1. This judgment, will dispose of two appeals, R. F. A. No. 173 of 1948 and R. F. A. NO. 53 of 1949. R. F. A. No. 173 of 1948 is brought by the defendant against the judgment and decree passed by Mr. H. C. Mittal, Senior Subordinate Judge, Dharamsala, dated 1-10-1948 decreeing the plaintiff's suit and R. F. A. No. 55 of 1949 is brought by the plaintiff to vary the decree.
2. In order to understand the facts of the case it will perhaps be advantageous to give a short pedigree-table of the parties:
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Sahib Singh Gian Singh Sanghat Singh Amar Singh Kehr Singh.
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Moti Singh Charjo widow
3. On 6-4-1940 there was a partition of the estate of Bachittar Singh and separate possession was taken of their respective shares by Sangat Singh, Amar Singh and Kehr Singh. The property which fell to the share of Moti Singh and Gian Singh was allowed to remain joint. In mutation, Ex. D. 5, page 82 of the printed paper boob, it was shown that land with 'kothi' situate at Mahal Palampur would belong exclusively to Moti Singh cosharer. Land in Tika Thumb a, Dakhli Salon fell to the share of Moti Singh and Gian Singh in equal shares. Similarly, lands situated in other villages fell to the share of other brothers. On 14-8-1941, by a registered sale deed, Ex. P. 12, Gian Singh purported to se!l for a sum of Rs. 22,000/- the whole of his land, mortgagee rights, tea and rice machines, oil pressing machines, electric power house and either accessories with all rights therein. No money was paid at the time of registration, but Moti Singh undertook to pay the two creditors of Gian Singh -- Dilbagh Rai and Manohar Lal. This document was registered at the house of Thakar Gian Singh at 7 p.m. the same day. Mutation of this sale was entered and was sanctioned on 1-2-1942. It is stated in the mutation proceedings that Mt, Charjo, the widow of Gian Singh, appeared before the Revenue Officer and stated that Moti Singh had agreed to give her maintenance and therefore she raised no objection to the mutation being sanctioned.
On 7-7-1942 Sangat Singh, Amar Singh and Kehr Singh brought a suit against Moti Singly making Mt. Charjo a party, that the alienation was effected fictitiously without consideration and with the intention of defeating the claim of the reversioners and that it would not affect their reversionary rights after the death of the widow, Mt. Charjo. This suit was decreed and on an appeal being taken to the High Court it was held by a Division Bench of the Lahore High Court (Teja Singh and Marten JJ.) that 'the sale was a fictitious transaction and not a single pie had been paid' and the appeal was therefore dismissed. This was on 8-2-1946. It may here be remarked that Mt. Charjo had been made a party (defendant) in that suit, but at. her instance her name was struck off on 11-8-1943.
4. On 17-1-1947 a suit was brought by Mt. Charjo for possession of the property alleged to have been sold by Gian Singh to Moti Singh and for rendition of accounts. The defence was that the sale was binding, that the parties were governed by Hindu Law and that Moti Singh and Gian Singh formed a joint Hindu family and Moti Singh was entitled to the whole property by right of survivorship and that even if custom was the rule of inheritance, the widow was according to family custom, entitled only to maintenance. Question of limitation and some other pleas were also taken, but they are not necessary for purpose of this appeal. The issues relevant to the appeal were Nos. 4, 5, 6, 8 and 9 and they are:
'4. Was Gian Singh member of a joint family with defendant?
5. Is plaintiff entitled to maintenance and if so to what amount?
6. Is plaintiff estopped by her conduct from bringing the present suit?
8. Was the sale in favour of defendant a sham and bogus transaction, and, therefore, the plaintiff can obtain immediate possession of the area?
5. The learned Judge held that Gian Singh did not form a joint Hindu family with Moti Singh, that the widow was entitled to the estate left by Gian Singh, that she was not estopped from bringing the suit and that the sale in favour of the tfefeniant was a 'sham and bogus transaction' and. the plaintiff was entitled to joint possession of one-half share of the lands and houses in suit but 'not in the brick-kiln and other properties'. Both parties have come up in appeal to this Court.
6. Counsel for Moti Singh has first submitted that the parties are governed by Hindu Law and as they were joint Moti Singh should be taken to be entitled to the property by rule of survivor-ship. The parties to the dispute are Rajputs who are one of the predominant agricultural tribes in Kangra District, if not in the whole State, in the previous suit which was fought between Sangat Singh and others and Moti Singh it was held that the parties are governed by custom and nothing has been shown to support the submission that the parties are not governed by custom. Even if the parties were governed by Hindu Law, there was no Joint family between the parties, and the fact that certain specified properties fell to the share of Moti Singh at the time of the partition and the fact that Gian Singh executed a sale of the whole of his property in favour of Moti Singh. are in my opinion wholly destructive of any joint family being there. I would, therefore, uphold the finding of the learned Judge on the question of custom and that even if the parties are governed by Hindu law there was no joint Hindu family.
7. The question then arises as to whether the sale which was made by Gian Singh in favour of Moti Singh was a sham transaction or was a genuine one. The learned Judge has found that it was a sham transaction. It has not been pleaded that the previous judgment Ex. P. 5 is 'res judicata'. Even if the judgment is not relevant under any other section of the Indian Evidence Act, there is sufficient evidence on this record to show that the previous sale was wholly fictitious. (After discussion of evidence His Lordship proceeded:)
In these circumstances I am of the opinion that it has been proved that the sale of 1941 was not a genuine transaction but was a fictitious one.
8. It was next submitted that the plaintiff is only entitled to maintenance even if the parties are governed by custom and reliance was placed on Question No. 102 of the Customary Law of Palampur Tehsil which is printed at page 78 of the paper book and is Ex. C. 1. The questionand answer are as follows:
'Q. 102. Can any of the persons on whom theestate devolves, irrespectively of the sex of suchperson, or of the relationship in which such. person stood to the deceased, claim partition as a matter of right?
(i) if she have sons,
(ii) if she have not.
Can a daughter or sister, if remarried, claim partition? If land has been reserved for a widow, daughter or sister by way of maintenance, can they claim partition? If so, under what circumstances?
A. by Rajput Tribe.
Any person on whom the property devolves can claim partition. A widow is not competent to have partition effected.
Such (?) a daughter or sister is also not competent to claim partition.
If a widow has sons, she can claim partition.
1. In the absence of sons (?) she cannot claim partition and is entitled to maintenance only. The custom of the second marriage of a daughter or sister docs not exist. They cannot even claim partition. If any land has been reserved for the maintenance of a widow, a daughter or a sister, she can claim partition In the event of the maintenance not being paid to her or in ease the entire produce of that land is not paid to her.
Oral instances. -- None.
Instances of transfers. -- None.'
The question itself is worded in such a manner that an intelligent answer cannot be expected from simple country folks and so many questions have been put together in one. Besides it is not a reasonable answer that a widow with sons can claim partition but not a widow without sons. And then if a widow has received land by way of maintenance she can claim partition in certain circumstances.
9. In the Customary Law of the district by Middleton at page 168 the answer to that question is as follows :
'All the tribes of Dehra and Hamirpur state that all the recorded owners including widows can claim partition. Sisters and daughters, if remarried, cannot claim partition. The Rajputs of Nurpur and the Jats of Kangra also allow the widow to claim partition. All the rest say that a widow or daughter who has received some land by way of maintenance can claim-partition if she has any trouble about the receipt of her maintenance. Male owners can always claim partition.'
The defendant never pleaded that the plaintiff was not entitled to get partition and in his written statement relied on family custom in favour of maintenance and not on the custom of the Tahsil or the district and this he could not be allowed to do. See -- 'Abdul Hussein Khan v. Mt. Bibi Sona Dero', AIR 1917 PC 181 (A).
10. Besides the answer in Middleton's Riwaj-i-am of the district is differently worded in regard. to Palampur Tahesil. In view of the inconsistency and what has been said above it is difficult to rely on the correctness of this answer which is printed at page 78 of the paper book.
11. In any case, the right to partition is gov-ernect by the provisions of the Punjab Land Revenue Act which is contained in Section 111 of that Act and was recognised by the Financial Com-missioner in -- 'Dan Singh v. Mt. Sukhan', 11 Pun Re 1895 (Rev.) (B), and by a Full Bench of the Punjab Chief Court in -- 'Buta v. Mt. Jiwani', 82 Pun Re 1893 (C), which was followed by the Financial Commissioner in -- 'Abdul Qadir V. Mt. Rabia', 4 Pun Re 1917 (Rev.) (D), and this view was upheld in -- 'Sant Singh v. Basant Kaur', AIR 1923 Lah 81 (2), following a Bench judgment of the Chief Court in -- 'Mt. Bhag Bhari v. Wazir Khan', 70 Pun Re 1912 (P).
12. But the rule which applies to succession is contained in Question No. 44 which states as is indeed the general custom in the Punjab that on a man dying sonless his widow succeeds to his estate -- in Kangra if a mother is alive she succeeds equally with the widow. The rule in regard to widows given in Rattigan's Digest in para. 11 is the same; there it is stated that in the absence of male lineal descendants the widow of the deceased ordinarily succeeds to life estate. The special family custom which the defendant set out to prove that in their family widows do not succeed to the estate of their husbands but are entitled to maintenance is not in my opinion established. I would, therefore, hold that the widow is entitled to succeed to the estate of Gian Singh, her deceased husband. I would therefore dismiss the appeal brought by the defendant Moti Singh with costs.
13. In the appeal brought by Mt. Charjo the only point in dispute is whether the decree of the trial Court is to be varied where he has given joint possession of the houses and has not decreed her suit in regard to the other properties which are given in the decree, i.e., the tea factory mentioned at item No. 1 in the decree, covered barracks mentioned at item No. 2 in the decree and the tea manufacturing machine mentioned at item No. 3 in the decree, and in regard to a statement in the judgment that the plaintiff is not at present entitled to separate possession. Her complaint, in my opinion, is justified. In regard to the lands, I have held that she is entitled to the estate left by her husband and partition is a matter which is excluded from the jurisdiction of civil Courts under Section 158, Land Revenue Act and the right to partition is governed by Section 111 or that Act. It was not for the learned Senior Subordinate Judge to say that she is not entitled to separate possession of lands.
14. In regard to the other properties mentioned in the decree, she being the owner of those properties would be entitled to get separate possession and if it is necessary that she should get it by partition she is entitled to do so. I would, therefore, allow the appeal of Mt. Charjo with costs.
15. In the result the defendant's appeal is dismissed with costs and the plaintiff's appeal is allowed with costs.
Harnam Singh, J.
16. I agree in the order.