SMT. ASS KAUR (DECEASED) BY L.RS. versus KARTAR SINGH (DEAD) BY L.RS. AND ORS.

Citation: [2007] 7 S.C.R. 670 · Decided: 18-05-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

A 
SMT. ASS KAUR (DECEASED) BY L.RS. 
v. 
( 
'f' 
KART AR SINGH (DEAD) BY L.RS. AND ORS. 
MAY 18, 2007 
B 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
Customary laws-Sidhu Jats governed by Zimindara customs-Widow 
, 
marrying her first husband's brother who was already married-Inheritance 
and succession under the 1929 Act and 1937 Act-Applicability of customary 
.., 
c laws--Held: Customary law would prevail over the statutory law since its 
application was not excluded in the statutory /aw-Property being ancestral, 
on the death of one of the co-widow the other surviving widow' would take 
the property by survivorship-Act of 1929 being subject to the applicability 
of customary law, daughter of the deceased widow has no right of succession 
D in preference to her step mother-Widow married her first husband's brother 
, 
just to safeguard the family property-If daughters who were married were 
to be excluded by customary law, no exception thereto can be taken-Hindu 
Women's Right to Property Act, 1937-Hindu Law of Inheritance (Amendment) 
~ 
Act, 1929. 
E 
Practice and Procedure-Plea-Raising of. for the first time before this 
Court-Held: Not maintainable. 
RS had two wives, Sand RK. RK was originally married to HS-brother 
of RS. On the death of HS, RS married RK under the customary law of the 
land. RS on his death was succeeded by two wives and sons IS and MS and 
F daughter AS-appellant. IS died in 1926 and MS in 1937. S died in 1950 and 
RK died fifteen years later. Appellant-daughter of S, claimed half share in 
~ 
the property. Respondents contended that after the death of HS, RK contracted 
~ 
Karewa marriage with RS in accordance with custom and had a son through 
HS; that under the Punjab customary laws governing inheritance and 
G 
succession of Sidhu Jats, after the death of RS his two sons and two widows 
succeeded to his estate; that after death of IS and MS, their properties were 
mutated in the name ofS and RK; that S was a limited owner and on her death 
in the year 1950, RK succeeded to her by rule of survivorship; and that under 
the customary law, the appellant had no right of succession in preference to 
~ 
r 
H 
670 
ASS KAUR (DECEASED) BY L.RS. v. KART AR SINGH (DEAD) BY L.RS. 
671 
the deceased widow. Courts below held that the parties being Sidhu Jats were .(\. 
.. 
~ 
governed by Zimindara customs in the matter of inheritance and ~uccession 
in terms whereof RK succeeded to the estate of RS after the death of S and 
that her estate was enlarged into full ownership after coming into force of 
the Hindu Succession Act, 1956. High Court held that the Revenue Officers 
rightly sanctioned the mutation of the estate of S in favour of RK. Hence the B 
present appeal 
Appellant contended that RS having only I/3rd share in the property; 
r 
the other co-sharers being MS and IS, on his death his I/3rd share devolved 
upon his two wives jointly as also, his two sons IS and MS; that on IS's death c 
his interest in the property devolved upon MS who became the absolute owner 
in respect thereof and on MS's death the properties devolved upon his mother 
Sand on S's death, in terms of the provisions of the Hindu Law oflnheritance 
(Amendment) Act, I929 the appellant succeeded her as heir of RS; that S 
having life interest in the property, on her death the same devolved upon the 
appellant as daughter of RS as a reversioner; that a step mother being not an D 
heir or a relation for the purpose of inheritance and succession, she could 
not inherit the interest of IS and MS; that custom prevailing in the family 
~ 
which had been relied upon being a general custom and not a special or 
personal custom would be subservient to the 1929 Act and Hindu Women's 
Right to Property Act, 1937; and that purported reliance upon the customary E 
law by the courts below is misplaced. 
Dismissing the appeal, the Court 
HELD: 1.1. Custom is one of the three sources of Hindu Law. Custom 
may override a statute subject, of course, to a clear proof of usage. In absence F 
I 
of any proof of custom, indisputably the Hindu Law would apply. Hindu Law 
.., 
recognizes three types of customs: local custom, class custom and family 
custom. !Paras 9, 10 and I6] 1677-E-F; 680-CJ 
1.2. As statutory law did not exclude the applicability of the customary G 
law, customary law would prevail over the statutory law. It was so found by 
courts below. The courts below categorically held that the parties were 
governed by Zimindara custom and th

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