In the absence of any custom to the contrary, the personal law applies to non-ancestral property.

Judgment

HIDAYATULLAH, J. - This is a defendants appeal by special leave against the order of the High Court of Punjab dated October 20, 1959 dismissing summarily second appeal filed by the appellants. The suit was filed by the respondents for possession of a plot, a house and a Taur and half share in certain lands as preferential heirs of one Pohla after the death of Pohla s widow Punjab Kaur on February 7, 1952. The plaintiffs are Mst. Nikko, sister of Pohla and Jarnail Singh, son of Mst. Har Kaur who was another sister of Pohla. The first appellant Mara is collateral of 4th degree of Pohla and the other two appellants are Mara s sons. The following genealogy gives the relationship of the parties:-

2. The parties are Jhalli Jats of village Chomon, Tehsil and District Ludhiana. The plaintiffs claimed that the property was non-ancestral and according to the Riwaj applicable to the family, sisters excluded collaterals in respect of both ancestral and non-ancestral properties. It appears that after the death of Punjab Kaur, Mara got one of the fields mutated in his own name and thereafter took possession of the whole property. He made gifts to his sons of some of the properties and that is why they were joined in the suit. Mara and his elder son Mohinder Singh filed a joint written statement in which they raised many pleas the details whereof need not be given here. They claimed that according to the custom applicable to the family, sister and sister s sons were excluded from inheritance in respect of properties whether ancestral or non-ancestral. They, however, claimed that the property was ancestral and denied the genealogy.

3. The Subordinate Judge, Second Class Ludhiana framed six issues of which issues Nos. 2, 3 and 4 alone are important in this appeal.

Those issues are :-

"2. Whether the property is ancestral qua Pohla and Mara?"

"3. Whether the question of the nature of the property is material for the decision of this case?"

"4. Whether the plaintiffs are preferential heirs to the estate of Mst. Punjab widow of Pohla?"

4. The parties led voluminous oral evidence in the case but the Subordinate Judge did not rely upon it. We have not been referred to any portion of this evidence in this appeal. The learned Subordinate Judge held that the suit lands were not ancestral and further that no evidence was produced to prove that the other properties were ancestral. On the third issue he referred to question No. 52 from the Riwaj-i-am relating to the settlements of 1882 and 1909-1910 (Exts. D-1 and D-2) in which it is stated that among the Jhalli Jats of Tehsil Ludhiana sisters or sisters sons never succeed. He, however, held on the authority of Ahmad v. Mohammad, AIR 1936 Lah 809 that such question refers only to ancestral property and that the nature of the property was thus material. On the fourth issue he held on the strength of the answer to question No. 52 that sisters and their sons were excluded from ancestral property but as the answer was not applicable to non-ancestral property the personal law would apply unless special custom was proved. He, therefore, placed the burden on the defendants relying upon Harnam Singh v. Mst. Gurdev Kaur, 59 Pun LR 609, Mst. Sukhwant Kaur v. S. Balwant Singh. AIR 1951 Punj 242 and Mst. Jeo v. Ujagar Singh, 55 Pun LR. 1. As he had already rejected the oral evidence and there was no other proof that the property was ancestral, he decreed the suit.

5. On appeal the District Judge, Ladhiana remitted three issues to the trial Judge and they were as follows:-

"Issue No. 4:-

Whether there is any custom by which the parties are governed according to which the plaintiffs are entitled to succeed to the ancestral as well as non-ancestral property left by the Pohla in preference to Mara defendant?"

"Issue No. 4A:-

Whether under the custom by which parties are governed the defendant Mara is a preferential heir to the plaintiffs in respect of the ancestral as well as non-ancestral property of Pohla deceased?"

"Iss