Bannerji, J.C.
1. The sub-joined pedigree table will explain the position of the persons to be mentioned:
BHAOO
_______________________|______________________
| | | |
Basia (died Gaji (died Soorjoo Dhania
issueless) issueless | |
_______________________| Tulsia
| | |
Mania Arjun (died. |
| issueless) |
(Plaintiff) |
______________________________|
| |
Persa married Motia (dead)
Mst. Sundru married
(died issue Mst.
Jess) Malti (dead)
Mst. Karmi
defendant 2.
2. This suit is brought by the plaintiff (respondent) as the only reversionary heir entitled to the property last, held by the widows, Mt. Malti and Mt. Karmi, of Motia. These widows had succeeded to the entire property left by Tulsia on the death of Mt. Sundru and of their husband, Motia.
3. The suit was directed against Kunwar Mehar Singh, defendant 1 and Mt. Karmi, defendant 2. Defendant 1 is the purchaser of sisty five bighas and eleven biswas of land in village Bhilru by virtue of a deed of sale, dated 7th April 1942, executed by the two widows, Mt. Malti and Mt. Kamri. The consideration mentioned in the sale-deed was Rs. 1,200 (Rupees one thousand and two hundred), Mt. Malti died soon after the sale-deed was executed. The plaintiff's suit was for a declaration that the sale-deed was invalid and ineffectual under the custom prevalent in Koti State and should, therefore, be declared null and void. It was further alleged by the plaintiff that the sale-deed was without consideration and necessity. The plaintiff further claimed that he should be given possession of the land sold to the defendant by Mt. Malti and Mt. Karmi and also the land at present in possession of Mt. Karmi, who as a co-widow succeeded to the entire property but who having re-married, has forfeited all rights to the land of her husband, Motia. In the alternative, he prayed that in case it was found that Mt. Karmi had not re-married, his reversionary rights to the property comprised in the sale-deed, should not be affected by it. Both Mt. Karmi and Kunwar Mehar Singh resisted the suit on the following grounds, namely: (1) that the custom or wajib-ul-arz upon which the plaintiff relied relates to the ancestral nature of the land; and as the land inherited by the widows was not proved to be ancestral, the custom or wajib-ul-arz of Koti State does not apply; (2) that the sale is for consideration and necessity and therefore, binding on the plaintiff.
4. The learned trial Judge framed ten issues but the most important ones for the purpose of this appeal are:
(a) issue 3: Whether in matters of alienation of land Motia and the plaintiff are governed by agricultural custom and what that custom is?
(b) issue 4: Whether the sale in dispute was effected for consideration and legal necessity?
(c) issue 5: Whether at the time of sale Mt. Karmi was residing in the house of Kansia? If so, in what capacity and what is its effect on this suit?
(d) issue 6: Whether Mt. Malti and Mt. Karmi had power to sell the land of Motia (whether self-acquired or ancestra).?
5. As regards issues 3 and 6 above, the learned Judge, on a very careful and elaborate discussion of the evidence, found
that the sale in question offends against the custom prevalent in Kanaita of Koti State, regarding alienation by a widow of her husband's property, where a widow can alienate with the consent of reversioners only.
6. As regards issue 4, he held that the sale was effected without any legal necessity but he found the issue 5 against the plaintiff and finally gave judgment on 3rd April 1948 in favour of the plaintiff declaring the sale-deed to be inoperative and without any effect on the reversionary rights of the plaintiff after the death of Mt. Karmi, defendant 2.
7. The appeal was taken by Mehar Singh, defendant 1, only (Mt. Karmi, defendant 2. having not appealed) to the Court of the Chief Judicial Officer, Kasumpti. By an order of the Chief Commissioner, these appeals are now transferred to the file of the Judicial Commissioner, who in the capacity of Judicial Committee, is empowered to decide it.
8. The learned Counsel for the defendant-appellant argued on three points. Firstly, that the custom or wajib-ul-arz of Koti State does not fall within the accepted principle that the custom should be reasonable and hence no reliance should be placed on this custom and the suit should have been decided on the general principles ofHindu law. His second point is that even assuming that the custom of Koti State is valid and binding, it can affect only the ancestral estate of the last male-holder and there is no evidence on record to show the ancestral nature of the property comprised in the disputed sale-deed and his last point is that there was necessity and the widows could validly dispose of a part of the estate over which they enjoyed life interest.
9. Before I take up the points raised by the learned Counsel, it will be better to refer to the custom upon which the plaintiff's suit has been decreed. The terms of the custom are:
Riwaj Moujud-ul-Wagat Jo Tasdiq Huwa. 12.-- Haquq Bewagan--Bewa Aurat Apne Khawind ki jaedad Manqula wa Ghair Manqula Ki Jaiz Waris Hai, Aur Qabiz Jaedad Reh Sakti Hai, Tawaqte Keh Woh Dusre Khawind Ke Pas Bazaria Karewa Ya Reet Na Chali Jawe. Bewa Aurat Ko Kisi Snrat Main Badioun Razamandi Haqdaran Bazgasht Ke Intqal Jaedad Ka Haq Hasil Nahin Hai, Aur Woh Jaedad Shohri Ko Bakhushi Khud Chhor Devai, Aur Warisan Matwaffi Qabiz Arazi Houn, To Bewa Haeab Riwaj Guzara Lenai Ki Mustahaq Hoti Hai, Yam Arazi Char Patha se Ath Patha Tak--Agar Bewa Aurat Kisi Dusre Khawind Ke Pas Chali Jawe, To Khawind Mutwaffi Ke Warisan Ko Reet Lenai. Ka Haq Hasil, Hai.
10. The English translation, agreed upon by the parties, is as follows:
Rights of widows. 12.--A widow is the legal heir of her husband's movable and immovable property and can remain in possession of it, until such time that she does not go to another husband by Karewa or Beet, The widow has no right to alienate property without the permission of the reversioners. If the widow willingly surrenders her husband's property, and the reversioners be in possession of it, then she is entitled to maintenance according to the custom, that is, from four Patha land to eight Patha. If the widow goes to another husband, then the reversioners of her deceased husband are entitled to get Reet.
11. I do not think there is any force in the argument that this custom is unreasonable and therefore, should not be given effect to. In Bal Gobind v. Badri Prasad A.I.R.1923 P.C.70 and also in Sheo Baran Singh v. Mt. Kulsum-un-Nisa, their Lordships of the Privy Council held that a wajib-ul-arz, which is unambiguous, is by itself sufficient to establish the custom.
12. It is clear, therefore, whatever the ideas of equity, if a custom is found to exist as a fact, it will be upheld though it may appear to work hardships in some cases. The duty of the Court is to find out the custom and when it is ascertained, it is not against broad principles of justice, equity and good conscience to apply it. It is the custom of the tribe or community to which the parties belong that is to be enquired into. It is only in cases where custom of the parties to the litigation cannot be definitely ascertained that the consideration of the general principles) of Hindu law may become relevant.
13. The second point urged before me is that when the above wajib-ul-arz does not mention the nature of the property over which the widow had such limited interest, it must then be taken to refer to the ancestral property only.
14. For this purpose, the learned Counsel quotes the ruling in Mt. Kishni v. Munshi A.I.R.1935 Lah.550. In that case the questions involved were whether the rewazi-e-am of the Hoshiarpur district were applicable to non-ancestral property of the last male-holder and whether in succession of non-ancestral property the daughter could exclude collaterals of the fifth or more remote degree. Tek Chand, J. held
that the entry in the rewazi-e-am deos not state expressly that it applies to non-ancestral property of a son-less proprietor. There are numerous oases in which it has been held by this Court that this entry laid down the rale of succession to ancestral property only: see inter alia, Pir Baksh v. Mt. Abo A.I.R.1925 Lah.306.
The learned Judge no doubt admitted that a contrary view had been taken by Division Bench in Mohammad Bahsh v. Mt. Jeo A.I.R.1933 Lah.107 yet he thought he could rely upon another Division Bench of the Lahore Court, namely, Abdul Rahman v. Mt. Natho A.I.R.1932 Lah.591 which laid down the general proposition. that unless there is a clear statement to the contrary, the rewazi-e-am refers only to ancestral land; customary land is in fact usually only concerned with the protection of ancestral property, while self-acquired property can be disposed of as the owner pleases, that is, reversioners are usually concerned with ancestral property.
15. There has been a consistent concurrent of decisions in the Lahore High Court which have favoured the view that under the customary law of the Punjab, no female in possession of immovable property inherited from her husband has power ordinarily to alienate such property and no distinction can be made between ancestral property and self-acquired property in this respect.
16. The first case is Mt. Durgo v. Prem Singh A.I.R.1924 Lah.196. It is a single Judge decision but it followed the previous Division Bench decisions in Govinda v. Nandu A.I.R.1922 Lah.217 and also Diyal Kuar v. Mehtab 74 I.C. 639. Further, it was held by a Division Bench of Lahore High Court in Ahmad Din v. Mt. Fatima A.I.R.1928 Lah.290 that the reversionary heirs of the last male-holder could contest alienation made by widow of her husband's estate, even if the property were proved to be non-ancestral. In Bahmat Ali v. Ahmad, Bux A.I.R.1931 Lah.609 a Division Bench of Lahore High Court held that it was not necessary for a reversioner to prove that the property was held by the common ancestor. In this connection a reference may. be made in Thahur Singh v. Buta Singh A.I.R.1934 Lah.860 and Division Bench, Noor Ahmad v. Rahim Bux (1912) 52 P.R.192.
17. It is, therefore, clear whether the property received by a widow upon her husband's death was acquired by him or is ancestral qua reversioner, she is equally debarred from alienating it against the wishes of reversioners unless of course she transfers it to them.
18. This applies to the custom in the Punjab. According to the recent Pull Bench decision of the Lahore High Court in Ali Mohammad v. Mt. Mughlani A.I.R.1946 Lah.180 it is summarized as follows: the estate of a widow under the customary law of the Punjab is analogous to the estate of the widow under the Hindu law. Under both the laws, she holds for life for the purpose of maintenance with certain powers of disposition which are necessarily incident to her position. She is at least under the customary law in no sense a co-sharer and the succession on her death is not to her but to her husband. A widow under the Hindu law is allowed with certain limits to alienate for religious or charitable purposes. The Punjab custom permits alienation for necessity provided the requirements of the widow cannot be met out of the income from the estate in her possession. A widow under the Hindu law enjoys a larger power in the matter of enjoyment of the estate than a widow under the Punjab custom.
19. If under the Punjab custom the enjoyment is less yet the custom is enforceable. It is lesser in the case of the widow under the custom of Koti State. Such custom is, in my opinion, 'quite reasonable and binding on the widow.
20. Apart from the question whether the property is ancestral or not to which the learned Counsel directed his argument, the question is immaterial in the present case where the ancestral nature of the property has been admitted by the parties. In view of this, I am not prepared to agree that the widow in Koti State can alienate non-ancestral property. In my opinion, she is prevented from alienating any property either ancestral or non-ancestral without the consent of the next reversioners.
21. As regards the third and last point that the widow can alienate for legal necessity, I wish to observe that under the Punjab custom she can, provided, as held by the Pull Bench of the Lahore High Court quoted above, the requirements of the widow cannot be met out of the income from the estate in her possession.
22. In my opinion, there is evidence on record proving that the widows enjoyed a very large income from the estate. A portion alone of the estate yielded nearly Rs. 1000 (Rupees one thousand) a year.
23. The learned Counsel for the plaintiffs has drawn my attention to the sale-deed which does not contain the particulars of necessity for which the consideration was paid. Even if it had contained them, in my opinion, it would have been still necessary for the purchaser to prove that the consideration was for necessity.
24. The learned trial Judge concluded a sound and able judgment as follows:
The widows owned three villages in the year 1940 41. The income from two villages wag Eq. 976/15/- (vide Ex. P.W. 9/1 and Ex. P.W. 9/2). It is in evidence that the widows were in arrears of land-revenue. This fact shows that the widows were extravagant.... The widows were residing within the jurisdiction of Mashobra police station whose incharge Mehar Singh defendant wag. The village Shilru, where the land was situated wag also within the jurisdiction of Mashobra police station. Mehar Singh defendant can very well be fixed with the knowledge of the aflairg of the widows. A very strict proof of consideration and legal necessity is required in the circumstances of this case.
25. I agree with the reasonings of the learned Judge with his very careful and clear discussion over each item of payment that made up the consideration and I agree with him that the Bale was not for necessity.
26. I wish further to add that under the custom or wajib-ul-arz, the widows' power of alienation in Koti State is limited to her husband's reversioners only and not to any one else. Upon this ground alone, the sale-deed is illegal and invalid.
27. I shall now take up the point which has been argued by the learned Counsel for the plaintiff (respondent). He has brought to my notice the evidence laid before the trial Judge as regards the re-marriage of Mt. Karmi with one Kansia, who is now dead. This was issue 5 before the trial Judge. The learned trial Judge relied upon the revenue records wherein Mt. Karmi has all throughout been described as widow of Motia. He further relied upon the receipts of the Exs. D.E. to D.H. and Ex. D.J. wherein Mt. Karmi has been described as widow of Motia. These receipts were granted by State officials. He preferred the description of these receipts to the direct oral evidence of Dharam Das, P.W. 1, Ram Singh, P.W. 5, Mast Ram, P.W. 6, another Mast Ram, P.W. 7, and som Das, P.W. 8 who, one and all, state that Mt. Karmi is the wife of Kansia. Even the defendant's witnesses, Kodru, P.W. 3, Lachmi Das, D.W. 5, and Jiwan Das, D.W. 7, have admitted that Mt. Karmi was residing with Kansia in his house and the learned trial Judge also came to the conclusion that it was established that Mt. Karmi was residing with Kansia. He is of opinion that perhaps Mt. Karmi was living in Kansia's house as his mistress. The learned trial Judge has fallen into the error of relying on revenue records, for the purpose of determining this issue. In Nirman Singh v. Lal Rudra Pratap Singh A.I.R.1926 P.C.100 their Lordships of the Privy Council pointed out that the revenue or mutation proceedings are not judicial proceedings.
They are much more in the nature of fiscal inquiries for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with the greater confidence that the revenue for it will be paid.
The entries in revenue records do not, therefore, confer any title nor can they be the foundation of any proprietary right.
28. If Mt. Karmi were married to Kansia, it would be her interest to keep her name as widow of Motia in order to enjoy Motia's property. No witness speaks of Mt. Karmi as Kansia's mistress. On the contrary, there is evidence of five witnesses, who have stated that Mt. Karmi lived as the married wife of Kansia. The learned trial Judge relied upon an alleged admission of the plaintiff. The plaintiff had instituted a suit in the Court of Tika Sahib Koti State, for depriving Mt. Karmi of the estate of Motia on the ground that she had married Kansia. That suit was dismissed. But the dismissal of the suit means that at that time, the plaintiff had no cause of action because the co-widow, Mt. Malti, was living and she alone could bring the suit to deprive Mt. Karmi of her share in the enjoyment of the property. On the contrary, that a suit had been brought before, to deprive Mt. Karmi of the enjoyment of her share of widows' estate proves that the plaintiff had reasonable grounds at that time to believe that defendant 2, Mt. Karmi, had re-married.
29. I have carefully examined and considered the direct testimony of the plaintiff's witnesses as well as the defendant's witnesses named above and I am of opinion that Mt. Karmi lawfully married Kansia in the life-time of Mt. Malti, and before the plaintiff brought the suit in the Court of Tika Sahib of Koti for depriving her of her enjoyment of widows' estate.
30. By her re-marriage with Kansia, Mt. Karmi has forfeited her right to the enjoyment of her share of widows' estate. The question of limitation does not arise as Mt. Malti, it is admitted by both the parties, who, as a co. widow, had a right to deprive Mt. Karmi of the share of Motia's estate, died a short time before this suit was commenced. I am, therefore, of opinion that the plaintiff is entitled to the relief claimed by him, namely, that the sale-deed executed or 7th April 192, in favour of Mehar Singh, defendant 1 by Mt. Malti and Mt. Karmi, defendant is void and inoperative and that this sale did not affect the reversionary rights of plaintiff and that the plaintiff is entitled to claim it as a reversionary heir of Motia. Further the plaintiff is entitled to the immediate possession not? only of the land comprised in the sale, deed but also of the property now held by Mt. Karmfc defendant 2, on account of her re marriage witb Kansia, or in other words, to the entire estate: left by Motia and Mt. Sundru, which was in the enjoyment of the two widows, Mt. Malti and Mt. Karmi, before the execution of the sale-deed.
31. I would, therefore, dismiss this appeal and affirm the judgment and decree of the District Judge dated 3rd April 1948, with this modification that the reversionary rights of the plaintiff would take effect immediately and that he would be given possession of the property comprised in the sale-deed and the property now held in possession of Mt. Karmi defendant 2. The defendant will pay the costs of this appeal. I shall advise the Chief Commissioner accordingly.