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1979 Supreme(P&H) 54
PUNJAB & HARYANA HIGH COURT
S.S.Sandhawalia and S.S.Dewan JJ.
Mahipat
Versus
Bhim Singh
Letter Patent Appeal No. 30 of 1975,29 of 1975,
Decided On : MARCH 27, 1979
The custom recorded in the Riwaj-i-Am of 1909 prohibiting testamentary disposition among Jats of Rohtak district is reasonable and enforceable.
Headnote:
CUSTOM - WILLS AND LEGACIES - JATS OF ROHTAK DISTRICT - POWER TO MAKE WILL - REASONABLENESS OF CUSTOM - CUSTOM RECORDED IN RIWAJ-I-AM OF 1909 PROHIBITING TESTAMENTARY DISPOSITION - HELD REASONABLE - CUSTOM RECORDED IN RIWAJ-I-AM OF 1879 RELATING TO ALIENATIONS - NOT APPLICABLE - WILL MADE BY SONLESS MALE PROPRIETOR IN LIEU OF SERVICES RENDERED BY LEGATEE - NOT VALID.
Fact of the Case:
Hari Singh, a Jat from Rohtak district, executed a will bequeathing his entire property, including ancestral agricultural lands, to Bhim Singh, a grandson of his real brother, in lieu of services rendered by him during his lifetime. Mahipat and Birkha, claiming to be the nearer reversioners of Hari Singh, filed a suit for possession of the lands, alleging that they were ancestral and that Hari Singh had no power to make a will in respect of them.
Finding of the Court:
The trial court found that the lands were ancestral and that the custom recorded in the Riwaj-i-Am of 1909, which prohibits testamentary dispositions, governed the case. The Additional District Judge, on appeal, held that the prohibition on the power to make a will covered only ancestral property and that a portion of the land in dispute was self-acquired and to that extent the will was valid. The learned single Judge reversed the judgment of the Additional District Judge and allowed the appeal filed by Bhim Singh, holding that the custom recorded in the Riwaj-i-Am of 1879, which relates to alienations only, conferred unrestricted power on a male proprietor to make a will and that the custom recorded in the Riwaj-i-Am of 1909 was unreasonable.
Issues: 1. Whether the custom recorded in the Riwaj-i-Am of 1909 prohibiting testamentary disposition is reasonable? 2. Whether the custom recorded in the Riwaj-i-Am of 1879 relating to alienations confers unrestricted power on a male proprietor to make a will?
Ratio Decidendi: 1. A custom must not be against reason, but the reason referred to is not to be understood as meaning every unlearned man's reason but artificial and legal reason warranted by authority of law. 2. The custom recorded in the Riwaj-i-Am of 1909 prohibiting testamentary disposition is reasonable as it prevents boundary disputes and avoids the defeat of the expectations of agnates and their residuary interest in the property. 3. The custom recorded in the Riwaj-i-Am of 1879 relating to alienations does not confer unrestricted power on a male proprietor to make a will as it expressly deals with sale, mortgage, and gift and does not relate to wills or testamentary disposition.
Final Decision: The Letters Patent Appeal No. 30 of 1975 filed by Mahipat and others is allowed, and the judgment of the learned single Judge in R.S.A. No. 889 of 1972 is set aside. The judgment of the learned Additional District Judge, Rohtak is restored. Letters Patent Appeal No. 29 of 1975 directed against the findings of the learned Additional District Judge with regard to the ancestral or non-ancestral nature of part of the property is dismissed.
The legal document discusses the validity and reasonableness of customary laws governing testamentary dispositions among the Jats of Rohtak district. The key points are as follows:
- Custom Recording and Validity:
- The custom recorded in the Riwaj-i-Am of 1909, which prohibits testamentary disposition of ancestral property, is deemed reasonable because it prevents boundary disputes and protects the interests of agnates and residuary heirs (!) (!) .
-
The custom recorded in the Riwaj-i-Am of 1879, relating to alienations such as sale, mortgage, and gift, does not extend to or confer unrestricted power to make wills (!) (!) .
-
Reasonableness of the Custom:
- The prohibition against making wills is considered reasonable, as it aligns with the community's interest in maintaining ancestral property within the family and avoiding disputes (!) (!) .
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Arguments that practical difficulties faced by a male proprietor in the absence of a testamentary right render the custom unreasonable are not legally compelling. The custom's validity is based on its consistency with community practices and its purpose, not on potential inconveniences (!) (!) .
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Effect of Custom on Testamentary Power:
- The custom recorded in the 1909 Riwaj-i-Am, which prohibits testamentary disposition, is applicable and binding, thereby invalidating wills made contrary to it (!) (!) .
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The earlier custom recorded in 1879, which permits alienations like sale and gift but not wills, does not provide a basis for unrestricted testamentary power. Therefore, a will made in contravention of the 1909 custom is invalid (!) (!) .
-
Evidence and Community Practice:
- The community’s long-standing practice, as evidenced by recorded customs and historical records, supports the view that the Jats of Rohtak have no customary right to make valid wills over ancestral property (!) (!) (!) .
-
The absence of specific instances supporting the custom recorded in 1909 does not negate its validity, as entries in customary records are presumptive evidence of community practice (!) (!) .
-
Conclusion:
- The custom recorded in the 1909 Riwaj-i-Am, which prohibits testamentary dispositions, is both reasonable and applicable, and therefore, wills made in contravention of it are invalid concerning ancestral property (!) (!) .
- The earlier custom recorded in 1879, relating solely to alienations, does not extend to or justify the power to make wills (!) (!) .
In summary, the court upheld the validity of the prohibition against testamentary dispositions among the Jats of Rohtak, emphasizing that such customs are to be respected when they are reasonable and rooted in community practice.
S.S.DEWAN, J.
1. This judgement will dispose of two Letters Patent Appeals Nos. 30 and 29 of 1975 filed by Mahipat and others against Bhim Singh and others which are directed against the Judgment of the learned single Judge dated November 7, 1974 whereby the learned Judge reversed the judgement of the Additional District Judge, Rohtak dated February 25, 1972 and allowed Regular Second Appeal No. 889 of 1972 filed by Bhim Singh and as a consequence dismissed Regular Second Appeal No. 975 of 1972 preferred by Mahipat and others.
2. Following pedigree table of the parties will be of assistance in understanding the facts of the case out of which the appeals have arisen :-
3. Hari Singh died issueless on June 30, 1965. On Oct. 26, 1964 he executed a will marked Exhibit D.1, whereby he bequeathed his entire property including the agricultural lands, which are the subject matter of present litigation commenced by Mahipat and Birkha, in favour of Bhim Singh, a grandson of his real brother namely Ghasi in lieu of services rendered by him during his lifetime.
4. Parties are Jats by tribe and belong to Rohtak tehsil in the district of Rohtak and are admittedly governed by custom.
5. Claiming to be the nearer reversioners of Hari Singh, the testator and hence entitled to the property left by him in preference to Bhim Singh, the legatee, Mahipat and Birkha sons of Har Nand brought a suit against him for the possession of agricultural lands described in the plaint alleging inter alia that they were ancestral in the hands of Hari Singh and that according to the custom which ruled, he had no power to make a will in respect of them. It was, therefore, pleaded that the will made by him did not confer any. right in the lands on Bhim Singh and was inoperative and ineffective against their reversionary interest therein. Bhim Singh repudiated all the allegations. It may be stated that Birkha died during the pendency of the suit and his legal representatives were impleaded as plaintiffs. The trial court settled a number of issues including those relating to the character of the lands, ancestral or otherwise, and the competency of Hari Singh to make a will in respect of them. The trial court found that the lands were ancestral in the hands of Hari Singh. As to the custom turning upon the power of male proprietor to make a testamentary disposition of his property, the plaintiffs relied upon the entry in the Riwaj-i-Am of Rohtak tahsil compiled in the year 1909 Exhibit P.8 which prohibits without exception such a disposition and further states that if one is made, it cannot be acted upon. The defendants on the other hand relied upon the custom recorded in the Riwaj-i-Am of the year 1879 copy of which is Exhibit D.2, which relates clearly to alienations only by a sonless proprietor. It provides that if he alienates his property by sale, mortgage or gift, the reversioners are not entitled to object to any such transfer. On its basis it was sought to be contended on behalf of the defendants that the unrestricted power so conferred would also include the power to make a will in respect of the same. The trial court for the reasons stated by it found that the custom regarding testamentary dispositions as contained in Riwaj-i-Am of 1909 would govern the case and consequently held that the will in question was invalid and inoperative against the reversionary interests of the plaintiffs in the land and decreed the suit filed by them to toto.
6. On appeal by Bhim Singh, the learned Additional District Judge, Rohtak agreed with the view of the trial court so as to hold that as far as a testamentary disposition was concerned, the parties were governed by the custom recorded in the Riwaj-I-Am of 1909. He, however, held that the prohibition on the power to made a will covered within its ambit only the ancestral property. On the evidence he found that a portion of the land in dispute was self-acquired and to that extent the will made by Hari Singh was opined
