Appeal No 781 of 1964
Appeal from the judgment and decree dated September 6 1961 of the Punjab High Court in Regular Second Appeal No 54 of 1960
N section Bindra Kartar Singh Suri Champat Rai and E C Agrawala for the appellants
section P Sinha section K Mehta and K L Mehta for respondents Nos 1 3 5 and 6
Bishan Narain section K Mehta and K L Mehta for respondent No 4
The Judgment of the Court was delivered by Ramaswami J
The question to be considered in this appeal is whether under the customary law applicable to Sidhu Jats of Muktsar Tahsil of Ferozepore district collaterals of the 5th degree of the deceased land owner could take precedence over his married daughters in succession to his non ancestral property
The dispute relates to 1574 kanals 4 marlas of land situated in village Kotli Ablu Muktsar Tahsil of Ferozepore district
Dulla Singh was the last male holder of the land and he was succeeded by his widow Smt
Indi on his death
Indi died on September 8 1955 and thereafter the estate was mutated by the revenue authorities on February 1 1956 in favour of the defendants who were the reversioners of her husband in the 5th degree
Nihal Kaur is the daughter of Dulla Singh
On November 14 1957 she instituted the suit which is the subject matter of the present appeal in the court of Subordinate Judge Muktsar for a declaration that she was the legal heir of the land left by Smt
Indi and that 653 she was entitled to inherit the estate to the exclusion of the collaterals
The suit was resisted by the defendants who claimed that the whole of the land was ancestral and they were preferential heirs to the deceased Dulla Singh than the plaintiff
The trial court held that the land in dispute was not the ancestral property of Dulla Singh but the defendants who were 5th degree collaterals of Dulla Singh were entitled to exclude his daughter from succession even to the non ancestral property under the custom of the district
Accordingly the trial court dismissed the suit of the plaintiff
The decree was affirmed by the Additional District Judge Ferozepore in appeal
Nihal Kaur preferred a Second Appeal to the Punjab High Court which was allowed and the suit of the plaintiff was decreed
The High Court took the view that the general custom of the Punjab as laid down in Rattigan s Customary Law was that the daughters excluded collaterals for succession to the self acquired property of their father and the special custom set out in the Riwaj i am that the agnates however remote exclude daughters from succession to their father s property was opposed to the general custom referred to above and the Riwaj i am was only a presumptive evidence in favour of the collaterals and the presumption has been rebutted by the plaintiff Mst
Nihal Kaur in the circumstances of the present case
In other words the High Court held that the general custom in favour of the daughter s succession prevailed and the defendants had not been able to prove that the general custom had been varied by a special custom enabling the collaterals to exclude the daughters
This appeal is brought by the defendants on a certificate from the judgment of the Punjab High Court dated September 6 1961 in Regular Second Appeal No 54 of 1960
On the question of custom the respondents relied upon the statements in paragraph 23 of Rattigan s Digest of Customary Law 14th Edn a book of unquestioned authority in the Punjab State
In para 23 p 132 it is stated that 1 a daughter only succeeds to the ancestral landed property of her father if an agriculturist in default  1 of the heirs mentioned in the preceding paragraph viz male lineal descendants widow or mother or 2 of near male collaterals of her father provided that a married daughter sometimes excludes near male collaterals in certain circumstances specified in the paragraph 2 But in regard to the acquired property of her father the daughter is preferred to collaterals
It is further stated at p 152 that the general custom of Punjab is that a daughter excludes collaterals in succession to self acquired property of her father and the initial onus therefore is on the collaterals to show that the general custom in favour of the daughter s succession to the self acquired property of her father has been varied by a special custom 654 excluding daughters
This being the legal position of the parties the question arises whether the defendants had discharged the onus of proving the existence of a special custom excluding the daughters
On this point the appellants relied upon the answers to Questions 48 and 49 in the Compilation of the Customary Law of Ferozepore district by MML Currie Settlement Officer
These questions and answers are comprised in the Riwaj i am of the settlement of Ferozepore district of 1914 and are reproduced below   Question 48 Under what circumstances are daughters entitled to inherit  Are they excluded by the sons or near male kindreds of the deceased  If they are excluded by the near male kindred is there any fixed limit of relationship within which such near male kindred must stand towards the deceased in order to exclude his daughter  If so how is the limit ascertained If this depends on descent from a common ancestor state within how many generations relatively to the deceased such common ancestor must come Answer At last settlement Mr Francis wrote Except a few Sayyads all tribes say that a daughter can never succeed
Some Sayyads say that an unmarried daughter can succeed like a son but no instances are given  The custom has now changed completely most tribes admitting that a daughter is entitled to succeed till marriage in the absence of a widow or male lineal descendants
The following groups however do not admit that a daughter can succeed  Dogars of Fazilka Nipals Sayyads of Ferozepore Zira and Muktsar Bodlas unless there are no collaterals in the 5th degree Chishtis unless no collaterals in the 7th degree Pathans of Ferozepore except the Kasuria group Rajputs of Fazilka Wattus of Zira and Fazilka Moghals except in Ferozepore Mahtams Sodhis Bagri Jats Kumhars and Suthars Bishnois and the following Jat Sikhs in Fazilka Tahsil Dhaliwals Sidhhus Gils and Sandhus
The Kasuria Pathans state that a daughter succeeds if there are no sons and the Arians state that she excludes collaterals who do not come within the 4th degree
Question 49 Is there any distinction as to the rights of daughters to inherit i the immovable or ancestral ii the movable or acquired property of their father  655 Answer There is no distinction
A father can of course gift his movable or acquired property to his daughter
 In the present case there is no proof of any instance for or against the right of inheritance of a daughter of a deceased last male holder of the Sidhu tribe of Jats either in the Muktsar Tahsil or in the whole district of Ferozepore
At least none was brought to the notice of the lower courts by the plaintiff or the defendants
It was contended on behalf of the appellants that the Riwaj i am of 1914 was entitled to a presumption as to the existence of a custom even though not supported by proof of instances and it must therefore be held that the defendants have discharged the initial onus of proving that the general custom has been varied by a special custom enabling them to exclude the married daughter
The real controversy in this appeal is however on the question whether the entries in the Riwaj i am on which the defendants rely refer at all to non ancestral property or not
In Mst
Raj Kaur vs Talok Singh1 Sir Donald Johnstone the Chief Justice held that the Riwaj i am as compiled did not cover self acquired property and that where the Riwaj i am talked about succession to land without discrimination between ancestral and self acquired land the rule laid down could only be taken to apply to ancestral property
This case related to property in Ferozepore district though with regard to a different tehsil and different sub caste of Jats but the important point is that the questions of the Riwaj i am of 1878 in that case were exactly in the same language as questions 48 and 49 of the Riwaj i am of 1914
A similar view was taken by Shadilal and Wilberforce JJ
in Budhi Prakash vs Chandra Bhan2
The view was followed by other judges of the Lahore High Court in Narain vs Mst
Gaindo3 and Fatima Bibi vs Shah Nawaz  4  
In Abdul Rahman vs Mst
Natho5 it was observed by the High Court as follows   According to the Customary Law of the district collaterals within the fifth degree exclude daughters but it has been consistently held by this Court that Riwaj i am refer only to ancestral land unless there is a clear statement to the contrary
It is unnecessary to refer to the numerous decisions on this point
Customary law is in fact usually only concerned with protecting ancestral property while self acquired property can be disposed of as the owner pleases that is reversioners are usually concerned only with property ancestral qua them 1 AIR 1916 Lah 343
2 AIR 1918 Lah
3 AIR 1918 Lah
4 ATR 1921 Lab
5 ILR 656 The decision of this case was affirmed by the Full Bench of the Lahore High Court in Mst
Hurmate vs Hoshiarul
Din Mohammad J delivering the leading judgment in this case observed as follows  In my view the raison d  etre of those cases which lay down that the Manuals of Customary Law were ordinarily concerned with ancestral property only is quite intelligible
Collaterals are as stated by Addison J in Abdul Rehman vs Mst
Natho  2  really speaking interested in that property only which descends from their common ancestor and this is the only basis of the agnatic theory
What a maleholder acquires himself is really no concern of theirs
It is reasonable therefore to assume that when manuals of customary law were originally prepared and subsequently revised the persons questioned unless specifically told to the contrary could normally reply in the light of their own interest alone and that as stated above was confined to the ancestral property only
The fact that on some occasions the questioner had particularly drawn some distinction between ancestral and non ancestral property would not have put them on their guard in every case considering their lack of education and lack of intelligence in general
Similarly the use of the terms in no case  or under no circumstances  would refer to ancestral property only and not be extended so as to cover self acquired property unless the context favoured that construction
 The decision of the Full Bench of the Lahore High Court was approved by the Judicial Committee in Mst
Subhani vs Nawab and Ors3 in which the controversy arose with regard to the interpretation of questions 16 and 17 and the answers thereto in Wilson s Manual of Customary Law which are reproduced below Question 16 p 48 Under what circumstances are daughters entitled to inherit  Are they excluded by the sons or by the widow or by the near male kindred of the deceased  If they are excluded by the near male kindred is there any fixed limit of relationship within which such near kindred must stand towards the deceased in order to exclude his daughters  If so how is the limit ascertained  If it depends on descent from a common ancestor state within how many generations relatively to the deceased such common ancestor must come
1 ILR ILR 3 68 I A 1 657 Answer 16 All Musalmans
A married daughter in no case inherits her father s estate or any share in it
An unmarried daughter succeeds to no share in presence of agnate descendants of the deceased or of her own mother but if there be no agnate descendants and no sonless widow the un married daughters succeed in equal shares to the whole of their father s property movable and immovable till their marriage when it reverts to the agnate heirs
If there be a widow and daughters of another wife who has died the unmarried daughters of the deceased wife succeed to their mother s share till their marriage
Question 17 p 49 Is there any distinction as to the rights of daughters to inherit 1 the immovable or ancestral 2 the movable or acquired property of their father Answer 17 All Musalmans
As regards the right of the daughter to inherit no distinction is made between the movable and immovable ancestral and acquired property of the father
If she inherits at all she takes the whole estate
 It was held by the Judicial Committee that though in the answers to question No 17 in Wilson s Manual no distinction was made between ancestral and non ancestral or between movable and immovable property and the rule was stated as a wide generalization in answer to question No 16 that a married daughter in no case inherits her father s estate or any share in it it must be taken in view of the numerous decisions of the Punjab courts that the Riwaj i am which states the rule in such wide and general terms governs ancestral property only
It should be noticed that Questions 16 and IT of the Wilson s Manual are couched in similar language to Questions 48 and 49 of the Riwaj i ani with which we are concerned in the present appeal
In view of these authorities we have therefore come to the conclusion that the entries in the Riwaj i ani with regard to Questions 48 and 49 on which the appellants rely do not refer at all to non ancestral property and are therefore not relevant evidence to establish a special custom among the Sidhu Jats of Muktsar Tahsil of Ferozepore district entitling collaterals for succession to non ancestral property in preference to daughters
It follows therefore that the appellants have not discharged the onus which lay upon them of proving that the general custom has been varied by a special customs enabling the collaterals to exclude the daughters
It is manifest therefore that the customary law among the Sidhu Jats of Muktsar Tahsil of Ferozepore district as regards non ancestral property is the same 658 as recorded generally for the State of Punjab in paragraph 23 of Rattigan s Digest ie a daughter is preferred to collaterals
We shall however assume in favour of the appellants that Questions 48 and 49 of the Riwaj i am relate also to succession of non ancestral property of the last male holder
Even upon that assumption we are of opinion that the case of the appellants cannot succeed
The reason is that though the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness the quantum of evidence necessary to rebut this presumption would vary with the facts and circumstances of each parti cular case
Where for instance the Riwaj i am laid down a custom in consonance with the general agricultural custom of the State very strong proof would be required to displace this presumption but where on the other hand this was not the case and the custom as recorded in the Riwaj i am was opposed to the rules generally prevalent the presumption would be considerably weakened
Likewise where the Riwaj i am affected adversely the rights of females who had no opportunity whatever of appearig before the revenue authorities the presumption would be weaker still and very little evidence would suffice to rebut it
In Narain vs Mst
Deokil Roe J stated as follows  There is no doubt a general tendency of the stronger to over ride the weak and many instances may occur of the males of a family depriving females of rights to which the latter are legally entitled
Such instances may be followed so generally as to establish a custom even though the origin of the custom were usurpation but the Courts are bound carefully to watch over the rights of the weaker party and to refuse to hold that they had ceased to exist unless a custom against them is most clearly established
In a later case Sayad Rahim Shah vs Sayad Hussain Shah 2 a similar caution was uttered by Robertson J who observed as follows The male relations in many cases at least have been clearly more concerned for their own advantage than for the security of the rights of widows and other female relatives with rights or alleged rights over family property and the statements of the male relatives in such matters have to be taken cum grano salis where they tend to minimize the rights of others and to extend their own
1 1893 24 P R 124
2 1901 102 PR 353
6 5 9 The same view was expressed by the Lahore High Court in a still later case Bholi vs Man Singh1 where the Riwaj i am had laid down that daughters were excluded by collaterals even up to the tenth degree and it was stated as follows As the land is rising in value under British rule the land holders are becoming more and more anxious to exclude female succession
They are ready to state the rule against daughters as strongly as possible but if the custom is so well established it is strange that they are unable to state a single instance in point on an occasion like the compilation of the Riwaj i am when detailed inquiries are being made and when the leading men are supposed to give their answers with deliberation and care
 The principle was reiterated by this Court in Mahant Salig Ram vs Mst
Maya Debi2 It was pointed out in that case that it was well settled that the general custom of the Punjab State was that the daughter excluded collaterals from succession to self acquired property of her father and so the initial onus must therefore be on the collaterals to show that the general custom in favour of the daughter s succession to the self acquired property of her father has been varied by a special custom excluding the daughter
It was also well settled that the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness but the presumption will be considerably weak ened if it adversely affects the rights of the females who have no opportunity of appearing before the Revenue authorities
In the present case apart from the general custom of the Punjab to which due weight must be attached three instances have been referred by the High Court in the course of its judgment to show that the presumption attaching to Riwaj i am has been rebutted in this case
The first instance is the subject matter of the decision in Mst
Rai Kaur vs Talok Singh3
It was a case of Gill Jats from Zira Tahsil of Ferozepore district
It was held in that case that the plaintiffs on whom the onus rested had failed to prove that by custom among Gill Jats of mauza Lohara tahsil Zira district Ferozepore they as near collaterals of a deceased sonless proprietor succeeded to his self acquired estate in preference to a daughter
As we have already pointed out earlier Questions 48 and 49 correspond to Questions 1 and 2 of the Riwaj i am of 1878 which were dealt with in this case
The second instance is reported as Ratta vs Mst
Jai Kaur4
It is case of a Daliwal Jat of Tahsil Moga District Ferozepore
It was admitted that daughter of the last male holder was entitled to succeed to his self acquired property
It is true that the case 1 1908 86 PR 402
3 ATR L2 SupCI68 12 2 19551 SCR 1191
4 660 was decided upon the admission of Counsel for the collaterals but it is improbable that if there was material evidence in support of the collaterals the Counsel would have made such an admission
The third instance referred to by the High Court is RFA No 220 of 1954 decided on April 11 1961 in which it was held that sister of the last male holder excludes his collaterals from inheritance in regard to his non ancestral or acquired property
That is a case of Jats from Fazilka tahsil of Ferozepore district
The property however was situated in two villages one in Fazilka tahsil and the other in Muktsar tahsil
It was held in that case that in Muktsar and in Fazilka in regard to non ancestral or acquired property of the last male holder his sister was a preferential successor as against collaterals
In this connection it should be noticed that in the Riwaj i am of 1914 Question 58 concerns the rights of succession of sisters and sisters  sons and the answer is that they never inherit
Considering therefore that in the neighbouring tahsils of the same district in regard to non ancestral property a daughter has excluded collaterals and in Muktsar tahsil a sister has excluded collaterals there is in our opinion sufficient material to displace the presumption of correctness of the Riwaj i am entries in this case
In view of the considerations already mentioned in the judgment the presumption attaching to the Riwaj i am entries is a weak presumption and in our opinion it has been sufficiently discharged by the evidence adduced by the respondents in this case
It is necessary to add that the appellants defendants have not relied upon any instances in support of their case
For the reasons expressed we hold that the judgment of the High Court dated September 6 1961 in Regular Second Appeal No 54 of 1960 is correct and this appeal must be dismissed with costs


Summary:
D a Sidhu Jat of Muktsar Tahsil Ferozepore District Punjab was tile last male holder of certain land in that area
He was succeeded by his widow after whose death the land was mutated in favour of D s collaterals in the 5th degree
D s daughter filed a suit for a declaration that she was the legal heir of he land and was entitled to inherit to the exclusion of the collaterals
The trial court held that the land was not ancestral but the defendants were preferential heirs under the custom of the district
The decree was affirmed by the first appellate court
In second appeal however the High Court decided in favour of the plaintiff holding that the general custom recorded in Rattigan s Digest had not been shown to be displaced by any special custom in the Riwaj i am The defendants appealed
HELD  The entries in the Riwaj i am on which the appellants relied did not refer at all to non ancestral property and were therefore not relevant evidence to establish a special custom among the Sidhu jats of Muktsar Tahsil of Ferozepore District entitling collaterals for succession to non ancestral property in preference to daughters
The appellants had not discharged the onus which lay upon them of proving that the general custom had been varied by a special custom enabling the collaterals to exclude the daughters
It was manifest therefore that the customary law among the Sidhu Jats of Muktsar Tahsil of Ferozepore district Is regards non ancestral property was the same as recorded generally for the State of Punjab in Paragraph 23 of Rattigan s Digest ie a daughter is preferred to collaterals
657 G H Mst
Rai Kaur vs Talok Singh AIR 1916 Lab 343 Budhi Prakash vs Chandra Bhan AIR 1918 Lab
225 Narain vs Mst
Gaindo AIR 1918 Lab
304 Fatima Bibi vs Shah Nawaz
AIR 1921 Lab
180 Abdul Rahiman vs Mst
Natho ILR 1932 13 Lab
458 Mst
Hurmate vs Hoshiaru ILR 25 Lab
228 and Mst
Subhani vs Nawab and Ors
 68 IA 1 referred to
ii Even on the assumption that the Riwaj i am entries referred to the non ancestral property of the last male holder the appellants could not succeed
For though the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness the quantum of evidence necessary to rebut this presumption would vary with the facts and circumstances of each particular case
Where for instance the Riwaj i am laid down a custom in consonance with the general agricultural custom of the State very strong proof would be required to displace this presumption but where on the  her hand this was not the case and the custom as recorded in the Riwaj i am was opposed to the rules generally 652 prevalent the presumption would be considerably weakened
Likewise when the Riwaj i am affected adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities the presumption would be weaker still and very little evidence would suffice to rebut it
658 B D Har Narain vs Mst
Deoki 1893 24
PR 124
Sayad Rahim Shah vs Sayad Hussain Shah 1901 102 P R 353 Bholi vs Man Singh  1908 86 P R 402 and Mahant Salig Ram vs Mst
Maya Devi  referred to
iiiIn
the present case the High Court bid mentioned three instances in its judgment which showed that the presumption attaching to Riwaj i am had been rebutted in this case
The appellant s defendants had not relied upon any instances in support of their case
The High Court therefore rightly decided in favour of the plaintiffs
660 C D Mst
Rai Kaur vs Talok Singh AIR 1916 Lah
343 Ratta vs Mst Jai Kaur and RFA No 220 of 1954 decided by the Punjab High Court on April 11 1961 referred to