respondent is dismissed, but the parties are left to bear their own costs throughout.
S.S. Sandhawalia, J.