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CASE NO.: Appeal (civil)  12395 of 1996

PETITIONER: Smt. Ass Kaur (Deceased) by L.Rs

RESPONDENT: Kartar Singh (Dead) by L.Rs. & Ors

DATE OF JUDGMENT: 18/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       1.      A question of some importance in relation to applicability of  custom in the matter of  inheritance and succession under the Hindu  Women’s Right to Property Act, 1937 falls for our consideration in this  appeal which arises out of a judgment and order dated 21.01.1991 passed by  the High Court of Punjab & Haryana in Civil Regular Second Appeal No.  2166 of 1978.                  2.      The relationship between the parties is not in dispute, which  would appear from the following genealogical  table :

                                          Sohan Singh                                   ---------------------------------------------------------------------------                           |                                              |                                            |         Jiwan Singh                   Hira Singh-Wife Raj Kaur      Relu Singh-Wife Sobhi \026 Raj K aur      [died before                                 |                                  |                          [Wife] 09.12.84]                                Sham Singh                             |            

       |                                  |                    ------- -------------------- ----         |                            Nand Singh         |              |                     |         |                           [Deft. No. 4 ]      Inder Singh   Mehar Singh   Ass Kaur         |                                                 [died in 1926]    [died in 1937]       [died]          |                                                                                  T hrough L.Rs.    -----------------------------    |            |               | Kartar        Gulzar        Mukhitiar    Singh       Singh            Singh [Deft.No.1] [Deft. No. 2]  [Deft. No.3]                                 [died]              Represented through L.Rs.

       3.      We are  concerned with the branch of Relu Singh.  He had two  wives, namely, Sobhi and Raj Kaur.  Raj Kaur was originally married to the  brother to his brother Hira Singh, who had died in the year 2001.  Relu  Singh married to Raj Kaur on the death of brother under the customary law  of the land.  Relu Singh died in the year 1907.  He was succeeded by his two

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wives and two sons Inder Singh and Mehar Singh alias Dalip Singh and  daughter, the appellant.  Inder Singh died in the yar1926 and Mehar Singh  died in the year 1937.  Sobhi, the first wife of Relu Singh and the mother of  Mehar Singh and Inder Singh, died in the year 1950.   Raj Kaur died about  five years prior to the institution of the suit i.e. in the year 1970.  Ass  Kaur,  daughter of Sobhi and sister of Mehar Singh and Inder Singh claimed =  share in the property.  The defendants-respondents contended that after the  death of her husband Hira Singh, Raj Kaur contracted Karewa marriage with  Relu Singh in accordance with custom.  She had a son through Hira Singh.   It was urged that under the Punjab customary laws governing inheritance  and succession of Sidhu Jats after the death of Relu Singh, his two sons and  two widows succeeded to his  estate.  After the death of Inder Singh and  Mehar Singh, their properties were mutated in the name of their mother  Sobhi and their step mother Raj Kaur.  Again purported to be in terms of the  rule of survivorship in accordance with the local and tribal customs her  name was mutated after the death of Sobhi.  She remained in exclusive  possession of the said property and upon coming into force of the Hindu  Succession Act, 1956, she became the absolute owner thereof.  It was also  contended that Sobhi was a limited owner and on her death in the year 1950,   Raj Kaur succeeded to her by rule of survivorship.  It was furthermore  pleaded that under the customary law, the appellant herein had no right of  succession in preference to the widow.   

       4.      The courts below while holding that the appellant herein was  daughter of Sobhi, opined that the parties were governed by the customary  laws  in the matter of inheritance and succession  in terms whereof Raj Kaur  succeeded to the estate of  Relu Singh after the death of Sobhi and that her  estate was enlarged into full ownership after coming into force of the Hindu  Succession Act.  The High Court held :          "\005Smt. Sobhi died on December 3, 1953 and mutation  regarding her share was made in favour of Smt. Raj Kaur  being the co-widow of her late husband Relu Singh on  July 31, 1955 i.e before coming into force of Hindu  Succession Act.  In para 13 of the Rettigan on Customary  Law, on the death of a co-widow the other surviving  widow takes the property survivorship.  Revenue  Officers rightly sanctioned the mutation of the estate of  Smt. Sobhi in favour of Smt. Raj Kaur, her co-widow\005"   

       5.      Keeping in view the importance of the question involved, as  also the fact that nobody appeared on behalf of the respondents,  we  requested Mr. R. Sundravardan, the learned Senior Counsel, to assist us in  the matter.   

       6.      Contentions of Mr. Sundravardan and Mrs. Palli are  as under :

i)      Relu Singh having only 1/3rd share in the property; the other co-         sharers thereof being Inder Singh and Mehar Singh, on his death his          1/3rd share devolved upon his two wives jointly as also, his two sons          Inder Singh and Mehar Singh.   ii)     On Inder Singh’s death his interest in the property devolved upon          Mehar Singh who became the absolute owner in respect thereof.  On          Mehar Singh’s death which took place on 05.06.1937, the properties          devolved upon his mother Sobhi.  On Sobhi’s death, in terms of the          provisions of the Hindu Law of Inheritance (Amendment) Act, 1929,          (1929 Act)  the appellant herein succeeded her as heir of Relu Singh. iii)    Sobhi having life interest in the property,  on her death the same          devolved upon the appellant herein as daughter of Relu Singh, as  a          reversioner. iv)     A step mother being not an heir or a relation for the purpose of          inheritance and succession;  she could not inherit the interest of Inder          Singh and Mehar Singh.   v)      Custom prevailing in the family which had been relied upon being a

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       general custom and not a special or personal custom would be          subservient to the 1929 Act and Hindu Women’s Right to Property          Act, 1937  being Act XVIII of 1937.   vi)     Purported reliance upon the customary law by the courts below is          misplaced.

       7.      Before embarking on the contentions of the learned counsel, we  may notice the following findings of the courts below, wherein it is stated  that Sidhu Jats were governed by Zimindara custom :

       "There is no dispute that the defendants are Sidhu  Jats who are predominantly agricultural tribe and were  governed by agricultural custom in matters of  marriage  succession alienation etc.  Necessary evidence on the  point has been supplied by all the witnesses of the  defendant who were pushed in to prove relationship of  Sham Singh, Raj Kaur and Hira Singh as their son.  It  may also be observed that though the defendants denied  in the written statement that the suit property was allotted  during consolidation of holding in lieu of the land held  by Relu the learned counsel for the defendants made their  statements on 26.3.1977 admitting this fact.  The copies  of the revenue record Exhibits D3 to D30, however  establish beyond doubt that the suit land was held by  Sohna Singh father of Relu Singh and Hira Singh and  after his death it was inherited by them.  It is therefore  the common case of the parties that the suit land was  ancestral  in the hands of  Relu Singh.  Now at the time  of the death of Relu Singh about 60 years back these  Sidhu Jats of Muktsar Tehsil who were obviously  governed by Zimindara custom, the daughter was in the   presence  of sons.  No share was to be given to the  plaintiff at the time of the death of her father Relu Singh  and this estate was mutated correctly in the names of  Inder Singh and Mehar Singh alias Dalip Singh.   Similarly after the death of Inder Singh the estate was  mutated in the name of his other brother Mehar Singh.   However, when Mehar Singh died issueless, the estate  reverted back to his father and Sobha and Raj Kaur  succeeded to her not as her mother or step mother but as  widows of his father\005"                

       8.      There cannot be any dispute in law that Raj Kaur did not inherit  the interest of Mehar Singh in whom the interest of Inder Singh had also  vested upon his death.  His interest under the general law had devolved upon  Sobhi.  The question, however,  which remains as to whether in a case of  this nature the customary law would prevail in regard to the question as to  whether  Appellant or the said Raj Kaur inherited the interest of Sobhi.   

       9.      Custom is one of the three sources of Hindu Law. Custom may  override a statute subject, of course,  to a clear proof of usage.                  10.     Hindu law recognizes three types of customs : local custom,  class custom and family custom.  The courts below have held that the parties  were governed by Zimindara custom.  Whether the said custom is  a general  custom, or a special custom or for that matter a family custom has not been  stated.  The customary law prevailing in the State of Punjab has received a  statutory sanction by reason of  the Punjab Laws Act,  1872, Sections 5 and  7 whereof  read as under :

       "5. Decisions in certain cases to be according to  Native law.- In questions regarding succession, special  property of females, betrothal, marriage divorce, dower,  adoption, guardianship, minority, bastardy, family

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relations, wills, legacies, gifts, partitions, or any religious  usage or institution the rule of decision shall be \026

       (a)     any custom applicable to the parties  concerned, which is not contrary to justice, equity or good  conscience, and has not been by this or any other  enactment altered or abolished, and has not been declared  to be void by any competent authority.

       (b) the Muhammadan law, in cases where the parties  are Muhammadans and the Hindu law, in cases where the  parties are Hindus, except in so far as such law has been  altered or abolished by legislative enactment, or is opposed  to the provisions of this Act, or has been modified by any  such customs as is above referred to."                        "7.  Local customs and mercantile usages when  valid.-All local customs and mercantile usages shall be  regarded as valid, unless they are contrary to justice, equity  or good conscience, or have, before the passing of this Act,  been declared to be void by any competent authority."

                11.     Amongst the Sikh Jats of Punjab province, there exists a  custom, where the widow marries her first husband’s  brother in the Karewa  form, remarriage would not cause forfeiture of her own share. [See  Chunnilal v. Mst. Attar Kaur \026 AIR 1933 Lah. 69].   

       12.     In respect of Jats belonging to  Firozepur district, it has been  held that a widow who remarried her first husband’s brother succeeds to a  co-widow in  preference to collaterals.  But the widow’s right only accrues  on husband’s death, and if it does not accrue then, it cannot accrue later by  the death of subsequent heir.  The fact, if the widow is a Karewa widow it  would not affect her right in a suit the parties to which were the two widows  of a Manhas Rajput resident in the Shakargarh Tehsil of Gurudaspur  District, had that the plaintiff (upon whom under the circumstances the onus  lay) had failed to prove a custom in her favour, excluding the defendant,  who was a co-widow by a Karewa  marriage, from succeeding to a share in  the deceased husband’s estate  (Mst. Dakho v. Mst. Gano \026 22 P.R. 889].   Even a woman who had contracted such marriage may not forfeit her life  estate, if any, in her deceased husband’s property despite the provisions of  the Hindu widows Remarriage Act, 1856.  However, the said principle  would not apply where a remarriage is not with the brother of her deceased  but with some other relative.    

       13.     In Shrimonai Gurdwara Parbandhak Committee and Others v.  Harcharan Singh [AIR 1934 Lahore 1], a Division Bench of the Lahore High  Court  held :                                  "First of all, it was objected  that Harcharan Singh  was not the legal representative of his deceased brother  Gurcharan Singh, but that his mother Mr. Uttam Kaur,  was his legal representative.  Counsel for Harcharan  Singh stated before the Tribunal that he had no objection  to the mother also being impleaded as the legal  representative of the deceased Gurcharan Singh, if it was  held that she was one.  It was denied however that she  was the legal representative of the deceased Gurcharan  Singh, and this contention was upheld by the Tribunal on  the unrebutted testimony of the witness examined.  There   is no question that this decision is right.  A mother as a  rule in the Punjab, where custom is the rule of decision,  only succeeds when there are no sons and the succeeds  not as the mother of the sons but as the widow of her

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deceased husband.  See in this connection the replies to  questions 35, 41 and 53 of Currie’s Customary Law of  the Ferozepore  District.  In reply to the last question  there is a note to the effect that the mother succeeds  really as the widow of her husband and not as the mother  of the last owner.  There are numerous decisions to this  effect as well.   It follows that, where there are sons they  exclude the mother and if a son dies he is succeeded by  his brother but when the last surviving son dies without  issue then the mother succeeds in her capacity as widow  of her deceased husband.  I may here refer to one  authority that of a Full Bench, reported as Mt. Desi v.  Lehna Singh.  It is clear from this case that there were  two sons who both died without issue and it was not till  the death of the second that their mother set up a claim as  against the collaterals.  She was however non-suited on  the ground that she had remarried and could not therefore  be looked upon as the widow of her first husband."     

                                                              [Emphasis supplied]

       14.     Yet again in Diwan Singh and Another v. Natha Singh and  Others [AIR 1937 Lahore 468], it was held :          "\005The case of a mother inheriting property on the  death of her son obviously stands on a different footing  and cannot, I think, be considered to be analogous to  the present case.  In the present instance, it seems clear  that when the widow Mt. Utmi succeeded collaterally  on the death of Jowala Singh and Mihan Singh, she  succeeded to the estate as the representative of her  husband and not of Jowala Singh or  Mihan Singh.   Consequently on her death the estate must, I think, be  treated as though Prem Singh himself had succeeded to  it\005"  

       15.     Our attention has, however, been drawn to a decision of this  Court in Ujagar Singh v. Mst. Jeo [AIR 1959 SC 1041], wherein this Court  upon  noticing a large number of conflicting decisions,  came to the  conclusion that existence of a general custom entitling the collaterals to  succeed in preference to sister had not been proved.  It, therefore, seemed to  Their Lordships that in the interest of justice the respondent therein (sister)  should succeed in the suit as her brother’s heir under the Hindu law.  

       16.     In absence of any proof of custom, indisputably the Hindu Law  would apply.  A’ fortiori Hindu Law of Inheritance (Amendment) Act, 1929    in terms whereof a sister becomes an heir in preference to the collaterals  would be applicable in regard to devolution of property.

       17.     We may, however, notice that customary law has been recorded  in Rattigan’s Digest of Customary Laws.  The courts below have  categorically held the law to be applicable in the instant case is the  customary law having regard to the fact that the parties belonged to the  community of Sidhu Jats.  

       18.     In R.B.S.S. Munnalal and Others v. S.S. Rajkumar and Others  [AIR 1962 SC 1493], this Court was considering the question as to whether  a Jain widow could adopt a son to her husband without his express authority,  being governed by the custom which had  by long acceptance become part of  the law applicable to them.  Therein, it was observed :

"\005It is well-settled that where a custom is repeatedly  brought to the notice of the Courts of a country, the

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courts may hold that custom introduced into the law  without the necessity of proof in each individual  case\005"

       19.     The court can also take judicial notice of such customs in terms  of Section 57 of the Evidence Act, 1872.  As and when custom has  repeatedly been recognized by the courts, the same need not be proved.   Reference in regard to the Punjab ’general custom’ may be made to Ujagar  Singh (supra), and Bawa v. Taro [AIR 1951 Punjab 239]                    

       20.     In Harcharan Singh v. Mohinder Kaur [AIR 1987 P&H 138]   Paragraph  22 of the Rattingan’s Digest was noticed, holding that in terms  thereof there is a custom in Punjab to the effect that in default of male lineal  descendants and of a widow the mother of the deceased succeeds to a life  interest, provided she had not remarried. It reads as under :

"22.    In default of male lineal descendants and of a  widow the mother of the deceased succeeds to a life  interest, provided she has not remarried."                       

       21.     In Chunnilal (supra), Lahore High Court observed :     

       "Where a person dies leaving two widows and one  of them remarries the whole estate of the deceased passes  to the other widow and the mere retention of the re- married widow’s name in the revenue records would not  place her in adverse possession of her share qua the co- widows and owing to her intervening between the estate  and the reversioner the latter’s rights would not be  affected."  

       22.     The learned trial Judge categorically held that Relu Singh  belonged to Sidhu Jats of  Muktsar Tehsil, who were governed by Zimindara  custom, stating :

"\005Since the property was ancestral according to para 13  of the   Digest of customary law on the death of one of  the two co-widows the survivor took the entire estate by  survivorship.  Raj Kaur was therefore entitled to succeed  to the estate of Sobhi by the rule of survivorship to the  exclusion of the plaintiff\005"                  

       23.     Para 13 of the said Digest reads as under :

                        "13.    On the death of one of two co-widows the survivor  takes by survivorship, even if she has remarried by  Karewa, provided such re-marriage has not caused a  forfeiture of her own share."     

       24.     Rattigan’s Digest was also referred to by this Court in Daya  Singh (Dead) through L.Rs. and Another v. Dhan Kaur .[AIR 1974 SC 665 :  (1974) 1 SCC 700], but therein again existence of such a custom had not  been proved.  It is no doubt true that if the1929 Act applies, the appellant  would succeed to the interest of her brother after her mother’s death; but  the  said Act of 1929 is also subject to applicability of customary law.

       25.     As statutory law did not exclude the applicability of the  customary law, the principle that customary law would prevail over the  statutory law would apply.  It was so found by the courts below.

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       26.     A serious contention was raised that the validity of customs  must be judged on the touchstone of justice, equity and good conscience.   No such contention had been raised before the learned Trial Judge or before  the High Court.  It is one thing to say that customary law had no application  or the custom had not been proved; but it is another thing to say despite its  acceptance and proof the same should not be applied on the ground of  equity, justice and good conscience.  We, therefore, cannot go into such a  contention.  

       27.     No contention had also been raised before the courts below that  the custom in question is not a special or local custom, but merely a general  custom.  Such a contention again cannot be allowed to be raised for the first  time before this Court particularly in view of the fact that they have  categorically held that the Jats are governed by customary law; the principle  being ’keeping of  the property within the family’.   

       28.     Raj Kaur, who was a widow of Hira Singh, was married to  another brother just to safeguard the family property.  She succeeded under  the customary laws to her husband after the death of her co-widow.  In that  view of the matter, if the daughters who were married were to be excluded  by customary law, no exception thereto can be taken.

       29.     In Daya Singh (dead) through L.Rs. (supra), paragraph 23 of  Rattingan’s Digest of Customary Law of Punjab has been noticed.  It was  held :   "It is on the basis of this Customary Law that the  reversioners succeeded in the suit filed by them  questioning the gift made by the respondents mother to  her. There is no doubt that Rattigans work is an  authoritative one on the subject of Customary Law in  Punjab. This Court in Mahant Salig Ram v. Musammat  Maya Devi said: The customary rights of succession of daughters as  against the collaterals of the father with reference to  ancestral and non-ancestral lands are stated in para 23 of  Rattigans Digest of Customary Law. It is categorically  stated in sub-para (2) of that paragraph that the daughter  succeeds to the self-acquired property of the father in  preference to the collaterals even though they are within  the fourth degree. Rattigans work has been accepted by  the Privy Council as a book of unquestioned authority in  the Punjab. Indeed, the correctness of this para was not  disputed before this Court in Gopal Singh v. Ujagar  Singh "

       30.     However, therein the customary law was not applied in view of  the application of Section 8 of the Hindu Succession Act, 1956.   

       31.     We may furthermore notice that the customary law has been  specifically been excluded in terms of Section 4 of the Hindu Succession  Act, 1956.  If the intention of the makers of the statute in the 1929 was to  completely exclude the applicability of the customary law, it would have  been said so explicitly.   

       32.     Reliance has been placed on Smt. Dipo v. Wassan Singh and  Others [(1983) 3 SCC 376], wherein the sister was held to be a preferential  heir  as it was found that the entire property was an ancestral property,  stating :        "\005We also proceed on the basis that according to the  prevailing custom of the area, collaterals and not the  sister are preferential heirs to ancestral property in the  hands of a propositus, while the sister and not the  collateral is a preferential heir in regard to non-ancestral  property. We must add here that we are not quite satisfied  that the custom has been properly established, but for the

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purposes of the present case, we proceed on the basis that  the custom has been established. But that is not the end  of the problem before us. No doubt the properties which  have been found by the lower courts to be ancestral  properties in the hands of Bua Singh are properties which  originally belonged to Bua Singhs ancestors. But Bua  Singh was the last male holder of the property and he had  no male issue. There was no surviving member of a joint  family, be it a descendant or otherwise, who could take  the property by survivorship. Property inherited from  paternal ancestors is, of course, ancestral property as  regards the male issue of the propositus, but it is his  absolute property and not ancestral property as regards  other relations. In Mullas Principles of Hindu Law (15th  Edn.), it is stated at p. 289: . . . if A inherits property, whether movable or  immovable, from his father or fathers father, or  fathers fathers father, it is ancestral property as  regards his male issue. If A has no son, sons son,  or sons sons son in existence at the time when he  inherits the property, he holds the property as  absolute owner thereof, and he can deal with it as  he pleases. . . .                         *                *              * A person inheriting property from his three immediate  paternal ancestors holds it, and must hold it, in  coparcenary with his sons, sons sons and sons sons sons,  but as regards other relations he holds it, and is entitled to  hold it, as his absolute property. Again at p. 291, it is stated: The share which a coparcener obtains on partition  of ancestral property is ancestral property as  regards his male issue. They take an interest in it  by birth, whether they are in existence at the time  of partition or are born subsequently. Such share,  however, is ancestral property only as regards his  male issue. As regards other relations, it is  separate property, and if the coparcener dies  without leaving male issue, it passes to his heirs by  succession. 3. We are, therefore, of the view that the lower courts  were wrong in refusing to grant a decree in favour of the  plaintiff as regards property described by them as  ancestral property. The defendants were collaterals of  Bua Singh and as regards them the property was not  ancestral property and hence the plaintiff was the  preferential heir. The plaintiff was entitled to a decree in  respect of all the plaint properties\005"

       33.     There is no dispute in regard to the aforementioned proposition  of law.  To the same effect is the decision of this Court in Dharma Shamrao  Agalawe v. Pandurang Miragu Agalawe and Others [(1988) 2 SCC 126] and  Sheela Devi and Others v. Lal Chand & Another [2006  (10) SCALE 75]   The said decisions, however, for the reasons stated hereinbefore, have no  application in the fact of the present case.         34.     For the reasons aforementioned, the appeal being devoid of any  merit is dismissed.  However, in the facts and circumstances of the case,  there shall be no order as to costs.