In a suit the parties to which were the two widows of a Manhas Rajput resident in the Shakargarh Tahsil of Gurdaspur District, held, that the plaintiff (upon whom under the circumstances the onus lay) had failed to prove a custom in her favour, excluding the defendant, who was a co-widow by a karewa marriage, from succeeding to a share in the deceased husband’s estate (4).
Found, that defendants, upon whom the onus rested, had failed to prove a special custom whereby the karewa widow of a sonless proprietor could be compelled to accept a fixed maintenance instead of succeeding to the family holding for life (5).
(18) Widow’s right of succession ordinarily not affected by the circumstance that the husband was joint in estate with others.
A widow is not ordinarily deprived of her right to succeed to the share of her husband by the circumstance that he was joint in estate with others.
28 P. R. 1870 – Hindu Jats of Ambala District.
No. 954 of 1873 – Hindu Jats of Gujranwala District.
149 P. R. 1888 – Suds of tahsil Tarn Taran, Amritsar District.
83 P. R. 1905 – Brahmins of Karnal City.
103 P. R. 1891 – Amongst Bansal Banias of Jullundur City a widow is not entitled to succeed to her husband’s share in property jointly acquired by him and his brothers.
(19) Nature of widow’s life-estate – not absolute owner but with restricted rights – analogous to widow’s life-estate under Hindu Law.
It is firmly established as a rule of Customary Law that a female inheriting landed estate (whether ancestral or self-acquired) from a male, holds the property on a life-tenure and it is immaterial whether the female is a widow, a daughter or a mother (1). Under the Hindu Law a widow only possesses a life-interest in the property inherited from her husband and she has no power to alienate it even in the presence of blood-relations except for necessity (2). The same rule applies to the case of a widow holding a life-interest under custom and she had not any wide power of alienation than a widow who holds a similar estate under Hindu Law (3). In the Punjab, under the Customary Law, a widow in possession of immoveable property of the husband has no power to alienate it permanently and there is no distinction in this respect whether the property is ancestral or self-acquired (4).
As observed by Chatterji, J. in Sher Muhammad v. Phula (5) – “There are strong analogies between the estate of a widow under Customary Law and her estate under Hindu Law. Under both laws she holds for life for the purpose of maintenance with certain powers of disposition necessarily incident to her position. She is, at least in Customary Law, in no sense a co-sharer, and on her death the succession is not to her but to her husband. In fact her estate is one interposed for a limited purpose between that of her husband and the next heir.”
The dictum of Scott-Smith and Rattigan, JJ. In Alla Ditta v. Gauhra (6) that the widow’s estate is always a limited one but it is only limited for the benefit of reversioners and where there are none she is to all intents and purposes an absolute owner, has been challenged and expressly dissented from in Kundan v. Secretary of State for India (7) by Campbell and Fforde, JJ. And it was observed – “We are unable to read this observation as a considered pronouncement intended to be authoritative that a Hindu widow governed by customary rules is a full owner when her deceased husband has left no relatives, and that her position is essentially different from what it would be under her personal law……… Indeed a reference to Section 5 of the Punjab Laws Act makes it quite clear that Alla Ditta v. Gauhra does not state a correct general rule and that the correct rule is this. The nature of a Hindu widow’s estate in the Punjab is to be determined by what the evidence before the Court proves to be the custom applicable to the parties concerned. If there is no proof of a customary rule the question is to be decided in accordance with Hindu Law, subject to any modification of that law by custom which may be proved.” Again, it was remarked by Leslie-Jones, J. in Mst. Diyal Kaur v. Mst. Mehtab Kaur (1) – “There is no ground for supposing that a widow who holds a life-interest in a estate under custom has any wider power of alienation than a widow who holds a similar estate under Hindu Law. Under that law the limited nature of her interest in the estate can never alter even though there be a complete want of heirs, vide Collector of Masulipatam v. Cavaly Vecatta Narainpat (8 M. I. A.) and the restrictions imposed on her power of alienation of her husband’s estate are inseparable from her estate and their existence does not depend on that of heirs capable of taking on her death.”
In Lal Chand v. Manohri (2) also, a case under the Hindu Law, it has been held that the limitations imposed upon the estate of a widow or daughter under Hindu Law are not imposed on her for the benefit of reversioners. They are inseparable from her estate, so that even if there are no reversioners, she cannot alienate the corpus of the property except for a legal necessity. If she does alienate without legal necessity, then, if there be no reversioners, the alienation may be set aside by the Crown taking the property by escheat. So after-born reversioners can set aside alienations by the holders of such estates.
Persons who are heirs to an estate are entitled to challenge alienations effected by females who are holding on life-tenure under custom. An estate of a widow under the Customary Law is subject to the same restrictions as that of a widow under Hindu Law. Where the persons contesting the alienations are males whose right to inherit the estate is beyond dispute there is no custom which prevents them from impugning such alienations they are entitled to contest. Where there is no custom applicable to a case, the plaintiff can fall back on their personal law (3).
In the Punjab the tenure of a widow’s estate under Customary Law does not differ from that of a Hindu widow under Hindu Law. Therefore where a widow in the Jhelum District alienated the mortgaged rights of her deceased husband without necessity and consideration, it was held that the reversioners of the deceased could challenge such alienation (4).
Both under Hindu Law and Punjab Customary Law and respective rights of a widow in possession of her husband’s estate and her reversioners are analogous (5). Chevis, J. similarly observed in Mst. Bhagi v. Mohammad Bibi (6) – “There are strong analogies between the estate of a widow under Customary Law and her estate under Hindu Law. Under both laws she holds for life the purpose of maintenance with certain powers of disposition necessarily incident to her position, and there seems to me no reason to hold that either under Hindu or Customary Law, a widow is not an heir of husband.”
Again, Shadi Lal, C. J., remarked in Gurbhaj v. Lachhman (1) – “We have not been referred to any authority which lays down that the estate of a widow under the Customary Law is subject to greater restrictions than that of a widow under the Hindu Law, or that the reversioner in the former case enjoys rights which are, in any way, superior to those of the reversioner in the latter case.”
(20) Muhammadan widows also take a life-estate in the whole property.
In numerous cases the Chief Court of the Punjab has recognized, as widely prevalent among Muhammadan land-holders, a custom that widows should take, as by Hindu Law, a life-estate in the whole property instead of the specific portion which they would inherit absolutely according to the Muhammadn Law; Wilson’s Anglo-Muhammadan Law, 3rd Ed. Page 87.
Where a widow is found enjoying the whole of her husband’s property to which she has succeeded on the death of her husband, particularly if that property or any substantial part of it is landed property, and it is shown that the widow under the personal law would have succeeded to something much less in extent, the presumption is that the widow has only succeeded for her life (2). Where, in defiance of Muhammadan Law, it is found that widows take over the whole of their husband’s immoveable estate, there is a natural presumption that they do so as life-holders only subject to control by male reversioners (3). “I fully endorse that dictum because it seems to me that Muhammadan Law being clearly renounced, a custom under which a widow should take all her husband’s land and houses as a full owner subject to no control is in this country an unthinkable custom. It is so contrary to general sentiment and practice that it would have to be strictly proved ; that is, it would have to be shown that widows had in a reasonable number of cases, indicated this extraordinary position in the face of opposition by near reversioners. Nothing of this kind has been shown here. – per Johnstone, J. (4).
In Nur Muhammad v. Khuda Baksh (5) the parties concerned were Parachas of Makhad in Attock District. Held, that by custom prevailing among the Parachas a widow only takes the usual life-estate and no share under Muhammadan Law. In the Punjab where a widow takes the whole of her husband’s estate there is a presumption that she takes only for life.
In Hashmat Ali v. Mst. Nasib-ul-nisa (6) Barkat Ali (the succession to whose estate was in dispute) died in 1872 without issue but survived by three widows. Contrary to the rule of Muhammadan Law, they succeeded to the whole of his estate, for an interest terminable with their lives and with a right of survivorship a s between themselves. The parties in this case were Arab Sayyads of Kharkhauda in Rohtak District. It was held that there was an undisputed rule which entitled Barkat Als’s widows to succeed as heirs to his estate for limited interests.
The same custom prevails generally among Muhammadans in the North-West Frontier Province. Among Babars of Dera Ismail Khan District, it has been held that there is a custom whereby a widow who remarries without consent of her deceased husband’s collaterals, forfeits her share in the estate left by that husband (1).
Among certain Muhammadans the estate taken by a widow is a full estate, but they are either residents of towns or are of high caste governed by Muhammadan Law.
In the following cases a full estate was granted :-
27 P. R. 1868 – Khojas of Kasur, excluding sisters in the absence of sons.
85 P. R. 1887 – Pathans of Panipat, Karnal District. The question for decision was, whether in the family of the parties who were Pathans of Panipat in the Karnal District, residing in the town but owning land outside a widow’s interest in her husband’s property was that of a full proprietor, or a life-interest only. Held, that the plaintiffs had failed to establish a custom under which whatever the widow succeeded to, was held by Her, not as full proprietor, but on a life-tenure only.
4 P. R. 1888 – Gardezi Sayyads of Multan District.
23 P. R. 1890 – Bokhari Sayyad Shiahs of Sadhaura, Ambala District.
126 P. R. 1912 P. C.– Sheikh Ansaris of Basti Danishmandan, Jullundur District.
(21) Meaning of life-estate – on termination of widow’s interest the descent is to be traced from her husband.
The meaning of a life-estate is that a widow does not become a full owner, in the sense that after her death the descent is to be traced from her and not from her husband.
Held, that among Rains of Karnal no special custom, as distinguished from the general custom of the Punjab under which a widow or a mother succeeding by inheritance to land takes only a life-interest in the property, is established. The persons who are entitled to succeed her are not her heirs but the heirs of the person or the persons from whom she derived the property (2).
In Lal Mal v. Dewa Singh (1) in which the parties were Suds of Lahore, it was contended by the defendant that a special custom existed where a sonless widow takes an absolute interest in the property, moveable or immoveable, of her husband with full power of disposal over it, and on her death the property, if not previously disposed of by her, devolves by inheritance on her heirs and not on the heirs of her husband. Held, that the burden of proving the custom was on the defendant and that he had failed to discharge it.
In a case the parties to which were Sayyads of Ambala District and (as found by the Chief Court) governed by custom and not Muhammadan Law, held, that the widow of a sonless proprietor succeeded on his death to the whole of his property, which was partly ancestral and partly self-acquired under a customary rule which it was not proved constituted her full owner of the property in the sense that on her death it would descend to her heirs and not to those of her late husband, or gave her an unrestricted power of alienation which would enable her to give away the whole of the property to her brother (2).
In a case where a widow has succeeded collaterally after her death it is the heirs of her husband who have to be sought for and not the heirs of the last male holder of the property. One Tara Singh gifted the land to his daughter’s son Dal Singh. Dal Singh had a brother Bhag Singh but he was not included in the gift and the line of Dal Singh held this land exclusively until it came to one Bur Singh. Bur Singh’s son Ganda Singh predeceased him and after Bur Singh’s death the land was mutated in favour of Gands Singh’s widow Mst. As Kaur. On Mst. As Kaur’s death it was mutated in favour of Mst. Hukam Kaur widow of Fateh Singh, who was a lineal descendant of Bhag Singh, brother of Dal Singh. Mst. Hukam Kaur gifted the land in favour of her and Fateh Singh’s daughter Mst. Malan. The plaintiffs claiming to be collaterals of Fateh Singh pleaded that as such collaterals the land being ancestral property the gift was void as against them. They further pleaded that even if the land was not ancestral they excluded tha daughter from self-acquired property and therefore the gift was void as against them. It was held that at Mst. Hukam Kaur’s death it is the heirs of her husband who have to be sought for and not the heirs of Bur Singh (3).
Where a widow succeeds to her husband’s brother’s estate she does so as a representative of her husband ; on her death the estate becomes an accretion to her husband’s estate and will be treated as his property (4).
But where a widow, on succeeding to the tenancy held by her deceased husband on peasant terms (under the Punjab Colonization of Government Lands Act, 1912), purchases the proprietary rights from the Government, she does not acquire them as a life-estate for the benefit of her reversioners ; she does so in her own capacity and is absolute owner (5). Under Customary Law in the Punjab, a widow has full power over the income of the estate which she holds as a widow and can do with it what she likes. Ifs he acquires any property out of that income, it is not an accretion to her husband’s estate but her own separate property (1).
15. Widow’s claim to partition.
But where a widow is permitted to succeed to her husband’s share in a joint estate, she can-constitute herself sole owner, though she may at times obtain a separation of the share to secure her a full participation of the profits.
It is submitted that in view of the case-law on the subject and the entries in the Riwaj-I-am of various districts in the Province, para. 15 of the Digest should read as follows : -
“A widow succeeding to her husband’s share in a joint holding can ordinarily claim partition of such share. Custom generally recognizes her right to enforce partition where the co-sharers are not acting up to their obligations in respect to her, so that the due enjoyment by her of her life-interest in her share of the joint holding cannot otherwise be secured.”
(22) Widow’s right to partition.
“All tribes admit that a childless widow is entitled to claim partition of her deceased husband’s share, but actual custom is undoubtedly that she can enforced partition only when the co-sharers are not properly maintaining her” (2).
“All heirs, whether male or female, including a widow, can claim partition as a matter of right. A widow having sons will get no share. A sonless widow can get the share separated to which she is entitled. On her death the share thus separated will devolve on the heirs of the deceased husband in accordance with the rules of inheritance” (3).
“As at the last Settlement, the Alpials alone maintain that a widow cannot effect partition in such cases. All, however, agree that such partitions should be sparingly sanctioned owing to the fact that the ultimate object of such partition is to alienate the inherited property from the rightful heirs to daughters and their issue. Widows desiring bonafide to effect a partition on the ground that the remaining share-holders are ill-treating her may be assured of the support of custom, whereas widows acting in this way at the instigation of crafty persons ready to snatch an advantage whenever possible at the expense of the rightful heirs will find it difficult to establish their claim.
The Alpials can produce no examples in support of their assertions and their answers cannot be taken seriously.
All agree that sharers without issue can claim partition whenever they wish” (1).
“A widow, having sons, inherits no share and therefore cannot claim any at partition. A sonless widow can claim partition of the share to which she may be entitled and can retain it till her death or re-marriage, after which the property devolves on the legal heirs of her deceased husband in accordance with the rules of inheritance” (2).
Among Hindus of the district a widow can get partition if she does not get maintenance, but an unmarried daughter or sister cannot claim partition or a share in it” (3).
Dera Ismail Khan District.
“A sonless widow can claim separation of her share and exclusive possession of the same until her death, or re-marriage” (4).
“Generally speaking, it is admitted that everyone who inherits a share in the property can, if he likes, claim partition. There is, however, a strong prejudice against partition when claimed by a widow, especially when childless, as there is the danger of her attempting to transfer it to the hands of her own kith and kin to the prejudice of her husband’s relatives, her reversioners. The following deny that a widow is entitled to partition :-
Khosas of Zira, Siddhus of Fazilka, Sandhus of Ferozepur, Bagri Jats, Kumhars and Suthars, Bishnois, Moghals, Bodlas, Chishtis, Rajputs of Fazilka, Wattus of Zira and Fazilka, Dogars (except in Ferozepur), Gujars (except in Moga) and Muhammadan Jats in Zira, and Sayyads of Ferozepur, Zira and Muktsar.
Sidhus of Moga and Khoslas of Muktsar say that a widow is only entitled to get enough land to maintain her” (5).
“Any one of the persons upon whom the estate devolves, irrespectively of the sex of such person, or of the relationship, can claim partition as a matter of right, and if a sister, an unmarried daughter or a widow, whether childless or not is a share-holder, she can claim partition of her share” (1).
“All heirs can claim partition as a matter of right. A widow can claim partition only under certain circumstances” (2).
“All the tribes state that every one of the persons upon whom the estate devolves including the widow (whether childless or otherwise), sisters and unmarried daughters can claim partition. The widow’s right, is however denied by the Brahmans of the Shakargarh Tahsil” (3).
“Any one of the persons upon whom the estate devolves, irrespectively of the sex of such person, or of the relationship in which such person stood to the deceased, can claim partition as a matter of right.
The widow, whether childless or not, the sister or unmarried daughter, can claim partition of her share, if any. (All tribes)” (4).
“All male share-holders in an estate can claim partition as a matter of right. Among Dogras, Pathans and Bishnois a sister, unmarried daughter or widow share-holder in an estate can claim partition; among all other tribes these females can only do so, provided (a) that they are not unchaste and (b) that they do not mean by asking for partition to injure the estate” (5).
“Generally, a widow who has sons, not being a co-sharer, is not entitled to claim partition, nor can an unmarried daughter or sister, who is only entitled to maintenance till marriage or death. As to sonless widows, generally her right to claim partition is admitted conditionally on her remaining chasty and not marrying again. Brahmins and Dod Rajputs of Tahsil Garshankar, however, deny her right ot claim partition. Other Rajputs say that if her share would be larger than is necessary for her maintenance, she can only claim partion if the co-share in the property refuse to maintain her property. If her share would be only sufficient for her maintenance, they follow the general rule and admit her right to claim partition. Mahtons say that a childless widow cannot claim partition, but a widow with daughters can.
In the families of the Rana of Manaswal and of Rai Wazir Khan of Bhangala widow had no power to claim partition at all” (1).
“All tribes – (1) Widow, yes, if the reversioners of her husband neglect to maintain her ; (2) unmarried daughter, no, if the property is in her name till marriage, otherwise, yes; (3) married daughter, yes; (4) sister, if she is unmarried and the property is in her name till marriage no; in other cases, yes; and (5) mother, yes if the reversioners of her son refuse to maintain her. The right of the widow to claim partition is quite independent of the fact whether she has any issue or not” (2).
“All tribes –
Any one of the persons upon whom the estate devolves, irrespectively of the sex of such person, or of the relationship in which such person stood to the deceased, can claim partition as a matter of right. A widow, whether childless or not, a sister or unmarried daughter, can claim partition of her share, if any” (3).
“All heirs, whether male or female including a widow, can claim partition as a matter of right. An unmarried daughter or sister cannot claim partition, but among Sayyads, Pathans, and Sheikhs of Jullundur Tahsil a widow having sons can claim partitions as their guardian and in case she is sonless she cannot do so.
In the Nakodar Tahsil a daughter can also claim partition if she has succeed until she marries or because there were no collaterals within five generations. The Arains of the Nakodar Tahsil, however, say that a widow cannot claim partition ; she is entitled to maintenance only.
In the Nawanshahr Tahsil a daughter can also claim partition if she succeeds owing to their being no collaterals within seven generations” (4).
Karnal District. (Tahsil Kaithal and Parganah Indri).
“A childless widow can divide off her share of a joint holding. But its partition in no way increases her power of alienation” (5).
“All the tribes of Dehra and Hamirpur state that all the recorded owners including widows can claim partition. Sisters and daughters if re-married cannot claim partition. The Rajputs of Nurpur and the Jats of Kangra also allow the widow to claim partition. All the rest say that a widow or daughter who has received some land by way of maintenance can claim partition if she has any trouble about the receipt of her maintenance.
Male owners can always claim partition” (1).
“All tribes – All heirs, whether male or female, including a widow, can claim partition as a matter of right. A widow having sons will get no share” (2).
“A widow with sons is not a share-holder, and is entitled only to maintenance.
There is a very strong feeling among all tribes that a widow should not be allowed separate possession of her share so long as her husband’s relatives make suitable arrangements for her support. As a rule her claim is brought at the instigation of her own relatives, who wish to get the management of the land and the husband’s relatives consider the land and the woman as gone for ever as soon as partition has taken place. Instances of private partition, in which the widow is allowed separate possession of her share, are rare.
The courts have not been very consistent in dealing with application by a widow for partition. The majority of Revenue Assistants have disallowed partition when the co-sharers have allowed the widow a share of the proprietary profits sufficient for her proper support, but in a considerable number of cases partition has been allowed as a matter of course. The widow’s application almost invariably states that the co-sharers do not allow her maintenance, and the custom, as shown by private partitions is undoubtedly that she can enforce partition only in these circumstances” (3).
“A widow, whether childless or not, a sister or unmarried daughter can claim partition” (4).
Montgomery District (Pakpattan and Dipalpur Tahsils).
“All tribes of both Tahsils – All heirs, whether male or female including widows, can claim a partition, but a widow who has sons living does not get a share in the partition.
Exceptions – (a) Kambojs of Tahsil Dipalpur; Sayyads of Tahsil Pakpattan – A widow cannot claim partition; (b) Rajput Musalmans, Rajput Wattus, Sayyads of Tahsil Dipalpur – A woman cannot claim partition. If the other partners do not give her proper share of income then she can claim her share through the influence of the brotherhood. It makes no difference whether the widow has children or no.
(3) The Sayyads state that a mother with children can claim a partition” (5).
“The replies are conflicting. Hindus of Lodhran and Mailsi, Jats, Biloches, Mughals, Awans and Mahtams of Kabirwala, while the Hindus, Rajputs, Sayyads, Qureshis and Pathans of Kabirwala, admit that she can enforce partition. The remaining tribes say that she can only demand partition if the other co-sharers oppress her and deny her, her due share of produce. It makes no difference if a widow is childless or not.
All tribes admit that a sister and a married daughter can always enforce partition” (1).
“All tribes are agreed that any one of the above (widow, unmarried daughter, married daughter, sister, mother) can only demand partition if the co-sharers opporess her and deny her due share of produce. The tribes of Leiah Tahsil, however, say that an unmarried daughter cannot claim partition as she has an interest in the property up to her marriage only” (2).
“The general rule is that a widow is entitled to maintenance, but not to a share of the estate. Occasionally, however, a share is assigned to her in lieu of maintenance” (3).
“Though at last settlement all the tribes of this district were unanimous in according to a widow the right to claim a partition, in case of joint ownership with her deceased husband’s relatives, there is not the same agreement in the replies now given.
All the Kahuta tribes say that a widow cannot do so, while the Murree tribes are unanimous in declaring that she can. It is not to be believed that, for instance, the Sattis of these two tahsils are at variance on this point, and, as a matter fact, the Satti examples fail to bear out their assertions.
The custom in both tahsils undoubtedly allows a widow this right.
The answers recorded in Gujar Khan are also unfavourable, but the examples of such partitions are so numerous that there can be no doubt that the right to claim partition is well established by custom.
A sharer without issue is in all cases admitted to have this right.
The custom appears to be well established, inspite of some of the answers given, these being prompted, doubtless, by personal motives” (4).
“All tribes throughout reply that every share-holder, male or female, married or single, childless or otherwise, can claim partition of his or her share.
But in Gohana proper the Muhammadan Rajputs note that there is a custom that a widow is not entitled to claim partition as long as she gets maintenance” (1).
“Any one of the persons upon whom the estate devolves, irrespectively of the sex of such person, or of the relationship in which such person stood to the deceased, can claim partition as a matter of right. A widow, whether childless or not, a sister or unmarried daughter, can claim partition of her share, if any” (2).
“All persons upon whom the estate devolves can claim partition as a matter of right” (3).
Sirsa District (old).
“Any one of the persons upon whom the estate devolves, irrespectively of the sex of such person, or of the relationship in which such person stood to the deceased, can claim partition as a matter of right. A widow, whether childless or not, a sister or unmarried daughter, can claim partition of her share, if any. (All Hindu tribes and Rains).
The same, except that a widow should not, unless unjustly treated, claim separate possession of her share, but should be content with her share of the income of the common property. (Bodlas, Chistis, Wattus and Musalman Jats and Rajputs)” (4).
(22) Widow’s right to apply for partition of a joint holding – widow a joint owner within the meaning of Section 111 of the Punjab Land Revenue Act, 1887.
Section 111 of the Punjab Land Revenue Act, 1887, lays down that any joint owner of land, or any tenant of a tenancy in which a right of occupancy subsists, may apply to a Revenue Officer for partition of his share in the land or tenancy, as the case may be, if –
(a) at the date of the application the share is recorded under Chapter IV as belonging to him, or
(b) his right to the share has been established by a decree which is still subsisting at the date, or
(c) a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof.
Following Dan Singh v. Mst. Sukhan (5) and Buta v. Mst. Jiwani (6) it has been held in Abdul Qudir v. Mst. Rabia (7) that a widow in possession of her deceased husband’s undivided share in a joint holding, has a locus standi under section 111 of the Punjab Land Revenue Act, 1887, for claiming, that is, for applying, for partition before a Revenue Officer, she being undoubtedly a joint owner (though with limited rights of ownership) within the meaning of that section. This view has been upheld on Sant Singh v. Mst. Basant Kaur (1).
A widow’s right to apply for partition must, however, be distinguished from her right to obtain or compel partition, as we shall presently see.
Onus of proof on the party disputing widow’s right to partition.
The question whether a widow is entitled to partition or not is a question of title within the meaning of section 117 of the Punjab Land Revenue Act, 1887 (2). When a suit is brought by a widow to establish her right to obtain partition or by her opponents to contest such right, the question arises on whom the onus probandi lies.
In Daulat Khan v. Mst. Mehtab Bibi (3) it was laid down that in general a widow had by custom no right to insist on partition by the revenu authorities, but if she could show that she could not otherwise obtain the full enjoyment of her share in the property she could obtain a decree in a Civil Court for separate possession of her share. But in Mst. Bhagbhari v. Wazir Khan (4) it was held that a widow of a deceased co-sharer is a joint holding had a statutory right to demand partition and although a suit for declaration that she was not so entitled was competent, the plaintiff could only succeed by proving a custom by which widows were restrained from claiming partition and no consideration of desirability or undesirability would weigh with the Civil Court.
Again a Division Bench in Purshotam v. Mst. Raj Devi (5) held that where a widow claimed partition and parties were governed by custom the onus lay on the widow of proving that she could claim partition, following para. 15 of Rattigan’s Digest of Customary Law. This view was upheld in Abdul Qudir and Abdul Aziz v. Mst. Rabia (5 P. R. 1917 Rev.), by the Financial Commissioner who, following pages 54 and 60 of Notes on Punjab Custom by Mr. T. P. Ellis, Daulat Khan v. Mehtab Bibi (6) and Mukandi v. Balwant Singh (7) remarked that agricultural custom generally did not recognize the existence of the widow’s right to obtain partition and the burden of proving that would be placed upon her.
The question has been fully discussed by a Division Bench in Sant Singh v. Mst. Basant Kaur (8) in which Parshotan v. Mst. Rajdevi was not approved and following Mst. Bhagbhari v. Wazir Khan it was held that a widow was possessed of a statutory right to demand partition and applying the ordinary rule of law of evidence the onus was then clearly on the parties who disputed the right to prove custom to the contrary. The same view has been held in Ghansham v. Ramjiala (9) and Gopali v. Mst. Shamon (10).
The widow of a deceased co-sharer in a joint holding has a statutory right to demand partition. The fact of her having agreed to receive a certain quantity of money and grain annually from her husband’s co-sharers does not debar her for all time from seeking to have her share in the holding partitioned off (1).
A widow of a deceased co-sharer in a joint holding has a statutory right to demand partition and although a suit for a declaration that she is not so entitled is competent in a Civil Court, the plaintiff can only succeed by proving a custom by which widows are restrained from claiming partition, and no consideration of desirability or undesirability should have any weight with the Court. (2).
It is thus now definitely settled that the widow of a deceased co-sharer in a joint holding has a statutory right to claim partition of her share, and the onus of proving a custom by which widows are restrained from claiming partition lies heavily on the person denying the right.
Para 15 of Rattigan’s Digest not approved.
Widow’s claim to obtain partition was disallowed in the following cases: -
5 P. R. 1868 – Muhammadans of Sahahabad Town, Ambala District.
93 P. R. 1869 – Ambala District, special custom.
28 P. R. 1970 – Under Hindu Law.
C. A. 954 of 1873 – In regard to houses.
116 P. R. 1879 – Hindu widow.
156 P. R. 1879 – Muhammadan widow of the Varayaj tribe, Gujranwala District.
65 P. R. 1881 – Muhammadans of Mustafabad, Ambala District.
60 P. R. 1895 – Bhandari Khatris, of Batala, Gurdaspur District.
131 P. L. R. 1901 – Under Customary Law a widow cannot claim a partition of the joint estate in which she possesses a life-interest accruing on the death of her husband.
4 P. R. 1917 – (Rev.) – Agricultural custom generally does not recognize the existence of the widow’s right to obtain partition, i. e., the entire separation of her estate.
Widow’s claim to partition was allowed in the following cases: -
22 P. R. 1878 – Mohammadans of Lahore District on equitable grounds and because there had been a separation in interest and right between the parties.
104 P. R. 1881 – Mughals of the Rawalpindi District. There being no special custom established among the parties as to the mode of enjoyment by the widow of her husband’s property, she was entitled in the present case to a declaration of her right to the estate jointly with the nephew, their respective shares being 2/3rd, and 1/3rd, and the widow being entitled to separate possession of 2/3rd of the estate for her life, the specific lands to be enjoyed by her life, the specific lands to be enjoyed by her being ascertained as usual by the Revenue authorities.
70 P. R. 1912 – Bilochis of Mozang, a suburb of Lahore.
Entry in the Customary law of the Ferozepur District prepared in the year 1914 showing that a widow who is a Rajput of Fazilka may not be entitled to partition is not so clear that the presumption arises that the custom in question is against the widow (1).
Under the custom prevailing amongst Sukhera Rajputs of Fazilka Tahsil the widow is entitled to her full share of the produce, and if she is obstructed in obtaining this share she is entitled to partition of her share, so that she may be able to enjoy without disturbance the produce she is entitled to (2).