JUDGMENT
R.L. Anand, J.
1. Unsuccessful plaintiff Abdul Hasan has filed the Regular Second Appeal and it has been directed against the judgment and decree dated 6.11.1979 passed by Additional District Judge, Gurgaon, who affirmed the judgment and decree dated 7.5.1979 passed Sub Judge 1st Class, Gurgaon, who dismissed the suit of the plaintiff-appellant for declaration as prayed for.
2. Abdul Hasan filed a suit for declaration against Smt. Kalsum, Smt. Rehmat, Smt. Akbari, Smt. Maryama, daughters of Smt. Jamila daughter of Wali Mohd. and Smt. Jamila daughter of Wali Mohd., defendants No.
1 to 5 respectively, and sought a declaration that the consent decree dated 1.3.1978 suffered by Smt. Jamila in favour of her daughters is illegal, null and void and does not effect the rights of the plaintiff.
3. Some facts can be noticed in the following manner:-
The area of the suit land is 167 kanals 5 marlas, situated in the revenue estate of village Santhawari, Tehsil Ferozepur Jhirka and was owned by Wali Mohd., father of defendant No.5. After the death of Wali Mohd. this property was mutated in the name of defendant No.5 Smt. Jamila as a limited owner. Wall Mohd., was Meo by caste which is major agricultural tribe and he was governed by the custom of Punjab vide which, no female gets ownership right in the property inherited from Haryana in the matter of succession and alienation. Such a female only becomes a limited owner of the property and on her death the property reverts to the collaterals. This custom is so in respect of the ancestral as well as self-acquired properties. Thus, defendant No.5 had no power to alienate the same by depriving the rights of the collaterals. The plaintiff alleged that he is the collateral of Wali Mohd., in the third degree. The property in the hand of Wali Mohd. was ancestral. Even if defendant No.5 had inherited the property of Wali Mohd. by way of gift, Will or in some other form, the same will revert to the collateral after the death of defendant No.5 as she has no male issue or male line of descent. She had only four daughters. Defendants No. 1 to 4, the daughters of Smt. Jamila alleged that they had obtained a declaratory decree from the Court of Shri P. Kumar, Sub Judge 1st Class, Gurgaon on 1.3.1978 in their favour as against defendant No.5, their mother, on the allegation of private partition. That decree does not confer any right, title or interest in favour of defendants No. 1 to 4. Any mutation in favour of defendants No. 1 to 4 on the basis of that decree dated 1.3.1978 is meaningless. It is further stated by the plaintiff that defendants No. 1 to 4 were not the co-parceners with defendant No.5. They were not the members of the joint family with defendant No.5. The oral transfer of the immovable property in favour of defendants No. 1 to 4 by defendant No.5 amounts to a gift which was invalid because a gift could only be in writing and by a registered document. With these broad allegations, the plaintiff has prayed that he is the owner of the suit property being a collateral of Wali Mohd.
4. The suit was contested by the defendants. A joint written statement was filed on behalf of defendants No.
1 and 2 and they took the plea that the suit is hopelessly barred by limitation; that the suit is not maintainable in the present form and that the plaintiff has no locus standi to file and maintain the present suit. On merits, the stand of the said defendants was that Wali Mohd. was the owner of the suit property. Defendant No.5 did not become the limited owner. In fact, the suit land was Willed away by a registered Will dated 15.12.1974 by Wali Mohd. in favour of his daughter defendant No.5 Wali Mohd. was not governed by custom. A daughter is a better heir to any degree of collaterals in a case of non-ancestral property. Defendants No.5 was the absolute owner of the suit land and she had every right to alienate the same to her daughters in any way she likes. It was also not admitted that plaintiff is the collateral of Wali Mohd. It was stated that the suit property was the self-acquired property of Wali Mohd., who gave the same to defendant No.5 and she became absolute owner and she further gave the suit property in favour of her four daughters, defendants No.
1 to 4, in a lawful manner. Otherwise also, defendants No. 1 to 4 were entitled to inherit the suit property on the death of their mother, defendant No.5 Smt. Jamila. In fact, Smt. Jamila accelerated the succession in favour of defendants No.
1 to 4.
5. A separate written statement was filed by defendants No.3 to 5 and their stand was also the same as that of defendants No.
1 to 2.
6. The plaintiff filed a re-joinder to the written statements in which he reiterated his allegations by denying those of the written statements and from the above pleadings of the parties, the trial Court framed the following issues:-
1. Whether Wali Mohammad was owner of the suit property? OPP
2. Whether the defendant No.5 inherited the properties as limited owner? OPP
3. Whether Wali Mohammad was governed by custom in the matters of alienation and succession? If so what that custom is? OPP
4. Whether the properties in suit are ancestral? OPP
5. Whether the plaintiff has got locus standi to file the suit? OPP
6. Whether the plaintiff is entitled to reversion of the suit property after the death of defendant No.5 even in the presence of defendants No.
1 to 4? OPP
7. Whether the court decree in dispute in favour of defendants No. 1 to 4 is void and illegal and not binding against the reversionary rights of the plaintiff? OPP
8. Whether the suit is barred by time? OPD
9. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD.
10. Relief.
7. Both the parties led evidence. The trial Court decided issue No. 1 in favour of the plaintiff and against the defendants by holding that Wali Mohammad was the owner of the suit property. Issues No.2, 3 and 4 were decided in favour of the defendants and it was held that defendants No. 5 did not inherit the property as a limited owner. Further, it was held that Wali Mohammad was governed by customs in the matter of alienation and the property in the hands of Wali Mohammad was not ancestral. Issue No.5 was also decided in favour of the defendants by holding that the plaintiff had no locus standi to file the suit. Issue No.6 was also decided against the plaintiff and it was held by the trial Court that the suit property was not liable to be reverted to the plaintiff even after the death of defendant No.5 in the presence of defendants No.
1 to 4 (four daughters). The finding on issue No.7 has also gone against the plaintiff. However, issue No.8 was decided in favour of the plaintiff and the suit was held within limitation. Issue No.9 was also decided in favour of the plaintiff and finally on the strength of the findings given under issues No.
1 to 7, the plaintiff was non-suited.
8. Aggrieved by the judgment and decree of the trial Court, the unsuccessful plaintiff Abdul Hasan filed the first appeal in the Court of Additional District Judge, Gurgaon, which for the reasons given in paras 6 to 8 of the judgment dated 6.11.1979 dismissed the appeal.
9. Now against aggrieved by the judgments and decrees of the Court below, the present appeal.
10. I have heard Mr. Jagdev Sharma, Advocate, on behalf of the appellant. Nobody has appeared on behalf of the respondents. With the assistance rendered by the learned counsel for the appellant I have gone through the impugned judgments as well as the records of this case.
11. Before I deal with the submissions of Mr. Sharma, the learned counsel appearing on behalf of the appellant. I would like to reproduce paras No.6 to 8 of the first Appellate Court, as follows:-
“6. Mr. B.R. Aggarwal, Advocate has assailed the findings on issues
Nos. 3, 5, 6 and 7 recorded by the learned trial Judge to the effect that there is no prohibition in the custom which governs the parties against the surrender of the life interest by the female limited owner of the property in favour of her daughter i.e. the grand-daughters of the last male owner and as such the plaintiff is not reversioner in the presence of defendants 1 to 4. It was submitted that the custom does not permit the alienation, even in the form of acceleration of succession of the property, by the daughter of the last male holder in favour of her daughter. Reliance was placed on the entry in the Riwaj-i-am of Gurgaon District complied by Wilson which inter alia provides as under:-
“the widow’s interest is a life interest only. But she is owner of the property for the time being, and she can, with the consent of her husband’s relatives, alienate by sale, gift or mortgage the immovable property which had developed (devolved?) on her from her husband. No distribution (distinction?) is made between the ancestral and self-acquired property.”
Reliance was also placed on Smt. Hussaini Bai v. Kalu, (1969)71 P.L.R; 819, wherein the aforesaid Riwaj-i-am of Gurgaon District was followed and it was held that a widow of the last male holder is legally incompetent to gift the property inherited even in favour of her husband’s brother’s daughter. In this context, it is
worth highlighting that the suit land has been found to be non-ancestral/self acquired property of Wali Mohd. by the learned trial Judge and this finding has not been assailed before me. The Court is, thus, supposed to record a finding regarding the custom in respect of succession and alienation of non-ancestral agricultural land by the daughter of the last male holder. The plaintiff has not impugned the succession as limited owner to the land of Wali Mohd. by Smt. Jamila. There is no dispute with the proposition in the custom for the daughter succeeding to her father even in respect of self-acquired property of her father as a limited owner. However, there is no prohibition in the custom for the daughter of the last male holder effacing herself completely and thereby allowing the land inherited by her from her father to pass’ on in favour of her daughters who would have otherwise succeeded to their grand-father if their mother had pre-deceased their grand-father. The ratio of the case of Smt. Husaini Bai (supra) is of no assistance to the appellant and is inapplicable to the facts of the present case. In that case, it was nowhere held that a collateral is a preferential heir than the daughter or daughter’s daughter of the last male holder. That was not a case wherein the widow had made a gift in favour of the daughter of last male holder. Rather the gift was made by the widow in favour of the daughter of the brother of last male holder. It was, thus, nowhere held in the case of Hussaini Bai (supra) that the ‘ daughter’s daughters are excluded from inheriting the property of their grant-father after the death of their mother.
7. Abdul Hussan, P.W.I, Shitab Khan P.W.2, and Hamida P.W.3 have undoubtedly stated that daughter’s daughters are not the heirs of their grand-father after the death of the daughter of last male holder and that the collaterals shall succeed to the said daughter under the custom. However, none of them was in a position to cite even a single instance wherein the daughter’s daughter has been excluded by the collaterals in respect of succession to the self-acquired property of their deceased grand-father. As against this, Kalsum defendant D.W.I stated that the property inherited by the daughter from her father under custom will be inherited by her daughters when she has no son living. Her version appears to be correct in view of the judgments Ex.
D1 to Ex. D3 passed by the various Civil Courts where in the case of Meo Mohammendans, it has been established that the daughter or daughter’s daughter excludes the collaterals in respect of succession to self-acquired property of her father/grand father. The findings arrived at by the Courts after thorough enquiry are not the least on an inferior footing than the entries on Riwaj-i-am, as has also been held in Sher Mohammad v. Mt. Jawahar Khatun, A.I.R. 1938 Lahore 309. Such findings are in feet instances about the custom recognised by the Court and have atleast equal value with the entry in the Riwaj-i-am.
8. The general custom of the province as given in para 23 of Rattigan’s Digest of Customary Law is that in respect of the self-acquired/non-ancestral property a daughter is a preferential heir of her father than the collaterals. The learned counsel for the respondents has cited Kehar Singh v. Chandan oingh and Ors.,
A.I.R. 1968 S.C. 806, wherein it was held as under:-
“The general custom of Punjab State was that the daughter excluded collaterals from succession to self-acquired property of her father and so the initial onus must, therefore, be on the collaterals to show that the general custom in favour of the daughter’s succession to the self-acquired property to her father has been varied by a special custom excluding the daughter. The entries in the Riwaj-i-am are entitled to an initial presumption in favour of their correctness but the presumption will be considerably weakened if it adversely affects the rights of the females who have no opportunity of appearing before the revenue authorities.
Even assuming that entries in questions 48 and 49 of Riwaj-i-am entitled the collaterals of the Sidhu Tribe of Jats in the Muktsar Tehsil of Ferozepur Distt. to inherit the non-ancestral property of the last male holder, the presumption is weakened and rebutted by certain instances which prove that in the neighboring Tehsil of the same district, a daughter has excluded collaterals in regard to the non-ancestral property of the last male holder and in Muktsar Tehsil, a sister has excluded collaterals, Therefore, the general custom that daughter inherits non-ancestral property of her father must prevail.”
Following the ratio of the case of Kehar Singh and Ors. (supra) it can be unhesitatingly held that the special custom of Gurgaon district complied by Wilson providing that the daughter is not an heir of her father does not carry initial presumption of correctness as it adversely affects the rights of females who has no opportunity to appear before the revenue authorities and as this custom is against the general custom of the province. In fact, in Mst. Harnam Kaur v. Ratna, 1949 East Punjab 267, it was held that a daughter’s daughter is a preferential heir in respect of non-ancestral property as compared to the collaterals of the last male holder. No authority has been cited wherein the collaterals might have been held as preferential heirs than the daughter’s daughter in respect of the non-ancestral property. Mr. B.R. Aggarwal, however, cited Santu and Ors. v. Abhey Singh and Anr., A.I.R. 1931 Lahore 708, wherein it was held that the daughter’s daughter is not an heir in the customary law of the Ambala District. It was a case in which the nature of the estate of the daughter’s daughter was to be determined and it was held that she succeeded to the land without any right to the property. It was, however, not held therein that the collaterals are the preferential heirs to the daughter’s daughter under custom. The ratio of the case of Santu and Ors. (supra) is, thus, of no assistance to the appellant. The conclusion is thus inescapable that the daughter’s daughter of the 1st male holder is a preferential heir than the collaterals. She is entitled to directly succeed to her grand-father in the event of her mother having pre-deceased her grand father. If her mother is alive at the time of the death of her grand father, then the mother inherits the property and after the death of her mother, she inherits the property and after the death of her mother, she inherits the property to the exclusion of the collaterals. Though the daughter like other female inheriting the property from a male is a limited owner but as soon as she passes on the property in inheritance to her male descendent then the male descendent becomes absolute owner of the property. The plaintiff has, thus, no right of reversion so far as the suit property is concerned. The alienation by means of the decree of the Civil Court by Jamila in favour of her four daughters i.e. defendants 1 to 4 is an acceleration of succession. As held in Bhagwana v. Mst. Pritam Kaur, (1965)67 P.L.R. 279, gift by widow in favour of next heir, may be even in instalments, amounts to acceleration of succession. Such an alienation is not open to challenge particularly in the instant case by the plaintiff who has no right of reversion, in respect of the suit property in the presence of defendants 1 to 4. The findings under issues Nos.3, 5, 6 and 7 as recorded by the learned trial Judge are consequently hereby affirmed.”
12. In this case it is not disputed that the plaintiff is a collateral of Wali Mohd. It is also proved on the record that Wali Mohd. had one daughter by the name of Jamila and Jamila had four daughters, who are defendants No.
1 to 4 in this case. Wali Mohd. executed a registered Will dated 15.12.1974 in favour of his daughter Jamila, who suffered a consent decree dated 1.3.1978 in favour of her four daughters. The plaintiff is alleging that Wali Mohd. was holding the property as a limited heir and he could not execute arty Will in favour Jamila and subsequently Jamila could not suffer any consent decree in favour of her four daughters against the interest of the reversioner. Mr. Sharma submitted that a reversionar is a better heir than that of a widow under the Mohammedan Law and under the custom of Gurgaon District and in these circumstances the case of a daughter cannot be held to be better than a widow. In such a situation when a reversioner is a preferential heir under the custom of Gurgaon district than that of widow, naturally such reversioner is a better heir also qua a daughter and daughter’s daughter and, therefore, the suit of the plaintiff ought to have been decreed by the Courts below. In support of his contention, the learned counsel for the appellant relies upon a judgment Hussaini Bai v. Kalu, (1969)71 P.L.R. 819, in which it was held after the custom of Gurgaon District that if a gift is made by a widow of the last male-holder without collateral consent which is opposed to the custom, such a gift was open to challenge by the reversionary and the brother of the first male holder is a better heir than that of the latter’s daughter.
13. I have considered the submissions in depth and also the ratio of the Hon’ble Lordship and am of the considered opinion that these are totally devoid or any merit. First of all, we have to decide what was the nature of the property in the hands of Wali Mohd. Both the Courts below have held that the property in the hands of Wali Mohd. was his self-acquired property. Though the plaintiff alleged in the plaint that the property in the hands of Wali Mohd. was ancestral, but he has not been able to prove. Under the general Mohammedan Law a daughter who inherits the self-acquired property of her father inherits the same as a limited owner. If this is so, then there is no bar under the custom that daughter of the last male-holder cannot further transfer the property in favour of her own children. The judgment which has been relied upon by the learned counsel for the appellant will not be applicable to the facts in hand. In the cited case, the gift was made by the widow of the last male-holder in favour of the daughter of the brother of the last “male holder. In the present case, Jamila suffered a consent decree in favour of her own daughters. In the cited case there is no finding that collateral is a preferential heir than the daughter or daughter’s of the last male-holder. It is not clear from the cited case whether the widow of the last male-holder had her own children or not. Since the plaintiff is proving special custom in order to exclude the daughter and daughter’s daughters of the last male-holder, he is supposed to prove and plead in this regard. There is no evidence to this extent. On the contrary, DW1 stated that the property inherited by the daughter from her father under the custom will be inherited by her daughters when she had no son living. The defendants have also placed on record three judgments Ex.
D1 to Ex. D3 in which the cases of Meo Mohammedans were discussed and it was established that the daughter or daughter’s daughter excludes the collaterals in respect of succession to self acquired property of her father or grand father. In this view of the matter, the reliance which has been placed by the learned counsel for the appellant on a Riwaj-i-am entry of Gurgaon District compiled by Wilson cannot take preference to the specific instances in the shape of judgments Ex. Dl to Ex. D3. Rather the instances: relied upon by the defendants carry the same weight which is attached to the entries of.
Riwaj-i-am. The general custom of the province is that a daughter is a preferential heir than that of a collateral with respect to non-ancestral property. It is well settled that general custom will always prevail and in this regard reliance can be placed on Kehar Singh and Ors. v. Chandan Singh and Ors., A.I.R. 1968 S.C. 806, where it was held that general custom of Punjab State was that the daughter excluded collaterals from succession to self acquired property to her father and so the initial onus must, therefore, be on the collaterals to show that the general custom in favour of the daughter’s succession to the self-acquired property of her father has been varied by a special custom excluding the daughter. The entries in the Riwaj-i-am are entitled to an initial presumption in favour of their correctness but the presumption will be considerably weakened if it adversely affects the rights of the females who have no opportunity of appearing before the revenue authorities. In the present case, the defendants have placed instance from which it is clear that a daughter is preferential heir than that of a collateral, meaning thereby that Jamila gets a valid title with respect to the land in question on the basis of the registered Will dated 15.12.1974 and she could accelerate the succession in favour of her four daughters irrespective of the fact whether she suffered the civil Court decree dated 1.3.1978 or not.
14. Let us View this case from another angle had Wali Mohd. not executed any Will in favour of his daughter Jamila still the four daughters of Jamila would have inherited the property of their grand-father in preference to the collateral.
15. This Court is further of the view that even the suit of the plaintiff was time barred which was instituted in the year 1978. Though the challenge has been given by the plaintiff to the decree dated 1.3.1978, but the Will dated
15.12.1924 cannot be ignored by the plaintiff. The cause of action accrued to the plaintiff, if any, for the first time on 15.12.1974 when Wali Mohd. executed the Will in favour of his daughter Jamila. It is well settled that once a cause of action starts, it cannot be stopped. The present suit has been instituted in the year 1978 after about four years from the execution of the registered Will and if limitation is taken from that date, the suit is hopelessly barred by time. Though the daughter like other female inherits the property as a limited owner but the moment the property is inherited by a male descendent, such male descendent becomes the absolute owner of the property.
16. Thus I do not see any illegality in the impugned judgments. Moreover, I hold that the suit of the plaintiff was hopelessly barred by limitation and it is concluded that the entry of the Riwaj-i-am though carries initial presumption of correctness but such presumption is rebuttable by specific instances to the contrary. The instance, if proved, will not be treated inferior to the entry of the Riwaj-i-am. The general custom will prevail and it can only be defeated by a special custom, if pleaded and proved and such special custom should not be against the public policy. In this case the real blood cannot be put to second place than that of the blood of the collateral. It is further held by this decision that Meo Mohammendans of Gurgaon District in the matter of succession can Will away their properties in favour of their daughters and grand-daughters and the collaterals/reversioners of the last male-holder will not have the preferential right than that of the daughter or daughter’s daughter. Consequently, I do not see any infirmity in the impugned judgments. There is no merit in this appeal. The same is hereby dismissed with no order as to costs.