Right of village proprietary body to contest alienation by one of the proprietors.
See remarks under Chapter on “Alienation”.
29. Change of religion- No change of or exclusion from any religion, and no deprivation of caste, can in any way effect or impair any right of inheritance.
(72) Effect of change of religion on succession.
Generally speaking, the change of religion under Customary Law does not affect the right to inherit (1).
The Caste Disabilities Removal Act (XXI of 1850) provides-
"So much of any law or usage now -in force within the territories subject to the Government of the East India Company as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance by reason of his or her renouncing or having been excluded from the communion of any religion, or being deprived of caste shall cease to be enforced as law in the Courts of the East India Company and in the Court established by Royal Charter within the said territories".
It was observed in Gulab v. Mst. Ishar Kaur (1)-"The High Court of the N. W. P. has held in a judgment published as I. L. R. XI All. 100, that Act XXI of 1850 does not apply only to a person who has him- self or herself renounced his or her religion or been excluded from caste.
The latter part of Section 1 protects any person from having any right of inheritance affected by reason of any person having renounced his religion or having been excluded from caste. This applies to a case where a person born a Mohammedan, his father having renounced the Hindu religion, claims by right of inheritance under the Hindu Law a share in his- father's family. This ruling has been approved by a Bench of this Court in an unpublished judgment in C. A. 1413 of 1890. Some doubts were expressed regarding its correctness in a judgment published as P. R. 82 of 1890, the plaintiffs in which case were the same as in C. A. 1413 of 1890, but it was not necessary to decide the point as it was held that for various reasons, among which was the fact of diversity of religion, the burden of proving that they were entitled to contest an alienation made by a childless proprietor was on the plaintiffs, and they had failed to sustain it."
Similarly, it has been held in Mahna v. Chand (2) that Act XXI of 1850 was not intended to be restricted only to the convert himself and that there is nothing in the language of S. 1 to debar the extension of its beneficial provisions to the heir of the convert, no less to the convert himself.
Where a Hindu by birth became a convert to Christianity and it was found that the family had severed all connection with Hindu society and in matters relating to social intercourse, marriage and the similar usages abandoned all caste distinction and had thoroughly identified themselves with the members of the religion of their adoption, held, that no custom or usage in conformity with Hindu Law was applicable and that the Indian Succession Act afforded the rule of succession applicable to the case. The object of Act XXI of 1850 is not to confer On any party the benefit of the provisions of Hindu or Mohammedan Law, but to repeal and abrogate so much of the provisions of these laws as by reason of change of religion deprives any party from continuing to hold property held before conversion or from succeeding to property as an heir after conversion. Act XXI of 1850 is therefore not applicable in such cases (3).
The caste Disabilities Removal Act of 1850 secures to individuals the same right in property after apostasy as they enjoyed before apostasy. Therefore, the right of a minor son to sue for a declaration that a certain mortgage deed executed by his father should not affect his rights as member of the joint Hindu family after the death of his father is not taken away by the fact of the son having embraced Islam (4).
In Budhu Ram v. Muhammad Din (5), a case relating to Aroras of Dera Ghazi Khan District, it was held that the fact that some of the sons had adopted Islam did not affect their right of succession.
The conversion of a Khatri to Islam separates him from the joint, family, but he is nevertheless entitled to his share in the co-parcenary ancestral property, if claimed in time (1).
The Act XXI of 1850 has the effect of abrogating the rule of Mohammedan Law by which a non-Muslim is debarred from inheriting the property of a Muslim (2).
The conversion of a Hindu co-parcener to an alien faith such as Mohammedanism has the effect of separating the convert ipso facto from the coparcenary (3).
Conversion of a Christian to Islam docs not deprive his Christian. heirs of a right of succession (4).
Conversion to Islam does not deprive a man of the right to collateral succession (5).
See also Amar Ali's Handbook of Mohammedan Law, pp. 66, 67 and Mulla's Hindu Law, 5th edition, p.2.
Civil death forfeiture
30. By abandoning worldly affairs and entering a strictly religious or ascetic order, a person becomes civilly dead and forfeits his rights of inheritance.
(73) Effect of abandoning worldly affairs and entering a religious order.
No.1 P. R. 1868; No. 15 P. R. 1874 (Udasi fakirs No. 106 P. L. R. 1911 (Suthra fakirs). See also para. 87, post. It is not open to such a person to subsequently renounce his religious order and return to the world; he cannot, thereafter, e.g., adopt a son (No. 15 P. R. 1874). Where a person enters into a religious order renouncing all worldly affairs, it is tantamount to civil death, and it excludes him altogether from inheritance; Mulla's Hindu Law, 5th ed., p. 110.
No forfeiture unless the man, by becoming a faqir, has entirely renounced the world:
Although under the general custom in the Punjab (which follows, in this respect, the rule of Hindu Law), by abandoning worldly affairs and entering a strictly religious or ascetic order, a person becomes civilly dead and forfeits his rights of inheritance, (see para. 30 of the Digest), a clear distinction is to be drawn as regards the power of inheriting property between members of a religious order who have and those who have not, entirely renounced the world. The latter class are not disqualified from succession in their natural families. The true issue in such case is, "Did the man on becoming a faqir renounce the world” ? A Kangra agriculturist by becoming a gossain does not necessarily become "civilly dead" unless he has entirely abandoned worldly affairs in the sense explained above; 1934, 15 Lab. 796. See also, as regards Gossains of Kangra, 1932, 140 Ind. Cas. 771, and the notes under paras. 87 and 89, post.
A Byragi faqir does not renounce the world, and does not therefore forfeit his right of succession in his natural Faqirs. family (24 P.R. 1880). Nor yet do certain Udasi faqirs in the Jullundur District (29 P. R. 1881). It has accordingly been ruled that the mere fact of a man becoming an Udasi faqir is not conclusive that he has abandoned worldly affairs, though the presumption is that he has done so, and the burden of proof that he did not is upon him (7 P. R. 1892). See 57 P. R. 1880; 112 P. R. 1906 (Udasi Sadhus of Ludhiana District) and 51 P. R.1913 as to a chela or disciple not excluding natural heirs but see also 101 P. R. 1905 (Udasi Sadhus' of Kangra District) and 41 P. W. R. 1910 (Sanyasis of Lahore). Some Dadupanth jaqirs also retain their share in ancestral property, but on their death the ancestral share passes to their blood relations and not to a chela, who may have been nominated by the deceased (No. 1538 of 1881). It is a matter of common knowledge that a person on being initiated into a fraternity of Sadhus severs his connection with all his natural relations and kinsmen and becomes not only a disciple but also spiritual Son of his guru. Inheritance is governed by the religious relationship thus established, 1924, 6 Lah. L. J. 89 (a case relating to Dadupanthi Sadhus).
In No. 82 P. R. 1883 it was held that the chela or disciple of a Sanyasi could succeed to his occupancy rights as a "male-collateral relative, within the meaning of Section 36 of the Punjab Tenancy Act, 1868, since repealed. But as to this, see No. 22 P. R. 1896, F. B. and No.2 Rev. P. R. 1907. 31. Amongst Hindus generally, and less frequently amongst Muhammadans, uncondensed DC as prives a widow of her right to succeed to his estate; and her unchastity as a widow sometimes causes a forfeiture of her life interest in that estate. But the onus is on those who assert the existence of a custom sanctioning forfeiture'.
(74) Effect of unchastely on widow's rights.
Remarriage, as noticed above, generally causes a forfeiture of a widow's life-estate. As regards the effect of unchastity on widow's rights, the customs of tribes vary but, generally speaking, mere unchastely unless accompanied by severance from her deceased husband's house does not involve forfeiture. As observed in Partaba v. Mst. Phango (l)-"'It by no means follows that mere ordinary unchastity would cause forfeiture. A remarriage causes the widow to pass into another family, where she acquires other rights and ceases to require her husband's share for her support; she cannot take that share with her for the benefit of her second husband, or introduce new male members into her first husband's family to whom he would no doubt make over the management of her share, and thus cause a contention which would end in the breaking up of the family .That remarriage should cause a forfeiture is therefore a most reasonable and a very general custom. But ordinary unchastity is a mere personal act of the widow, disgracing herself, but not prima facie causing material injury to anyone else. It is for her husband's relatives to prove that this act, by custom, involves a forfeiture of the widow's rights, and they certainly cannot do this by merely showing that remarriage, an entirely different act, causes forfeiture.
In Muhammad Baksh v. Hayat Khan (1), it has been held that by Mohammedan Law the wife is one of those heirs who are not liable to exclusion under any circumstances, the facility of divorce which is permitted by that law gives the husband complete remedy against an unfaithful wife which a Hindu does not possess: but if the husband chooses not to avail himself of that power, the marriage relationship continues, and the wife cannot be deprived after her husband's death (in the absence of a proved custom of exclusion) of the share which the law allows her by right of inheritance.
It has been held that a person cannot enforce rule of forfeiture of life estate held by a widow on the ground of her unchastity, when he himself has been her seducer and when she has otherwise been caste before and after the seduction. He is stopped and cannot take advantage of his own wrong (2).
In the following cases unchastity did not involve forfeiture of widow's rights :-
76 P. R. 1901- Banias of Ambala Town. Unchastity of a widow, after her husband's death, does not cause forfeiture of her rights in the estate on his death. The general custom of the province is against such forfeiture and the alleged custom of forfeiture following unchastity by widow was also not in accordance with Hindu Law.
105 P. R. 1885- Ahirs of Mauza Todarpur. No special custom proved whereby unchastity works a forfeiture of the estate which a widow has inherited from her husband.
C. A. 326 of 18881 Jats of Moga Tahsil. ,
I C. A. 1154 of l888.
A. I. R. 1937 Lah. 612- Sidhu Jats of Fazilka Tahsil. Unchastity of
168 I. C. 371 the widow does not entail forfeiture of her fight.
118 P. R. 18B4- Muhammadan Chima Jats, if in husband's life.
90 P. R. 1888- Hindu Rajputs of Mauza Lohara, Tahsil Shakargarh.
78 P. R. 1869- No local custom had been shown to exist in the district of Gurgaon, under which a widow could be deprived of her estate by reason of incontinence. The Court proceeded in this case on the strict Hindu Law.
107 P. R. 1888- Bagri Jats of Sirsa District. There is no general custom in the Punjab by which a Hindu widow forfeits her husband's estate, when vested in her by an act of unchastity. In the absence of a proved special custom, where the parties are Hindus, the Hindu law applies, and according to that law the widow's estate is not forfeited.
120 P. L.R. 1913=57 P. W. R.- Jats of Hoshiarpur District; all
1913=19 I. C. 253 agriculturist Jats in absence of custom.
92 P. R. 1869- Hindu Jats of Jullundur District. If the widow had a vested or a possessory interest in her husband's share, her subsequent unchastity would not divest her interest. This case also was proceeded on in the Court on the strict Hindu Law.
C. A. 1001 of 1885- Kambohs.
74 P.R. 1910- Somal Jats of the Phillaur Tahsil. The onus of establishing a custom involving forfeiture is out those who allege its existence.
13 P. L. R. 1911- Jats of Jullundur District.
100 P. L. R. 1911- Arain Even if the allegation as to her unchastity were true, validity of the gift would not be affected thereby.
102 P. L. R. 1912- Jats of Panipat Tahsil. Onus probandi is on persons asserting forfeiture.
A. I. R. 1936 Lah. 17-Among the Hindu Jats to which class the
= 157 I. C. 955 Ludhiana Jats belong, mere unchastity involves no penalty of forfeiture of widow's right to her husband's estate so long as she does not leave her husband's house. 25 P. R. 1891 not followed.
3 P. W. R. 1908 Jats of Rohtak District.
=111 I.C. 712
85 P. R. 1868- A Hindu widow if she becomes unchaste is liable to forfeit her life-interest in the estate of her deceased husband.
34 P. R. 1893- Sikh Jats of Amritsar Tehsil. In the absence of a Sikh Jat who was undergoing imprisonment, his wife began to live with another man and bore him children, Her husband returned and repudiated her. He died shortly afterwards. Held, that by custom she had no right to her husband's estate against the agnate heirs.
40 P. R. 1899- Sikh Jats. A. widow who had lived for some time with a person, and borne some children, must be regarded as having forsaken her deceased husband's household and entered into a more or less permanent union with another man; and by custom, a widow under such circumstances, forfeited her life-interest in her deceased husband's estate.
89 P. R. 1886- Kasuria Pathans.
C. A. 449 of 1896 ( Sidhu Jats of Tehsil Ferozepur.
C. A. 660 of 1896
24 P. L. R. 1903- Agricultural tribes of Ferozepur District.
105 P. L. R. 1903- In Ferozpur among agriculturists if a widow up to the. time of her husband's death is living unchastely in open revolt against him, she is no "longer a member of his household and cannot succeed him on his death.
L . I. R. 1932 Lah. 177- Ahirs of District Gurgaon.
=12 Lah. 752.
Z P. R. 1888- Pathans of Mauza Khalaspur,Hoshiarpur district
C. A. 810 of 1905- Rajputs of Tehsil Dasuya.
13 I. C. 290- Rajputs.Unchastity of a widow has the effect of forfeiting her life-estate whether
= 1 P. W. R. 1912 unchastity be before or after actual succession.
A. I. R. 1934 Lah. 824- Sainis of Garshankar Tahsil. A. widow forfeits her right through unchastity.
A. I. R. 1930 Lah. 504- Brahmins. By the Customary Law of the
= 11 Lah. 424 Kangra District, the unchastity of a widow involves the forfeiture of her estate inherited from her husband.
75 P. R. 1886- Hindu Jats of Kaithal Tehsil.
C, A, 158 of 1909- Jats of Panipat Tehsil.
25 P. R. 1891- Utal Jats of Ludhiana District.
158 P. R. 1883- Aroras of Multan District.
C. A. 667 of 1871.
Effect of unchastity on alienation by a widow.
Where a widow belongs to a tribe by whose custom unchastity involves forfeiture of her life-estate, such forfeiture comes into force with effect from the date of unchastity, and not merely from the date when the reversionary sue to recover the property, and all intermediate alienations by the widow are void (I).
Where reversionary sue to set aside a sale by a widow as being without necessity, and allege she forfeited her right to the property by unchastity prior to the sale, held, the latter question could not be gone into to the prejudice of the vendees who had acquired the widow's interest prior to any action being taken by the reversioners (2).
Widow's right to maintenance-whether unchastity involves forfeiture.
As pointed out by their Lordships ot the Privy Council in Moniram Kalita v. Keri Kaliftani (3), the right to receive maintenance is very different from a vested estate In property. Under district Hindu Law the weight of authority would seem to be against any maintenance being allowed (4). Under the Hindu Law a widow on becoming unchaste forfeits her right to maintenance (5). It was further held in 1924, 49 Bom. 459 that where a Hindu widow who had been unchaste was proved to have given up the life of unchastity, she was entitled to have maintenance.
As observed in Mst. Kauri v. Jamiat Singh (1), if a widow forms illicit connection with a stranger and goes to his house, she quits her husband's house as effectually as if she went through a form of marriage with the stranger. In that case she ceases to be a member of the house- hold, and her title to maintenance as a right comes to an end. But an unchaste widow may be entitled to maintenance from her deceased husband's estate when she has forfeited her life-interest thereby, of. C. A. 326 of 1878 and C. A. 660 of 1896. Similarly, it has been held in 108 P. R. 1913 that by unchastity a widow does not cease to be a member of her husband's family, and only forfeits a special recognized form of maintenance, but even then she may be entitled to maintenance by her husband's family.
32. Remarriage forfeiture
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.
Note.- This paragraph should really read as follows: "Generally a widow forfeits her life-interest in her first husband's estate on remarriage."
In the absence of male issue, the widow of a deceased proprietor succeeds to a life-estate in his property (para. 11 of the Digest), and on her death or remarriage, his mother (i.e., the mother of the last male owner) comes in before the collaterals and takes a life-interest in the property, vide, para. 22 of the Digest).
But, in the absence of a custom to the contrary, her Remarriage. remarriage, even with a stranger, will not deprive the widow of any future rights of inheritance to which she would have been entitled but for such remarriage.
(75) Forfeiture of widow's life-estate on remarriage.
The widow on remarriage ceases to be the widow of her late husband and becomes the wife of the man she has married; she thus forfeits her right, which is really only one of maintenance from the income of the deceased's property. Instances to the contrary will generally be found to be rather of the nature of family arrangements, whereby if the widow has daughters by the previous husband, she may be allowed to retain the whole or a part of the estate till they have been married.
In Mst. Ram Devi v. Mst. Shiv Devi (2) a distinction was drawn between the nature of the forfeiture of a widow's estate by a widow who remarries and by a widow who is proved to be unchaste. It was observed :-
"In the case of forfeiture by remarriage throughout the province the woman ceases altogether to be the widow of her deceased husband, loses all rights and every kind of interest in his estate, and becomes a member of another family. The case of forfeiture by unchaslity, where it is established, is different. The woman does not cease to be the widow of her deceased husband nor does she become a member of another family. By custom she forfeits a special form of maintenance recognized in this Province, i. e., the possession for life of her husband's estate and it is a question more often answered perhaps in the alternative in the negative, whether, she is not even then entitled to maintenance from her husband's relatives.
In cases where she is held to be still entitled to maintenance though not to possession of her deceased husband's estate, it may be said that what occurs as a result of unchastely is the substitution of one form of maintenance for another of lesser extent at the option of the reversioners."
In the following cases widow's remarriage involved forfeiture.
40 P. R. 1899- Sikh Jats. A widow who had lived for some time with a 'person, and borne Some children, must be regarded as having forsaken her deceased husband's household and entered into a more or less permanent union with another man, and under such circumstances the widow forfeited her life-interest in her deceased husband's estate.
93 P. W. R. 1916- Parachas of Makhad, Attock District.
89 P. R. 1886- Kasuria Pathans.
80 P. R. 1885- Jats. Forfeiture ensues even when the heir is the village body as a whole.
90 P. R. 1889- Jats of village Kokari Kalan, Tahsil Moga, when marrying her late husband's cousin.
64 P. R. 1910- Sikh Jats.
P. L. R. 1900, p. 295- Chotha Jats, Hafizabad Tahsil.
95 P. R. 1882- Gujjars of Gujrat District.
90 P. R. 1888- Rajputs of Mauza Lohara, Tahsil Shakargarh.
2 P. R. 1888- Pathans of Hoshiarpur District.
54 P. R. 1890- Chauhan Rajputs.
75 P. R. 1917- Dhillon Jats, Tahsil Dasuya.
C.A.1212 of 1888- Khokhars of Jhang District.
46 P. R. 1891 [F. B.]- Sindhu Jats, Tahsil Chunian.
123 P. R. 1884- Rors of village Kamla.
81 P. R. 1885- Sheikhs of Mauza "Gohana, no matter who marries.
53 P. R. 1886- Sanwan Jats of village Daolu, marrying her brother-in-law. It is ordinarily immaterial whom she marries.
143 P. R. 1893} Sayyads of Kharkhauda pr9vided she leaves her first
144P. R.1893 } husband’s home and goes to reside with her second husband. If she continues to live in her first husband's house, she retains his estate.
145 P. R. 1893- Pathans of Mauza Kharkhauda, but where the - widow after. remarriage does not go to reside in the house of her second husband, but continues to reside in her first husband's house, she retains for life her first husband's estate also. Exceptions-Karewa form of marriage with the brother of the deceased husband sometimes does not cause a forfeiture of the widow's life-estate in the property of her husband. Amongst certain tribes a remarriage 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. As observed by Tappal in Chuni Lal v. Mst. Attar Kaur (1), an exception to this rule (that 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 her husband) is now well recognized among Sikh Jats of the Province where the widow marries her first husband’s brother.
C. A. 12ll of l876- Jats of Rohtak District.
137 P. R. 1885- Sikh Jats of Sirsa. .
88 P. R. 1900- Gi1 Jats of Mauza Gurusar, Ferozepur District and Mauza Bhangal, Hissar District.
100 P. R. 1891- Rains of Slrsa. Widow of do not marrying the donor retains as against the cousins of the donor.
74 P. R. 1893- Huijra Jats of Amritsar District.
C. A. 42 of 1897- Jats of Feroztpur District.
115 P. R. 1900- Sikh Jats of Ferozepur District.
51 P. R. 1911- Sikh Jats of village Butahri, Ludhiana District.
322 P. L. R. 1913- Sainis of Hoshiarpur District.
By custom among the Sikh Jats of the Punjab a widow does not forfeit her life-estate in her 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 (1). The Hindu Widows' Remarriage Act, 1856 does not override the custom under which a widow in the Punjab by marrying her deceased husband's brother (in the karewa form) does not forfeit her right to the estate of her deceased husband (2).
But this principle does not apply where the remarriage is not with a brother of the deceased but with some other relative of the deceased. Where the remarriage was with a cousin and nct the brother of the first husband, for feature was ucurred (3). So also remarriage in Karewa with a collateral entails forfeiture (4).
Among Sidhu Barar Jats, FaziJka Tehsil, District Ferozepur, a widow by contracting a Karewa marriage (even with her deceased husband's brother) forfeits her right to succeed as a widow of her first husband (5). If among the Jats a man dies before the muklawa or bringing-home-of-the- bride ceremony, and his brother takes the muklawa, this is considered tantamount to a Karewa marriage (6).
In Mst. Parji v. Mangta (7), in which the parties were Sainis of Ambala District, A died leaving a son B and a widow C. C Jater on married another person by karewa. B who had succeeded A died without leaving any issue or a widow. His collaterals therefore took possession of the estate and instituted a declaratory suit that C had no right to succeed, C having remarried by karewa. The question arose as to whether the parties were governed by custom.
Held, that the fact that C contracted a remarriage by way of karewa led to the inevitable conclusion that the parties were governed by custom with regard to marriage. The onus therefore was not on the collaterals to prove that the parties were governed by custom. It was for C to prove' special custom that she did not lose her right to property in dispute. Under the custom governing the parties the effect of C's remarriage was to divest her of all rights in her husband’s estate. Hindu Widows' Remarriage Act, XV of 1856, had no application to the present case.
But in view of the rulings cited above, the dictum of Jai Lal, J. in the above-noted case that according to the general custom of the Province a remarriage of a widow in karewa results in her losing all rights of inheritance in her first husband's estate, must be received with qualification.
Escheat to Crown in absence of reversionary on widow's remarriage.
Under Customary Law, absence of a Hindu widow's husband's blood relations does not make her position essentially different from what it would be under her personal law, and in the absence of any special custom with regard to the nature of the estate she takes, Hindu Law will apply. Consequently, the Crown will have the power to impeach any unauthorized alienation made by her during her life-time and on her remarriage, her estate, not being that of a full owner, is forfeited even if there are no reversioners and the Crown will be entitled to the estate as against a person who claims under a gift from her after her remarriage (1). Crown is no party to custom and custom cannot affect its rights and privileges in any way (2).