Ass Kaur (Deceased) By L.Rs Vs. Kartar Singh (Dead) by L.Rs. & Ors  Insc
643 (18 May 2007)
S.B. Sinha & Markandey Katju
S.B. SINHA, J :
1. A question of some importance in relation to applicability of custom in
the matter of inheritance and succession under the Hindu Women's Right to
Property Act, 1937 falls for our consideration in this appeal which arises out
of a judgment and order dated 21.01.1991 passed by the High Court of Punjab
& Haryana in Civil Regular Second Appeal No.
2166 of 1978.
2. The relationship between the parties is not in dispute, which would
appear from the following genealogical table :
--------------------------------------------------------------------------- | |
| Jiwan Singh Hira Singh-Wife Raj Kaur Relu Singh-Wife Sobhi Raj Kaur [died
before | | [Wife] 09.12.84] Sham Singh | | | ------- ------------------------ |
Nand Singh | | | | [Deft. No. 4 ] Inder Singh Mehar Singh Ass Kaur | [died in
1926] [died in 1937] [died] | Through L.Rs.
----------------------------- | | | Kartar Gulzar Mukhitiar Singh Singh
Singh [Deft.No.1] [Deft. No. 2] [Deft. No.3] [died] Represented through L.Rs.
3. We are concerned with the branch of Relu Singh. He had two wives, namely,
Sobhi and Raj Kaur. Raj Kaur was originally married to the brother to his
brother Hira Singh, who had died in the year 2001. Relu Singh married to Raj
Kaur on the death of brother under the customary law of the land. Relu Singh
died in the year 1907. He was succeeded by his two wives and two sons Inder
Singh and Mehar Singh alias Dalip Singh and daughter, the appellant. Inder
Singh died in the yar1926 and Mehar Singh died in the year 1937. Sobhi, the
first wife of Relu Singh and the mother of Mehar Singh and Inder Singh, died in
the year 1950. Raj Kaur died about five years prior to the institution of the
suit i.e. in the year 1970. Ass Kaur, daughter of Sobhi and sister of Mehar
Singh and Inder Singh claimed = share in the property. The
defendants-respondents contended that after the death of her husband Hira
Singh, Raj Kaur contracted Karewa marriage with Relu Singh in accordance with
custom. She had a son through Hira Singh.
It was urged that under the Punjab customary laws governing inheritance and
succession of Sidhu Jats after the death of Relu Singh, his two sons and two
widows succeeded to his estate. After the death of Inder Singh and Mehar Singh,
their properties were mutated in the name of their mother Sobhi and their step
mother Raj Kaur. Again purported to be in terms of the rule of survivorship in
accordance with the local and tribal customs her name was mutated after the
death of Sobhi. She remained in exclusive possession of the said property and
upon coming into force of the Hindu Succession Act,
1956, she became the absolute owner thereof. It was also contended that
Sobhi was a limited owner and on her death in the year 1950, Raj Kaur succeeded
to her by rule of survivorship. It was furthermore pleaded that under the
customary law, the appellant herein had no right of succession in preference to
4. The courts below while holding that the appellant herein was daughter of
Sobhi, opined that the parties were governed by the customary laws in the
matter of inheritance and succession in terms whereof Raj Kaur succeeded to the
estate of Relu Singh after the death of Sobhi and that her estate was enlarged
into full ownership after coming into force of the Hindu Succession Act.
The High Court held :
"Smt. Sobhi died on December 3, 1953 and mutation regarding her share
was made in favour of Smt. Raj Kaur being the co-widow of her late husband Relu
Singh on July 31, 1955 i.e before coming into force of Hindu Succession Act.
In para 13 of the Rettigan on Customary Law, on the death of a co-widow the
other surviving widow takes the property survivorship. Revenue Officers rightly
sanctioned the mutation of the estate of Smt. Sobhi in favour of Smt. Raj Kaur,
5. Keeping in view the importance of the question involved, as also the fact
that nobody appeared on behalf of the respondents, we requested Mr. R.
Sundravardan, the learned Senior Counsel, to assist us in the matter.
6. Contentions of Mr. Sundravardan and Mrs. Palli are as under :
i) Relu Singh having only 1/3rd share in the property; the other co- sharers
thereof being Inder Singh and Mehar Singh, on his death his 1/3rd share
devolved upon his two wives jointly as also, his two sons Inder Singh and Mehar
ii) On Inder Singh's death his interest in the property devolved upon Mehar
Singh who became the absolute owner in respect thereof. On Mehar Singh's death
which took place on 05.06.1937, the properties devolved upon his mother Sobhi.
On Sobhi's death, in terms of the provisions of the Hindu Law of Inheritance
(Amendment) Act, 1929, (1929 Act) the appellant herein succeeded her as heir of
iii) Sobhi having life interest in the property, on her death the same
devolved upon the appellant herein as daughter of Relu Singh, as a reversioner.
iv) A step mother being not an heir or a relation for the purpose of
inheritance and succession; she could not inherit the interest of Inder Singh
and Mehar Singh.
v) Custom prevailing in the family which had been relied upon being a
general custom and not a special or personal custom would be subservient to the
1929 Act and Hindu Women's Right to Property Act, 1937 being Act XVIII of 1937.
vi) Purported reliance upon the customary law by the courts below is
7. Before embarking on the contentions of the learned counsel, we may notice
the following findings of the courts below, wherein it is stated that Sidhu
Jats were governed by Zimindara custom :
"There is no dispute that the defendants are Sidhu Jats who are
predominantly agricultural tribe and were governed by agricultural custom in
matters of marriage succession alienation etc. Necessary evidence on the point
has been supplied by all the witnesses of the defendant who were pushed in to
prove relationship of Sham Singh, Raj Kaur and Hira Singh as their son. It may
also be observed that though the defendants denied in the written statement
that the suit property was allotted during consolidation of holding in lieu of
the land held by Relu the learned counsel for the defendants made their
statements on 26.3.1977 admitting this fact. The copies of the revenue record
Exhibits D3 to D30, however establish beyond doubt that the suit land was held
by Sohna Singh father of Relu Singh and Hira Singh and after his death it was
inherited by them. It is therefore the common case of the parties that the suit
land was ancestral in the hands of Relu Singh. Now at the time of the death of
Relu Singh about 60 years back these Sidhu Jats of Muktsar Tehsil who were
obviously governed by Zimindara custom, the daughter was in the presence of
sons. No share was to be given to the plaintiff at the time of the death of her
father Relu Singh and this estate was mutated correctly in the names of Inder
Singh and Mehar Singh alias Dalip Singh.
Similarly after the death of Inder Singh the estate was mutated in the name
of his other brother Mehar Singh.
However, when Mehar Singh died issueless, the estate reverted back to his
father and Sobha and Raj Kaur succeeded to her not as her mother or step mother
but as widows of his father"
8. There cannot be any dispute in law that Raj Kaur did not inherit the
interest of Mehar Singh in whom the interest of Inder Singh had also vested
upon his death. His interest under the general law had devolved upon Sobhi. The
question, however, which remains as to whether in a case of this nature the
customary law would prevail in regard to the question as to whether Appellant
or the said Raj Kaur inherited the interest of Sobhi.
9. Custom is one of the three sources of Hindu Law. Custom may override a
statute subject, of course, to a clear proof of usage.
10. Hindu law recognizes three types of customs : local custom, class custom
and family custom. The courts below have held that the parties were governed by
Zimindara custom. Whether the said custom is a general custom, or a special
custom or for that matter a family custom has not been stated. The customary
law prevailing in the State of Punjab has received a statutory sanction by
reason of the Punjab
Laws Act, 1872, Sections 5 and 7 whereof read as under :
"5. Decisions in certain cases to be according to Native law.- In questions
regarding succession, special property of females, betrothal, marriage divorce,
dower, adoption, guardianship, minority, bastardy, family relations, wills,
legacies, gifts, partitions, or any religious usage or institution 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 customs as is above
"7. Local customs and mercantile usages when valid.-All local customs
and mercantile usages shall be regarded as valid, unless they are contrary to
justice, equity or good conscience, or have, before the passing of this Act,
been declared to be void by any competent authority."
11. Amongst the Sikh Jats of Punjab province, there exists a custom, where
the widow marries her first husband's brother in the Karewa form, remarriage
would not cause forfeiture of her own share. [See Chunnilal v. Mst. Attar Kaur AIR
1933 Lah. 69].
12. In respect of Jats belonging to Firozepur district, it has been held
that a widow who remarried her first husband's brother succeeds to a co-widow
in preference to collaterals. But the widow's right only accrues on husband's
death, and if it does not accrue then, it cannot accrue later by the death of
subsequent heir. The fact, if the widow is a Karewa widow it would not affect
her right in a suit the parties to which were the two widows of a Manhas Rajput
resident in the Shakargarh Tehsil of Gurudaspur District, had that the
plaintiff (upon whom under the circumstances the onus lay) had failed to prove
a custom in her favour, excluding the defendant, who was a co-widow by a Karewa
marriage, from succeeding to a share in the deceased husband's estate (Mst.
Dakho v. Mst. Gano 22 P.R. 889].
Even a woman who had contracted such marriage may not forfeit her life
estate, if any, in her deceased husband's property despite the provisions of
the Hindu widows Remarriage Act, 1856. However, the said principle would not
apply where a remarriage is not with the brother of her deceased but with some
13. In Shrimonai Gurdwara Parbandhak Committee and Others v.
Harcharan Singh [AIR 1934 Lahore 1], a Division Bench of the Lahore High
Court held :
"First of all, it was objected that Harcharan Singh was not the legal
representative of his deceased brother Gurcharan Singh, but that his mother Mr.
Uttam Kaur, was his legal representative. Counsel for Harcharan Singh stated
before the Tribunal that he had no objection to the mother also being impleaded
as the legal representative of the deceased Gurcharan Singh, if it was held
that she was one. It was denied however that she was the legal representative
of the deceased Gurcharan Singh, and this contention was upheld by the Tribunal
on the unrebutted testimony of the witness examined. There is no question that
this decision is right. A mother as a rule in the Punjab, where custom is the
rule of decision, only succeeds when there are no sons and the succeeds not as
the mother of the sons but as the widow of her deceased husband. See in this
connection the replies to questions 35, 41 and 53 of Currie's Customary Law of
the Ferozepore District. In reply to the last question there is a note to the
effect that the mother succeeds really as the widow of her husband and not as
the mother of the last owner. There are numerous decisions to this effect as
well. It follows that, where there are sons they exclude the mother and if a
son dies he is succeeded by his brother but when the last surviving son dies
without issue then the mother succeeds in her capacity as widow of her deceased
husband. I may here refer to one authority that of a Full Bench, reported as
Mt. Desi v.
Lehna Singh. It is clear from this case that there were two sons who both
died without issue and it was not till the death of the second that their
mother set up a claim as against the collaterals. She was however non-suited on
the ground that she had remarried and could not therefore be looked upon as the
widow of her first husband."
14. Yet again in Diwan Singh and Another v. Natha Singh and Others [AIR 1937
Lahore 468], it was held :
"The case of a mother inheriting property on the death of her son
obviously stands on a different footing and cannot, I think, be considered to
be analogous to the present case. In the present instance, it seems clear that
when the widow Mt. Utmi succeeded collaterally on the death of Jowala Singh and
Mihan Singh, she succeeded to the estate as the representative of her husband
and not of Jowala Singh or Mihan Singh.
Consequently on her death the estate must, I think, be treated as though
Prem Singh himself had succeeded to it"
15. Our attention has, however, been drawn to a decision of this Court in
Ujagar Singh v. Mst. Jeo [AIR 1959 SC 1041], wherein this Court upon noticing a
large number of conflicting decisions, came to the conclusion that existence of
a general custom entitling the collaterals to succeed in preference to sister
had not been proved. It, therefore, seemed to Their Lordships that in the
interest of justice the respondent therein (sister) should succeed in the suit
as her brother's heir under the Hindu law.
16. In absence of any proof of custom, indisputably the Hindu Law would
apply. A' fortiori Hindu Law of Inheritance (Amendment) Act, 1929 in terms
whereof a sister becomes an heir in preference to the collaterals would be
applicable in regard to devolution of property.
17. We may, however, notice that customary law has been recorded in
Rattigan's Digest of Customary Laws. The courts below have categorically held
the law to be applicable in the instant case is the customary law having regard
to the fact that the parties belonged to the community of Sidhu Jats.
18. In R.B.S.S. Munnalal and Others v. S.S. Rajkumar and Others [AIR 1962 SC
1493], this Court was considering the question as to whether a Jain widow could
adopt a son to her husband without his express authority, being governed by the
custom which had by long acceptance become part of the law applicable to them.
Therein, it was observed :
"It is well-settled that where a custom is repeatedly brought to the
notice of the Courts of a country, the courts may hold that custom introduced
into the law without the necessity of proof in each individual case"
19. The court can also take judicial notice of such customs in terms of
Section 57 of the Evidence Act, 1872. As and when custom has repeatedly been
recognized by the courts, the same need not be proved.
Reference in regard to the Punjab 'general custom' may be made to Ujagar
Singh (supra), and Bawa v. Taro [AIR 1951 Punjab 239]
20. In Harcharan Singh v. Mohinder Kaur [AIR 1987 P&H 138] Paragraph 22
of the Rattingan's Digest was noticed, holding that in terms thereof there is a
custom in Punjab to the effect that in default of male lineal descendants and
of a widow the mother of the deceased succeeds to a life interest, provided she
had not remarried. It reads as under :
"22. In default of male lineal descendants and of a widow the mother of
the deceased succeeds to a life interest, provided she has not remarried."
21. In Chunnilal (supra), Lahore High Court observed :
"Where a person dies leaving two widows and one of them remarries the
whole estate of the deceased passes to the other widow and the mere retention
of the re- married widow's name in the revenue records would not place her in
adverse possession of her share qua the co- widows and owing to her intervening
between the estate and the reversioner the latter's rights would not be
22. The learned trial Judge categorically held that Relu Singh belonged to
Sidhu Jats of Muktsar Tehsil, who were governed by Zimindara custom, stating :
"Since the property was ancestral according to para 13 of the Digest of
customary law on the death of one of the two co-widows the survivor took the
entire estate by survivorship. Raj Kaur was therefore entitled to succeed to
the estate of Sobhi by the rule of survivorship to the exclusion of the
23. Para 13 of the said Digest reads as under :
"13. On the death of one of two co-widows the survivor takes by
survivorship, even if she has remarried by Karewa, provided such re-marriage
has not caused a forfeiture of her own share."
24. Rattigan's Digest was also referred to by this Court in Daya Singh
(Dead) through L.Rs. and Another v. Dhan Kaur .[AIR 1974 SC 665 :
(1974) 1 SCC 700], but therein again existence of such a custom had not been
proved. It is no doubt true that if the1929 Act applies, the appellant would
succeed to the interest of her brother after her mother's death; but the said
Act of 1929 is also subject to applicability of customary law.
25. As statutory law did not exclude the applicability of the customary law,
the principle that customary law would prevail over the statutory law would
apply. It was so found by the courts below.
26. A serious contention was raised that the validity of customs must be
judged on the touchstone of justice, equity and good conscience.
No such contention had been raised before the learned Trial Judge or before
the High Court. It is one thing to say that customary law had no application or
the custom had not been proved; but it is another thing to say despite its
acceptance and proof the same should not be applied on the ground of equity,
justice and good conscience. We, therefore, cannot go into such a contention.
27. No contention had also been raised before the courts below that the
custom in question is not a special or local custom, but merely a general
custom. Such a contention again cannot be allowed to be raised for the first
time before this Court particularly in view of the fact that they have
categorically held that the Jats are governed by customary law; the principle
being 'keeping of the property within the family'.
28. Raj Kaur, who was a widow of Hira Singh, was married to another brother
just to safeguard the family property. She succeeded under the customary laws to
her husband after the death of her co-widow. In that view of the matter, if the
daughters who were married were to be excluded by customary law, no exception
thereto can be taken.
29. In Daya Singh (dead) through L.Rs. (supra), paragraph 23 of Rattingan's
Digest of Customary Law of Punjab has been noticed. It was held :
"It is on the basis of this Customary Law that the reversioners
succeeded in the suit filed by them questioning the gift made by the
respondents mother to her. There is no doubt that Rattigans work is an
authoritative one on the subject of Customary Law in Punjab. This Court in
Mahant Salig Ram v. Musammat Maya Devi said:
The customary rights of succession of daughters as against the collaterals
of the father with reference to ancestral and non-ancestral lands are stated in
para 23 of Rattigans Digest of Customary Law. It is categorically stated in
sub-para (2) of that paragraph that the daughter succeeds to the self-acquired
property of the father in preference to the collaterals even though they are
within the fourth degree. Rattigans work has been accepted by the Privy Council
as a book of unquestioned authority in the Punjab. Indeed, the correctness of
this para was not disputed before this Court in Gopal Singh v. Ujagar Singh "
30. However, therein the customary law was not applied in view of the
application of Section 8 of the Hindu Succession
31. We may furthermore notice that the customary law has been specifically
been excluded in terms of Section 4 of the Hindu Succession Act, 1956.
If the intention of the makers of the statute in the 1929 was to completely
exclude the applicability of the customary law, it would have been said so
32. Reliance has been placed on Smt. Dipo v. Wassan Singh and Others [(1983)
3 SCC 376], wherein the sister was held to be a preferential heir as it was
found that the entire property was an ancestral property, stating :
"We also proceed on the basis that according to the prevailing custom
of the area, collaterals and not the sister are preferential heirs to ancestral
property in the hands of a propositus, while the sister and not the collateral
is a preferential heir in regard to non-ancestral property. We must add here
that we are not quite satisfied that the custom has been properly established,
but for the purposes of the present case, we proceed on the basis that the
custom has been established. But that is not the end of the problem before us.
No doubt the properties which have been found by the lower courts to be
ancestral properties in the hands of Bua Singh are properties which originally
belonged to Bua Singhs ancestors. But Bua Singh was the last male holder of the
property and he had no male issue. There was no surviving member of a joint
family, be it a descendant or otherwise, who could take the property by survivorship.
Property inherited from paternal ancestors is, of course, ancestral property as
regards the male issue of the propositus, but it is his absolute property and
not ancestral property as regards other relations. In Mullas Principles of
Hindu Law (15th Edn.), it is stated at p. 289:
. . . if A inherits property, whether movable or immovable, from his father
or fathers father, or fathers fathers father, it is ancestral property as
regards his male issue. If A has no son, sons son, or sons sons son in existence
at the time when he inherits the property, he holds the property as absolute
owner thereof, and he can deal with it as he pleases. . . .
* * * A person inheriting property from his three immediate paternal
ancestors holds it, and must hold it, in coparcenary with his sons, sons sons
and sons sons sons, but as regards other relations he holds it, and is entitled
to hold it, as his absolute property.
Again at p. 291, it is stated:
The share which a coparcener obtains on partition of ancestral property is
ancestral property as regards his male issue. They take an interest in it by
birth, whether they are in existence at the time of partition or are born
subsequently. Such share, however, is ancestral property only as regards his
male issue. As regards other relations, it is separate property, and if the
coparcener dies without leaving male issue, it passes to his heirs by
3. We are, therefore, of the view that the lower courts were wrong in
refusing to grant a decree in favour of the plaintiff as regards property
described by them as ancestral property. The defendants were collaterals of Bua
Singh and as regards them the property was not ancestral property and hence the
plaintiff was the preferential heir. The plaintiff was entitled to a decree in
respect of all the plaint properties"
33. There is no dispute in regard to the aforementioned proposition of law.
To the same effect is the decision of this Court in Dharma Shamrao Agalawe v.
Pandurang Miragu Agalawe and Others [(1988) 2 SCC 126] and Sheela Devi and
Others v. Lal Chand & Another [2006 (10) SCALE 75] The said decisions,
however, for the reasons stated hereinbefore, have no application in the fact
of the present case.
34. For the reasons aforementioned, the appeal being devoid of any merit is
dismissed. However, in the facts and circumstances of the case, there shall be
no order as to costs.