Case: Mahant Salig Ram Vs. Musammat Maya Devi

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 1962, a portion of the land in village Bhadroya was acquired for the Kangra Valley Railway and a sum of Rs. 1, 539-7-0 was awarded to Musammat Melo. On an 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 Musammatthe 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 ofthe 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 Rs. 1, 539-7-0 in preference to the respondent under the custom governing the parties whereunder the collaterals of the last male holder excluded therespondent contested the suit mainly on the groundsthat the suit for a mere declaration was not maintainable,(ii) that the parties were governed by Hindu Law and not by custom,(iii) that the appellant was not a collateral of Gurdial at all,(iv) that 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 self-acquired property of herSubordinate Judge in his judgment pronounced on the 31st October 1946 heldthat 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. 1, 539-7-0 was not maintainable in view of the provisions of the Indian Succession Act relating to succession certificates,(ii) that the parties were governed by custom and not by Hindu Law,(iii) that the appellant was a collateral of Gurdial within four degrees,(iv) that 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 a 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 v. Mt. Harnamon (A.I.R. 1946 Lah.the result, the Subordinate Judge decreed the suit in respect only of the lands in suit and ordered the parties to bear their ownthis 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 Eastits judgment dated the 28th July 1949 the East Punjab High Court allowed the appeal and dismissed the cross-objections on the following findingsthat 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 fourthHigh Court accordingly modified the decree of the Subordinate Judge to the extent that the declaration in the appellants 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 Constitution of India the appeal has come before this Court for final disposal.

Reasoning: 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.