B.R.TULI, J. - (1.) SMT . Gulab Kaur filed the suit on May 22, 1956. against Surjit Inder Singh, her grandson, for the recovery of Rs. 1,000.00 per mensem, as maintenance allowance, or. in the alternative, for possession of half share of the property of her deceased husband, in forma pauperis. She alleged that her husband. S. Gobinder Singh Sibia, died on December 15, 1954, and at the time of his death, he owned and possessed considerable property, moveable and immovable, in the Districts of Sangrur, Patiala, Ludhiana and Simla. After his death, Surjit Inder Singh. defendant, took possession of his entire moveable and immovable property as his heir. S. Gobinder Singh had two wives, that is, the plaintiff and Smt. Dalip Kaur. The plaintiff was sonless while Smt. Dalip Kaur gave birth to one son, S. Gurbachan Singh, father of the defendant. S. Gurbachan Singh died during the lifetime of his father and. therefore, Surjit Inder Singh was entitled to inherit the property of his grandfather. He took possession of the entire property as owner and turned out the plaintiff from the house. She, therefore, claimed maintenance at the rate of Rs. 1,000.00 per mensem or in the alternative, half of the property details of which were mentioned in the plaint. The suit was resisted by the defendant who admitted that the plaintiff was the widow of his grandfather. S. Gobinder Singh and also that he was in possession of the property described in the plaint, but denied that the plaintiff was ever turned out of the house by him. He pleaded that she had left her husband in his lifetime and had been living away from him for about 40 years before his death and thus she had forfeited all her rights to maintenance. It was also pleaded that the amount of maintenance claimed was excessive. On the pleadings of the parties, the learned District Judge framed the following issues on February 1, 1957:-1. Whether the plaintiff is entitled to maintenance. If so, in what amount ?
(2.) WHETHER the plaintiff had deserted her husband and she is disentitled to claim maintenance on that score ? Whether this Court has no jurisdiction to try and determine this suit ? During the trial of the suit, the defendant made an application dated August 20, 1957 and along with that produced a will dated November 26, 1945, alleged to have been executed by S. Gobinder Singh, with a prayer that he should be allowed to amend his written statement in the light of that will. The application was disallowed by the learned trial Judge, but in revision, this Court allowed the amendment prayed for on payment of costs. On the basis of the amended written statement, the following additional issues were framed on March 20, 1958:-1. Whether S. Gobinder Singh executed a will dated 26th November, 1945 ? 2. If Issue No. 1 is proved, whether S. Gobinder Singh executed the will with a sound disposing mind ? 3. If issues Nos. 1 and 2 are proved, whether the will was ineffective against the right of the plaintiff for maintenance and whether the right of maintenance of the plaintiff was a charge on the property of S. Gobinder Singh?
(3.) WHETHER the will is ineffective without the letters of probate having been taken out on the basis thereof ? Another issue was added on July 9. 195s, as under:- Whether the parties are governed by custom of the agriculturists of the Punjab and erstwhile Pepsu in the matters of maintenance. If so, whether the plaintiff is entitled to a share in the property of the defendant and to what extent? On June 25, 1958, Smt. Gulab Kaur moved an application for the amendment of the plaint so as to substitute her claim for the possession of half of the property in lieu of maintenance by one for possession of 1/2 share of the property as heir, but that application was rejected by the learned trial Court. The amendment was, however, allowed by this Court in revision. Consequently, the amended plaint was filed on March 4, 1959, in which it was prayed that "a decree for declaration to the effect that the plaintiff is entitled to receive one thousand rupees per mensem, viz. , Rs. 12,000.00 per annum as maintenance allowance during her lifetime and in the alternative to a decree for possession of 1/2 share of the property of her deceased husband by way of inheritance qua the defendant, step grandson of the plaintiff according to general custom of Punjab and District Ludhiana, Tehsil Jagraon, and the same may be granted with costs against the defendant in favour of the plaintiff, or any other relief deemed expedient by the Court, may be granted. " In the plaint it was alleged that the plaintiff had asked the defendant to agree to pay her Rs. 1,000.00 per mensem as maintenance allowance during her lifetime or deliver the possession of 1/2 share of the property left by her husband, to her as his heir, but he had refused to do so. Written statement to the amended plaint was filed on March 6, 1959, Soon thereafter Smt. Gulab Kaur died on March 10, 1959, and her daughter Smt. Jaswant Kaur made an application for being brought on the record as her legal representative. That application was resisted by the defendant but was allowed by the learned Subordinate Judge 1st Class, Sangrur, on March 15, 1960. He, however, held that the right of the plaintiff to sue for possession of 1/2 share of the property of S. Gobinder Singh, as heir, survived and Smt. Jaswant Kaur was entitled to prosecute the same, but the suit with regard to maintenance allowance abated as that was a purely personal right of Smt Gulab Kaur, which died with her. The issues bearing on maintenance thus became redundant. Smt. Jaswant Kaur also made an application that she should be permitted to continue the suit in forma pauperis. This plea was resisted by the defendant, but was allowed by the learned trial Court by order dated August 9, 1962. Smt. Jaswant Kaur then filed replication to the written statement of the defendant on September 18, 1962. On October 1, 1962, the following additional issues were framed on the basis of the additional pleadings of the parties:- 1. Whether the deceased plaintiff was entitled to succeed to 1/2 share in the suit property ? 2. Whether the parties were governed by custom in matters of succession. If so, what was that custom ? 3. Relief. After trial, the suit of the plaintif, Smt Jaswant Kaur, was decreed for possession of the property in dispute to the extent of 1/2 share against Surjit Inder Singh, defendant, on June 29, 1964. Against that decree, the present appeal was filed by Surjit Inder Singh. During the pendency of the appeal, he died and his legal representatives have been brought on the record who have prosecuted the same. 2. The undisputed facts are that S. Gobinder Singh married Smt. Gulab Kaur and from that union Smt Jaswant Kaur was born. S. Gobinder Singh then married Dalip Kaur and from that union one daughter, Gurparkash Kaur and one son, Gurbachan Singh, were born. Gurbachan Singh died during the lifetime of his father leaving behind Surjit Inder Singh (son) and Smt. Palvinder Kaur (daughter ). Surjit Inder Singh married Smt. Amrit Kaur daughter of S. B. S. Ranjit Singh and from their union, three sons were born, who along with Smt. Amrit Kaur are now appellants, being the legal representatives of Surjit Inder Singh. 3. S. Gobinder Singh died on December 15. 1954 and Smt. Gulab Kaur died on March 10, 1959. S. Gobinder Singh had shifted from District Ludhiana to District Sangrur and was governed by agricultural custom. The general custom is stated in paragraphs 16, 17 and 21 of Rattigan's Digest of Customary Law, which read as under:-" 16. In the presence of a male descendant of the deceased his widow is ordinarily only entitled to suitable maintenance, whether such descendant is the issue of the surviving widow or of another wife. 17. Such maintenance is a charge against the whole and every part of the husband's estate, and subject to the two succeeding paragraphs, is enforceable against the heir in possession, or those claiming under him. 21. The widow's right to maintenance is not dependant on residence with the husband's family. " It is thus clear that under the general custom, Smt. Gulab Kaur was only entitled to maintenance and not to any part of the property left by her husband. According to the answer to question No. 32 recorded in the Riwaj-i-Am of Ludhiana District compiled in 1911, "a widow with sons takes no share but a sonless widow in the presence of sons takes a share equal to that of each of the sons, though she is sometimes content with less. " Various instances of this custom have been reproduced in the Riwaj-i-Am. The plaintiff also produced some instances which are as under:- 1. Exhibit P. Q. is an order passed by Ch. Karam Ilahi, Naib Tehsildar, Jagraon, regarding mutation No. 925 of village Patehgarh Sibian, Tehsil Jagraon, District Ludhiana. It relates to the family of S. Gobinder Singh and it was held that Mst. Sham Kaur widow of Sher Singh was to inherit the property left by her husband, equally with his son Gurbakhsh Singh. Gurbakhsh Singh was the son of Sher Singh from the womb of Smt. Basant Kaur. It was thus held that Smt. Sham Kaur, the sonless widow, was entitled to inherit the property of her deceased husband along with the son of her co-widow. 2. Another instance is contained In Exhibit P. N. , an extract from the Register of Mutations relating to village Fateh Garh Sibian. In that case, Ajmer Singh had two wives, from one of whom Devinder Singh and Rajinder Singh were born. The other wife was named Smt. Dalip Kaur and she was allowed 1/2 share in the property left by Aimer Singh, in accordance with the custom of Ludhiana District, mentioned above. 3. Still another instance concerns the estate of S. Rattan Singh. father of S. Gobinder Singh, grandfather of Surjit Inder Singh, which is mentioned in Exhibit P, 3. Rattan Singh had two sons, Gobinder Singh and Maneal Singh. His estate devolved upon the successors --Smt. Partap Kaur (first wife ). 1/2 share and Mangal Singh and Gobinder Singh sons of Smt. Bishan Kaur (second wife), 1/2 share. On the death of Mangal Singh, Gobinder Singh and Smt. Partap Kaur succeeded equally to his estate. It is thus evident from these instances relating to the family of the parties that the sonless widow was entitled to succeed equally with the son or sons from the other wife of the deceased. On the basis of this custom, Smt. Gulab Kaur was entitled to succeed to 1/2 share of the property left by S. Gobinder Singh and Surjit Inder Singh was entitled to the other half. This would have been so if S. Gobinder Singh had died without making a will. In this case, however, Surjit Inder Singh has produced the will alleged to have been executed by S. Gobinder Singh and, therefore, it has to be decided whether it has been proved that this will was, in fact, executed by S. Gobinder Singh and was his last will and testament. If the will is proved to have been executed by S. Gobinder Singh, it could not be challenged by Smt. Gulab Kaur because under the Punjab Custom (Power to Contest) Act, 1920, only male descendants from the common ancestor within five degrees could have challenged the alienation made by a will and not any female heir. Smt. Gulab Kaur, being not a male lineal descendant of S. Gobinder Singh, could not challenge the will under that Act. If the will is proved to have been executed by S. Gobinder Singh, then the only claim that Smt. Gulab Kaur could make against the defendant, Surjit Inder Singh, was for maintenance, which could have been recovered from the property of S. Gobinder Singh in case Suriit Inder Singh did not pay the same. However, the claim of Smt. Gulab Kaur for maintenance, being a personal right, died with her on March 10, 1959, and Smt. Jaswant Kaur, her legal representative, could not claim that amount. The trial Court held that the claim to maintenance had abated with the death of Smt. Gulab Kaur and that decision was not challenged by Smt. Jaswant Kaur and became final. For this reason, no decree for payment of maintenance was passed in this case nor can be passed in appeal as an alternative to the decree for the possession of one-half of the property left by S. Gobinder Singh. 4. In order to prove the will, the defendant produced Shri Prem Sarup, Deputy Secretary, Finance. Chandigarh, D. W. 1, who stated that S. Gobinder Singh was an old friend of his father and Raia Maheshinder Singh, son-in-law of S. Gobinder Singh was an old friend of his. He had been meeting S. Gobinder Singh at Simla whenever the witness happened to go to his brother who was a tenant of S. Gobinder Singh there. About 2 or 2 1/2 years before his death, S. Gobinder Singh had started a Co-operative Farming Society of which the witness was a member. He had seen S. Gobinder Singh writing and signing and could identify his writing and signatures. He and S. Gobinder Singh had been corresponding with each other. The signatures marked 'x' on the will Exhibit D-1, were of S. Gobinder Singh Sibia. He also identified the signatures of S. Gobinder Singh, marked 'y' on the power of attorney Exhibit D. 2. He was cross-examined at considerable length, but no question was put to him with regard to the signatures of S. Gobinder Singh. Ramji Dass, an attesting witness of the power of attorney. Exhibit D. 2, appeared as D. W. 2, and stated that he retired as Headmaster of a High school after putting in 30 years' service. He had seen document. Exhibit D. 2, which was attested by him as a witness. He identified the signatures of S. Gobinder Singh on that document. Janki Dass appeared as D. W. 3, and stated that S. Gobinder Singh had executed registered deed Exhibit D. 2, for appointing him as his Mukhtar-i-Am. Shri R. S. Marya, Member of Public Service Commission, Patiala. D. W. 7, deposed that S. Gobinder Singh was well known to him because he had been his family doctor since 1924-25. Whenever S. Gobinder Singh was away from Patiala, he used to write to the witness for medical advice or on other matters. He had received numerous letters from S. Gobinder Singh. He was thus able to identify the signatures of S. Go-binder Singh and he stated that the signature marked 'x' on document Exhibit D. 1, was of S. Gobinder Singh. He also identified the signatures of S. Gobinder Singh, marked 'y', 'y/1' and 'y/2' on registered deed. Exhibit D-2. He further stated that S. Gobinder Singh died at the age of above 70 years, and had been keeping good health all along. The cross-examination of this witness is not helpful on the point. ;