V.P. Gupta, J.
1. The following question has been referred to this Bench:
'Whether under the Punjab Customary Law a daughter has a right to succeed to the non-ancestral property of the collateral of her deceased father as the representative of her father?
2. To appreciate the controversy, it is better to refer to the pedigree table of the parties to this case and the facts as given in the order of reference dated 30th May, 1969.
| | |
Hira Kanshi |
| | |
____________________ Amin Chand |
| | (adopted son) |
Gandu Sita Ram | |
| | Smt. Vidyawanti |
Mst. Parmeshri Roshan Lal (widow) |
(widow) | (Plaintiff) |
| (mother of Roshan) |
Mst. Ram Rakhi |
(Defendant No. 1) |
| | | | |
Ram Rakhi Jeetu Amin Chand Jog Raj Chiranji Lal
(Plaintiff No. 1) (died issuless) (adopted by Kanshi) (Plaintiff)
3. Ram Rakha and Chiranji Lal (sons of Malha) and Mst. Vidya Wanli (widow of Arnin Chand) filed a suit for possession against Mst. Ram Rakhi (daughter of Gandu), Ram Dass and Yo Raj in 1951. The land in dispute belonged to Hira (son of Ganesha) who died on 21st Nov. 1921. Gandu (son of hiRA) pre-deceased Hira. Hira gifted the suit land to his son Sita Ram thereby accelerating the succession. Sita Ram died in 1933. Roshan Lal (son of Sita Ram) (Contd on Col. 2) also died soon after. On the death of Roshan Lal, his mother Mst. Paro inherited the suit land. In 1934 Mst. Paro made a gift of the suit land in favour of Mst. Parmeshri (widow of Gandu). The disputed land represented half share of the land which Mst. Paro had inherited from her son, Roshan Lal. Mst. Parmeshri made a will of the land in favour of her daughter, Ram Rakhj, on 27th Oct., 1945, and Mst. Parmeshri died on 15th Nov., 1945.
4. Mst. Paro filed a suit for declaration that Mst. Parmeshri had been given land in lieu of maintenance and she could not make a will in favour of Mst. Ram Rakhi. This suit was dismissed on 31st Oct., 1949. Mst. Paro died on 7th May, 1950. Thereafter the present suit was filed by Ram Rakha and others.
5. Before the Division Bench, one of the contentions of the learned counsel for Mst. Ram Rakhi was that as Gandu (father of Mst. Ram Rakhi) was preferential heir of Roshal Lal and Sita Ram as compared to plaintiffs, therefore. Mst. Ram Rakhi being the daughter of Gandu has also a preferential right as against the plaintiffs. This contention was raised on the basis of right of representation for daughter even in the matter of collateral succession. In these circumstances, the present question was referred to this Bench.
6. Both the counsel of the parties rely on para 25 of the Rattigan's Customary Law, which reads as follows :
'25. Right of representation. By virtue of the right of representation, whereby descendants in different degree 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. But the right of collaterals to succeed is not a single indivisible right so as to give each collateral a right of action for the whole estate. Each collateral is entitled only to his own share.'
7. Shri K.D. Sud, learned counsel for the appellants, conceded that there is a catena of judicial pronouncements recognising the right of representation amongst the females also. He however, contended that all these judgments are primarily based upon the pronouncement given in Hashmat AH v. Mst. Nasib-ul-Nisa (AIR 1925 PC 99). It was contended that in that case there was a special family custom in the family and, therefore, the decision of the Privy Council cannot be relied upon for answering this reference in favour of Mst, Ram Rakhi (respondent). It was also contended that there is nothing in the Punjab Customary Law which allows a right of collateral succession to a female as a representative of her deceased father. It was further contended that the custom cannot be extended by analogy.
8. Shri M.G. Chitkara, appearing on behalf of the respondent, only referred to the various judgments and contended that the right of representation is a well recognised right and that sex is no bar to this.
9. We will now deal with various judgments referred to by the learned counsel for the parties.
10. The first judgment is the case of Hashmat Ali (AIR 1925 PC 99) (supra). It was in an appeal from a Division Bench judgment of the Lahore High Court reported as Mst. Nasib-un-Nisa v. Mst. Ahmadi-un-Nisa (AIR 1921 Lahore 85). To appreciate this judgment, it will be better to refer to its facts and the pedigree table.
Mir Hidat Ali Mir Inayat Ali
_________ |_______________ Iradat Ali
| | |
Mir Raushan Ali Mir Rahmat Ali Akbar Ali
| whose widow Mst. Meero |
| died childless |
| | | | | |
Mir Barkat Ali Mir Sarfaraz Mt. Anim Mt. Umdat- Mt. Rafi- |
died childless in Ali died un-nissa un-Niss un-Niss |
1872: leaving before 1872 | | | |
three widows | | ______|______ Mir Aman |
1. Mt. Bishmillah Mt. Nazib-un- | | | Als |
Begum who died Nisa, pltff., | Majid Mumtaz married the |
in 1909 wife of Mir | Ali Ali Plaintiff |
2. Mt Masiha Aman Ali | |
Begam who died | |
in 1888, and | |
______________________ _____|___________ __________|____________
| | | | | | | |
Mir Afzal Jawad Shamshad Sikhawat Sadiq Mansab Himayat Mt. Ahmadi-ul-
Ali Ali Ali Ali Ali Ali Ali Nisa, claimant
Claimant No. 2, wife of
No. 3 Khurshaid Ali.
defendant No. 2.
11. The parties were Sayads of Khar-khauda in Rohtak District and were admittedly governed by custom in matterof succession. The dispute was with respect to the succession of the property of Barkat AH and the claimants were :
(1) Nazib-un-Nisa, the daughter of a pre-deceased brother of Barkat Ali,
(2) Afzal AH, the son of a sister who survived Barkat AH, and
(3) Ahmadi-ul-Nisa, a collateral in the fourth degree.
12. A perusal of the High Court and the Privy Council judgments reveals that there had been many litigations in the family and on many occasions the right of representation was recognised. Regarding males in the family such a right was recognised in Kadar Ali v. Sikandar Ali (1'878 Punjab Record 213). and regarding females it was recognised in Mir Mumtaz AH v. Jawad AH (1887 Punjab Record 82). Mst. Nazib-un-Nisa herself had succeeded to the property of Mst. Meero as against sister's son Amin Ali as was reported in Faiz-ud-Din v. Aman AH (1910 Punj WR 427). Similarly, Mst. Nazib-un-Nisa had herself succeeded like sons as is reported in Mst, Nasib-ul-Nisa v. Mansur AH (1909 Punj WR 398). A, similar finding had also been given in Civil Appeal No. 2295 of 1916 and right of representation was re-cognised. Many other instances have been quoted where right of representation was recognised in this family of Sayads. In view of these facts, right of representation was held to exist and Mst. Nazib-un-Nisa was allowed to succeed to the property (being the daughter of a predeceased brother) as against a son of his sister and a collateral in the fourth degree. Their Lordships of the Privy Council held:
'Their Lordships agree that representation is a part of the rules of succession in his family. It is settled by judicial decision that a son in matters of inheritance represents his deceased father, and the record discloses instances of succession in which a widow was recognised as the representative of her husband, and a daughter as the representative of a deceased uncle. It is thus shown that sex is no bar to representation, but that widows and daughters in the absence of sons can claim the right in their favour.' It was further observed : 'But if there be a rule that entitles an uncle's daughter to be her father's representative for the purpose of inheritance, it would be anomalous and arbitrary to withhold from a brother's daughter the same right.''
13. In Mt. Kaman v. Ghafoor AH (AIR 1928 Lahore 280) a Division Bench held :
'Where a daughter is herself entitled to succeed the mere fact that she predeceased the widow of her father will not deprive her heirs of the succession to the property left by her father and there is no logic in holding that whereas a daughter can succeed as full heir to her father's self-acquired property a daughter's daughter will not so succeed in case her mother had predeceased the father's widow.'1
14. In Inayat v. Mt. Bharai (AIR 1928 Lahore 291) a Division Bench again held :
'This indicates that the right of representation is recognised 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, the pre-deceased son of Bakha, have under the 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.
It may also be mentioned 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, and as pointed out by the learned Judge of the Court below, among Sials of this district daughters of a sonless proprietor occupy a very much more favourable position as against collaterals than in many other tribes in the province',
15. In Charan Singh Harnam Singh v. Gurdial Singh Harnam Singh, AIR 1961 Punj 301) (FB) a Full Bench of the Punjab High Court recognised the right of a widow to succeed collaterally in her husband's family, and it was observed:
'She exercises this right in no other capacity except as representative of her husband and the property acquired by her by such succession becomes an accretion to her husband's estate and on her death it goes to her husband's reversionary along with the estate itself.'
In this case, the widow had married her husband's brother and it was held that this re-marriage of the widow with the husband's brother does not in any: way affect the right of collateral succession. This case related to Jats of Punjab.
16. In Bachan Kaur v. Bisni (ILR (1967) 1 Punj & Har 574), the contest was between brother's daughter of the lact male holder and a third degree collateral's widow. It was held that the brother's daughter is a preferential heir than the widow of a third degree collateral. The learned Judge observed that the rule of representation is of universal application and sex is no bar to representation. Reliance was placed upon Hashmat Ali's case (AIR 1925 PC 99) (supra! and Mehtab-ud-Din v. Abdullah 1908 Punjab Record 140.
17. In Mst. Singari v. Balbir Singh (1971 Cur LJ 153) a Division Bench of the Punjab and Haryana High Court again held that 'the right of representation exists even so far as the female heirs are concerned.'
18. In Birjee v. Pirthi (1972 Cur L,T 978) : (AIR 1973 Punj 289) a Division Bench of the Punjab and Haryana High Court held that 'sons and daughters of a pre-deceased daughter succeed to the estate of their maternal grand-father and take the share to which their mother would have been entitled had she been alive when the succession opens on the ground that the rule of representation is a well recognised rule both in Hindu Law and Customary Law.'
19. In Smt. Dhanti v. Smt. Isheri (AIR 1974 Puni & Har 120) sister's daughters of the last male holder were held to be better heirs than collaterals on the ground that rule of representation is universally recognised amongst the persons governed by custom and that sex is no bar to this rule.
20. Besides these judgments our attention was also drawn to Diwan Chand v. Bali Ram (AIR 1940 Lahore 431) and Mangla v. Mangat (AIR 1942 Lahore 27) where right of representation of male collaterals was recognised. The right of representation amongst males is not disputed before us,
21. The learned counsel also referred to Subhani v. Nawab (AIR 1941 PC 21) where married daughters were allowed to succead as against collaterals, Jangir Singh v. Sucha Singh (1970 Cur Lj 35) where sister's sons were held to be better heirs than fifth degree collaterals, and Lal Singh v. Roor Singh (1953-55 Punj LR 168) : (AIR 1953 Punj 202) where daughters and daughter's sons were held to be preferential heirs than the collaterals. These judgments do not at all deal with the right of representation amongst the females and are of little help.
22. Thus the view taken by different courts from time to time is that (in) a case of right of representation sex is no bar, meaning thereby that the females also can avail of the right of representation and can succeed to the property as if their immediate ancestors, if alive, would have succeeded. It is true that in Hashmat All's case (AIR 1925 PC 99) (supra) the right of representation was recognised on the basis of a family custom. This view was however, followed in the various judgments delivered from time to time as has been discussed above.
23. It is not disputed that under custom, the right of representation is fully recognised amongst male collaterals of the deceased. Certain non-ancestral property is inherited by widows, mothers, daughters and sisters in preference to collaterals.
24. As the right of females, such as daughters, to succeed to non-ancestral property is now a well established right, therefore, it does not appeal to reason as to why she should not be allowed to succeed to non-ancestral property of a collateral of her deceased father. If the father had been alive then he would! have succeeded to the property and, thereafter on his death the property would have vested in his daughter. The various judgments, already referred, do indicate clearly that the courts have always taken a view of giving right of succession to the females on the basis of| the principle of right of representation. Even in para 25 of the Rattigan's Di-gesi on Customary Law, there is no bar in giving benefit of right of ' representation to females also. With the enforcement of Hindu Succession Act, many females have figured in the schedule as heirs of class 1 and II. After such heirs, the agnates have a right of succession and even a female can be an agnate provided she is related to the deceased wholly through males. This also gives' a right of representation to the females,
25. It is well settled that custom may be proved by (1) oral evidence of witnesses acquainted with the custom, (2) instances, and (3) judicial pronouncements, etc. It was held in Effuah Amis-sah v. Effuah Krabah (162 Ind Gas 461 : AIR 1936 PC 147) that 'Material custom must be proved in the first instancP by calling witnesses acquainted with them until the particular customs have, by frequent proof in the Courts, become so notorious that the Courts take judicial notice of them.'
26. It was again held in Tara Singh v. Suraj Kaur (ILR (1941) Lah 546): (AIR 1940 Lah 416) that 'when a custom or usage is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case.''
27. Custom is always in a fluid state and it changes from time to time. The consistent view of the Judges had been that the right of representation is a recognised right and that sex is no bar to the same. The legislative changes are also in favour of giving a right of representation in respect of non-ancestral property to the females.
28. In view of the above discussion there seems to be a well established custom of allowing a right of representation with respect to succession to non-ancestral property to a female also. Hence the answer to the reference is that under Punjab Customary Law a daughter has a right to succeed to the non-ancestral properly of the collateral of her deceased father as the representative of her father.