B.R. Tuli, J. - (1.) NAWAZ Khan and Mauj Khan were the sons of Kharaiti. After the death of Mauj Khan the land was mutated in favour of Nawaz Khan who became the last male -holder of he land in suit measuring 18 Bighas 4 Biswas. Mauj Khan had left a daughter named Hasan Bi. Nawaz Khan left a widow named Chand Bi, who made a gift of the land in suit in favour of Hasan Bi on 23rd February, 1956, by means of a registered -deed. The plaintiffs are the collaterals of Nawaz Khan and Mauj Khan within five degrees, and they instituted the suit for a declaratory decree to the effect that the gift made by Chand Bi in favour of Hasan Bi would not affect their reversionary rights after the death of Chand Bi as they were governed by agricultural custom according to which the powers of alienation of a widow were restricted but for consideration and valid necessity and she could not make a gift of immovable property inherited by her from her husband except with the consent of her husband's relations. It was also claimed by the plaintiffs that this rule applied to both ancestral and self -acquired property of the last male -holder and pleaded that the land in suit was their ancestral property. The suit was resisted by both the defendants, Chand Bi and Hasan Bi, who controverted all the allegations of the plaintiffs and set up the plea of limitation. They further pleaded that Hasan Bi was in any case entitled to succeed to at least half of the land in dispute in her capacity as the daughter of Mauj Khan to the exclusion of the plaintiffs. On the pleadings of the parties the following issues were framed by the learned trial Court : 1. Whether the plaintiffs are the collaterals and reversionary heirs of Nawaz Khan deceased and have as such a locus standi to file the present suit ? 2. WHETHER the property in suit is ancestral of the plaintiffs and Nawaz Khan deceased? Whether the parties follow custom in matters of succession and alienation? If so, what is the rule of custom applicable to the present case? 3. WHETHER the gift of land in suit has been validly made in favour of defendant 2 by defendant 1 and is binding on the plaintiffs? 4. WHETHER the suit is barred by limitation? Whether Nawaz Khan had a sister alive at the time of his death ? If so with what effect. 5. WHETHER defendant 2 is the heir of half share of the property in suit on account of being the daughter of Mauj Khan deceased ? If so, with what effect. 6. RELIEF .
(2.) THE learned trial Court found issues No. 1 and 3 in favour of the plaintiffs, No. 2 against them and the remaining issues were decided against the contesting defendants. As a result of his findings the suit of the plaintiffs was decreed on 24th June, 1957. Hasan Bi defendant went up in appeal which was heard by the Additional District Judge, Rohtak at Gurgaon and was dismissed on 11th October, 1958. Feeling aggrieved from that decree, Hasan Bi has filed the present appeal in this Court.
(3.) THE only point that has been argued before me is that Chand Bi had become absolute owner of the land in suit after the death of her husband Nawaz Khan as the property had been found to be non -ancestral by both the Courts. Reliance has been placed by the learned counsel on my judgment in Smt. Ghosan and others v. Majid and another R.S.A. 313 of 1959, decided on 18th October, 1968, in which I had observed as under: The plaintiff's suit must also fail on another ground. The land being non -ancestral, Mst. Suhagi acquired full proprietary rights in respect thereof and not only widow's estate therein. That case related to Meos of Jogipur, tehsil Nuh, district Gurgaon. The decision was made by me on another ground and the rule of custom embodied in the Customary Law of Gurgaon District, complied by Wilson, was not brought to my notice. In Ujagar Singh v. Mst. Jeo : A.I.R. 1959 S.C. 1041, it was laid down by their Lordships of the Supreme Court that - now it is well established that Riwaj -i -Am entries are to be taken as referring to customs relating to succession to ancestral properties unless it is stated to be otherwise.;