C.G. Suri, J.@mdashThis second appeal involving the question whether, under custom, sisters or sisters'' sons would be better heirs than collaterals of the 7th degree in respect of non-ancestral lands, situated in Nabha Tehsil of Patiala district, came up before D. K. Mahajan, J., and it was felt that certain decisions with regard to the applicability of the Hindu Law of Inheritance (Amendment) Act, No. II of 1929, to the areas constituting the erstwhile Union of Patiala and East Punjab States required further consideration and that the matter should be examined and decided by a Division Bench. If it had been brought to the notice of the Hon''ble Judge that some of the decisions needing reconsideration were of Division Benches of the Punjab and PEPSU High Courts, the reference could have been to a still bigger Bench. This may however be one of the last few cases where custom is to be the rule of decision in matters of succession or inheritance to property because after the coming into force of the Hindu Succession Act, 1956, such disputes would be decided according to the provisions of that Act. The reason that we are called upon to decide this dispute according to customary law of the parties so many years after the coming into force of the Hindu Succession Act, 1956, may appear to be that the mutation of succession was entered and verified four or five years after Bishani''s death and the present proceedings have been pending for the last seven or eight years. This second appeal has been pending in this Court since 1963. The question in dispute is not likely to come up for decision in many more cases. This case can moreover be disposed of on the basis of a Full Bench decision of this Court in
2. The last male-holder and his collaterals are Chhatra jats of village Mandor in Tehsil Nabha of district Patiala and the agricultural land in dispute measuring 130 bighas and 5 marlas in area is situated in the said village. Nabha was one of the princely States which covenanted or integrated into the Union of Patiala and East Punjab States in 1948.
3. It is the common ground of the parties in their pleadings that they were governed by customary law in matters of succession and inheritance etc. The succession last opened out on the death of Mst. Bishni, widow of Kalu in 1.955. She had inherited the land in dispute on the death of her son Dasondhi who had died without leaving any widow or children. Dasondhi had succeeded to this land on the death of his father Kalu.
4. The mutation of succession on the death of Mst. Bishni had been sanctioned in favour of the Defendants who are collaterals of the 7th degree of the last male-holder, Dasondhi and the Plaintiff''s who are the sisters'' sons of Dasondhi have filed this suit for possession of the land against those collaterals. Parties are Chhatra Jats. which is a predominantly agricultural community in this area and the Plaintiffs had alleged in paragraph 6 of the plaint that they were governed by agricultural custom in matters of succession and alienations to property etc. There was no denial of this averment in the written statement filed by the collaterals and they had, in fact, set up a special custom whereby collaterals of the 7th degree were said to exclude sisters or sisters'' sons from inheritance. This setting up of a special custom was an implied admission that custom was to be the rule of decision between the parties. It was for this reason that there is no issue with regard to the general custom of the parties and the collaterals have, on the other hand been called upon to prove the special custom pleaded by them and the onus of proving Issue No. 9 was placed on them. These issues have been reproduced in the judgments of the two Courts below. The trial Court decreed the suit of the sisters'' sons on 29th December, 1962 and found that the special custom set up by the collaterals had not been proved and that there was no evidence on record in the shape of any instances or records of customs like Riwaj-i-am etc. On the basis of the general customary law of Punjab, however, the sisters'' sons were held to exclude remote collaterals from succession to non-ancestral property. In coming to this decision, the trial Court had relied on
5. The collaterals filed an appeal and the District Judge, Patiala. distinguished the rulings relied upon by the trial Court on the ground that these cases had been decided under the personal law of the parties while it was the common case of the parties that custom was to be the rule of decision. The lower appellate Court then relied mainly on Paragraph 24 of Rattigan''s Digest of Customary Law and some old and archaic rulings in order to come to the finding that collaterals, however remote, would exclude a sister or sister''s sons from succeeding to property whether ancestral or non-ancestral. The recent decisions of the Punjab and Pepsu High Courts were not referred to and the omission may imply that the learned District Judge had not been able to find any recent cases in support of the proposition of law adopted by him while accepting the appeal of the collaterals, He had ignored the observations of the Hon''ble Judges in a number of cases that Paragraph 24 of Rattigan''s Digest of Customary Law had been too broadly and vaguely stated and could not be taken to be laying down the correct law under all circumstances. It was also not considered by the learned District Judge that references in records of customs were to be taken to relate to ancestral property and that the case of female heirs generally goes by default as such females are not consulted at the time of the settlement when records of customs are compiled. The effect of the Hindu Law of Inheritance (Amendment) Act No. II of 1929, was not considered and the learned District Judge was, in fact, hard put to negative the argument that parties could be allowed to fall back upon their personal law.
6. Some of the sister''s sons of Dasondhi are now the Appellants before us. Shri Kaushal, learned Counsel for the Respondents argued, by reference to the copy Exhibit P. 1 of the pedigree table or Shajranasab, that his clients were 6th degree collaterals of the last male holder. This would be so if the degree of relationship were to be counted from Dasondhi''s father Kalu. In that case it would be only fair to the Appellants that they should be treated as daughter''s sons of Kalu. The collaterals cannot relegate the Appellants to the inferior position in the table of heirs as sister''s sons of Dasondhi and at the same time count their own degree of relationship not from Dasondhi but from his father Kalu. Moreover, the copy Exhibit P. 1 of the Shajranasab does not connect Sondhi with the common ancestor and some links are missing in the line of descent upto Sondhi. There is no line connecting the ancestor Raju to Sondhi''s grandfather Nihala. In this connection the observations of Soni, J. in a Division Bench ruling
7. It was then argued by Shri Kaushal that the custom relied upon by the Plaintiffs had not been proved in the present case by any instances or any compilations of records of customs and that on the basis of Section 113 of the PEPSU Ordinance No. X of 2005 B.K. which corresponds to Section 5 of the Punjab Laws Act, we have to fall back upon the personal law of the parties. The argument is that the Hindu Law of Inheritance (Amendment) Act, No. II of 1929, which recognised daughters and sisters and their children as better heirs than the remote collaterals had not been extended to the covenanting princely States which had integrated into PEPSU in 1948 and that the sisters'' sons would not rank as heirs under Hindu Law, un-amended as it was by Act No. II of 1929. Thus argument ignores that there is such a thing as general custom- and that Courts can take judicial notice of a custom which had received widespread notoriety by being followed frequently over the years all over the country. When the parties have all along been so definite that they are governed by custom and the collaterals have pleaded a special custom which they have failed to prove, we have every reason to rely on the general custom which has of recent years been recognizing sisters'' sons as better heirs than collaterals of a degree more remote than the 5th degree in respect of non-ancestral property. Shri Kaushal''s argument is that this trend in the customary law in favour of the female heirs or their issue in Punjab was due to Act No. II of 1929 and that since this Act was not made applicable in covenanting States like Nabha etc., the sisters'' sons of Dasondhi cannot get the benefit of this veering round of customary law in favour of the female heirs or their progeny. To deal properly with this argument, it would be necessary to have some idea as to the sources from which custom was derived or its existence proved in territories of the covenating princely States before these States were integrated into a Union in 1948.
8. It may appear that some of these covenanting princely States were smaller in area than an average sized district in the joint Punjab. There is nothing to indicate that proper records of customs were being maintained or prepared in these small princely States or that the cases decided by the Courts of such princely States were being reported or published in any law journals so as to be easily available to the lawyers or litigants as instances in proof of a custom. It would not be wrong to say that the general custom applicable in such small princely states was derived from the adjoining territories or that the said adjoining territories and princely states were looking to each other for lead or guidance in matters of following customs on disputed points. In Mst. Giano v. Duli Chand 1963 P.L.R. 968, it was observed by Shamsher Bahadur J. that there was no separate rule of general custom in the erstwhile states of Pepsu and what was stated as a rule of succession in Rattigan''s Digest of Customary Law was also applicable to the ethonological Punjab and not merely to a geographical entity of that part of the territory of Punjab which was known as British India. The customary law as recognised in Rattigan''s Digest had been invariably applied so far as the general custom was concerned to the erstwhile State of Patiala and East Punjab States Union. Reference was made to a Full Bench decision of the Pepsu High Court in Chajja Singh v. Pritam Singh AIR 1950 Pepsu 59, and it was observed that Courts in Pepsu were drawing freely on customs as prevailing in Punjab while deciding cases. The contention that the rules of customs which had been digested by Rattigan''s could not be made applicable to the Pepsu territories was repelled. The abrogation of the rule envisaged in paragraph 24 was, therefore, applied to territories of the erstwhile Pepsu and collaterals of the 6th degree were excluded as against a sister from succession to non-ancestral property. Reference was also made to a Full Bench decision in
9. With the turn of the present century the social and ethical ideas in Punjab were veering round to the emancipation of women and for giving them better rights of inheriting property. Such ideas were not confined only to urban societies and even rural communities governed by customary law were being given the benefit of these changes. In spite of some decisions that customary law or customs of any community were not matters of logical deductions or inferences. Courts had started interpreting the records of customs in a manner so as to favour the female heirs or their children. It was observed by Soni, J. in
10. Bholi v. Kahna 35 P.R. 1909. Mst. Bhar v. Khanun AIR 1919 Lah. 147, Fatima Bibi v. Shah Nawaz AIR 1921 Lah. 180.
Custom is in its essence subject to change. Custom is the general practice on a given jooint actually prevalent among the community: and precisely as the community itself is liable to change its practices vary also.... The value of custom is in proportion to the universality of its re-cognization in practice, much more than to its antiquity or the sanctity of its origin; and as has been remarked) the one great beauty of customary law is its flexibility, its adaptability to the varying circumstances of the community.
11. Similarly. Mr. Whitehead has in his introduction to the Customary Law of Ambala District (Edition 1921) observed--
As regards changes in the last thirty years there has been a genera] relaxation in old restrictions especially in the direction of greater rights and liberty for females, and there is now less tribal isolation. Custom is largely moving with the Courts.
This was the position as regards the social and cultural reforms. duly recognized in judicial decisions towards the betterment of property rights of females when Hindu Law of Inheritance (Amendment) Act came to be passed in 1929. In view of the tendencies in the past it would not be wrong to say that this Act only gave statutory recognition to the forces of reforms that had already set in many years earlier and which could not be defied recognition because of the momentum that they had gained over, the years. Section 1(2) of Act No. II of 1929 said that these amendments in Hindu Law were to extend to the whole of British India and some other territories (not including the princely states). This was only because the Central Legislature of British India that passed the Act had no jurisdiction to legislate for the princely states. It would be wrong to conclude from Section 1(2) of Act No. II of 1929 that the intention of the Central Legislature was to exclude the females in the princely states from the benefits of the forces of reform that had already set in many years earlier and the omission was due more to the helplessness of the Central legislature than to any lack of good intentions on their part towards the rights of females in the princely states. If there was no corresponding legislation in these princely states it was only because the legislative machinery in these states was not. quite as streamlined as well oiled to remain abreast of the winds of social and cultural reforms that had been blowing for more than three decades and if the statutory recognition of these tendencies at social informs in a neighbouring area could give a fillip to the trends and have the effect of promoting and accelerating the process of social reform in the customary law, the benefit was not intended to be denied to female heirs in the neighbouring princely states. Moreover, Act No. II of 1929 was only calculated to bring about amendment in the Hindu Law of inheritance as prevailing in British India, etc. and was not intended to affect the customary law in Punjab or the neighbouring princely states. The changes and reforms in the customary law of Punjab and convenantmg princely states had been taking place for a number of years not because of but independently of or in spite of Act No. II of 1929 and these changes or reforms had been going on and continued not only in the customs of agricultural tribes of Hindu origin but also in the agricultural tribes who had Muslim origin and whose personal law was in no way affected by Hindu Law of Inheritance (Amendment) Act, No. II of 1929. Codified law or statute can, by its very nature, have watertight compartments but custom is that fluid and flexible law which would because of its adaptability or ever changing character know no geographical, racial, religious or provincial barriers. I have purposely cited above rulings under custom relating to agricultural tribes of Muslim origin to show that even though Act No. II of 1929 had no effect on the personal law of these tribes. their customs went on undergoing the same changes as were be-bwing noticed in the customs of the agricultural tribes of Hindu origin. I: cannot, therefore, be said that the improvements in the property rights of females in these agricultural tribes governed by custom were necessarily due to the fact that tribes of Hindu origin could fa)] back on their personal law and take advantage of the amend-T Krais brought about by Act No. II of 1929. Female heirs in the agricultural tribes of Muslim origin who had never to fall back on their personal law as a last resort were also reaping the benefits of these changes and there could, therefore, be no intention that the customer law of the agricultural tribes whether of Hindu or Muslim origin in the princely states would not undergo corresponding changes which were taking place in the neighbouring districts of Punjab which were at that time under the British Government. The rumblings of these changes were being felt with the turn of the present century from one end of the country to the other as would appear from the cases referred to and discussed in a Full Bench decision of this Court in
12. Shri Kaushal, the learned Counsel for the collaterals-- Respondents then argued that there was no proof of the custom set up by the sisters'' sons in the shape of specific instances or records of custom like Riwaj-i-atn, etc. and that we have, therefore, to tall back upon the personal law of the parties. This argument conveniently assumes that the conception of a general custom of Punjab is a mere myth.
13. As to how far we can use the instances proved in other cases for the purpose of proving the existence or non-existence of a particular custom in our case, the observations of the Privy Council in
A judicial decision, though of comparatively recent date, may contain, on its records, evidence of specific instances, which are of sufficient antiquity to be of value in rebutting the presumption. In such a case, the value of the decision arises from the fact not that it is relevant under Sections 13 and 42 of the Indian Evidence Act as forming in itself a transaction by which the custom in question was recognized, etc., but that it contains, on its records, a number of specific instances relating to the relevant custom. To ignore such judicial decisions merely on the basis of the Riwaj-i-am would add greatly to the perplexities and difficulties in proving a custom.
14. These observations were relied upon by the Full Bench in
15. In Lachhman Dass v. Chuhra Mai AIR 1952 Pepsu 5, a Division Bench had held that Hindu Law of Inheritance (Amendment) Act, No. II of 1929 was not in force in Patiala State when the succession opened out in that case and that the provisions of that Act could not be invoked by the parties. It may be observed that this was a case only under the Hindu law and the parties were not governed by custom. Even otherwise Hindu law has had to draw upon custom as one of its main sources ( See Paragraph 8 of Mulla''s Hindu Law, 13th Edition) and customary law has always been modifying or impinging upon the abstract conceptions of the basic Hindu Law. There is no such thing as a pure and unalloyed Hindu law and custom and Hindu law have had to intermingle to a certain extent. Hindu law and custom have both been undergoing changes and have not stood still as was observed by Privy Council in Nagindas Bhagwandas v. Bachoo Hurkissondass AIR 1915 P.C. 41. In another un-reported judgment Bhan Singh, etc. v. Shan Singh, etc. U.S.A. 50 of 1961 decided on 23rd April, 1962.. a Division Bench of this Court had held that Act No. II of 1929 was not in force in the erstwhile Pepsu state when the succession had opened out in that case. In the absence of any proof of custom the parties had to fall back upon their personal law and collaterals were held to be better heirs than a sister under the Hindu law, un-amended as it was. by Act No. II of 1929. The degree of relationship of the collaterals has not been indicated and the last male holder had only dakhilkari rights in the land situated in the covenanting state of Malerkotla and succession to such lands was governed by the Hidayats of Mr. Roberson according to which neither daughters nor sisters nor their descendants had any right of inheritance. In this ruling it has been mentioned that Act
