Shamsher Bahadur, J. - (1.) THE three R. S. As. Nos. 213, 214 and 215 of 1957 involving a common question of law for determination would be disposed of by this judgment.
(2.) THE appeals arise out of three different suits concerning the estate of one Pakhar Singh who died issueless in Sambat 2003 leaving behind land measuring 104 bighas and 3 biswas. His widow Parmeshri who succeeded him contracted a karewa marriage on 4 -4 -2006 Bk., with Inder Singh, a collateral of her deceased husband. On account of this marriage, Parmeshri lost her rights in the estate of Pakhar Singh. Inder Singh as the holder of one -half share of the land of Pakhar Singh sold it in two lots, one of 24 bighas and 2 biswas to Duli Chand for a sum of Rs. 7,000 on 25th February, 1953, and the other a month later of 23 bighas and 16 biswas of land in favour of Bije Ram and others for a sum of Rs. 7.000 on 26th of March, 1953, Parmeshri also exercising her right in the land left by Pakhar Singh made a gift of it in favour of Giano, sister of her deceased husband Pakhar, by a registered document of 18th of May. 1954. These alienations have given rise to three separate suits, one by Duli Chand for a declaration and possession of the land measuring 24 bighas and 2 biswas. The second suit is by Bije Ram and seven others, again for a declaration and in the alternative for possession of the land measuring 23 bighas and 16 biswas. The third suit is by the collaterals, Harchand, Ram Chander and Jitu for declaration and possession of one -half share of agricultural land measuring 104 bighas and 3 biswas belonging to Pakhar Singh as his sixth degree collaterals to the exclusion of Parmeshri and for the consequential declaration that the gift made by her in favour of Giano was not binding on them. These suits were instituted simultaneously on 19th of May, 1965. All the three suits were decreed by the Court of Shri J. P. Gupta, Subordinate Judge, II Class, Jind on 10th of April, 1956, by three separate judgments and decrees In all these suits, appeals were instituted at the instance of Giano and were dismissed again by three separate, though more or less identical, judgments by the learned Additional District Judge, Sangrur, on 26th of November, 1656. Giano has come in further appeal to this Court, the appeal against Duli Chand etc being R S A. No. 213 of 1957, against Bije Ram and others, R. S. A. No -214 of 1957, and against the collaterals Harchand, Ram Chander and Jito being 215 of 1957. It is no longer disputed in these appeals that Parmeshri had entered into a karewa marriage with Inder Singh on 4 -4 -2006 Bk., though the question was put in issue before the trial Judge and had been contested in appeal before the lower appellate Court. The other substantial pleas on her behalf were that Inder Singh had no right to alienate the land and she was entitled to succeed as against the collateral to the estate of Pakhar Singh. The other pleas, which are do longer pressed now include the one that Parmeshri had not entered into a karewa marriage with Inder Singh. On the two surviving pleas for determination in this Court, the decision of the two Courts below is again it Giano and what has been contended tor on her behalf by her learned Counsel, Mr. P. C, Jain, is that irrespective of the issue of karewa, she has a better right to succeed to the estate of Pakhar Singh than the Plaintiffs, who are, or derive title from, sixth degree collaterals of Pakhar, the land being admittedly non -ancestral. It is pointed out by Mr. Jain that the Plaintiffs in the three suits set up custom as the rule of succession and in the third paragraph of the three written statements, this position was admitted. On the basis of the rule of custom, it is argued that it can no longer be pressed on behalf of the sixth degree collaterals that they have a preferential right to succeed as against the Appellant Mst. Giano, who is the sister of the last, male -holder. The rule enunciated in Paragraph 24 the Rattigan's Digest of Customary Law that "sisters are usually excluded as well as their issue" has been doubled in a number of rulings during recent times. In Munshi v. Narainjan Singh,, A. I. R. 987 Lah. 701 which is a Division Bench judgment of Dalip Singh and Skemp J J., it was held that: Among the Jits of Thanesar Tehsil in Karnal District where there are no collaterals of the fifth degree or less, a daughter or daughter's son of succeeds in preference to collaterals of a more remote degree and a sister or sister's son succeeds in preference to collaterals of a remoter decree than the fifth in the absence of a daughter or daughter's son. A Bench of Cheif justice Weston and Kapur J. in Mst. Sukhwant Kaur v. Balwant Singh, A.I.R. 1951 Simla 242 ruled that the exclusion of sisters from inheritance to self -acquired property has not received that notoriety as to be taken judicial notice of at least not where the property is non -ancestral, and it was observed that "the rights of females have not received that protection which they deserved and at the time of compilation of Riwaj -i -am they have not been consulted and therefore the onus of proving then rights to succeed is a light one, which may be discharged by a few instances or by general evidence given by members of the family or tribe without proof of special instances." The entire case law was discussed by the Bench which laid down the proposition thus enunciated. Latterly, the matter was reviewed by their Lordships of the Supreme Court in Ujagar Singh v. Mst. Jeo, A.I.R. 1959 S.C. 1984 At page 1646 (paragraph 28) the conclusion after a consideration of the authorities on both sides was thus expressed by Mr. Justice A. K. Sarkar: It will thus appear that there is a formidable array of authorities in support of either view. In this state of conflict or judicial decisions we are not prepared to say that a custom giving preference to collaterals over sisters in the matter of inheritance to non -ancestral properties has been so widely or uniformly recognised by courts as would justify us in taking judicial notice of it. It is important also to note that it is recognised that a Punjab custom is fluid and capable of adapting itself to varying conditions, as stated in Hasan v. Jahana, 71 P.R. 1904, and that the decisions for the last ten years are uniformly against the view expressed in paragraph 14 of Rattigan's Digest. We therefore come to the conclusion that the High Court was right in its view that it could not be held on the authority of paragraph 24 in Rattigan's Digest that a general custom excluding sisters from inheritance as against collaterals existed.
(3.) THE parties were in issue about the right of the collaterals to succeed to non -ancestral property according to the prevalent general custom. No special custom was pleaded by either side and the rule of law laid down by the Supreme Court must, therefore, be followed. It could not be said that custom not having been proved the parties are governed by personal law. In the erstwhile State of Patiala and East Punjab States Union, where the Hindu Law of Inheritance (Amendment) Act No. 11 1929 had not come into force, the sisters under Hindu Law, had no right against the collaterals. It is only Act No. II of 1929 which prescribed the order of succession of certain heirs, and the sister and sister's son have been included after the sons's daughter and daughter's daughter. In my opinion, the question of personal law does not arise in the cast; as the common ground between the parties all along has been that they are governed by custom There was no separate rule of general custom in the erstwhile State of Patiala and East Punjab States Union, and what is stated as a rule of succession in Rattigan's Digest of Customary Law is applicable to the ethnological Punjab and not merely to a geographical entity of that portion of the territory of Punjab which was known as British India. The customary law as recognised in Rattigan's Digest had been invariably applied so far as the general custom is concerned to the erstwhile State of Patiala and East Punjab states Union. In the Full Bench decision of Chajja Singh v. Pritam Singh, A.I.R. 1950 Pepsu 59 for instance, reference is freely made to the Punjab custom in deciding the law as was applicable in Patiala and East Punjab States Union and the authority of Rattigan's Digest of Customary Law is frequently relied upon. It cannot be effectively contended, in my opinion, that the rules of custom which have been digested by Rattigan cannot be made applicable to the territories of the Patiala and East Punjab States Union. The recent abrogation of the rule envisaged in paragraph 24, must also in consequence be applied to the territories of erstwhile Patiala and Hast Punjab States Union. A Full Bench of this Court in Shrimati Sukhi v. Waryam Singh, (1957) 61 P.L.R. 291, has held that paragraph 24 of Rattigan's Digest of Customary Law is too broadly worded and the rule stated therein is far too widely stated ; in that particular case it was held that the collaterals of the sixth degree cannot be preferred over the rights of a sister in respect of non -ancestral or acquired property.;