P L D 1957 (W (PLP)

KAIKAUS. J‑

It seems rather strange that in 1957 when agricultural custom is almost finished one should have to deal exhaustively with matters which should have been settled by clear authority long ago. That, however, is what I have to do in the present case. I will briefly state the facts. The owner of the property in dispute was one Piran Ditta who died early in the year 1918. He had two wives, Imam Bibi and Hayat Bibi. From Imam Bibi he had a son, Husain Khan, and from Hayat Bibi, a daughter. Talia Bibi. Imam Bibi had predeceased Piran Ditta, and on his death his property was mutated on the 9th of March 1918, half in favour of his son, Husain Khan, and half in favour of his widow, Hayat Bibi. Husain Khan died on the 29th of October 1918 and the half share which stood in his name was mutated in the name of his son, Nawab Khan. Nawab Khan too died in 1922, and this half share was also mutated in the name of Mst. Hayat Bibi. Mst. Hayat Bibi died on the 12th of December 1946. Her daughter Talia Bibi had already died on the 13th of December 1938, leaving behind her a daughter, Mst. Irshad Begum. A dispute then arose between collaterals in the 7th degree of Piran Ditta on one side aid Mst. Irshad Begum on the other, as to who was entitled to succeed to the property. The suit out of which this appeal arises was filed by some of the collaterals, imp leading others as pro forma defendants, claiming that they were entitled to the property in preference to Mst. Irshad Begum. The trial Court decreed the suit. On appeal by the defendants, the case was remanded. The trial Court again found in favour of the plaintiffs and decreed the suit a second time. An appeal against the decree was dismissed and this is a second appeal by Mst. Irshad Begum. Although there were a number of issues framed in the suit, it is conceded before me that the only point for decision is as to who is the preferential heir with respect to this property. The contentions on behalf of the appellant are :‑ (1) that one‑half share of the property which was mutated in the name of Hayat Bibi on the death of Piran Ditta, is obviously to go to the heirs of Piran Ditta and the daughter's daughter is, in respect of self‑acquired pro perty, to be preferred to the collaterals ; (2) as regards the other half of the property, Hayat Bibi had no right of inheritance at all being only the step -grandmother of Nawab Khan and the step‑mother of Husain Khan, therefore, her possession of property was adverse and after 12 years it had ripened into ownership but as she was in adverse possession as widow of Piran Ditta, the property will become an accretion to the estate of Piran Ditta in accordance with the judgment of their Lordships of the Privy Council in Lajwanti v. Safa Chand (I L R 5 Lah.192), assuming that Hayat Bibi was an heir to Nawab Khan, she was such heir only in her capacity as the widow of Piran Ditta, for she was not a blood relation of Nawab Khan ; on the well‑recognised principle, there‑fore, that a property which is acquired by a widow as such is to devolve, after the death of the widow, upon the heirs of the husband, this half too devolved upon the appellant. To these contentions, the collaterals reply :‑ (1) So far as first half of the property is concerned, it was mutated in favour of Hayat Bibi on the death of Piran Ditta, not in life estate but in lieu of maintenance, the sole owner of the property being Husain Khan and after his death, Nawab Khan. (2) Mst. Hayat Bibi was an heir of Nawab Khan as well as Husain Khan in her capacity as the widow of Piran Ditta ; the inheritance is to be reckoned from Nawab Khan, the last male‑holder of the property or from Husain Khan, the last male‑holder who left a descendant ; in the first case, Mst. Irshad Begum is only a paternal aunt, and in the other case, a sister ; in neither capacity can she succeed in preference to collaterals ; the case is one very similar to that in Hamira and others v. Ram Singh and others (134 P R 1907). Into the first contention of learned counsel for the appellant I need not go in the view that I have taken. I am going to hold that even with respect to property which Mst. Hayat Bibi inherited from Nawab khan, it is the heirs of Piran Dttta as have to be found. It makes no difference, therefore, whether one‑half of the property had been inherited by her from her husband or was mutated in her favour in lieu of maintenance. I will only observe that a custom of inheritance by the widow in the presence of son (by another wife) is a rare custom and requires very strong proof. The mere mutation of land in name of widow is scant evidence of such a custom unless it could be shown that the land was not mutated in lieu of maintenance. The first part of the second contention of learned counsel for the appellant I reject without hesitation even though he has cited some authority in support of it. To say that a stepmother is not an heir at all is to misunderstand the basic conceptions of agricultural custom as it existed in the Punjab. There is abundant authority for holding that a mother when she succeeds to her son does so as the widow of the father vide Shiromani Parbandhak Committee v. Harcharan Singh (A I R 1934 Lah. 1) Sundar, Singh v. Mst. Jawala Devi (A I R 1934 Lah. 205) Ibrahim and others v. Barkat and others (323 P L R 1913) Mst. Desi v. Lehna Singh (46 P R 1891. (F B)) and Mst. Dhan Kaur v. Arjan Singh (A I R 1928 Lah. 983). When it is said that the mother succeeds as the widow of the father it means that the right of succession; attaches to her status as the widow of the father. The stepmother is as much the widow of the father as the real mother and there is no reason why she should not inherit like the real mother. The contention that a stepmother is not an heir is being raised before me in 1957, but as long ago as 1891 when Plowden J. was writing his judgment in Mst. Desi v. Lehna Singh, the well known case which deals with the nature of the estate of the mother, it seemed obvious to the learned. Judge that if the son died his mother and stepmother would inherit equally. Citing examples of inheritance. by, the mother, the learned Judge said :‑ "Next, suppose a case, which I have met with but cannot trace a record. A, man leaves two 'widows, one with a son the other without issue, and' the son dies. Here both widows tale the estate jointly instead of the mother taking it and maintaining the other widow. Here, obviously they are entitled jointly as co‑widows of the father of the deceased. One of the questions arising in that case was as to the effect of remarriage upon the rights of the mother. In an exhaus tive judgment the learned Judge first explained that in the constitution of agricultural society the women who become members of a family by marriage would retain that connection after the deaths of their husbands only as long as they did not remarry and that the right of the female members of the family was one of maintenance which had, in course of time developed into a life estate, and concluded by saying :‑ "Now, when it is once found that the title of Mst. Desi to Phula Singh's estate was not as his mother but as widow, there can be very little doubt that, if this decision as to her rights depends upon custom alone, she forfeited her right upon her remarriage. Upon that event, she ceased in the view of custom to be a member of the family of Rupa Singh, and became a member of the family of her new husband, and the death of Phula Singh does not reinstate her, as a member of Rupa Singh's family. With reference to the argument urged before us, it may be pointed out that no question really arises, whether by custom a mother forfeits her rights of inheritance by remarriage. That question could only arise if it were found that a mother as such has a right of inheritance, and it is found that she has not." These words should be conclusive of the matter for as mother her right to succeed has been stated not to be re cognised by custom at all. It was held in that case and has been held ever since that by remarriage a mother forfeits her right. If her right of inheritance depended on her own relationship with the son remarriage would be irrelevant, for that relationship did not cease with the remarriage. It is only her status as widow that came to an end. The mother's right of inheritance, therefore, is only an appendage to the status of a widow. It is sometimes urged that the theory that the mother succeeds as a widow has been put forwarded only to explain the effect of remarriage. If that were true it would still not be an argument against my view, but that is not the correct approach. Judges have held in favour of forfeiture even without evidence as to the custom of forfeiture on the ground that considering the nature of agricultural society and the conceptions that underlie agricultural custom the mother succeeds as a widow. This is the line of reasoning in Mst. Desi v. Lehna Singh, Rivaz J., when it was argued before him in that case that there was no proof of any custom‑of for feiture, said :‑ "A final argument was addressed to us by the appellant's pleader to the effect, if I understood him rightly, that even if Act XV of 1856 was held to be inapplicable to the case, his client was still entitled to succeed on the ground that no custom was proved under which a mother forfeited her rights of succession to her son, and that therefore the Hindu law which recognises such rights, applied. It seems to me a sufficient answer to this argument to point out that the plaintiff in this case cannot be correctly viewed as a mother claiming to succeed to her son's estate, but that she must be regarded as a widow suing for the, estate of her deceased husband, and that therefore, the effect of her remarriage as such widow is the crucial point upon which the decision of the case must properly turn." The rewaj‑i‑ams generally speak only of the mother as having a right to succeed though occasionally they refer also to the stepmother. It is significant that there is not a single rewaj‑i‑am in which the right of the stepmother has been denied. The word "mother" means in these rewaj‑i‑ams as held in Sundar Singh v. Mst. Jawala Devi, "the widow of the father." That was a case from the very district with which I am dealing, that is Gujranwala. It was a suit filed by a stepmother claiming the land left by her stepson. The suit was decreed by a Division Bench consisting of Addison and Monroe JJ. relying on Question No. 42 of the rewaj‑i‑am which refers only to the mother. It was held that the stepmother was included in "mother", for in view D of the judgments of this Court the mother succeeded as widow. I might have decided the question before me by reference to this Division Bench judgment which is on all fours with the present case. I would not, however, place the case on that footing for any decision would be the same whether this authority existed or not. Learned counsel for the appellant has relied upon Mst. Kirpi v. Ramjas (153 P R 1889), Kanhaya Singh v. Mst. Premi (322 P L R 1913) and Divan v. Hiran Nand (A I R 1923 Lah. 448.). In the first case, there is a very short judgment by Benton J. The parties were Hindus and the judgment does not show either that they were agriculturists or that they belonged to a village. All that the judgment says is that as under Hindu Law a stepmother is not entitled to succeed and there are no instances of a succession by the stepmother the custom alleged remains unproved. In Kanhaya Singh v. Mst Premi, one A had two sons both of whom predeceased him and at his own death were alive M a son of one of the sons and P the widow of the other son who had subsequently married the father of M. M too died after sometime and there was a contest between the collaterals of A and his son's widow P. The Divisional judge held that on the death of A, M his grandson and P, the widow of the other son, were entitled half and half to his estate because the widow of a pre deceased son was an heir under custom to the father‑in‑law, and this right of succession remained unaffected by a karawa marriage with the husband's own brother, The Divisional judge further held that the half share which had devolved on M at the death of A also passed to P on M's death‑as the widow of her second husband, the father of M, although she had no right as stepmother. The learned judges of the Chief Court upheld the decree of the Divisional Judge in so far as it related to the half share inherited by P on the death of A, but set it aside as to the other half. The only reason given in the judgment for rejecting the claim as to the other half is that the onus of proving a special custom by which a stepmother succeeded to her stepson was on the stepmother and. that onus she had failed to discharge. It was urged before the learned judges that the word "mother" in the rewaj‑i‑am of the district included a step mother but this contention was repelled. There is no dis cussion in the judgment of the basis of a mother's right to succeed. The real point for determination was whether a mother succeeded as the widow of the deceased father and if she did succeed as such why a stepmother, who was as much a widow of the father as the real mother, would clot have a right of succession. There is no reference in the judgment to Mst. Desi v. Lehna Singh, wherein the nature of the right of the mother to succeed had been dealt with and in which, as will appear from the extract which I have reproduced, Plowden J. had regarded it obvious that on the death of the son his real mother and his stepmother would succeed together. It is noteworthy that in the very next case which is reported in the Punjab Law Reporter of 1913, that is No. 323, there is a judgment by the same learned judges who delivered the judgment in 322 P L R 1913 (Agnew and Shadi Lal JJ.) wherein it has been held that by custom a mother loses all rights of inheritance because she is entitled to succeed as the widow of the father. It was held in this case that the presence of a remarried real mother would not prevent the property from going by escheat to the proprietary body of the village. The learned judges referred to Mg. Desi v. Lehna Singh and particularly to the observations of Rivaz J., which I have quoted above, and wherein, Rivaz J. had said, when it was pointed out that there was no proof of a custom of forfeiture on remarriage, that no proof was needed because she succeeded as a widow. If the learned Judges (Agnew and Shadi Lal JJ.) were prepared to hold in favour of forfeiture on the basis of the nature of the mother's right, I do not see why they could not, on the same reasoning hold that "mother" included stepmother. In Divan v. Hira Nand, the parties were Aroras and it was held that they could not be presumed to follow agri cultural custom in all matters just because they followed it in many matters and that a custom entitling a stepmother to succeed not having been proved decision had to be in accordance with Hindu Law under which the stepmother was not entitled to succeed. There are no doubt some remarks in the judgment that there is no general custom in the Punjab in favour of the stepmother's right to succeed. If the learned Judges meant to refer by general custom to general agricultural custom‑ the remarks are obiter, for the learned judges had already found that the parties were not governed in this respect by agricultural custom. The case is really similar to that in Mst. Kirpi v. Ramjas and is no authority for the decision of a question relating to agricultural custom. It is noteworthy that in this case one of the authorities relied upon for the proposition that there is no custom of inheritance by stepmother is Bishen Das v. Mst. Mansa Devi (47 P R 1914) which is a case under pure Hindu Law As the case related to Aroras, there is no reference to Mst. Desi v. Lehna Singh or to the nature of a mother's right to succeed under agricultural custom. I hold that Mst. Hayat Bibi was entitled to succeed and was not in adverse possession of the estate. I might point out however, that it was not necessary for the appellant to invoke the aid of Lajwanti and others v. Safa Chand and others (I L R 5 Lah. 192) with respect to the plea of adverse possession. Had the appellant succeeded in proving that the widow was in adverse possession, then, even if the widow were to acquire a personal title her heir would be the appellant. I come now to the main point for consideration in this case which is: who is the person from whom inheritance is to be reckoned ? If inheritance is to be reckoned from Piran Ditta, the appellant is without a doubt entitled to the property as the daughter's daughter the property being non -ancestral. On the, other hand, if inheritance is reckoned from Nawab Khan or Husain Khan her chance of succession is remote. Two propositions which have a direct bearing on the point in issue are well‑established. The first in the one which I have already discussed, namely, that whenever a mother succeeds she succeeds as the widow of her husband. The second proposition is that when a widow succeeds collaterally the property she inherits becomes an accretion to the estate of her husband and passes on her death to the heirs of her husband. This proposition is established by a number of Division Bench judgments of the Lahore High Court as well as by a Full Bench judgment of that Court in Chiragh Din v. Ujjagar Singh (A I R 1946 Lah. 16). Now, even the first of these two propositions should be sufficient to establish that the property inherited by a stepmother becomes an accretion to the estate of her husband, but when considered along with the second proposition and the reasoning which has formed the basis of the second proposition little doubt is left on the point. I am dealing with the case of a step grandmother, but it has not been urged before me that her case is different from that of a stepmother and when we consider the principle that underlies the inheritance of a step mother there cannot be any difference. I would refer, in the first place, to the judgment of their Lordships of the Privy Council in Lajwanti and others v. Safa Chand and others which establishes beyond doubt that property of which a widow takes possession as such becomes an accretion to the estate of her husband. In that case, two stepmothers of one Hiranand had continued in possession of the estate on his death for more than 12 years on a claim of title though in fact they were only entitled to maintenance. It was held they acquired a title by adverse possession but it was not a personal title as they had been in possession of the property in their capacity as widows and the property had become an accretion to the estate of their husband which would devolve on the death of the last of the widows on the heirs of the husband. Now, if property acquired by adverse possession becomes an accretion to the estate of the husband because it is possessed by a widow as such, there is no reason why property inherited as such, should also not become such an accretion, the common ground being that the widow is a representative of her husband. It is to be noted that this case was relied upon by the Full Bench in Chiragh Din v. Ujjagar Singh in support of the proposition that after collateral succession of the widow, the property would devolve on the heirs of the husband. The principle applicable to both cases was expressly stated to be the same. In fact, not only in this Full Bench but at least in two other cases dealing with collateral succession, that is, Akhtar Abbas v. Nazar Abbas (A I R 1946 Lah. 10) and Diwan Singh v. Natha Singh (A I R 1937 Lah.468), the principle laid down in Lajwanti and others v. Safa Chand and others had been held to be applicable to cases of collateral succession by the widow. If this be so then the answer to the question before me is obvious. An examination of the reasoning adopted by the Full Bench in Chiragh Din v. Ujjagar Singh will show that the learned Judges were basing their decision not on some peculiarity of succession to the property of a collateral but on the nature of the right of a woman in the family in which she has married. Abdur Rashid, J. (with whom the other learned Judges concurred) said :‑ "In my opinion, it is universally recognised by the agricultural communities of this Province that whenever a widow acquires property in the family of her husband by means of succession, she acquires it for the benefit of her husband's estate and not on her own behalf. She is carrying on the work of consolidation of the estate which her husband would have carried out had he been alive. The widow cannot form a fresh stock of descent as it is realized that she is merely a representative of her husband so far as property belonging to her husband's family is concerned. In these circumstances, the property in the hands of a widow who succeeds collaterally must be treated as the property of her husband for the purposes of succession on the death of widow." The principle stated herein fully covers the present case. Whether Mst. Hayat Bibi inherited the property as the stepmother of Husain Khan or the step‑grand mother of Nawab Khan she inherited it as the widow of Piran Ditta and the property became an accretion to the estate of Piran Ditta. Thus far the matter seems simple enough. It is just an application of a well‑established principle to the facts of the present case. Some difficulty is created, however, by Hamira v. Ram Singh (134 P R 1907), also a Full Bench case, on which great reliance has been placed by the collaterals, and which except in one particular, is on facts indistinguishable from the present case. In that case a person governed by agricultural custom had died leaving behind a son, a daughter and a widow. The property held by the deceased was inherited by the son and on the son's death it passed to the widow who was the real mother of the son. On the death of the widow, there was a dispute between the collaterals and the daughter, that is, the sister of the last male‑owner. Before the Full Bench two contentions were put forward ; (1) that according to a well‑established principle of customary law "when a line has died out it is deemed never to have existed the last person who left descendants being regarded as the propositus " and that, therefore inheritance was to be reckoned from the father who had left descendants so that the position of the sister would be that of a daughter, and (117 P R 1888) that the mother having succeeded as the widow of the father, the property was to go on her death to the father's heirs. The Full Bench rejected both these contentions. The judgment of the Full Bench is short. The learned judges did not feel the necessity of. writing an exhaustive judgment because they agreed with the reasoning in Civil Appeal No. 599 of 1904 Saidan Bibi and another v. Fazal Shah and another), the facts in which were identical, and the judgment of which case they directed to be published as an appendix to the Full Bench case. I reproduce below the whole of the material part of the Full Bench judgment. After referring to two cases which support ed the sister the learned judges say: "On an independent consideration of the subject itself we are unable to agree with the views adopted in those judgments. Mst, Jaidevi v. Harnam Singh (117 P R 1888), Gaman v. Mst. A man (171 P R 1888) and Mst. Desi v. Lehna Singh (46 P R 1891 F B) were relied upon as showing that widows succeeded not as mothers of their deceased sons, but as widows of their sons' fathers, on the principle that when a line dies out it is treated as if it never existed. In these cases this principle was used to explain why women should lose their life estates by remarriage, which they could not have done if they had succeeded as mothers but we are asked now to extend this principle, and make, it a governing principle, which should of itself regulate the law of succession. We do not think that a principle of this kind can be followed up to all its logical conclusions. If it were, absurd results would follow a paternal aunt and a grand‑paternal aunt would in this case be in the same position as daughters. A principle that would lead to such absurd conclusions cannot be a sound principle to follow to its ultimate conclusion. In no system of law that we are aware of are the claims of daughters and sisters placed on the same footing and we cannot imagine that the agriculturists of this Province by a subtle train of reasoning would ever have put then on the same footing. It is then argued that in the special facts of this case the property not being ancestral, and Mst. Chirago having inherited as the widow of Saudagar, the Claims of Mst. Khievi and her sons should prevail. We are unable to see that any case is mace out for departing from the ordinary order of succession of sisters. No instances have occurred on which a custom could be founded." In Civil Appeal No. 599 of 1904, the facts were identical with those in the case before the Full Bench. There too land had been inherited first by a son, then by the mother, and on the mother's death there was a dispute between the collaterals and the sister. Both the contentions advanced before the Full Bench had been put forward in that case too. Johnstone J. who wrote the leading judgment dealt thus with those contentions :‑ "In this connection, the learned pleader for the plaintiffs argues ingeniously enough that plaintiff 1 claims not so much as sister of Haider Shah as in the capacity of daughter of Alaf Shah, Alaf Shah died and was succeeded by his son Haider Shah, who died without issue or widow and was succeeded by his mother Mst. Azim Kali. It is contended that upon the death of this lady we should look at Alaf Shah, her deceased husband, and see who his heir is, and that thus the contest is between a daughter plaintiff 1, and the defendants. It is also said that, even if we have to find the heir of Haider Shah, undoubtedly the last male holder, we should go up the line to his father and then come down to plaintiff 2, his daughter. In support of this argu ment we are referred to Ghulam Muhammad v. Muhammad Bakhsh (4 P R 1891 (F B) at p. 17) penultimate para. where the right of representa tion is explained, to the middle para.; at page 62 in Sita Ram v. Raja Ram (12 P R 1892 (F B)), and especially the words " a mother succeeds, not as a mother, but as the widow of the father" to pages 256, 257 in Faiz‑ud‑Din v. Mst. Wajib‑un- Nissa (71 P R 1892) last para. of page 256, where in q manner the case of succession of a sister is assimilated to that of a daughter by the device of going back to the father from the brother and then coming down to the sister; to Gaman v. Mst. Aman (171 P R 1888), and especially the words "the general principle , . . . . . is that where a lint dies out, it is treated as if it never existed." Now if it was the function of this Court, when it had evolved a theory, which explains certain phenomena of custom, to i4sist upon applying that theory wherever it could logically 6e applied. regardless of facts, no doubt there would be Much to be said in favour of the above argument ; but it is rather our function, in matters of disputed custom, to discover what the actual practice is and give effect to our discoveries. There is no binding force or sanctity in the theory itself; it is merely a convenient method of giving order to our thoughts. In the present instance, as we have already seen, daughters and sisters have not commonly or in practice ever been treated as being on a similar footing. The theory has never been put forward to support the claims, for instance of a paternal aunt against distant collaterals, such a claim has in my experience never 'been made. We have only to compare section 23 of Rattigan's Digest with sec tion 24 to see how differently the respective claims of daughters and sisters have been treated in the past; perusal of Chief Court rulings, of which there are scores, dealing with daughters and sisters brings out the same tale; in no Wajib‑ul‑arz or Riwaj‑i‑am, with which I am acquaint ed are sisters treated as the daughters of their brothers' father and not as sisters ; and lastly even in Faiz‑ud‑Din v. Mst. Wajib‑ul‑Nissa quoted above, we have only to look at the last two lines of page 255 and the opening lines of the next page to see how purely academic are the abstract remarks on pages 256 and 257 relied on by the plaintiffs' pleader." Chatterji, J. agreed though he said he did so with reluctance as parties belonged to an endogamous tribe, The facts in Hamira v. Ram Singh were similar to those in the case before me with the difference that I am dealing with the case of a step‑mother and not that of a real mother. In view of what I have stated above with respect to the nature at the right of succession of a female in her husband's family the case was not correctly decided, and the property ought to have gone to the sister. The question, however, arises whether I am entitled to decide on a basis which will make a Full Bench decision of the Punjab Chief Court wrong. There is no doubt that the judgments of the Lahore High Court relating to the effect of collateral succession by a widow were not in existence when that case was decided and there is also the Privy Council judgment in Lajwanti and others v. Safa Chand and others, the principle of which appears to me to be fully applicable. However, the judgments of the Lahore High Court relating to collateral succession by a widow only lay down principles while Hamira v. Ram Singh is a case of succession by a mother and it will be difficult to say that Hamira v. Ram Singh should be regarded as impliedly over ruled, and I have no intention, while sitting singly, of coming into conflict with a Full Bench decision of the Punjab Chief Court which has not been overruled. I have decided, there fore, to adopt a line of reasoning which does not involve a clash with Hamira v. Ram Singh that line of reasoning is based on the judgment of a Division Bench of the Lahore High Court in Akhtar Abbas v. Nazar Abbas. In that case Achhru Ram and Mahajan JJ. were dealing with the question of the effect of collateral succession by the widow. As they were of the view that after collateral succession of the widow the property would become an accretion to the estate of the husband because the widow had succeeded in her capacity as a widow, Hamira Singh v. Ram Singh was cited before the learned judges as an authority against this proposition on the ground that in that case too the mother had succeeded as a widow and yet after her death inheritance was reckoned from the son and not the father. The learned judges repelled this contention and their reasons will be found in the following extract from the judgment :‑ '' Mr. Mital drew our attention to the fact that in some reported cases it has been laid down that a mother on the death of her son childless and without a widow succeeds to his estate as the widow of her own husband. He referred to the Full Bench judgment in Hamira v. Ram Singh (134 P R 1907) and contended that on the mother's death the succession is traced not to her husband but to her son who is considered to be the last male holder. He urged that the Division Bench judgments mentioned above were opposed to the view taken by the Full Bench in the above‑mentioned case. This contention of the learned counsel, however, does not appear to be either sound or well founded. The mother has a well recognised right under custom to succeed to the property of her son on the latter dying without any son and without a widow. It is only with reference to the effect of remarriage on her right to retain possession of the property inherited by her from her son that she is treated as having succeeded as the widow of her husband. The implication of the cases in which a mother has been regard ed as having succeeded as the widow of her husband cannot be extended to cover the case of a widow succeeding collaterally in the husband's family who unlike the mother except as the widow of her husband has no right to succeed at all." Then, after referring to observations in another case dealing with this subject, the learned Judges said :‑ " The test to be applied, according to the above quoted observations, is whether the widow has a customary right to succeed in her own right by virtue of her relationship with the last male holder or she succeeds only as the widow of her own husband. If the former, undoubtedly the succession on her death will be traced to the last male holder ; if the latter, the property inherited by her will attach to her husband's estate and the succession thereto will be traced to the husband." Here the learned Judges have made it clear that in a case where a female succeeds not in her personal right but as a widow the inheritance is to be traced from the husband, Now, in the case of a real mother, it was possible to contend that she had an independent right, apart from her position as a widow of the father to succeed to her son but that is not a possible argument in the case of a stepmother whose only right to succeed is as the widow of the father and who is otherwise a mere stranger. The case of a stepmother is fully covered by what is stated in Akhtar Abbas v. Nazar Abbas as well as by the principles laid down in Chiragh Din v. Ujagar Singh which I have already quoted. I would place this case, therefore, on the footing that 1 would distinguish between the case of a mother and step mother. In this view Hamira v. Ram Singh will be still regarded as correctly decided and yet in the present case succession can be traced from the father. Let me repeat that it is because of the existence of authority that I adopt this line of reasoning. Unshackled by authority I would have simply said that all mothers inherit as widows and after their death property passes to the heirs of the husbands. But I may be bound by the Division Bench judgment in Akhtar Abbas v. Nazar Abbas according to which a real mother has an independent right of succession apart from the force that Hamira v. Ram Singh has as a precedent and, therefore, it may not be open to me to say that both are on the same footing. I would explain here the correct position as regards the right of a real mother for it appears to me, if I may say so with respect, that her right of succession under custom has never been correctly appreciated. A real mother can inherit in two capacities one as the widow of the father and the other as the mother of the son, that is, the nearest blood relation. The first of these capacities terminates by remarriage the second does not. In her capacity as widow she excludes collaterals and when she ceases to be a widow the collaterals are entitled to take possession of the estate. But in her capacity as a blood relation though she will not exclude the collaterals she will exclude cognates. If a mother were to re marry but there be no other heirs in existence it will be difficult to contend (as was unfortunately contended with success in 322 P R 1913, that property would pass by escheat to the State. Nor could the mother, though remarried, be supersed ed by a distant cognate. It will be almost absurd to say that a distant female relation who is connected with the deceased only through the mother, and who may have married ten time would succeed in preference to the mother just because the mother has remarried. One can even take the instance of the mother's sister. Suppose on the death of a male his mother and mother's` sister both of whom may have married a number of times are the only relatives alive. Should the property go to the mother's sister in preference to the mother: I may state here that although in the early days of custom some difficulty had been experienced in dealing with questions as to rights of succession of cognates, they were later recognized in a number of judgments of which I will only mention Tara Singh v. Suraj Kaur (A I R 1940 Lah. 416) as ultimate heirs. I admit that if we distinguish thus between the real mother and the stepmother the result will be that the poor sister will suffer in cases where her own real mother succeeds. But that is not due to the view I take. My own view is as stated above. It is because of some inconvenient but, with all respect incorrect judgments, that I base my decision on this distinction. In any case, both in accordance with my own view as well as the view taken in the Division Bench judgment Akhtar Abbas v. Nazar Abbas it is the heirs of the husband of the widow as have to be found in this case. Let me point out very briefly that 'unless one accepts the applicability of the principle of collateral succession of widow to the case of a mother absurd results would follow. When a widow inherits the property of the brother of her husband the daughter of her husband will take it after her death. but if she succeeds to the property of the son of her husband the daughter of the husband will not take it. So a daughter will inherit the property of her uncle but not of her father. The respondents are in this case on the horns of a dilemma. If they deny that Hayat Bibi had a right to succeed to her son the case would be on all fours with Lajwanti and others v. Safa Chand and others. If, on the other hand, they admit she had a tight to 'succeed her only right of succession would be as the widow of Piran Ditta. It is not denied that the daughter's daughter is a preferential heir to the collaterals as regards the property in dispute which is non‑ancestral. This appeal is accepted but t the parties are left to bear their own costs throughout. Leave to appeal under the Letters Patent is granted. A. H. Appeal accepted.