Bapna, J. - (1.) THIS is a first appeal by the plaintiff against the decree and judgment of the Civil Judge of Ganganagar dated 11th January, 1951 in a suit for possession of land.
(2.) ONE Inder Singh had four sons,meharchand, Keharchand, Amarchand and Krishna Dev, of whom Meharchand died during the life time of Inder Singh and Mst. Shanked, the widow of Meharchand is the contesting defendant in this case. Amarchand is the plaintiff and Keharchand and Krishnadev were defendants, now pro forma respondents. According to the allegations in the plaint which is dated 28th July 1947. Inder Singh had purchased 10 murabbas of land Nos. 29 to 38 measuring 248 bighas in Chak 12-Z in Tehsil Ganganagar, Bikaner State, in 1923-24. Meharchand died in 1907-1908, and Inder Singh died in 1933-34. It was alleged by the plaintiff that on the death of Inder Singh, his heirs were the plaintiff, Keharchand and Krishan Dev, and Mst. Shankari had no share in the property of Inder Singh, but nevertheless had obtained mutation of one-fourth of the aforesaid 10 murabas of land in her favour to which she was not entitled. It was alleged that the parties were Ahluwalias and non-agriculturists. They were residents of District Hoshiarpur in the Punjab and were bound by custom of their family and were also governed by Hindu Law. In another paragraph of the plaint, it was stated that Mst. Shankari had obtained a partition of the land under orders of the Nazim of Ganganagar and the entire murabbas Nos. 29 and 30 as also 12 killas from murabba No. 31 had been allotted to her. It was prayed that the plaintiff Amarchand and his two brothers Keharchand and Krishnadev, pro forma defendants, be declared to be the owners of the entire 10 murabbas Nos. 29 to 38 situated in Chak 12-Z and measuring 248 bighas. On 18th July, 1948, the plaintiff amended his plaint by a prayer for posses-sion of the property, as according to the plaintiff, Mst. Shankari came to be in possession of the property which had been allotted to her on parti-tion by the Revenue Court. Mst. Shankari alone contested the suit. By a written statement dated 23rd August 1947, she admitted that the ten murabbas of land had been purchased by Inder Singh, but denied that she was not entitled to any share in the land after the death of Inder Singh. She admitted that the parties were Ahluwalias and had their original home in the Punjab, but contended that she had the same rights as were permissible to widows, meaning thereby, the widows of predeceased sons in Bikaner State according to custom. A plea was also raised that she had provided Rs. 6,500/-in the purchase of the ten murabbas and Inder Singh had agreed that she should have half -hare in the ten murahbas of land, and, therefore, after the death of Inder Singh the was entitled to five murabbas, but on entreaties by the plaintiff and Krishnadev, she had willingly accepted only one-fourth share. On 25th May, 1949, she amended her written statement. She pleaded that she was an heir of Inder Singh in her own right being the widow of a predeceased son. A further plea was raised that if Mst. Shankari was not held entitled to a fourth share in the estate of Inder Singh, she was, at any rate, entitled to maintenance and on that account her possession of the property in dispute should not be disputed. The Court framed three issues: - (1) Whether owing to the death of Mehar Chand during the lifetime of his father Inder Singh, Mst. Shankari, the widow of Mehar Chand, was not entitled to any inheritance in the property of Inder Singh by virtue of any custom or law; (2) If the issue No. 1 was to be decided in plaintiff's favour, whether Mst. Shankari was not entitled to remain in possession of the property in dispute in exercise of her right of maintenance; and (3) Whether Mst. Shankari provided Rs. 6,500/- in the purchase of ten murabbas of land by Inder Singh and the latter had agreed to give her half share therein, but by virtue of a mutual settlement, Mst. Shankari had agreed to accept only 1/4th share in the land and the mutation in her name had taken place in those circumstances. The plaintiff by an application dated 24th April 1950, submitted to the trial court that the burden of proof of Issue No. 1 had not been rightly placed on the plaintiff. The Court, however, did not agree with the plaintiff, whereupon the plaintiff made a statement that he did not wish to lead evidence on Issue No. 1, but prayed for permission for his own examination as a witness in rebuttal of the defendant's evidence. This was allowed. On behalf of the defendant, two witnesses Tarachand and Rohel Singh were examined, and Mst. Shankari was examined on commission. Certain documentary evidence was also put in. In rebuttal the plaintiff gave his own statement. The trial court after hearing the arguments dismissed the suit on a finding that under the custom prevailing among the Ahluwalias of the Punjab, a widow of a predeceased son was entitled to inheritance to the same extent as her husband if he had remained alive on the death of his father. The issue No. 2 did not require decision, and the third issue was decided against Mst. Shankari. The plaintiff has come up in appeal. Learned counsel for the appellant has first objected that the lower court should hot have allowed amendment of the written statement by which she claimed herself to be the heir of Inder Singh. The second objection was that the burden of proof of Issue No, 1 was wrongly placed on the plaintiff. On the merits it was further argued that the evidence-oral and documentary led by the defendant in this case was entirely insufficient for establishing the custom that a son-less widow of a predeceased son was entitled to inheritance and to the same extent as a son. So far as the amendment of the written statement is concerned, no irregularity teems to have been committed by the lower court. In her first written statement, she had referred to certain rights of widow in Bikaner State. The amendment of the written statement was sought on the ground that certain pleas had not been taken in the written statement by mistake. It in possible that the defendant, who is a lady, may not have been fully advised as to her rights when she filed the first written statement. These were additional pleas which she took before the evidence in the main case had started and the plaintiff was not taken by surprise as the issues were recast thereafter and the evidence began to be recorded later. No grievance has been made out by the plaintiff that he was taken by surprise or that he did not have sufficient opportunity to produce his evidence. As regards the contention that the lower court wrongly placed the burden of proof of issue No. 1 on the plaintiff, it is not without force. The plaintiff did create some confusion when in stating the foundation of his claim in para (5) of the plaint he mentioned that the parties were bound by their family custom and were governed by Hindu Law. What that family custom was, was not stated in the plaint, and although the defendant in reply requested the Court to call upon the plaintiff to state what that family custom was on which the plaintiff relied, nothing further seems to have been done by the plaintiff. In dealing with the petition for amendment of the issue, the trial court mentioned that as the plaintiff wanted relief on the basis of law and the family custom, the burden of proof of the issue was rightly placed on him. Learned counsel for the appellant tried to justify the statement in the plaint as regards the existence of family custom by an argument that there was a general custom in the Punjab by which widows of predeceased sons were held not entitled to any inheritance and relied upon Ram Chand vs. Waryam Singh and another (1) (106 Indian Cases 864.) where it was observed that - "under the general agricultural custom, the widow of a predeceased son is entitled only to maintenance. But in some tribes in which the right of representation is recognized, she is entitled to succeed to the share which her husband would have taken if he had been alive when such succession opened out. The burden of proving such a special custom is on the person who asserts it. " The observation is only of value as regards the burden of proof to be placed in such cases, but it is not sufficient to support an argument that there is some general custom in the Punjab about the lights of the widow of a predeceased son. According to Hindu Law, prior to the enactment of The Hindu Women's Rights to Property Act (XVIII of 1937), a predeceased son's widow was not recognized as an heir. So in cases where the parties are governed by the Hindu Law as expounded by Mitakshara, the rule of law is that the widow of a predeceased son is not entitled to inheritance unless there is a custom to the contrary. There is no point, therefore, in insisting that she is not so entitled under a custom. The custom only comes in when it is in derogation of the Hindu Law. The confusion has its origin in the scheme of the Punjab Laws Act where under sec. 5 it is mentioned that - "in questions regarding succession (and various other matters to which no reference is necessary in this case), the rule of decision shall be - (a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority ; (b) The Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law' in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to. " The Punjab Laws Bill originally provided that the Hindu and Muhammadan Law, as modified by the custom, should be administered; but an amendment was moved by Sir George Campell, who had served in the Punjab in the early part of the career, that the custom should be made the first rule of decision, and the law subsidiary to it, and thereupon the two clauses of sec. 5 were re-arranged in their present order. As a result, it was held in some cases in the Punjab that the rule of custom be enquired into and applied first, and that if none exists, the court has to fall back upon personal law for a guiding principle. But as far back as 1906, Robertson, J. observed in Day a Ram vs. Sohelsingh (2) ( (1906) Punjab Records, at page 410.) that - "there is no presumption created by sec. 5 of the Punjab Laws Act in favour of custom; on the contrary, it is only when the custom is established that it is to be the rule of decision. The legislature did not show itself enamoured of custom rather than law nor does it show any tendency to extend the 'principles' of custom to any matter to which a rule of custom is not clearly proved to apply. It is not the spirit of Customary Law, nor any theory of custom or deductions from other customs which is to be a rule of decision, but only 'any custom applicable to the parties concerned which is not contrary to justice. . . . . . . . . . . . ; and it, therefore, appears to me clear that when either party to a suit sets up 'custom' as a rule of decision, it lies upon him to prove the custom which he seeks to apply ; if he fails to do so, clause (b) of sec. 5, Punjab Laws Act applies, and the rule of decision must be the personal law of the parties subject to the other provisions of the clause. " The view taken by Robertson, J. was approved by their Lordships of the Privy Council in Abdul-Hussain Khan vs. Sona Dero (3) (I. L. R. XLV Calcutta 450.), and Vaishno Ditti vs. Rameshri (4) (I. L. R. X Lahore 86 P. C. ). If, therefore, any party relies on the Hindu Law, he need not say that the custom is also in accordance with it, for in that case it is the law which will prevail. In the present case also no family custom contrary to Hindu Law has been pointed out by the plaintiff. Not only this, but as a matter of fact, the plaintiff in his statement as a witness clearly stated in his examination-in-chief that the parties were not governed by the Punjab Customary Law, but that they were governed by the Hindu Law on the subject. It was, therefore, a vain effort on the part of learned counsel for the appellant to contend that there was some general custom according to which the widow of a predeceased son was not entitled to inheritance. This is in fact the rule of Hindu Law and the plaintiff need not have brought in family custom in para (5) of his plaint and created difficulties for himself. The plaintiff's case clearly rested on the rule of the Mitakshara school of Hindu Law prior to the enforcement of the Hindu Women's Rights to Property Act (XVIII of 1937 ). The trial Judge, at the time of writing the judgment became conscious that the burden of proof as to the widow of a predeceased son having a right of inheritance was on the contesting defendant Mst. Shankari since after mentioning what the pleadings were and what the facts of the case were, he has observed as follows: "now it has to be seen whether Mst. Shankari has any right of inheritance in the estate of Inder Singh. In this respect, the plaintiff's version is that under the family custom and Hindu Dharm Shastra she is not an heir. The defendant Mst. Shankari's version, on the other hand, is that she is an. heir according to the law and the custom of Bikaner and the Punjab. " The learned Judge, thereafter, discussed the evidence led by Mst. Shankari and held that the defendant had been able to prove that under the custom of the community Mst. Shankari, who was the widow of a predeceased son of Inder Singh, was entitled to have a fourth share in the property of Inder Singh and that the plaintiff had failed to prove any family custom contrary to the custom of the community relied on and proved by the defendant. The issue should, therefore, have been cast not as if the plaintiff had to prove that the defendant Mst. Shankari was not entitled to inheritance in the estate of her father-in-law, but should have been framed in a manner which would have called upon Mst. Shankari to prove that there was a custom in the community of Ahluwalias to which the parties belong whereby the widow of a predeceased son was entitled to inheritance to the same extent as her husband if he had been alive on the death of her father-in-law.
(3.) LEARNED counsel for the appellant urged that this appeal should be heard on a consideration that the burden of proof was on the defendant, and he urged that the evidence-oral and documentary-led by the defendant was entirely insufficient to prove the custom. LEARNED counsel for the respondent, while urging that the evidence was sufficient also made it a point that the contesting defendant may have been led into not producing all her evidence in the lower court as the burden of proof had been thrown on the plaintiff and he had chosen not to lead any evidence. The contention was that if the Court came to the conclusion that the evidence led by the defendant was not sufficient to prove the custom, a further opportunity should be given to her to produce all her evidence. While the plaintiff's rebuttal of the evidence led by the defendant is next to 'nothing in this case, the evidence led by the defendant herself is rather scanty, and since the contention of the defendant respondent is that she was misled into not producing all her evidence, it would be unfair to decide this appeal on the material as it stands. It would be fair to the parties if the first issue is recast so as to put the defendant to the proof of the custom alleged by her and then to give opportunity to the parties to lead evidence. We, therefore, recast Issue No. 1 as follows: - "whether a custom exists among the community of Ahluwalias of the Punjab to which community the parties belong, whereby the widow of a predeceased son is entitled to inheritance in the property of her father-in-law to the same extent as if her husband had been alive at the time of the death of her father-in-law. " The record is sent back to the trial court for allowing opportunity to the parties to produce oral and documentary evidence and thereafter to give its finding after considering such evidence as aforesaid and the evidence which is already on the record. The appeal will be reheard in this Court after receipt of the aforesaid finding. The lower court should send its finding within six months. . ;