1. This is an appeal by two defendants, which arises out of a suit for declaration and possession. The suit was filed by Shrimati Lilawati, daughter of Lazar, a predeceased son; of Samuel. Prem Chand (defendant No. 1) and, Timtawas (defendant No. 2) are the sons of Samuel, while Srimati Shanti (defendant No. 3) is a daughter of Samuel. Garis Chand (defendant No. 4) is the son of Srimati Tabina, another daughter of Samuel, while Srimati Premi (defendant No. 5) is similarly the daughter of Srimati Ester, yet another daughter of Samuel.
Samuel died on 1-6-1948, leaving lands and. other properties in village Melan, sub-tehsil Kumarsain, district Mahasu. His property has been mutated in the names of Prem Chand and Timtawas, defendants 1 and 2, and they have taken possession thereof. The plaintiff's case was that parties, being Indian Christians, are governed, in matter of succession, by the provisions of Succession Act, 1925. Accordingly, she claimed one sixth share of the property left by Samuel.
Since defendants 1 and 2 refused to concede her claim, she had to file the suit. The other defendants were impleaded as they were also coheirs of the property left by Samuel. Consequently, the plaintiff prayed for a declaration that she was entitled to one-sixth of the property left by Samuel and for possession of that share.,.
2. Defendants 4 and 5 admitted the plaintiff's claim, but asked for no relief for them selves. The remaining defendants, i.e. defendants 1 to 3, while admitting that parties were Christians, stoutly denied that they were governed by the provisions of the Indian Succession Act in matters of inheritance. They claimed that being agriculturists, they were governed by custom prevalent in ilaqa Kotgarh, whereby Prem chand and Timtawas were as sons the sole heirs to Samuel's property;
3. On these pleadings, the following issues were framed by the trial Court:
1. Whether Samuel deceased was governed by the custom of Kotgarh and what is that custom? O.P.D.
2. Whether Himachal Pradesh Government is a necessary party? O.P.D.
4. Whether Samuel deceased was not governed by Indian Succession Act and whether defendants can plead any custom contrary to the Indian Succession Act? O.P.D.
After recording the evidence of the parties and hearing their arguments, the trial Court came to the conclusion that parties, being Christians, were governed by the provisions of the Succession Act and they could not rely on any custom, as contemplated by Section 5, Punjab Laws Act, 1872. On facts, the Court below has, however, found that in matters of succession, the Chris-Wans of Kotgarh follow a custom, whereby sons succeed to the estate of a deceased proprietor, to the exclusion of daughters. In view, however, of his earlier finding that parties were precluded from relying upon the custom, the learned Senior Subordinate Judge granted the plaintiff a decree is prayed for. Hence, this appeal by defendants 1 and 2.
4. I heard the arguments of the learned counsel for the parties at great length on the 1st, 6th and the 12th of the last month. I had hoped to deliver judgment on the 24th ultimo, but, due to the continuous sittings of the Himachal Pradesh Transport Advisory Committee, of which I was the Chairman, I could not do so. I now proceed to deliver judgment.
5. Two points arise for determination in this appeal;--(A) Whether the contesting defendants were debarred from relying upon local custom?, and (B) In case they could do so, whether they have succeeded in establishing a custom, whereby daughters were excluded by sons, from inheriting to the property of a deceased male Christian proprietor?
6. (A). The Court below has quoted Section 2, Succession Act, 1865, whereby the rules contained in that Act were to constitute the law in British India, applicable to all cases of intestate or testamentary succession, "except as provided by that Act or by any other law for the time being in force." The learned Senior Subordinate Judge was of the opinion that since the Punjab Laws Apt was not in force in 1865, its provisions were not saved by the saving clause, referred to above.
Consequently, he felt that the defendants were precluded from relying upon custom, in the absence of specific notification under Section 3 of the present Succession Act, exempting the Christian community of Kotgarh, from the operation of the Act.
7. Learned counsel for the appellants argued--and in my opinion not without justification--that the Court below has erred in thinking that the expression "any other law for the time being in force" would cover only those laws, which were in force in 1865 and not relevant laws, which came into being subsequently. As I shall try to show presently, such a narrow Interpretation was not justified.
It is true that the Punjab Laws Act came Into force in 1872, i.e. 7 years after the Succession Act of 1865. In 1948, when Samuel died, both the Acts were In force, i.e., the Punjab Laws Act as well as the Succession Act of 1925, which is the successor of the earlier Act of 1865.
Reading section 29 of the Indian Succession Act 1925 and Section 5 of the Punjab Laws Act together, it cannot, in my opinion, be argued seriously that the Punjab Laws Act of 1872 would not be covered by the expression "any other law for the time being in force" to be found in Section 29(2), Succession Act. I am supported in my view by the following authorities:
(i) 'Sohan Lal v. A.Z. Makum', AIR 1929 Lah 230 (A). There, the question was whether it was open to an Indian Christian to make a valid adoption so as to change the rule of succession, laid down in the Indian Succession Act. Jai Lal, J., expressed himself in the following terms:
"Now so far as this province is concerned, under Section 5, Punjab Laws Act, 1872, the primary rule for decision in matters of succession is custom, which may be found to govern the parties, but it is for those, who allege that there is such a custom, to establish it." "The Privy Council case--'Kamawati v. Digbijai Singh', AIR 1922 PC 14 (B), referred to above, does not, in my opinion, prevent the Courts in this province from investigating the existence of a custom, applicable to the parties in question, regarding succession and other matters mentioned in Section 5. Punjab Laws Act.
Their Lordships in that case were dealing with a case relating to Indian Christians who resided in the United Provinces and the dispute was with regard to property apparently situated in the same province. It is no doubt true that in that case they held that 'it was not open to the parties to allege that the plain law of the Indian Succession Act did not govern them and that an enquiry into such an allegation would have this effect' and further that
'the plain law of the Succession Act would be eviscerated, and in each case enquiry might have to be entered upon as to whether a deceased subject of the Crown, wished or by his acts compelled that the law of the land should not apply to his case. A particular subject can settle that in India, as in other parts of the Empire, by exercising, whatever be his religion--his power of testacy'.
But a reference" to Section 2, Succession Act, shows that the rules contained in that Set have been made to constitute the law in British India applicable to all cases of intestate or testamentary succession:
'except as provided by this Act, or by any other law for the time being in force."
This clearly makes an exception in the case of the local laws, and, as I have stated above, so far as this province is concerned, Section 5, Punjab Laws Act, does provide an exception."
8. The above decision was produced before the trial Court, but it felt itself unable to follow it, as in its opinion, the Punjab Laws Act was not saved by the proviso to Section 2, Succession Act of 1865. I have already given my reasons earlier for differing from that view.
The Court below has also referred to a passage in the judgment of Jai Lal, J., referred to above, wherein he pointed out that since Indian Christians were converts, either from the Hindu or Muslim religions, it was not possible to express a final opinion, whether a custom could be proved applicable to the Indian Christians of the Punjab 'generally'.
This does not mean, however, that the learned Judge i.e. Jai Lal, J., doubted that reliance could be placed on custom in any particular case. It is noteworthy that in the present case, the parties are Christians of Kotgarh, which was a part of the Punjab at the time Samuel died and continued as such till 25-1-1950, when it was transferred to Himachal Pradesh, The provisions of the Punjab Laws Act were applied to Himachal Pradesh on 25-12-1948.
At that time, Kotgarh was still a part of the Punjab. So, the basic principles of the decision of Jai Lal, J., would, I think, apply to this case.
(ii) 'Nabujan v. Paushimoni', 54 Cal WN 2 DR 14 (C). There, a Division Bench of that High Court held, in a case of succession to the property of one Kabuljan, that:
"Customary law of the Garos would fall within the expression used in sub-section (2) of Section 29 of the Indian Succession Act, viz., 'any other law for the time being, in force'. Consequently, if the requisites were established, which were essential for proof of valid custom, having the force of law, then a case of succession among Garos, whether non-Christian Garos or Christian Garos, should properly be decided by this Customary Law."
(iii) 'Ranbir Karam Singh v. Jogindra Chandra', AIR 1940 All 134 (D). There, a Division Bench, consisting of Bennet and Verma, JJ., observed that:
"In the Punjab, where a Hindu convert to Christianity makes an adoption after conversion, on the ground of custom, it is for him to allege and to pr6ve, that there is any custom of adoption among the Christian community or in any section of that community."
9. As against these, learned counsel for the respondent invited my attention to the following rulings: (i)--'Ma Khin Than v. Ma Ahma', AIR 1934 Rang 72 (E), where a Division Bench of that High Court remarked that:
"In considering whether the rules of succession laid down in the Succession Act are to be applied in administering the estate of an alleged Christian, the Court must have regard to the outward and formal recognition of his religious belief, and not to what may be the real, though undisclosed convictions, of the deceased." As learned counsel for the appellants rightly pointed out, this ruling will not help the respondent, because it relates to a case of Burma. Here, we are concerned with a case to which the provisions of the Punjab Laws Act, 1872, apply.
(ii) 'Dagree v. Pacotti San Jab', 19 Bom 783 (F), where a Division Bench of that High Court held that:
"The Indian Succession Act (X of 1865) and the rules of inheritance prescribed by it, apply to Hindus, who have become Christians; and evidence to show that they and the community to which they belong, have retained the Hindu custom of inheritance, is inadmissible."
This case arose in Bombay. Here, we are dealing with a case, where the provisions of the Punjab Laws Act are applicable.
(iii) AIR 1922 PC 14 (B). That was a case from the U.P. Their Lordships held, in the circutnstances of that, case, that:
"A person who ceases to be a Hindu in religion and becomes a Christian, cannot elect to be bound by the Hindu Law in the matter of succession, after the passing of the Indian Succession Act. A Hindu convert to Christianity is now governed solely by the Succession Act."
That decision might have held good in the present, case also, had not the provisions of the Punjab Laws Act applied here.
(iv) 'Tuni Oraon v. Leda Oraon', AIR 1916 Pat 374 (G). There, the learned Judge of that High Court remarked that:
"After Customary law has been stereotyped in the form of a statute which contains no provision saving custom, it is not open to a Court to give effect to custom, much less to a custom inconsistent with the statute."
As learned counsel for the appellants rightly pointed out, this decision does not help the respondent, since it would appear that in Bihar, there is no provision saving custom, as is the case here.
(v) 'Mukerji v. Alfred and others', 36 Punj Re 1909 (H). This decision, if anything, helps the appellant. There, a Division Bench, consisting of Rattigan and Lal Chand, JJ., indicated as follows:
"The two enactments which regulate matters of succession in this Province are Act X of 1865 and Act IV of 1872; Clause (a), Section 5 of the latter Act assuming it equally applies to native Christians, is obviously of no avail in the present case as no family custom is admittedly proved."
"Whatever difficulties might surround this question in other Provinces, owing to the absolute provision of the Succession Act none apparently exist in the Punjab, as Section 2 of the Succession Act allows an exception in favour of rules, other than those therein contained, and under Section 5 of Act IV of 1872, custom, if proved, is the first rule of decision, irrespective of all considerations of nationality and religion."
"It was evidently open, in the present case, for defendant No. 1 to prove under Section 5 (a), Act IV of 1872, that by custom applicable to the parties, daughters were excluded from succession, by sons, and sisters by brothers."
10. In view of all that has been said above, I reverse the finding of the lower Court on issue No. 4 and hold that it was open to the defendants to plead a custom, in matters of inheritance, contrary to the provisions of the Succession , Act.
11. B. Having found that it was open to the defendants to plead custom in matters of inheritance, it now remains to be seen whether they have succeeded in proving a custom, whereby daughters are excluded by sons from inheriting the property of a deceased male proprietor.
On this, issue, the Court below, it is noteworthy, found in favour of the defendants. Learned counsel for the parties have taken me through the evidence, and, for reasons, which I shall state presently, the finding of the lower Court on this point must be maintained.
The defendants produced five witnesses. Timtawas, defendant, also entered the witness-box and deposed as to custom, and also proved certain mutations. The plaintiff examined six witnesses, but did not herself enter the witness-box.. The Court below has remarked that the plaintiff did not produce a single mutation in order to show that a daughter had succeeded to the estate of her father, or other male ancestor. I shall, briefly, refer to the evidence produced on both sides.
12. Dhan Singh (D. W. 1), who impressed the lower Court as a reliable witness, is a Padari of Kotgarh. He has stated that according to the custom prevalent in Kotgarh among Christians sons inherit to the exclusion of daughters. He was not aware of any case where a daughter inherited to the estate of a Christian agriculturist.
This witness then quoted some concrete instances. One Janki Christian died on 22-6-1918 A.D. His lands were mutated in favour of Barna Bas, son of his predeceased son Samuel and a surviving son named, Sidiqia, in equal shares. Exhibit D.W.A. is the relevant mutation order. Barna Bas, who appeared as D. W. 5, has not only corroborated the custom, as stated by Dhan Singh, but has further added that when his grandfather, Janki Chauhan died in 1918, he and his uncle, Sidiqia, succeeded to his estate excluding his two aunts named, Gomati Mati and Phalmani, and two sisters, Timti Pargana and Egans,
Another instance cited by Dhan Singh referred to the estate of Inderyas Christian, who died in 1937. After his death, his property was inherited by his two sons, Peter and Clement, and Lal Chand, son of a predeceased son, named Salas; vide mutation order, Ex. D. W.C. Inderyas left many daughters, one of whom was named Rat, alias Naumi, but they were all excluded from inheritance.
The third instance, referred to by Dhan Singh, related to the estate of one Benjamen Christian, who died in 1920. After his death, his property was inherited by Lachhi and Garis Chand, sons of Mamel son of Benjamen i.e. grandsons in the male line, vide mutation order, Ex. D. W. D.
Benjamen left two daughters, named Mrs. Stephus & Mrs. Nasibali but they did not get any share. In the same way, when Samuel died, his estate was mutated in the name of his sons, Prem Chand and Timtawas, defendants in accordance with the Zamindara custom. Dhan Singh was cross-examined at some length, but was not Shaken. Learned counsel for the respondent pointed out that Phalmani, daughter of Janki Chauhan, did not marry and stayed in her brother's house for the whole of her life (as stated by this witness in cross-examination).
Consequently, it was suggested that Phalmani voluntarily relinquished her share in her brother's favour. Such a presumption need not necessarily be drawn. Phalmani's brother might have supported her because she was unmarried.
Mr. Thakur Das also invited my attention to the fact that this witness was unable to cite a single instance where a daughter's suit for her inheritance was unsuccessful. I was, therefore, requested to infer that no custom, as alleged by the defendants, existed.
This argument is, however, not infallible. It is possible that no daughter filed a suit, since she knew that she had no case. As was pointed out by a Division Bench of the Madras High Court in--'Mahamood Hussain Faroki v. Abdul Huq', AIR .1942 Mad 485 (I):
"Uncontested cases in which a custom was alleged to exist are very good proof of any alleged custom, for the greater the strength of the custom, the less probability is there of anybody attempting to controvert it."
13. Under these circumstances, the statement of Dhan Singh considerably supports the defendants' case. After discussion of the oral and documentary evidence His Lordship proceeded:
14. Such being the evidence on the record, I am of the opinion that the Court below has rightly held in favour of the defendants on issue No. 1, i.e. to the effect that in matters of succession, Christians of Kotgarh are governed by a custom whereby sons inherit to the exclusion of daughters. Parties are Christians of Kotgarh and are governed by that custom.
15. In view of my earlier finding that it is open to the defendants to rely on the custom, alleged and proved by them, it follows that the plaintiff must be non-suited.
16. ORDER: I allow this appeal, set aside the judgment and 'decree of the Court below and dismiss the suit. The appellants will get their costs here and in the Court below, from the plaintiff-respondent.