H.S. Thakur, J.
1. The dispute between the parties relates to a small area of land, measuring 4 marlas. The appellants (hereinafter to be referred to as the 'plaintiffs') instituted a suit in the Court of Sub Judge at Una for possession of the land in dispute. The trial court decreed the suit of the plaintiffs. Aggrieved by the said decree and judgment, the respondents (hereinafter to be referred to as the 'defendants'), preferred an appeal before the learned District Judge, who allowed the appeal and set aside the decree passed in favour of the plaintiffs. The plaintiffs have challenged the decree and judgment passed by the learned District Judge and have preferred this appeal.
2. Necessary facts for the decision of this appeal may briefly be stated. One Tulsi was the occupancy tenant of the land in dispute. He died issueless on March 25, 1953 and was survived by his widow, Smt. Hazari. Soon after the death of Tulsi the Act known as The Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (hereinafter to be referred to as the Act) was passed and, after the assent of the President was received on 14th April, 1953, it was published in the Punjab Gazette Extraordinary, dt. 15th April, 1953. The Act was, however, given retrospective effect from 15th June, 1952 and it was provided that all rights, title and interest (including the contingent interest, if any) recognized by any law, custom or usage for the time being in force and including the shares in the Shamilat with respect to the land concerned) of the landlord, in the land held under him by an occupancy tenant, shall be extinguished, and such rights, title and interest shall be deemed to have vested in the occupancy tenant free from all encumbrances, if any, created by the landlord with effect from the aforesaid date. As such, Tulsi is deemed to have acquired all the rights in the land in dispute by operation of law with effect from 15th June, 1952 though he died in Mar. 1953. As such, Smt. Hazari inherited the property of her husband as a widow on the death of her husband which took place on 25th March, 1953. After Smt. Hazari inherited the estate, she sold the property in dispute to the plaintiff by executing a registered sale-deed on 31st Aug. 1962.
3. According to the plaintiffs, the defendants illegally trespassed into the land in dispute and put up a 'Chapper' (hatchet) on a portion of the said area. The plaintiffs filed the suit for the possession of the disputed area. The defendants put up a plea, that since Smt. Hazari had remarried and had also given birth to four/five children, she had lost her right in the property in dispute due to her remarriage and unchastity, according to the prevalent custom. It may be pointed out that the trial court repelled the plea of the defendants that Smt. Hazari had either remarried or had become unchaste after the death of her husband. Consequently, the suit of the plaintiffs was decreed. On appeal the learned District Judge reversed the findings of the trial court and held that re-marriage and unchastity of Smt. Hazari had been established. The learned District Judge consequently held that Smt. Hazari had lost all her rights in the property. As a result of the above conclusion, it was held that the sale made by her in favour of the plaintiffs was ineffective and did not confer any rights on them under the sale.
4. Aggrieved by the said decree and judgment passed by the lower appellate court, the plaintiffs have preferred this appeal.
5. Sh. Bhardwaj, learned counsel for the appellants, has canvassed only a legal plea before me and has asserted that the appeal can conveniently be disposed of on this legal point alone. His solitary contention is that assuming, of course, without conceding that Smt. Hazari had re-married or had become unchaste after the death of her husband, she was not divested of her rights in the property inherited by her, as the said property was not ancestral property and accordingly the alleged custom was not applicable to the case. Precisely, the plea of the learned counsel is that such a custom, if at all applicable, would apply only to ancestral property and not otherwise. The learned counsel has referred to a decision in Faqiria v. Mt. Rajo, AIR 1957 Punj 79. The point involved in this judgment was whether the property acquired by operation of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, could be termed as an ancestral property or not. The facts were that in the (Rent settled under Revenue Law --Ed.) jamabandi of 1945-46, Wazira son of Bhupa was shown to be the occupancy tenant. Under the said. Act, he became the owner of the land held by him as an occupancy tenant, on payment of statutory compensation. It was observed that Bhupa father of Wazira was not the owner of the property but on 15th June, 1952, by operation of law, Wazira became the owner of the property, and as such, Wazira was the first person who acquired ownership rights in the land and the property could not be termed as an ancestral property.
6. Shree Bhardwaj has also drawn my attention to a decision in Nand Lal v. Onkar Nath (1970) 72 Pun LR (Delhi) 46. In that judgment, the main question was whether customary law would apply to non-ancestral property or not. The learned Judge after coming to the conclusion that the property was non-ancestral observed as under :
'Since I find the present appeal can be decided on the question whether the property comprised in the sale deed Ex. D-1, 1/6th share of Mst. Kirpi in Khata Number 53, is ancestral or non-ancestral and if it is non-ancestral whether the custom will govern this property I will not go into other contentions raised before me. Reference has been made to a Full Bench decision of the Lahore High Court in Mt. Hurmate v. Hoshiaru, (AIR 1944 Lahore 21) where it was held as under : -- 'In the Punjab, Manuals of Customary law should be taken to relate to ancestral property only unless there is a clear indication in them to show that they do contemplate self-acquired property as well.'
The decision was approved by the Supreme Court in Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041. Decisions of the Punjab High Court reported in Mst. Ajmero v. Mst. Gurdevi, (195a (60) Pun LR 253), Moti Sagar v. Paras Ram (1960 (62) Punj LR 857) and Smt Bui v. Ganga Singh (1959 (61) Punj LR 145) are also to the effect that the Riwaji-Am covered only ancestral property. Customary Law of the Kangra District complied by L. Middleton contains the question No. 47 which reads as under:--
'Question : What is the effect of unchastity upon the rights of a widow to the estate of her husband? What is the effect of her remarriage?
Answer : Generally a widow on re-marriage loses her estate; also unchastity, if proved e.g., by the widow leaving her husband's house or by her having an illegitimate child, involves loss of her husband's estate. The Thakars, Rathis, Jats and Ghirth of Nurpur Tehsil assert that re-marriage involves loss of her estate, but if she has an illegitimate child she cannot be ejected from her husband's estate of which she retains possession provided she lives in his house.'
Nothing contains in the question or in the answer given to this question suggests that this was in relation to non-ancestral property. I am, therefore, of the opinion that the forfeiture about which the question was asked was with respect to ancestral property only.'
7. Mr. P. N. Nag, learned counsel for the defendants has not referred to any decision in which a contrary view has been taken.
8. As pointed out earlier above, Smt. Hazari succeeded to the estate of her husband as his widow. Her husband was an occupancy tenant of the land in dispute and acquired proprietary rights therein by operation of law. As such, it became his self-acquired property. Once it is found that the property inherited by Smt. Hazari was not ancestral, it can be safely held that the alleged custom will not apply to the land in dispute. As such, the sale made by Smt. Hazari in favour of the plaintiffs is valid and they are entitled to the possession thereof.
9. The result of the above discussion is that the decree and judgment passed by the learned Additional District Judge is set aside and the appeal is allowed. In view of the peculiar circumstances of the case, the parties are left to bear their own costs.