Harbans Singh, J.
(1) These two appeals (L. P. A. No. 232 of 1961 and L. P. A. No. 59 of 1962) under clause 10 of the Letters Patent have been referred to a the Full Bench by the Letters Patent Bench presided over by my Lord the Chief Justice Bench presided over by my Lord the Chief Justice. In one of these appeals, names. Joginder Singh v. Kehar Singh and others the male proprietor and gifted his land and the validity of the gift was challenged by the reversioner by filing the usual declaratory suit out of which this appeal has arisen. The allegation sin the plaint were that ht eland was ancestral and the parties were governed by custom. In other appeal, Inder Singh v. Jagir Singh the male proprietor has made a sale and the same saw also challenged on similarly grounds. Both the gifts and the sale were made after the enforcement of the Hindu Succession Act 1956. In both the cases the land was found to be ancestral and the sale was found to be without legal necessity.
The main defence taken on behalf of the defendants in both the cases was that by virtue of the provisions of the Hindu Succession Act the limitation on the powers of alienation of a male proprietor had ceased to exist and consequently the reversioner were debarred form challenging such alienations. For this reliance was placed on an Allahabad decisions in Hanuman Prasad v. Indrawati, AIR 1958 all 304. Following this trial Court dismissed both the suits. However in appeal the decision were reversed and its was held that although by virtue of S. 14 of the Hindu Succession Act the estate held by a female has been enlarged into a absolute estate and as a result thereof an alienation made by a female cannot be challenged by the reversioner there is nothing in the Act which in any way has enlarge, in the same manner the estate held by a male proprietor and the limitations on his powers of alienation were in no way removed and that consequently there was noting to debar the reversioner form challenging such alienations.
This order was upheld by the learned Single Judge in view of a Division Bench decision of this Court in Kaur Singh v. Jaggar Singh, 1961-63 Punj L R 537: (AIR 1961 Punj 489). In this latter judgment of the Divisions Bench to which my learned brother Dua J. was a party it was held that there was no provision in the Act enlarging the estate of a male holder the restrictions on his power of disposal of ancestral property continue as such. It was pointed out that if was not doubt anomalous that the powers of a male proprietor to alienate property should be limited whereas the powers of a female it was held that in view of the fact that there could be a number of reasons why the Legislature considered it proper to enlarge the estate of a female without making a corresponding change in the case of a male proprietor the Court have only to go by the male proprietor the Court have only to go by the male provision made in the law and if there is any anomaly it is for the Legislature to remove it.
(2) In the two appeals before us it was urged before the Letters Patent Bench that in view of the decision in 1961. 63 Punj L R 537: (AIR 1961 Punj 489) a women has been placed in a better position than a male owner so far as her powers of alienation are concerned; that this infringed the provisions of Article 14 of the Constitution and the consequently 'any custom or law which restricts male owners from alienating property while allowing females to do so without restriction must be regarded as an unreasonable interference with the fundamental right to own and deal with property conferred by Art. 19 of the Constitution. ' In view of this it was further urged that the decision of the Division Bench mentioned above required consideration. It is in these Circumstances that the matter has come up before this Bench.
(3) In the Punjab the right of succession and power of alienation are governed by personal law i. e., in case of Muslims by Muhammadan Law and in case a Hindus Law of Mitakshara school except to the extent to which it is modified by custom. Generally speaking predominant agricultural tribes in the Punjab irrespective of their religion are governed by what is known as agricultural districts. According to customary law as well as Hindu Law a female inheriting any property has only what is known as a widow's estate of her right of alienations are limited and she can alienate only for consideration and legal necessity and it males no difference whether the property inherits by her was the self-acquired property of the last male holder or was inherits by him from his ancestor.
This limitation on her power of alienation's was absolute and did not even depend on the existence of reversions. So far as males are concerned that were similar limitation so far as ancestral property was concerned. However power of a male holder to alienate the property was limited only if there were reversioners in existence qua whom the property held by the male holder could be treated as ancestral, holder and to challenge any alienations by a male holder and to challenge any alienations so made was further hedged round by two statutes, the Punjab Limitation (Custom) Act (No. 1 of 1920) and the Punjab Custom (Power to Costum) Act (No. 2 of 1920), according to which only a reversioner within five degrees could challenge and control the power of degrees could challenge and control the power of alienation of a male holder within the period prescribed. Thus if a person has no reversioner living within five degrees his power of alienation even qua the ancestral property was co-extensive with that over his self-acquired property. Similarly the power of a person governed by Hindu Law was also restricted qua ancestral property or what is termed an coparcenary property.
(4) The Hindu Succession Act, 1956 brought about a uniform code of succession amongst Hindu irrespective of the fact whether they were previously governed by the Hindu Law or custom and to the extent both Hindu Law and customary law stood modified or repealed (see section 4 of the Act). Apart from making provisions for rules of succession S. 14 enlarged the estate of a female in the property acquired by her or inherited by her either from male or a female. It provides as follows:
'14(1) Any property possessed by a female Hindu whether acquired before or after the commencement of this Act shall be held by her as her owner thereof and not as a limited owner.
Explanation.--In this sub-section 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift from any person whether a relative or not before at or after her marriage or by her own skill or exertion or by purchaser or by prescription or in any other manner whatsoever and also any such property held by her as stridhana immediately before the commencement of this Act. (2) * * * ** * * * *
The result of this was that the estate held by a Hindu female before the enforcement of the Hindu Succession Act either by inheritance or otherwise was enlarged and on the date of enforcement of the Act she became a full owner. Similarly any Hindu female who inherited any estate after the enforcement of the Act inherited it as an absolute owner rather than a limited owner. Consequently the limitation on the power of alienation automatically vanished. This was the necessary result of the provisions of S. 14 although neither this section nor any other provisions in the Hindu Succession Act purports to deal with the power of alienation of a female.
(5) So far as the males are concerned no corresponding provision has been made either enlarging their estate in the ancestral property or enlarging their powers of alienation over the property inherited by them. Section 30 of the Hindu Succession Act however provides as follows:--
'30. Any Hindu may dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provision of the Indian Succession Act 1925 (39 of 1925) or any other law for the item being in force and applicable to Hindus.
Explanation.--The interest of a male Hindu in a Mitakshara Coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom kuttumab or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being disposed of by him or by her within the meaning of this sub-section (now section).'
This relates only to the power of a male governed by Hindu Law to dispose of his share in the coparcenary property by will which prior to the enforcement of the Hindu Succession Act he had no right to do. Thus the only provisions made in the Hindu Succession Act so far as the question of alienation of property is concerned relates only to the power of alienation by will by a person governed by Hindu Law. The obvious result therefore is that so far as persons governed by custom or concerned they continue to be governed by the restriction on the power of alienation of a male holder as before. Similarly the restriction on alienation other than disposal by will also continues qua persons governed by Hindu Law.
(6) From the above it is clear that as the law stands at present a Hindu female has a better right and title in the property and a more extensive right of alienation over the property inherited by her than even the person from whom she had inherited such property. We are not concerned in the present case whether Parliament was within its rights to place the females in this respect on a higher pedestal as it has done. Section 14 of the Hindu Succession Act is not for consideration in the present case because t does not involve the right of a female to possess or alienate any property. The sole point however for consideration is whether by the mere fact the larger the customary rules, placing restrictions on the power of alienation of male proprietor over the ancestral property in his hands have ceased to be operative. The learned counsel for the appellants pressed three points-
(I) that as a result of the provisions of S. 14 of the Hindu Succession Act, reversioners have ceased to exist;
(ii) that the basis of control over ancestral property held by me proprietors was the agnatic theory and as since a long time inroads have been made into this agnatic theory and as a result of S. 14 of the Hindu Succession Act this theory must be treated to have been completely wiped out so it must be held that there is no control left over males so far as alienation of ancestral property is concerned; and
(iii) that this custom controlling the power of make proprietors to alienate the ancestral property was unreasonably in the present Circumstances and the Courts should refuse to enforce the same.
(7) With regard to the first point no arguments were addressed as to how by virtue of S. 14 or any other provisions either in the Hindu Succession Act or any other law the reversioners have ceased to exist. Reversioners are a body of a persons whoa representatives likely to inherit the property held by a particular person whether male or female. As already stated under custom only collateral's within five degrees are entitled to challenged or control the alienation of a males proprietor. There is noting from which it can be inferred to exist. In the Full Bench case of Mar Sing v. Sea Ram. 1960-62 Pun L R 537: (AIR 1960 Punj 530 (FB), the question referred to the Bench was also followed:--
'Are the collaterals (reversioners) of the last Hindu male holder entitle d to file or if filed already to continue a suit after the enforcement of the Hindu Succession Act challenging an alienation effected prior to the enforcement of the Hindu Succession Act, challenging an alienation effected, prior to the enforcement of the Act, by an intervening female heir, who at the time of the alienation held only a widow's estate?'
The answer given by the Full Bench was in the affirmative Mehar Singh, J while dealing with the question observed-
'There is noting in the Hindu Succession Act that has directly or indirectly taken always the rights of reversioners as such. The Act in no way abolishes either reversioners or their rights or status. Where there is a restriction and control over the alienation of property there the position of law before and after the Act continues to be the same and the next reversioner is entitle d in law to the protection of his reversion.'
Gosain J., also generally agreed with these views Daulat J., however observed that a suit by collaterals for declaration that a gift made by a widow in favour of her husband's daughter in invalid would be incompetent. The reason given in para. 14 of the judgment for coming to his view however show judgment of coming to his view however so that the widow was alive at the time the Hindu Succession Act came into force and under the Act the daughter who was the donee in the case before the full Bench was a preferential heir than any other collateral irrespective of the fact whether the property was ancestral or self-acquired of the last make owner and in view of this collateral had no chance f succession and consequently a suit filed by fled by him would be meaningless and futile. That however or that they had no right to challenge an alienation which right they enjoyed under the customary law. No doubt after enforcement of the Hindu Succession act reversioners have ceased to exist but because the estate after enforcement of the Act and consequently the powers of alienation of a female cannot be controlled.
(8) That argument is certainly not available in the case of an alienation made by a Hindu male proprietor because there is not corresponding provision in the Hindu Succession Act or in any other enactment enlarging the estate or the right of alienation over ancestral property.
(9) So far as the second argument is concerned no doubt the customary rules placing a check over the power of alienation of a male proprietor are based mainly on what is known as agnatic theory. The desire of the tribesman was that the property should remain within the family or the tribe and consequently prohibited and alienation o ancestral property except for consideration and legal necessity. Similarly it was urged that adoption was also permitted within the tribe. according to the learned counsel judicial decisions have made inroads into this agnostic theory by giving right of inheritance to daughters, by allowing adoption outside the tribe and the like and that a the like and that as a result of giving absolute ownership to the female heirs this agnatic theory has been completely wiped out. There seems to be a fallacy in this argument, Prior to the enforcement of the Hindu Succession Act except where the customs specifically recognised it as such daughters could not inherit ancestral property.
The case reported as Mst. Subhani v. Nawab ILR 1941 Lah 154: (AIR 1941 P C 21), merely recognised the fact that the statements in the riwaj-i-am regarding the custom governing a tribe have nothing to do with the self-acquired property and consequently a daughter would be a preferential heir to such property as against collaterals under the personal law governing the parties viz. Hindu Law. This right was further extended to sisters but his was a result of interpretation of customary rules of their application to certain type of property. If subsequently by the Hindu Succession Act it has been provided that notwithstanding any custom to the contrary daughters shall be heirs along with sons and that does not in any way affect either the agnostic theory or the rules of custom which govern the parties so far as the question of alienation of ancestral property is concerned. By virtue of S. 4 of the Hindu Succession Act the rules of succession as provided in the Act have to take precedence over all other rules or laws governing succession. The Hindu Succession Act therefore supersedes custom only to the extent to which provisions have been made therein.
(10) So far as the last point in concerned the learned counsel for the appellants could not suggest how and why this rule of control over alienation is unreasonable to such an extend as to persuade the Court to declare it as void and not enforce it. Paragraph 1 of Rattigar's Digest of Customary Law runs as follows:
'1. A custom to be valid must-
(a) not be contrary to justice, equity or good conscience;
(b) not have been declared to be void by any competent authority before the passing of the Punjab Laws Act i. e the 28th March, 1872;
(c) not contrivance any express law;
(d) be ancient, certain and invariable.'
Admittedly, the rule of control over alienation has been recognised and enforced by the Court since the earliest times and has not been held to be contrary to justice, equity and good conscience. The main judgment of the learned counsel was that this rule as a result of the changed Circumstances has become archaic and should be treated as contrary to justice equity and good conscience. Now as is mentioned in cl(d) above a custom to be valid must be ancient certain and invariable and therefore this it an old one or archiac. Moreover, the rule cannot be held to be contrary to justice equity and good conscience simply because in view of the Hindu Succession Act larger powers have been conferred on the females than over the males. This distinction is certainly not immoral and cannot be said to be opposed to public policy.
(11) In 1961. 63 Pun L R 537: (AIR 1961 Punj 489) referred to above the main argument was that as according to the explanation appended to S. 30 of the Hindu Succession Act a Hindu governed by Mitakshara law was entitled to dispose of by will his undivided interest in the coparcenary property a similar right should be taken to have been granted to a Hindu male governed by custom so far as the ancestral property was concerned because the 'ancestral property ' was similar to 'coparcenrary property ' Dua, J.. while delivering a concurred judgment at p. 545(of Pun LR): (at p. 495 of AIR) observed as follows:
'The contention raised it that the Explanation to s. 30 should be deemed by necessary implication also to extend to the ancestral immovable property of a Hindu male holder governed by the Punjab custom. It is emphasised that in order to avoid obvious anomaly, * * * * this Court would be justified in thus extending the scope of the Explanation. It not find it possible to accede to this contention. * * *
In this connection it would not be out of place of mention that the Hindu Succession Act as its premonition that the Hindu Succession Act as its preamble shows has been enacted by the Parliament primarily to amend and codify the law relating to intestate succession among Hindus. It is therefor a little difficult to spell out by process of construct of the language a legislative intent to do away custom on a Hindu male holder in respect to of testamentary disposition of his ancestral immovable property disposition of his ancestral immovable property. These limitations as well recognised and constitute the core of the agnatic theory. In the absence of the express word or of worse sufficiently flexible to admit of a construction which may reasonably include ancestral immovable property of a male holder governed by the Punjab custom I find myself unable to impute to the Parliament an intention to extend the deeming provision of the Explanation to such ancestral immovable property. Legislature generally speaking is not presumed to make any substantial alternation in the existing law beyond what is expressly declares or beyond the immediate scope and object of a good statute.'
(12) None of the two cases before us is of testamentary disposition. According to the Explanation to S. 30 rights is given to a Hindu male to dispose of even coparcenary interest by will. The limitation on the powers of a Hindu coparcener to alienate such property during a lifetime continue and in this respect a person governed by Hindu Law and a person governed by custom at as par. Thus so far as the right of alienation inter vivos are concerned Hindu males even under the Hindu Succession Act so not enjoy any better rights than those who are governed by custom an thus there is not question of any discrimination. Women form a category apart for the amelioration of which Constitution by Art. 15(3) specifically permits legislation. Thus the mere fact that Hindu females have been given no ground for holding that all other rules of custom or Hindu Law restricting the powers of alienation of ancestral or coparcenary property as the case may be have automatically been abrogated.
(13) In view of the above I feel that no grounds have been made out to doubt the correctness of the Bench decision in Kauai Sing. 's case and there appears to be no merit in these two appeals which are hereby dismissed with no order as to costs.
D. Falshaw, C.J.
(14) I agree.
I.D. Dua, J.
(15) I agree with the order proposed.
(16) Appeals dismissed.