JUDGMENT :- This is an appeal by two defendants, which arises out of a suit for declaration and possession. The suit was filed by Shrimati Lilawati, daughter of Lazar, a predeceased son of Samuel. Prem Chand (defendant No. 1) and Timtawas (defendant No. 2) are the sons of Samuel, while Srimati Shanti (defendant No. 3) is a daughter of Samuel. Garis Chand (defendant-No. 4) is the son of Srimati Tabina, another daughter of Samuel, while Srimati Fremi (defendant No. 5) is similarly the daughter of Srimati Ester, yet another daughter of Samuel.

Samuel died on 1-6-1948, leaving lands anti-other properties in village Melan, subtehsil Kumarsain, district Mahasu. His property has been mutated in the names of Prem Chand and Timtawas, defendants 1 and 2, and they have takeand possession thereof. The plaintiffs case was that, parties, being Indian Christians, are governed, in matter of succession, by the provisions of Succession Act, 1925. Accordingly, she claimed one sixth share of the property left by Samuel.

Since defendants 1 and 2 refused to concede her claim, she had to file the suit. The other defendants were impleaded as they were also coheirs of the property left by Samuel. Consequently, the plaintiff prayed for a declaration that she was entitled to one-sixth of the property left by Samuel and for possession of that share.

2. Defendants 4 and 5 admitted the plaintiffs claim, but asked for no relief for themselves. The remaining defendants, i.e. defendants 1 to 3, while admitting that parties were Christians, stoutly denied that they were governed by the provisions of the Indian Succession Act in matters of inheritance. They claimed that; being agriculturists, they were governed by custom prevalent in ilaqa Kotgarh, whereby Premchand and Timtawas were as sons the sole heirs-to Samuels property.

3. On these pleadings, the following issues-were framed by the trial Court :

1. Whether Samuel deceased was governed by the custom of Kotgarh and what is that custom ? O.P.D. 2. Whether Himachal Pradesh Government is a necessary party ? O.P.D.

3. Relief.

4. Whether Samuel deceased was not governed by Indian Succession Act and whether defendants can plead any custom contrary to the Indian Succession Act ? O.P.D.

After recording the evidence of the parties and hearing, their arguments, the trial Court came to the conclusion that parties, being Christiana, were governed by the provisions of the Succession Act and they could not rely on any custom, 35 contemplated by S. 5, Punjab Laws Act, 1872.

On facts, the Court below has, however, found that in matters of succession, the Christians of Kotgarh follow a custom, whereby sons succeed to the estate of a deceased proprietor, to the exclusion of daughters. In view, however, of his earlier finding that parties were precluded from relying upon the custom, the learned Senior Subordinate Judge granted the plaintiff a decree as prayed for. Hence, this appeal by defendants 1 -and 2.

4. I heard the arguments of the learned counsel for the parties at great length on the 1st, 6th and the 12th of the last month. I had hoped to deliver judgment on the 24th ultimo, but, due to the continuous sittings of the Himachal Pradesh Transport Advisory Committee, of which I was the Chairman, 1 could not do so. I now proceed to deliver judgment.

5. Two points arise for determination in this appeal;- (A) Whether the contesting defendants were debarred from relying upon local custom ?, and (B) In case they could do so, whether they have succeeded in establishing a custom, whereby daughters were excluded by sons from inheriting to the property of a deceased male Christian proprietor ?

6. (A). The Court below has quoted S. 2, Succession Act, 1865, whereby the rules contained in that Act were to constitute The law in British India, applicable to all cases of intestate or testamentary succession, "except as provided by that Act or by any other law for the time being in force." The learned Senior Subordinate Judge was of the opinion th

Click Here to Read the rest of this document