Teja Singh, C.J.

1. The property in dispute in the present case consists of a site and three shops situate at Amloh which was in the erstwhile Nabha State. Nagina Mal was the owner, of the property and alter his death it devolved upon his widow Mst. Basanti. On 12-3-2003 Samvat Mst. Basanti made a will bequeathing the entire property to her daughter Mst. Ishro, After Mst. Basantis death the Plaintiff who claimed to be Nagina Mals collateral brought a suit for possession of the property, against Mst. Ishro and for a permanent injunction against the other defendants who were occupying the shops as tenants prohibiting them from paying the rent of the shop to Mst. Ishro His allegations were that the property was ancestral qua him, that Mst. Basanti had No. power to make a will in favour of Mst. Ishro and that on Mst. Basantis death he alone had the right to succeed to the property as Nagina Mals heir. Mst, Ishro alone contested the suit. She denied that the Plaintiff was related to her father or that the suit property was ancestral qua him. She further pleaded that according to the law of Nabha State Mst. Basanti, who was the absolute owner of the property hack every right to leave it to her by a will and that even the Plaintiff was her fathers collateral, he had no right to the property in her presence. The trial Court dismissed the Plaintiffs suit holding that regardless of the will made by Mst. Basanti Mst. Ishro had better right to succeed to the property than the Plaintiff. On appeal the District Judge set aside the finding of the trial Court and decreed the Plaintiffs suit. Being dissatisfied with the appellate decree of the District Judge, Mst. Ishro preferred a second appeal to this Court.

2. The appeal, first came up before my learned brother and since it involved a difficult and important question relating to the interpretation of the Nabha Law which admittedly governed the case, he referred it to a Division Bench.

3. Before dealing with the provisions of the Nabha law on the interpretation of which the fate of the case depends, I may point out that so far as the questions of fact are concerned there is no difference between the parties counsel. First of all they are agreed that the Plaintiff is the third degree collateral of Nagina, husband of Mst. Basanti. The pedigree-table is as follows:

RULDU

|

_____________________

| |

Mohan Pala

| ____|__________

____________ | | |

| | | | |

Ganesha Bishna Chanan Munna Nagina

| |

Rulia widow Mt. Basanti

| |

Om Parkash Mt. Ishro

(Plaintiff). (defendant),

Of the three sons of Pala, Munna and Chanan died childless. The same was the case with Bishna one of the two sons of Mohna. Secondly the parties counsel are agreed that the said site and shops could not be regarded as ancestral, the reason being that though one of the shops was proved to have been acquired by Ruldu, of the two remaining shops, one was acquired by Pala & the other by Mohna & it is not possible to fix the identity of those shops and the site. The third point upon which there is agreement between the parties counsel and which follows from the second point is that none of the said shops and the site were acquired by Nagina.

4. As regards the Nabha Law which applies to the case we must turn to the Hadayats issued by the order of the Council of Regency of the Nabha State in 1937. The following provisions of the Hadayat dealing with the alienation are relevant:

Section 1. A widow has no power to alienate ancestral immovable property of her husband except for legal and valid necessity.

Section 2. A widow without male issue has an unrestricted power of alienation over the self-acquired property of her husband as well as over her Stridhan.

Section 4. Property is of two kinds, viz., ancestral and self-acquired

Section 9. Self-acquired property whether movable or immovable is alienable according to the will and pleasure of the last male owner.

The relevant provisions of the Hadayat dealing with succession and maintenance read as below:

Section 1. Sons are first entitled to the inheritance whether the deceased was joint with others or not

Section 2. In the absence of the male lineal descendants, the widow of the deceased shall succeed to her husbands self-acquired property as an absolute owner. As regards ancestral property she either succeeds to a life interest or is entitled to a maintenance as may be proved by custom. In the absence of the male lineal descendants and the widow, the reversioners of the deceased will succeed to such property subject to their liability for the maintenance and the marriage charges of an unmarried daughter or daughters, If any, of the deceased person. Provided that in the case of a person dying intestate in the circumstances described in the preceding sentence and leaving behind his self-acquired property, the half of his estate shall descend to the reversionary heirs while the other half shall descend to his daughter or daughters sons as the case may be.

5. The Appellants counsel urged before us that since the suit property is not proved to be ancestral qua the Plaintiff in view of Section 4 of the Hadayat dealing with alienations it must be regarded as self-acquired. Counsel further argued that as laid down by Section 2 of the said Hadayat and Section 2 of the Hadayat dealing with succession and maintenance, Mst. Basanti when she succeeded to her husband became the absolute owner of the property and had unrestricted power of alienation over it and accordingly the will made by her in favour of the Appellant cannot be challenged. Counsel for the Plaintiff-respondent on the other hand urged that Section 2 of both the Hadayats relied upon by the Appellants counsel applied only to the property that was acquired by the widows husband himself and the fact that it was not ancestral qua the Plaintiff was immaterial. He also argued that Section 4 of the Hadayat dealing with the alienation which divided the property into ancestral and self-acquired was meant to apply to cases where powers of alienation of a male alienor were in question. In the course of the argument parties counsel also referred us to a copy of resolution passed by the Executive Council of the Nabha State in their meeting held on 24-9-1945. The resolution reads as follows:

Legal Remembrancers note pointing out the existing anomaly in the law in force in the State with regard to the alienation of ancestral or self-acquired immovable property by a sonless proprietor and suggesting that an order may be promulgated that non-ancestral property is also alienable according to the free-will and power of a proprietor whether issueless or otherwise and the word Maqsuba Jaidad (self-acquired) includes non-ancestral property. The Chief Judge agreed with the Legal Remembrancers proposal which was submitted to the Council who, in their Resolution No. 85, dated 30-5-1945, directed that it should be re-submitted after the Revenue Minister had studied the case. The Revenue Minister has in his note No. 156/350-G, dated 13-7-1945, on which the Legal Remembrancer and the Chief Judge have no comment to offer, expressed that no promulgation is necessary of the fact that non-ancestral property is also alienable according to the free-will and power of the proprietor as the customary law already recognises this principle. The Revenue Minister, however, suggests that it will do if the Nabha Government amends Section 4 of the Compendium of Hadayats on "Alienation" so as to mean that the word "self-acquired" mentioned therein includes non-ancestral.

The Council agree with the views expressed by the Revenue Minister and action should be taken accordingly.

We tried to ascertain from the law officer as also from the office of the Director of Archives whether the above resolution was given effect to and whether Section 4 of the Hadayat on alienations was amended in accordance with it, but we are told, and the parties counsel accept the position, that no amendment of Section 4 ever took place. The Appellants counsel contended that even though Section 4 was not actually amended the resolution of the Executive Council amounted to its virtual amendment. In the alternative he argued that the opinion of the Executive Council had a binding force and it must be held that for purposes of alienation the property which is not proved to be ancestral stands on the same footing as self-acquired property and for this reason widow succeeding to her husbands non-ancestral property possesses unrestricted power of alienation over it. The respondents counsel argued that as the words of the resolution show the Executive Council was merely thinking of the power of alienation of a sonless male proprietor and their opinion regarding operation of Section 4 of the Hadayat on alienation cannot be used to determine the powers of a widow to alienate the property other than acquired by her husband.

6. It is true that when we talk of property self-acquired by a particular person what we mean is the property acquired by that person himself and not the property which the person has inherited from any one else. Similarly ancestral property literally means the property which a person inherits from his ancestor and it does not include the property which the person has acquired himself or has inherited from one who is not his ancestor. In Websters New International Dictionary the "ancestor" is defined as one from whom a person has descended whether through the father or the mother, a progenitor, a forefather. Wharton in his Law Lexicon takes the term to mean as one who has gone before in a family. This shows that ancestor would include father and mother and property inherited by one from his father or mother can be regarded as ones ancestral property. But both terms "self-acquired" and "ancestral" property came to acquire a special and technical meaning in the Customary Law by which agricultural classes were governed in the Punjab and also in some of the States which now comprise the Patiala and East Punjab States Union, I shall briefly show how this happened.

7. Custom has always played an important part in the Punjab but it came to be recognised as a rule of law by Section 5, Punjab Laws Act, 1872. This is what the Section said:

In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be:

(a) any custom applicable to the parties concerned, which is not contrary to jus-tice, equity or good conscience and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority;

(b) The Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to.

The section came in for discussion in a large number of cases and there was considerable controversy as to whether it raised a presumption in favour of Personal Law or of custom. Opinion also differed as to what was necessary for a party to show in order to prove that he was governed by custom and what evidence was necessary to establish a particular custom. It is unnecessary to go into these matters here. All that need be mentioned is that notwithstanding certain cases in which it was held that custom varies from district to district and tribe to tribe and that there was no such thing as a general custom, in the course of time, it came to be recognised that when a person belonged to one of the dominant agricultural tribes of the province and nothing further appeared, for example, as to the drifting away from the agriculture as the source of livelihood and adopting trade etc. as the principal occupation, he was governed by what was described as agricultural custom as stated in Rattigans Digest of Customary Law. This view was accepted by the High Court of Lahore also. - Gholam Muhammad v. Muhammad Baksh 4 Pun Re 1891 (FB)(A), -Mahi v. Mt. Barkate AIR 1936 Lah 339 (B). The theory that there existed in the Punjab a general custom by which were governed the agricultural tribes received support from a well-known decision of the Judicial Committee, - Mst. Subhani v. Nawab : AIR 1941 PC 21 [LQ/PC/1940/51] (C). In a number of cases agricultural custom was also applied to High class Hindus and Brahmins who were held to have adopted it either because they belonged to village communities or because they had adopted agriculture as their main occupation.

8. As regards the matters of alienation the most important features of custom are the following:

i. Ancestral property is ordinarily inalienable except for necessity or with the consent of the male descendants, or, in the case of a sonless proprietor of his male collaterals. (Para. 59 of the Rattigans Digest of Customary Law)

ii. A proprietor can alienate ancestral property at pleasure if there is at the date of such alienation neither a male descendant nor a male collateral in existence, and

iii. Every male proprietor had unlimited power of alienation over his self-acquired property.

As regards the matters of succession the general custom is:

i. The male lineal descendant excludes the widow as well as the daughter, ii. In the absence of the male lineal descendant, the widow succeeds to the exclusion of daughter and other relations of the deceased and

iii. In the absence of a male lineal descendant and a widow, collaterals up to the 5th degree succeed in preference to the daughter when the property is ancestral and the daughter excludes collaterals when the property is not ancestral. (Para. 23 of Rattigans Digest of Customary Law).

So far as the widow is concerned custom gives her the same status as the Hindu Law, i.e when she succeeds to her husband in the absence of a male lineal descendant her estate is limited and she cannot alienate any part of the property which she has inherited, whether ancestral or self-acquired except for necessity. (Paras. 62 and 63 of the Rattigans Digest of Customary LaW). It was natural that in almost every case arising out of alienation made by male proprietor and in a large number of cases of succession where custom had to be applied the Courts were called upon to decide whether property was ancestral or self-acquired. It need not be mentioned that the reason why a male proprietor governed by custom was held not to possess unrestricted power of alienation Was that in accordance, with the therory accepted by all the jurists land in the village belonged to the community as a whole and not to any particular individual and consequently his descendants, and in the absence of the descendants his collaterals, had, residuary interest therein. In - Gujar v. Sham Das 107 Pun Re 1887 (D) which was the first leading authority on the point. Roe J. while dealing with the subject in question made the following observation:

The land came to him as a member of a village community which at no distant period held the whole of their lands jointly, recognising in the individual member only a right of usufruct, that is a right to enjoy the profits of the portion still under joint management. In such a community the proprietary title, and the power of permanently alienating parts of the common property, is vested in the whole body. These communities or villages have in their turn sprung from a still more primitive state of society, in which the proprietary unit was the tribe. The only trace of the latter state now to be found is the fact that the villages formed out of the tribe generally lie in groups, and follow the same custom, and in some of them adoption is restricted to members of the tribe. But amongst the villages some to this day preserve their original form of a joint proprietary body: in others and these are the majority, the common land or a large portion of it has been permanently divided amongst families, and in some cases amongst individuals. But even where the sub-division has proceeded furthest, the power of dealing with the land is not absolutely free. It is always restricted by rules of preemption which enable all members of the community to exclude strangers, and it is universally admitted that a proprietor who has male lineal heirs cannot, except for necessity, alienate without their consent. It is not unreasonable to presume that the absence of lineal male heirs does not confer on a proprietor privileges greatly in. excess of those enjoyed by his fellows. It would only be natural that in such a case the next male collateral, if within a reasonable degree of relationship, so near we may say as to be looked on as a member of the same family, should take the place of the lineal heirs, and that his consent to the alienation of land, which by the customary rules of inheritance would have descended to him should also be necessary.

In the same case Plowden J. remarked as follows:

The prevailing sentiment in this province among agriculturists ascertained by the experience of the Court and of Settlement Officers, & compendious records of custom is that in respect of ancestral immovable property in the hands of any individual, there exists some sort of residuary interest in all the descendants of the first owner or body of owners, however remote and contingent may be the probability of some among such descendants even having the enjoyment of the property. The owner in possession is not regarded as having the whole and sole interest in the property, and power to dispose of it, so as to defeat the expectations of those who are deemed to have a residuary interest, and who would take the property if the owner died without disposing of it.

These being the basic principles underlying the power of alienation of male proprietor whenever an alienation was questioned on the ground that it was opposed to custom, the first question that the Court had to decide was whether the Plaintiff had the locus standi to Challenge the alienation. From what I have said above it will be clear that the Plaintiff could have such locus standi only if he was able to prove that he had any residuary interest in the property and for proving the residuary interest, it was necessary for him to show that the property was once owned by the common ancestor. The mere fact that the alienor had got the property from his father or mother and it could, therefore, be regarded ancestral in the literal sense was not sufficient. What was necessary was that the property should be proved ancestral qua the Plaintiff. This is the reason why under custom the term "ancestral property" acquired a significance and a technical meaning. The result was that when a particular property was not proved to be ancestral in the sense mentioned above, it was termed as "non-ancestral", but for practical purposes and in cases relating to alienations made by male proprietors it stood on the same footing as acquired property. One can say that while considering the powers of alienation of a male proprietor the property could be divided into two classes, ancestral and self-acquired: ancestral qua the descendants and collaterals in existence and self-acquired property included non-ancestral property. It is unnecessary to cite any authority, in support of the above proposition. Reference, however, be made :nter alia to - Balki v. Biba 43 Pun Re 1890 (E), - Jowahir Singh v. Dial Singh 76 Pun Re 1898 (F), - Jhanda Singh v. Gurumukh Singh 93 Pun Re 1901 (G). The other case in point is -Mt. Nanhi v. Badlu AIR 1940 Lah 245 (H), in which it was held that under the Customary law the word "ancestral" carries a peculiar signification and even if the land be ancestral of the last male holder, it cannot be held to be ancestral qua the party, unless it is proved that the common ancestor of the parties had ever held it.

9. I have tried to ascertain whether there existed in Patiala State or in any of the other Punjab States a provision corresponding to Section 5, Punjab Laws Act, but I have not been able to find one. Parties counsel stated that so far they were aware there was no provision of the kind, but they were at the same time agreed that except in the erstwhile State of Nabha, which had a special law of its own contained in the Hadayats governing matters of succession, alienation etc., customary law was applied to persons following agricultural pursuits & depending upon agriculture and personal law to the rest, i.e., even though Section 5, Punjab Laws Act was not in force in so many words in any of the States, Courts of all the States excepting Nabha gave effect to it. This does not surprise me in the least because I have seen that in many other matters also Punjab Laws were followed by the Courts even though they were never adopted by the Government of the States. In some States the practice of following certain Punjab Laws was regularised by notifications issued with retrospective effect. This is, however, a matter with which we are not concerned; in this case and my object in making a mention of it is just to show that custom was as good a rule of law in these States as in Puniab itself. I have observed that erstwhile Nabha State was an exception inasmuch as it had statutory law in the shape of Hadayats that were published by the authority of the State Council in 1937 Mention of custom is made in a number of seasons of the various Hadayats. Though there is nothing to show what custom was meant, taking into consideration the conditions prevailing in the neighbouring States and in the Punjab, I think one can safely assert that the custom meant was the agricultural custom, generally prevailing in the Punjab. In any case one can legitimately presume that the framers of the Hadayats were aware of the custom prevailing in the Punjab & other States & they used the terms "ancestral property" and "self-acquired property" not according to their literal meanings but in the sense they were used in the Customary Law. The presumption not only becomes strong but turns into certainty when we turn to Section 4 of the Hadayat on alienation in which, it is stated in so many words that the property is of two kinds, i.e. ancestral and self-acquired. For these reasons my opinion is that the term self-acquired property used in the Hadayat must be interpreted as including the non-ancestral property. This interpretation is also supported by the opinion of the Revenue Minister referred to in the resolution of the Executive Council of 24-9-1945 of which mention has been made in the earlier part of this order. It is true that the Revenue Minister had suggested that Section 4 should be amended and his suggestion even though approved by the Executive Council does not appear to have been implemented, but this cannot prevent us from making use of his opinion while interpreting the term in question. It is also true that the opinion of an executive authority in a matter of this kind cannot be regarded as authoritative as that of a Court, but it is all the same relevant and valuable. It was held by the Calcutta High Court in - Baleshwar Bagarti v. Bhagi-rathi Das 35 Cal 701 at p. 713 (I) that the Courts in construing a statute are entitled to give weight to the interpretation put upon it by those whose duty it has been to construe, execute and apply it, although such interpretation has not by any means a controlling effect upon them. In - Ram Labhaya v. Dhani Ram AIR 1947 Lah 296 (J) the question of interpreting Rule 81, Defence of India Rules arose. It was held that it was permissible and perhaps necessary to take into account what may be described as the departmental construction.

10. I will now deal with the contention that the Minister and the Executive Council while they interpreted Section 4 of the Hadayat and laid down that it should be so amended as to include in so many words non-ancestral property were thinking only of power of alienation of a male proprietor. The perusal of the resolution no doubt shows that the question arose out of a case relating to an alienation by a male proprietor but it is important to note that what the Executive Council ordered to be amended was Section 4 which divided the property in two kinds and not Section 9 which defined the powers of alienation of male proprietor. Had it been the opinion of the Revenue Minister and the Executive Council that self-acquired property included non-ancestral property only in the case of a male proprietor and not in that of a widow, they would have interpreted Section 9 of the Hadayat rather than Section 4. The impression that I form by going through the resolution of the Executive Council is that they were interpreting Section 4 and it was only this Section that the. Executive Council ordered to be amended. Even assuming for the sake of argument that the Revenue Minister as well as the Executive Council were merely concerned in defining the powers of a male owner, there is nothing to-show that in their opinion, the term "self-acquired property" as used in Section 2 had different meaning from that it had in Section 9 and accordingly the widows power of alienation over non-ancestral property was as restricted as over property ancestral, qua the reversionary. The intention of the framers of the Hadayat if it is to be gathered from Section 4 read with Section 9 was. that non-ancestral property should be treated on the same footing as self-acquired property. I must also point out that if we once decide that the terms "ancestral" and "self-acquired" as used in Section 4 have a particular meaning and. are to be interpreted in a particular manner we must stick to that meaning and interpretation while dealing with other sections of the Hadayat. What I mean to say is that it would be wrong to hold that these terms have one meaning in Section 9 and another in Sections 1 and 2. There is abundant authority in support of the proposition that when identical words are used in different sections or different parts of the same Act the presumption is that they are intended to have the same meaning and effect. I would go even to the extent of holding that since Hadayats dealing with alienation and succession are pari materia the terms "self-acquired property" and "ancestral property" should be similarly interpreted for purposes of both the Hadayats. This view is supported by the high authority of Lord Mansfield in - Rex v. Loxdale (1758) 1 Burr 445 (K). Dwarris (Potter) on Statutes says that it is an established rule of law that all Acts in pari materia are to be taken together, as if they were one law, and they are directed to be compared in the construction of statutes, because they are considered as framed upon one system, and having one object in view. (The Interpretation of Indian Statutes by Jagdish Swarup, page 223). As I have held that the term "self-acquired property" used in Section 4 includes non-ancestral property in, my judgment the same meaning should be given to it in Section 2 of the Hadayat dealing with succession. This means that according to Section 2 of the latter Hadayat Mst. Basanti when she inherited the suit property on her husbands death did so as absolute owner and according to Section 2 of the Hadayat on alienation she had unrestricted power of alienation over it. It follows from this that the will made by Mst. Basanti in favour of Ishro, whereby she bequeathed the suit property to the latter cannot be questioned by the Plaintiff.

11. Our attention was drawn by counsel, to certain judgments of the High Court and the Judicial Committee of the erstwhile Nabha State in which it was held that when dealing with an alienation made by a widow, the term "self-acquired property" should not be deemed to include non-ancestral property and that the widow becomes an absolute owner and has unrestricted power of alienation only over the property which is proved to have been acquired by her husband. The first thing that need be mentioned in connection with these judgments is that in view of the" resolution of the Executive Council of 24-9-1945 that Section 4 of the Hadayat on Alienations should be amended so that the word "self-acquired" mentioned therein should include non-ancestral property, it actually amounted to the amendment of this section. As I have pointed out above the words of the resolution are no doubt clear but no record is available to show that they were given effect to, i.e. Section 4 was not actually amended in accordance With the resolution of the Executive Council. This, however, does not affect the view that I have taken regarding the interpretation of the term "self-acquired". On the other hand if I were to accept the opinion of the High Court that the Executive Council by merely passing the resolution should be taken to have amended Section 4 for the reasons mentioned above the amended Section would make the term "self-acquired" include non-ancestral property wherever it occurred in that Hadayat as also in other Hadayats. I wish once more to repeat that even though the Executive Council had before them the case of an alienation by a male proprietor had they intended to limit the scope of the term "self-acquired" as amended by them to an alienation by a male proprietor only, they would have amended Section 2 of the Hadayat rather than Section 4. Section 4 as it stood originally, and even as it stood after the amendment, was not limited to one kind of alienation. It merely said that property was of two kinds and I cannot understand by what canon of construction it is open to a Court of Law to place any restriction upon the plain meanings of the words used therein. The other argument given by the learned Judges of the Nabha High Court in support of their view was that "under Customary Law a widow succeeds only to a life estate & she has got very limited power to alienate the property of her husband". This is no doubt correct but the framers of the Hadayat neither professed nor intended to follow the Customary Law in all matters. In fact they did not do so in case of powers of alienation of a widow. I pointed out in the earlier part of this order that the estate of a widow under Customary Law is exactly similar to that of a widow under Hindu Law and under both laws she is a limited owner, i.e. she has a right to be in possession of and enjoy the property that she inherits from her husband but she cannot alienate it without legal necessity and the fact that the property that devolves upon her was ancestral or was acquired by her husband himself does not make the slightest difference. Under Section 2 of the Hadayat on the other hand she has unrestricted power of alienation over the self-acquired property of her husband. Even if we assume for a moment that self-acquired property means only the property that her husband acquired this much cannot be denied that Section 2 put her in a much better position with regard to that property than the widow governed by Customary or Hindu Law. This distinction is further emphasized by Section 2 of the Hadayat dealing with succession. For these reasons find myself unable to follow the judgments in question. As regards the judgments of the Judicial Committee the learned Judge of the Committee merely upheld the judgments of the High Court without giving any additional reason of his own and with all respect they are not ,of much assistance to us.

12. The result, in my opinion, is that the appeal must be allowed, the decree and the decision of the District Judge be set aside and the Plaintiffs suit dismissed. In view of the difficult nature of the question involved I would direct that the parties be left to bear their own-costs throughout.

Passey, J.

13. I entirely agree.