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Punjab-Haryana High Court
Mahan Kaur vs Sundar Das on 23 February, 1907
Equivalent citations: 3 Ind Cas 483
Bench: Robertson, S Din


1. The parties to this appeal are Sikh Jats of the sect of Sadh Udasis of the Muktsar tahsil of the Ferozepore District. One Ram Dass left four sons, Narain Dass, Sadanand, Hari Das and Sunder Das. Narain Das died about fifteen years ago, and left a widow, Musammat Mahan Kaur, the defendant in this case. The share of Narain Das in the holding held jointly by all the brothers was mutated on his death in favour of Mahan Kaur. About five years ago Sdanand died without issue, and his share was mutated in the names of Sunder Das, the plaintiff, and Musammat Mahan Kaur, in equal shares, the fourth brother having apparently died prior to the mutation proceedings.

2. The defendant, Musanunat Mahan Kaur, applied recently to the Revenue Authorities for partition of her share in the joint holding, both as regards the land which had been left by her husband, Narain Das, and in respect of the land to which she had succeeded on the death of Sadanand. The plaintiff, Sunder Das, objected to the partition of the share left by Sadanand on the ground that the defendant had no right to succeed collaterally to the said share and that mutation of names in respect of that share had been erroneously effected in her favour. The entries in the revenue papers being in defendant’s favour, the revenue authorities referred the plaintiff to a Civil Court to establish his exclusive title to Sadanand’s share. Hence the present suit.

3. The first Court held that the defendant had proved a custom under which she was entitled to succeed to the land left by Sadanand in the same way as her husband would have succeeded if he had been alive. The plaintiff’s suit was, therefore, dismissed. On appeal the learned Divisional Judge decreed the claim, holding that the instances of widow’s collateral succession upon which the first Court had relied were insufficient to prove the custom set up by the defendant. The defendant appeals.

4. After hearing arguments and carefully considering the evidence on the record, we think that this appeal must succeed. Although in view of the recent rulings of this Court in Saddan v. Khemi 15 P.R. 1906 : 117 P.L.R. 1906 and Lahori v. Radho 72 P.R. 1906 it is open to serious doubt whether among agricultural tribes the right of a Hindu widow to succeed collaterally is exceptional or unusual, we shall, for the purpose of this appeal, accept the contention that the onus of proving the custom pleaded by Mummmat Mahan Kaur lies upon her. This onus, we think, she has fully discharged.

5. The parties produced no evidence in Court on the question of custom. A commission was issued for a local enquiry to the Tehsildar who, after having allowed the parties full opportunity to produce evidence and having made as full an investigation as he could make in the locality, reported in favour of the custom set up by the defendant it appears from his report that no judicial decision bearing upon the question under consideration could be traced, but he refers to four mutation orders which go to show that among Sikh Jats of the Sidhu caste in the Muktsar tahsil widows have succeeded to the property left by their husbands’ collaterals. These intances have been discussed in detail by the counsel for the appellant, and practically nothing has been urged by the respondent’s pleader to show that they do not afford a reliable evidence of custom. The custom set up is a tribal, and not a village, custom; and, therefore, the circumstance that the instances in question are not of the village in which the parties reside nor of the got to which they belong (the Udasi Sadks being admittedly a very small community), is not a material obstacle to our accepting them as sufficiently supporting the defendant’s position. In connection with this part of the case we attach the very greatest importance to the fact, the full weight of which has not been appreciated by the lower appellate Court, that the plaintiff expressly consented to the mutation of names being effected in defendant’s favour in respect of the share in dispute on the death of Sadanaud, and that mutation was made, accordingly, on 3rd February 1901. The plaintiffs pleader has not attempted to explain in this Court why his client had so consentel if, according to the custom applicable to the parties’ got, the defendant was not entitled to succeed collaterally to Sadanand’s: estate. Nor is there much force, it seems to us, in the argument, which apparently commended itself to the lower appellate Court, that as none of the mutation entries relied upon for the defendant was made the subject of litigation in Court, these are of no value an evidence of custom. We need only quote in this connection the following observations from the judgment of this Court in Saddan v. Khemi 15 P.R. 1906 117 P.L.R. 1906 in which we fully concur:

There are also four instances in which widows have been shown by entries in mutation orders to have succeeded without dispute to the property of their husbands’ collaterals. The learned Divisional Judge treats those not very material, and counsel for the respondent urges on the authority of remarks in certain judgments of this Court that these instances are of no value as they were not disputed. Now, we quite concur in the view that single isolated instances, in which there has been mutal consent, are not of great value, but we are of opinion that the very best possible evidence of a custom is that which shows that it has been followed consistently in a number of instances with out dispute. Even a judicial decision in a contested case shows that at least the custom is not universally admitted. We, therefore, attach a high value to the four instances produced, two in Jagraon and two in Phillaur, in which widows were allowed, as a matter of course to succeed to the property of their husbands’ collaterals without dispute.

6. These observations apply with fall force to the present case; and we think, after a careful consideration of the four instances relied upon by the defendant’s counsel and of the authorities which are fully reviewed in Saddan v. Khemi 15 P.R. 1906 : 117 P.L.R. 1906 that the defendant, Mnsammal Mahan Kaur, has proved that she is entitled under the custom by which the parties are governed to succeed to the land left by Sadanand in the same way as her husband would have succeeded if he had been alive.

7. We, accordingly, accept this appeal and dismiss the plaintiff’s suit with costs throughout.

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