(1.) This second appeal raises an important question of custom. Whether amongst Jats of Tehsil Kharar of Ambala District the sisters of the last male owner are preferential heirs as against his collaterals of the fifth degree regarding property which is not proved to be ancestral. One Kartar Singh, a Jat of Kharar Tehsil, owned 61 bighas 16 biswas of land in village Rasanheri and 36 bighas 4 biswas with share in Shamilat deh in village Tola Mazra. He died on the 6th of November, 1942 leaving a widow Mst. Kartari, a son Tej Pal and two daughters Mst. Gurdev Kaur defendant No. 1 and Mst. Tej Kaur defendant No. 2. Tej Pal died on the 17th of November, 1942, when the mutation proceedings regarding the property of Kartar Singh were still pending. On the 29th of November, 1942 mutation was ultimately sanctioned in favour of Mst. Kartari. On the 7th of August, 1944, Mst. Kartari made a gift of the property in village Tola Mazra to her daughters, Mst. Gurdev Kaur and Mst. Tej Kaur, and later died on the 6th of November, 1945. On the 29th of April, 1946, land in village Rasanheri was mutated in favour of Mst. Gurdev Kaur and Mst. Tej Kaur on the basis that they were the heirs after the death of Tej Pal and Mst. Kartari. The present suit was brought on the 11th of January, 1947, by Harnam Singh, who claimed himself to be a collateral of Tej Pal in the fifth degree. The plaintiff claimed that according to custom prevailing amongst Jats of Kharar Tehsil he was entitled to succeed to the property both the villages and that the gift in favour of the daughters regarding village Tola Mazra and the mutation in favour of the daughters regarding the other village could not bind him in any way. The defendant Mst. Gurdev Kaur and Mst. Tej Kaur contested the plaintiff's suit mainly on the ground that according to custom prevailing amongst Jats of Ambala District they were the legal heirs. They denied that the plaintiff was a collateral or that the property was ancestral. It was also claimed that defendant No. 2 was not married and that at any rate up to her marriage the defendants could retain possession of the land. The trial Court framed as many as eight issues and ultimately came to the conclusion that Tej Pal was the last male-holder of the land in suit, that he was the son of Kartar Singh, that the plaintiff was a collateral of Kartar Singh in the fifth degree, that the land in suit was not ancestral and Mst. Gurdev Kaur and Mst. Kartar Kaur were better heirs than the plaintiff. On these findings the plaintiff's suit was dismissed with costs. The plaintiff filed an appeal to the learned District Judge at Ambala which was dismissed on the 9th of May, 1949. Before the learned District Judge, findings of the trial Court on issue Nos. 1, 2, 3, 4 and 7 were not attacked by any of the parties and be was, therefore, called upon to decide only issue Nos. 5 and 6. The learned District Judge came to the conclusion that after Tej Pal's death without leaving an issue, succession was to be reckoned with reference to Kartar Singh and that, therefore, the two defendants succeeded to the property as daughters of Kartar Singh. He was of the opinion that collaterals of the fifth degree could not be preferred to the daughters of Kartar Singh in respect of succession to non-ancestral property. The plaintiff has come up to this court in second appeal.
(2.) Mr Shamair Chand, learned counsel for the plaintiff-appellant, contends that the finding of the learned District Judge that Mst. Kartar Kaur and Mst. Gurdev Kaur could be treated for the purposes of succession as daughters of Kartar Singh and not as sisters of Tej Pal is not correct, and for this purpose he relies on a Full Beach Judgment Hamira v. Ram Singh, 74 PunLR 1908 and also on Saidan Bibi v. Fazal Shah, Civil Appeal No. 599 of 1904, a Division Bench judgment in Civil Appeal No. 599 of 1904 printed at pp. 646 and 650 of the same volume of the Punjab Record 1907 as an appendix to the judgment of the Full Bench referred to above. There is no doubt that according to the Punjab custom when the male line of a descendant has died out, it is treated as never having existed, and the last male holder who left descendants is regarded as the propositus; vide Rani v. Makhi, 146 P.R. 1889 and Mamun v. Mst. Jowai, I.L.R. 8 Lah. 214 etc., etc. Custom is, however, not logical and for the purposes of succession of sisters it was expressly found by the Full Bench that the rule aforesaid did not exist and that sisters of the last male holder could not be treated for the purposes of succession as daughters of the father of the last male-holder. In Saidan Bibi v. Fazal Shah , Civil Appeal No. 599 of 1904, this point was considered at great length and in Hamira v. Ram Singh , the Full Bench expressly stated that they agreed with the reasoning and conclusion of that judgment and that the said judgment be published as appendix to the Full Bench Judgment. The case of Saidan Bibi v. Fazal Shah , Civil Appeal No. 599 of 1904, was consequently published as appendix to Punjab Record 134 of 1907. At page 648 of the report this point is discussed by the Bench in the following terms :-
"In this connection the learned pleader for the plaintiffs argues ingenuously enough that plaintiff 1 claims not so much as sister of Haider Shah as in the capacity of daughter of Alaf Shah. Alaf Shah died and was succeeded by his son Haider Shah, who died without issue or widow and was succeeded by his mother Mst. Azim Kali. It is contended that upon the death of this lady we should look at Alaf Shah, her deceased husband, and see who his heir is, and that thus the contest is between a daughter, plaintiff 1, and the defendants. It is also said that, even if we have to find the heir of Haider Shah, undoubtedly the last maleholder, we should go up the line to his father and then come down to plaintiff 2, his daughter. In support of this argument we are referred to Ghulam Muhammad v. Muhammad Bakhsh, 4 P.R. 1891 (F.B.) at p. 17, penultimate para, where the right of representation is explained, to the middle para, at page 62 in Sita Ram v. Raja Ram, 12 P.R. 1892 and especially the words "a mother succeeds not as a mother, but as the widow of the father", to pages 256, 257 in Faiz-ud-Din v. Mussammat Wajib-un-Nisa, 71 P.R. 1892 last para of page 256 where in a manner the case of succession of a sister is assimilated to that of a daughter by the device of going back to the father from the brother and then coming down to the sisters; to Gaman v. Mussammat Aman, 171 P.R. 1888 and especially the words 'the general principle ........ is that where a line dies out, it is treated as if it never existed'. Now if it was the function of this court, when it had evolved a theory, which explains certain phenomena of custom, to insist upon applying that theory wherever it could logically be applied regardless of facts, no doubt there would be much to be said in favour of the above argument; but it is rather our function, in matters of disputed custom, to discover what the actual practice is and give effect to our discoveries. There is no binding force or sanctity in the theory itself; it is merely a convenient method of giving order to our thoughts. In the present instance, as we have already seen, daughters and sisters have not commonly or in practice ever been treated as being on a similar footing. The theory has never been put forward to support the claims, for instance of a paternal aunt against distant collaterals, such a claim has in my experience never been made. We have only to compare Section 23 of Rattigan's Digest with section 24 to see how differently the respective claims of daughters and sisters have been treated in the past; perusal of Chief Court rulings, of which there are scores, dealing with daughters and sisters bring out the same tale; in no Wajib-ul-arz or Riwaj-i-am, with which I am acquainted, are sisters treated as the daughters of their brothers' father and not as sisters; and lastly even in Faiz-ud-Din v. Mussammat Wajib-ul-Nissa , quoted above, we have only to look at the last two lines of page 255 and the opening lines of the next page to see how purely academic are the abstract remarks on pages 256 and 257 relied on by the plaintiffs pleader."
(3.) I entirely agree with the contention raised by Mr. Shamair Chand and find that for the purposes of succession sisters could not be assimilated to the position of daughters, and no reported case was pointed out to us where a different view was taken by this court. In my experience I have always found that the principle laid down in the Full Bench Hamira v. Ram Singh has been consistently followed and the sisters have never been allowed to succeed as daughters of the father of the last male-holder. Their position qua succession has always been taken to be that of sisters of the last male-holder.;