Case: Mahant Salig Ram Vs. Musammat Maya Devi

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 v. Mt. Fateh Khatun ([1931] I.L.R. 13 Lah. 276, 296, 297), Jagat Singh v. Mst. Jiwan (A.I.R. 1935 Lah. 617)]. The principles laid down in these cases were approved of by the Judicial Committee in Mst. Subhanis case supra.10. 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 self-acquired 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 Rattigans 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 v. Mt. Fateh Bano ([1943] I.L.R. 26 Lah. 110) 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 v. Mohammad Bakhsh (A.I.R. 1949 E.P. 252). This being the position in law, we have to scrutinise and ascertain whether the Riwaj-i-am 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.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 v. Mt. Malan ([1924] I.L.R. 5 Lah. 364), Kesar Singh v. Achhar Singh (A.I.R. 1936 Lah. 68) and Buta Singh v. Mt. Harnamon (A.I.R. 1946 Lah. 306). 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 v. Mt. Partap (A.I.R. 1935 Lah. 288), Jagat Singh v. Mt. Jiwan (Ibid, 617), Kesar Singh v. Gurnam Singh (Ibid. 696), Najju v. Mt. Aimna Bibi (A.I.R. 1936 Lah. 493), Gurdit Singh v. Mt. Man Kaur (A.I.R. 1937 Lah. 90), and Labh v. Mt. Fateh Bibi (A.I.R. 1940 Lah. 436). 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 Rattigans book so as to shift the onus to the daughter who is the respondent.The appellant relies on the cases of Ramzan Shah v. Sohna Shah ([1889] 24 P.R. 191), Nanak Chand v. Basheshar Nath ([1908] 43 P.R. 15), Mt. Massan v. Sawan Mal (A.I.R. 1935 Lah. 453) and Kesar Singh v. Achhar Singh (A.I.R. 1936 Lah. 68). 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 appellants right to succeed to her fathers ancestral properties. These cases, therefore, do not throw any light on the present case which is concerned with the question of succession to self-acquired 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 self-acquired the collaterals in that case could not succeed. It is also to be noted that the earlier decisions were not cited or considered in that case.11. 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 circumstance, the general custom recorded in Rattigans book must prevail and the decision of the High Court must be upheld.

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

Explanation:
0[ds]The trial Court 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 23(2) of Rattigans Digest of Customaryappellant 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 complied 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 Riwaj-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 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 theseour 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 circumstance, the general custom recorded in Rattigans book must prevail and the decision of the High Court must be upheld.