Regular Second Appeal No. 1091 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1091 of 2007 Date of Order: 17.08.2009 Sukhbir Singh & others ....Appellants Versus Mange Ram and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. D.K.Bhatti,Advocate for the appellants. Mr. Akshay Bhan, Advocate for respondents No.1 to 3. RAJIVE BHALLA, J (Oral). The appellants challenge judgments and decrees dated 27.01.2006 and 13.12.2006, passed by the Civil Judge (Senior Division), Panipat and the Additional District Judge, Panipat, dismissing their suit and their appeal. The plaintiffs/appellants filed a suit for declaration and permanent injunction praying that as they are owners in possession of the suit property, the respondents be restrained from interfering in their possession. The appellants averred that Uda had two sons Lillu and Hamela from his first wife Smt. Choto. After the demise of Smt. Choto, he married Smt. Parmali who gave birth to six sons i.e. the appellants and Babu Ram (since deceased). All the children were brought up together by Smt. Parmali and remained joint in every way. Uda passed away in 1943. Mutation no.343 of 1944 was sanctioned. Lillu and Hamela were shown as co-sharers in equal shares to the Regular Second Appeal No. 1091 of 2007 -2- extent of ½ share, whereas the appellants and Shri Babu were shown as co-sharers of the other ½ share. Despite this mutation, parties continued to cultivate the land as joint owners and even when the land was acquired by the State of Haryana, compensation was paid to the eight sons of Uda in equal shares. It is alleged that Lillu and Harmela have begun alleging that that they are owners of ½ share of the suit land compelling the appellants to challenge the validity of mutation no.343 as being contrary to the then prevailing custom of inheritance. It was prayed that a declaration be issued that all the sons of Uda are owners to the extent of 1/8 share each in the suit land. Lillu and Hakam Singh sons of Hamela filed a written statement denying the averments in the plaint by alleging that parties are Hindu Rajput governed by the custom of Chundavand i.e. in case a male holder has two wives his estate would devolve in two stripes to the male children of each wife. It was further alleged that the appellants have already sold their share and are, therefore, not entitled to institute the present suit. The appellants filed a replication controverting the pleas raised in the written statement and reiterating those raised in the plaint. On the basis of the pleadings, the trial court framed the following issues:- “1. Whether the parties were governed by General Custom of Succession Act?OPP 2. Whether the mutation No.343 of the Estate of Uda was wrongly entered/sanctioned, if so to what effect?OPP Regular Second Appeal No. 1091 of 2007 -3- 3. Whether the plaintiffs are entitled for decree for declaration as prayed for?OPP 3-A Whether the parties are governed by “CHUNDAWAND” in the matters of succession, if so, to what effect?OPD 4. Whether the plaintiffs have no locus-standi to file the present suit?OPD 5. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct?OPD 6. Whether the present suit is time barred?OPD 7. Whether the plaintiffs have no cause of action to file the present suit?OPD 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD 9. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that there was sufficient evidence on record to hold that in the year 1943, parties were governed by the custom of Chundavand in matters of inheritance, and, therefore, mutation no.343 was rightly sanctioned. It was also held that the suit to challenge the mutation sanctioned in 1944 is barred by time. Aggrieved by the aforementioned judgment and decree, the appellants filed an appeal. Vide judgment and decree dated 13.12.2006, Additional District Judge, Panipat, dismissed the appeal. Counsel for the appellants submits that the findings recorded by the courts below are contrary to the entry in the Riwaj-i- Regular Second Appeal No. 1091 of 2007 -4- am and the established custom as set out in Rattigan's Digest on Customary Law. It is submitted that even as per Rattigan's Digest, the general rule of custom in Punjab is the principle of Pagvand i.e. all sons would have equal shares. The onus to establish an exception to this general rule lies upon the respondents. The witnesses produced by the respondents to establish a custom of Chundavand, do not belong to village Dadlana and therefore, their deposition should have been rejected by the courts below. It is also submitted that the finding that the suit is barred by limitation is incorrect. A mutation does not confer or divest a person of title and, therefore, can be challenged as and when the occasion so arises, it is submitted that in view of error committed by the courts below, the following questions of law arise for consideration:- “1. Whether the courts below have erred in law while giving preference to an exception over the general principle of succession? 2. Whether the courts below have wrongly interpreted the evidence and came to the conclusion that 'Chandvand' is the rule of succession? 3. Whether the mutation No.343 sanctioned in the year 1944 is void ab initio? 4. Whether the mutation which was never acted upon, no sanad' or aks-sajra was prepared according to it and parties remained in joint possession irrespective and contrary to the mutation can be considered as non-existence, non-operative and can be challenged when any Regular Second Appeal No. 1091 of 2007 -5- threat to any party is given on the basis of such mutation? 5. Whether the matter is within limitation? 6. Whether the cause of action has accrued to the appellants/plaintiffs only when there was a threat to their right by the defendants? 7. Whether the grave and manifest injustice have been caused to the plaintiff/appellants?” Counsel for the respondents, on the other hand, submits that as the appellants challenge the mutation sanctioned in the year 1944, it was for them to establish their plea that parties are governed by the custom of Pagvand. The courts below have held that in matter of succession, parties who are Rajputs of the then District Karnal are governed by the custom of Chundavand. It is submitted that the findings recorded by the courts below are based upon extracts from Rattigans digest, on the deposition of witnesses, and voluminous documentary evidence. It is further argued that the courts below have rightly held that the suit is barred by time as the mutation was sanctioned in the year 1944. It is further submitted that whether the parties were in joint possession or not is entirely irrelevant as inheritance opened on the death of Uda. It is prayed that as the courts below have recorded concurrent findings of fact with respect to custom and ownership and as no question of law much less a substantial question of law arises for consideration, the appeal be dismissed. I have heard counsel for the parties, perused the impugned judgments and considered the questions of law framed by counsel Regular Second Appeal No. 1091 of 2007 -6- for the appellants. The issue in hand is whether the estate of Uda, deceased, would devolve on the principle of Chundavand or Pagvand. In order to set out the difference between the two forms of custom, it would be necessary to reproduce an extract from Rattigans Digest, so as to explain difference between the rules of succession. "Pagvand or Chundavand rule of succession Pagvand is a word derived from pag, a turban and connotes the rule according to which an estate is distributed in equal shares amongst the sons and corresponds exactly to the phrase per capita, Chundavand is from Chunda, which means the hair braided on the top of the head and means equal division as between the groups of sons by each wife. Admittedly Uda had two wives, Smt. Choto and Smt. Parmali. The appellants and Babu Ram are children from Smt. Parmali, whereas Lillu and Hamela are children from Smt. Choto. Upon his demise, the estate of Uda, was divided amongst his sons on the basis of Chundavand. As a result, Lillu and Hamela became owners of half share of the estate whereas the appellants and Babu Ram became owner of the other half share. A mutation bearing no.348 of 1944 was sanctioned to reflect this inheritance. On 25.10.1996, i.e. more than fifty two years after the mutation was sanctioned, the appellants filed a suit challenging the mode of inheritance. Both the courts below have held that the suit is barred by time and in addition as parties are Rajputs of the Mandahand Regular Second Appeal No. 1091 of 2007 -7- Gotra of the then district Karnal they were governed, by the customary rule of Chundavand, in matters of inheritance. For these conclusions, the courts below relied upon the deposition of DW1 Som Nath from the Patwar office, who deposed that parties were given compensation as per their share in the revenue record. This, apart the respondents produced other witnesses belonging to the Mandahand Gotra who deposed that Rajputs of this Gotra were governed by the rule of Chundavand. These witnesses DW4, DW5, DW6 recounted instances of Chundavand inheritance in their own families and one of them DW6 gave an instance of mutation no.374 which was sanctioned as per the rule of Chundavand. The respondents also tendered into evidence Ex.D1 a copy of mutation no.374 sanctioned on 03.02.1918, Ex.D3 copy of the Riwaje-i-am, Ex.D4 copy of mutation No.1149 sanctioned on 27.03.1989, Ex.D6 copy of mutation no.233 sanctioned on 15.06.1995, Ex.D8, copy of mutation no.1600 sanctioned on 22.03.1938, Ex.D9 copy of mutation No.148 sanctioned on 25.10.1924, Ex.D10 copy of mutation no.689, Ex.D11 copy of mutation no.343 and Ex.D12 Copy of mutation dated 24.02.2000 in support of the plea that they were governed by the rule of Chundavand. In addition the courts below relied upon an extract from Rattigan's Digest of Customary Law, to hold that though the normal rule of custom, in matters of succession is the rule of Pagvand but the rule of Chundavand exists, though as an exception. The courts below have held that the appellants have produced sufficient evidence to establish that they were governed by the customary rule of Chundavand, in matter of succession. As per Rattigan's Digest on Customary Law, though the Regular Second Appeal No. 1091 of 2007 -8- general custom in the State of Punjab is succession on the principle of Pugvand i.e. all male descendants inheriting equally but in certain parts of Punjab and in certain communities the custom of Chundavand prevails. A relevant extract with respect to the custom of Karnal District would, therefore, be appropriate and reads as follows:- “As observed by Sir Meredyth Plowden in Ghulam Mohammad v. Mohammad Bakhsh (3) the cutoms of Pagvand and Chundavand are modes of distribution of an estate among the persons entitled to share them, rather than customs of succession. The characteristic difference between the two customs is that the former, ignores the existence of the ancestors' wives, and the latter recognizes their existence, and makes it the basis of distribution. The normal custom in the Punjab prescribes a division according to the Pagvand rule, and the onus lies heavily upon the person who relies upon the Chundavand rule (4) , Or in other words, as a general rule, sons, whether by the same or by different wives, share equally. Inheritance as a rule goes per capita (according) to the Pagvand rule) and not per stirpess (Chundavand). It lies upon the party alleging the special custom of Chundavand to establish such custom; and in the absence of such proof the Regular Second Appeal No. 1091 of 2007 -9- general custom of Pagvand will apply without any proof being necessary (5) A special custom cannot be held to be establised merely because the balance of evidence inclines very slightly in favour of the person alleging its existence(6). The Chundavand custom frequently prevails in one family of a tribe while it does not prevail in another family of the same tribe(7). An entry in the Riwaz-I-am, even in favour of a special custom like Chundavand , is an important piece of evidence in support of it and is sufficient to shift the onus to the party challenging it. But, the burden of proof on the party challenging the entry in the Riwaz-i-am would be comparatively light in view of the general custom in the Province being opposed to the chundavand custom. Proof of Chundavand rule. The custom of Chundavand is proved, like custom on all other points, by entries in a Riwaj-i-am, by private instances, and by judicial decisions. The rule followed in the family on previous occassions will be a strong proof of what the custom really is. KARNAL DISTRICT *Answer to Question No.20 (Panipat Tehsil and Karnal Purgana). Regular Second Appeal No. 1091 of 2007 -10- "The Sayyads of Barsat follow the rules of succession ordained in the Shara, The family of Sayyads in faridpur who claim descent from Qasim follow the custom of Chundavand, the estate being divided into as many shares as there are wives. All other tribes profess to be governed by the doctrine of pagvand, and the inheritance is divided equally among all sons without distinction." Note to question 20. - Several instances of chundavand are given as having occurred in tribes which as a rule adopt pagvand. It seems probable that such instances were either due to the mutual consent of the parties, or were found to be special family custom. The general rule is pagvand: but each disputed case must be decided on its own merits, there being no tribe in which both customs have not prevailed in some family or on some occassion. **Answer to Question No.29. (Tehsil Kaithal and Parganah Indri).- "Jats Rors, Gujjars and Rains follow the pagvand or bhaibant rule. Musalman Rajputs of Indri stated that they followed the pagvand rule, and instances were quoted from several villages. Hindu Rajputs of Indri said they followed the chundavand rule, the sons of one wife, however few, taking as much as the sons of another wife, Regular Second Appeal No. 1091 of 2007 -11- however, many. The examples quoted were from one village Baragamo. Before the Superintendent, the Kaithal Rajputs alleged that the pagvand rule was in force, But it is not so universally, for at attestation before myself instances were given of chundavand succession in the great Rajput estates of Siwan and Salwan. When the Riwaz-I- am of Tehsil Pipli was being prepared, an example of chundavand in a Ror village of Kaithal was quoted. The general result seems to be that chundavand is now very rare except among Rajputs. Cases will also be found among Jat Sikhs, whose customs were not specially recorded. When disputes occur among Rajputs the custom of the family and village should be carefully enquired into. The usual answer to the second branch of the question is that marriage outside the tribe is not allowed. No regard is paid to the age of the sons." It is, therefore, apparent that the rule of Chundavand existed as an exception to the rule of Pagvand and like all exceptions has to be proved by the person who alleges such an exception. By way of the first question of law it is canvassed that the courts below have erred in giving preference to the exception i.e. Chundvand over the general principle of succession i.e. Pagvand . As referred to in the preceding paragraphs and as recorded in Rattigan's digest the general rule of succession in the State of Regular Second Appeal No. 1091 of 2007 -12- Punjab is the rule of Pagvand. However, Rattigan's digest records instances of succession by the rule of Chundavand, amongst Rajputs of District Karnal. It is, therefore, apparent that the rule of succession by Chundavand was prevalent amongst Rajputs of the then District Karnal but as an exception to the general rule of Pagvand. A general custom, is never all pervasive as it admits to exceptions and varies from community to community, village to village and sometimes even within the same community or family. However, where a party seeks to set up an exception to a general custom, the onus to establish the exception lies upon the party that alleges such an exception. The first question of law is , therefore, answered by holding that the courts below have rightly held that the rule of inheritance by the rule of Chundavand existed as an exception to the rule of inheritance by Pagvand. By way of the second question of law, the appellants allege that the respondents have failed to establish the custom of Chundavand. The courts below have returned concurrent findings of fact, based upon mutations Ex. D1, D3, D4, D6, D8, D9, D10, D11 and D12 and oral depositions of DW4, DW5 and DW6, detailed in the preceding paragraphs, that the custom of Chundavand was prevalent amongst Rajputs of Mandahand Gotra. Admittedly Mutation No.343, was also sanctioned, on the principle of Chundavand. I find no error of law in the conclusions recorded by the courts below to hold that the respondents have successfully established that the customary rule of succession that applied to the parties was the rule of Chundavand. The third question of law is whether Mutation No.343 Regular Second Appeal No. 1091 of 2007 -13- sanctioned in the year 1944, is void ab-initio. This questions has to be answered in negative as parties were governed by the rule of Chundavand and, therefore, the mutation sanctioned on the basis of Chundavand does not suffer from any infirmity. The fourth question of law is that the mutation was never acted upon as parties continued in joint possession. In my considered opinion, this question is misconceived. The revenue entries record the parties as owner in possession as per the shares sanctioned by mutation no.343 in the year 1944 and whether the parties remained, in joint possession or not is entirely irrelevant. The fifth question of law is that the suit could have been dismissed as barred by time. Uda died in the year 1943 and as succession does not remain in abeyance, succession opened immediately. Parties succeeded to his estate on the rule of Chundavand. The revenue authorities sanctioned a mutation in accordance with inheritance on the principle of Chundavand. The challenge to the inheritance that opened and became final in the year 1944 under the garb of challenging the mutation sanctioned in the year 1944 was clearly barred by limitation, in the year 1996. As a consequence the sixth question of law would have to be answered against the appellants. As regards the last question of law, it would have to be held that as the respondents have successfully established the custom of Chundavand, as an exception to the general rule, no grave or manifest injustice has been caused to the appellants. The courts below have not committed any error while dismissing the suit and the appeal. Regular Second Appeal No. 1091 of 2007 -14- In view of what has been stated hereinabove, the appeal is dismissed with no order as to costs. August 17, 2009 (RAJIVE BHALLA) nt JUDGE