R.S.A. No. 1308 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1308 of 1985 Date of decision: 26.02.2010 Umar Khan ....Appellant Versus Sheodan and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. C.B. Goel, Advocate, for the appellant. Mr. Kabir Sarin, Advocate, for the respondents. VINOD K. SHARMA, J.(ORAL) This is defendant's regular second appeal against the judgment and decree dated 5.1.1985, passed by the learned Courts below, vide which the suit filed by the plaintiff/respondents for declaration and permanent injunction, was decreed. The plaintiff/respondents filed a suit against the appellant/defendants, seeking declaration to the effect that the sale dated 27.1.1982 executed by defendant No.1 in favour of defendant No.2, was against the custom, thus, was null and void. This did not operate against the rights of inheritance of the plaintiff/respondents, and other reversioners. It was pleaded that one Najim Khan son of Tondu of village Utawar was owner in possession, of agricultural land bearing khewat No.1255 khata No. 1372, rectangle No. 53 killa No.24/2 rectangle No. 61, killa No. 15/2, rectangle No.62 killa No. 2 to 9, 11, 12/1, 13/15, 16 rectangle No. 63 killa No. 1, 10, 11, 20 rectangle No. R.S.A. No. 1308 of 1985 -2- 1077, 1078, 1639 total measuring 130 kanals 1 marla situated within the revenue estate of village Utawar, Tehsil Hathin, District Faridabad. It was the pleaded case of the plaintiffs, that Sabi Najim Khan belonged to Meo community, which was one of the major agricultural tribes of Gurgaon District. The community is governed by agricultural custom of old Punjab in the matter of succession, under which a widow can inherit life estate only. She also cannot transfer the land, without the consent of the male collaterals of her husband and that she forfeits her right, if she remains with another person, on her death or remarriage. The male collaterals of her husband inherit the land, whereas, daughters do not inherit it at all, irrespective of the fact whether the land is ancestral or non-ancestral. Najim Khan died sonless leaving behind defendant No.1 Rajbi and Maryam his widows. The widows inherited the property left behind by Najim Khan on his death. The plaintiff/respondents pleaded that they were the collaterals of Najim Khan. On the death of widows of Najim i.e. Rajbi and Maryam, the plaintiffs were entitled to inherit the land in suit irrespective of the fact whether it was proved to be ancestral or not. The case further pleaded was, that defendant No.2/appellant exercised undue influence over defendant No.1 and coerced her, to execute the sale deed in his favour on 27.1.1982, of the half share of agricultural land on illusory consideration of Rs.40,000/- (Rupees forty thousand only), although not a penny was paid. It was the case of the plaintiff/respondents, that by way of fake sale deed, she could not have sold the land without the permission of reversioners, of late Najim Khan. The suit was contested by the defendants by pleading therein R.S.A. No. 1308 of 1985 -3- that the plaintiff/respondents had no locus standi to file the suit. It was pleaded that Mst. Jummi was daughter of Najim Khan from Maryam and both were the consenting parties to the sale, therefore, the sale could not be challenged. The stand was also taken that Meo widow, could alienate any kind of land, as there was absolutely no bar on her rights to do so. It was also pleaded that consideration was fixed in good faith and was actually paid by the vendees. On the pleading of the parties, the learned trial Court framed the following issues: - “1. Whether the suit land was ancestral property of Najim Khan qua the plaintiff? OPP 2. Whether the parties are governed by custom in matters of alienation and succession, if so, what that custom is? OPP 3. Whether the sale of land given in para no.5 is for consideration and legal necessity? OPD 4. Whether the plaintiffs have locus-standi to file the present suit? OPD 5. Whether Mst. Farida and Mst. Jummi are the daughters of Najim Khan, if so, whether the plaintiffs have no right to file the suit in their presence? OPD 6. Whether the parties are estopped from filing the present suit by their act and conduct? OPD 7. Relief.” On appreciation of evidence, the learned trial Court recorded, that the suit was filed under custom prevalent in the District Gurgaon among the agricultural clan known as the Meo of Gurgaon District, who linked themselves with Mualime, and the custom prevalent amongst the agricultural tribes, who linked themselves with Hindus. The learned trial R.S.A. No. 1308 of 1985 -4- Court proceeded to hold, that though Hindus have to prove the ancestral nature of the property, if they challenge the transfer on the basis of custom, but it was not so necessary for the collaterals of a deceased Meo who dies sonless. The property in that case is inherited by his widow as a limited owner. On her death or remarriage, property reverts to the reversioners of her husband, irrespective of the fact, whether it was ancestral or non-ancestral. The learned Court, therefore, held, that in case of Meos the ancestral or non-ancestral nature of property does not play any role, like in the case of Hindus. In Meos the widows are limited owners, whose right is limited to life estate meant for maintenance. The sale by Meo widow of any part of the property whether ancestral or non- ancestral, or self-acquired, in absence of consent of reversioner is not valid, on the rights of the reversioner. The learned trial Court held that issue No.1 was not of much relevance. Issue No.1 accordingly was decided by holding that the land was not proved to be ancestral. However, by relying upon Ex. P9, the learned trial Court held the plaintiff/respondents to be collaterals of Najim Khan. The learned trial Court further held that Najim Khan died sonless leaving behind Rajbi and Maryam, as his widows. On issue No.2, the learned trial Court held that Meos were governed by custom in the matter of succession and alienation of the property. Under the custom, the widow, who inherits the property left behind by a sonless deceased Meo, was a limited owner who could not alienate the suit land, without the consent of the reversioners. This issue, therefore, was decided in favour of plaintiff/respondents. On issue No.3, it was held that the sale was executed by R.S.A. No. 1308 of 1985 -5- defendant No.1 without consideration and legal necessity. Issue No.3 was accordingly decided against the defendants. On issue No.5, the learned trial Court, was pleased to hold, that Mst. Farida and Mst. Jummi could not be said to be reversioners of Najim Khan as they were his daughters and not the sons. The daughters did not have any right of ownership, in the property of their father, under the custom. It is only the bona fide consent of all the reversioners that validates the sale, and the consent given by Mst. Farida and Mst. Jummi could not validate the sale, under challenge. Issue No.6 was decided as not pressed and consequently, the suit was decreed. In appeal, the learned lower appellate Court affirmed the findings of the learned trial Court by holding, that the judgment of this Court in Shmt. Hussain Bai Vs. Kalu and others, 1969 PLR 819 continues to hold the fort, and the vendor was not competent to alienate the land in question as the alienation was not in favour of the daughters, so as to attract the law laid down by this Court in Smt. Jaituni and another Vs. Rahim Khan, 1987 SLJ 425. The finding on issue No.2, however, was reversed, and it was held, that the impugned sale was for consideration of Rs.40,000/- (Rupees forty thousand only). Mr. C.B. Goel, learned counsel, appearing on behalf of the appellant, contended that the appeal raises the following substantial questions of law: - “1. Whether the entries in riwaz-e-aam can apply to ancestral property only, in absence of clear indication to the contrary? 2. Whether learned Courts below committed an error R.S.A. No. 1308 of 1985 -6- in placing reliance on the Single Bench judgment of this Court in Shmt. Hussain Bai Vs. Kalu and others, 1969 PLR 819 which was impliedly overruled by the Hon'ble Division Bench in Smt. Jaituni and another Vs. Rahim Khan, 1987 SLJ 425 and, thus, perverse? 3. Whether the finding of the learned Courts below holding the plaintiff/respondents to be reversioners of Najim Khan is outcome of mis- reading of evidence, thus, perverse?” In support of the substantial questions of law, referred to above, the learned counsel for the appellant contended, that the learned Courts below have recorded a concurrent finding of fact that the property in dispute in the hands of Najim Khan was not ancestral property. Therefore, it was not open to the plaintiff/respondents to challenge the sale executed by defendant No.1 in favour of defendant No.2 on the ground of custom, as there was no proof giving indication that riwaz-e- aam was applicable to non-ancestral property also. The contention of the learned counsel for the appellant was, that the entries in riwaz-e-aam, were with respect to ancestral property and did not apply to non-ancestral property. The finding of the learned Courts below holding that the parties were governed by agricultural custom, cannot be sustained in law. In support of this contention, the learned counsel for the appellant placed reliance on the judgment of this Court in Kanwar Khan and others Vs. Khatoni and others, 2005(3) RCR (Civil) 243, wherein this Court was pleased to lay down as under: - “5. In fact, the entries in Riwaj-i-am are the entries in R.S.A. No. 1308 of 1985 -7- respect of ancestral property. The finding that there is no distinction in respect of custom applicable to self- acquired or ancestral property as held in Smt. Husan Bai's case (supra) is not tenable in law. In fact, the judgment relied upon by the Supreme Court in Jai Kaur's case (supra) affirms the judgment of Full Bench of Lahore High Court reporting as such that questions and answers in the Riwaj-i-am refer ordinarily to ancestral property, unless there is clear indication to the contrary. It was held to the following effect: - “We think therefore that the view taken by the Full Bench, and the many previous cases mentioned in the judgment of the Full Bench, that questions and answers in the Riwaj-i-am refer ordinarily to ancestral property, unless there is clear indication to the contrary, is correct. Question No.43 in the Ludhiana district, appears to be the same for all the tribes. There is not the slighest indication there about non-ancestral property also. The answer given by the Grewal Jats to this question also gives no reason to think that the persons questioned were thinking in giving the answers of both ancestral and non-ancestral property. We have therefore come to the conclusion that the entries in the riwaj-i-am on which the plaintiffs- respondents rely do not refer at all to non-ancestral property and are, therefore, not even relevant evidence to establish the existence of a custom among Grewal Jats of Ludhiana district, entitling collaterals to succession to non-ancestral property, in preference to daughters.” 6. Hon'ble Supreme Court in a judgment reported as AIR 1955 SC 266 (Salig Ram v. Mst. Maya Devi) has held that the general custom of Punjab is that a daughter R.S.A. No. 1308 of 1985 -8- excluded the collaterals from succession to self-acquired property of her father. The onus thereof is on the collaterals to show that this general custom has been varied by a special custom which excludes daughter. Still further, although the entries in the Riwaj-i-am are entitled to initial presumption in favour of their correctness, but the quantum of evidence necessary to rebut that presumption will vary with the facts and circumstances of each case. Where the Riwaj-i-am adversely affects the rights of female, who had no opportunity whatever of appearing before the Revenue Authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it. It was held to the following effect: - “There is no doubt or dispute as to the value of the entries in the Riwaj-i-am. It is well settled that though they are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and circumstances of each case. Where for instance, the Riwaj-i-am lays down the custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption; but where, on the other hand, the custom as recorded in the Riwaj-i-am is opposed to the custom generally prevalent, the presumption will considerably weakened. Likewise, where the Riwaj-i-am affects adversely the rights of the females who had the opportunity whatever of appearing before the Revenue authorities, the presumption will be weaker still and only a few R.S.A. No. 1308 of 1985 -9- instances ould be sufficient to rebut it (See Khan Beg v. Mt. Fateh Khatun, Jagat Singh v. Mst. Jiwan). The principles laid down in these cases were approved of by the Judicial Committee in Mst. Subhani's case (supra). Learned counsel appearing for the appellant contends that even if the presumption as to the correctness of the Riwaj-i-am be weak, the respondent has not cited a single instance of a daughter having excluded the collaterals from succession to the self-acquired property of her father and has, therefore, failed to discharge the onus that was thrown on her as a result of the production by the appellant of the Riwaj-i-am of 1913 and consequently, the appellant must succeed. This argument overlooks the fact that in order to enable the appellant to discharge the general custom recorded in Rattigan's work and to shift the onus to the respondent the appellant must produce a Riwaj-i-am which is a reliable and trustworthy document.” The said view was reiterated in Jai Kaur's case (supra) and Kehar Singh and others v. Chanan Singh and others, AIR 1968 Supreme Court 806. 7. Keeping in view the principles of law enunciated by judgments referred to above, it is apparent that entries in Riwaj-i-am are in respect of ancestral property only. Therefore, the presumption sought to be raised by the appellants in terms of Riwaj-i-am contained in Appendix VII of Rattigan's Digest of Customary Law Fifteen Edication (1995 reprint) in respect of custom of Gurgaon district would be only in respect of ancestral property. Such Riwaj-i-am adversely affects the rights of the female, who had no opportunity whatever appearing R.S.A. No. 1308 of 1985 -10- before the Revenue Authorities, the presumption even in respect of ancestral land is weak. But in the absence of any instance of respective right of female in respect of non-ancestral land, the presumption of general custom cannot be deed to have been rebutted.” The learned counsel for the appellant also contended that the learned Courts below committed an error in placing reliance on the judgment of the Single Bench of this Court in Shmt. Hussain Bai Vs. Kalu and others (supra) though it was impliedly overruled by the Hon'ble Division Bench of this Court in Smt. Jaituni and another Vs. Rahim Khan(supra). The contention of the learned counsel for the appellant, was that before the Hon'ble Division Bench in Smt. Jaituni and another Vs. Rahim Khan(supra) the question referred was, whether the Meos (Mohammedans) of Gurgaon District were governed by agricultural custom, which barred the gift by a widow of ancestral or non-ancestral property. The question referred was answered as under: - “4. Even otherwise from the evidence brought on the record, we find that the aforesaid custom contained in Wilson's Customary Law has not been established to be the custom applicable amongst the Meos of Gurgaon district, at least so far as the non-ancestral property is concerned. In this behalf, the defendants have produced instances on the record. Exhibit D.2 is a decision of Sub Judge, Gurgaon dated 3.2.1969, relating to Meos wherein the gift of non-ancestral property by a mother to her daughter was upheld. Exhibit D.4 is another decision of Sub Judge, Gurgaon, dated 31.10.1969, wherein the gift of non-ancestral property made by a R.S.A. No. 1308 of 1985 -11- mother to her daughter was upheld and the parties were Meos by caste. Exhibit D.5 is yet another judgment of Sub Judge, Gurgaon, dated 25.1.1969, where also amongst Meos, gift by a mother in favour of her daughter with regard to non-ancestral property was upheld. The defendants have also relied upon a recent decision of this Court in R.S.A. No. 66 of 1973, Smt. Zenab and another v. Yusaf Khan and another, decided on 24.8.1982, which also relates to Meos of Gurgaon district, where gift made by a mother in favour of her daughter relating to non- ancestral property, was challenged, but this Court upheld the gift since it was with regard to non-ancestral property. Against the aforesaid decision, Special Leave petition was filed in the highest Court which was dismissed.” Mr. Kabir Sarin, the learned counsel, appearing on behalf of the respondents, contended that the judgment of the Single Bench was not overruled, but was only distinguished, as would be clear from para 6 of that judgment, which reads as under: - “6. Adverting to Smt. Hussian Bai's case (supra), we are of the opinion that it is distinguishable on facts from the present case. There the property was owned by two brothers Nawaz Khan and Mauj Khan. On the death of Muaz Khan, his share was inherited by his brother Nawaz Khan although he had left a daughter Hussain Bai. On the death of Nawaz Khan, the entire property was inherited by his widow Chand Bair. Chand Bai made a gift of the entire property in favour of Hussain Bai which was challenged by the collaterals so as not to affect their reversionary rights after the death of Chand Bai. On those facts, it was held that the gift even with regard to non-ancestral property was not valid. A reading of para 7 of the report shows that if the gift had R.S.A. No. 1308 of 1985 -12- been in favour of a daughter, then probably it would have been upheld because she would have been the next heir, but the gift in favour of husband's brother's daughter was not upheld. Para 7 of the report is in the following terms: - “7. Hussain Bai had no right to succeed to Nawaz Khan, after the death of his widow Chand Bai, as she was not his heir according to custom. She did not succeed her father Mauz Khan when he died. He was succeeded by his brother Nawaz Khan who was a better heir according to custom. She cannot, therefore, claim that she is entitled to one- half of the property which Nawaz Khan got from Mauj Khan as his heir on account of her being the daughter of Mauj Khan.” Therefore, we are of the view that the aforesaid case is clearly distinguishable from the facts of the present case.” The Hon'ble Division Bench was pleased to hold that under a general custom, the female was entitled to alienate the non-ancestral property, and it could not be impugned by the collaterals. Therefore, the general custom was in variance with the special custom mentioned in Wilson's Customary Law. The support in this regard was taken from the judgment of the Hon'ble Supreme Court in Kehar Singh and others Vs. Chanan Singh and others, AIR 1968 Supreme Court 806. Even the Hon'ble Division Bench judgment in Smt. Jaituni and another Vs. Rahim Khan(supra) was pleased to hold: - “7. It was not disputed that under general custom, a female is entitled to alienate the non-ancestral property which cannot be impugned by the collaterals, therefore, the general custom is in variance with the special custom R.S.A. No. 1308 of 1985 -13- contained in Wilson's Customary Law. In view of the Supreme Court decision in Kehar Singh and others v. Chanan Singh and others AIR 1968 Supreme Court 806, whenever the special custom curtails the rights of the females and the general custom does not do so,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, at the time of compliation of the special custom. In coming to the conclusion that the special custom stood rebutted, reliance was placed on certain instances in the neighbouring Tehsils. In the present case, we have definite instances Exhibits D.2, D.4, D.5, and Smt. Zenab's case (supra) produced by the defendants that as late as February, 1969, the gift by a mother in respect of non-ancestral property to a daughter in Meo tribe was held to be valid and, therefore, these instances sufficiently rebut the presumption which may arise from the custom contained in Wilson's Customary Law. Therefore, viewing the case from any angle, we are of the considered view that the plaintiff has failed to establish any custom that amongst Meos, the gift of non- ancestral property by a mother to her daughter, whether she inherited the property was a widow or mother, would be invalid.” The first substantial question of law, therefore, is to be answered in favour of the appellant and against the respondents in view of the Hon'ble Division Bench judgment of this Court in Smt. Jaituni and another Vs. Rahim Khan (supra) and the judgment of this Court in Kanwar Khan and others Vs. Khatoni and others (supra). It is held that the entries in riwaz-e-aam apply to ancestral property only unless there is R.S.A. No. 1308 of 1985 -14- clear intention to the contrary. The second substantial question of law also deserves to be answered in favour of the appellant, as the judgment of the Single Bench in Shmt. Hussain Bai Vs. Kalu and others (supra) restricted the right of alienation by the widow of the last male holder with respect to non- ancestral property, stood impliedly overruled, by the Hon'ble Division Bench of this Court, as is clear from para 7, of the Hon'ble Division Bench judgment, referred to above. The learned counsel for the appellant also contended that the finding recorded by the learned Courts below holding the plaintiff/respondents to be collaterals, of Najim Khan is outcome of mis- reading of Ex. P-9. The learned counsel for the appellant contended that the reading of Ex. P-9 does not prove that the plaintiffs, were collaterals of Najim Khan to challenge alienation. The learned counsel for the appellant also moved an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for placing on record, by way of additional evidence the judgment and decree passed by the learned District Judge, Faridabad, inter se between the parties i.e. one of the plaintiffs, Sheodan and defendant Rajbi, whereby the decree, suffered by Mst. Mariyam other widow of Najim Khan was challenged. In the said judgment a finding was recorded that the plaintiff/respondents, had failed to prove that they were collaterals of Najim Khan. The CM deserves to be allowed, as the judgment is necessary for this Court, to pronounce the judgment on issue, specially when the findings recorded by the learned trial Court are outcome of mis-reading R.S.A. No. 1308 of 1985 -15- of Ex.P-9 on record. The application for additional evidence is allowed and the judgment and decree dated 1.3.1985 passed by the learned District Judge, Faridabad, is taken on record as Ex. 'A'. Mr. Kabir Sarin, the learned counsel for the respondents, contended that the learned Courts