Case ID: 2338

Judgment:
Appeal No. 781 of 1964. Appeal from the judgment and decree dated September 6	 1961 of the Punjab High Court in Regular Second Appeal No. 54 of 1960. N. section Bindra	 Kartar Singh Suri	 Champat Rai and E. C. Agrawala	 for the appellants. section P. Sinha	 section K. Mehta and K. L. Mehta	 for respondents Nos. 1	 3	 5 and 6. Bishan Narain	 section K. Mehta and K. L. Mehta	 for respondent No. 4. The Judgment of the Court was delivered by Ramaswami	 J. The question to be considered in this appeal is whether under the customary law applicable to Sidhu Jats of Muktsar Tahsil of Ferozepore district collaterals of the 5th degree of the deceased land owner could take precedence over his married daughters in succession to his non ancestral property. The dispute relates to 1574 kanals 4 marlas of land situated 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. Indi died on September 8	 1955 and thereafter the estate was mutated by the revenue authorities on February 1	 1956 in favour of the defendants who were the reversioners of her husband in the 5th degree. Nihal Kaur is the daughter of Dulla Singh. On November 14	 1957 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 653 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. 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 Rattigan 's 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 father 's 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 daughter 's 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 daughters. 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. On the question of custom the respondents relied upon the statements in paragraph 23 of Rattigan 's Digest of Customary Law (14th Edn.)	 a book of unquestioned authority in the Punjab	 State. In para 23	 p. 132 it is stated that (1) a daughter only succeeds to the ancestral landed property of her father	 if an agriculturist	 in default : (1) of the heirs mentioned in the preceding paragraph (viz.	 male lineal descendants	 widow or mother)	 or (2) of near male collaterals of her father	 provided that a married daughter sometimes excludes near male collaterals in certain circumstances specified in the paragraph	 (2) But in regard to the acquired property of her father	 the daughter is preferred to collaterals. It is further stated at p. 152 that "the general custom of Punjab is that a daughter excludes collaterals in succession to self acquired property of her father and the initial onus	 therefore	 is 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 custom 654 excluding daughters". This being the legal position of the parties the question arises whether the defendants had discharged the onus 	of proving the existence of a special custom excluding the daughters. On this point the appellants relied upon the answers to 	Questions 48 and 49 in the Compilation of the Customary Law of Ferozepore district by M.M.L. Currie	 Settlement Officer. These 	questions and answers are comprised in the Riwaj i am of the settlement of Ferozepore district of 1914 and are reproduced below : " Question 48 Under what circumstances are daughters entitled to inherit ? Are they excluded by the sons or near male kindreds of the deceased ? If they are excluded by the near male kindred	 is there any fixed limit of relationship within which such near male kindred must stand towards the deceased in order to exclude his daughter ? If so	 how is the limit ascertained? If this depends on descent from a common ancestor	 state within how many generations relatively to the deceased such common ancestor must come? Answer At last settlement Mr. Francis wrote "Except a few Sayyads all tribes say that a daughter can never succeed. Some Sayyads say that an unmarried daughter can succeed like a son; but no instances are given. ' The custom has now changed completely	 most tribes admitting that a daughter is entitled to succeed till marriage in the absence of a widow or male lineal descendants. The following groups	 however	 do not admit that a daughter can succeed : Dogars of Fazilka	 Nipals	 Sayyads of Ferozepore	 Zira and Muktsar	 Bodlas (unless there are no collaterals in the 5th degree)	 	Chishtis (unless no collaterals in the 7th degree)	 Pathans of Ferozepore (except the Kasuria group)	 Rajputs of Fazilka	 Wattus of Zira and Fazilka	 Moghals except in Ferozepore	 Mahtams	 Sodhis	 Bagri Jats	 Kumhars and Suthars	 Bishnois and the following Jat Sikhs in Fazilka Tahsil Dhaliwals	 Sidhhus	 Gils and Sandhus. The Kasuria Pathans state that a daughter succeeds if there are no sons	 and the Arians state that she excludes collaterals who do not come within the 4th degree. Question 49 Is there any distinction as to the rights of daughters to inherit (i) the immovable or ancestral	 (ii) the movable or acquired property of their father ? 655 Answer There is no distinction. A father can of course gift his movable or acquired property to his daughter. " 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 defendants. It was contended on behalf of the appellants that the Riwaj i am of 1914 was entitled to a presumption as to the existence of a custom even though not supported by proof of instances and it must therefore be held that the defendants have discharged the initial onus of proving that the general custom has been varied by a special custom enabling them to exclude the married daughter. The real controversy in this appeal is	 however	 on the question whether the entries in the Riwaj i am on which the defendants rely refer at all to non ancestral property or not. In Mst. Raj Kaur vs Talok Singh(1) Sir Donald Johnstone	 the Chief Justice held that the Riwaj i am as compiled	 did not cover self acquired property and that where the Riwaj i am talked about succession to land without discrimination between ancestral and self acquired land	 the rule laid down could only be taken to apply to ancestral property. This case related to property in Ferozepore district	 though with regard to a different tehsil and different sub caste of Jats	 but the important point is that the questions of the Riwaj i am of 1878 in that case were exactly in the same language as questions 48 and 49 of the Riwaj i am of 1914. A similar view was taken by Shadilal and Wilberforce	 JJ. in Budhi Prakash vs Chandra Bhan(2). The view was followed by other judges of the Lahore High Court in Narain vs Mst. Gaindo(3)	 and Fatima Bibi vs Shah Nawaz ( 4 ) . In Abdul Rahman vs Mst. Natho(5) it was observed by the High Court as follows : " According to the Customary Law of the district	 collaterals within the fifth degree exclude daughters	 but it has been consistently held by this Court that Riwaj i am refer only to ancestral land unless there is a clear statement to the contrary. It is unnecessary to refer to the numerous decisions on this point. Customary law is in fact usually only concerned with protecting ancestral property	 while self acquired property can be disposed of as the owner pleases	 that is	 reversioners are usually concerned only with property ancestral qua them." (1) A.I.R. 1916 Lah. 343. (2) A.I.R. 1918 Lah. (3) A.I.R. 1918 Lah. (4) A.T.R. 1921 Lab. (5) I.L.R. 656 The decision of this case was affirmed by the Full Bench of the Lahore High Court in Mst. Hurmate vs Hoshiaru(l). Din Mohammad	 J. delivering the leading judgment in this case		 observed as follows : "In my view	 the raison d ' etre of those cases which lay down that the Manuals of Customary Law were ordinarily concerned with ancestral property only is quite intelligible. Collaterals are	 as stated by Addison	 J. in Abdul Rehman vs Mst. Natho ( 2 ) really speaking interested in that property only which descends from their common ancestor and this is the only basis of the agnatic theory. What a maleholder acquires himself is really no concern of theirs. It is reasonable	 therefore	 to assume that when manuals of customary law were originally prepared and subsequently revised	 the persons questioned	 unless specifically told to the contrary	 could normally reply in the light of their own interest alone and that	 as stated above	 was confined to the ancestral property only. The fact that on some occasions the questioner had particularly drawn some distinction between ancestral and non ancestral property would not have put them on their guard in every case	 considering their lack of education and lack of intelligence in general. Similarly	 the use of the terms 'in no case ' or 'under no circumstances ' would refer to ancestral property only and not be extended so as to cover self acquired property unless the context favoured that construction. " The decision of the Full Bench of the Lahore High Court was approved by the Judicial Committee in Mst. Subhani vs Nawab and Ors.(3) in which the controversy arose with regard to the interpretation of questions 16 and 17 and the answers thereto in Wilson 's Manual of Customary Law which are reproduced below "Question 16 (p. 48) Under what circumstances are daughters entitled to inherit ? Are they excluded by the sons or by the widow	 or by the near male kindred of the	 deceased ? If they are excluded by the near male kindred	 is there any fixed limit of relationship within which such near kindred must stand towards the deceased in order to exclude his daughters ? If so	 how is the limit ascertained ? If it depends on descent from a common ancestor	 state within how many generations relatively to the deceased such common ancestor must come. (1) I.L.R. I.L.R. (3) 68 I. A. 1. 657 Answer 16 All Musalmans. A married daughter in no case inherits her father 's estate or any share in it. An unmarried daughter succeeds to no share in presence of agnate descendants of the deceased	 or of her own mother; but if there be no agnate descendants and no sonless widow	 the un married daughters succeed in equal shares to the whole of their father 's property	 movable and immovable	 till their marriage	 when it reverts to the agnate heirs. If there be a widow and daughters of another wife who has died	 the unmarried daughters of the deceased wife succeed to their mother 's share till their marriage. Question 17 (p. 49) Is there any distinction as to the rights of daughters to inherit (1) the immovable or ancestral	 (2) the movable or acquired	 property of their father? Answer 1.7 All Musalmans. As regards the right of the daughter to inherit	 no distinction is made between the movable and immovable ancestral and acquired	 property of the father. If she inherits at all she takes the	 whole estate. " It was held by the Judicial Committee that though in the answers to question No. 17 in Wilson 's Manual no distinction was made between ancestral and non ancestral or between movable and immovable property	 and the rule was stated as a wide generalization (in answer to question No. 16) that a married daughter in no case inherits her father 's estate or any share in it	 it must be taken in view of the numerous decisions of the Punjab courts that the Riwaj i am which states the rule in such wide and general terms governs ancestral property only. It should be noticed that Questions 16 and IT of the Wilson 's Manual are couched in similar language to Questions 48 and 49 of the Riwaj i ani 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 ani 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 customs 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 658 as recorded generally for the State of Punjab in paragraph 23 of Rattigan 's Digest i.e.	 a daughter is preferred to collaterals. We shall	 however	 assume in 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 reason 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 parti cular 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 appearig before the revenue authorities	 the presumption would be weaker still	 and very little evidence would suffice to rebut it. In Narain vs Mst. Deoki(l)	 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 vs Sayad Hussain Shah (2) 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 minimize the rights of others and to extend their own. (1) (1893) 24 P R. 124. (2) (1901) 102 P.R. 353. 6 5 9 The same view was expressed by the Lahore High Court in a still later case Bholi vs Man Singh(1) where the Riwaj i am had 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 this Court in Mahant Salig Ram vs Mst. Maya Debi(2) 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 daughter 's 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 weak ened 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 Mst. Rai Kaur vs Talok Singh(3). 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 Gill 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 with in this case. The second instance is reported as Ratta vs Mst. Jai Kaur(4). It is 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 (1) (1908) 86 P.R. 402. (3) A.T.R. L2 SupCI/68 12 (2) [1955]1 S.C.R. 1191. (4) 660 was decided upon the admission of Counsel for the collaterals but it is improbable that if there was material evidence in 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 Muktsar 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 be 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 opinion it has been sufficiently discharged by the evidence adduced by the respondents in this case. It is necessary to add that the appellants defendants have not relied upon any instances in support of their case. For the reasons expressed we hold that the judgment of the High Court dated September 6	 1961 in Regular Second Appeal No. 54 of 1960 is correct and this appeal must be dismissed with costs.

Summary:
D	 a Sidhu Jat of Muktsar Tahsil	 Ferozepore District	 Punjab was tile last male holder of certain land in that area. He was succeeded by his widow after whose death	 the land was mutated in favour of D 's collaterals in the 5th degree. D 's daughter filed a suit for a declaration that she was the legal heir of .he land and was entitled to inherit to the exclusion of the collaterals. The trial court held that the land was not ancestral but the defendants were preferential heirs under the custom of the district. The decree was affirmed by the first appellate court. In second appeal	 however	 the High Court decided in favour of the plaintiff holding that the general custom recorded in Rattigan 's Digest had not been shown to be displaced by any special custom in the Riwaj i am	 The defendants appealed. HELD : The entries in the Riwaj i am on which the appellants relied	 did not refer at all to non ancestral property and were 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. The appellants had not discharged the onus which lay upon them of proving that the general custom had been varied by a special custom enabling the collaterals to exclude the daughters. It was manifest therefore that the customary law among the Sidhu Jats of Muktsar Tahsil of Ferozepore district Is regards non ancestral property was the same as recorded generally for the State of Punjab in Paragraph 23 of Rattigan 's Digest i.e. a daughter is preferred to collaterals. [657 G H] Mst. Rai Kaur vs Talok Singh	 A.I.R. 1916 Lab. 343	 Budhi Prakash vs Chandra Bhan	 A.I.R. 1918 Lab. 225	 Narain vs Mst. Gaindo	 A.I.R. 1918 Lab. 304	 Fatima Bibi vs Shah Nawaz. A.I.R. 1921 Lab. 180	 Abdul Rahiman vs Mst. Natho	 I.L.R. [1932] 13 Lab. 458	 Mst. Hurmate vs Hoshiaru	 I.L.R. 25 Lab. 228 and Mst. Subhani vs Nawab and Ors. 	 68 I.A. 1	 referred to. (ii) Even on the assumption that the Riwaj i am entries referred to the non ancestral property of the last male holder the appellants could not succeed. For 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 & her hand	 this was not the case	 and the custom as recorded in the Riwaj i am was opposed to the rules generally 652 prevalent the presumption would be considerably weakened. Likewise	 when 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 it. [658 B D] Har Narain vs Mst. Deoki	 (1893) 24. P.R. 124. Sayad Rahim Shah vs Sayad Hussain Shah	 (1901) 102 P. R. 353	 Bholi vs Man Singh	 ( 1908) 86 P. R. 402 and Mahant Salig Ram vs Mst. Maya Devi 	 referred to. (iii)In. the present case the High Court bid mentioned three instances in its judgment which showed that the presumption attaching to Riwaj i am had been rebutted in this case. The appellant 's defendants had not relied upon any instances in support of their case. The High Court therefore rightly decided in favour of the plaintiffs. [660 C D] Mst. Rai Kaur vs Talok Singh	 A.I.R. 1916 Lah. 343	 Ratta vs Mst Jai Kaur	 and R.F.A. No. 220 of 1954 decided by the Punjab High Court on April 11 1961	 referred to.