P (PLP)

"But there can be no doubt that customary law does make a distinction in practice between a sister and a daughter which cannot be got over by any theory that succession has to be traced to the last male holder who left issue." That is precisely the effort of Mr. Kaikaus in this case, contending on behalf of the sister's son, namely, that the succession should be traced back to the', last male holder who left issue, and he has in his favour an additional circumstance which was not present in the 1907 and 1904 cases, viz. that the last male holder who left no issue was succeeded by his mother, as to whose position in respect of the estate that she had thus acquired, there can be no doubt that it was in the right of widow of her husband. Yes, it may be possible to give too much weight to this circumstance so as to violate the principle laid down by Mr. Justice Chatterji, namely, that the theory of tracing back succession to the last male holder who left issue is not to be resorted to for the purpose of effacing the distinction which exists in custom between a daughter and a sister. The considerations which apply to the decision of this case, as they appear from the authorities cited and in the light of the arguments addressed by the opposing counsel before me appear to me to be so nearly balanced, and the point is clearly one of such great general importance, that it is most desirable that the case should be authoritatively decided by a larger Bench. Since the matter has previously been before Division Benches, although not precisely in the form which it has been given in the present case, it would probably be best that the case should go before a Full Bench. I accordingly‑ direct that the papers be laid before my Lord the Chief‑ Justice for reference to a larger Bench as suggested above. JUDGMENT OF FULL BENCH S. A. RAHMAN, J.‑This second appeal came up for hearing before Cornelius, J , in Chambers. In view of the important question of law involved, the learned Judge has referred it for decision to a larger Bench. The property involved in this case originally belonged to one, Khanu, a Bhatti Rajput of village Kharak in tahsil Hafizabad, District Gujranwala. When Khanu died, he left behind a widow, Mst. Bhage, a son Murad, and a daughter, Murad Bibi. The appellant, Nur Muhammad, is the son of this Murad Bibi who predeceased her mother, Mst. Bhage. Murad succeeded to the estate of his father but died unmarried and issueless. On his death, the estate devolved on Mst. Bhage. She too died in 1945. The suit, out of which the present appeal has arisen, was instituted by Muhammad Yar, a collateral of Khanu deceased in the fifth degree, for possession of his 1/24th share in the land left by Khanu Nur Muhammad appellant had taken possession of the whole of Khanu's land. Muhammad Yar claimed to be one of the collaterals entitled to succeed and sued for his own share alone. The trial Court held that, after the death of Mst. Bhage, inheritance should De reckoned from the last male owner, Murad, and not from Khanu. On this view, Nur Muhammad was regarded as sister's son of the last male holder of the property and as such the plaintiff Muhammad Yar was regarded as a preferential heir. The suit was consequently decreed and the decision was affirmed on appeal by the learned District Judge, Gujranwala. The property, in suit is admittedly non‑ancestral qua the plaintiff‑respondent: Mr. B. Z. Kaikaus on behalf of the appellant, Nur Muhammad, has contended that the Courts below had Mrs. directed themselves in law in reckoning the inheritance after Mgt. Bhage's death from Murad instead of Khanu. The true prin ciple, according to the learned counsel is, that when the male line of descendants dies out, it is treated as never having existed, so that succession is then reckoned with reference to the last male owner who died leaving descendants. In particular, he maintained that when a mother succeeds, as she did in the present case, she takes the property as the widow of her own husband and not as the mother of the last male holder. Alternatively, it was urged by him that, even if Murad, the last male holder, has to be regarded as the propositus, the property 'being self‑acquired, a sister's son should be regarded as a nearer heir than a collateral in the position of Muhammad Yar. Mr. Kaikaus has drawn our attention to page 84 of Rattigan's `Digest of Customary Law where the learned author in his intro duction to Chapter II has laid down four leading canons governing succession to an estate amongst agriculturists. The second of these canons is in the following terms:‑ When the male line of descendants had died out it is treated as never having existed, the last male who left descendants being regarded as the propositus" A number of authorities have also been cited in support of the other propositions contended for, on behalf of the appellant. The basic authority, on which reliance was placed by Mr. Kaikaus, is the decision of a Full Bench of the Punjab Chief Court in Ghulam Muhammad v. Muhammad Bakhsh (4 P. R. 1891). The actual question dealt within that case related to the effect of the application of the chundawand or the Pagwand rule of succession among agriculturists, but Plowden, J., in his judgment at pages 17,19 made certain observations of a general character which appear to have formed the foundation of several subsequent authorities. At page 1 7 the learned Judge observed as follows:‑-- "This principle of cummunity of descent applies equally to cases of collaterals succession, the rule here being that the portion of a descendant who dirs without issue, devolves upon the male lineal descendants of the nearest ancestor of the deceased, having such descendants, as if it were the estate of the common ancestor, and he had died at the moment when the deceased died. Thus, if a son dies without issue, leaving bro thers only, they take the share, inasmuch as they are the male lineal descendants of the father of the deceased". In the next paragraph of his judgment occur the following remarks :‑ "If we bear in mind, that the absolute right of sons to a share in the estate of the father is (properly) based upon his having received it from (or through) his father, and that the portion o' a descendant deceased without issue is regarded as reverting to the deceased's ancestor, and then descending from him to his male lineal descendants then living, we have, I think, as explanation of the claims of ekjaddian, and of the expression 'warisan ekjaddi'. According to the view, that the property of a man who dies without issue, first reverts to the ancestor, and then descends, it will be seen that the ancestral property devolves upon the male lineal descendants of a common ancestor of the deceased and his heirs, in cases of what is called collateral succession, as well as in cases of what is called lineal succession". Similar remarks were repeated by the learned judge at Para. 19 of his judgment. In Sita Ram v. Raja Ram (12 P. R. 1892, F. B) the princi ple laid down by Plowden, J., was referred to with approval at page 62 of the judgment. The learned Judges, in that case, enunciated the rule that a brother succeeds a sonsless brother, not as a brother, but because the estate reverts to the father and descends again to his sons. So, too, it was observed, a mother succeeds, not as a mother; but as the widow of the father to whom the estate has ascended. The view was further expressed that this also explains what is called the principle of representation. The actual contest in that case was between collaterals of a donor or adopter and collaterals of a donee or adopted son, after the latter's demise without issue. It was held that the collaterals of the donor or adopter had an undoubted right to succeed in pre ference to the collaterals of the donee or adopted son who had really no right of succession at all. Our attention was next invited to the decision in Khuda Yar v. Sultan (103 P. R. 1900, D. B). In that case it was held that the land being non‑ancestral and plaintiffs not being owners in the village in which it was situated, the onus rested upon them to prove that they had a superior claim to defendants who were the original owner's daughters' sons, and that the plaintiffs had failed to discharge that onus. The decision in that case seems to have turned on the question of onus and there was no discussion of the principle involved. Reliance was also placed on the Division Bench judgment appended to the Full Bench decision in Daya Ram v. Sohal Singh (110 P. R. 1906) (Supplement). The D. B. judgment relates to Civil Appeal No. 733 of 1899 of the Punjab Chief Court in Jaikarn v. Lakhu. The main question for determination in the Full Bench case was whether it is permissible to fall back on the personal law of the parties, for the decision of a point in issue where no definite rule of custom applicable to the case can be found and if so, subject to what limitations, In the D., B. judg ment appended to the Full Bench case, Chatterji, J. referred with approval to "the most learned judgment" of Sir Meredyth Plowden in 4 P. R. 1891 as illustrating the principle laid down in 14.3 P. R. 1888. The question now before us did not arise directly in that case. Mr. Kaikaus then cited a number of authorities to establish the proposition that when a mother succeeds to an issueless son under custom, her position is that of a widow of her own husband and her right to possession is a mere development of her original right to maintenance. These are Mst: Fateh Nishan v. Ahmad Shah (46 Punjab Record 1914), Mamun v. Mst. Jowai (A. I. R. 1927 Lah. .329, D, B) and Shiromani Gurdwara Parbandhak Committee v. Harcharan Singh (A. I. R. 1934 Lah. 1, D. B). These authorities. undoubtedly support the stand taken up by the learned counsel on this point. He also‑ pointed out that in the case of a widow succeeding collaterals, she does so as the rep resentative of her husband arid on her death, the estate becomes an accretion, to her husband's estate. This rule seems to be well settled from the authorities reported as Diwan Singh v. Natha Singh (A.

1. R. 19.37 Lah. 468, D. B), Mst. Gango v. Mst. Hukam Kaur A. I. R. 1938 Lah. 111, D. B) and Chiragh Din v. Ujjagar Singh (A. I. R. 1946 Lah. 16, F. B). For analogy, our attention was drawn to the decision of their Lordships of the Privy Council in Mst. Lajwanti v. Safa Chand (A. I. R. 1924 Privy Council 121). In. that case it was laid down that property acquired by adverse possession by a Hindu widow in assertion of a hostile title against her husband's reversioners becomes an accretion to her husband's property. Mr. Kaikaus also maintained that as the mother, when she succeeds to an issueless son, would lose her right to possession if she remarried, this obviously implied that the property was re garded as that of her husband. Reliance was placed on Para. 64 of Rattigan's Digest in this connection. In certain cases, it has even been held that a mother, in this position, is entitled to adopt a son to her deceased husband‑See for instance, Mst. Ganga v. Lekh Ram (30 P. R. 1890). From the principle which may by regarded as well established by the above authorities, learned counsel wanted to infer that the position of a sister of the last male holder, Murad in this case, would really be that of a daughter of the penultimate owner, Khanu, and as such, she would be a preferential heir under custom in comparison with distant collaterals of Khanu. It is, however, settled law that under custom the position of a sister cannot be assimilated to that of a daughter. The leading authority on the subject is a Full Bench decision of the Punjab Chief Court in Hamira v. Ram Singh (134 P. R. 1907). In that case the learned Judges, after referring to certain authorities, proceeded to make the following observations :‑‑ "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 axe 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 them on the same footing". From the date of that judgment, this view has consistently prevailed in this province.‑ See in this connection Mst. Fazal Bibi v. Muhammad Hayat (156 I. C. 947, D. B), Diwan Singh v. Natha Singh (A. I. R, 1937 Lah. 468 at 471) and the remarks of Mahajan, J. at page 372 of the Full Bench case reported as Bahadur Chand v. Mst. Daulat (A I. R. 1944 Lah. 369). 7'he decision of the Punjab Chief Court in 134 P. R. 1907 was also referred to with approval in Barkhurdar Shah v. Mst. Sat Bharai (A. I. R. 1931 Lah. 677, D. B. at rage 684). The remarks of Mahajan, J. in A. I. R. 1944 Lah. 369.were explained but not dissented from in the' Full Bench judgment in Chiragh Din v. Ujjagar Singh (A I. R. 1946 Lah. 16). Mr. Kaikaus has strenuously argued that there is an inconsistency between the two currents of decisions, one relating to the position of the mother and the other concerning the rights of the sister of the last male holder. But custom is not necessarily always logical and the Courts have to make an objective enquiry to ascertain the custom on any particular point in each case. It is now too late in the day for appellant's counsel to seek a logical reconciliation between these views by suggesting that the learned judges laid down an erroneous principle in 134 P. R. 1907. For about fifty years now that prin ciple has been allowed to regulate the devolution of interests in property under custom, and it would be extremely unwise to upset that view after such a lapse of time even if we had been inclined to do so. That the burden rests on the sister to prove her preferential right in comparison with collaterals even in respect of non‑ances tral property, is a proposition based on authority. Reference may inter alia be made to Fatima Bibi v. Shah Nawaz (A. I. R. 1921 Lah. 180) which was a case of contest between the sisters of the last male holder and his collaterals in the ninth degree in respect of acquired property and Mst. Sant Kaur v. Sher Singh (I. L. R 4 Lah.392). The burden of proving a superior claim, therefore, rests in this case on Nur Muhammad who must be regarded as the sister's son of the last male holder. In the riwaj‑i-am of the Gujran wala District, question 55 relates to rights of sisters or sisters' sons. The recorded answer is that sisters and their sons are in no case entitled to inherit. It was noted further that among the tribes of tahsil Wazirabad and Arains tahsil Sharakpur, in default of the collaterals of the fourth degree, the inheritance devolves upon daughters and in their default upon sisters and their sons. It was further added that among Cheema jats, a childless proprietor was not competent to make a gift in favour of a sister's son in the presence of collaterals related to the donor in the sixth degree. Then follow certain instances in which sisters and their sons had succeeded in other tahsils also. Mr. Kaikaus has urged before us that this answer to question 55 should not be held to cover non‑ancestral property but should be presumed to govern only ancestral property. Paragraph 24 of Rattigan's Digest, which is to the same effect, was also, it was maintained, limited to ances tral property. But, even if that position is conceded, it seems to us' that the onus which rested on Nur Muhammad, to prove his superior claim, has not been discharged in the present case. No instances have been proved favouring the sister as against colla terals of the fifth degree. The case for Nur Muhammad is further weakened by the circumstance that in the written statement put in on his behalf in the trial Court it was not pleaded that even as sister's son of the last male holder, his right to succeed was superior to that of the plaintiff. On the contrary, he merely resisted the suit on the ground that he should be regarded as the daughter's son of Khanu. We hold, therefore, that the case was rightly decided by the Courts below. The appeal fails and is hereby dismissed with costs. K. M. A. Appeal dismissed.