2007 Supreme(SC) 824

2007(4) Supreme 501
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha & Markandey Katju, JJ.
Smt. Ass Kaur (Deceased) by L.Rs
— Petitinoer
versus
Kartar Singh (Dead) by L.Rs. & Ors
— Respondents
Appeal (civil) 12395 of 1996
Decided on : 18-05-2007
Counsel for the Parties :
For the Appellant : R. Sundravardan, Sr. Adv., Mrs. Rekha Palli, Anant Vajai Palli, Advocates.
For the Respondent : Jana Kalyan Das, Advocate.

IMPORTANT POINT
Customary law designed on the principle of ‘keeping of the property within the family’ provides succession of a widow to her husband after death of her co-widow. Therefore if the daughters who were married were to be excluded by customary law, no exception thereto can be taken.

Headnote:Punjab Laws Act, 1872 – Sections 5 and 7 – Custom is one of the three sources of Hindu Law and it may override a statute subject, of course, to a clear proof of usage – Hindu Law recognizes three types of customs: local custom, class custom and family custom – Amongst the Sikh Jats of Punjab province, there exists a custom, where the widow marries her first husband’s brother in the Karewa form, and remarriage would not cause forfeiture of her own share. (Paras 9 to 11 and 16)

       AIR 1933 Lah. 69; 22 P.R. 889; AIR 1934 Lahore 1; AIR 1937 Lahore 468 – Referred to.

       Evidence Act, 1872 – Section 57 – Where a custom is repeatedly brought to the notice of the Courts, the courts may hold that custom introduced into the law without the necessity of proof in each individual case (Para 18)

       AIR 1962 SC 1493 – Relied upon.

       AIR 1959 SC 1041; AIR 1951 Punjab 239 – Referred to.

       Inheritance – As statutory law did not exclude the applicability of the customary law, the principle that customary law would prevail over the statutory law would apply – Courts below categorically held that the Jats are governed by customary law; the principle being ‘keeping of the property within the family’ – Raj Kaur, who was a widow of Hira Singh, was married to another brother just to safeguard the family property by virtue of which she succeeded under the customary laws to her husband after the death of her co-widow – In that view of the matter, if the daughters who were married were to be excluded by customary law, no exception thereto can be taken. (Para 25, 27 and 28)

       (1983) 3 SCC 376; (1988) 2 SCC 126; 2006 (10) SCALE 75 – Distinguished.

       Facts of the case :

       Relu Singh had two wives, namely, Sobhi and Raj Kaur. Raj Kaur was originally married to his brother Hira Singh, who had died in the year 2001. Relu Singh married to Raj Kaur on the death of brother under the customary law of the land. Relu Singh died in the year 1907. He was succeeded by his two wives and two sons Inder Singh and Mehar Singh alias Dalip Singh and daughter, the appellant. Inder Singh died in the yar1926 and Mehar Singh died in the year 1937. Sobhi, the first wife of Relu Singh and the mother of

       Mehar Singh and Inder Singh, died in the year 1950. Raj Kaur died about five years prior to the institution of the suit i.e. in the year 1970. Ass Kaur, daughter of Sobhi and sister of Mehar Singh and Inder Singh claimed share in the property. The defendants-respondents contended that after the death of her husband Hira Singh, Raj Kaur contracted Karewa marriage with Relu Singh in accordance with custom. She had a son through Hira Singh. It was urged that under the Punjab customary laws governing inheritance and succession of Sidhu Jats after the death of Relu Singh, his two sons and two widows succeeded to his estate. After the death of Inder Singh and Mehar Singh, their properties were mutated in the name of their mother Sobhi and their step mother Raj Kaur. Again purported to be in terms of the rule of survivorship in accordance with the local and tribal customs her name was mutated after the death of Sobhi. She remained in exclusive possession of the said property and upon coming into force of the Hindu Succession Act, 1956, she became the absolute owner thereof. It was also contended that Sobhi was a limited owner and on her death in the year 1950, Raj Kaur succeeded to her by rule of survivorship. It was furthermore pleaded that under the customary law, the appellant herein had no right of succession in preference to the widow.

       The courts below while holding that the appellant herein was daughter of Sobhi, opined that the parties were governed by the customary laws in the matter of inheritance and succession in terms whereof Raj Kaur succeeded to the estate of Relu Singh after the death of Sobhi and that her estate was enlarged into full ownership after coming into force of the Hindu Succession Act.

       Findings of the Court:

       Existence of custom having been proved, and inheritance accepted accordingly, no exception can be taken thereto.