Appeal No 118 of 1953
Appeal from the Judgment and Decree dated the 28th July 1949 of the High Court of Judicature for the State of Punjab at Simla in Civil Regular First Appeal No 365 of 1946 arising out of the Decree dated the 31st day of October 1946 of the Court of the SubJudge 1st Class Pathankot in Suit No 110 of 1945
Rajinder Narain for the appellant
K L Gosain R section Narula and Naunit Lal with him for the respondent
January 21
The Judgment of the Court was delivered by DAS J
This is an appeal by the plaintiff in a suit for a declaration of his title as collateral within  four degrees of Gurdial who was a Sarswat Brahmin resident of Pathankot in the district of Gurdaspur and the last male holder of the properties in suit
Gurdial died many years ago leaving certain lands in villages Bhadroya Kingarian and Pathankot Tehsil Pathankot in the district of Gurdaspur and leaving him surviving his widow Musammat Melo and a daughter Musammat Maya Devi the respondent before us
Some time in the year 1926 a portion of the land in village Bhadroya was acquired for the Kangra Valley Railway and a sum of Rs 1539 7 0 was awarded to Musammat Melo
On ail objection by the appellant this amount was deposited in the Court of the Senior Subordinate Judge Gurdaspur with a direction to pay the interest on this amount to Musammat Melo
On the 28th September 1944 Musammat Melo died and the Revenue Courts ordered mutations in respect of the lands in the three villages in favour of the respondent as the daughter of Gurdial
On the 10th March 1945 the appellant filed the suit out of which this appeal arises against the respondent for a declaration that he was entitled to the lands mentioned in the plaint as well as to the sum of 1194 Rs 1 539 7 0 in preference to the respondent under the custom governing the parties hereunder the collaterals of the last male holder excluded the daughter
The respondent contested the suit mainly on the grounds i that the suit for a mere declaration was not maintainable iithat the parties were governed by Hindu Law and not by custom iiithat the appellant was not a collateral of Gurdial at all ivthat the properties in suit were not ancestral and v that there was no custom whereunder the collaterals of the father who was the last male holder excluded the daughter from succession to the selfacquired property of her father
The Subordinate Judge in his judgment pronounced on the 31st October 1946 held i that the lands in suit being in possession of tenants the suit for a declaration of title thereto was maintainable but the suit for a declaration in respect of the sum of Rs 1539 7 0 was not maintainable in view of the provisions of the Indian Succession Act relating to succession certificates iithat the parties were governed by custom and not by Hindu Law iiithat the appellant was a collateral of Gurdial within four degrees ivthat the land in Khata No 2 of village Kingarian was ancestral while the rest of the lands in suit were non ancestral and v that there was a custom according to which daughter was excluded from inheritance by the collaterals up to the fourth degree with respect to ancestral as well as self acquired property of the last male holder as laid down in the case of Buta Singh vs Mt Harnamon1
In the result the Subordinate Judge decreed the suit in respect only of the lands in suit and ordered the parties to bear their own costs
1 AIR 1946 Lah
306 1195 Against this judgment and decree the respondent preferred an appeal to the Lahore High Court
The appellant preferred cross objections against the order as to costs and against the finding that the lands in the three villages except the land in Khata No 2 of village Kingarian were non ancestral
After the partition of India the appeal was transferred to the High Court of East Punjab
By its judgment dated the 28th July 1949 the East Punjab High Court allowed the appeal and dismissed the cross objections on the following findings i that the suit for declaration of title to the lands was maintainable as all the lands in suit were in the possession of tenants ii that the lands in suit except the land in Khata No 2 of village Kingarian were non ancestral and iii that according to the custom prevailing in the Gurdaspur district a daughter was entitled to succeed to non ancestral property in preference to collaterals even though they were within the fourth degree
The High Court accordingly modified the decree of the Subordinate Judge to the extent that the declaration in the appellant s favour was made to relate only to the land in Khata No 2 of village Kingarian which was held to be ancestral
On an application made by the appellant on the 26th August 1949 the High Court by its order dated the 5th June 1950 granted him a certificate of fitness to appeal to the Federal Court
After the commencement of the Con stitution of India the appeal has come before this Court for final disposal
The first question raised before us but not very seriously pressed is as to whether the lands in suit other than those in Khata No 2 in village Kingarian were ancestral or self acquired
Our attention has not been drawn to any material on the record which induces us to take a view different from the view concurrently taken by the Courts below
We therefore see no force or substance in this contention 153 1196 The main fight before us has been on the question as to whether there is a custom in the Gurdaspur district governing the parties under which a collateral within the fourth degree excludes the daughter of the last male holder from succession to the self acquired property of her father
The customary rights of succession of daughters as against the collaterals of the father with reference to ancestral and non ancestral lands are stated in paragraph 23 of Rattigan s Digest of Customary Law
It is categorically stated in subparagraph 2 of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the collaterals even though they are within the fourth degree
Rattigan s work has been accepted by the Privy Council as a book of unquestioned authority in the Punjab
Indeedthe correctness of this paragraph was not disputed before this Court in Gopal Singh vs Ujagar Singh1
The general custom of the Punjab being that a daughter excludes the collaterals from succession to the selfacquired property of her father the initial onus there fore must on principle 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 local custom excluding the daughter which is binding on the parties
Indeed it has been so held by the Judicial Committee in Mst
Subhani vs Nawab2 and the matter is now well settled
The appellant claims to have discharged this initial onus in two ways namely 1 by producing the Riwaj i am of the Gurdaspur district prepared by Mr Kennaway in 1913 and 2 by adducing evidence showing that the collaterals of one Harnam Singh who was also a Sarswat Brahmin of the Gurdaspur district and indeed a member of this very family of Gurdial succeeded in preference to his daughter
It is pointed out that no instance has been proved on the part of the respondent showing that the daughter ever excluded the collaterals from succession to the self acquired property of the father
The trial Court 1  2 ILR 1197 as well as the High Court took the view that the evidence as to the succession to the property of Harnam Singh was of no assistance to the appellant for the reason that the evidence was extremely sketchy that it did not appear whether the properties left by Harnam Singh were ancestral or self acquired or whether the properties left by him were of any substantial value at all as would have made it worth while for the daughter to claim the same in addition to the properties gifted to her by her father during his lifetime
Further the fact that the daughter did not contest the succession of the collaterals to the properties left by Harnam Singh even if they were self acquired might well have been the result as held by the High Court of some family arrangement
We find ourselves in agreement with the Courts below that the instance relied upon by the appellant is wholly insufficient to discharge the onus that was on him to displace the general custom recorded in paragraph 232 of Rattigan s Digest of Customary Law
The appellant contends that in any case he has fully discharged the onus that was on him by producing in evidence the Riwaj i am recording the custom of the district of Gurdaspur which was compiled by Mr Kennaway in 1913
Reference is also made to the earlier Riwaj i ams of the Gurdaspur District prepared in 1865 and 1893
Answer to question 16 as recorded in the Riwaj i am of 1913 shows that subject to certain exceptions which are not material for our purpose the general rule is that the daughters are excluded by the widow and male kindred of the deceased however remote
This answer goes much beyond the answers to the same question as recorded in the Riwaj i ams of 1865 and 1893 for those answers limit the exclusion in favour of the male kindred up to certain specified degrees
The answer to question 17 of the 1913 Riwai i am like those to question 17 of the 1865 and 1893 Riwaj i ams clearly indicates that except amongst the Gujjars of the Shakargarh tehsil all the remaining tribes consulted by the Revenue authorities recognised no distinction as to the rights of the daughters to inherit i the immovable or 1198 ancestral and ii the movable or self acquired property of their respective fathers
It is claimed that these answers quite adequately displace the general custom and shift the onus to the respondent to disprove the presumption arising on these Riwaj i ams by citing instances of succession contrary to these answers
In support of this contention reference is made to the observations of the Privy Council in Beg vs Allah Ditta1 that the statements contained in a Riwaj i am form a strong piece of evidence in support of the custom therein entered subject to rebuttal
Reliance is also placed on the observations of the Privy Council in Mt Vaishno Ditti vs Mt Rameshri2 to the effect that the statements in the Riwaj i am might be accepted even if unsupported by instances
The contention is that on production by the appellant of the Riwaj i am of the Gurdaspur district the onus shifted to the respondent to prove instances rebutting the statements contained therein
This it is urged the respondent has failed to do
 There is no doubt or dispute as to the value of the entries in the Riwaj i am
It is well_settled that though they are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom as recorded is in accord with the general custom the quantum of evidence necessary to rebut that presumption will however vary with the facts and
circumstances of each case
Where for instance the Riwaj i am lays down a custom in consonance with the general agricultural custom of the province very strong proof would be required to displace that presumption but where on the other hand the custom as recorded in the Riwaj i am is opposed to the custom generally prevalent the presumption will be considerably weakened
Likewise where the Riwaj i am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities the presumption will be weaker still and only a few instances would be sufficient to rebut it
See Khan Beg vs Mt 1 1916 LR 44 IA 89
2 Lah
186 LR 55 IA 407 1199 Fateh Khatun 1 Jagat Singh vs Mst
Jiwan The principles laid down in these cases were approved of by the Judicial Committee in Mst
Subhani s case supra
Learned counsel appearing for the appellant contends that even if the presumption as to the correctness of the Riwaj i am be weak the respondent has not cited a single instance of a daughter having excluded the collaterals from succession to the selfacquired property of her father and has therefore failed to discharge the onus that was thrown on her as a result of the production by the appellant of the Riwaj i am of 1913 and consequently the appellant must succeed
This argument overlooks the fact that in order to enable the appellant to displace the general custom recorded in Rattigan s work and to shift the onus to the respondent the appellant must produce a Riwaj i am which is a reliable and trustworthy document
It has been held in Qamar ud Din vs Mt Fateh Bano3 that if the Riwaj i am produced is a reliable and a trustworthy document has been carefully prepared and does not contain within its four corners contradictory statements of custom and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be it would be a presumptive piece of evidence in proof of the special custom set up which if left unrebutted by the daughters would lead to a result favourable to the collaterals
If on the other hand it is not a document of the kind indicated above then such a Riwaj i am will have no value at all as a presumptive piece of evidence
This principle has been followed by the East Punjab High Court in the later case of Mohammad Khalil vs Mohammad Bakhsh 4
This being the position in law we have to scrutinise and ascertain whether the Riwaj i ams of the Gurdaspur district in so far as they purport to record the local custom as to the right of succession of daughters to the self acquired properties of their respective father are reliable and trustworthy documents
1  Lah
276 296 297
2 AIR 1935 Lah
3 Lah
4 AIR 1949 EP 252
1200 Twenty two tribes including Brahmins were consulted by Mr Kennaway who prepared the Riwaj i am of 1913
In paragraph 4 of the Preface Mr Kennaway himself states that many of the questions related to matters on which there really existed no custom and the people had merely stated what the custom should be and not what it actually was
In Appendix C  are collected 56 instances of mutuations in which the daughter inherited
In these there are four instances relating to Brahmins
Answer to question 16 as recorded in this Riwaj i am has been discredited and shown to be incorrect in at least three cases namely Gurdit Singh vs Mt Malan1 Kesar Singh vs Achhar Singh1 and Buta Singh vs Mt Harnamon3
The answer to question 16 as recorded in the 1913 Riwaj i am it was pointed out went much beyond the answer given to the same question in the Riwaj i ams of 1865 and 1893
The answer to question 17 of the 1913 Riwaj i am that no distinction is to be made between ancestral and self acquired property has not been accepted as correct in not less than six cases namely Bawa Singh vs Mt Partap4 Jagat Singh vs Mt Jiwan5 Kesar Singh vs Gurnam Singh1 Najju vs Mt Aimna Bibi 7 Gurdit Singh vs Mt Man Kaur8 and Labh vs Mt Fateh Bibi9
The statements in a Riwaj i am the truth of which is doubted by the compiler himself in the preface and which stand contradicted by the instances collected and set out in Appendix C  of the same Riwaj i am and which have been discredited in judicial proceedings and held to be incorrect cannot in our opinion be regarded as a reliable or trustworthy document and cannot displace the initial presumption of the general custom recorded in Rattigan s book so as to shift the onus to the daughter who is the res pondent
The appellant relies on the cases of Ramzan Shah vs Sohna Shah Nanak Chand vs Basheshar Nath11 Mt Massan vs Sawan Mal  and Kesar Singh vs 1 Lah
3642 AIR 1936 Lah 68 3 AIR 1946 Lah 3064 AIR 1935 Lah
5 Ibid 617
6 Ibid 696
7 AIR 1936 Lah
4938 AIR 1937 Lah
9 AIR 1940 Lah
43610 1889 24 PR 191
11 19O843 PR 15
12 AIR 1935 Lah
453 1201 Achhar Singh1
The first three cases are of no assistance to him although the second and third relate to Brahmins of Gurdaspur for the properties in dispute  in those cases were ancestral and the respondent does not now dispute the appellant s right to succeed to her father s ancestral propertie section These cases therefore do not throw any light on the present case which is concerned with the question of succession to selfacquired property
Further in the last case the collaterals were beyond the fourth degree and it was enough for the Court to say that irrespective of whether the properties in dispute were ancestral or selfacquired the collaterals in that case could not succeed
It is also to be noted that the earlier decisions werenot cited or considered in that case
In our opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances
In these circumstances the general custom recorded in Rattigan s book must prevail and the decision of the High Court must be upheld
We accordingly dismiss this appeal with costs
Applal dismissed


Summary:
It is now well settled that the general custom of the Punjab being that a daughter excludes the collaterals from succession to the self acquired property of her father the initial onus therefore must on principle 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 local custom excluding the daughter which is binding on the parties
It is also well settled that though the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom as recorded is in accord with the general custom the quantum of evidence necessary to rebut that presumption will however vary with the facts and circumstances of each case
Where for instance the Riwaj iam lays down a custom in consonance with the general agricultural custom of the province very strong proof would be required to displace that presumption but where on the other hand the custom as recorded in the Riwaj i am is opposed to the custom generally prevalent the presumption will be considerably weakened Likewise 1192 where the Riwaj i am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities the presumption will be weaker still and only a few instances would be sufficient to rebut it
If the Riwaj i am produced is a reliable and a trustworthy document has been carefully prepared and does not contain within its four corners contradictory statements of custom and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be it would be a presumptive piece of evidence in proof of the special custom setup which if left unrebutted by the daughters would lead to a result favourable to the collaterals
If on the other hand it is not a document of the kind indicated above then such a Riwaj i am will have no value at all as a presumptive piece of evidence
The Riwaj i ams of the Gurdaspur district prepared by Mr Kennaway in 1913 in so far as they purport to record the local custom as to the right of the daughter to succeed to the self acquired property of her father are not reliable and trustworthy documents
The answer to question 16 and the answer to question 17 re corded therein do not contain the correct record of custom
Held that the appellants collateral within fourth degreea Saraswat Brahmin of Pathankot in the district of Gurdaspur had failed to discharge the onus that initially rested on him that the respondent the daughter was excluded by him in respect of the nonancestral property of her father and that therefore no burden was cast on her of adducing evidence of particular instances
The general custom laid down in para 23 of Rattigan s Digest of Customary Law that a daughter is preferred to collaterals in regard to the self acquired property of tier father was approved by the Supreme Court
Butta Singh vs Mt Harnamon AIR 1946 Lab 306 Gopal Singh vs Ujagar Singh    Mst
Subhani vs Nawab ILR 1940 Lab
154 Beg vs Allah Ditta  1916 LR 44 IA 89 Mt Vaishno Ditti vs Mt Rameshri  Lab 186 LR 55 IA 407 Khan Beg vs Mt Fateh Khatun  Lab
276 Jagat Singh vs Mst
Jiwan AIR 1935 Lab
617 Qamar ud din vs Mt Fateh Bano 1943 ILR 26 Lab 110 Mohammad Khalil vs Mohammad Bakhsh AIR 1949 EP 252 Gurdit Singh vs Mt Malan 1924 ILR 5 Lab
364 Kesar Singh vs Achhar Singh AIR 1936 Lab
68 Bawa Singh vs Mt Partap AIR 1935 Lab 288 Kesar Singh vs Gurnam Singh AIR 1935 Lab
696 Najju vs Mt Aimna Bibi AIR 1936 Lab 493 Gurdit Singh vs Mt Man Kaur AIR 1937 Lab 90 Labh vs Mt Fateh Bibi AIR 1910 Lab 436 Ramzan Shah vs Sohna Shah 1889 24 PR 191 Nanak Chand vs Basheshar Nath  1908 43 PR 15 and Mt Massan vs Sawan Mal A I R 1935 Lab 453 referred to 1193