Gurdev Singh, J.:— The dispute in the present appeal relates to succession to the property of one Surjan Singh, a Rajput, of village Tapri, Tehsil Dehra, District Kangra, who died in October, 1953. The plaintiff-appellant, Shrimati Sukho, claimed one-third share of this property as widow of Surjan Singh's pre-deceased son Bhag Singh. Her claim was resisted by Balwant Singh defendant No. 2 on the plea that she had forfeited her right to inherit on account of her unchastity and remarriage with defendant No. 2. The concurrent finding's of both the Courts below are that the unchastity of Shrimati Sukho had been established, that, after the death of her husband, though she had been living in the same house as her father-in-law, she had given birth to a number of children from the loins of her husband's brother. Gian Singh defendant No. 1. The trial Court, however, held that in accordance with the custom, by which the parties were governed, Shrimati Sukho did not forfeit her right to succeed to her husband's share in Surjan Singh's estate because of her illicit intimacy with her husband's brother. Reliance in this connection was placed mainly upon a judgment, (Exhibit P. 36) of Mr. Tapp, the then District Judge of Hoshiarpur, which was approved by M.C Mahajan J. (later Chief Justice of India) while disposing of Regular Second Appeal No. 545 of 1944, Hari Singh v. Mst. Kalehlo R.S.A No. 545 of 1944, vide his judgment, Exhibit P. 33, dated 31st May, 1945.

2. The learned Senior Subordinate Judge, however, did not accept the view of the custom taken by the trial Court, and relying inter alia upon Question No. 47 of the Customary Law of Kangra district, held that Shrimati Sukho had forfeited her right to succeed to the property of Surjan Singh. The sole question for consideration before this Court is about the effect of the proved unchastity of Shrimati Sukho. The various judicial decisions on the point are not consistent, and it is urged on behalf of the respondent that the view taken by Mahajan J. (as he then was) in Regular Second Appeal No. 545 of 1944 referred to above, was not consistent with the statement of custom contained in Answer to question No. 47 of the Customary Law of Kangra district complied by L. Middleton, which runs as follows:—

“Q. 47. What is the effect of unchastity upon the rights of a widow to the estate of her husband? What is the effect of her remarriage?

Ans. Generally a widow on remarriage loses her estate, also unchastity, if proved, i.e, by the widow leaving her husband's house or by her having an illegitimate child, involves loss of her husband's estate. The Thakers, Rathis, Jats and Page: 731Girths of Nurpur Tahsil assert that remarriage involves loss of her estate, but if she had an illegitimate child she cannot be ejected from her husband's estate of which she retains possession, provided she lives in his house.”

3. The decision in Mahajan v. Mst. Purbo2, relates to a case from Kangra district, where a Division Bench consisting of Shadi Lal C.J and Broadway J. held that a Brahman widow of Hamirpur tahsil, Kangra district, forfeited her estate on her becoming unchaste and was not even entitled to maintenance. Another decision from that district is reported as Mst. Kesro v. Mst. Parbati3, where a distinction between forfeiture by unchastity and forfeiture on remarriage was pointed out, and a Division Bench of this Court ruled that among the gaddis of Kangra district there existed a custom by virtue of which a widow on becoming unchaste forfeited even life interest in the property of her husband. Since the view taken in the two Division Bench authorities quoted above is not consistent with the high authority of Mahajan J. (as he then was) in Regular Second Appeal No. 545 of 1944, and the point arising for decision is of frequent occurrence, I am of the opinion that it should be authoritatively settled by a larger Bench. I, accordingly, direct that the case be laid before the Honourable the Chief Justice for constituting a larger Bench to hear this appeal.

Mr. A.C Hoshiarpuri, for the Appellant.

Mr. D.N Aggarwal, for the Respondent.

JUDGMENT OF THE DIVISION BENCH

Gosain, J.:— As the point which arises for decision in Regular Second Appeals Nos. 736 and 1084 of 1959 is precisely the same, this judgment will dispose of both the aforesaid cases.

4. In the case covered by R.S.A No. 736 of 1959 the property in dispute admittedly belonged to one Surjan Singh, a Rajput of Tehsil Dehra of Kangra district. Surjan Singh had three sons, Pohlu, Gian Singh and Bhag Singh. Although Bhag Singh died sometimes in 1939 during the life time of his father, his widow Mst. Sukho continued to live in her father-in-law's house and from the loins of Gian Singh she gave birth to three children, one on 5th January, 1941, the second on Sth April 1950 and the third on 3rd April, 1953. It appears that her father-in-law as also Pohlo acquiesced in her conduct of cohabiting with Gian Singh for all these number of years. Pohlo died leaving Balwant Singh as his son who also acquiesced in the said conduct. In October 1953 Surjan Singh died and in May 1954 mutations of his estate, Exhibits D.8, D.9 and D.10, were sanctioned in favour of Mst. Sukho to the extent of one-third, Balwant Singh to the extent of one-third and Gian Singh to the extent of the balance one-third. On review, however, the name of Mst. Sukho was struck off from the aforesaid mutations with the result that on the 31st October, 1957 Mst. Sukho filed a suit for a declaration that she was the owner in possession of one-third of the property. This suit was contested by Balwant Singh who alleged that under custom, by which the parties were governed in the matter of succession, the plaintiff had lost her right of succession by reason of her unchastity. The trial Court, however, did not agree with the defendant's pleas and on the 28th November, 1958 it passed a decree in favour of the plaintiff as prayed for by her. In appeal by Balwant Singh this decree was reversed by the Senior Sub-Judge, Dharamsala, and this second appeal by Mst. Sukho is directed against the aforesaid appellate decree of the Senior Sub-Judge.

5. In the case covered by R.S.A No. 1084 of 1959 the property in dispute belonged to one Relu Brahman of Dehra Tehsil of Kangra District. Page: 732Relu had three sons Khushi Ram, Shibbu and Beli. 18 or 19 years back Beli pre-deceased his father Relu leaving his widow Mst. Bhago. It appears that Mst. Bhago thereafter carried on with Shibbu and out of his loins she gave birth to two children, one in 1950 and the other in 1952. It appears that Relu and Khushi Ram knew all about Mst. Bhago's relations, with Shibbu, but none of them objected to Mst. Bhago carrying on with Shibbu and procreating children out of his loins. On the 15th October, 1953 Relu died leaving a will and on this basis of the said will mutations Nos. 87 and 337 of his property were entered and attested in the names of Khushi Ram one-third, Shibbu one-third, and Mst. Bhago one-third. On the 15th January, 1957 Khushi Ram filed the present suit for possession of one-half of one-third share of the property left by Relu on, the allegations that Mst. Bhago having lost her right of succession by reason of her unchastity, was not entitled to any share in the property of Relu, and that he (the plaintiff) was entitled to one-half of her one-third share in addition to the one-third that he had already got in his own right: This suit was contested by Mst. Bhago who alleged that the custom as prevalent generally amongst agriculturists of Punjab as also in the Kangra District permitted the impugned course of conduct and that this conduct did not at any rate result in forfeiture of her rights of succession to her father-in-law's property. The trial Court dismissed the plaintiff's suit on the 30th May, 1958, but in appeal the learned Senior Sub-Judge, Dharamsala, set aside the said decree on the 16th April, 1959, and the second appeal in this Court is now directed against the aforesaid appellate decree. It may be mentioned here that the will was held by the S.S.J to be inoperative qua the property in suit which was found to be ancestral.

6. The parties in both the above cases are agreed that in the matter of succession and alienation of property they were at the relevant time governed by custom generally prevalent amongst the agriculturists of the Kangra District and the only point that arises for decision in both the second appeals is whether Mst. Sukho in the first case and Mst. Bhago in the second have, by reason of procreating children out of the loins of the younger brothers of their respective husbands, forfeited their right of succession to their father-in-law's property. The learned Senior Sub-Judge has held against them on this point on the short ground that answer to question No. 47 of the Kangra District Riwaj-i-am by L. Middleton, Settlement Officer, Kangra District, specifically provides that an unchaste widow would lose her rights in the estate of her husband. The aforesaid question is in the following terms:—

“Question 47.—What is the effect of unchastity upon the rights of a widow to the estate of her husband? What is the effect of her re-marriage?

7. The answer to the question is as follows:—

“Answer.—Generally a widow on re-marriage losses her estate; also unchastity, if proved, i.e, by the widow leaving her husband's house or by her having an illegitimate child, involves loss of her husband's estate. The Thakars, Rathis, Jats and Ghirths of Nurpur Tehsil assert that re marriage involves loss of her estate, but if she has an illegitimate child she cannot be ejected from her husband's estate of which she retains possession provided she lives in his house.”

8. The question and answer referred to above merely provide that an unchaste widow would lose her husband's estate. They do not at all provide for the forfeiture of their future rights of succession to the property of her husband's, father. It is well-settled that the custom cannot be extended by logic or analogy and it is for the parties relying on any particular custom on any particular matter to specifically allege and prove the said custom. In the present case we are not at all concerned with the Page: 733husband's estate because admittedly in none of the two cases now before us there was any estate left by the respective husbands of Mst. Sukho and Mst. Bhago. The succession that they now claim is only with respect to the estates of their respective fathers-in-law and this is on the basis that they are widows of their respective husbands and that they have the right to represent them in the matter of succession by reason of the right of representation generally prevailing amongst the agriculturists of Punjab. The custom does not provide anywhere that a widow by reason of her unchastity after the death of her husband will cease to be the widow of her husband. Obviously, therefore, the widow will continue to have her status as the widow of her husband and will as such be entitled to represent him in matters of future succession. In Mst. Kesro v. Mst. Parbuti (1959) 61 P.L.R 106, a Division Bench of this Court drew a distinction between the forfeiture by remarriage and forfeiture by unchastity and held that a widow does not cease to possess that status merely because she has become unchaste and that in spite of her unchastity she continues to be a widow of her deceased husband.

9. Mr. D.N Aggarwal, learned counsel for the respondents, conceded that under the Hindu law the position was that a widow who was unchaste during the lifetime of her husband was not entitled to succeed to him, but that subsequent unchastity of a widow did not have the effect of forfeiture of her estate because the estate once vested could not be divested. He, however relied on a Full Bench judgment of the Madras High Court in Ramaiya v. Mottayya A.I 1951 Mad. 954, in which it had been held that even after the enforcement of the Hindu Women's Rights to Property Act, 1937, ban on the succession of an unchaste widow to her husband's estate continued and that the said ban was also applicable to the widows of the predeceased sons. The point that fell for decision in that case was whether the widow of a predeceased son who was proved to be unchaste I during the lifetime of has husband was entitled to succeed to her father-in-law's property and the Bench found that she was not entitled to do so because her unchastity during her husband's lifetime debarred her from such a succession. The Bombay High Court has taken a different view in Akoba Laxman v. Sai Genu I.L.R 1941 Bom. 438. After giving our careful consideration we feel more inclined to follow the Bombay view rather than the Madras view, but it is not at all necessary in this case to record any final decision on the said point. On the facts arising in the two appeals before us neither Mst. Sukho nor Mst. Bhago can be held to have been unchaste during the lifetimes of their respective husbands. Both of them have thereafter procreated children out of the loins of one of the younger I brothers of their respective husbands, and we have no doubt that this by itself does not debar them from succeeding to the property of their respective fathers-in-law. Whatever view of their conduct one may take, on the moral side of the matter it must be taken as fully established that the custom generally prevailing amongst the agriculturists of Punjab looks with favour the conduct of a widow in entering into Karewa marriage with one of the brothers of her deceased husband and there have been a fairly large number of cases where a Karewa marriage of this nature has been held not to result in the forfeiture of the estates of the husbands of such widows. The matter was recently examined by a Full Bench of this Court in Charan Singh v. Gurdial Singh R.F.A 137 of 1954, and the said Full Bench by a majority judgment held that there was a custom generally prevalent Page: 734amongst the agriculturists of Punjab by virtue of which the widows marrying one of the younger brothers of their husbands did neither lose the estate of their husbands nor the future rights of collateral succession in the husband's family. In Mst. Indi v. Bhanga Singh 115 P.R 1900, Chatterji J., who delivered the judgment of the Division Bench in that case, observed at page 451 of the report as under:—

“Among Jats also no ceremonies are essential to a widow's remarriage, but this is more specially the case where the second husband is the brother of the first. By mere cohabitation the widow assumes the position of his wife and he of her husband. This must be due to the universal opinion held by Jats that in marrying her husband's brother the widow is doing the right and proper thing and what she is expected to do. It is allowable, then, to infer that as regards forfeiture there would be some differentiation between the consequences of an act of this nature and those of Karewa out of the family. The estate of the widow is only for life, and is primarily given to her by way of maintenance she gets this as a member of the family and loses it if she leaves the family for another. Would she be subjected to the same penalty if she continues a member of the family as before in spite of her remarriage? Probably custom which is founded on the good sense of the people and the notions of natural justice and equity prevalent among them would prevent the second husband if he is the sole brother of the deceased from saying to his brother's widow: ‘You have done what is regarded as the proper thing amongst us by marrying me. I now call upon you to surrender your first husband's property as the penal consequence of that act’. If there are more brothers than one the case of those who do not marry the widow is but little stronger than that of him who does marry her. I should be prepared from these considerations to prefer the evidence in support of the contention that such a marriage does not involve loss of the first husband's estate.”

10. It appears that Mst. Sukho in one case and Mst. Bhago in the other had really entered into some sort of Karewa marriage with Gian Singh in the one case and Shibhu in the other and that they were not merely having such sexual intercourse with them as would involve unchastity on their part. It further appears that in the pleadings they were afraid of admitting such a remarriage because according to para 31 of the Rattigan's Digest of Customary Law, remarriage necessarily involves forfeiture of the estate and unchastity does so only in some cases. It seems that they failed to distinguish between cases of a widow's remarriage with a stranger and that with the younger brothers of their deceased husbands, and apprehending that an admission of remarriage may involve forfeiture of the estate, they took the plea that they had not really remarried the younger brothers of their respective deceased husbands. There is no doubt that the case of the respondents in each of these cases was that these two widows had really remarried the younger brothers of their respective husbands, and this seems to be the true position also from the fact that both of them continued to live in the houses of their respective fathers-in-law and procreated children from the loins of one of the younger brothers of their respective husbands openly and to the knowledge of every one and without any objection from any quarters. Taking the pleadings as they are, it is, however, difficult for us to find that Mst. Sukho or Mst. Bhago had really remarried the younger brothers of their husbands and we do not, therefore, propose to rest the decision of this case on the aforesaid fact. For the purposes of this case we assume that their act of procreating children amounted to unchastity but we have not been shown any rule of custom on the basis of which it may be held that this conduct of theirs necessarily resulted in the forfeiture of their right to succeed to their fathers-in-law's property. Question No. 47 and its answer have obviously no applicability to the facts of the present case as they do not deal with the rights of unchaste widows claiming Page: 735property by right of representation. We are inclined to agree with the view taken in Smt. Dayal Kaur v. Balwant Singh I.L.R 1959 Punj. 1122, in which the facts were almost similar to those in the present case. For the aforesaid reasons, both the appeals succeed and are allowed. The judgments of the lower appellate Courts in both of these cases are quashed and those of the trial Courts are restored. In view of the peculiar circumstances of the cases, however, the parties are left to bear their own costs.

11. Tek Chand, J.:— I agree.

12. Appeals allowed.