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

2. The dispute relates to 1574 kanals 4 marlas of land situate 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. Smt. Indi died on September 8, 1955 and thereafter the estate was mutated by the revenue authorities on February 11, 1956 in favour of the defendants who were the reversioners of her husband in the 5th degree. Smt. Nihal Kaur is the daughter of Dulla Singh On November 14, 1057 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 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 Mst 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 Rattigans 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 fathers 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 daughters 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 daughters3. 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

Reasoning:
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.