1. This appeal arises out of a suit by the collaterals of Deva Singh; deceased, for a declaration to the effect that an alienation by way of gift effected by Deva Singh's widowed grand daughter-in-law is not binding upon them. The gift was made in favour of Deva Singh's grandson's daughter. Deva Singh left a widow Mt. Nand Kaur upon whom his property devolved. Deva Singh had a son Budha Singh who predeceased him. Budha SingVsson Wusawa Singh also predeceased him. Wasawa Singh left a widow Mt. Lachhman Kaur and a daughter Mt. Kartar Kaur.
Deva Singh : Mt. Hand Kaur|Budha Singh|Wasawa Singh : Mt. Lachhman Kaur|Mt. Kartar Kaur (daughter).After Mt. Nand Kaur, Wasawa Singh's widow Mt. Lachhman Kaur succeeded to the property and she made a gift of it to her daughter Mt. Kartar Kaur. It is this gift which is the subject-matter of the dispute in the present litigation.
2. The property in dispute is situated in two villages, namely Eakh Devi Das Pura and Chhapa in the District of Amritsar. The defence of Mt. Kartar Kaur was that the plaintiffs were not the collaterals of Deva Singh, that the property in dispute was not ancestral qua them and that, therefore, Mt. Lachhman Kaur defendant 1, the donor, had acquired full rights of ownership in the property. She was, therefore, competent to gift it to her daughter Mt. Kartar Kaur. It was further pleaded that the gift amounted, to acceleration of succession and the plaintiffs were, therefore, not competent to challenge it. I may emphasise at this stage that the only ground on which the plaintiffs came to Court was that the land in dispute was ancestral qua them and that the gift could not affect their reversionary rights. There was no alternative plea that the suit was competent even if the land was found to be non-ancestral. The trial -Court framed the following issues:
(1) Whether the plaintiffs are the collaterals of Deva Singh deceased? (2) Whether defendant 1 got the property in dispute as full owner? (3) If issue 2 is decided against the defendant, is the land in dispute ancestral qua the plaintiffs? (4) Whether the gifts in favour of defendant 2 are valid against the plaintiffs? (5) Do the gifts in dispute tantamount to acceleration of succession? 6. It issue Nos. 2 and 3 are decided in favour of the defendants, can the plaintiffs challenge the alienations? 7. Belief.3. The learned trial Judge found issues Nos. 1, 4 and 5 in the affirmative, that is the plaintiffs were held to be collaterals of Deva Singh and the gifts effected by Mt. Lachhman Kaur in respect of the property left by Deva Singh in the two villages were upheld as valid and as amounting to acceleration of succession, Issues Nos. 2, 3 and 6 were answered in the negative. It was held that defendant 1, Mt. Lachhman Kaur, was not the full owner of the property, that the land was not ancestral qua the plaintiffs and that the plaintiffs were not entitled to challenge the alienations. In appeal only two points were urged by the learned Counsel for the appellants, Mr. Shamair Chand. He argued in the first place that the property of village Chhapa was ancestral qua the plaintiffs and in the second place he argued that even if the property was held to be self-acquired the gift in favour of the last male holder Deva Singh's grand-son's daughter could not be upheld vis-a-vis the collaterals.
4. The first point regarding the nature of the property may be disposed of in a few words. The following pedigree-table shows the manner in which the property devolved upon Deva Singh:
SADDA SINGH|Dayal Singh_________________|_________________| |Ram Singh Kishen Singh__________|________________ || | | |Jodh Singh Hira Singh Sohan Singh |_____________|_____| |Deva Singh Kapur SinghDayal Singh is the common ancestor of the parties. The plaintiffs represent the line of Ram Singh and are his descendants, Deva Singh, the last male holder, was the son of Kishan Singh. Therefore, if it is found that the property was once held by Dayal Singh, it must be held to be ancestral qua the plaintiffs.
5. There is no dispute with regard to the property in Rakh Devi Das Para. It is conceded that this property was never held by the common ancestor, Dayal Singh, and that, therefore, it must be treated as non-ancestral. With regard to the property in Chhapa, the position is that,' in 1852, the property was held half by Kapur Singh and Deva Singh, sons of Kishan Singh, and half by Jodh Singh, Hira Singh and Sohan Singh, sons of Ram Singh. Prom this entry a presumption certainly arises that the property devolved upon the holders from their ancestors and that Dayal Singh must have held the property sometime previously. This presumption is, however, rebutted by two pieces of evidence. The first is Ex. p. 28, a copy of the kafiyat shajra nasab of this village prepared in 1865. This shows that the sons of Kishan Singh and Ram Singh purchased the land of Patti Sama. It is, therefore, clear that they acquired the land themselves and did not inherit it from their ancestors. The other piece of evidence is an entry in Sir Lopel Griffin's Chief and Families of Note in the Punjab. This entry appears at p. 524 of the book and shows that Dayal Singh was killed in a battle and his jagir was seized by the conqueror:
His two sons, Kishan Singh and Ram Singh, were thus thrown upon the world as poor as their father when he commenced his career. They went into the Amritsar District in the village Chhapa, where their father had first settled on leaving his home.This entry also supports the contents of the kafiyat shajra nasab and it is clear that the sons of Kishan Singh and Ram Singh acquired the property in dispute and did not inherit it from their common ancestor Dayal Singh. It is, therefore, clear that the property in village Chhapa also must be treated as non-ancestral property.
6. The next question for consideration is whether the plaintiffs are entitled to challenge this gift even when it is held that the property is self-acquired. Counsel for the respondents raised a preliminary objection and contended that the plaintiffs had based their suit on one ground only, namely, that the land in dispute was ancestral qua them. There was no alternative plea by them that they were entitled to succeed even if the land was held to be non-ancestral. Mr. Kundan Lal Gosain who appeared on behalf of the respondents relied upon two decisions of the Lahore High Court in Kishan Singh v. Mt. Santi A.I.R.1938 La 299 and Kanda v. Waghu L.P.A. No. 14 of 1943 (Lah.). Mr. Shamair Chand, on the other hand, contended that even in the absence of any alternative plea the plain, tiffs were entitled to fall back upon the general Customary law whereby any alienation-by a widow could be challenged by the collaterals irrespective of whether the property was ancestral or self-acquired. He relied upon Rahmat Ali v. Ahmad Bakhsh 18 A.I.R. 1931 Lah. 609 and Mt. Fatima Bibi v. Gul (1993) 127 P.R.1893. It is necessary to examine these cases in some detail.
7. In Kishan Singh v. Mt. Santi A.I.R.1938 Lah.299 a gift was made by the widow of the last male holder in favour of her daughter. The collaterals in the fifth degree of the last male holder brought a suit challenging this alienation on the ground that the property gifted was ancestral qua them. It was found by the trial Court that the land had never been held by the common ancestor the question then arose whether the daughter of the last male holder, excludes collaterals in the fifth degree in succession to non-ancestral property. A Full Bench of the Lahore High Court held that on the pleadings of the parties the question really did not arise as the plaintiffs had come to Court on the basis of their right to ancestral property only. The judgment of the Pull Bench contains the following observation:
The position is that the custom which it was necessary for the plaintiffs to allege and prove, was not pleaded nor put in issue; the first issue haying been found in favour of the defendants, the suit ought to have been dismissed.It is clear that the Full Bench took the view that once the property has been proved to be non-ancestral the plaintiffs could only succeed if they proved a special custom whereby daughters were excluded by collaterals of the fifth degree. This special custom had not been pleaded by the plaintiffs in that case and the suit, therefore, must fail. Had the widow of the last male holder made the gift in favour of a stranger instead of making it in favour of her daughter the position would no doubt have been otherwise, because it is clear that under the Customary law the widow's powers of alienation are extremely restricted.
8. In Kanda v. Waghu L.P.A. No. 14 of 1943 (Lah.) the widow of the last male holder made a gift of the property in her possession in favour of Waghu, the son of a predeceased daughter of her deceased husband. The collaterals brought a suit on the ground that the property was Ancestral. Therefore, the conflict in that case was between the collaterals and a predeceased daughter's son. The property was found to be non-ancestral. The District Judge before whom the case went in appeal framed a new issue to the following effect:
The land in suit having been found to be non-ancestral, do the collaterals exclude the daughter's son, according to the custom of the parties and is the gift, therefore, invalid?A Division Bench of the Lahore High Court in considering this matter made the following observations:
The plaintiffs had throughout founded their claim on the ground of the property being ancestral and challenged the competency of the widow too on that ground. Not once during the proceedings before the trial Court had they advanced any alternative plea that even if the land was found to be non-ancestral, the widow would still be incompetent to dispose of it, although the resistance was entirely offered on that basis.These remarks might seem to imply that any alienation by a widow must be upheld where the collaterals do not rely upon the alternative plea of their succeeding even if the property is found to be non-ancestral. But it is clear that this was not the meaning of the learned Judges. They were merely considering the relative claims of the collaterals and the daughter of the predeceased son. They carne to the conclusion that collaterals could only succeed in preference to the grand-daughter if they could prove any special custom to that effect. They had not even alleged such a special custom, let alone proving it, and their suit, therefore, could not succeed. This decision though apparently supporting the respondents' technical objection in reality does not.
9. The ruling relied upon by the learned Counsel for the appellants, Rahmat Ali v. Ahmad Bakhsh 18 A.I.R.1931 Lah.609, arose out of a suit by the collaterals of one Madari to challenge an alienation made by Mt. Sultano, an unmarried daughter of Madari's son. The alienation was, therefore, made by the last male holder's son's daughter. The donee was apparently a stranger to the family. The collaterals had come to Court on the ground that the land was ancestral qua them. The suit was dismissed by the trial Court and the lower appellate Court solely on the ground that the land was not held by the common ancestor of Madari and the plaintiffs. A Division Bench of the Lahore High Court allowed the appeal and observed that the lower Courts had 'misapprehended the definition of ancestral when applied to land in the hands of a female holder who has the usual limited interest in it.' The gift was held to be ineffective against the rights of the reversioners. Therefore, in that case, although there was bo alternative plea founded upon the non-ancestral nature of the land, the Court decreed the plaintiffs' claim.
10. In Mt. Fatima Bibi v. Gul (1993)127 P.R.1893 it was held that it was the duty of the Courts to determine what law applied, and whether Muslim or Customary law should be given effect to. In that case the plaintiffs claimed to inherit certain property in accordance with Muslim law, which law was alleged to be identical with the custom by which the parties to the suit were governed. The lower Courts found that the Muslim law did not apply and dismissed the suit. A Division Bench of the Punjab Chief Court hold that the Courts should have applied Customary law. These, two rulings, therefore, are not in conflict with the full Bench decision in Kishan Singh v. Mt. Santi ('38) 25 A.I.R. 1938 Lah. 299 and the decision in Kanda v. Waghu L.P.A. No. 14 of 1943 (Lah.). The position will appear to be this. Under Customary law the gift by a female in favour of a total stranger can be challenged by collaterals, whether the property is ancestral or non-ancestral, and in such a case the plaintiff need not take the alternative plea that the gift is liable to be set aside even if the land is non-ancestral. A female holder has only a limited interest in property inherited by her and any alienation made by her in favour of strangers is liable to be challenged not only by the collaterals but even by the Crown in some cases. On the other hand, where the gift is made in favour of the descendants of the last male holder the question will arise whether the donee is to be preferred to the collaterals or not, and this will depend on whether the land is ancestral or self-acquired, and also on whether there is a special custom governing the succession, and in such cases the plaintiffs must allege the custom relied upon and if there is no allegation to the effect the suit of the plaintiffs must be dismissed. In the present case, the alienation is not in favour of a stranger but in favour of a descendant of Deva Singh, and, therefore, the question will arise whether Mt. Kartar Kaur is to be preferred to Deva Singh's collaterals with regard to self-acquired property. The plaintiffs have not relied upon any special custom. Indeed, they have not even alleged that they are entitled to succeed in case the property is found to be non-ancestral. The plaintiffs, therefore, must be non-suited.
11. The learned Counsel for the appellants argued that Mt. Kartar Kaur, the donee, in the present case must be treated as a stranger and not as an heir of Deva Singh. There is, however, no force in this argument. Mt. Kartar Kaur is the daughter of the predeceased grandson of Deva Singh. She is, therefore, the descendant of Deva Singh's predeceased son Budha Singh, and by the principle of representation Mt. Kartar Kaur is an heir of Deva Singh. The question whether she can be excluded by collaterals must depend on the particular custom obtaining in the family or tribe and such custom has not been alleged. Paragraph 25 of Rattigan's Digest of Customary Law sums up the position as follows:
By virtue of the right of representation, whereby descendants in different degrees from a common ancestor succeed to the share which their immediate ancestor, if alive, would succeed to, and which presumably prevails amongst agriculturists, all collateral heirs succeed together and not to the exclusion of each other, whether they were associated with, or separated from, the deceased.12. The principle of representation as enunciated above has been recognised in a number of judicial decisions, of which the most important from the point of view of the present case is Inayat v. Mt. Bharai 15 A.I.R.1928 Lah.291. This case arose out of a gift by the widow of the last, male-holder in favour of the sons of the daughter of a predeceased; son. The, donees, therefore, were the great-grandsons of the last male holder. This gift was challenged by Inayat who was found to be a member of the same got as the last male holder. Tek Chand, J. who wrote the main judgment in the case discussed the principle of representation and came to the conclusion that the daughter's sons of the predeceased son of the last male holder were to be preferred to the plaintiff. The following observations from his judgment may be quoted:
This indicates that the tight of representation is recognized to the fullest extent amongst the members of this tribe. This answer is in, accord with the general agricultural custom of the Province which on the whole favours the right of the descendants of a predeceased person to succeed. I must, therefore, hold that the defendants (donees), who are the daughter's sons of Fattu, a predeceased son of Bakha, have under custom a decidedly superior claim to succeed to Bakha's property as against the plaintiff, who is, if at all, an agnate of a very remote degree,The learned Judge went on to say:
It may also be mentioned that according to the general agricutural custom a grand-daughter and her sons are more or less on the same footing as a daughter and her son as against distant collaterals.13. In Hashmat Ali v. Mt. Nasib-ul-Nisa and Mt. Ahmadi-ul-Nissa v. Mt. Nasib-ul-Nisa ('21) 8 A.I.R. 1921 Lah. 321 it was held that the daughter of a deceased uncle was an heir under Customary law. These two eases related to a family of Sayads in Rohtak District and the custom involved was peculiar to that family. In Sanata v. Mt. Sahib Bibi 28 A.I.R. 1941 Lah. 94 it was held that a gift by a widow in favour of her daughter could' not be challenged by collaterals when it was found that the land was non-ancestral. The judgment contains the following observation:
Holding, therefore, that the plaintiffs have failed to discharge the onus that lay upon them of proving that under the Customary Law governing the parties, they were entitled to eust the daughter even in the case of non-ancestral land, we affirm the decision of the Court below and dismiss this appeal with costs.14. From the above discussion it follows that the principle of representation is recognized by Customary law. Females are also recognized as heirs representing the descendants of the deceased. Learned Counsel for the respondents argued that in no case was sex a bar to representation. While I am not prepared to accept the full implications of this contention I have no doubt in my mind that as far as the descendants of the last male holder are concerned sex is no bar to representation, at any rate, up to the third degree. In Inayat v. Mt. Bharai 15 A.I.R. 1928 Lah. 291 discussed above the great-grandsons of the last male holder were held to be heirs although a grand-daughter intervened. In the present case, the donee is the great-granddaughter of the last male holder and her case does not appear to be different to the case of the donee in Inayat v. Mt. Bharai 15 A.I.R.1928 Lah.291. There are many cases of a daughter of a predeceased son or the son of a daughter succeeding. I would, therefore, hold that the donee Mt. Kartar Kaur cannot be ex-cluded by the plaintiffs in the present case, unless they succeed in proving a special custom where-by they are to be treated as preferential heirs to the non-ancestral property of Deva Singh. They did not even allege such a custom and they did not put forward any plea based upon the non-ancestral nature of the property. They cannot, therefore, be entitled to argue that the alienation by Mt. Lachhman Kaur is liable to be set aside even if the property is found to be non-ancestral. The gift is not in favour of a stranger, and in the absence of proof of any special custom the plain, tiffs' suit must fail. I would accordingly uphold the decision of the trial Court and dismiss the appeal, but would leave the parties to bear their own costs throughout.
Teja Singh, J.