Joginder Singh vs Bhagat Singh and others

Tek Chand, J.—This is a Letters Patent Appeal from the judgment of a learned Single Judge who allowed the appeal and set aside the decision and the decree of the Courts below and granted a decree in favour of the plaintiffs declaring that they were the owners of the suit property to the extent of two-third share. The following pedigree-table will be helpful in understanding the respective contentions of the parties:-

The suit is between Bhagat Singh and Thaman Singh plaintiff''s sons of Ram Singh from Mst. Thakri on the one side and Joginder Singh son of Ram Singh from Mst. Rami on the other. Mst. Santi had married Chanan Singh who was the other son of Ram Singh from Mst. Rami. Chanan Singh predeceased Ram Singh and on his death Mst. Santi married by Karewa Joginder Singh defendant''. Bhagat Singh and Thaman Singh plaintiffs had instituted a suit for declaration that they were entitled to the land left by Ram Singh, their father, according to the rule of Pagwand to the extent of two-third share. The contention of the defendants was that among their community, Sainis of Jullundur, Chundawand custom prevailed. In other words, the rule of succession was per capita and not per stirpes. On the pleadings of the parties the trial Court framed the following issues:-

Whether Chanan Singh had died; if so when?

Whether Mst. Santi is entitled to any share in the property in suit; if so, how much?

Whether the parties are governed by the Chundawand rule of succession?

Relief.

The trial Court on the first issue held that Chanan Singh died long before Ram Singh died. On the second issue it was held that Mst. Santi was not entitled to any share in the property in suit. The third issue is the one with which this Letters Patent Appeal is concerned. The trial Court expressed the view that the parties were governed by the Chundawand rule and the Additional District Judge agreed with that conclusion and dismissed the plaintiff''s suit. The Second Appeal was allowed by the learned Single Judge and the decision of the Courts below was reversed as erroneous. The parties were held to be governed by the rule of Pagwand in matters of succession.

The parties are Sainis of village Urapur in Nawanshahr Tehsil of Jullundur district and it is not denied, that at one time the rule of succession which prevailed in their family was of Chundawand. The plaintiff''s stand is that they are no longer governed by the Chundawand rule which has been replaced by the rule of Pagwand. The last Settlement in Jullundur district took place in 1913-17. According to the riwaj-i-am of Jullundur district compiled by Bhai Hotu Singh, question No. 33 and its answer are as under:-

Question 33-If there be more sons than one, will they take equal shares?

If the sons do not take equal shares, state upon what principle the shares are regulated?

(i) Is any regard had to uterine descent? Are the shares in the inheritance distributed according to the number of mothers? (Pagwand or Chundawand).

(ii) Is any regard had to the caste or tribe of the mother, so that the sons by a wife of a high caste, or of the same caste or tribe with the father, take larger share than the sons by the wife of a low caste or of a different caste or tribe?

(iii) Is any regard had to the age of the sons so that (1) the eldest son, (2) the youngest son would take a greater or less share than his brethern?

Answer. If there be more sons than one they inherit equally. No regard is had to the age of the sons or the caste of their mother.

The following tribes, however, refuse to give any share in the inheritance to the issue of a woman belonging to a different tribe-

The Nakodar Tehsil:-All tribes.

The Phillaur Tehsil:-Muhammadan Jats, Rajputs (Muhammadan and Hindus), Gujjars, Dogras and others Hindus. The Jullundur Tehsil:-Muhammadan Rajputs, Awans and Arains. The Nawashahr Tehsil:-Jat Muhammadans, Arains, Gujjars, miscellaneous Muhammadans, Sayyads. Sheikh, Mughals and Pathans; but in the case of Pathans if the woman is a Rajput, her sons will equally inherit.

In all tribes Pagwand system is prevalent except among Lodhi and fiarki Pathans of Jullundur Tehsil among whom Chundawand system prevails. *

The answer clearly indicates that Pagwand system prevails among all tribes with the exception of Lodhi and Barki Pathans where the basis of succession is Chundawand. The trial Court and the Additional District Judge did not accept the statement of custom as laying down the correct rule of succession for the following reasons-

Firstly-no instances in support of the Pagwand custom relating to Sainis of this village were quoted in the riwaj-i-am,

Secondly-there was not a single instance among Sainis in this village supporting the Chundawand rule. There is a judicial decision, and certified copy of the judgment of the Assistant Commissioner dated 19th July, 1864, is placed on the record as Exhibit D. 5. The Assistant Commissioner had held that the Sainis of this village were governed by the rule of Chundawand,

Thirdly-it was held that the riwaj-i-am of Jullundur district was not a reliable or trust-worthy document and had not been prepared with due care and attention and there were several observations of the Judges to this effect and among the decided cases from this district,

Fourthly-there was no reliable evidence in support of the abrogation of the rule of Chundawand which had prevailed,

Fifthly-there was no evidence that at the time of the preparation of the riwaj-i-am the Sainis of this village had been consulted,

Lastly -it was said that the riwaj-i-am was not supported by any concrete instances relating to the Sainis of the village.

The plaintiffs had cited two instances. Exhibit P. 3 is an order of mutation. One Inder Singh Saini of the village died leaving two widows and the mutation was sanctioned on 24th September, 1944, on Pagwand basis. No dispute was raised by any party by asserting Chundawand rule and no enquiry had been made on this point. No weight was attached to this instance as the period of limitation was still running and the mutation could still be challenged.

The second instance supporting Pagwand was a mutation order, Exhibit P. 4. Mallah Singh Saini of this village had died in 1935 leaving one son from the first wife and two sons from the second wife. In this case on party claimed division according to the Chundawand rule. Without making any enquiry, the revenue officer followed the Pagwand rule, as, according to him, it was based on justice.

The defendants led some oral evidence to show that Chundawand rule was being followed. Besides the judicial instance, Exhibit D. 5, to which reference had already been made, Exhibit D. 1 was a judgment of the Munsif dated 24th December, 1889 holding that (sic) of this village were governed by Chundawand rule. Exhibit D. 3 is a copy of the judgment of the Divisional Judge on appeal dated 20th March, 1890 affirming the decision of the Munsif. A third instance relied upon by the defendants is an order of mutation dated 6th June, 1907, Exhibit D. 4. On the death of Gujjar Singh Saini of the village the estate was divided according to Chundawand rule between two sons from one wife and one son from the other wife. Before the learned Single reliance was placed by the counsel for the defendant respondents to observations in Mohammad Khalil v. Mohammad Baksh AIR 1949 E.P. 252. In that case the answers to questions 79 and 84 (A) of the riwaj-i-am of Jullundur district were examined and it was observed that the riwaj-i-am of Jullundur district could not be regarded as reliable and trustworthy document. Reference in that judgment was made to previous decisions of the Lahore High Court in which answers to certain questions were not accepted as laying down the correct rule of custom, and it was also remarked that the riwaj-i-am had not been prepared with due care and attention. No case, however, was cited before the learned Single Judge or before us to show that the answer to question No. 33 in the riwaj-i-am of Jullundur district, which has been quoted in the earlier part of this judgment, was treated as incorrect. The learned Single Judge was impressed by the fact that the statement in the riwaj-i-am in support of Pagwand rule was based on several instances given in the appendix at p. 416 of the Customary Law of Jullundur district and there were seven instances, Nos. 242 to 248 relating to Sainis of Nawanshahr Tehsil. There is, however, instance No. 249 of year 1889-90 which does not support the answer to question No. 33 and rather shows that the rule of succession was Chundawand. The learned Single Judge did not place any reliance on this instance as it was of a period when Chundawand rule held sway and was prior to the Settlement of 1913-17. The two instances referred to in Exhibits P. 3 and P. 4 related to Sainis of this village and were subsequent to the Settlement of 1913-17 and on their basis it was thought that the Chundawand rule had been abandoned and the Pagwand rule had been accepted.

In Bui alias Bur Singh and others v. Beta Singh AIR 1947 Lah. (sic), Mahajan J. sitting with Harries C.J. examined the circumstances of the applicability of Pagwand and Chundawand rules of custom. The parties were Hundal Jats of Gurdaspur district. The Bench held that the general custom of Province was in favour of Pagwand rule and the onus is heavy on the party asserting the Chundawand rule. The question of custom has to be examined with reference to the time when succession opened. It was also observed that a presumption of correctness attaches to the riwaj-i-am unless it is shown to be inaccurate. Cases decided long ago and in accordance with the custom then prevailing were deemed to be of no value in deciding on custom coming into vogue in later times. Harries C.J. thought that Chundawand was an unjust and inequitable rule.

In another Division Bench decision, Labh Singh v. Sarjit Singh AIR E.P. 40 = 51 P.L.R. 225, it was held that the custom of Chundawand is most exceptional and instances cited in its support should be such as may justify the Court in holding that the custom prevails universally among the family or group of families concerned and not merely that it has been followed in just a number of cases; and the dicta in Atar Singh v. Nihal Singh 125 P.R. 1884 and Gopal v. Shewag Ram 12 P.R. 1899, was relied upon.

In the instant case, apart from the general custom favouring the Pagwand rule, the custom of Sainis as stated in answer to the question No. 33 of riwaj-i-am of Jullundur district, is in accord and not in derogation to the general custom. At p. 417 of the riwaj-i-am of district Jullundur are mentioned six instances of Sainis of different villages in Nawanshahr Tehsil, who followed the Pagwand rule, as against one instance of Sainis of this village who followed Chundawand the but the last instance is not of recant but of a re note period. The dispute arose as to whether his estate was to be shared between his sons according to the Pagwand rule or Chundawand rale and it was held by the Munsif on 24th December, 1889, that the custom which the parties followed was Chundawand and not Pagwand vide Exhibit D. 1, and this decision was affirmed in appeal by the Divisional Judge on 20th March, 1890 vide Exhibit D. 3. Much assistance therefore cannot be drawn from this, solitary instance of over half a century ago.

Exhibit D. 5 is another instance of the application of Chundawand custom in a judicial decision of the Assistant Commissioner of 19th July, 1864. The succession opened in this case in 1861. Exhibit D. 4 is a mutation order of 6th June, 1907 in support of Chundawand rule and is eight years prior to the preparation of the last riwaj-i-am in 1915. From 1906 uptil now, there is not a single instance in support of Chundawand rule, and it cannot, therefore, be stated that Chundawand rule has been followed by any Saini as a tribal or a family custom.

There are, however, two mutations, Exhibits P. 3 and P. 4 regarding Sainis of this village in which Pagwand rule was followed. Exhibit P. 4 is a copy of the mutation order dated 20th February, 1936 relating to the Sainis of this village and after making enquiries the revenue officer passed an order of mutation of inheritance in accordance with the Pagwand rule. Exhibit P. 3 is also a mutation order relating to Sainis of this village which was passed on 24th of September, 1914, in accordance with the rule of Pagwand. P.W. 5 Dhana Singh in his oral statement recorded by the trial Court has furnished another instance of Pagwand rule having been followed in his own family of Sainis of this, village. These instances are of a time subsequent to the riwaj-i-am of Jullundur of 1915-16 according to which the Sainis along with others, were recorded as following the rule of distribution by Pagwand. Apart from what has been stated in the riwaj-i-am, entries have also been produced of the riwaj-i-am of Tehsil Nawanshahr recorded at the time of the Settlement of 1913-17. In answer to question No. 33, the Sainis had stated that they followed the same custom as the Hindu Jats, and the answer of the Hindu Jats was in favour of Pagwand.

Mr. Karam Chand Nayar, learned counsel for the respondents, has cited in support of the Pagwand rule a decision of a Division Bench of the Chief Court of Punjab reported as Kahna and Kanhya v. Wazira 68 P.R. 1893, relating to Hindu Jats of Nawanshehr Tehsil following the Pagwand rule. I do not think that this decision of 1893 relating to Hindu Jats, can be considered to be lending support to the custom of Sainis. At the time when this decision was given, the usage was in a state of flux, and, the custom of Sainis crystallised in favour of Pagwand sometime after 1906 when there ceased to be any distribution by Chundawand. On this record, the last instance of Pagwand is furnished by the mutation order, Exhibit D 4 of 1907. The period prior to 1906 seems to be transitional; and the custom of Chundawand starting falling into desuetude gradually giving place to the rule of Pagwand. Sainis, it appears, were influenced by the custom of the Hindu Jats and of other neighbouring tribes who-had been following the Pagwand rule. In the absence of a single instance in favour of Chundawand, after 1906, for over half a century, it can now be confidently said, that the rule of Chundawand has been completely-abrogated and that the Sainis now follow the Pagwand rule.

Mr. Gandhi cited a decision of the Full Bench in Mt. Sardar Bibi v. Haq Nawaz Khan AIR 1934 Lah. 371 = 35 P.L.R. 760 (F.B.) for the proposition, that it is not open to a person to change the rule of succession at his pleasure, or, to change an established custom by merely giving expression to his wishes. The facts of the Full Bench case were peculiar, because a particular tribe of Bilochees recorded a statement in the riwaj-i-am "under a wave of religious renaissance and zeal" which had passed over Dera Ghazi Khan district m 1920, and under its influence, had merely expressed a pious wish to follow the provisions of Mohammedan Law in preference to their ancestral custom, and it was consequently observed, that a long established custom, whereby, sons excluded daughters, could not be treated to have been suddenly abrogated, as the abrogation had to be interred from a continuous course of conduct. There is no dispute with the general proposition, but it has no applicability to this case as it is not a case of a sudden abandonment of a custom or of an abrupt departure from it, in consequence of a tribal wish or of a family desire. Weering round from Chundawand to Pagwand seems to have been impercetible influence in consequence of the Pagwand rule being generally followed by the other tribes, both homogeneous and even heterogeneous, living along with the Sainis.

Chundawand custom is more in the nature of a family than a tribal rule. It certainly is not a territorial custom prevalent in a particular locality. The fact, however, is that in district Jullundur not only the Sainis but also Hindu and Mohammedan Jats, Hindu and Mohammedan Rajputs, Arians, Gujjars, Sayyeds, Sheikhs, Mughals, Mehtons and some other Hindu tribes also have been following the Pagwand rule. Similar seems to be the practice prevalent among most of the tribes in other Tehsils of Jullundur. In Jullundur Tehsil, Chundawand system prevailed only among Lodhi and Barki Pathans. It is, therefore, not a matter of surprise, that under these environmental influences there has been a swing in favour of the Pagwand custom. In the case of Sainis crystallisation had taken place and Pagwand custom had struck roots almost since the first decade of this century. It cannot now be said that the custom is fluctuating.

There is, however, authority for the proposition that where the distribution of inheritance approximates to neither rule, the natural presumption is in favour of the general rule, which is Pagwand (vide Basawa Singh v. Lehna Singh 4 P.R. 1893 and Ahmad v. Haji Mahmud 50 P.R. 1909 = 74 P.L.R. 1909). While holding that Malkotra Rajputs of Mauza Panjawar of Tehsil Una in the Hoshiarpur district followed the Chundawand rule of succession, Kensington C.J. in Gopal Singh v. Prabh Diyal Singh 50 P.R. 1915 = 6 P.L.R. 1916, observed-

It is doubtless correct to say that in the Punjab plains the custom of Chundawand is slowly giving place to Pagwand even where it may have been prevalent at one time.

There is also a long catena of judicial pronouncements for the view that even in those tribes in which Chundawand rule at one time prevailed, the custom has in more recent years been undergoing transformation and the Pagwand distribution has displaced the Chundawand, and the former has come to stay. Inter alia, reference may be made to Hukam Singh v. Socket Singh (sic) P.R. 1892, Mst. Kundo v. Shib Dial 22 P.R. 1902 = 17 P.L.R. 1902, Ida v. Rahim Bakhsh 58 P.R. 1911 = 45 P.L.R. 1912 and Partap Singh v. Saudagar Singh AIR 1935 Lah p.19. My attention has been drawn to a passage in the judgment of the learned Single Judge wherein he said-

It is common ground that at one time the rule which prevailed in the family was one of succession by Chundawand.

Mr. Karam Chand Nayyar has denied that there was any common ground and maintained that there was not a single instance on the record, recent or remote, in support of the Chundawand custom, having been followed by the family of the parties. Mr. Gandhi for the appellant has not been able to meet this contention, and has not drawn our attention to a single instance of Chundawand custom having been observed in this family. All that we know is that among some Sainis of this village custom of Chundawand prevailed in the last century but no effort has been made to show that anyone of the illustrations of Chundawand rule among the Sainis of this village related to this family.

Mr. Gandhi for the appellant also drew our attention to an unreported decision of a Bench of this Court in Devinder Singh v. Joginder Singh, Regular First Appeal No. 160 of 1954, decided on 20th May, 1960, by Bishan Narain and Inder Dev Dua JJ. Bishan Narain J., while upholding that Chundawand custom prevailed among the Harchand Rajputs of village Awankha, Tehsil and District Gurdaspur, had found seven instances in support of Chundawand custom after 1911 as against two in favour of Pagwand rule. He also held that it was impossible to hold that the test laid down in Hukam Singh v. Socket Singh (sic) P.R. 1892, Fazli Hussain v. Tafazal Hussain AIR 1932 Lah. 222 and Bui alias Bur Singh v. Bela Singh AIR 1947 Lah. (sic) had been satisfied. In the absence of abrogation of the Chundawand rule by the Pagwand rule of succession, the former rule was held to prevail in the family of the parties. Dua J. agreed, though as he said, "not without considerable hesitation". Dua J. referred to Labh Singh v. Sarjit Singh AIR E.P. 40 = 51 P.L.R. 225 where it was held that the custom of Chundawand is most exceptional, and by reason of its exceptional nature, the instances cited in its support should be such, as may justify the Court in holding that the custom prevailed universally among the family or group of families concerned and not merely that it had been followed in just a number of cases. In support of this view be relied upon Atar Singh v. Nihal Singh 125 P.R. 1884, in which case as many as twenty instances in favour of Chundawand as against twelve instances for Pagwand rule were held not sufficient to uphold the former custom. He also relied upon Gopal etc. v. Shewag Ram 12 P.R. 1899 deciding in favour of the Pagwand rule. He thought that in order to establish Chundawand rule in a particular family, instances in its support should be so overwhelming in number and of such a character as to justify the conclusion that Chundawand as the custom of succession prevailed universally in the family or the clan. Reference was made to Kaku etc. v. Bhagwan Singh 119 P.R. 1893. Ahmad v. Haji Mohammad 50 P.R. 1909 = 74 P.L.R. 1909. Nanak Chand v. Muushi Ram AIR 1922 Lah. 452 and Gujar Khan v. Ghulam Mohammad AIR 1926 Lah. 163. At the concluding portion of his judgment Dua J. observed-

I am not quite clear if the parties before us can be held to be governed by the rule of Chundawand but as my learned brother is inclined to uphold that rule (and I have great respect for his opinion), I may not be prepared, as at present advised, to dissent; but I would certainly be disinclined to favour this case being cited as a valuable precedent for future applicability of the above rule, because in this way we would be imposing, in perpetuity, on the parties an unjust rule, which it a relic of old times and which they want to give up and are not shown to have followed during the last forty years or so.

In view of the above observations of Dua J. I cannot consider this decision as an authoritative rule laid down in favour of Chundawand custom. In any case, in that decision there were a large number of instances subsequent to 1911 in favour of Chundawand rule which fact was considered by Bishan Narain J. to be sufficiently persuasive for holding that Chundawand custom did prevail among the Harchand Rajputs of village Awankha, Tehsil and district Gurdaspur.

In Fazli Hussain v. Tafazal Hussain AIR 1932 Lah. 222 = (sic) P.L.R. 105, which was a case of Mohammedan Bhatti Rajputs of Batata Tehsil, District Gurdaspur, the Chundawand rule of succession had been found to have been followed from time immemorial. At the time of the attestation of the riwaj-i-ams of the Tehsils of the district in 1911-12, i.e., after the succession opened, there was an attempt to say that the Pagwand rule should be followed in preference to the Chundawand. On the facts of that case Addison J. said that it could not be held that a new custom of Pagwand had arisen abrogating the older Chundawand custom. This decision is distinguishable from the facts of our case, as, the succession there, had opened out in 1910 before the compilation of the riwaj-i-ams in 1911-12 laying down a departure from the old Chundawand rule. In the instant case, the succession opened on the death of Ram Singh in 1948 or 1949 more than thirty years after the entries in the riwj-i-ams of the Tehsil and the district had been compiled in 1915 stating that the Pagwand role was being followed. The facts and circumstances of this case are entirely different to those in the case before Addison and Hilton JJ. Moreover, the observations of Addison J., in which he had stated that an entry in an earlier riwaj-i-am was entitled to greater weight than the one appearing in a later riwaj-i-am and that the custom of Chundawand was not merely a family custom but was a tribal custom, were in the nature of obiter dicta. They also run counter to a large number of other decisions of the Punjab High Court and the High Court of Lahore to which the learned Judges had not adverted. Achhru Ram J. in Labh Singh v. Sarjit Singh AIR E.P. 40 = 51 P.L.R. 225 for the reasons stated above, declined to accept the dicta of Addison J. as any guide for the decision of the case before him. As early as 1879 Plowden J., delivering the judgment of the Bench in Dhyan Chand v. Mehtab Singh 101 P.R. 1879, said-

We cannot agree in the view that the "plaintiffs were bound to establish that Pagwand was the rule. Inheritance as a rule goes per capita and nor per stirpes, and it was for the defendants to establish that the special custom of Chundawand applied to the parties to this case. In the absence of such proof, the general custom of Pagwand would apply without any proof being necessary.

As to the genesis of the customs of Pagwand and Chundawand, the observations of Plowden J. in the leading case of Gholam Muhammad v. Muhammad Bakhsh 4 P.R. 1891 (F.B), are of considerable value and guidance-

What then are these customs of Pagwand and Chundawand?

On this point the collected Cases appear to me to lead very clearly to the following conclusion:-

They are not customs of succession properly so called, in as much as (1) they do not profess to ascertain the heir, and (2) neither operates only on the occasion of a death. They are, in reality, customary modes of distribution of an estate among the persons who are, by custom, entitled to a share, and they operate on the assumption that these persons are already ascertained. Given an estate to be distributed and given the persons entitled to a share, the function of either custom is to-furnish the rule of distribution The characteristic difference between them is that, while the Pagwand custom ignores the existence of the ancestor''s wives, the Chundawand custom recognises their existence, and makes it the basis of distribution, (p. 14)

* * * *

The Chundawand custom is not necessarily a rule of unequal distribution, but ordinarily a rule of unequal distribution, but ordinarily it is, and further, a rule of inequality in favour of the numerically weak against the numerically strong. Such a rule is likely to have originated only under conditions where the authority of the living ancestor was present to enforce it. Once established as a rule of partition, it would naturally come to be also applied as a rule of distribution on succession. (p. 15)

* * * *

It seems to me far more probable that these terms (Pagwand and Chundawand) cannot a distribution (wand) with reference to the male parent or to the female parent. Chundawand unquestionably corresponds to the Bengali expression ''Patni bhaga'' and, as it seems to me, Chuda, the topk not or distinctive mark of the female sex, is opposed to pag, the head-dress distinctive of the male sex. This derivation is entirely consonant with the actual principle of distribution, according as either mode

is adopted. (p. 17)

* * * *

On a Chundawand distribution, the estate is distributed into-portions, primarily, according to groups and not to individuals, the portions of a group being then redistributed among its members as members of a single family. (p. 20)

* * * *

The customs of Pagwand and of Chundawand are modes of distribution of an estate among the persons entitled to share them, rather than customs of succession, (p. 23).

An appendix of collected cases prepared by Mr. Justice Rivaz is attached at page 25 of the the report and it seems clear from the study of the cases mentioned therein, that the custom of Chundawand is exceptional and the burden of proof is always placed on the person asserting a particular custom. The Privy Council in AIR 1941 21 (Privy Council) , clearly laid down that though the entries in the riwaj-i-am are entitled to an ''initial presumption in favour of their correctness, irrespective of the question whether or not the custom as recorded is in accord with the general custom, the quantum of evidence necessary to rebut this presumption would, however, vary with the facts and circumstances of each ease; where, for instance, the riwaj-i-am lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace this presumption, but where on the other hand, this is not the case and the custom as recorded in the riwaj-i-am is opposed to the rules generally prevalent, the presumption would be considerably weakened. According to the above principle, the presumption attaching to the riwaj-i-am of Tehsil Nawanshahr relating to the custom of Pagwand prevalent among the Sainis, must stand not having been rebutted by any cogent material on the record. I may also advert to certain observations of Settlement Officers and judges who have deprecated the Chundawand custom by styling it as barbarous. Referring to Chundawand, Addison J. in Fazl-i-Hussain v. Tafazil Hussain AIR 1932 Lah. 222 = (sic) P.L.R. 105, at page 423 said-

It is no concern of mine to condemn it or to praise it; but merely to see whether it existed in 1910 as the custom amongst this tribe.

The word, "barbarous" signifies cruel, tyrannous, inhuman, merciless and ferocious. I do not think, whatever the attitude of the modern age towards treating wives as units of descent may be, the Chundawand custom can by any standards of fairness, be described as barbarous or uncivilised. Some of the ancient law-givers like Vyasa and Brhaspati commended it. Vyasa said-

In cases where there are several sons born to one man from different mothers, the sons of the different mothers being of the same caste and the same in number,-the partition commended.

"is that in reference to the mothers-" Brhaspati observed-

When there are many sons sprung from one father, equal in caste and number, but born of different mothers, the legal division of the property may be effected by adjusting the shares according to the mothers. When there are several brothers, equal in caste, but varying in number, a division according to males is commended- (vide Hindu Law in its sources by Jha, Volume II, page 340).

It is however, the rule of Hindu Law that the division of property between the sons of one father but of different mothers is equal, i.e., per capita and not per uteros. Descent per capita and also per stirpes was known to other systems. Distribution by Chundawand is described as per stirpes which means through the stocks of descent. This is succession by representation according to which all the branches inherit the same share that their root, whom they represent, would have done (vide Commentaries on the Laws of England by Sir Williams Blackstone, Vol. 11, page 217). The words "per stirpes" mean by the root, or stock, but an essential characteristic of essential distribution per stirpes, is, that each distribute takes in a representative capacity and stands in place of deceased ancestor, male or female. "Per capita", of course, means by the head as individuals. Chundawand is in a way an unjust rule by which the estate left by the father descends to the sons, so that the sons, however, few, of one wife, take a share equal to that of the sons, however, many, of another. Tapper in his book on Punjab Customary Law, Vol. II, page 96, thought that the rule of Chundawand was characteristically a survival and was unjust now and seemed to serve no useful purpose whatever. This rule, said Tupper, "does not prevail, so far as I can judge, on any fixed principle or amongst any definitely ascertainable set of clans.

In this case no instance has been cited of Chundawand distribution during the last half a century; the dying process must, therefore, be held to have been completed. As Chundawand is unjust and inequitable, it is being gradually abandoned in favour of Pagwand. As early as 1892 it was remarked by Sir Meredyth Plowden that Chundawand rule had been undergoing the process of transformation for some years giving way to Pagwand rule. In particular localities the process had possibly become complete and Pagwand had been effectually substituted for Chundawand (vide Hukam Singh v. Socket Singh (sic) P.R. 1892).

From the above discussion the following rules relating to Pagwand and Chundawand emerge:-

I. Where the male holder dies leaving two or more wives, their issues shall succeed together equally, i.e., per capita descent being reckoned from the father alone. This rule was called Pagwand from pagree, the male head-dress. Among certain families or tribes the succession takes into consideration the stock or the root, the mother being the unit of descent, though the succession is to the estate of the father. This is called Chundawand, being a distribution (wand) on the basis of chunda, a braided tuft on a woman''s head.

II. The question of custom has to be examined with reference to the date when succession opened out to the estate of the deceased.

III. According to the general rule, sons share equally whether they are from the same or different mothers; in other words, per capita and not per uteros, i.e., not on uterine basis. The general custom of the Punjab favours Pagwand and not Chundawand rule.

IV. The onus rests heavily on those who wish to prove the rule of custom contrary to the general custom of the Province. The burden of proving the prevalence of Chundawand rule is on the party asserting it.

V. If custom fluctuates, or, where the scheme of distribution approximates to neither rule, Pagwand is preferred to Chundawand.

VI. Pagwand and Chundawand are rules of distribution (wand) and not of succession between the heirs entitled to inherit property left by a male ancestor.

VII. Chundawand is a family, rather than a tribal rule of distribution (vide Kaku v. Bhagwan Singh 119 P.R. 1893, Gopal etc. v. Shewag Ram 12 P.R. 1899 and Ghuiam Muhammad etc. v. Abbas Khan 22 P.R. 1899).

VIII. Usage of family apart, custom is usually tribal and, though it may vary from locality to locality, generally speaking, the same tribe living in the neighbouring district follows the tribal custom.

IX. The Chundawand is a dying rule, and it is falling into desuetude and is slowly giving place to Pagwand whatever the former practice was in vogue (vide Ranjha v. Bulanda 14 P.R. 1909 = 1908 P.L.R. 570, Ahmad v. Haji Mahmud 50 P.R. 1909 = 74 P.L.R. 1909; Ida v. Rahim Baksh 58 P.R. 1911 = 45 P.L.R. 1912 and Bui alias Bur Singh v. Beta Singh AIR 1947 Lah. (sic)).

X. The instances of a period, when the old custom, which was in a stage ot transition, was still in force, cannot be any guide for the decision in a case where the succession has opened only recently.

Applying the above principles to the facts of this case, I find that the rule of custom prevalent among the Sainis of village Urapur of Nawanshahr Tehsil of Jullundur district, when the succession opened, was Pagwand as stated in answer to question No. 33 in the riwaj-i-am of Tehsil Nawanshahr, district Jullundur, compiled at the 1913-17 Settlement.

One argument urged on behalf of Joginder Singh defendant No. 1 (appellant) needs only a passing reference. Mr. Gandhi argued, that even on the assumption that the rule of Pagwand prevails, Mst. Santi is entitled to one-fourth share as the wife of Chanan Singh. It is true that he is said not to have been heard of for thirty years by the people who would have heard of him, and there is a presumption of death, but none as to the date of death. Therefore, by going through a form of karewa marriage with Joginder Singh defendant No. 1, brother of Chanan Singh, no forfeiture of her husband''s estate could be presumed. This argument is devoid of merit as it is of no avail to Joginder Singh, who is the only appellant before us. He can succeed only on the merits of his own case and cannot ask the Court to allow his appeal on the basis of a contention which was available to Santi if she had appealed and then had successfully substantiated that contention on the record.

For reasons stated above, this Letters Patent appeal fails and is dismissed with costs.

Dua, J.

I entirely agree with my learned brother that the parties concerned are not shown to be governed by the rule of Chundawand and that this appeal deserves to be dismissed. I should, however, like to observe that in my opinion the description of the Chudawand rule of custom as "barbarous" in some of the reported decisions was not intended to convey the idea of the rule being ''''merciless", "ferocious'', "tyrannous" or "inhuman". The word "barbarous" appears to me to have been more likely used in the sense of its being rough, uncultured, un-polished and perhaps also in some cases as uncivilised. I entertain no serious doubt that this rule is possibly a relic of very old times and is clearly repugnant to the prevailing ideas of our society. Standards of culture, polish and of what is civilised conduct vary from age to age with the result that merely because in ancient times people did not look at this rule with the same feeling of disfavour as the later society did would hardly furnish a sufficiently cogent reason for minimising the more recent society''s dislike for, or, hostility towards, this rule. Instances are not wanting of social practices applauded in ancient times but looked at with extreme disapproval and even considered as clearly uncivilised and uncultured by the society in recent times.

And then the instances in which sons from different mothers are the same in number clearly fail to bring out of the contrast in practice between the two rules Chundawand and Pagwand and would, there-for, not afford much assistance. It is only when the sons from different mothers are unequal in number that the practical effect of the Chundawand rule stands out in contrast with the Pagwand rule.

With these few words I would concur with the decision given by my learned brother.