Tek Chand And Another v. Mool Raj And Others

M. Srinivasan, C.J:— This is one of the appeals posted before the Bench along with R.S.A No. 196 of 1993 on the footing that a common question of law as to whether customary law in Punjab is abrogated by the provision of sections 4 and 30 of the Hindu Succession Act. We have disposed of R.S.A No. 196 of 1993 on 3.4.1997 holding that the said question did not arise for consideration in that case. But it is seen from the facts of this case that the question requires to be decided in this case.

2. The appellants in this second appeal were the plaintiffs in the suit No. 10 of 1980 on the file of Sub Judge First Class Kangra. The Prayer in the suit is for declaration that the plaintiffs are owners in possession of the suit property comprised in specified Khasra numbers to the extent of ⅔rd share therein and for an injunction restraining the defendants from interfering with their possession. Alternatively it is prayed that the plaintiffs must be granted a decree for possession of their share. According to the plaint, the property belonged to one Chemaru who executed a Will on 29.12.1967 bequeathing ⅔rd of the same to the plaintiffs who are his grand sons through his son Prabha and ⅓rd to his wife Chiri for enjoyment during her lifetime with vested remainder in favour of the plaintiffs. The said Chamaru died in February 1970. In the jamabandi proceedings in the year 1978-79 the plaintiffs were recorded as owners of ⅓rd and defendants No. 1 to 3 were recorded as owners of another ⅓rd while the 4th defendants is recorded as owner of the remaining ⅓rd. Defendants No. 1 to 3 are the sons of Punnu, another son of Chamaru while the 4th defendant is Chiri, wife of Chamaru. Chamaru had another wife Jaiwanti for whom there was no provision in the Will. She did not also claim any share in the property of Chamaru. The plaintiffs have been repeatedly seeking correction of the registers claiming that defendants No. 1 to 3 are not entitled to any part of the property, but the latter had been trying to partition the land by making a claim to ⅓rd share therein. That has necessitated the filing of the suit by the plaintiffs. The defendants resisted the suit on several grounds. According to the defendants, the suit is barred by limitation and the plaintiffs are estopped by their conduct from making a claim to the suit property. It is also their contention that Chamaru never executed the Will and if he had executed any Will it is against the custom prevailing in the area and it is not valid. It is also their contention that mutation was effected for ⅓rd share in favour of defendants No. 1 to 3 pursuant to family settlement and the parties are bound thereby.

3. The trial court held that the parties are in joint possession and that the Will put forward by the plaintiffs was proved to be genuine. It is also found that the mutation in 1978-79 did not affect the title of the parties and it was without any authority and, therefore, void ab initio. It was further held that the custom alleged by the defendants was not proved at all. Though the property was ancestral, by virtue of the Will executed by Chamaru, title has passed on to the plaintiffs with regard to the ⅔rd share and the 4th defendant with regard to ⅓rd for life estate. The family settlement set up by the defendants has not been proved. On the above findings, the trial court granted a decree holding that the plaintiffs are owners of the ⅔rd share in the property and in that for recovery of possession of ⅓rd share which was mutated in favour of defendants No. 1 to 3.

4. On appeal, the District Judge, Chamba Division, reversed the conclusions of the trial court on the following findings. The parties are governed by Kangra custom and the property being ancestral the Will cannot have any validity as Chamaru had no right to alienate the property by way of a Will. The mutation in favour of defendants No. 1 to 3 is illegal and void in view of the fact that ⅓rd share in the property will devolve on Punnu, the other son of Chamaru, and not on defendants No. 1 to 3. Consequently, the appellate court set aside the judgment and decree of the trial court and passed a decree to the effect that the property will go to the father of defendants No. 1 to 3 and after his death it will go to the said defendants.

5. The aggrieved plaintiffs have preferred this second appeal. At the out set it must be pointed out that the decree passed by the appellate Judge is wholly unsustainable. There was no claim before him by Punnu, the father of defendants No. 1 to 3. He was not a party to the proceedings at all. The suit was filed by the appellants herein who made a claim under the Will executed by Chamaru on 29.12.1967 Chamaru died in February 1970 and Punnu never challenged the validity or genuineness of the Will; nor did he claim to be in possession of the property at any time. It was only defendants No. 1 to 3 who got mutation in their favour with regard to ⅓rd share claiming to be entitled to the property. Once the court found that defendants No. 1 to 3 are not entitled to the property, a decree should have been granted to the plaintiffs who were claiming the same pursuant to a Will executed by Chamaru. If at all, the only person who could have challenged the Will was Punnu. In the absence of his challenge against the Will, the same will continue to be effective. The plaintiffs having taken possession on Chamaru's death in accordance with the Will, cannot be dispossessed by defendants No. 1 to 3 who have no right to the property during the lifetime of Punnu. Hence the appellate Judge is clearly in error in passing a decree declaring that the property will go to Punnu and after his lifetime to defendants No. 1 to 3.

6. Before considering the main question of law which arises in this case it is better to dispose of the other questions which depend upon the facts of the case.

7. The trial court has categorically found that there is absolutely no evidence to prove the custom alleged by the defendants. In para 17 of the judgment, the trial court has pointed out that the statement of DW 3 (Mool Raj) is that the parties are Trakhan by caste and they prepared and repaired agricultural implements of villagers and received Kalsthi from the villagers. The following passage in the said paragraph is relevant:

“He is silent about the custom of alienation and succession in their trible. He is also silent whether any Will was set aside by any one executed by such Will in their trible. He did not cite any example where this custom was followed or respected/accepted by the courts. He admitted that there are 10-12 families in the village but no one was produced in support of the case by the defendants. No judicial pronouncement was produced. On the other hand, plainitffs have strongly denied the existence of any such custom. Mere statement of defendant Mool Raj (DW 3) is not sufficient to hold the existence of custom amongst Tarkhans of Kangra Teshil and this issue is decided against the defendants.”

8. Unfortunately the appellate Judge has without considering the evidence on record proceeded on the footing that there is a custom prevailing amongst the parties. He has placed reliance merely on question No. 85 of Kangra Customary Law and the answer thereto and proceeded to observe that in view of the said answer the parties in the appeal were covered and governed by the custom in case of alienation. This observation of the appellate Judge is wholly unwarranted and against the provisions of law. Any custom set up by the parties has to be explicitly pleaded and proved. In this case the learned appellate Judge has merely relied on a text book without any evidence that the relevant question and answer would apply to the caste to which the parties belonged. When there is absolutely no evidence on record to proved the applicability of the custom, the appellate Judge ought not to have held that the customary law would apply in this case.

9. As regards the genuineness of the Will, the trial court has found categorically that it was proved to be genuine and there does not appear to have been any challenge to that finding in the appellate court. The appellate Judge has not gone into the question of genuineness of the Will at all.

10. As regards the plea of family settlement and consequent estoppel against the plaintiffs, there is no evidence whatever to prove the same. The findings given by the trial court were not challenged before the appellate court and we do not find any justification to interfere with the findings of the trial court.

11. The resultant position is that there is a genuine Will executed by Chamaru by which he has bequeathed ⅔rd share of the property to the plaintiffs and ⅓rd to his wife Chiri to be enjoyed by her for her life and the remainder to be taken by the plaintiffs.

12. We have held that there is no proof of the applicability of the custom to the parties in this case. Even assuming that the law set out in Customary Law of the Kangra District or Rattgan's Digest of Customary Law will apply, the question will be whether the said customary law continues to be in force after the passing of the Hindu Succession Act, 1956.

13. In Kartari Devi v. Tota Ram, 1992 (1) Sim. L.C 402, a Judge of this court has expressed the view that in view of section 30 of the Hindu Succession Act read with section 4 of the Act, any custom prohibiting testamentary succession by way of a Will of a coparcenary property stands abrogated. The learned Judge also observed that a male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property. The learned Judge placed reliance upon the Full Bench judgment of Calcutta High Court in Commissioner Of Wealth-Tax v. Sampatrai Bhutoria & Sons., 1981 TLR 1550 and the decision of the Division Bench of Madras High Court in S.V Sundaresan v. Assistant Collector, 1983 TLR 1438. The learned Judge has also held that the decision of the Punjab High Court in Kaur Singh Gajjan Singh v. Jaggar Singh Kehar Singh, AIR 1961 Punjab 489 and Joginder Singh Kundha Singh v. Kehar Singh Dasaundha Singh, AIR 1965 Punjab 407 were not applicable to the said case as the interpretation of section 30 read with section 4 of the Act were not directly involved therein. On the same footing, the learned Judge distinguished the decision in Sundara Adapa v. Girija, AIR 1972 Mysore 72.

14. Another learned Judge of this court could not agree with the aforesaid judgment and referred the question to a Division Bench in R.S.A No. 196 of 1993, to which we have already made a reference. In his order of reference, the learned Judge placed reliance on the ruling of the Punjab High Court in Kaur Singh Gajjan Singh v. Jaggar Singh kehar Singh, AIR 1961 Punjab 489 and Joginder Singh Kundha Singh v. Kehar Singh Dasaundha Singh, AIR 1965 Punjab 407. The learned Judge has also made a reference to the judgment in Jagat Ram v. Makhan Ram, (1974) (4)-Sim L.J 83, in which customary law of Kangra District in respect of alienation of ancestral property had been accepted and the case was examined in respect of execution of a Will and its validity. The learned Judge formulated the question for reference as follows:

“Where the parties to the list are undoubtedly governed by custom of District Kangra, whether the alienation made by way of a Will cannot be challenged in the light of the provisions contained in sections 4 and 30 of the Hindu Succession Act?”

Through the question is cast differently, it only means whether the customary law of district Kangra in relation to alienation made by a Will is abrogated by the provisions of sections 4 and 30 of the Hindu Succession Act.

15. The Hindu Succession Act, 1956 came into force on 17.6.1956! It is an Act to amend and guide the law relating to intestate succession among Hindus. Section 2 makes the Act applicable to any person who is a Hindu by religion in any of its forms or development. In the Explanation, specific reference is made to Buddhists, Jainas or Sikhs by religion and their children, legitimate or illegitimate as specified therein. There is no dispute in this case that the parties are Hindus and they will be normally governed by the provisions of the Hindu Succession Act. Section 3(1)(d) defines the “expression “custom” and “Usage” as signifying any rule which, having been continuously and uninformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family, provided that the rule is certain and not unreasonable or opposed to public policy, and provided further that in the case of a rule applicable only to a family it has not been discontinued by the family. Section 3(1)(g) states that a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. Section 4 sets out the overriding effect of the Act in the following terms:—

“4. Overriding effect of Act.— (1) Save as otherwise expressly provided in this At,—

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.”

16. Section 6 relates to devolution of interest in coparcenary property. Section 7 deals with devolution of interest in the property of a Tarwad, Tavazhi, Kutumba, Kavaru or Illom. Section 8 contains general rules of succession in the case of males. Section 14 relates to property of a female Hindu and declares it to be her absolute property. Section 15 deals with general rules of succession in the case of female Hindu. Section 30, which is also relevant in this case, reads as follows:—

“30. Testamentary succession.-Any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, (39 of 1925), or any other law for the time being in force and applicable to Hindus.

Explanation. - The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a Tarwad, Tavazhi, Illom, Kutumba or Kavaru in the property of the Tarwad, Tavazhi, Illom, Katumba or Kavaru shall,. notwithstanding any thing contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section.”

17. A combined reading of sections 4 and 30 clearly shows that a male member of Mitakshara coparcenary is entitled to dispose of by Will or other testamentary disposition his interest in the coparcenary property notwithstanding any customary law or any other law to the contrary. The Explanation to section 30 is of great significance. It abrogated the rule of Mitakshara law and lays down in explicit terms that the interest of a male Hindu in a Mitakshara coparcenary property is deemed to be a property capable of being disposed of by Will notwithstanding anything contained in any provision of the Act or any other law for the time being in force. The words “any other law for the time being in force” would undoubtedly include customary law.

18. In Mayne's Hindu Law (Twelfth edition), pages 996 and 997, the following passage is found:

“Wills or Codicils were unknown in ancient Hindu law. The first legislative dealing with the execution as Wills and their interpretation was the Indian Succession Act, 1865. It did not however apply to Hindus. In 1870 the Hindu Wills Act (Act 2 of 1870) was enacted. It extended the provisions of the Succession Act of 1865 to some specified Hindu Wills and Codicils only. Act VI of 1881 i.e, the Probate and Administration Act, allowed the granting of Probate and Letters of administration to the estate of a deceased person to whom the Indian Succession Act, 1865 did not apply. That Act, therefore, applied to Wills made by Hindus. In 1925, the Indian Succession Act was passed repealing the 1865 and 1870 Acts but incorporating the provisions thereof in it. (vide sec. 57(a) and (b) Schedule III). In 1926, the Act was amended and the provisions of sec. 63 of the Indian Succession Act, 1925 were extended to all Hindu Wills and Codicils which were made on or after 1.1.1927 In 1929 it was further amended and the provisions of the 1925 Act specified in Schedule III of the Act were made applicable to all Hindu Willis and Codicils made on or after 1 January, 1927

The provisions of the Indian Succession Act, 1925, specified in the III Schedule which apply to Wills and Codicils of Hindus, are sections 59, 61 to 64, 68, 70, 71, 73 to 90, 95, 96, 98, 101 to 117, 119 to 190.

3. Prior to this Act, a Hindu governed by Mitakshara could dispose of his property by a Will or other testamentary disposition if it was his separate property; and secondly if he was the sole surviving coparcener of the joint family property. Under Dayabhaga law as there was no right by birth in the other coparcenary members of the family till the father's death, the father was in a position to dispose of by Will the whole of the joint family property. Now under the present section, according to the Explanation, a Hindu member of a coparcenary governed by the Mitakshara of a member of a tawazhi, tarwad, illom, kutumba or kavaru is given for the first time a right enabling him to dispose of his undivided interest in the property. Thus the disability of a coparcener in disposing of his undivided interest in the property by Will or other testamentary document under the old Hindu law is removed by this section. According to section 4, any custom inconsistent with any provision of this enactment, is abrogated. It has been held however that a custom in Punjab prohibiting bequest of an undivided interest is not prohib-inconsistent with this provision as this is only an enabling provision and this act deals only with matters of succession and not matters of alienation. (Kaur Singh v. Jaggar Singh, 1961 Punj. 489; Joginder Singh v. Keher Singh, 1965 Punj 407; Bahadur Chand v. Ashok Sharma, 1974 Punj 52.)

In the expression “or any other law for the time being in force”, the word “law” will include any statutory law or textual law or customary law. It would therefore follow that the customary law in Punjab where there was prohibition regarding the power of alienation which was the subject-matter of the above referred Punjab cases, would also be law in force within the meaning of this section and section 30 would prevail notwithstanding such law. Therefore, the decisions that this saction did not abrogate the customary law of Punjab do not seem to be correct. The reasoning in the said decisions that this act only deals with succession and not with alienation is faulty as this provision expressly deals with testamentary disposition.”

19. It is to be noted that the learned author has taken into consideration the rulings of the Punjab and Haryana High Court in Kaur Singh v. Jaggar Singh (1961 Punjab 489), Joginder Singh v. Keher Singh (1965 Punj 407) and Bahadur Chand v. Ashok Sharma, (1974 Punj. 52), and observed that the said decisions do not seem to be correct. We are of the opinion that the view expressed by the learned author in that passage is in accordance with law laid down by the Supreme Court and also other High Courts, including the High Court of Punjab and Haryana.

20. In Mst. Taro v. Darshan Singh (AIR 1960 Punj 145), a Division Bench of that High Court held that where the last male holder of the property in dispute died leaving behind him his widow and daughter and by his Will he has bequeathed the landed property to his daughter, the reversioner have no locus standi after the Act came into force to bring a suit for usual declaration that after the demise of the widow, the alienation made by the Will would not affect their reversionary rights. The reason, however, was that whether there be a Will or not, the daughter was the next heir after the demise of the widow and the reversioners do not come in till the entire line of daughter becomes extinct. But while dealing with the question whether the customary law stood abrogated, the Bench said that by virtue of sections 2 and 4 of the Hindu Succession Act, Punjab Agricultural custom, so far as it was applicable to Hindus, was no longer in force so far as the matter of succession are concerned, which are governed by the provisions of the Hindu Succession Act. Thus the Division Bench disposed of the case on two premises; (1) that the customary law stood abrogated by the provisions of Hindu Succession Act and (2) even in the absence of a Will the daughter was a legal representative of the deceased male Hindu and that too under the provisions of the Act.

21. In Smt. Banso v. Karam Singh (AIR 1961 Punj 45), another Division Bench of the High Court held that the rule of Punjab customary law which was inconsistent with the provisions of the Hindu Sucession Act stood nullified by virtue of the language of section 4(1)(b) of the Act. In fact, the Hindu Succession Act came into force during the pendency of the suit in that case. The court held that the Act was applicable to such suit also and consequently refused to grant the relief prayed for by the reversioners.

22. In Kaur Singh v. Jaggar Singh (AIR 1961 Punj 489), on which strong reliance is placed by the defendants, a Division Bench held that a male holder (in that case a Jat belonging to agriculatural tribe) governed by the Punjab customary law is not free to dispose of his ancestral immovable property by Will under section 30 of the Hindu Succession Act and his reversioners have therefore a right to question and avoid such a disposition. The Bench observed that nowhere in the Act any restriction touching the powers of a male proprietor governed by the customary law of Punjab in respect of ancestral immovable property have been abrogated and that a right of alienation does not depend upon the right of inheritance as a right of alienation has only reference to the nature of the property. According to the Bench, the mere fact that the Act is enacted for the purpose of succession would not lead to the conclusion that in fact it was dealing with the right of alienation with regard to different types of property.

23. It is seen from the report that the testator in that case was the last male holder of the property in dispute and he dies in 1959 without leaving any male or female descendant or widow. There was no contention before the Bench that the property in the hands of a last male holder who is not a member of the coparcenery and who had no male issue to here with him was not ancestral property in his hands and should be treated as a separate property. Hence the Bench proceeded on the footing that the property continued to be ancestral property in which the last male holder had no right of disposition by way of Will. After referring to the provisions of the Hindu Succession Act, the Bench observed that section 4 of the Hindu Succession Act merely provided for over-riding effect in respect of matters dealt with by it. Though the Bench took note of the provisions of section 30 and the Explanation thereto, it did not give any effect to the specific language of the Explanation. We are unable to accept the reasoning of the Bench in that case that the legislative intent was not to do away with the limitation imposed by the Punjab customary law on the Hindu male holder in respect of ttestamentary disposition of immovable property. With respect to the learned Judges of the said Bench, we are of the opinion that the legislative intent is very clear in that the limitations on the power of a male Hindu to dispose of his share in the ancestral property have been removed by the provisions of Section 30 read with the Explanation.

24. In Hans Raj v. Dhanwant Singh (AIR 1961 Punj 510), a Division Bench of that court held that section 4 of the Hindu Succession Act does away with the rule of custom so far as succession is concerned and, therefore, after the Hindu Succession Act came into force, no Hindu can be said to be governed by the rule of customary law and the succession to the property held by a Hindu must be regulated by the provisions of the Hindu Succession Act.

25. In Ishwar Dass v. Raj Kumar (AIR 1964 Punj 275) a Single Judge of the court held that section 9 of the Punjab Debtors Protection Act will not apply to the Hindus governed by the provisions of the Hindu Succession Act as the said section was applicable only when succession is governed by rule of custom. Reliance is placed by the learned Judge upon the judgment of the Division Bench in Hans Raj v. Dhanvant Singh (AIR 1961 Punj 510).

26. In Kalu v. Nand Singh (AIR 1974 P & H 50), the judgment followed the rule of the Division Bench in Kour Singh v. Jaggar Singh (AIR 1961 Punj. 489) and held that the Will executed by the male holder with respect to ancestral property was not valid in view of customary law.

27. In Pritam Singh v. Asstt. Collector, 1976 TAX L.R 569, a Full Bench of the Punjab and Haryana High Court had occasion to consider the effect of the provisions of the Hindu Succession Act. The Full Bench held that by virtue of section 4 of the Hindu Succession Act the Punjab agricultural custom so far as it was applicable to Hindus in matters of succession has been completely abrogated and now no Hindu is governed by rules of customary law in matters of succession to the property. The Full Bench also said that the Hindu Succession Act has not abolished the Joint Hindu family and the Joint Hindu family property and it does not interfere with special rights of those who are members of the Mitakshara coparcenary except in the manner and to the extent mentioned in sections 6 and 30 of the Act. The Full Bench took into consideration the earlier judgments of that court in Banso v. Charan Singh (1961 Punj 45), Hans Raj v. Dhanwant Singh (1961 Punj 510) and Joginder Singh v. Kehar Singh (AIR 1965 Punj. 407). It will be advantageous to refer to the following passages in the judgment of the Full Bench:

“35. The legal position, therefore, that emerges is that prior to the passing of the Hindu Succession Act, 1956, where the parties were Hindus, the Hindu law would apply in the first instance in matters regarding succession, and whosoever asserted a custom at variance with Hindu law must prove it and if he failed to do so, then the rule of decision must be personal law of the parties. The Hindu Succession Act came into force from June 17, 1956, and its section 4 abrogated any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act with respect to any matters for which provision is made in this Act. By virtue of this Section 4, the Punjab agricultural custom so far as it was applicable to Hindus in matters of succession has been completely abrogated and now no Hindu is governed by rules of customary law in matters of succession to property. After the passing of the Hindu Succession Act, all the Hindus, as defined in Section 2 of that Act, in matters of succession are governed by Hindu law and the provisions of the Hindu Succession Act, 1956. The Hindu Succession Act has not abolished Joint Hindu family and the Joint Hindu family property and it does not interfere with the special rights of those who are members of a Mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the Act. After the coming into force of this Act, all Hindus who were previously governed by rules of customary law in matters of succession, like the other Hindus, form joint and undivided Hindu families including Mitakshara coparcenary, and the sons, grand-sons and great-grandsons of the holder of the joint or coparcenary property for the time being, acquire interest therein by birth.

36. Dr. D.N Awasthy, the learned counsel for the respondent, argued that agricultural tribes, such as Jats, Gujars, Rajputs, Sainis, Ahirs etc., were governed by agricultural custom and the mere fact that the custom was abolished would not go to show that they are governed by Hindu Law. He also argued that the concept of coparcenary is not known to custom and that custom could not be given up by mere declaration to that effect by any person concerned. In support of this contention, he cited certain decisions. None of the decisions quoted by him is relevant to the point in issue. The decisions quoted by him Gujar v. Sham Dass, 107 Pun Re 1887 (FB), Jowala v. Hira Singh, 55 Pun Re 1903 (FB), Roda Hira v. Harnam, 18 Pun Re 1895 (FB) and Karnail Singh v. Naunihal Singh, AIR 1945 Lah 188 (FB) deal with powers of alienation of property by a sonless proprietor and Sundar v. Saligram, 26 Pun Re 1911 (FB) deals with the powers of alienation of a widow governed by customary law. The decision in Joginder Singh v. Kehar Singh, AIR 1965 Punj 407 (FB) is also irrelevant as it deals with powers of alienation of a person governed by customary law and Section 14 of the Hindu Succession Act. No decision relating to the point in issue was cited by the counsel for the respondent. The contention of the counsel for the respondent that because once upon a time agricultural tribes in the State of Punjab were governed by custom, therefore, they could not be governed by Hindu law is absolutely wrong and is rejected. Even before the passing of the Hindu Succession Act the law was that the members of the agricultural tribes who gave up agricultural and started living in cities and joined service or started business were hold to be governed by their personal law instead of custom. In this respect reference may be made to Raghbir Singh Sandhawalia v. Commr. of Income-tax, AIR 1958 Punj 250, Sunder Singh v. Commr. of Income-tax, AIR 1942 PC 57 and Indra Singh v. Commr. of Income-tax, AIR 1943 Pat. 169. By section 4 of the Hindu Succession Act, custom in matters of succession has been abolished as held above. Section 4 of the Hindu Marriage Act, which is also in the same terms as section 4 of the Hindu Succession Act, also abolished custom in matters of marriage, betrothal, divorce and bastardy. Section 4 of the Hindu Adoptions and Maintenance Act abolished custom in matters of adoption and maintenance and family relations. Section 5 of the Minority and Guardianship Act, 1956 abolished custom in matters of guardianship, minority and family relations.”

28. We do not think it necessary to refer to the F.B judgment of the Calcutta High Court in Commissioner of Wealth Tax v. Sampatrai, 1981 Tax. L.R 1650 and that of the Division Bench of Madras High Court in S.V Sundaresan v. Assistant Controller Of Estate Duty., 1983 Tax L.R 1438 in detail. The relevant passages in those two judgments have been extracted by the learned Single Judge of this Court in her judgment in Kartari Devi v. Tota Ram, (1992 (1) Sim L.C 402.

29. Now we shall advert to the judgments of the Supreme Court on this questions. In Smt. Mahli v. Rajbir Singh, (1971) 3 SCC 958, the father of the appellant before the Supreme Court gifted ancestral land to the extent of ⅔rd share to his grandson in 1954 and executed a Will with respect to the remaining ⅓rd share in favour of respondents No. 1 and 2 before that court. The appellant challenged the alienation claiming to be an heir on the ground that the gift was not valid because possession has not been delivered and that she was entitled to, challenge the Will as she had become an heir under the Hindu Succession Act. With respect to the gift it was found by the court that it has satisfied all the requirements of a valid gift and possession had already been delivered and, therefore, it was valid. As regards the Will, the court held that the Hindu Succession Act had not made any change in so far as the right of a female to challenge the alienation made by the last male holder of the ancestral land was concerned. Referring to the provisions of section 30 of the Act, the court held that the Punjab customary law is a law for the time being in force within the meaning of section 30 and applicable to the testator with the result that he could alienate his property except for immoral purpose. The court said that alienation included any testamentary disposition of property and observed that the fact that the appellant before the court was an heir under the Hindu Succession Act did not bring her within the provisions of section 6 of the Punjab Custom (Power to Contest) Act, 1920.

30. In Daya Singh v. Dhan Kaur, (1974) 1 SCC 700 : AIR 1974 SC 665, the court held that where a Hindu widow governed by the customary law of Punjab had succeeded to the estate of her husband in 1933, died after the coming into force of the Hindu Succession Act, but was not then in possession of the estate, the succession to the estate would be governed by section 8 of the Act and not by the customary law of Punjab which was in force at the time of her husband's death. The court approved the judgment of Punjab High Court in Banso v. Karam Singh (AIR 1961 Punjab 45), and Kuldip Singh v. Karnail Singh (AIR 1961 Punj 573). The court held that the time when succession opened, the law in force was the Hindu Succession Act and not the customary law and, therefore, the former is applicable.

31. In Manshan v. Tej Ram (1980 Supp SCC 367 : AIR 1980 S.C 558), the last male holder governed by the general Punjab custom gifted his property to his two daughters. A suit was filed in 1947 by the collaterals as last male holders for a declaration that the properties were ancestral in the hands of Chaudhary and the gift made by him in favour of his daughters could not ensure beyond his lifetime. A declaratory decree was passed to the effect that whosoever be the next reversioner to the estate of the last male holder at the time of the death would get the property. The last male holder died after the coming into force of the Hindu Succession Act and the heirs of his collateral claimed the property in respect of which declaratory decree was passed. The court held that on the death of the last male holder his daughters in superession of the prevalent custom became the preferential heirs and were entitled to inherit his property. The court observed that the custom which prevented the daughters from inheriting the property got superseded by the provisions of the Act and hence the heirs of the collateral were no longer entitled to succeed to the property.

32. In Smt. Dipo v. Wassan Singh, (1983) 3 SCC 376 : AIR 1983 S.C 846, the court held that the property in the hands of the last male holder in a Hindu family is non-ancestral if there is no member of the coparcenary to share it with him and if he had no male issue.

33. In the light of the aforesaid rulings, if the provisions of section 30 of the Hindu Succession Act are looked into, it is clear that the legislature had intended and brought about a change in the right of a male member of Hindu Mitakshara coparcenary viz-a-viz disposition of property by Will or other testament. The language is so specific that a male Hindu in a Mitakshara coparcenary can dispose of his interest in the coparcenary property by a Will or other testamentary disposition notwithstanding anything contained in the Act or any other law for the time being in force. If a member of Mitakshara coparcenary can dispose of his interest by a Will, a fortiori, the last male holder who has no other coparcener to share the property with him, is entitled to dispose of the same by a testament. In fact the Supreme Court has held clearly in Smt. Dipo's case that the character of the property in the hands of a such last male holder is non-ancestral and hence the restriction imposed by the customary law against alienation of ancestral property will not apply to such non-ancestral property. Consequently, the provisions of section 30 are automatically applicable to such male Hindu.

34. Thus the customary law relating to alienation by testamentary disposition stands abrogated by the provisions of section 30 of the Hindu Succession Act, read with section 4 thereof. Hence we agree with the view expressed by the learned Single Judge in Kartari Devi v. Tota Ram (1992 (1) Sim. L.C 402).

35. There is no material on record in this case as to whether the property dealt with by Chamaru in his Will was only his interest in Mitakshara coparcenary property or whether there was a coparcenary among Chamaru, Prabha and Punnu during the lifetime of Chamaru. There is a recital in the Will that Punnu was living separately from Chamaru, his father, for more than 20 years and he was never obeying the commands of his father. Of course, it is not possible to draw an inference from the recital in the Will whether the property dealt therein was coparcenary property. But it is very clear that inspite of a lapse of more than 27 years after the death of Chamaru, there is no challenge by Punnu against the Will executed by Chamaru. In such circumstances, it is not possible for this court to recognise or declare any right of Punnu. It is also to be noted that the bequest in favour of Chiri under the same will was never challenged by the defendants or anybody else. Nor has the other widow Jaiwanti ever made any claim to any part of the property.

36. In the circumstances, the plaintiffs are entitled to a decree as prayed for by them on the strength of the Will executed by Chamaru.

37. We must also hold that the mutation in favour of defendants No. 1 to 3 will not confer any title on them and there is no question of any estoppel against the plaintiffs on the basis of such mutation.

38. The trial court has also found that there is no evidence on record to the effect that the plaintiffs were present when the mutation was attested.

39. Hence this second appeal is allowed and the judgment and decree passed by the District Judge, Chamba Division, in Civil Appeal No. 517/85, 398/86, 24/88 are set aside and the judgment and decree of the Sub Judge, Ist Class, Kangra in Civil Suit No. 10 of 1980 are restored. There will be no order as to costs.

40. Appeal allowed.