T.S.Misra, J. - (1.) THE following question has been referred to the Full Bench for opinion: - "Whether a custom under which daughters are excluded from inheriting the property of their father can by implication exclude the daughters' issues both males and females, also from such inheritance - The facts to the extent they are material are these. Ghurpattari and others filed Suit No. 180 of 1964 for securing possession of a house situated in Mauza Nasirpur, pergana Bidhar, Tehsil Tanda, Dist. Faizabad, alleging that the suit house belonged to Lautan, ancestor of the parties, that Khilawan great grandson of Lautan had illicit relations with Smt. Jaggo who gave birth to three daughters, but all of them died of Cholera, and that Jaggo's sister had two daughters, Baldei and Rajdei who were brought up by Khilawan and Jaggo as their own daughters. Sarju Din defendant No. 2 was son of Baldei, Khilawan died about 20 years before the institution of the suit. Smt. Jaggoo had no right in the property, but in order to provide her maintenance, she was kept in the house and her name was not entered in the revenue papers. Jaggoo died 10 or 11 years before the institution of the suit and Raj Dei got her name entered in the revenue papers, Sarju Din filed a collusive suit against Raj Dei and entered into a compromise in terms whereof a decree declaring his right was passed. It was alternatively pleaded that even if Smt. Baldei and Rajdei were held to be daughters of Khilawan, they were excluded from inheritance because of a family custom. It was alleged Sarju Din had executed a fictitious sale deed in favour of Mangaru and Lalai, defendants 1 and 2 and while the plaintiffs were absent, the defendants 1 to 3 got illegal possession of the house. That sale deed was said to be void. The plaintiffs, therefore, claimed possession of the house. In reply, the defendants pleaded that Smt. Jaggo was a legally wedded wife of Khilawan and Rajdei and Baldei were their daughters, that the house in dispute did not belong to Lautan but was built by Prahlad and Khilawan and after the death of Prahlad, Khilawan became the owner of the house and on his demise Smt. Jaggo succeeded to all of his property. After the death of Jaggo, her daughters Rajdei and Baldei succeeded to the property. The sale deed in favour of defendants 1 and 2 had been executed with the consent of Baldei by Suraj Din, Rajdei also sold her half share. They denied that there was any custom excluding daughters from inheritance.
(2.) THE trial court decresed the suit on 23rd December, 1964. Against that decision an appeal was preferred by the defendants. They got their written statement amended to the effect that Smt. Sampatti, daughter of Smt. Baldei was alive when Smt. Jaggo died; hence even if there was a custom excluding daughters from inheritance, the daughter's daughter was not excluded from inheritance and the plaintiffs had, therefore, no title in the house in dispute. The appellate court below allowed the appeal and remanded the case to the trial court. Thereafter Smt. Sampati filed a Suit No. 119 of 1965 claiming relief for possession over the property in dispute and alleging that she had succeeded to Smt. Jaggo, her mothers' mother. Both the suits were tried together by the trial court which found that Smt. Jaggo was legally wedded wife of Khilawan, that Smt. Baldei and Smt. Rajdei were daughters of Khilawan and Smt. Jaggo; that Smt. Sampati was daughter of Baldei but she was not born when Smt. Jaggo died; that under the cusom among the Ahirs of the village to which caste the parties belonged there was a custom excluding daughters from inheritance, hence Smt. Sampati and Sarju Din being daughter and son of Baldei could not inherit. On these findings Suit No. 180 of 1964 was decreed and Suit No. 119 of 1965 was dismissed. Smt. Sampati preferred an appeal No. 21 of 1966, whereas Lalai and Mangaru, defendants Nos. 1 and 2 of Suit No. 180 of 1964 preferred Civil Appeal No. 22 of 1966. The appellate court below found that, the house in suit originally belonged to Khilawan, that Smt. Jaggo was his legally wedded wife, that Rajdei and Baldei were daughters of Khilawan and Jaggo and that Smt. Sampatti was the daughter of Baldei, that the parties to the dispute are Ahirs by caste, that there was a custom amongst the Ahirs of village Nasirpur, district Faizabad where the property in suit is situated which excluded daughters from inheritance and that this custom was mentioned in Wajibularz, (Exhibit No. 2). Placing reliance on Vikram Singh v. Parbati Kunwar, 1960 All LJ 918 = (AIR 1961 All 97), the appellate court below held that custom excluded daughters and their sons from inheritance but did not exclude daughter's daughter; hence Smt. Sampati being daughter's daughter was not excluded from inheritance. It, therefore, decreed the Suit No. 119 of 1965 and dismissed the Suit No. 180 of 1964. Aggrieved by that decision Ghurpatri and others the defendants in Suit No. 119 of 1965 filed Second Appeal No. 68 of 1968. They also filed another Second Appeal No. 69 of 1968 against the decision dismissing their suit. The learned single Judge who heard the above two appeals observed that in Sheo Mangal Singh v. Jagpal Singh, ((1909) 12 Oudh Cas 63), Jainath Kuar v. Dhannal Singh, 1947 Oudh WN 197 = (AIR 1947 Oudh 164) and Balgovind v. Badri, 50 Ind App 196 = (AIR 1923 PC 70) a view had been taken that a custom which excluded daughters from inheritance also excluded daughter's son. On the other hand in Vikram Sinh v. Parbati Kunwar, 1960 All LJ 918 = (AIR 1961 All 97) a Division Bench of this Court took the view that a daughter's daughter who had been made an heir under the Hindu Law of Inheritance (Amendment) Act, 1929, could not be excluded under a custom existing prior to that Act which excluded daughters from inheritance. Since there were divergent views and the point was considered of sufficient importance, the question mentioned herein above has been referred to the Full Bench for opinion. That is how the said question has been placed before us.
(3.) IT is manifest from Wajibularz Ex. 2 that there was a custom amongst the Ahirs of Pargana Bidhar district Faizabad that under no circumstance daughter whether having a son or no son would be entitled to have share in the property of the propositus by inheritance. Both the parties have accepted that there did exist such a custom amongst the Ahirs of village Nasirpur, Pergana Bidhar, district Faizabad. For the appellants it was, however, urged that the daughter's daughters were also excluded from inheritance because of this custom, whereas the contention on behalf of respondents was that the custom recorded in Ext. 2 excluded only daughters from inheritance but not daughter's daughter. The question which, therefore, falls for determination is whether the said custom which excluded daughters from inheriting the property of their father also by implication excluded the daughter's issues both males and females from inheritance.;