Ujagar Singh Vs. Mst. Jeo  INSC 47
(23 April 1959)
IMAM, SYED JAFFER SUBBARAO, K.
CITATION: 1959 AIR 1041 1959 SCR Supl. (2)
CITATOR INFO :
R 1961 SC1374 (2) R 1964 SC1821 (8) RF 1973
SC1134 (4) F 1989 SC1359 (19) RF 1991 SC1654 (15)
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).
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 concerned
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, relied on.
Although there could be no doubt that
Rattigan's Digest was of the highest authority on questions of custom of the
Punjab, 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
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.
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
Gurbachan Singh and Madan Lal Kapur, for the
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
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, 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 subcaste 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 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 Semonv. 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 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
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.
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.
" 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
" 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
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 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.
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
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 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 therefore 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
(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.
793 death his sister's son succeeded to his
properties though there were collaterals. Mr. Achhru Ram's comment was that 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
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 the answers were given in regard to
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
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 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
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
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