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PETITIONER: UJAGAR SINGH

       Vs.

RESPONDENT: MST.  JEO

DATE OF JUDGMENT: 23/04/1959

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. IMAM, SYED JAFFER SUBBARAO, K.

CITATION:  1959 AIR 1041            1959 SCR  Supl. (2) 781  CITATOR INFO :  R          1961 SC1374  (2)  R          1964 SC1821  (8)  RF         1973 SC1134  (4)  F          1989 SC1359  (19)  RF         1991 SC1654  (15)

ACT: Customary  Law-Proof  of custom-When can be  taken  judicial notice of-Jat agriculturists of the Punjab-Sister inheriting brother’s  property  in  Preference  to   collaterals-Indian Evidence Act, 1872 (1 of 1872), s. 57(1).

HEADNOTE: The  question involved in this appeal was whether under  the customary law of the Punjab a sister was a preferential heir in  respect  of her brother’s self-acquired property,  to  a collateral.  The respondent, the sister, relied on a custom, which she termed a special custom, and on that basis claimed her  brother’s property, and the appellant, a collateral  of the  8th degree of her brother, resisted her  claim  relying solely  on  a general custom stated in paragraph 24  Of  the Rattigan’s Digest of the Customary Laws of the Punjab to the effect  that  sisters were excluded by  collaterals  in  the matter  of  inheritance  to  non-ancestral  property.    The Subordinate judge, and the District judge on appeal, held in favour  of the appellant but the High Court  reversed  their decisions holding that, there was no such general custom  as recorded  by Rattigan and that it was in any event  for  the appellants  to prove that custom and this he had  failed  to do.   The  High  Court also held  that  the  respondent  had succeeded  in  proving  the custom set up by  her.   It  was contended on behalf of the appellant that the High Court was in  error in placing the onus of proving the custom  on  him since the custom was a general custom as stated by Rattigan. Held,  that no distinction could be made between  a  general custom or other customs so far as the need of proof was con- cerned  and the ordinary rule was that all customs,  general or   otherwise,  had  to  be  proved  unless   by   repeated recognition  by the courts a custom had become  entitled  to judicial notice under s. 57(1) of the Evidence Act. Raja Rama Rao v. Raja of Pittapur, (1918) L.R. 45 I.A.  148,

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relied on. Although there could be no doubt that Rattigan’s Digest  was of the highest authority on questions of custom of the  Pun- jab, it was not possible, regard being had to the formidable array  of  conflicting  decisions of the courts  as  to  its existence,  to take judicial notice of the custom  mentioned in paragraph 24 of the Digest, without further proof. Case-law reviewed. Although the respondent had in the plaint relied on a custom and termed it a special custom, that could not amount to an 782 admission which would obviate the necessity of proof of  the general customs or its terms by the appellant. Even  supposing that the High Court was not correct  in  its finding that the respondent had proved the custom  entitling her  to succeed, as the custom set up by the  appellant  had not  also  been established, s. 5 Of the  Punjab  Laws  Act, 1872, applied and the case had to be decided by the personal law of the parties.  The respondent was entitled to base her claim  on  the personal law although in her plaint  she  had relied on a custom.  The personal law of the parties was the Hindu  law and the respondent was entitled to succeed  under that law also. Daya  Ram v. Sohel Singh, 110 P.R. 1906, Abdul Hussein  Khan v.  Bibi Sona Dero, (1917) L.R. 45 I.A. 10 and Mst.   Fatima Bibi v. Shah Nawaz, (1920) I.L.R. 2 Lah. 98, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 296 of 1955. Appeal  by special leave from the judgment and decree  dated September 8, 1952, of the Punjab High Court in Civil Regular Second Appeal No. 327 of 1948, arising out of the  judgment. and decree dated November 21, 1947, of the Court of District Judge, Amritsar, in Appeal No. 212 of 1946 from the judgment and decree dated August 20, 1946, of the Subordinate  Judge, 1st Class, Amritsar, in Suit No. 297 of 1945. Achhru Ram and R. S. Narula, for the appellant. Gurbachan Singh and Madan Lal Kapur, for the respondent. 1959.  April 23.  The Judgment of the Court was delivered by SARKAR, J.-The suit out of which this appeal arises concerns the  right to certain plots of land in  village  Sultanwind, Tehsil  and  District Amritsar in the Punjab.  It  raises  a question of the Punjab customs. Sahib  Singh, the last male owner of the lands  in  dispute, died in December 1918 leaving a widow Nihal Kaur.  The widow succeeded   to  the  lands  but  on  tier  remarriage   soon thereafter,  she  was divested of them and  they  passed  to Sahib  Singh’s  mother,  Kishen Kaur who  died  on  November 12,1942. On Kishen Kaur’s death disputes arose between Sahib  Singh’s sister, Jeo, the respondent in this appeal 783 and his agnatic relation, the appellant Ujagar Singh, as  to the  ownership  of  the lands.  The  Tehsildar  entered  the respondent’s  name as the owner of the lands in the  revenue records  but  on appeal by the appellant, the  Collector  of Amritsar  directed the name of the respondent to be  removed and the appellant’s name to be entered in its place. On  June 11, 1945, the-respondent filed a suit  against  the appellant asking for a declaration that she was the owner of the lands.  In paragraph 3 of the plaint it was stated  that the respondent " came into possession of the properties left by  Kishen  Kaur,  as the heir of her  father  and  brother,

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according  to  the  Zamindara  -Custom  prevalent  in  Mauza Sultanwind among the people of the Got (Sub-caste)  Bheniwal and the custom of the family of her father ". In paragraph 5 it  was stated, " According to the  afore-mentioned  special custom,  the  right of inheritance of the daughter  and  her descendants and in their absence that of the’ sister and her descendants  to the property left by her father and  brother is preferential to that of the collaterals beyond the  fifth degree; no matter whether the property is ancestral or self- acquired." The defence taken in the written statement of the appellant was that " According to the General Custom and the Custom  of  the District of Amritsar, the plaintiff  as  his sister  is in no way the heir of the property left by  (her) brother  in  presence of the reversionary heirs,  no  matter whether  the land is ancestral qua reversionary heirs or  it is  self  acquired.  There is no particular family,  Got  or village  custom of the District of Amritsar." In  substance, the  position  taken  by the appellant was that  he  as  the agnatic  relation or collateral of Sahib Singh was  entitled to the properties under the general custom of the Punjab  in preference  to the respondent.  The question that  the  suit involved was, who was the preferential heir of Sahib Singh. The  suit was heard by the Subordinate Judge, Amritsar,  who found that the appellant was a collateral of Sahib Singh  of the  eighth degree and that the properties in  dispute  were not  ancestral.  He held that the respondent had  based  her claim on a special 784 custom  but bad not been able to establish it  by  necessary evidence and therefore the appellant was to be considered as the preferential heir under the general Custom. The   respondent  then  appealed  to  the  District   Judge, Amritsar.  That learned Judge confirmed the findings of  the Court  below  that the land was not ancestral and  that  the appellant  was  a collateral of Sahib Singh  of  the  eighth degree.  He then held that the general custom of the  Punjab among  the  agriculturists which the parties were,  was,  as stated’  in para. 24 of Rattigan’s Digest of  the  Customary Law  of the Punjab, that " sisters are usually  excluded  as well as their issues " and therefore put the onus of proving any  special custom entitling the sister to succeed  on  the respondent.   On the evidence led by the respondent he  came to the conclusion that she had failed to discharge the  onus and thereupon dismissed the appeal. The  respondent took the matter up in further appeal to  the High  Court  of  Punjab.  Kapur J. who  delivered  the  main judgment  of  the  High Court, observed  that  para.  24  of Rattigan’s Digest did not lay down the custom correctly  and that  the statement there was too broad.  He held  that  the onus  of  proving the custom whereby a sister  was  excluded from  the inheritance lay on the appellant and that  he  had failed  to discharge that onus.  He also held that  even  if the  onus lay on the respondent of proving a  custom  giving her  the right to succeed, she had succeeded in  discharging that onus.  Soni J., another member of the bench which heard the  appeal, delivered a short judgment in  effect  agreeing with  the  view  of Kapur J. In the result  the  High  Court allowed  the appeal and upheld the respondent’s claim.   The present appeal is from this judgment of the High Court. It  is  not  in  dispute  that  the  parties  belong  to  an agriculturist Jat tribe and are members of the Bheniwal sub- caste of village Sultanwind in Tehsil and District Amritsar. The  genealogical  table on the record would show  that  the appellant  was a ninth degree collateral of Sahib Singh  and this is what the High Court found.  It was not in dispute in

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the High Court 785 nor  before  us that the properties were not  the  ancestral properties of Sahib Singh. Mr.  Achhru Ram appearing for the appellant  contended  that the  learned Judges of the High Court were wrong in  placing the onus on his client.  His contention was that the general custom in the Punjab among the agriculturist tribes was that sisters  were  excluded  by collaterals  in  the  matter  of succession  to both ancestral and  non-ancestral  properties and  that  custom had been correctly set out  in  Rattigan’s Digest.  That being so, according to him, the respondent was not  entitled  to the properties unless  she  established  a special  custom  of the tribe or family,  entitling  her  to succeed  in  preference to the collaterals and the  onus  of doing  this must, therefore, be on her.  He  contended  that she had failed to discharge the onus. Eminent  Judges have from time to time pointed out that  the use  of the expression " the general custom of the Punjab  " is  inaccurate.  Plowden, J. in Ralla v. Buddha (1) at  page 223  said, " It seems expedient to point out that  there  is strictly  speaking  no such thing as a custom or  a  general custom of the Punjab, in the same sense as there is a common law  of England,a general custom applicable to  all  persons throughout  the province, subject (like the  English  common law) to modification in its application, by a special custom of  a  class,  or by a local custom." Young C.  J.  said  in Mussammat  Semon- v. Shahu (2), "There is no such thing   as -general customary law known to the Legislature’ "  In Kesar Singh  v. Achhar Singh (3 ) Addison A. C. J. said  that  the expression  "general  custom of the Punjab " was  clearly  a misnomer. The  reason given for saying that there is no such thing  as general custom in the Punjab is that custom there is  tribal and even with the same tribe there are different customs for different  localities.  So Sir Charles Roe had said  in  his Tribal Law in the Punjab, " Under such circumstances, seeing that the origin of all the tribes is not the same, and  that even with (1) 50 P.R. I893.        (2) (1934) I.L.R. I7 Lah. 10, 11. (3) (1935) I. L. R. 17 Lah. 101, 106. 99 786 tribes  of the same origin local and social conditions  have greatly differed, it would be impossible that there could be a  single  body of Customary or Tribal law,  common  to  the whole  of the Punjab ": see Rattigan’s Digest (13th Ed.)  p. 157.  Each tribe has its own customs and in the Punjab there are many tribes. None the less however the expression " general custom of the Punjab  " has been frequently used.  It has been used for  a purpose  which  appears  clearly from  the  observations  of Addison  J.  in Kartar Singh v. Mst.  Preeto  (1),  set  out below: " In fact it had become customary even in the Courts to look upon  custom as a thing generally followed and to place  the burden of proof upon any person who asserted that his custom was  not  the same as the so called general  custom  of  the Province.  If this person succeeded in proving the custom he alleged,  the name, I special custom’ was given to it."  The reported decisions very often proceeded on the basis that if there  was a general custom, it did not have to  be  proved; that  anybody wishing to rely on a custom at  variance  with the general custom, must prove it or fail in his claim. It seems to us wrong to say that a general custom need never

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be proved.  It is stated in Halsbury’s Laws of England  (3rd Ed.) Vol. 11, Art. 319 at p. 171, " All customs of which the Courts  do  not  take the judicial notice  must  be  clearly proved to exist-the onus of establishing them being upon the parties  relying upon their existence ". No  distinction  is here  made  between  a general  custom  and  other  customs. Section  48 of the Evidence Act also contemplates the  Proof of  a general custom.  In Daya Ram v. Sohel Singh  Robertson J., said at p. 410 - ".........  It  lies upon the person asserting  that  he  is ruled  in regard to a particular matter by custom, to  prove that he is so governed, and not by personal law, and further to prove what the particular custom is.’) These observations were approved by the Judicial (1) (1935) I.L.R. 17 Lah. 296, 299.  (2) 110 P.R. 1906. 787 Committee in Abdul HuSsein Khan v. Bibi Sona Dero (1). It  therefore appears to us that the ordinary rule  is  that all customs, general or otherwise, have to be proved.  Under s. 57 of the Evidence Act however nothing need be proved  of which courts can take judicial notice. -Therefore it is said that  if  there  is a custom of which the  courts  can  take judicial   notice,   it  need  not  be  proved.    Now   the circumstances  in which the courts can take judicial  notice of a custom were stated by Lord Dunedin in Raja Rama Rao  v. Raja  of  Pittapur  (2), in the following words,  "  When  a custom or usage, whether in regard to a tenure or a contract or  a family right, is repeatedly brought to the  notice  of the Courts of a country, the Courts may hold that custom  or usage  to  be introduced into the law without  necessity  of proof  in each individual case." When a custom has  been  so recognised by the courts, it passes into the law of the land and the proof of it then becomes unnecessary under s.  57(1) of the Evidence Act.  It appears to us that in the courts in the Punjab the expression " general custom " has really been used  in this sense, namely, that a custom has  by  repeated recognition by courts, become entitled to judicial notice as was  said  in Bawa Singh v. Mt.  Taro and Sukhwant  Kaur  v. Balwant Singh (4). Is  there  then  a  custom  that  sisters  are  excluded  by collaterals  in the matter of inheritance  to  non-ancestral properties  of  which  the courts  ought  to  take  judicial notice?   Mr. Achhru Ram contends that such is the  position and it is recognised as such in Rattigan’s Digest  paragraph 24.   There  is no, doubt that Rattigan’s Digest is  of  the highest authority on questions of the customs of the Punjab. But  we  can take judicial notice of a statement  of  custom therein  contained  only if it has been well  recognised  by decisions  of courts of law.  We have been taken  through  a large  number of reported decisions on the question  and  it seems to us that the custom as stated by Rattigan (1) (1917) L.R. 45 I.A. 1O, 13.  (3) A.I.R. 1951 Simla 239. (2)  (1918)  L.R. 45 I.A. 148, 154, 155.   (4)  A.I.R.  1951 Simla 242. 788 cannot  be said to have been so well recognised as  to  have become  entitled  to judicial notice  from  -courts  without further  proof.   We find in the law reports  a  very  large number  of  cases  on the subject of  a  sister’s  right  to inherit, one group of which takes the view that there is  no custom  excluding  sisters from inheritance when  there  are collateral  relations  of the last male holder  and  another group  taking  the  contrary ,view.   It  would  neither  be possible nor profitable to refer to all these cases here but some may be mentioned.

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We shall first mention the cases which do not recognise that a custom excluding sisters from the inheritance exists.   In Makhan  v.  Musammat Nur Bhari (1)  certain  seventh  degree collaterals of the last male holder sued the latter’s sister for possession of his properties.  No claim appears there to have been made by the collaterals that there was any general custom  entitling  them  to succeed  in  preference  to  the sister.   The case having been returned to the  Chief  Court after the enquiry directed by it, Elsmie, J. held: "  The  result of the further enquiry is to  show  that  the plaintiffs have been unable to prove that they are by custom entitled  to exclude the sister of the last owner.   On  the other hand, there is some evidence, though not much, to show that sisters have inherited.  It is indeed quite clear  that no well defined custom is made out one way or the other." The result was that the sister was held entitled to a  share of the properties that came to her under the Mohammedan law, the  parties  being Mohammedans and no  custom  having  been proved  one  way or the other.  This was a case  decided  in 1884. In Sheran v. Mussammat Sharman (2) in which the  collaterals were the plaintiffs and the sister the defendant, it was observed: " On the question of inheritance, for the plaintiffs it  has been  contended that under the general Customary Law of  the Punjab  governing agricultural communities, the  collaterals in the male line, fifth in (1) 116 P.R. 1884. (2) 117 P.R. 1901. 789 descent  from the common ancestor, exclude sisters,  but  we are not prepared to Assent to the wide proposition that such a general custom exists." It  was also there held that there was no general custom  in the Mooltan District whereby collaterals were preferred to a sister.   In the end, no custom having been found  to  exist favouring‘ either side and the parties being Mahomedans, the Mohammedan law was applied and the sister got a share. In Bholi v. Kahna (1), it was remarked that paragraph 24  of Rattigan’s  Digest  was  rather broadly  stated  and  hardly warranted by the authorities quoted for and against. In  Mussammat  Bhari v. Khanun (2), where  the  contest  was between the ninth degree collaterals and a sister, the  onus of proving that the collaterals were entitled to succeed  in preference  to the sister was placed on the collaterals  who were the plaintiffs in the suit, and as the collaterals were unable to discharge the onus placed on them, they lost. In Mst.  Fatima Bibi v. Shah Nawaz (3), it was said that the general rule laid down in paragraph 24 of Rattigan’s  Digest was  open  to  the criticism that it  was  based  mainly  on authorities   regarding  ancestral  property  and   on   the generally accepted principles of agnatic succession which do not  apply  in the case of self acquired property.   It  was also  held that the reported decisions were not such that  a general  rule  could be said to exist on the question  of  a sister’s right to succeed which was so widely accepted  that it  would  justify  a  court  in  coming  to  any   definite conclusion based on custom. In  Samo  v. Sahu (4) it was said that the court  below  was wrong in placing the onus on the sister in a contest between her and the collaterals of the fourth degree, for, there was no  such  thing  as  general  customary  law  known  to  the legislature  and  that Rattigan’s Digest  on  Customary  Law merely ’showed that according to judicial decisions a  large number of tribes were governed by certain customs in certain

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matters. (1) 35 P.R. 1909.          (2) 20 P.  R. 1919. (3)  (1920) I.L.R. 2 Lah. 98.  (4) (1934) I. L. R.  I7  Lah. 10, 11. 790 In  Jagat Singh v. Puran Singh (1), a case decided in  1944, it was observed at p. 369: "  As  I have indicated above there is no  rule  of  special custom when a contest arises between a sister or a  sister’s $on against a near collateral.  Then one has to fall back on general custom.  There is no rule of general custom on  that point.   It  is  no  doubt true  that  in  paragraph  24  of Rattigan’s Digest it has been stated that sisters and  their sons are in general not heirs but that has been said in very wide  terms.   It may be applicable to  cases  of  ancestral property,  but it is difficult to say there is  any  special rule  of  general  custom when a contest  arises  between  a sister and collaterals of the third or fifth degree and  the property is self acquired." In  this case neither a general nor a special custom  having been  proved to exist, the Court based its decision  on  the personal law of the parties, namely, the Hindu law. The cases decided since 1950 all take the view that there is no  general custom giving collaterals preference to  sisters in  matters  of  inheritance.  They  are  Sukhwant  Kaur  v. Balwant  Singh  (supra), Maulu v. Mst.  Ish‘ro  (2),  Harnam Singh  v.  Mst.  Gurdev Kaur (3) and Shrimati Bui  v.  Ganga Singh (4). We  now  come  to the other group of  cases  which  seem  to recognise   the  general  custom  excluding   sisters   from inheritance  when  there are collaterals of  the  last  male holder. In  Hamira  v.  Ram Singh (5), the  Court  approved  of  the decision in Shidan v. Fazal Shah (6), the judgment in  which is set out as an appendix to the report.  In the latter case the  contest  was between a sister and  collaterals  of  the seventh  degree and it was held that the onus of  proving  a custom  entitling the sisters to succeed rested on them  and this  was  based on paragraph 24 of  Rattigan’s  Digest,  an entry  in the Riwaji-i-am which applied to the  parties  and certain reported decisions.  Obviously, Rattigan was  relied upon. (1)  (1944) 49 P.L.R. 366. (2)  (1050) 52 P.L.R. 261. (3)  (1957) 59 P.L.R. 609. (4)  (1959) 61 P.L.R. 145. (5)  134 P.R. 1907. (6)  (1907) P.R. at p. 646. 791 In  Harnamon v. Santa Singh (1) it was said that the  burden of  proving  that  the sister was  entitled  to  succeed  in preference  to a collateral lay on her.  The same  view  was taken  in  Musammat  Nurbhari  v.  Abdul  Ghani  Khan   (2), Mussammat  Hussein Bibi v. Nigahia (3), Jagu v.  Bhago  (4), Began  v.  Ali Gohar (5), Kirpa v. Bakshi  Singh  (6)  (case decided in 1944), Santi in    1944)  and Mussammat Ratni  v. Harwant Singh (7).In     some of these cases paragraph 24 of Rattigan’s  Digest was expressly approved of as applying  to nonancestral properties. It  will  thus appear that there is a  formidable  array  of authorities  in  support of either view.  In this  state  of conflict  of judicial decisions we are not prepared  to  say that a custom giving preference to collaterals over  sisters in the matter of inheritance to non-ancestral properties has been  so widely or uniformly recognised by courts  as  would

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justify us in taking judicial notice of it.  It is important also  to note that it is recognised that a Punjab custom  is fluid and capable of adapting itself to varying  conditions, as  stated  in Hassan v. Jahana (8) and that  the  decisions -for  the  last  ten years are uniformly  against  the  view expressed  in paragraph 24 of Rattigan’s Digest.  We  there- fore come to the conclusion that the High Court was right in its  view  that it could not be held on,  the  authority  of paragraph  24  in Rattigan’s Digest that  a  general  custom excluding  sisters from inheritance as against  collaterals, existed. It was then said that in the plaint it had been admitted  by the respondent that there was a general custom as alleged by the  appellant  and so no proof of that general  custom  was required  in this case.  We do not think this contention  is justified.   No doubt in her plaint the respondent  referred to a custom entitling her to succeed and termed it a special custom.   We are unable to read the reference to  a  special custom as (1) (1912) 13 I.C. 71 I.      (2) 100 P.R. 1916. (3) (1919) 1 Lah. 1.          (4) (1926) 96 I.C. 907. (5) A.I.R. 1934 Lah. 554.     (6) (1948) 50 P.L.R. 220. (7) (1948) 50 P.L.R. 249.     (8) 71 P.R. 1904. 792 amounting to an admission of a general custom or its terms. That  being the position we have to see if either  side  led any  evidence  in  support  of its claim.   So  far  as  the appellant is concerned he has relied on the alleged  general custom and sought to support it by reference to paragraph 24 of Rattigan’s Digest.  It view of what we have said  earlier we  do  not  think that Rattigan’s Digest can  be  taken  as correctly  laying down the custom on the point.  Neither  do we  think that the reported decisions show the existence  of any such general custom.  There is nothing else on which the appellant  has sought to rely.  We therefore think that  the appellant has failed to establish the custom alleged by him. We  have next to see whether the respondent has  proved  the custom  which she set up.  We think that she has.  The  High Court has discussed the evidence led by the respondent,  and found  it acceptable.  We have no reason to take a  contrary view.  ’Some reference to the evidence may now be made,  Ex. P. 4, Settlement Record of 1852, proves that in the  village Sultanwind  Sajja  Singh and Majja Singh  succeeded  to  the properties  of  Nodh  Singh  as his  sister’s  sons  in  the presence of collaterals.  Mr. Achhru Ram contended that  the statement  in  Ex.  P. 4, that Sajja Singh and  Majja  Singh were  the sister’s sons of Nodh Singh was wrong for, in  Ex. P.  5,  the Settlement Records of 1891 and 1892,  they  were described  as the daughter’s sons of Nodh Singh  and  Baghel Singh, his brother.  He contended that on the authorities it is  clear that on a conflict between two settlement  records the  later one in date has to be accepted.  That appears  to have been held in a number of cases of which Alo v. Sher (1) may  be mentioned.  But it seems to us that this is a  point which should have been raised in the trial Court which  does not appear to have been done, for, then the respondent could have  led  evidence  to show which  of  the  two  settlement records  put  the matter correctly.  Ex.  P. 9  which  is  a settlement record of 1852 of the same village, shows that on Gandhi’s (1)  A.I.R. 1927 Lah. 607. 793 death  his sister’s son succeeded to his  properties  though there  were collaterals.  Mr. Achhru Ram’s comment was  that

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in  1852 things were so unsettled in the Punjab that no  one cared for lands and that was the reason why the  collaterals allowed Gandhi’s sister’s son to succeed to his  properties. This  is  an  explanation which we  are  unable  to  accept. Exhibit P. 7 is a settlement -document of the Bheniwal tribe in  the  village Sultanwind prepared in 1891-92.   It  shows that  Mst.  Chandi, the sister of Buta Singh,  succeeded  to his properties.  It was said that the pedigree did not  show that  any  collateral  was alive.  But  this  is  not  right because  it shows that Buta Singh’s great grand uncle,  Tara Singh,  was alive.  Mr. Achhru Ram says that that must be  a mistake  and  Tara Singh who was Buta  Singh’s  great  grand uncle could not have been alive when the latter died.   This again  is a matter which should have been cleared up in  the trial Court and we do not think it right to speculate  about it. It  remains  to consider two entries in the  Riwaji-iam.  We have  first the Riwaji-i-am of 1913-14.  The entry there  is in this form : "  Q. 70.-Does property ever devolve on sisters and/or  upon their sons ? A.   All  tribes.-The property never devolves  upon  sisters and their issues." At the foot the case of Bholi v. Kahna (1) is cited.  Now it is well established that Riwaji-i-am entries are to be taken as referring to customs relating to succession to  ancestral properties  unless it is stated to be otherwise.  So it  was stated  in the Full Bench decision of the Lahore High  Court in Mst.  Hurmate v. Hoshiaru (2 ) at p. 235: "  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 (1) 35 P.R. 1909. (2) (1943) I.L.R. 25 Lah.228, 235. 100 794 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 term  "  in no case " or " under no  circumstances  "  would refer  to ancestral property only and not be extended so  as to  cover selfacquired property unless the context  favoured that construction The Full Bench was really authoritatively laying down a rule which  had been the prevailing opinion in the courts in  the Punjab.   In the Riwaji-i-am of 1913-14 we find  nothing  in the  context  to  show that the answer  there  recorded  was intended to apply to self acquired property.  That being so, it  does not prove any custom against the right of a  sister to inherit the self acquired property of her brother. The  other Riwaji-i-am was that of the year 1940. It was  in these terms : " Q. 68.-Does property ever devolve upon sisters or sister’s son ? A.   All tribe.- (1)  In  the  case  of an unmarried sister  or  sisters  the property is entered in her or their name till marriage. (2)  Married sister or sisters or their descendants did  not get the property in any case." Here again there is nothing in the context to indicate  that

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the  answers were given in regard to nonancestral  property. So this does not help the appellant either. In this Riwaji-i-am eight instances are given.  Some of them deal with the self acquired property.  That does not in  our opinion indicate that the answer recorded in the Riwaji-i-am was intended to -cover succession to self acquired  property also.  It is not disputed that the instances mentioned under the  entries in the Riwaji-i-am are often collected  by  the officer  in charge of the preparation of the record.  It  is impossible  to say whether any, and if so,  which,  instance recorded in the Riwaji-i-am had been supplied 795 by  the tribesmen in answer to questions put to them by  the Settlement  Officer.   It is not possible therefore  to  say that  there  is  any indication in  the  instances  in  this Riwaji-i-am  entry that the answers were intended  to  cover self acquired property also. Now of the eight instances given in the Riwaji-i-am two  are concerned  with self acquired property where there  were  no collatetals  and the sisters were allowed to  succeed.   The remaining  six  are concerned with ancestral  property.   In four of these, the last male owner died without leaving  any reversioner  and  in  each such  case  the  married  sisters succeeded  to the property.  In the fifth one,, the  sisters were  unmarried at the time of the brother’s death and  they were allowed to take possession of the properties.  But this instance  shows  that on their marriages taking  place  they were   dispossessed  of  the  properties  which   apparently thereupon  went to the, collaterals.  These seven  instances therefore  do not help either side.  They show that  sisters were  allowed  to  succeed  in  respect  of  both  kinds  of properties  in  the  absence of  any  collaterals  and  that sisters  were on their marriages divested of  the  ancestral properties  to which they had succeeded on  their  brothers’ deaths,  they  being  at  that  time  unmarried.   The  last instance  deals with the Rajput Mohammedan tribe  of  Tehsil Ajnala  which is in the District Amritsar, the  district  to which  the parties to the present litigation  belong.   This instance  shows that a sister was allowed to succeed to  the ancestral property left by the brother in preference to  his collaterals  of  the  sixth degree.  This  therefore  is  an instance  of a custom in a neighbouring Tehsil  under  which sisters   were  allowed  to  succeed  in  the  presence   of collaterals  nearer  in degree than the  collateral  in  the present  case.   In these circumstances we  agree  with  the learned  Judges  of the High Court that the  respondent  was able  to  prove a custom whereby a sister  was  entitled  to succeed  in  preference to the collateral relations  of  her brother. We think it also right to say that even if it had been  held that  the  respondent  was not able to  establish  a  custom entitling her to succeed she would get the 796 properties  under the Hindu law.  The parties are  Sikhs  to whom  the  Hindu  law  applies.   Since  the  Hindu  Law  of Inheritance (Amendment) Act, 1929, a sister is an heir under the  Hindu  law in, preference to collaterals and  that  Act would  be applicable to the devolution in this case.  It  is however  said that as the respondent had not made any  claim in the plaint on the, basis of Hindu law but on the contrary relied on custom, it was not open to her to fall back on the Hindu law on failing to establish the custom. We do not think that this is the correct position.   Section 5  of the Punjab Laws Act, 1872, provides that in  questions regarding succession, the rule of decision shall be (a)  any

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custom  applicable to the parties; (b) the personal  law  of the  parties  except  in so far as  modified  by  custom  or legislation.   In the Full Bench case of Daya Ram  v.  Sohil Singh (1) Robertson, J., said at p. 410: "It therefore appears to me clear that when either party  to a  suit  sets up " custom " as a rule of decision,  it  lies upon him to prove the custom which be seeks to apply.  If he fails  to do so clause (b) of section 5 of the  Punjab  Laws Act  applies and the rule of decision must be  the  personal law  of  the  parties subject to  other  provisions  of  the clause." As we have earlier said this observation was approved by the Judicial  Committee in Abdul Hussain Khan v. Bibi Sona  Dero (2).   In Fatima Bibi v. Shah Nawaz (3), a case to which  we have  earlier  referred, the Court allowed  the  plaintiff’s sisters, who had based their claim on custom and not on  the personal  law, to fall back on Mohammedan law, the  personal law  of  the  parties, on their  failure  to  establish  the custom,  no  custom against them having been proved  by  the collaterals.   There are a number of other  authorities,  to which  it is not necessary to refer, in which  personal  law was   resorted  to  when  no  custom  on  either  side   was established.   We  agree that that is the  correct  view  to take.   We therefore think that even if the  respondent  had been unable to prove the custom in (1) 110 P.R. 1906.          (2) (1917) L.R. 45 I.A. 10, 13. (3)  (1920) I.L.R. 2 Lah. 98. 797 her  favour  she is entitled to succeed in the suit  on  the basis of the personal law of the parties, namely, the Hindu law. Further,  we  see no prejudice to the appellant  if  such  a course is adopted.  It is not disputed that if the Hindu law applied, the respondent would be entitled to the  properties in  preference  to the appellant.  The only defence  to  the claim  under  the Hindu law that the  appellant  could  take would be a custom.  The custom on which the appellant relied for his case was a general custom entitling the  collaterals to  succeed in preference to sisters.  We have earlier  held that  no such general custom has been proved in  this  case. There.  fore it seems to us in the interest of  justice  and for the reason that litigation should come to an end that it is  right that the respondent should succeed in the suit  as her brother’s heir under the Hindu law. There  remains  one  other  matter  to  be  mentioned.   The respondent  had  filed an application for an order  that  by reason of certain agreements and certain proceedings arising out  of the decree in her favour passed in this case by  the High  Court, the appellant should not have been given  leave by this Court to institute the present appeal and the  leave granted  under  Art.  136 of the Constitution  -  should  be revoked.   As, in our view, the respondent succeeds  on  the merits  of the case we think it unnecessary to  express  any opinion on this question. In the result we dismiss the appeal with costs. Appeal dismissed. 798