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PETITIONER: SADA KAUR

       Vs.

RESPONDENT: BAKHTAWAR SINGH AND ORS.

DATE OF JUDGMENT24/07/1980

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. UNTWALIA, N.L.

CITATION:  1980 AIR 2138            1981 SCR  (1)  85  1980 SCC  (4) 174

ACT:      Hindu Law-Dhaliwal  Jat Sikhs of Muktsar-Widow marrying her late  husband’s brother-If forfeits life interest in the estate of  her deceased  husband-Riwaj-i-am  and  Rattigan’s Digest of  customary law in Punjab-In case of conflict which should prevail.

HEADNOTE:      The first three respondents and the deceased husband of the appellant  who were  Dhaliwal jats  of Muktsar Tehsil in Ferozepur District  of Punjab were brothers. After the death of her  husband the appellant married the younger brother of her late  husband in  Karewa form. The first two respondents filed a  suit for  a declaration that having married for the second time, the appellant had forfeited her interest in her deceased husband’s  estate and  that they  were entitled  to two-third share of the land in her possession.      The appellant  on the other hand claimed that they were governed by  customary law  and according  to their custom a widow  marrying  her  deceased  husband’s  brother  did  not forfeit her  interest in the estate of her deceased husband. In replication  the respondents stated that according to the custom governing  Dhaliwal jats  of Tehsil  Muktsar a  widow remarrying even her deceased husband’s brother forfeited her right in the estate.      The trial  Court declined to grant the declaration, but the District  Judge allowed the plaintiffs’ appeal. The High Court did  not accept the appellant’s claim that there was a special custom.      Dismissing the appeal ^      HELD: The  High Court  was right  in holding that there was no  special custom among Dhaliwal jats of Tehsil Muktsar which permitted  a widow,  on remarriage  with her  deceased husband’s brother,  to retain  her interest in the estate of her deceased husband.      It is well-known that custom in the Punjab changes from district to  district,  tehsil  to  tehsil  and  pargana  to pargana. [88A]      It has  been held  by this  Court that  entries in  the riwaj-i-am compiled  in 1915  by Currie, Settlement Officer, are relevant  evidence under section 35 of the Evidence Act.

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[88F-G]      Mahant Salig  Ram v.  Mst. Maya Devi, [1955] 1 SCR 1191 and Jai  Kaur and  others v. Sher Singh and others, [1960] 3 SCR 975 referred to.      Entry 47 of the riwaj-i-am states that whenever a widow re-marries, even  if she marries the brother of her deceased husband, she  loses her  right  to  her  deceased  husband’s estate and that the estate reverts at once to his agnates. 86 As regards  the effect of re-marriage, all tribes that admit widow re-marriage  agree  that  no  matter  whom  the  widow marries she  forfeits all  rights to  her deceased husband’s estate. [89D]      Another authoritative  compilation is Rattigan’s Digest of Customary  Law in the Punjab. But when custom as recorded in the  riwaj-i-am is in conflict with the general custom as recorded in  Rattigan’s Digest or ascertained otherwise, the entries in  the riwaj-i-am would ordinarily prevail. On this aspect of  the custom  there is  no conflict between the two because Rattigan’s Digest also states that in the absence of custom, the  re-marriage of  a widow  causes a forfeiture of her life  interest in  her first husband’s estate which then reverts to the nearest heir of the husband. [90E-F]      One of  the exceptions recorded to this general custom, however, is  that among  certain tribes  re-marriage in  the Karewa form  with the  brother of  the deceased husband does not cause  a forfeiture  of the  widow’s life  estate in the property of  her first husband. But among the cases cited in support of  the special  custom relating  to  Sikh  jats  of certain districts  of Punjab there is no mention of Dhaliwal jats of  Tehsil Muktsar.  It was  for the first time that in the 12th  edition of  Rattigan’s Digest published long after his death  that an  exception was added that by custom among the Sikh  jats of  the Punjab  a widow  does not forfeit her life estate  in her deceased husband’s property by reason of her remarriage  in Karewa  form with  her husband’s brother, whether he  be the sole surviving brother or there are other brothers as  well of  the deceased.  Sant Singh  v. Rari Bai (AIR 1924  Sindh 17=76  Indian  Cases  408)  on  which  this exception is  purported to  be based  does not  lay down any such broad proposition to justify the statement added in the 12th edition  of Rattigan’s  book. In  Sant Singh’s case the parties were Sikh jats from Jullundur District and Basant v. Pratap (51  Punjab Record  1911) on  which the  Sant Singh’s case  relied  the  parties  were  Sikh  jats  from  Ludhiana District. But  the headnotes  in both cases stated it as the custom "among  Sikh jats  in the  Punjab" which  clearly  is wrong. Therefore,  it cannot  be said that there is any real conflict between  riwaj-i-am and  Rattigan’s Digest  on this point. The  statement in  Charan Singh v. Gurdial Singh, AIR 1961 Punjab  301 that  among  jats  governed  by  custom  in matters  of   succession  a   widow  marrying  her  deceased husband’s brother  remains entitled to collateral succession in the  family is too wide having regard to the facts of the case. [90H & 91A-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1057 of 1970.      From the  Judgment and  order dated  3-11-1969  of  the Punjab and Haryana High Court in R.S.A. No. 1456/64.      S. K. Sinha for the Appellant.      Hardev Singh,  S. K.  Bagga and  Mrs. S.  Bagga for the

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Respondent.      The Judgment of the Court was delivered by      GUPTA, J.  This appeal  by certificate  granted by  the Punjab and Haryana High Court is from the judgment of a Full Bench  of   that  Court  answering  the  following  question referred to it: 87           "Whether by  universal custom  among the Sikh Jats      of the Punjab, a widow does not forfeit her life estate      in her  husband’s property  by reason of her remarriage      in Karewa  form with  her husband’s brother, and if so,      whether the custom admits of exceptions among different      tribes of  Sikh Jats  and in  particular among Dhaliwal      Jats of Muktsar Tehsil of Ferozepur District." The relevant  facts are  these. The first three respondents, Bakhtawar Singh, Jit Singh and Chand Singh, and the deceased husband of  the  appellant  Sada  Kaur  were  brothers.  The appellant’s husband died sometime in the year 1937 and a few months later  she married  the third  respondent Chand Singh who was a younger brother of her husband in Karewa form. The suit out  of which  this appeal  arises was  brought by  the first two  respondents, Bakhtawar  Singh and  Jit Singh,  as plaintiffs for a declaration that they were entitled to two- third share  of  the  land  in  possession  of  the  present appellant  Sada  Kaur  which  belonged  to  the  appellant’s deceased husband. Appellant Sada Kaur and her second husband Chand Singh  were  impleaded  as  defendant  Nos.  1  and  2 respectively. The plaintiffs’ case was that Sada Kaur having married for  the second  time had  forfeited her interest in her deceased husband’s estate. The parties are Dhaliwal Jats of Muktsar  Tehsil in  the Ferozepur  District of Punjab. In her written  statement Sada  Kaur pleaded  that the  parties were governed by customary law and according to their custom a widow  marrying her  deceased husband’s  brother  did  not forfeit her  interest in the estate of her deceased husband. The plaintiffs filed a replication stating that according to the custom  governing Dhaliwal  Jats of  Tehsil  Muktsar,  a widow on  remarrying even  her  deceased  husband’s  brother forfeited her  right in  the estate.  The only question that arises for  consideration in  the present  appeal is whether there  is  a  custom  governing  the  parties  to  the  suit according to  which on  remarriage the  widow  forfeits  her interest in the estate of her deceased husband as claimed by the  plaintiffs.   The  trial  court  declined  to  grant  a declaration as  asked for by the plaintiffs who preferred an appeal to  the District  Judge which  was allowed. Sada Kaur took a  second appeal  to the  High  Court  challenging  the decision of  the lower  appellate court.  The learned single Judge before  whom the second appeal came up for hearing was inclined to  accept the  plaintiffs’ case  and  dismiss  the appeal but felt that a Full Bench of three learned Judges of the Punjab  High Court  in an  earlier case, Charan Singh v. Gurdial Singh(1)  appeared to  have taken a contrary view on the question  and referred  the appeal  to a larger bench. A Division Bench  of the  High Court  thereafter referred  the case to  a Full  Bench of five Judges and it is the Judgment of this Full Bench that is under appeal before us. 88      In Mara  and others  v. Nikko  and others(1) this Court observed that  it is "well known" that "custom in the Punjab changes from  District to  District, Tehsil  to  Tehsil  and Pargana to Pargana". The judgment under appeal relies mainly on the  riwaj-i-am of Ferozepur District compiled in 1915 by M. M.  L. Currie,  Settlement Officer. The evidentiary value of the  entries in the riwaj-i-am has been discussed in more

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than one decision of this Court. In Mohant Salig Ram v. Mst. Maya Devi(2) it was held:           "There is  no doubt  or dispute as to the value of      the entries  in the riwaj-i-am. It is well settled that      though they  are entitled  to an initial presumption in      favour  of   their  correctness   irrespective  of  the      question whether  or not the custom, as recorded, is in      accord with the general custom, the quantum of evidence      necessary to rebut that presumption will, however, vary      with the facts and circumstances of each case. Whether,      for instance,  the riwaj-i-am  lays down  a  custom  in      consonance with  the general agricultural custom of the      province,  very  strong  proof  would  be  required  to      displace that  presumption; but  whether, on  the other      hand, the  custom as  recorded  in  the  riwaj-i-am  is      opposed  to   the  custom   generally  prevalent,   the      presumption will  be considerably  weakened,  likewise,      whether the  riwaj-i-am affects adversely the rights of      the  families   who  had  no  opportunity  whatever  of      appearing   before   the   revenue   authorities,   the      presumption  will  be  weaker  still  and  only  a  few      instances would be sufficient to rebut it." There is  however no material to suggest that the riwaj-i-am in this case suffers from any such infirmity.      In Jai Kaur and others v. Sher Singh and others(3) this Court has said:           "The  value  of  entries  in  the  riwaj-i-am  has      .......... been  repeatedly  stressed.  That  they  are      relevant evidence  under section 35 of the Evidence Act      is clear  and the fact that the entries therein are the      result of careful research of persons who might also be      considered to  have become  experts in  these  matters,      after an open and public inquiry has given them a value      which should  not be  lightly under-estimated. There is      therefore an  initial  presumption  of  correctness  as      regards the entries in the riwaj-i-am....."      Question No. 47 of Currie’s compilation reads: 89           "What is  the effect  of unchastity upon the right      of a widow to the estate of her deceased husband ? What      is the effect of her remarriage ?" The answer  to the  question in  so far  as  it  deals  with remarriage is as follows:           "At last settlement Mr. Francis wrote: ‘unchastity      or remarriage  deprives a  widow of  her right  to  the      property’. The  Muktsar Code  gives a  similar  answer.      ....... Further (on page 124) it says: Whenever a widow      remarries,  even  if  she  marry  the  brother  of  her      deceased husband,  she loses  her right to her deceased      husband’s estate,  which reverts at once to his agnates      (mostly  Sikh   Jats,  Kumhar,  Khatri,  Lohar,  Bodla,      Chishti, Wattu).  If a  son-less widow in possession of      her husband’s  estate marries his brother, she is often      allowed  to   remain  in  possession  of  her  deceased      husband’s  estate   for  her  life  time  (Bagri  jats,      Musalman jats and Rajputs) ...... As regards the effect      of remarriage,  all tribes  that admit widow remarriage      agree that  no  matter  whom  the  widow  marries,  she      forfeits all rights to her deceased husband’s estate." The answer  is followed  by a  note recorded by the compiler saying: "Despite  the rulings  to the  contrary ......  I am convinced that  the above answer is a true exposition of the custom". The rulings to the contrary which relate to jats of Ferozepur District  are: Didar  Singh  v.  Mst.  Dharmon(1), Punjab Singh  v. Mst.  Chandi(2) and  Mst. Indi  v.  Bhangra

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Singh(3). Out  of these three cases again only Didar Singh’s case relates  to Dhaliwal jats. The impugned judgment points out that  as against  these cases  the  riwaj-i-am  mentions numerous instances, 59 of them relate to Jats, which support the compiler’s  note that  on remarriage, no matter whom she marries, the  widow  forfeits  her  right  to  her  deceased husband’s estate.  There are  also three  instances  wherein remarriage did  not result  in  forfeiture  of  the  widow’s right. Didar Singh’s case which relates to Dhaliwal jats was of the  year  1888.  The  impugned  judgment  mentions  four instances  from   the  riwaj-i-am   of  the   years  1911-12 supporting the  case of  forfeiture. No  instance  has  been found  either  way  relating  to  Dhaliwal  jats  of  Tehsil Muktsar. However,  these four  instances relate  to Dhaliwal jats of  Tehsil Mogha which is adjacent to Muktsar. On these facts and  figures gathered from the entries in the riwaj-i- am, the  High Court  did not find it possible to accept that there was a special custom among Dhaliwal 90 jats of  Tehsil Muktsar  which permitted a widow who married her deceased husband’s brother to retain her interest in her deceased husband’s estate.      In reaching  this conclusion  the learned Judges had to deal with the earlier Full Bench decision of three Judges of the same  High Court,  Charan Singh v. Gurdial Singh (supra) in which  the view  taken by the majority, one learned Judge dissenting, is apparently in conflict with that taken in the judgment under  appeal. In  Charan Singh’s  case it was held that as  regards jats  governed  by  custom  in  matters  of succession, a  widow on  remarrying her  deceased  husband’s brother remains  entitled to  collateral succession  in  the family. The  parties in  that case  were  jats  from  Ambala District, and remembering that custom in Punjab often varies from district to district and tehsil to tehsil, it seems the proposition was  stated too  broadly in  Charan Singh’s case suggesting as  if this  was the custom among the jats in the entire State  of Punjab. The basis of the decision in Charan Singh’s case  is a  statement in Sir W. H. Rattigan’s Digest of Customary  Law in  the Punjab. The authoritative value of Rattigan’s compilation  has been  recognised  by  the  Privy Council in  Mst. Subhani  v. Nawab(1) and also by this Court in Mahant  Salig Ram  v. Mst. Maya Devi (supra) and Jai Kaur v. Sher  Singh (supra).  In Jai  Kaur’s case  however it was held that  "when the custom as recorded in the riwaj-i-am is in  conflict   with  the   general  custom  as  recorded  in Rattigan’s Digest  or ascertained  otherwise, the entries in the riwaj-i-am should ordinarily prevail......" Paragraph 32 of Rattigan’s  Digest on  which Charan  Singh’s case  relies states: "In the absence of custom, the remarriage of a widow causes a  forfeiture  of  her  life-interest  in  her  first husband’s estate  which then  reverts to the nearest heir of the husband".  It is  thus clear  that there  is no conflict between the  statement in Rattigan’s Digest and the entry in riwaj-i-am as  regards the general custom that remarriage of the widow  entails a forfeiture of her interest in her first husband’s estate.  However, a  number of  exceptions to this general custom have also been recorded. Exception 1 which is relevant for  the present  purpose  is  as  follows:  "Among certain tribes  a remarriage  in the  Karewa form  with  the brother of  the deceased husband does not cause a forfeiture of the  widow’s life  estate in  the property  of her  first husband." The  cases cited  in support of the special custom relate to  Sikh jats  of certain districts of Punjab, namely Sirsa, Amritsar, Ferozepur and Ludhiana. There is no mention in this catalogue of Dhaliwal jats of Tehsil Muktsar. It was

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for the  first time  in the  12th edition of Rattigan’s book which was  published long  after Sir  Rattigan’s death,  the following statement was added: "By custom among the 91 Sikh jats  of the  Punjab a  widow does not forfeit her life estate in  her deceased  husband’s property by reason of her remarriage  in  Karewa  form  with  her  husband’s  brother, whether he  be the sole surviving brother or there are other brothers as  well of  the deceased." A decision of the Sindh Judicial Commissioner’s  Court, Sant  Singh v.  Rani Bai(1), has been  cited there  in support  of the  statement. It has been pointed  out very  clearly by  the learned Judge in his order by  which he  referred the case to a larger bench that Sant  Singh’s   case  does  not  lay  down  any  such  broad proposition to  justify the  statement  added  in  the  12th edition of Rattigan’s book. The mistake results from relying on the  head note  of the  case as  appearing in  the Indian Cases as  also in  the All India Reporter. Sant Singh’s case in which  the parties were Sikh jats from Jullundur District relies on  a decision  of the Punjab Chief Court: "In Basant v. Pratapa(2)  a judgment of Punjab Chief Court, it was held that among the Sikh jats in the District of Ludhiana a widow does not  forfeit her  life estate in her deceased husband’s property by reason of her remarriage in Karewa form with her husband’s brother  whether he  be the sole surviving brother or there  are other  brothers as well of the deceased." What is found  there as  the custom  "among the  Sikh Jats in the District of  Ludhiana" appears  in the head notes of the two reports as  the custom  "among Sikh  Jats  in  the  Punjab". Clearly, the  head notes  are wrong  and do  not set out the decision correctly.  That being  so, it  cannot be said that there is  any  real  conflict  between  the  riwaj-i-am  and Rattigan’s Digest  on this point. In any event the statement cannot be attributed to Sir Rattigan.      Five learned  Judges of  the Punjab  and  Haryana  High Court composing the Full Bench, after a close examination of the  available   material  on  the  question  whether  among Dhaliwal jats  of Tehsil  Muktsar there  is a special custom which permits  a  widow  on  remarriage  with  her  deceased husband’s brother  to retain  her interest  in the estate of the deceased, have answered the question in the negative. On the material before us we find no reason to take a different view. The facts and figures gathered from the entries in the riwaj-i-am have  not been  challenged by the appellant, that the statement  introduced in  the 12th edition of Rattigan’s Digest is  wrong cannot  also be  questioned.  We  therefore dismiss the  appeal but  in the  circumstances of  the  case without any order as to costs. P.B.R.                                     Appeal dismissed. 92