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PETITIONER: MAHANT SALIG RAM

       Vs.

RESPONDENT: MUSAMMAT MAYA DEVI.

DATE OF JUDGMENT: 21/01/1955

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER

CITATION:  1955 AIR  266            1955 SCR  (5)1191

ACT: Custom-succession-Non-ancestral   property-Daughter   versus collateral   within  fourth  degree-Saraswat   Brahmins   of Pathankot  in the District  of  Gurdaspur-Biwaj-i-am-Entries therein-Value  of -Riwaj-i-am of Gurdaspur District  of  the year  1913-Whether- a reliable document-Answer to  questions 16 and 17-Value of.

HEADNOTE: It is now well-settled that the general custom of the Punjab being   that  a  daughter  excludes  the  collaterals   from succession  to the self-acquired property of her father  the initial  onus,  therefore,  must, on principle,  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 local custom  excluding the daughter which is binding on the parties. It  is  also  well-settled that though the  entries  in  the Riwaj-i-am are entitled to an initial presumption in  favour of their correctness irrespective of the question whether or not  the custom, as recorded, is in accord with the  general custom,  the  quantum of evidence necessary  to  rebut  that presumption   will,  however,  vary  with  the   facts   and circumstances of each case.  Where, for instance, the Riwaj- iam  lays  down  a custom in  consonance  with  the  general agricultural custom of the province, very strong proof would be required to displace that presumption; but where, on  the other  hand,  the custom as recorded in  the  Riwaj-i-am  is opposed  to the custom generally prevalent, the  presumption will be considerably weakened, Likewise, 1192 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. 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

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the  custom  should be, it would be a presumptive  piece  of evidence in proof of the special custom setup, 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. The  Riwaj-i-ams of the Gurdaspur district prepared  by  Mr. Kennaway  in  1913 in so far as they purport to  record  the local  custom as to the right of the daughter to succeed  to the  self-acquired property of her father are  not  reliable and trustworthy documents. The answer to question 16 and the answer to question 17  re- corded therein do not contain the correct record of custom. Held,  that the appellants collateral within fourth  degreea Saraswat  Brahmin of Pathankot in the district of  Gurdaspur had  failed to discharge the onus that initially  rested  on him  that the respondent (the daughter) was excluded by  him in  respect of the nonancestral property of her  father  and that  therefore  no  burden  was cast  on  her  of  adducing evidence of particular instances. The general custom laid down in para 23 of Rattigan’s Digest of   Customary  Law  that  "a  daughter  is   preferred   to collaterals in regard to the self-acquired property of  tier father" was approved by the Supreme Court. Butta  Singh v. Mt.  Harnamon (A.I.R. 1946 Lab. 306),  Gopal Singh  v. Ujagar Singh ( [1955] 1 S.C.R. 86), Mst.   Subhani v.  Nawab  (I.L.R. [1940] Lab. 154), Beg v.  Allah  Ditta  ( [1916] L.R. 44 I.A. 89), Mt.  Vaishno Ditti v. Mt.  Rameshri ( [1928] I.L.R. 10 Lab. 186; L.R. 55 I.A. 407), Khan Beg  v. Mt.  Fateh Khatun ( [1931] I.L.R. 13 Lab. 276), Jagat  Singh v.  Mst.  Jiwan (A.I.R. 1935 Lab. 617), Qamar-ud-din v.  Mt. Fateh  Bano ([1943] I.L.R. 26 Lab. 110), Mohammad Khalil  v. Mohammad Bakhsh (A.I.R. 1949 E.P. 252), Gurdit Singh v.  Mt. Malan  ([1924]  I.L.R. 5 Lab. 364), Kesar  Singh  v.  Achhar Singh  (A.I.R.  1936  Lab. 68), Bawa Singh  v.  Mt.   Partap (A.I.R. 1935 Lab. 288), Kesar Singh v. Gurnam Singh  (A.I.R. 1935  Lab. 696), Najju v. Mt.  Aimna Bibi (A.I.R. 1936  Lab. 493),  Gurdit Singh v. Mt.  Man Kaur (A.I.R. 1937 Lab.  90), Labh v. Mt.  Fateh Bibi (A.I.R. 1910 Lab. 436), Ramzan  Shah v. Sohna Shah ([1889] 24 P.R. 191), Nanak Chand v. Basheshar Nath ( [1908] 43 P.R. 15) and Mt.  Massan v. Sawan Mal (A-I- R. 1935 Lab. 453), referred to, 1193

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 118 of 1953. Appeal from the Judgment and Decree dated the 28th July 1949 of  the High Court of Judicature for the State of Punjab  at Simla in Civil Regular First Appeal No. 365 of 1946  arising out of the Decree dated the 31st day of October 1946 of  the Court of the SubJudge, 1st Class, Pathankot in Suit No.  110 of 1945. Rajinder Narain, for the appellant. K.   L. Gosain (R.  S. Narula and Naunit Lal, with him), for the respondent. 1955.  January 21.  The Judgment of the Court was  delivered by DAS  J.-This is an appeal by the plaintiff in a suit  for  a declaration of his title as collateral within’ four  degrees of Gurdial, who was a Sarswat Brahmin, resident of Pathankot in the district of Gurdaspur and the last male holder of the properties in suit.

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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 1926, 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  ail 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 Musammat Melo. On  the  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 of Gurdial. On  the 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 1194 Rs.  1  539-7-0 in preference to the  respondent  under  the custom  governing the parties *hereunder the collaterals  of the last male holder excluded the daughter. The respondent contested the suit mainly on the grounds- (i)  that   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 selfacquired property of her father. The Subordinate Judge in his judgment pronounced on the 31st October 1946 held- (i)  that 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 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(1). In  the  result, the Subordinate Judge decreed the  suit  in respect only of the lands in suit and ordered the parties to bear their own costs. (1)  A.I.R. 1946 Lah. 306.                             1195 Against this 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.

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After  the partition of India the appeal was transferred  to the High Court of East Punjab. By  its  judgment dated the 28th July 1949 the  East  Punjab High  Court  allowed  the appeal and  dismissed  the  cross- objections on the following findings:- (i)  that 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 fourth degree. The  High  Court  accordingly modified  the  decree  of  the Subordinate Judge to the extent that the declaration in  the appellant’s  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  Con- stitution of India the appeal has come before this Court for final disposal. The  first question raised before us but not very  seriously pressed is as to whether the lands in suit other than  those in Khata No. 2 in village Kingarian were ancestral or  self- acquired.  Our attention has not been drawn to any  material on the record which induces us to take a view different from the  view  concurrently  taken by  the  Courts  below.   We, therefore, see no force or substance in this contention, 153 1196 The  main  fight before us has been on the  question  as  to whether  there  is  a  custom  in  the  Gurdaspur   district governing  the parties under which a collateral  within  the fourth degree excludes the daughter of the last male  holder from succession to the self-acquired property of her father. The  customary rights of succession of daughters as  against the  collaterals of the father with reference  to  ancestral and  non-ancestral  lands  are stated  in  paragraph  23  of Rattigan’s  Digest  of Customary Law.  It  is  categorically stated  in  subparagraph  (2) of  that  paragraph  that  the daughter  succeeds  to  the self-acquired  property  of  the father in preference to the collaterals even though they are within the fourth degree.  Rattigan’s work has been accepted by the Privy Council as "a book of unquestioned authority in the  Punjab".  Indeed,the correctness of this paragraph  was not  disputed  before this Court in Gopal  Singh  v.  Ujagar Singh(1).   The  general custom of the Punjab being  that  a daughter  excludes  the collaterals from succession  to  the selfacquired property of her father the initial onus, there- fore, must, on principle, 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  local  custom excluding the  daughter  which  is binding on the parties.  Indeed, it has been so held by  the Judicial  Committee  in Mst.  Subhani v.  Nawab(2)  and  the matter is now well-settled. The appellant claims to have discharged this initial onus in two  ways,  namely (1) by producing the  Riwaj-i-am  of  the Gurdaspur district prepared by Mr. Kennaway in 1913 and  (2) by  adducing  evidence showing that the collaterals  of  one Harnam  Singh,  who  was  also  a  Sarswat  Brahmin  of  the Gurdaspur  district and indeed a member of this very  family

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of  Gurdial succeeded in preference to his daughter.  It  is pointed out that no instance has been proved on the part  of the  respondent showing that the daughter ever excluded  the collaterals from succession to the self-acquired property of the father.  The trial Court (1) [1955] 1 S.C R. 86. (2) I.L.R. [1940] Lah. 154. 1197 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 Rattigan’s Digest of Customary Law. The  appellant  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  compiled 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 Riwai-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 1198 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 these answers.  In support of  this  contention reference  is made to the observations of the Privy  Council in Beg v. Allah Ditta(1) that the statements contained in  a Riwaj-i-am form a strong piece of evidence in support of the custom  therein  entered subject to rebuttal.   Reliance  is also placed on the observations of the Privy Council in  Mt. Vaishno  Ditti  v. Mt.  Rameshri(2) to the effect  that  the statements  in  the  Riwaj-i-am might be  accepted  even  if unsupported  by  instances.   The  contention  is  that   on production  by  the  appellant  of  the  Riwaj-i-am  of  the Gurdaspur  district  the onus shifted to the  respondent  to prove instances rebutting the statements contained  therein. This, it is urged, the respondent has failed to do.

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"  There  is  no doubt or dispute as to  the  value  of  the entries  in the Riwaj-i-am.  It is well_settled that  though they  are  entitled to an initial presumption in  favour  of their  correctness irrespective of the question  whether  or not  the custom, as recorded, is in accord with the  general custom, the quantum of evidence    necessary  to rebut  that presumption will, however,    vary   with  the  facts   and. circumstances  of  each  case.  Where,  for  instance,   the Riwaj-i-am lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption; but where, on  the other  hand,  the custom 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. (1)  [1916] L.R. 44 I.A. 89. (2)  [1928] I.L.R. 10 Lah. 186; L.R. 55 I.A. 407                 1199 Fateh Khatun (1), Jagat Singh v. Mst.  Jiwan The  principles laid  down in these cases were approved of by  the  Judicial Committee in Mst.  Subhani’s case supra. 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 selfacquired 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  Rattigan’s 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(3) 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  (4). This  being the position in law, we have to  scrutinise  and ascertain whether the Riwaj-i-ams 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. (1)  [1931] I.L.R. 13, Lah. 276, 296, 297.  (2) A.I.R.  1935 Lah. 617. (3) [1943] I.L.R. 26 Lah. 110.   (4) A.I.R. 1949 E.P. 252. 1200 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

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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(1), Kesar Singh v. Achhar Singh(1) and Buta Singh v. Mt.  Harnamon(3).  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(4),  Jagat  Singh v. Mt.  Jiwan(5),  Kesar  Singh  v. Gurnam  Singh(1), Najju v. Mt.  Aimna Bibi (7) Gurdit  Singh v.  Mt.   Man Kaur(8), and Labh v. Mt. Fateh  Bibi(9).   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  Rattigan’s book so as to shift the onus to the daughter who is the res- pondent. The  appellant relies on the cases of Ramzan Shah  v.  Sohna Shah("),  Nanak Chand v. Basheshar Nath(11), Mt.  Massan  v. Sawan Mal("’) and Kesar Singh v. (1)  [1924] I.L.R. 5 Lah. 364.(2) A.I.R. 1936 Lah. 68. (3)  A.I.R. 1946 Lah. 306.(4)  A.I.R. 1935 Lah. 288. (5)  Ibid, 617.     (6)  Ibid, 696. (7)  A.I.R. 1936 Lah. 493.(8)  A.I.R. 1937 Lah. 90. (9)  A.I.R. 1940 Lah. 436.(10)  [1889] 24 P.R, 191. (11) [19O8]43 P.R. 15.   (12)  A.I.R. 1935 Lah. 453, 1201 Achhar Singh(1).  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 appellant’s  right  to  succeed to  her  father’s  ancestral propertie’s.  These cases, therefore, do not throw any light on the present case which is concerned with the question  of succession  to selfacquired 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 selfacquired the collaterals  in that case could not succeed.  It is also  to be  noted  that  the  earlier  decisions  werenot  cited  or considered in that case. 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   circumstances,  the  general  custom   recorded   in Rattigan’s  book must prevail and the decision of  the  High Court  must be upheld.  We accordingly dismiss  this  appeal with costs. Applal dismissed.