Holding

No special custom exists among Dhaliwal Jats of Tehsil Muktsar that allows a widow remarrying her deceased husband's brother to retain her life interest; the widow forfeits her interest upon remarriage.

Summary

Sada Kaur, a widow of a Dhaliwal Jat from Tehsil Muktsar, remarried her deceased husband's younger brother in the Karewa form. The brothers of the deceased sued for a declaration that her remarriage caused forfeiture of her life interest in her first husband's estate, seeking a two‑thirds share. The central issue was whether a special custom among Dhaliwal Jats of Muktsar allowed a widow to retain her interest after such remarriage, contrary to the general custom that any remarriage results in forfeiture. The Supreme Court examined the riwaj‑i‑am compiled by Currie (1915) and Rattigan's Digest, both of which state that a widow forfeits her interest upon remarriage, even to the brother, and found no evidence of a distinct local custom. The Court held that no special custom existed for Dhaliwal Jats of Muktsar, and the widow’s right was extinguished upon remarriage. Consequently, the appeal was dismissed.

Issues considered

Whether a universal custom among Sikh Jats of Punjab, or a special custom among Dhaliwal Jats of Tehsil Muktsar, permits a widow who remarries her deceased husband's brother in the Karewa form to retain her life estate in the first husband's property.
Whether the entries in the riwaj‑i‑am and Rattigan's Digest, as evidence of custom, are conclusive or can be rebutted in this case.

Legislation cited

Indian Evidence Act, 1872s. 35

Subjects

Hindu lawcustomary lawwidow remarriageforfeiture of life interestDhaliwal JatsPunjab customriwaj-i-amRattigan's Digestsuccessionproperty law

Judgment

85

A.

SADA KAUR
v.
BAKHTAW AR SINGH AND ORS.
July 24, 1980
[A. C. GUPTA AND N. L. UNTWALIA JJ.J
Hindu Law:__Dhaliwal lat Sikhs of Muktsar-Widow marrying her late /ms-
band's brothe1~If forfeits life interest in the estate of her deceased husband-
Riwaj-i-am and Rattigan's Digest of customary law in Punjab-In case of
co!!flict which should prevail. c
The first three respondents and the deceased husband of the appellant who
were Dhaliwal jats of Muktsar Tehsil in Ferozepur District of Punjab were
brothers. After the death of her husband the appellant married the your:ger
bwther of her late husband in Karewa form. The first two respondents filed
a suit for a declaration that having married for the second time, .the appellant
had forfeited her interest in her deceased husband's estate and· that they were
entitled to two-third share of the land in her possession.
The appellant on the other hand claimed that they were governed by cus-
tomary law and according to their custom a widow marrying her deceased
husband's brother did not forfeit her interest in the estate of her deceased
husband. In replication the respondents stated that according to the custom
governing Dhaliwal jats of Tehsil Muktsar a widow remarrying even her
deceased .husband's brother forfeited her right in the estate.

The trial Court declined to grant the declaration; but the District Judge
allowed the plaintiffs' appeal. The High Court did not accept the appellant's
claim that there was a special custom.
Dismissing the appeal
F
. HELD: The High Court was right in holding that there was no special
custom among Dhaliwal jats of Tehsil Muktsar which. permitted a widow, on
remarriage with her deceased husband's brother. to retain her interest in the-
estate of her deceased husband.
.
It is well-known that custom in the Punjab changes from district to district,
tehsil to tehsil and pargana to pargana. [88A] · G·
-1 It has been held by this Court that entries in the riwaj+am compiled in
1915 by Currie, Settlement Officer, are relevant evidence und'er section 35 of the
Evidence Act. [88F-G]
Mahant Salig Ram v. Mst. Maya Devi, [1955] I SCR 1191' and· lai Kaur
and others v. Sher Singh and others, [1960] 3 SCR 975 referred to.
Entry 47 of the riwaj-i-am states that whenever a widow re-marries, even
if she marries the brother of her deceased husband, she loses her right to her
deceased husband's estate and that the estak reverts at once to his agnate~.
86 SUPREME COURT REPORTS [1981] I S.C.R.

..A As regards the effect of re-marriage, all tribes that admit widow re-marriage
agree that no matter whom the widow marries she forfeits all rights to her de-
ceased husband's .estate. [89D]

Another authoritative compilation is Rattigan's Digest of Customary Law
in the Punjab. But when custom as recorded in the riwaj-him is in conflict
with the general custom as recorded in Rattigan's Digest or ascertained other-
wise, the entries in the riwaj-i-am ·would ,ordinarily prevail. On this aspect of
the custom there is no conflict between the two because Rattigan's Digest also
states that in the absence of custom, the re-marriage of a widow causes a for-
feiture of her life interest in her first husband's estate which then reverts to
the nearest heir of the husband. (90E-F]

One of the exceptions recorded to this general custom, however, is that
_J
·C among certain tribes re-marriage in the Karewa form with the brother of the
deceased husband does not cause a forfeiture of the widow's life estate in the
property of her first husband. But among the cases· cited. in support of the
special custom relating to Sikh jats of certain districts of Punjab there is no
mention of Dhaliwal jats of Tehsil Muktsar. It was for the first time that in
the 12th edition of Rattigan's Digest published long after his death that an
exception was added that by custom among the Sikh jats of the Punjab a 'widow
D does not forfeit her life estate in her deceased husband's property by reason of.
her remarriage in Kare.wa form with her husband's brother, whether h:! be the
sole surviving brother or there are other brothers as well of the deceased. Sant
Singh• v. Rari Bai (AIR 1924 Sindh 17=76 Indian Cases 408) on which this
exception is purported to be based does not Jay down any such broad proposi-
tion to justify the statement aaded in the 12th edition of Rattigan's book. In
Sant Singh's case the parties were Sikh jats from Jullundur District and Basant
v. Pratap (51 Punjab Record 1911) on which the Sant Singh's case relied the
parties were Sikh jats from Ludhiana District. But the headnotes in both cases
stated it as the custom "among Sikh jats in the Punjab" which clearly is .wr<'ng.
)
Therefore, it cannot be said that there is any real conflict between riwaj-i-am
and Rattigan's Digest on this point. The statement in Charan Singh v. Gurdial
Singh, AIR 1961 Punjab 301 that among jats governed by cus1:0m in matters of
succession a widow marrying her deceased husband's brother remains entitled to
F collateral succession in the family is too wide having regard' to the facts of
the case. [90H & 9.lA £]

CIVIL APPELLATE J UR!SDICTION: Civil Appeal No. 1057 of
1970.
From the Judgment and Order dated 3-11-1969 of the Punjab
'G and Haryana High _Court in R.S.A. No. 1456/64.
S. K. Si1iha for the Appellant~
Hardev Singh, S. K. Bagga and Mrs. S. Bagga for the Respondent.
The Judgment of the Court was delivered by
'H GUPTA, J. This appeal by certificate granted by the Punjab and
1
Haryana Higb Coutt 'is from the judgment of a Full Bench of that
Court ,answering the following question referred to it:
SADA KAUR v. BAKHTAWAR SINGH (Gupta, J() 87

"Whether by universal custom among the Sikh Jats of the
Punjab, a widow does not forfeit her life estate· in her husband's
property by reason of her remarriage in Karewa form with her
husband's brother, and if so, whether the custom admits of excep-
tions among different tribes of Sikh Jats and in .particular among
Dhaliwal Jats of Muktsar Tehsil of Ferozepur District."
The relevant facts are these. The first three respondents, Bakhtawar B.
Singh. Jit Singh and Chand Singh, and the deceased husband of the
appellant Sada Kaur were brothers. The appellant's husband died

~ ..
sometime in the year 1937 and a few months later she married the
·third respondent Chand Singh who was a younger brother of her
husband in Karewa form. The suit out of which this appeal arises
was brought by the first two respondents, Bakhtawar Singh and Jit c·
Singh, as plaintiffs for a declaration that they were entitled· to two-third
share of the land in possession of the present appellant Sada Kaur
which belonged to the appellant's deceased husband. Appellant Sada
Kaur and her second husband Chand Singh were impleaded as defen-
dant Nos. 1 and 2 respectively. The plaiintiffs' case was that Sada
Kaur having married for the second time had forfeited her interest in
her deceased husband's estate. The parties are Dhaliwal Jats of
Muktrnr TehsiJ in the Ferozepur District of Punjab. In her written
statement Sada Kaur pleaded that the parties were governed by custo-
mary law and according to their custom a widow marryfug her deceased
husband's brother did not forfeit her interest in the estate of her de-
ceased husband. The plaintiffs filed a, replication stating that according
to the custom governing Dhaliwal Jats of Tehsil Muktsar, a widow .
on remarrying even her deceased husband's ]Jrotlier forfeited her right
in the .estate. The only question that arises for consideration in the
present appeal is whether there is a custom governing the parties to
the suit according to which on remarriage the widow forfeits her
interest fu th~ estate of her deceased husband as claimed by the plain-
tiffs. The trial court declined to grant a declaration as asked for by
the plaintiffs who preferred an appeal to the District Judge which' was
allowed. Sada Kaur took a second appeal to the High Court challeng-
ing the decision of the lower appellate court. The learned single Judge
before whom the second appeal came up for hearing was fuclined· to
accept the plaintiffs' case and dismiss the appeal but felt that a Full
Bench 0f three learned Judge~ of th~. Punjab High Court in an earlier
case. Charan Singh v. Gurdial Singh( 1) appeared to have taken a con-
trary view on the question and referred the appeal to a larger bench.
A Division Bench of the High Court thereafter referred the case to a
Full Bench of five Judges and it is the Judgment of this Full Bench
that is under appeal before us.
(1) AIR 1961 Punjab 301.
88 'SUP:R.EME COURT REPORTS [1981) l S.C.R.

In Mara and others v. Nikko and others( 1) this Court observed
that it is "well known" that "custom in the Punjab changes from Dis-
trict to District, Tehsil to Tehsil and Pargana to Pargana". The judg-
ment under appeal relies mainly ori the riwaj-i-am of Ferozepur District
compiled in 1915 by M. M. L. Currie, Settlement Officer. The eviden-
tiary value of the entries in the riwaj-i-am has been discussed in more
than one decision of this OourtJ. In Mohant &dig Ram v. Mst. Maya
Devi(2) it wa,s held: ·

"There is no doubt or dispute as to the value of the entries
in the riwaj-i-am. It is well settled that though they are entitled
to an initial presumption in favour of their ·~orrectness irrespective
·C of the question whether or not the custom, a!; recorded, is in accord
with the general custom, the quantum of evidence necessary to
rebut. that presumption will, however, vary with the facts and
circumstances of each case. Whether,. for instance, the riwaj-i-am
lays down a custom in consonance with the general agriculturai
custom of the province, very strong proof would be required to
D displace that presumption ; but whether, on the other hand, the
custom as recorded in the riwaj-i-am is opposed to the custom
generally prevalent, the presumption will be considerably weak-
ened, likewise, Whether the riwaj-i-am affects adversely the rights
of the families who had no opportunity whatever of appearing
before the revenue authorities, the presumption will be weaker
still and only a few instances would be suffident to rebut it."

. There is however no material to suggest that the riwaj-i-am in this
case suffers from any such infirmity.
In Jai Kaur and others v. Sher Singh and· others(3) this Court has
said:
"The value of entries in the riwaj-i-am has ......... been re-
peatedly stressed. That they are relevant evidence under section
35 of the Evidence Act is clear and the fact that the entries therein
are the result of careful research of persons who might also be
considered to have become experts in these matters, after an open
and public inquiry has given them a value w~ic·h· should not. be
lightly under-estimated. There is therefore an m1tial presumption
of correctness as regards the entries in the riwaj-i-am ...... "
Question No. 47 of Currie's compilation reads:
H (I) [19641 7 ~.C.R. 430.
(2) [1955] 1 S.C.R. 11'91.
'(3) [1960] 3 S.C.R. 975.
- SADA KAUR v. BAKHTAWAR SINGH (Gupta, J.) 89

"What is the. effect of unchastity upon the right of a widow A
to the estate of her deceased husband ? What is the effect of her
remarriage ? "

The answer to the question in so far as it deals with remarriage is as
follows:
B
"At last settlement Mr. Francis wrote: 'unchastity or remar-
riage deprives a widow of her right to the property'. The Muktsar
•Code· gives a similar answer....... Further (on page 124) it says:
l Whenever a widow remarries, even if she marry the brother of her
<deceased husband, she loses her right to her deceased husband's
estaJe, which reverts at once to his agnates (mostly Sikh Jats, c
Kumhar, Khatri, Lobar, Bodla, Chishti, Wattu). If a son-less
widow in possession of her husband's estate marries his brother,
she is often allowed to. remain in possession of her deceased hus-
band's estate for her life time (Bagri jats, Musalman jats and Raj-
puts) ...... As regards the effect of remarriage, all tribes that admit
widow remarriage agree that no matter whom the widow marries, D
·she forfeits all rights to her deceased husband's estate."
The answer is followed by a note recorded by the compiler saying:
"Despite the rulings to the contrary ...... I am convinced that the above
answer is a true exposition of the custom". The rulings to the con-
trary which relate to jats of Ferozepur District are: Didar Singh v. Mst.
Dharmon( 1), Punjab Singh v. Mst. Chandi( 2) and Mst. lndi v. Bhangra
Singh(3). Out of these three cases again only Didar Singh's case relates
to Dhaliwal jats. The impugned judgment points out that as against
these cases the riwaj-i-am mentions numerous instances, 59 of them
relate to Jats, which support the compiler's note that on remarriage,
no matter whom she marries, the widow forfeits her right to her de- F.
·ceased husband's estate. There are also three instances wherein re- .
marriage did not result in forfeiture of the widow's right. Didar Singh's
case which relates to Dhaliwal jats was of the year 1888. The im·
pugned judgment mentions four instances from the riwaj-i-am of the
years 1911-12 supporting the case of forfeiture. No instance has been
found either way relating to Dhaliwal jats of Tehsil Muktsar. How- G
ever, these four instances relate to Dhaliwal jats of Tehsil Mogha
which is adjacent to Muktsar. On these facts and figures gathered
from the entries in the riwaj-i-am, the High Court did not find it
.possible to accept that there wa; a special custom among D:haliwal
(!) 25 Punjab Record 1888. H
(2) 88 Punjab Record 1900.
(3) 115 Punjab Record 1900.
90 SUPREME COURT REPORTS [1981] 1 S.C.R. ;
A jats of Tehsil, Muktsar which permitted a widow who married her
deceased husband's brother to retain her int.~rest in her deceased·
husband's estate.
In reaching this _conclusion the learned Judges had to deal with•
the earlier Full Bench decision of three Judges of the same High
Court, Cha:a~ Singh v. Gurdial Singh (supra) in which the vjfw taken
B by the maionty, one learned Judge dissenting, is apparently in con-
flict with that taken in the judgment under appeal. In Charan Singh' s
case it was held that as regards jats governed by custom in matters of
succession, a widow on remarrying her deceased husband's brother
remains entitled to collateral succession in the family. The parties in
that case were jats from Ambala District, and remembering that custom
c in Punjab often varies from district to district and tehsil to tehsil, it
seems the proposition was stated too broadly in Charan Singh's case
suggesting as if this was the custom among the jats in the entire State
of Punjab. The basis of the decision in Charan Singh'~ case is a
statement in Sir W. H. Rattigan's Digest of Customary Law in the
D Punjab. The authoritative value of Rattigan's compilation has been
recognised by the Privy Council in Ms,t. Subhani v. Nawab(1) and
also by this Court in Mahant Salig Ram v. Mst. Maya Devi (supra)
and Jai Kaur v. Sher Singh (supra). In Jai Kaur's ca~e however it
was held that "when the custom as recorded in the riwaj-i-am is in
conflict with the general custom as recorded in Rattigan's Digest or
E ascertained otherwise. the entries in the riwaj:i-am should ordinarily
prevail.. .... " Paragraph 32 of Rattigan's Digest on which Charan
Singh' s case relies states : "In the absence of custom. the remarriage
of a widow causes a forfeiture of her life-interest in her first husband's
estate which then reverts to the nearest heir of the husband". It is
thus clear that there is no conflict between the statement in Rattigan's
F Digest and the entry in riwaj-i-am as regards the general custom that
remarriage of the v.;idow entails a forfeiture of her interest in her first
husband's estate. However, a number of exceptions ,to this general
custom have also been recorded. Exception 1 which is relevant for
the present purpose is as ·follows : "Among certain tribes a remarriage
in the Karewa form with the brother of the deceased husband does
G not cause a forfeiture of the widow's life estate in the property of her
first husband." The cases cited in support of the: special custom relate
to Sikh jats of certain districts of Punjab, namely Sirsa, Amritsar,
Ferozepur and Ludhiana. · There is no mention in this catalogue of
Dhaliwal jats of Tehsil Muktsar. It was for the first time in the 12th
edition of Rattigan's book which was published long after Sir Rattigan's
H death, the following statement was added: "By custom among the
(I) 68 I.A. 1.
SADA KAUR v. BAKHTAWAR SINGH (Gupta, J.) 91

Sikh jats of the· Poojab .a widow does not forfeit her life estate in her A
deceased husband's property by reason of her remarriage in Karewa
form with her husband's brother, whether he be the sole surviving
brother or there are other brothers as well of the deceased." A deci-
sion of the Sindh Judicial Commissioner's Court, Sant Singh v. Rani
Bai( 1), bas been cited there in support of the statement. It has been
pointed out very clearly by the learned Judge in his order by which B
he referred the case to a larger bench that Sant Singh's case does not
lay down any such broad proposition to justify the statement added in
the 12th edition of Rattigan's book. The mistake results from relying
on .the head note of the case as appearing in the Indian Cases as also
in the All India Reporter. Sant Singh's case in which the parties were
Sikh jats from Jullundur District relies on a decision of the Punjab c
Chief Court: "In Basant v. Pratapa( 2) a judgment of Punjab Chief
Court, it was held that j!mong the Sikh jats in the District of Ludhiana
a widow does not forfeit her life. estate in her deceased husband's pro-
perty by reason of her remarriage in Karewa form with her husband's
brother whether he be the sole surviving brother or there are other
D
brothers as well of the deceased." What is found there as the custom
"among the Sikh Jats in the District of Ludhiana" appears in the head
notes of the two reports as the custom "among Sikh Jats in the Punjab".
Clearly, the head notes are wrong and do not set out the decision cor-
rectly. That being so, it cannot be said that there is any real conflict
between the riwaj-i-am and· Rattigan's Digest on this point. In any
E
event the statement cannot be attributed to Sir Rattigan. ·

Five learned Judges of the Punjab and Haryana High Court com-
posing the Full Bench, after a close examination of the available mate-
rial on the question whether among Dhaliwal jats of Tehsil Muktsar

•• there is a special custom which permits a widow on remarriage with her
deceased husband's brother to retain her interest in the estate of the
deceased, have answered the question in the negative. On the mate-
rial before us we find no reason to take a different view. The facts
and figures gathered from the entries in the riwaj-i-am have not been
challenged by the appellant, that the statement introduced in the 12th
F

edition of Rattigan's Digest is wrong cannot also be questioned. We
G
therefore dismiss the appeal but in the circumstances of the case with-
••
I out any order as to costs.·

P.B.R. Appeal dismissed:

(I) A.LR. 1924 Sind.h 17=76 LA. 408.
(2) 51 Punjab Record 1911.
7-646 S.C. India/80