Punjab-Haryana High Court
(O&M) Bhupinder Pal Singh And Anr vs Shamsher Singh And Ors on 24 September, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:130046
RSA-1447-1989 (O&M) with
XOBJ-11C-1989
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
101
RSA-1447-1989 (O&M)
XOBJ-11C-1989
Reserved on : 29.07.2024
Pronounced on : 24.09.2024
Bhupinder Pal Singh and others ...... Appellants
versus
Shamsher Singh (now deceased) through his LRs. ...... Respondents
CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: None for appellant No.1.
Mr. K.B.S. Mann, Advocate
for appellant No.2.
Mr. Kanwaljit Singh, Senior Advocate with
Mr. K.S. Brar, Advocate
for appellants No.6 & 7.
Mr. Kartik Sachdeva, Advocate
for respondents No.1 & 6.
Mr. Manjit Singh Khera, Senior Advocate with
Mr. Ripudaman Singh Sidhu, Advocate
for respondent No.1(iii).
Mr. J.S. Bhatia, Advocate
for respondents No.2, 3, 5 & 6.
*****
PANKAJ JAIN, J. (Oral)
Before adverting to the main appeal, two applications need
to be decided.
Present appeal was filed at behest of plaintiffs namely
Bhupinder Pal Singh s/o Balwant Singh and Mohinder Kaur widow of
Balwant Singh. By way of CM-2552-C-2006, Jang Singh s/o of
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Jaswant Singh, Paramjit Singh s/o Jaswant Singh, Sukhjinder Singh s/o
of Jaswant Singh were impleaded as appellant No.3, 4 and 5
respectively being necessary parties in terms of provisions of Order 22
Rule 10 CPC. Bhupinder Pal Singh filed application i.e. CM-8495-C-
2006. It was brought on record that appellant No.2 i.e. Mohinder Kaur
has died and appellant No.2 as her son and legal representative does not
wish to continue with the appeal. Name of appellant No.2 was ordered
to be struck off from the memo of parties. The appeal was permitted to
be withdrawn on behalf of appellant No.1 subject to right of the other
appellants to continue with the appeal.
Later on, an application was moved i.e. CM-6255-C-2014
on behalf of Magandeep Singh s/o Bhupinder Singh claiming that
Bhupinder Pal Singh had no right to withdraw the appeal on behalf of
Mohinder Kaur-appellant No.2. Appellant No.2-Mohinder Kaur died on
07.03.2003. Copy of the death certificate was produced on record
alongwith the application. It was further pleaded that Mohinder Kaur
executed registered Will in favour of the applicant Magandeep Singh
being her grandson qua the property in dispute. Registered Will dated
12.08.2002 also placed on record as Annexure R-2/2. It was further
pleaded that the mutation also stood sanctioned in favour of Magandeep
Singh on 24.03.2005 which was never challenged by Bhupinder Pal
Singh. Thus, Bhupinder Pal Singh on the date the order was passed, was
not competent to withdraw the case on behalf of appellant No.2.
Reply to the application was filed on behalf of appellants
No.6 and 7 arraigned vide CM-5182-C-2013 being subsequent
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purchasers. It was claimed that Balbir Singh, Malkiat Singh and
Rajinder Singh have purchased the land of Bhupinder Pal Singh.
Though, the other facts were not disputed.
In view of above, this Court finds that the order of
withdrawal of appeal qua Mohinder Kaur is recalled. Applicant
Magandeep Singh s/o Bhupinder Singh is allowed to be impleaded as
legal representative of appellant No.2-Mohinder Kaur subject to just
exceptions.
Applications stand disposed off.
Main case
1. Plaintiffs are in appeal. For convenience, parties
hereinafter are referred to by their original position in the suit i.e. the
appellants as plaintiffs and respondents as defendants.
2. Plaintiffs filed suit for joint possession of land measuring
1554 Kanal, 4 marlas as described in the plaint claiming that plaintiff
No.2 being widow of deceased Gurcharan Singh is owner to the extent
of 1/3rd share i.e. 518 Kanal 1 marlas and in the remaining land
measuring 1036 Kanal, 3 marlas plaintiffs and defendants No.1 to 6
have equal share and the mutations bearing No.2263, 2264 and 2272
sanctioned on 25.07.1971 are not binding upon the rights of the
plaintiffs.
3. As per the case pleaded by the plaintiffs, one Sampuran
Singh was owner in possession of the suit land. On his death in the year
1940, his estate was succeeded by his three sons namely, Balwant
Singh, Gurcharan Singh and Gurbax Singh. Sampuran Singh was also
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survived by two wives namely Ass Kaur and Kartar Kaur. Gurcharan
Singh died in the year 1954 leaving behind two widows namely
Mohinder Kaur I and Mohinder Kaur II. Both the widows succeeded to
his estate in equal share. In the same year, Mohinder Kaur I contracted
karewa marriage with Balwant Singh and Mohinder Kaur II contracted
karewa marriage with Gurbax Singh. Before marrying Mohinder Kaur
II, Balwant Singh was already married to Surjit Kaur. From the loins of
Balwant Singh, Surjit Kaur gave birth to two sons namely Shamsher
Singh and Rachhpal Singh and a daughter Surinder Pal Kaur. From the
loins of Balwant Singh, Mohinder Kaur gave birth to one son namely
Bhupinder Pal Singh-plaintiff No.1 and a daughter namely Rano @
Harjinder Pal Kaur.
4. Present suit is at the behest of Bhupinder Pal Singh son of
Balwant Singh, Mohinder Kaur I, Rano @ Harjinder Pal Kaur.
Mohinder Kaur claims 1/6th share inherited by her being widow of
Gurcharan Singh. Plaintiffs further claim share out of 1/3rd estate
inherited by Balwant Singh from Sampuran Singh being legal heirs of
Balwant Singh.
5. Suit was contested by defendants No.1 to 6, 9 to 11, 13 to
15 and 18 to 22. Defendants No.1 to 6 admitted the relationship, but
claimed that Mohinder Kaur I who inherited 1/2 share out of the estate
succeeded by Gurcharan Singh, forfeited her right as widow of
Gurcharan Singh after she married Balwant Singh. It was pleaded that
the parties to the lis being governed by general custom of agricultural
community known as Rawaj-i-am Zimidara, a widow who remarries
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forfeits her right in the estate of her late husband. It was further claimed
that Mohinder Kaur and her children have no right in the estate left by
Sampuran Singh or by Gurcharan Singh and it is only the descendants of
Surjit Kaur-the first wife of Balwant Singh, who are the owners of the
suit land. They further propounded Will dated 08.12.1970 executed by
Balwant Singh in favour of defendant No.5 and 6.
6. On the basis of pleadings, Trial Court framed following
issues:-
"1. Whether the plaintiffs are entitled to joint possession of the
suit property as alleged in the plaint? OPP.
2. Whether the mutations No.2263, 2264, 2273 are void
ineffective and not binding on the rights of the plaintiffs?
OPP.
3. Whether the plaintiff Mohinder Kaur is the exclusive owner in
possession of land measuring 518 kanals 1 marlas as given in
para No.9? OPP.
4. Whether the plaintiffs have no cause of action? OPD
5. Whether the suit is not properly valued for the purposes of
court fee and jurisdiction? OPD
6. Whether the estate of Sampuran Singh was inherited by his
three sons as alleged? OPP.
7. Whether the parties are governed by custom in matters of
succession and Mohinder Kaur plaintiff forfeited her rights to
inherit the estate of Gurcharan Singh by her second marriage
by Chadder Anda-zi with Balwant Singh? OPD.
8. Whether Balwant Singh executed a valid will dated 8.12.78 in
favour of defendants No.5 and 6? OPD.
8A. Whether plaintiffs and defendants constituted a joint Hindu
family with Balwant Singh? OPD.
8B. Whether the property in the hands of Balwant Singh was a
coparcenary property and parties are governed by Hindu law
in matters of succession and alienations? OPP.
9. Relief."
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7. Trial Court decided all the issues in favour of plaintiffs and
decreed the suit. Defendants No.1 and 2 preferred appeal which stands
allowed by the Lower Appellate Court. Suit qua Mohinder Kaur and
Rano stands dismissed on the basis of a compromise alleged to have
been entered between the parties during pendency of the appeal. Suit
qua Bhupinder Pal Singh stands decreed for joint possession of 1/6th
share of the land left by Balwant Singh barring land alienated prior to
filing of the suit.
8. Learned senior counsel appearing on behalf of appellant
Nos.6 and 7 impleaded as legal representatives of the deceased-appellant
submits that the Lower Appellate Court erred in holding that Mohinder
Kaur forfeited her rights to the estate of Gurcharan Singh after her
karewa marriage with Balwant Singh. He submits that once Mohinder
Kaur was bestowed with full ownership rights on death of Gurcharan
Singh, she became full owner thereof and cannot be divested of her
rights in the said property. Further submits that decree dated 25.01.1969
and 30.01.1970 have not seen the light of day and the same cannot be
relied upon to take away the rights of the appellants. It has been further
submitted that the reliance by the Lower Appellate Court on the
compromise also is misplaced. Admittedly, the same was without
consideration as the respondents deposited amount of Rs.1 lakh after
decree in the Court which also now stands withdrawn by them.
9. Per contra, counsel for the respondents submits that the
Lower Appellate Court has rightly held that on re-marriage Mohinder
Kaur lost her rights in the suit land. Mohinder Kaur as well as Rano
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further during the pendency of the appeal accepted Rs.1 lakh each from
the respondents to give away their rights. Both the Courts below have
wrongly discarded the Will dated 08.12.1970 executed by Balwant
Singh.
10. I have heard counsel for the parties and have carefully gone
through the records of the case.
11. The issues that arise for consideration before this Court
are:-
(i) Whether Mohinder Kaur who succeeded to half
share in estate of Gurcharan Singh being his widow,
forfeited her rights after effecting karewa marriage
with Balwant Singh, brother of Gurcharan Singh?
(ii) Whether unregistered Will dated 08.12.1970
propounded in favour of defendants No.5 and 6 has
been wrongly discarded by the Courts below?
(iii) Whether defendants can be allowed to agitate
issue viz-a-viz Will by filing cross-objections when
the beneficiaries of the Will defendants No.5 and 6
failed to file an appeal against judgment and decree
passed by the Trial Court rejecting the Will?
(iv) What is the effect of alleged compromise
executed between defendant Shamsher Singh,
Rachhpal Singh and Mohinder Kaur widow of
Balwant Singh?
(v) Effect of mutation Ex. P-7.
12. Lower Appellate Court relied upon exchange between
Balwant Singh and Gurbax Singh. Balwant Singh and Gurbax Singh
both brothers exchanged their lands. Land situated in village Abul
Khurana came to the share of Bawant Singh in exchange of the land
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owned by him in village Deon Khera. Relying upon this exchange,
Lower Appellate Court held that the land at the hands of Balwant Singh
became self acquired. In view of the admitted case of the defendants,
that the land at hands of Balwant Singh was inherited from his father
Sampuran Singh, the said findings cannot be sustained. Thus, the estate
at the hands of Balwant Singh, having been inherited from his father
Sampuran Singh is not a self acquired property.
13. The next issue is the Will alleged to have been executed by
Balwant Singh dated 08.12.1970. Both the Courts below found that the
Will dated 08.12.1970 propounded by defendants No.5 and 6 was
shrouded by suspicious circumstances. Though scribe of the Will, Gurlal
Singh, was examined as DW-1 and Gurtej Singh attesting witness
appeared in the witness box as DW-2. Trial Court rightly discarded the
Will. Findings recorded by the Trial Court discarding the Will were
never impugned by defendants No.5 and 6 by filing any appeal or cross-
objections before the Lower Appellate Court. Thus, cross-objections at
the hands of defendants No.5 and 6 in the present appeal cannot be
considered and are thus ordered to be dismissed.
14. The next issue is the effect of karewa marriage between
Mohinder Kaur and Balwant Singh on the estate of Mohinder Kaur. As
already mentioned above, Mohinder Kaur was earlier married to
Gurcharan Singh s/o Sampuran Singh. Gurcharan Singh died in the year
1954. 1/2 share of his estate was succeeded by Mohinder Kaur i.e
plaintiff No.2. Mohinder Kaur married Balwant Singh. It has come on
record that the parties are Sidhu Jats of Tehsil Mukatsar, District
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Ferozepur. The issue regarding effect of widow's karewa marriage on
her estate in husband's property was considered by a Full Bench of this
Court in RSA No.1456 of 1964 titled as Sada Kaur vs. Bakhtawar
Singh and another decided on 03.11.1966. The question that was posed
that the Full Bench was considering reads as under:-
"Whether by universal custom among the Sikh Jats of the
Punjab, a widow does not forfeit her life estate in her
husband's property by reason of her remarriage in Karewa
form with her husband's brother, and, if so, whether the
custom admits of exceptions among different tribes of Sikh
Jats and in particular among Dhaliwal Jats of Muktsar Tehsil
of Ferozepur District."
15. Full Bench dealt with the same elaborately and answered as
under:-
"5. Paragraph 32 of Rattigan's Digest of Customary Law is to
the following effect:-
"In the absence of custom, the remarriage of a widow
causes a forfeiture of her life interest in her first
husband's estate which then reverts to the nearest heir
of the husband."
No exception can be taken to this statement of general custom
prevailing among the Jats. Rattigan's Digest of Customary
Law of Punjab has received the seal of being a book of
undisputed authority by the Privy Council in Mst. Subhani v.
Nawab, AIR Privy Council 21 and by the Supreme Court in
Salig Ram v. Mt. Maya Devi, AIR 1955 Supreme Court 266
and Jai Kaur v. Sher Singh, AIR 1960 Supreme Court 1118.
6. There are number of exceptions mentioned to this statement
of general custom and we are concerned with Exception I,
which is stated in the following terms:-
"Amongst certain tribes a remarriage in the Karewa
form with the brother of the deceased husband does
not cause a forfeiture of the widow's life estate in the
property of her first husband."
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Some of the cases cited in support of this statement relate to
Sikh Jats of different districts in Punjab including Sirsa,
Amritsar, Ferozepur and Ludhiana. In the twelfth edition of
this Digest of Customary Law, the following statement is
found added for the first time:-
"By custom among the Sikh Jats of the Punjab a
widow does not forfeit her life-estate in her deceased
husband's property by reason of her re- marriage in
Karewa form with her husband's brother, whether he
be the sole surviving brother or there are other
brothers as well of the deceased."
The case quoted in support of this general statement is Sant
Singh v. Rari Bai (supra).
7. It is now well-settled that agricultural custom in Punjab is
not only local, but also tribal and may even differ from Tehsil
to Tehsil and from tribe to tribe. Mara and others v. Mst.
Nikko, AIR 1964 Supreme Court 1821.
8. On behalf of the respondents, who are brothers other than
the one who married the widow by Karewa marriage, it was
vehemently argued that the Sind case is no authority for the
recognition of such a universal exception to the general rule as
stated in paragraph 32 of Rattigan's Digest of Customary Law.
It was further urged that in the District of Ferozepur and more
so amongst Dhaliwal Jats, this exception was not recognised
and the general rule resulting in the forfeiture of the life estate
by the widow on remarriage applied notwithstanding the fact
that remarriage was with a brother of the deceased husband.
9. As was observed by the Privy Counsel in Mst. Subhani's
case (supra), custom to be treated as a general custom may not
be an immemorial custom as is contemplated under the
English law, and if a particular custom is well recognised by
judicial decisions and otherwise, then the same may be taken
judicial notice of by the Courts without any further proof by
producing particular instances. The question, therefore, before
us is whether the exception mentioned in the Rattigan's Digest
of Customary Law under paragraph 32 that the forfeiture does
not take place in case of widow's remarriage with her
husband's brother is so universally recognised all over Punjab
and particularly amongst the Dhaliwal Jats of Ferozepur
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District as to be treated as their generally recognised special
custom. As instances from other districts will not be of much
avail, unless the position is not clear so far as the instances
from Ferozepur District are concerned, it would be necessary
in the first instances to examine decided cases and other
instances arising out of the Ferozepur District, to which the
parties belong.
10. Earliest reported case from Ferozepur District is Didar
Singh v. Mst. Dhaimo, 25 P.R. 1988. In this case, one Gara
had left two widows J and D. D remarried younger brother of
Gara. In a litigation between the widow and the collaterals, it
was held that this remarriage did not result in the forfeiture of
the half share of the estate which had earlier been mutated in
favour of D. Later, J. died and the question was whether D as
a co-widow of J was entitled to inherit J's share as well. The
Punjab Chief Court, held in view of the previous decision
between the parties, that if D had been the sole widow, she
would have been entitled to retain the entire estate in spite of
her remarriage and consequently D should be held to be
entitled to inherit the other half of the estate which was
inherited by j on the demise of the latter.
11. Punjab Singh v. Mst. Ghandi, 88 F.R. 1900, was a case
from Sirsa, but the parties were Gill Jats and had migrated
from Fazilka Tehsil and they owned property in tehsil
Muktsar also, to which Tehsil the parties in the present case
before us belong. The defendants relied upon the custom of
non-forfeiture of the estate of the widow on remarriage with
her husband's brother and it was observed by the Bench as
follows:
"It is clear that the custom relied on by the defendants
obtain to a very considerable extent amongst Sikh Jats
of Sirsa District, though it may not be universal"
Punjab Singh's case was followed in Mst. Indi v. Bhanga
Singh and others. 115 P.R. 1900. In the first instance, this
case was remanded by the Court for detailed enquiry and
number of instances were brought on the record for and
against the aforesaid exception. At page 450 of the report Mr.
Justice Chatterji, who delivered the judgment, observed as
follows:
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"The decision of the question is not free from
difficulty, but on the whole I am disposed to think that
the plaintiffs claim ought not to succeed. Having
regard to the customs and notions of the Jats, I am
inclined to hold that there is a substantial distinction
recognised by them between the marriage of a widow
with her husband's brother and her marriage with a
stranger. The Jat notion undoubtedly is that by
marrying a member of a family a woman not only
becomes a member of it but comes to be looked upon
as if she were the property of the family. If her
husband dies his male relations in the order of
propinquity to him have a preferential claim to take
her to wife. In practice in most instances she follows
this rule if she contracts a second marriage at all."
In addition to Didar Singh's case (supra) Punjab Singh's case
(supra), reliance was also placed on Hira Singh v. Mst. Rami,
74 P.R. 1893, (a case of Cohabitation, and not of remarriage,
from District Amritsar) for coming to the conclusion that the
custom in favour of non-forfeiture of widow's estate or
remarriage with her husband's brother was established.
12. There is no reported case after Mst. Indi's case (supra),
from Ferozepur District recognising this exception. Hardam
Singh and another v. Mst. Mahan Kaur, 64 P.R. 1910,
however, is a case from Ferozepur District. In that case, the
deceased left him surviving his son and widow. On the demise
of the son, widow, who had remarried a brother of her
deceased husband, claimed inheritance. Her claim was
negatived following the decision in Mst. Jai Devi v. Harnam
Singh, 117 P.R. 1888, which was a case of Jats from
Hoshiarpur District and in which also the question involved
was inheritance of a son. This case consequently did not deal
directly with the question of forfeiture by widow of the estate
of her husband.
13. Thus, it is clear that so far as the reported cases are
concerned, we have only three cases relating to Jats of
Ferozepur District and all these cases are prior to 1900. Out of
these, Didar Singh's case, related to Dhaliwal Jats.
14. There is no reported case directly dealing with the point
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from Ferozepur District taking a contrary view. The learned
counsel for the respondents. however, urged that the only
three decided cases (the third one following the other two and
only one of them relating to Dhaliwal Jats) are hardly
sufficient for holding that the exception is generally
recognised among the Dhaliwal jats, so as to be taken a
judicial notice of. The learned counsel rightly contended that
It is for the party who pleads the special custom, not only to
plead it, but also to prove the same unless such a special
custom has been recognised to be in existence in such a large
number of cases that even no instance may be established to
discharge the burden.
15. In order to ascertain the custom prevailing in a tribe
residing in any district or a sub-division of a district. Riwaj-i-
am complied by the authorities of a district normally affords a
good and reliable source. Question No. 47 of Currie's
Customary Law of the Ferozepur District deals with the
question of the effect of unchastity and remarriage upon the
right of a widow to the estate of her deceased husband.
Relevant portion of the reply dealing with the remarriage is in
the following terms:-
"At last settlement Mr. Francis wrote:-
"Unchastity or re-marriage deprives a widow of her
right to the property." The Muktsar Code gives a
similar answer...... Further on (page 124) it
says :-"Whenever a widow-remarries, even if she
marries the brother of her deceased husband, she loses
her right to her deceased husband's estate. which
reverts at once to his agnates (mostly Sikh Jats,
Kumhar, Khatri, Lohar, Bodla, Chishti, Wattu). If a
sonless widow in possession of her husband's estate
marries his brother, she is often allowed to remain in
possession of her deceased husband's estate for her
lifetime (Bagri Jats, Musalman Jats and Rajputs).
As regards the effect of re-marriage, all tribes that
admit widow remarriage, agree that no matter whom
the widow marries, she forfeits all rights to her
deceased husband's estate."
This statement is very categorical. There is a note given by the
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compiler to this answer in the following terms:-
"Despite the ruling to the contrary that are quoted
below, I am convinced that the above answer is a true
exposition of the custom. The people when pressed on
the point put it as follows:-
The widow on remarriage ceases to be the widow of
her late husband and becomes the wife of the man she
has married; she thus forfeits her right, which is really
only one of maintenance from the income of the
deceased's property. Instances to the contrary will
generally be found to be rather of the nature of family
arrangements, whereby if the widow has daughters by
the previous husband, she may be allowed to retain the
whole or a part of the estate till they have been
married or where the new husband has already a wife
and it is anticipated that the two women may quarrel."
Apart, from the rulings noted above, namely, Didar Singh's
case, Punjab Singh's case, Mst. Indi's case and Hardam
Singh's case, another judicial instance cited recognising the
exception in case of a brother is that of Mst. Romon v.
Raisakha Singh, 90 P.R. 1889. This case, however, is not
relevant because in this case the marriage of the widow was
with the first cousin and not with the real brother of the
deceased and the forfeiture by the widow of a husband's estate
or such a remarriage would not be an instance of recognition
of the exception. Under this question, the compiler has quoted
a very large number of instances, from different Tehsils and
of different categories of Jats numbering nearly 70, in which
the widow forfeited the estate inherited from husband on
remarriage with the brother.
16. On going through these instances, I find that there are
some instances, which are not really instances of remarriage
with the brother, but out of these 70 instances, there are about
59 instances of Jats, which do support the answer given by the
compiler to this question. As against this, seven instances are
given wherein remarriage with the brother did not result in the
forfeiture of the widow.
17. Out of these seven instances, first instance is of Sidhu Jats
of Tehsil Moga, but here the question seems to have been
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decided by a compromise because 42 Kanals 2 Marlas of land
without the share of Shamlat were allowed to remain in the
name of the widow and the rest of the land was mutated in the
name of two brothers of her deceased husband including
Ratna on her remarriage. The fourth instance, is of Gill Jats of
Tehsil Moga. Here the marriage of the widow was with the
cousin of her deceased husband and the mutation entered for
removal of her name was rejected on the ground of her
apprehension that she might be expelled by her second
husband as he already had a wife. Again instance No. 6 relates
to Jat Bhuttar of Tehsil Muktsar, in which 10/11th of the
estate was mutated in the names of Lal Singh and Budha
Singh, brothers of the husband of the widow and only
1/11/(stated 1/10 in the book) was in the name of the widow
and on that also the widow had no separate possession. The
last instance from Chak Jowahrewala relates to Dhillon Jat of
Muktsar Tehsil, wherein the land inherited by the widow on
remarriage with Sher Singh, her Dewar, was mutated in equal
shares between Sher Singh, aforesaid, and his two brothers,
and she was given only 40 Ghumaons for her maintenance till
the marriage of her daughters and after the marriage of the
aforesaid daughters, the three brothers divided these 40
Ghumaons among themselves.
18. The aforesaid instances, therefore, hardly support the
contention that the remarriage did not result in the forfeiture
of the estate. The remaining three are, however, instances, in
which even after remarriage the widow continued in
possession of the estate inherited by her from her husband.
Instance at serial No. 3 relates to Dhaliwal Jats being the same
as reported in Didar Singh v. Mst. Dhamo (supra). Instance at
serial No. 2 is of Sidhu Jats of Fazilka Tehsil and at serial No.
5 of Sandhu Jats of Muktsar Tehsil, but in this case there is
also a mention that the brother, whom the widow had
remarried, had already a wife. Thus, it is clear that there are
three reported cases and three other instances in support of
this exception as against 59 instances to the contrary. It is now
well settled that the statement of custom incorporated in the
Riwaj-i-am of a district, even without any instance quoted in
support thereof, is entitled to, an initial presumption of
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correctness unless it is found that the Riwaj-i-am was not a
properly compiled document. See in this connection Salig
Ram's case. So far as Riwaj-i-am of Ferozepur district
compiled by Mr. Currie is concerned, it was conceded that the
same has not been adversely commented upon and so far as
question and answer No. 47 is concerned the same finds
ample support from a large number of instances.
19. So far as Ferozepur District as a whole is concerned, it is
thus obvious that the preponderance is against the exception
and it appears that the general custom as incorporated in
paragraph 32 of the Rattigan's Digest was followed in this
District and the exception was not generally recognised. So
far as Dhaliwal Jats are concerned, the only instance in favour
of the exception is the judicial one as noticed above, being
Didar Singh's case. As against this, at page 178 of the District
Riwaj-i-am, a number of instances have been given of
Dhaliwal Jats, of which instances at serial numbers 31, 32, 33
and 34; all of the year 1911-12; are against the recognition of
this exception. All these instances relate to Tehsil Moga and
not to Tehsil Muktsar. Here it may be assumed that the
custom that is followed by the Dhaliwal Jats in Moga would
not be much different from the one followed by them in
Tehsil Muktsar and more so because this is the usual custom
generally prevailing in the whole of the District amongst the
other Jats also. So, as regards Dhaliwal Jats, we have got four
clear instances, in which widow even in spite of her marriage
with her deceased husband's brother forfeited the estate and
we have one judicial instance of Didar Singh's case (supra),
taking a contrary view.
20. As has been noted above, Mr. Justice Chatterji, while
dealing with Mst. Indi's case (supra), expressed the view that
the decision of the question was not free from difficulty and
that this exception to the general custom of forfeiture by
widow on remarriage with the brother of the deceased
husband was not universally recognized. There is no instance
after the year 1900, reported or otherwise, from Ferozepur
District in which a widow on remarriage with a brother of the
deceased husband was allowed to retain the property after
remarriage. As has been observed in the note, reproduced
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above, by Mr. Currie, the cases in which a widow is allowed
to keep the property with herself are more by way of family
arrangement than otherwise. Furthermore, in the earlier years,
the landed property was not of very great value and possibly
the brothers allowed a widow to remain in possession of life
interest because in a case after her death the property
devolved, in equal shares, among all the surviving brothers. In
fact, Mr. Justice Chatterji, in Mst. Indi's case (supra), at 454
of the report, states as follows:-
"After all the matter is of no vital importance to the
plaintiff; their succession to the property of their
deceased brother is, if their suit fails, only postponed
till the death of the widow; their rights remain
unaffected."
It appears that as the value of the landed property increased,
the brothers, other than one who remarried the widow were
more alert as regards their rights and asserted the same and
got the property mutated equally in the names of all the
brothers and did not allow the estate to remain with the widow
to be enjoyed exclusively by the brother whom she had
remarried.
21. It was vehemently contended that the statement that
appeared in Rattigan's Digest of Customary Law in its edition
of 1925 and the subsequent editions, saying that among Sikh
Jats in Punjab this exception is generally recognised, was not
correct, because the case of Sant Singh v. Rari Bai (supra), on
which it purported to be based, was hardly an authority for
such a general statement. I feel, there is force in this
contention. In this case, the parties to the litigation were
Bhullar Jats, who had migrated to Hyderabad Sind from
Jullundur District and it was held that the parties, on
migration to Sind, carried with them their personal law as to
custom prevailing in the province of Punjab. The learned
Judges simply relied on Mst. Indi's case (supra) and Basanti v.
Partapa (supra), a case from Ludhiana District, for coming to
the conclusion that among the Sikh Jats re-marriage of a
widow with the brother of her husband did not result in
forfeiture of her estate inherited by her, irrespective of the fact
whether he be the sole surviving brother or there are other
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brothers as well of the deceased. Mst. Indi's case (supra) has
already been discussed above, the Basanti's case (supra) is a
case from Ludhiana District, in which it was laid down that
amongst Sikh Jats in the District of Ludhiana, widow does not
forfeit her life estate in her deceased husband's property by
reason of her remarriage in Karewa form. None of these two
cases is an authority for the general proposition that amongst
Sikh Jats in the Punjab this special custom is recognised. This
statement, therefore, introduced by the editor for the first time
in 1925 edition of Rattigan's Digest was not borne out by the
decision in Sant Singh's case (supra) or otherwise.
22. Be that as it may, so far as the District of Ferozepur is
concerned, the number of instance in support of the general
custom not recognising this exception are so overwhelmingly
large that it is not possible to say that this special custom
prevails in the district of Ferozepur. So far as Dhaliwal Jats
are concerned, there are four Assistance cited in the Riwaj-i-
am as against one reported case of Didar Singh (supra) and
consequently, it cannot be held that this special custom is
recognised universally, amongst the Dhaliwal Jats. No
specific instance was proved in the case relating to the family
of Dhaliwal Jats in Muktsar Tehsil, to which the parties
belong, and, therefore, the main question posed in the case has
to be replied in the negative, namely, that there is no universal
custom amongst the Jats of Punjab, by which a widow does
not forfeit her life estate in her husband's property by reason
of her remarriage with her husband's brother and the same
holds good with regard to Dhaliwal Jats of Muktsar Tehsil in
the Ferozepur District."
16. The ratio of law was approved by Supreme Court in Civil
Appeal No.1057 of 1970 holding as under:-
"5. In reaching this conclusion the learned judges had
to deal with the earlier Full Bench decision of three
fudges of the same High Court. Charan Singh v
Gurdial Singh (supra) in which the view taken by the
majority, one learned Judge dissenting, is apparently
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in conflict with that taken in the judgment under
appeal. In Charan Singh's case it was held that as
regards jats governed by custom in matters of
succession, a widow on remarrying her deceased
husband's brother remains entitled to collateral
succession in the family. The parties in that case
were jats from Ambala District, and remembering
that custom in Punjab often varies from district to
district and tehsil to tehsil, it seems the proposition
was stated too broadly in Charan Singh's case
suggesting as if this was the custom among the jats in
the entire State of Punjab. The basis of the decision
in Charan Singh's case is a statement in Sir W. H.
Rattigan's Digest of Customary Law in the Punjab.
The authoritative value of Rattigan's compilation has
been recognised by the Privy Council in Mst.
Subhani v. Nawab, 68 Ind App 1 and also by this
Court in Salig Ram v. Mst. Maya Devi (supra) and
Jai Kaur v. Sher Singh (supra). In Jai Kaur's case
however it was held that "when the custom as
recorded in the riwaj-i-am is in conflict with the
general custom as recorded in Rattigan's Digest or
ascertained otherwise, the entries in the riwaj-i-am
should ordinarily prevail. Paragraph 32 of Rattigan's
Digest on which Charan Singh's case relies states:
"In the absence of custom, the remarriage of a widow
causes a forfeiture of her life-interest in her first
husband's estate which then reverts to the nearest heir
of the husband". It is thus clear that there is no
conflict between the statement in Rattigan's Digest
and the entry in riwaj-i-am as regards the general
custom that remarriage of the widow entails a
forfeiture of her interest in her first husband's estate.
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However, a number of exceptions to this general
custom have also been recorded. Exception 1 which
is relevant for the present purpose is as follows:
"Among certain tribes a remarriage in the Karewa
form with the brother of the deceased husband does
not cause a forfeiture of the widow's life estate in the
property of her first husband." The cases cited in
support of the special custom relate to Sikh jats of
certain districts of Punjab, namely Sirsa, Amritsar,
Ferozepur and Ludhiana. There is no mention in this
catalogue of Dhaliwal jats of Tehsil Muktsar. It was
for the first time in the 12th edition of Rattigan's
book which was published long after Sir Rattigan's
death, the following statement was added: "By
custom among the Sikh jats of the Punjab a widow
does not forfeit her life estate in her deceased
husband's property by reason of her remarriage in
Karewa form with her husband's brother, whether he
be the sole surviving brother or there are other
brothers as well of the deceased." A decision of the
Sindh Judicial Commissioner's court, Sant Singh v.
Rari Bai, reported in AIR 1924 Sindh 17 and also in
76 Ind Cas 408, has been cited there in support of the
statement. It has been pointed out very clearly by the
learned Judge in his order by which he referred the
case to a larger bench that Sant Singh's case does not
lay down any such broad proposition to justify the
statement added in the 12th edition of Rattigan's
book. The mistake results from relying on the head
note of the case as appearing in the Indian cases as
also in the All India Reporter.
Sant singh's case in which the parties were Sikh Jats
from Jullundur District relies on a decision of the
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Punjab Chief Court: "In Basant v. Pratapa, (51 Pun
Re 1911) a judgment of Punjab Chief Court, it was
held that among the Sikh jats in the District of
Ludhiana a widow does not forfeit her life estate in
her deceased husband's property by reason of her
remarriage in Karewa form with her husband's
brother whether he be the sole surviving brother or
there are other brothers as well of the deceased."
What is found there as the custom among the Sikh
Jats in the District of Ludhiana" appears in the head-
notes of the two reports as the custom "among Sikh
Jats in the Punjab". Clearly, the head-notes are wrong
and do not set out the decision correctly. That being
so, it cannot be said that there is any real conflict
between the riwaj-i-am and Rattigan's Digest on this
point. In any event the statement cannot be attributed
to Sir Rattigan.
6. Five learned Judges of the Punjab and Haryana
High Court composing the Full Bench after a close
examination of the available material on the question
whether among Dhaliwal jats of Tehsil Muktsar there
is a special custom which permits a widow on
remarriage with her deceased husband's brother to
retain her interest in the estate of the deceased, have
answered the question in the negative. On the
material before us we find no reason to take a
different view."
In view of the aforesaid ratio of law, this Court upholds the
findings recorded by the Lower Appellate Court that Mohinder Kaur on
affecting karewa marriage with brother of his deceased husband
forfeited her right in the estate inherited by her from her late husband.
17. During the pendency of the appeal before the Lower
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Appellate Court, defendants propounded compromise alleged to have
been entered by them with Mohinder Kaur and Rano. Lower Appellate
Court framed issue No.1 vide order dated 21.09.1987 which reads as
under:-
"whether the case has been adjusted by a lawful
compromise? If so, its effect."
18. Harjinder Pal Kaur accepted the compromise and claimed
that the suit and appeal be dismissed as per compromise. Her statement
was recorded on 24.01.1999. Mohinder Kaur however disputed the
same. She claimed that her signatures were taken on the pretext that so
far as her land inherited from Gurcharan Singh is concerned, the same
will remain with her. No finding has been recorded with respect to the
stand taken by Mohinder Kaur. Shamsher Singh and Rachhpal never
paid the amount of Rs.1 lakh each to Mohinder Kaur or Harjinder Pal
Kaur. Thus, this Court finds that the Lower Appellate Court erred in
believing the compromise and dismissing the suit qua Mohinder Kaur.
19. In view of the aforesaid discussion, the cross-objections are
ordered to be dismissed. Suit filed by the plaintiffs Bhupinder Pal Singh
and Mohinder Kaur is ordered to be decreed. They are held to be owners
in joint possession of 1/6th share each in the estate left by Balwant
Singh. The impugned decree passed by Lower Appellate Court is
modified to the said extent.
20. Disposed off, accordingly.
(PANKAJ JAIN)
24.09.2024 JUDGE
Dinesh Whether speaking/reasoned : Yes
Whether Reportable : Yes
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