A widow's power of alienation of ancestral property is limited to cases of necessity, and collaterals, regardless of their degree, have the right to challenge such alienations under the Punjab Custom (Power of Contest) Act, 1920.

Kapur, J.

1. This is a plaintiffs appeal against the judgment of a learned Single Judge dated the 5th April 1948, by which he allowed the appeal against the judgment of the Senior Subordinate Judge.

2. The facts which have given rise to this appeal are that Gurmej Kaur, widow of Vir Singh, on the 12th of November 1943 sold 5 Kanals 11 Marias of land to Jaswant Kaur for Rs. 2,000/-. This land consisted of four fields Nos. 432, 435, 453 and 426. On the 8th of July 1944, Gurbachan Singh and Harbhajan Singh who have been found to be ninth degree collaterals of Vir Singh brought a suit to contest this alienation on the ground of want of consideration and necessity. This suit was decreed by both the Courts and it was held that the land was not ancestral qua the plaintiffs but was ancestral of Vir Singh, and it was also held that out of the consideration of Rs. 2,000/-, Rs. 1,000/- was for necessity, and the trial Court and the Senior Subordinate Judge held that this amount shall remain a charge on the property. The suit was decreed and the sale was not- to affect the reversionary rights of the plaintiffs except to the extent indicated above.

3. The learned Single Judge held that the provisions of Section 6 of the Punjab Custom (Power of Contest) Act II of 1920 applied and as the plaintiffs were collaterals beyond five degrees they could not contest the alienation.

4. The question to be decided is what is the right of the plaintiffs in regard to this alienation. According to the general custom of the Punjab as given in paragraph 64 of Rattigans Digest of Customary Law all alienations made by a widow except when they are for necessity are challengeable by reversioners howsoever remote. Even the non-ancestral property which is held by a widow can be challenged by reversioners. At page 373 in Rattigans Digest it is stated: "The reversionary heirs of the last male holder are entitled to contest an alienation made by such female even if the property is not proved to be ancestral, i.e., it is not necessary, in such circumstances, to prove that the property was held by the common ancestor (see 1927, 107 I C 489; 1935, 167 I C 693, and 1931, 133 I C 880)."

5. It is next submitted by counsel for the respondent that in Amritsar District the custom is different from what it is in other parts of the Punjab and reliance is placed on Question No. 52 of the Riwaj-i-am of 1940. Question No. 52 and the Answer thereto are given at pages 45, 46, 47 and 48 of the manual of Customary Law of 1940.

"Question (52) If the estate devolves upon the widow, define her interest therein. What rights has the widow to alienate by sale, gift, mortgage or bequest? (i) Are there any special circumstances or expenses on account of which alienation is permissible? If so, what are these? (ii) Is there any distinction in respect of movable or immovable, ancestral or acquired property, or in respect of alienation to the kindred of the deceased husband?

(iii) Supposing alienation to be permissible, whose consent is necessary to make it valid?

"Answer (52) A widows interest has the nature of a life-estate. Her rights of alienation are restricted. (i) She may mortgage but not sell, gift, or bequeath, for necessity and only so much of the estate as is required to satisfy that necessity. Recognised necessities are the performance of rites connected with the husbands death, childrens nurture and marriages, sickness, deceased husbands debts, land revenue. (ii) There is no restriction on the alienation of movable property. Alienation of ancestral immovable property is permissible only to the extent shown in (i) above. Alienation of immovable property acquired by the husband is permissible to the same extent as he could have alienated it. It makes no difference in any of these cases whether or no the alienee is related to the deceased husband. (iii) Where alienation is permissible no consent is necessary to make it valid."

6. According to this a widow has full power of alien