Case: Kehar Singh &amp; Ors Vs. Chanan Singh &amp; Ors

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. In Har Narain v. Mst. Deoki, (1893) 24 Pun Re p. 124 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 v. Sayad Hussain Shah, (1901) 102 Pun Re p. 353 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 minimise the rights of others and to extend their own." The same view was expressed by the Lahore High Court in a still later case-Bholi v. Man Singh, (1908) 86 Pun Re p. 402 where the Riwaj-i-am bad 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 the Court in Salig Ram v. Mst. Maya Devi 1955 (1) SCR 1191 = (AIR 1953 SC 266). 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 daughters 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 weakened 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 AIR 1916 Lab 343. 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 Gil 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 within this case. The second instance is reported as Ratta v. Mst.Jai Kaur, 35 Pun LR 69:(AIR 1933 Lah 867).It is a 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 was decided upon the admission of Counsel for the collaterals but it is improbable that if there was material evidence support of the collaterals the Counsel would have made such an admission. The third instance referred to by the High Court is R. F. A. 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 Muktar 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 he 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 opinions it has been sufficiently discharged by the evidence adduced by the respondents in this case. It is necessary to add that the appellants have not relied upon any instances in support of their case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 defendantsIt should be noticed that Questions 16 and 17 of the Wilsons Manual are couched in similar language to Questions 48 and 49 of the Riwaj-i-am 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-am 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 custom 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 as recorded generally for the State of Punjab in paragraph 23 of Rattigans Digest i, e., a daughter is preferred to collaterals5. We shall, nowever, assume to 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 reasons 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 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 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 appearing before the revenue authorities, the presumption would be weaker still, and very little evidence would suffice to rebut itAs 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 within this caseConsidering 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 opinions it has been sufficiently discharged by the evidence adduced by the respondents in this case. It is necessary to add that the appellants have not relied upon any instances in support of their case.