1. This second appeal is directed against the decision of the learned District Judge, Jullundur, affirming on appeal the decision of the trial Court holding that the sister's daughters were not entitled to the non-ancestral property of Dalipa, the last male-holder.
2. It is not necessary to state all the facts giving rise to this litigation because they are all referred to in the judgment inter parties in L.P.A. No. 84 of 1955, decided by G.D. Khosla, C.J. and me on 22nd August, 1960. We remanded the case after settling the principal controversy in the suit. The remand was confined to the decision of the following two issues:--
'1. Are the defendants sister's daughters of Dalipa
2. If so, are they entitled to succeed to the non-ancestral property left by Dalipa in preference to the plaintiffs?
3. The trial Court came to the conclusion that the defendants are the sister's daughters of Dalipa. This conclusion has been affirmed by the learned District Judge on appeal. The question, whether the defendants are the sister's daughters of Dalipa, is a question of fact and a concurrent decision of the Courts below on this matter, which is based on evidence, is binding on me in second appeal. In fact, no serious attempt was made by the learned counsel for the respondents to agitate this matter in second appeal.
4. The Courts below have taken the view that the defendants are not entitled to succeed to the non-ancestral property of Dalipa in preference to the plaintiffs. The plaintiffs are undoubtedly the collaterals of Dalipa. The only question that has been agitated in this second appeal is, as to whether the appellants, who are the sister's daughters of Dalipa, are entitled to his non-ancestral property in preference to the plaintiffs, his collaterals. For the reliance has been placed by the learned counsel for the plaintiffs on Paragraph 24 of Rattigan's Digest of Customary Law, which is in the following terms:--
'Sisters are usually excluded as well as their issues.'
This paragraph has been considered by the Supreme Court in Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041. In this decision the Supreme Court also considered the decision of this Court in Mst. Sukhwant Kaur v. Balwant Singh, AIR 1951 Simla 242, wherein it was observed as follows:--
'The authorities show that: (a) the rule of succession under the Punjab Laws Act, S. 5 is Personal Law unless the person who relies on custom proves that the parties are governed by custom and what that particular custom is; (b) and Personal Law now favours sisters which is not without effect on customs of Hindu tribes or tribes of Hindu origin. See Mt. Rajo. v. Karam Bakhsh, 11 Pun Re 1908 at p. 78 = 92 Pun LR 1908; (c) custom has to be proved by evidence adduced in the case or may be proved by the production of the Riwaj-i-am which will raise a presumption in favour of the entry if the property in dispute is ancestral unless the statement covers non-ancestral property; (d) custom varies from tribe to tribe and from place to place but some customs have by frequent proof in the Courts in all parts of the province become so notorious that judicial notice can be taken of them; (e) but the exclusion of sisters from inheritance to self-acquired property has not received that notoriety as to be taken judicial notice of, at least not where the property is non-ancestral; (f) the rights of females have not received that protection which they deserved and at time of compilation of Riwaj-i-am they have not been consulted and therefore the onus of proving their rights to succeed is a light one, which may be discharged by a few instances or by general evidence given by members of the family of tribe without proof of special instances. See Ahmed Khan v. Channi Bibi, ILR 6 Lah 502 = (AIR 1925 PC 267) and Mt. Kaman v. Ghafoor Ali, ILR 9 Lah 496 = AIR 1928 Lah 280 and (g) there has been a swing in judicial opinion in favour of female heirs after the decision of Subhani's case. ILR (1941) Lah 154 = (AIR 1941 PC 21) and in cases which came to the High Court the Judges have begun to give more attention to the observation of the Chief Court Judges where they had struck a note of caution in disregarding the claims of these heirs. Our law reports are full of these cases and they need not be quoted again.
The evidence in the case discloses that only 2 witnesses besides the plaintiffs supported the claim of distant collaterals against sisters and only two instances were proved and of them one was based on the Riwaj-i-am and the other assumed that such was the custom. The sisters on the other hand had seventeen witnesses belonging to the tribe of the parties who gave general evidence in favour of the sisters and they produced two pedigree tables showing exclusion of collaterals and one judgment which gives 10 well-defined instances where sisters were preferred to collaterals. On this material and considering that sisters are now very high up in the list of heirs according to Hindu Law and the plaintiffs are 12th degree collaterals and relying on the decision of the Privy Council in Ahmad Khan v. Channi Bibi. ILR 6 Lah 502 = (AIR 1925 PC 267 the onus if on the sisters must be taken to have been discharged. In a somewhat similar case of daughters in Mst. Kaman v. Ghafoor Ali, ILR 9 Lah 496 = (AIR 1928 Lah 280) two instances were held sufficient to discharge the onus on daughters and rebutted the presumption raised by the Riwaj-i-am of the district. And if the onus is on the plaintiffs they have not succeeded in proving their case.'
5. In Ujagar Singh's case, AIR 1959 SC 1041 the Supreme Court observed that 'it could not be held on the authority of paragraph 24 in Rattigan's Digest that a general custom excluding sisters from inheritance as against collaterals, existed.' While dealing with the relevant customary law of the district, namely Amritsar, wherein question 70 and its answer are in the following terms:--
'Q. 70. Does property ever devolve on sisters and/or upon their sons?
A. All tribes--The property never devolves upon sisters and their issues.'
it was observed that the said question and answer related to ancestral property and not self-acquired property. Their Lordships went even further and held that if the custom was not proved, the parties could fall back upon Hindu Law under which the sister would be preferential heir, and reliance was placed on Hindu Law of Inheritance (Amendment) Act, 1929.
6. At this stage it will be proper to deal with the decision relied upon by the learned counsel for respondent, namely Mt. Harnam Kaur v. Ratna. AIR 1949 East Punj 267. That decision does support the contention of the learned counsel that a sister is not an heir to the self-acquired property of her brother in the presence of his collaterals. This decision cannot be held to be good law in view of the decision of the Supreme Court in Ujager Singh's case. AIR 1959 SC 1041. The onus to establish that the sister is excluded from succession to non-ancestral property of the brother lies on the collaterals and unless they prove by specific evidence that the sister is so excluded, the sister must succeed.
7. The brings me to the Riwaj-i-am of Jullundur district to which the parities belong. The parties are Sikh Jats and belong to Tehsil Phillaur. In the Customary Law of Jullundur District, compiled by R.B. Bhai Hotu Singh Question No. 54 deals with the rights of the sisters and their sons and is in the following terms:--
Q. 54. Does the property ever devolve upon sisters or upon sister's sons If upon sister's sons, how are their shares computed
The answer to this question is in the following terms:-- 'Answer--Sisters and their sons never inherit, but Gujjars, Dogars and miscellaneous Muhammadans of the Jullundur Tehsil say that in the absence of collaterals and daughters, sisters and their sons succeed, and their shares are computed according to the number of sisters, while among Arains and Awans of the same tehsil the property devolves upon sisters and their sons if the deceased makes the will in writing; the shares being the same as given in deed.'
This answer, as observed by the Supreme Court, has to be confined to ancestral property and not to non-ancestral property. No evidence has been led to show that in this tehsil sisters were always excluded qua succession to non-ancestral property.
8. The trend after the decision in Sukhwant Kaur's case, AIR 1951 Simla 242 has been in favour of the view that the sisters are preferential heirs to the non-ancestral property of the brother. Therefore, the Courts below were in error in thinking that the sisters could not succeed to the property of their brother even if the property was non-ancestral. In fact, reliance has been placed by the Courts below on paragraph 24 of Rattigans Digest of Customary Law and that provision has been thoroughly explained by their Lordships in Ujagar Singh's case AIR 1959 SC 1041.
9. The learned District Judge, in appeal, however, proceeded on the basis that though the rule of representation was applicable to persons governed by the customary law of Punjab, it did not apply to the instant case and the sister's daughter could not succeed to her maternal uncle's estate. The reasoning of the learned Judge is as follows:--
'I am also satisfied that the conclusions of the learned Sub-Judge on issue No. 2 are also correct. The learned counsel for the appellants argued that as the right of representation is recognised amongst the agriculturists of this State, and as sister is a preferential heir to the non-ancestral property than the plaintiffs, therefore, the defendants being the daughters of the sisters of the deceased Dalipa are entitled to succeed in preference to the plaintiffs. Reliance in support of this proposition was placed on four authorities, namely 109 Ind Cas 255 = (AIR 1928 Lah 291); AIR 1955 Punj 38; AIR 1958 Punj 70 and AIR 1961 Punj 301. There is no quarrel with the proposition that right of representation is recognised amongst the agriculturists in the State. The dispute only is with regard to the application of this doctrine. Before the application of this right, it is necessary that the person claiming advantage of this doctrine should be an heir under the custom. If he or she is not an heir then he or she cannot get advantage of this doctrine of representation. The learned counsel for the appellant has not been able to cite any authority to show that the sister's daughter is an heir under customary law. No entry in the Riwaj-i-am of this District has been produced to show that the sister's daughter is an heir preferential to the collaterals in the third degree and it has also not been shown that under the general custom she is a preferential heir. In the first of the above mentioned four authorities, the contest was between the persons who claimed to be collaterals and the sons of the daughter of a pre-deceased son of Baksha, the last male holder. It was found in that case that according to the general agricultural custom a grand daughter and her sons are more or less on the same footing as a daughter and her sons as against distant collaterals. It was further found in that case that the plaintiffs had not proved that they were collaterals of the deceased. Thus, this authority will not show that a person who is not an heir under custom can succeed by the doctrine of representation.'
10. It is axiomatic that if the sister's son is an heir to his maternal uncle, sister's daughter would be equally an heir because sex is no bar to the rule of representation, if it is applicable to the persons governed by agricultural custom. In this connection, reference may be made to the decision of the Privy Council in Hashmat Ali v. Mst. Nasib-un-Nisa. ILR 6 Lah 117 = (AIR 1925 PC 99) and of the Lahore High Court in Mt. Kaman v. Ghafoor Ali, ILR 9 Lah 496 = (AIR 1928 Lah 280) and Inayat v. Mst. Bharai, 109 Ind Cas 255 = (AIR 1928 Lah 291). In fact the rule of representation is universally recognised among the persons governed by custom and sex is no bar to that rule. Therefore, the moment it is held that the sister is an heir to the non-ancestral property of the brother, the sister's daughter would be an heir to that property. In this view of the matter, the appeal must succeed and the plaintiff's suit must fail qua the non-ancestral property of Dalipa. It would also fail with regard to non-ancestral property where the matte of abatement was settled against the appellants in the Letters Patent Appeal in which the entire facts of the litigation have been elaborately stated.
11. For the reasons recorded, above, I allow this appeal and set aside the judgments and decrees of the Courts below to the extent indicated above. There will be no order as to costs throughout.
12. Appeal allowed.