Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
KEHAR SINGH & ORS.
Vs.
RESPONDENT:
CHANAN SINGH & ORS.
DATE OF JUDGMENT:
14/12/1967
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
BHARGAVA, VISHISHTHA
CITATION:
1968 AIR 806 1968 SCR (2) 651
ACT:
Customary law, Punjab-Sidhu Jats of Muktsar Tahsil of
Ferozepore District-5th degree callaterals, of deceased
landowner whether take precedence over his married daughters
in succession to his non-ancestral property-General custom
in Rattigan’s Digest or special custom in Riwaj-i-am-Which
to prevail.
HEADNOTE:
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 v. Talok Singh, A.I.R. 1916 Lab. 343, Budhi
Prakash v. Chandra Bhan, A.I.R. 1918 Lab. 225, Narain v.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
Mst. Gaindo, A.I.R. 1918 Lab. 304, Fatima Bibi v. Shah
Nawaz. A.I.R. 1921 Lab. 180, Abdul Rahiman v. Mst. Natho,
I.L.R. [1932] 13 Lab. 458, Mst. Hurmate v. Hoshiaru, I.L.R.
25 Lab. 228 and Mst. Subhani v. 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 v. Mst. Deoki, (1893) 24. P.R. 124. Sayad
Rahim Shah v. Sayad Hussain Shah, (1901) 102 P. R. 353,
Bholi v. Man Singh, ( 1908) 86 P. R. 402 and Mahant Salig
Ram v. Mst. Maya Devi [1955] 1 S.C.R. 1191, 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 v. Talok Singh, A.I.R. 1916 Lah. 343, Ratta
v. Mst Jai Kaur, (1934) P.L.R. 69 and R.F.A. No. 220 of 1954
decided by the Punjab High Court on April 11 1961, referred
to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil 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. S. Bindra, Kartar Singh Suri, Champat Rai and E. C.
Agrawala, for the appellants.
S. P. Sinha, S. K. Mehta and K. L. Mehta, for respondents
Nos. 1, 3, 5 and 6.
Bishan Narain, S. 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.
Suit. Indi died on September 8, 1955 and thereafter the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
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. Smt. 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. 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 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
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 v. 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 v. Chandra Bhan(2). The view was followed by other
judges of the Lahore High Court in Narain v. Mst.
Gaindo(3), and Fatima Bibi v. Shah Nawaz ( 4 ) . In Abdul
Rahman v. 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. 225.
(3) A.I.R. 1918 Lah. 304. (4) A.T.R. 1921
Lab. 180.
(5) I.L.R. [1932] 13 Lah. 458.
656
The decision of this case was affirmed by the Full Bench of
the Lahore High Court in Mst. Hurmate v. 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 v. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
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 v. 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. 25 Lah. 228.
I.L.R. [1932] 13 Lah. 458.
(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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
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 v.
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 v. 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
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 v. 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 v. 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 v. 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 v. 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. 1916 Lah. 343.
L2 SupCI/68 12
(2) [1955]1 S.C.R. 1191.
(4) (1934) P. L.R. 69.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
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.
G.C. Appeal
dismissed
661