CHANDRACHUD, J. - (1.) SARDAR Gobinder Singh Sibia who was possessed of a large estate died on December 15, 1954 at the age of about 70. He had taken two wives; Gulab Kaur and Dalip Kaur. The story of his life follows the familiar pattern - the pretext of a disagreement with the unwanted wife, special favours for the favourite and jealous rivalries between the children born of the two.
(2.) THE following pedigree will facilitate a better understanding of the issues involved in the case:- JUDGEMENT_369_1_1977Image1.jpg After the birth of the appellant Jaswant Kaur, Gulab kaur started living or as the story goes, was compelled to live with her parents. Dalip Kuar had given birth to a daughter Guraprakash Kaur and a son Gurbachan Singh. Gurbachan singh died during the lifetime of his father Gobinder Singh, leaving behind his widow Joginder Kaur who died in 1971. Gurbachan Singh and Joginder Kaur gave birth to two children, a son Surjit Inder Singh and a daughter Palvinder Kaur. Surjit Inder Singh died in 1968 leaving behind a widow Amrit Kaur and three sons. On 22-5-1956 which was about a year and a half after the death of Sardar Gobinder Singh, his widow Gulab Kaur filed a suit in forma pauperis claiming maintenance @ Rupees 1000/- per month or in the alternative a one-half share in the properties left by her husband. Her cowife's gradson Surjit Inder Singh was the defendant to the suit. He filed his written statement on 5/01/1957 contending that the plaintiff had deserted her husband and that she was neither entitled to maintenance nor to any share in his estate. On these pleadings the trial Court struck issues in the suit on 1/02/1957. At the end of her evidence on 17/08/1957 the plaintiff gave up her claim for maintenance and stated that she wanted a one-half share in her husband's estate. The hearing of the suit was adjourned by the learned trial Judge to August 24, for recording defendant's evidence. In the meanwhile, on August 20, the defendant filed an application asking for permission to produce a will stated to have been made by Sardar Gobinder Singh, on 26/11/1945. The learned District Judge. Sangrur, who was then seized of the suit rejected that application and refused to allow the defendant to amend his written statement. That order was, however, set aside in revision by the Punjab High Court which directed the trial Court to allow the defendant to amend his written statement and to produce his father's alleged will. On 8/03/1958 defendant amended his written statement contending that by the will, his father had left almost the entire property to him and that the plaintiff Gulab Kaur was not entitled to any share in the property under the will. In June 1958 the plaintiff filed a formal application seeking leave to amend her plaint giving up her claim for maintenance and asking for a one-half share in the properties of her deceased husband. Fresh issues were thereafter framed on the basis of the amended pleadings. On March 10, 1959 the plaintiff died and her daughter, Jaswant Kaur, who is the appellant before us, was brought on the record as her legal representative.
(3.) THE suit was tried eventually by the learned Senior Sub-Judge, Sangrur, who by his judgment dated 29/06/1964 decreed it. THE learned Judge held that the defendant who set up the will had failed to prove that it was the last will and testament of his grand father Gobinder Singh and alternatively, that even on the assumption that the will was proved, it must be deemed to have been revoked on account of certain dispositions made by the testator after the making of the will. This alternative conclusion that the will stood revoked by implication is clearly unsupportable and the appellant, who disputes the will, did not urge that consideration before us. THE revocation of an unprivileged will is an act only a little less solemn than the making of the will itself and has to comply with statutory requirements contained in Section 70 of the Succession Act. Holding that the defendant had failed to discharge his onus of the proving the will, the trial Court granted to the plaintiff a decree for a one-half share in the properties of her husband. In doing this, the court relied on "overwhelming documentary evidence" showing that according to the custom by which the parties were governed, a sonless widow was entitled to a one-half share in the estate of her husband, as an equal sharer with the male progeny born of a co-wife. That the parties were governed in this matter by customary law was "openly conceded" in the trial court. The point of dispute being restricted on this point to the question as to what in fact was the custom. It was common ground before us that if the will goes, the plaintiff will be entitled to a half share in the estate of her husband Gobinder Singh.;