C.G. Suri, J. - (1.) THIS second appeal involving the question whether, under custom, sisters or sisters' sons would be better heirs than collaterals of the 7th degree in respect of non -ancestral lands, situated in Nabha Tehsil of Patiala district, came up before D. K. Mahajan, J., and it was felt that certain decisions with regard to the applicability of the Hindu Law of Inheritance (Amendment) Act, No. II of 1929, to the areas constituting the erstwhile Union of Patiala and East Punjab States required further consideration and that the matter should be examined and decided by a Division Bench. If it had been brought to the notice of the Hon'ble Judge that some of the decisions needing reconsideration were of Division Benches of the Punjab and PEPSU High Courts, the reference could have been to a still bigger Bench. This may however be one of the last few cases where custom is to be the rule of decision in matters of succession or inheritance to property because after the coming into force of the Hindu Succession Act, 1956, such disputes would be decided according to the provisions of that Act. The reason that we are called upon to decide this dispute according to customary law of the parties so many years after the coming into force of the Hindu Succession Act, 1956, may appear to be that the mutation of succession was entered and verified four or five years after Bishani's death and the present proceedings have been pending for the last seven or eight years. This second appeal has been pending in this Court since 1963. The question in dispute is not likely to come up for decision in many more cases. This case can moreover be disposed of on the basis of a Full Bench decision of this Court in Smt. Sukhi v. Waryam Singh : A.I.R. 1959 P&H 339 and the Supreme Court decision in Ujjagar Singh v. Smt. Jeo : A.I.R. 1959 S.C. 1041.
(2.) THE last male -holder and his collaterals are Chhatra jats of village Mandor in Tehsil Nabha of district Patiala and the agricultural land in dispute measuring 130 bighas and 5 marlas in area is situated in the said village. Nabha was one of the princely States which covenanted or integrated into the Union of Patiala and East Punjab States in 1948. It is the common ground of the parties in their pleadings that they were governed by customary law in matters of succession and inheritance etc. The succession last opened out on the death of Mst. Bishni, widow of Kalu in 1.955. She had inherited the land in dispute on the death of her son Dasondhi who had died without leaving any widow or children. Dasondhi had succeeded to this land on the death of his father Kalu.
(3.) THE mutation of succession on the death of Mst. Bishni had been sanctioned in favour of the Defendants who are collaterals of the 7th degree of the last male -holder, Dasondhi and the Plaintiff's who are the sisters' sons of Dasondhi have filed this suit for possession of the land against those collaterals. Parties are Chhatra Jats. which is a predominantly agricultural community in this area and the Plaintiffs had alleged in paragraph 6 of the plaint that they were governed by agricultural custom in matters of succession and alienations to property etc. There was no denial of this averment in the written statement filed by the collaterals and they had, in fact, set up a special custom whereby collaterals of the 7th degree were said to exclude sisters or sisters' sons from inheritance. This setting up of a special custom was an implied admission that custom was to be the rule of decision between the parties. It was for this reason that there is no issue with regard to the general custom of the parties and the collaterals have, on the other hand been called upon to prove the special custom pleaded by them and the onus of proving Issue No. 9 was placed on them. These issues have been reproduced in the judgments of the two Courts below. The trial Court decreed the suit of the sisters' sons on 29th December, 1962 and found that the special custom set up by the collaterals had not been proved and that there was no evidence on record in the shape of any instances or records of customs like Riwaj -i -am etc. On the basis of the general customary law of Punjab, however, the sisters' sons were held to exclude remote collaterals from succession to non -ancestral property. In coming to this decision, the trial Court had relied on Swami Singh and Ors. v. Ude Singh and Ors. : A.I.R. 1952 P&H 79 and Mst. Sukhwant Kaur v. Balwant Singh and Ors., A.I.R. 1951 Simla 242.;