Case Note & Summary
The dispute arose out of a suit for possession filed by the respondents, Mst. Nikko (sister of Pohla) and Jarnail Singh (son of another sister, Mst. Har Kaur), against the appellants, Mara (a collateral of the 4th degree) and his sons, regarding inheritance to the properties of Pohla, a Jhalli Jat of village Chomon, Tehsil and District Ludhiana. Pohla's widow, Punjab Kaur, died on February 7, 1952, and thereafter the appellants took possession of the property, mutated a field in their names, and made gifts to sons. The respondents claimed as preferential heirs on the ground that the property was non-ancestral and that, under the custom applicable to the family, sisters and sisters' sons excluded collaterals. The appellants contended that the property was ancestral and that custom excluded sisters from inheritance. The trial court (Subordinate Judge, Second Class, Ludhiana) decreed the suit, holding that the suit lands were not ancestral and that no evidence was produced to prove that the other properties were ancestral. On the issue of custom, the trial court held that the answer to Question No. 52 of the Riwaj-i-am, which stated that among Jhalli Jats of Tehsil Ludhiana sisters or sisters' sons never succeed, referred only to ancestral property. Consequently, for non-ancestral property, personal law applied unless a special custom was proved. The burden was placed on the defendants, and since they failed to prove the property was ancestral, the suit was decreed. The District Judge, Ludhiana, affirmed the decree after remitting three issues, holding that the lands were non-ancestral and that there was no evidence of a custom excluding collaterals from non-ancestral property. The High Court of Punjab dismissed the second appeal summarily. The core legal issues before the Supreme Court were: (1) whether the property was ancestral or non-ancestral; (2) whether the custom excluding sisters applied to non-ancestral property; and (3) whether personal law governed the succession. The appellants argued that the property was ancestral based on a Kafiat of Thulla Malla and extracts from Records of Rights, and that the Riwaj-i-am custom applied. The respondents argued that the property was non-ancestral, that the custom only pertained to ancestral property, and that personal law allowed them to inherit. The Supreme Court affirmed the concurrent findings that the property was non-ancestral, relying on the principle from Avtar Singh v. Thakar Singh that where lands are mixed and ancestral portions cannot be separated, the whole is treated as non-ancestral unless proven otherwise. The court observed that the lands included purchases and abandoned lands, so they were not entirely ancestral. It further held that the custom recorded in Question No. 52 of the Riwaj-i-am applied only to ancestral property, and in the absence of a special custom for non-ancestral property, personal law applied. The court also held that paragraph 24 of Rattigan's Digest, which excluded sisters from inheritance from non-ancestral property, was too widely stated, citing Ujagar Singh v. Mst. Jeo and Waryam Singh v. Smt. Sukhi. The court noted that custom varies by locality, so rulings from other districts were not authoritative. Therefore, personal law applied, under which sisters and sisters' sons excluded collaterals, including a collateral of the 4th degree. The appeal was dismissed with costs.
Headnote
A) Customary Law - Nature of Property - Mixed Ancestral and Non-Ancestral Lands Treated as Non-Ancestral - Punjab Customary Law - Where lands are so mixed that ancestral and non-ancestral portions cannot be separated, they are regarded as non-ancestral unless the ancestral portion is specifically proved. The trial and appellate courts found the suit lands were non-ancestral, as they included lands acquired by purchase and abandonment; applying Avtar Singh v. Thakar Singh, the Supreme Court upheld this finding. Held that the property must be treated as non-ancestral. (Paras 1-5) B) Customary Law - Applicability of Custom to Non-Ancestral Property - Custom Recorded in Riwaj-i-am Limited to Ancestral Property - Punjab Customary Law (Riwaj-i-am) - The custom recorded in answer to Question No. 52 of the Riwaj-i-am, which excluded sisters and sisters' sons from inheritance, applied only to ancestral property. The court held that since the property was non-ancestral, that custom did not govern, and in absence of proof of a special custom for non-ancestral property, personal law applied. Held that personal law, under which sisters and sisters' sons exclude collaterals, governed the succession. (Paras 1-5) C) Customary Law - Rattigan's Digest Para 24 - Statement Too Widely Stated - Punjab Customary Law - Rattigan's Digest paragraph 24, which excluded sisters from inheritance from non-ancestral property, was held to be too widely stated. The court referred to Ujagar Singh v. Mst. Jeo and Waryam Singh v. Smt. Sukhi. Held that the blanket exclusion of sisters from non-ancestral property was not supported. (Paras 1-5) D) Customary Law - Custom Varies by Locality - Decisions from Other Districts Not Authoritative - Punjab Customary Law - The court noted that custom in Punjab changes from district to district, tehsil to tehsil, and pargana to pargana. Rulings from Ambala and Amritsar districts were not applicable to Jhalli Jats of Ludhiana. Held that the courts below correctly applied the personal law to the family. (Paras 1-5)
Issue of Consideration
Whether the suit property was ancestral or non-ancestral; whether the custom excluding sisters and sisters' sons applied to non-ancestral property; whether personal law governed succession in absence of such custom.
Final Decision
Appeal dismissed with costs; the courts below correctly applied personal law, and sisters and sisters' sons were preferential heirs over collaterals for non-ancestral property.
Law Points
- Mixed ancestral and non-ancestral lands treated as non-ancestral unless ancestral portions proven
- Land ceases to be ancestral if acquired otherwise than by descent
- Custom recorded in Riwaj-i-am applies only to ancestral property
- Personal law applies to non-ancestral property unless special custom proved
- Paragraph 24 of Rattigan's Digest too widely stated
- Custom varies by locality
- Burden of proof on party claiming custom
- Sister and sister's son inherit over collaterals under personal law
