Kehar Singh & Ors Vs. Chanan Singh
& Ors  INSC 299 (14 December 1967)
14/12/1967 RAMASWAMI, V.
CITATION: 1968 AIR 806 1968 SCR (2) 651
Customary law, Punjab-Sidhu Jats of Muktsar
Tahsil of Ferozepore District-5th degree callaterals, of deceased landowner
whether take precedence over his married daughters in succession to his
non-ancestral property-General custom in Rattigan's Digest or special custom in
Riwaj-i-am-Which to prevail.
D, a Sidhu Jat of Muktsar Tahsil, Ferozepore
District, Punjab was tile last male holder of certain land in that area. He was
succeeded by his widow after whose death, the land was mutated in favour of D's
collaterals in the 5th degree. D's daughter filed a suit for a declaration that
she was the legal heir of .he land and was entitled to inherit to the exclusion
of the collaterals. The trial court held that the land was not ancestral but
the defendants were preferential heirs under the custom of the district. The
decree was affirmed by the first appellate court. In second appeal, however,
the High Court decided in favour of the plaintiff holding that the general
custom recorded in Rattigan's Digest had not been shown to be displaced by any
special custom in the Riwaj-i-am, The defendants appealed.
HELD : The entries in the Riwaj-i-am on which
the appellants relied, did not refer at all to non-ancestral property and were
therefore not relevant evidence to establish a special custom among the Sidhu
jats of Muktsar Tahsil of Ferozepore District entitling collaterals for
succession to non- ancestral property in preference to daughters. The
appellants had not discharged the onus which lay upon them of proving that the
general custom had been varied by a special custom enabling the collaterals to
exclude the daughters. It was manifest therefore that the customary law among
the Sidhu Jats of Muktsar Tahsil of Ferozepore district -Is regards
non-ancestral property was the same as recorded generally for the State of Punjab
in Paragraph 23 of Rattigan's Digest i.e. a daughter is preferred to
collaterals. [657 G-H] Mst. Rai Kaur v. Talok Singh, A.I.R. 1916 Lab. 343,
Budhi Prakash v. Chandra Bhan, A.I.R. 1918 Lab. 225, Narain v. Mst. Gaindo,
A.I.R. 1918 Lab. 304, Fatima Bibi v. Shah Nawaz. A.I.R. 1921 Lab. 180, Abdul
Rahiman v. Mst. Natho, I.L.R.  13 Lab. 458, Mst. Hurmate v. Hoshiaru,
25 Lab. 228 and Mst. Subhani v. Nawab and
Ors., 68 I.A. 1, referred to.
(ii) Even on the assumption that the
Riwaj-i-am entries referred to the non-ancestral property of the last male
holder the appellants could not succeed. For though the entries in the
Riwaj-i-am are entitled to an initial presumption in favour of their
correctness, the quantum of evidence necessary to rebut this presumption would
vary with the facts and circumstances of each particular case. Where, for
instance, the Riwaj-i-am laid down a custom in consonance with the general
agricultural custom of the State, very strong proof would be required to
displace this presumption, but where, on the &-her hand, this was not the
case, and the custom as recorded in the Riwaj-i-am was opposed to the rules
generally 652 prevalent the presumption would be considerably weakened.
Likewise, when the Riwaj-i-am affected adversely
the rights of females who had no opportunity whatever of appearing before the
revenue authorities, the presumption would be weaker still, and very little
evidence would suffice to rebut it. [658 B-D] Har Narain v. Mst. Deoki, (1893)
24. P.R. 124. Sayad Rahim Shah v. Sayad Hussain Shah, (1901) 102 P. R. 353,
Bholi v. Man Singh, ( 1908) 86 P. R. 402 and Mahant Salig Ram v. Mst. Maya Devi
 1 S.C.R. 1191, referred to.
(iii)In. the present case the High Court bid
mentioned three instances in its judgment which showed that the presumption
attaching to Riwaj-i-am had been rebutted in this case. The
appellant's-defendants had not relied upon any instances in support of their
case. The High Court therefore rightly decided in favour of the plaintiffs. [660
C-D] Mst. Rai Kaur v. Talok Singh, A.I.R. 1916 Lah. 343, Ratta v. Mst Jai Kaur,
(1934) P.L.R. 69 and R.F.A. No. 220 of 1954 decided by the Punjab High Court on
April 11 1961, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 781 of 1964.
Appeal from the judgment and decree dated
September 6, 1961 of the Punjab High Court in Regular Second Appeal No. 54 of
N. S. Bindra, Kartar Singh Suri, Champat Rai
and E. C. Agrawala, for the appellants.
S. P. Sinha, S. K. Mehta and K. L. Mehta, for
respondents Nos. 1, 3, 5 and 6.
Bishan Narain, S. K. Mehta and K. L. Mehta,
for respondent No. 4.
The Judgment of the Court was delivered by
Ramaswami, J. The question to be considered in this appeal is whether under the
customary law applicable to Sidhu Jats of Muktsar Tahsil of Ferozepore district
collaterals of the 5th degree of the deceased land-owner could take precedence
over his married daughters in succession to his non- ancestral property.
The dispute relates to 1574 kanals 4 marlas
of land situated in village Kotli Ablu, Muktsar Tahsil of Ferozepore district.
Dulla Singh was the last male holder of the land and he was succeeded by his
widow, Smt. Indi on his death.
Suit. Indi died on September 8, 1955 and
thereafter the estate was mutated by the revenue authorities on February 1,
1956 in favour of the defendants who were the reversioners of her husband in
the 5th degree. Smt. Nihal Kaur is the daughter of Dulla Singh. On November 14,
1957 she instituted the suit which is the subject-matter of the present appeal
in the court of Subordinate Judge, Muktsar for a declaration that she was the
legal heir of the land left by Smt. Indi and that 653 she was entitled to
inherit the estate to the exclusion of the collaterals. The suit was resisted
by the defendants who claimed that the whole of the land was ancestral and they
were preferential heirs to the deceased Dulla Singh than the plaintiff. The
trial court held that the land in dispute was not the ancestral property of
Dulla Singh, but the defendants who were 5th degree collaterals of Dulla Singh
were entitled to exclude his daughter from succession even to the non-ancestral
property under the custom of the district. Accordingly the trial court
dismissed the suit of the plaintiff. The decree was affirmed by the Additional
District Judge, Ferozepore in appeal. Mst. Nihal Kaur preferred a Second Appeal
to the Punjab High Court which was allowed and the suit of the plaintiff was
decreed. The High Court took the view that the general custom of the Punjab as laid
down in Rattigan's Customary Law was that the daughters excluded collaterals
for succession to the self-acquired property of their father and the special
custom set out in the Riwaj-i-am that the agnates, however, remote, exclude
daughters from succession to their father's property was opposed to the general
custom referred to above and the Riwaj-i-am was only a presumptive evidence in
favour of the collaterals and the presumption has been rebutted by the
plaintiff Mst. Nihal Kaur in the circumstances of the present case. In other
words, the High Court, held that the general custom in favour of the daughter's
succession prevailed and the defendants had not been able to prove that the
general custom had been varied by a special custom enabling the collaterals to
exclude the daughters.
This appeal is brought by the defendants on a
certificate from the judgment of the Punjab High, Court dated September 6, 1961
in Regular Second Appeal No. 54 of 1960.
On the question of custom the respondents
relied upon the statements in paragraph 23 of Rattigan's Digest of Customary
Law (14th Edn.), a book of unquestioned authority in the Punjab, State. In para
23, p. 132 it is stated that (1) a daughter only succeeds to the ancestral
landed property of her father, if an agriculturist, in default :-(1) of the
heirs mentioned in the preceding paragraph (viz., male lineal descendants,
widow or mother), or (2) of near male collaterals of her father, provided that
a married daughter sometimes excludes near male collaterals in certain
circumstances specified in the paragraph, (2) But in regard to the acquired
property of her father, the daughter is preferred to collaterals. It is further
stated at p. 152 that "the general custom of Punjab is that a daughter
excludes collaterals in succession to self-acquired property of her father and
the initial onus, therefore, is on the collaterals to show that the general
custom in favour of the daughter's succession to the self-acquired property of
her father, has been varied by a special custom 654 excluding daughters".
This being the legal position of the parties -the question arises whether the
defendants had discharged the onus ,of proving the existence of a special
custom excluding the daughters. On this point the appellants relied upon the
answers to ,Questions 48 and 49 in the Compilation of the Customary Law of
Ferozepore district by M.M.L. Currie, Settlement Officer. These ,questions and
answers are comprised in the Riwaj-i-am of the settlement of Ferozepore
district of 1914 and are reproduced below :
" Question 48-Under what circumstances
are daughters entitled to inherit ? Are they excluded by the sons or near male
kindreds of the deceased ? If they are excluded by the near male kindred, is
there any fixed limit of relationship within which such near male kindred must
stand towards the deceased in order to exclude his daughter ? If so, how is the
limit ascertained? If this depends on descent from a common ancestor, state
within how many generations relatively to the deceased such common ancestor
must come? Answer-At last settlement Mr. Francis wrote "Except a few
Sayyads all tribes say that a daughter can never succeed. Some Sayyads say that
an unmarried daughter can succeed like a son; but no instances are given.' The
custom has now changed completely, most tribes admitting that a daughter is
entitled to succeed till marriage in the absence of a widow or male lineal
descendants. The following groups, however, do not admit that a daughter can
succeed :-Dogars of Fazilka, Nipals, Sayyads of Ferozepore, Zira and Muktsar,
Bodlas (unless there are no collaterals in the 5th degree), ,Chishtis (unless
no collaterals in the 7th degree), Pathans of Ferozepore (except the Kasuria
group), Rajputs of Fazilka, Wattus of Zira and Fazilka, Moghals except in
Ferozepore, Mahtams, Sodhis, Bagri Jats, Kumhars and Suthars, Bishnois and the
following Jat Sikhs in Fazilka Tahsil-Dhaliwals, Sidhhus, Gils and Sandhus.
The Kasuria Pathans state that a daughter
succeeds if there are no sons, and the Arians state that she excludes
collaterals who do not come within the 4th degree.
Question 49-Is there any distinction as to
the rights of daughters to inherit (i) the immovable or ancestral, (ii) the
movable or acquired property of their father ? 655 Answer-There is no
distinction. A father can of course gift his movable or acquired property to
his daughter." In the present case, there is no proof of any instance for
or against the right of inheritance of a daughter of a deceased last male
holder of the, Sidhu tribe of Jats, either in the Muktsar Tahsil or in the
whole district of Ferozepore. At least, none was brought to the notice of the
lower courts by the plaintiff or the defendants. It was contended on behalf of
the appellants that the Riwaj-i-am of 1914 was entitled to a presumption as to
the existence of a custom even though not supported by proof of instances and
it must therefore be held that the defendants have discharged the initial onus
of proving that the general custom has been varied by a special custom enabling
them to exclude the married daughter. The real controversy in this appeal is,
however, on the question whether the entries in the Riwaj-i-am on which the
defendants rely refer at all to non-ancestral property or not. In Mst. Raj Kaur
v. Talok Singh(1) Sir Donald Johnstone, the Chief Justice held that the
Riwaj-i-am as compiled, did not cover self-acquired property and that where the
Riwaj-i-am talked about succession to land without discrimination between
ancestral and self-acquired land, the rule laid down could only be taken to
apply to ancestral property. This case related to property in Ferozepore
district, though with regard to a different tehsil and different sub-caste of
Jats, but the important point is that the questions of the Riwaj-i-am of 1878
in that case were exactly in the same language as questions 48 and 49 of the
Riwaj-i-am of 1914. A similar view was taken by Shadilal and Wilberforce, JJ.
in Budhi Prakash v. Chandra Bhan(2). The view was followed by other judges of
the Lahore High Court in Narain v. Mst. Gaindo(3), and Fatima Bibi v. Shah
Nawaz ( 4 ) . In Abdul Rahman v. Mst. Natho(5) it was observed by the High
Court as follows :
" According to the Customary Law of the
district, collaterals within the fifth degree exclude daughters, but it has
been consistently held by this Court that Riwaj-i- am refer only to ancestral
land unless there is a clear statement to the contrary. It is unnecessary to
refer to the numerous decisions on this point. Customary law is in fact usually
only concerned with protecting ancestral property, while self-acquired property
can be disposed of as the owner pleases, that is, reversioners are usually
concerned only with property ancestral qua them." (1) A.I.R. 1916 Lah.
343. (2) A.I.R. 1918 Lah. 225.
(3) A.I.R. 1918 Lah. 304. (4) A.T.R. 1921
(5) I.L.R.  13 Lah. 458.
656 The decision of this case was affirmed by
the Full Bench of the Lahore High Court in Mst. Hurmate v. Hoshiaru(l). Din
Mohammad, J. delivering the leading judgment in this case,, observed as follows
"In my view, the raison d' etre of those
cases which lay down that the Manuals of Customary Law were ordinarily
concerned with ancestral property only is quite intelligible.
Collaterals are, as stated by Addison, J. in
Abdul Rehman v. Mst. Natho ( 2 ) really speaking interested in that property
only which descends from their common ancestor and this is the only basis of
the agnatic theory.
What a maleholder acquires himself is really
no concern of theirs. It is reasonable, therefore, to assume that when manuals-
of customary law were originally prepared and subsequently revised, the persons
questioned, unless specifically told to the contrary, could normally reply in
the light of their own interest alone and that, as stated above, was confined
to the ancestral property only. The fact that on some occasions the questioner
had particularly drawn some distinction between ancestral and non-ancestral
property would not have put them on their guard in every case, considering
their lack of education and lack of intelligence in general. Similarly, the use
of the terms 'in no case' or 'under no circumstances' would refer to ancestral
property only and not be extended so as to cover self-acquired property unless
the context favoured that construction." The decision of the Full Bench of
the Lahore High Court was approved by the Judicial Committee in Mst. Subhani v.
Nawab and Ors.(3) in which the controversy arose with regard to the
interpretation of questions 16 and 17 and the answers thereto in Wilson's
Manual of Customary Law which are reproduced below "Question 16 (p.
48)-Under what circumstances are daughters entitled to inherit ? Are they
excluded by the sons or by the widow, or by the near male kindred of the,
deceased ? If they are excluded by the near male kindred, is there any fixed
limit of relationship within which such near kindred must stand towards the
deceased in order to exclude his daughters ? If so, how is the limit
ascertained ? If it depends on descent from a common ancestor, state within how
many generations relatively to the deceased such common ancestor must come.
(1) I.L.R. 25 Lah. 228.
I.L.R.  13 Lah. 458.
(3) 68 I. A. 1.
657 Answer 16-All Musalmans.
A married daughter in no case inherits her
father's estate or any share in it. An unmarried daughter succeeds to no share
in presence of agnate descendants of the deceased, or of her own mother; but if
there be no agnate descendants and no sonless widow, the un married daughters
succeed in equal shares to the whole of their father's property, movable and
immovable, till their marriage, when it reverts to the agnate heirs.
If there be a widow and daughters of another
wife who has died, the unmarried daughters of the deceased wife succeed to
their mother's share till their marriage.
Question 17 (p. 49)-Is there any distinction
as to the rights of daughters to inherit (1) the immovable or ancestral, (2)
the movable or acquired, property of their father? Answer 1.7-All Musalmans.
As regards the right of the daughter to
inherit, no distinction is made between the movable and immovable ancestral and
acquired, property of the father. If she inherits at all she takes the, whole
estate." It was held by the Judicial Committee that though in the answers
to question No. 17 in Wilson's Manual no distinction was made between ancestral
and non-ancestral or between movable and immovable property, and the rule was
stated as a wide generalization (in answer to question No. 16) that a married
daughter in no case inherits her father's estate or any share in it, it must be
taken in view of the numerous decisions of the Punjab courts that the
Riwaj-i-am which states the rule in such wide and general terms governs
ancestral property only. It should be noticed that Questions 16 and IT of the
Wilson's Manual are couched in similar language to Questions 48 and 49 of the
Riwaj-i-ani with which we are concerned in the present appeal. In view of these
authorities we have therefore come to the conclusion that the entries in the
Riwaj-i-ani with regard to Questions 48 and 49 on which the appellants rely do
not refer at all to non-ancestral property and are therefore not relevant
evidence to establish a special custom among the Sidhu Jats of Muktsar Tahsil
of Ferozepore district entitling collaterals for succession to non-ancestral
property in preference to daughters. It follows therefore that the appellants
have not discharged the onus which-lay upon them of proving that the general
custom has been varied by a special customs enabling the collaterals to exclude
the daughters. It is manifest therefore that the customary law among the Sidhu
Jats of Muktsar Tahsil of Ferozepore district as regards non-ancestral property
is the same 658 as recorded generally for the State of Punjab in paragraph 23
of Rattigan's Digest i.e., a daughter is preferred to collaterals.
We shall, however, assume in favour of the
appellants that Questions 48 and 49 of the Riwaj-i-am relate also to succession
of non-ancestral property of the last male holder. Even upon that assumption we
are of opinion that the case of the appellants cannot succeed. The reason is
that though the entries in the Riwaj-i-am are entitled to an initial
presumption in favour of their correctness, the quantum of evidence necessary
to rebut this presumption would vary with the facts and circumstances of each
parti- cular case. Where, for instance, the Riwaj-i-am laid down a custom in
consonance with the general agricultural custom of the State, very strong proof
would be required to displace this presumption, but where, on the other hand,
this was not the case, and the custom as recorded in the Riwaj-i-am was opposed
to the rules generally prevalent, the presumption would be considerably
weakened. Likewise, where the Riwaj-i-am affected adversely the rights of
females who had no opportunity whatever of appearig before the revenue
authorities, the presumption would be weaker still, and very little evidence
would suffice to rebut it. In Narain v.
Mst. Deoki(l), Roe, J. stated as follows :
"There is no doubt a general tendency of
the stronger to over-ride the weak, and many instances may occur of the males
of a family depriving females of rights to which the latter are legally
entitled. Such instances may be followed so generally as to establish a custom,
even though the origin of the custom were usurpation; but the Courts are bound
carefully to watch over the rights of the weaker party, and to refuse to hold
that they had ceased to exist unless a custom against them is most clearly
In a later case, Sayad Rahim Shah v. Sayad
Hussain Shah (2) a similar caution was uttered by Robertson, J. who observed as
"The male relations, in many cases at
least, have been clearly more concerned for their own advantage than for the
security of the rights of widows and 'other female relatives with rights or
alleged rights over family property, and the statements of the male relatives
in such matters have to be taken cum grano salis where they tend to minimize
the rights of others and to extend their own.
(1) (1893) 24 P-R. 124.
(2) (1901) 102 P.R. 353.
6 5 9 The same view was expressed by the
Lahore High Court in a still later case-Bholi v. Man Singh(1) where the
Riwaj-i-am had laid down that daughters were excluded by collaterals, even up
to the tenth degree and it was stated as follows:
"As the land is rising in value under
British rule, the land-holders are becoming more and more anxious to exclude
They are ready to state the rule against
daughters as strongly as possible, but if the custom is so well established, it
is strange that they are unable to state a single instance in point on an
occasion like the compilation of the Riwaj-i-am, when detailed inquiries are
being made and when the leading men are supposed to give their answers with
deliberation and care." The principle was reiterated by this Court in
Mahant Salig Ram v. Mst. Maya Debi(2) It was pointed out in that case that it
was well-settled that the general custom of the Punjab State was that the
daughter excluded collaterals from succession to self-acquired property of her
father and so the initial onus must therefore be on the collaterals to show
that the general custom in favour of the daughter's succession to the
self-acquired property of her father has been varied by a special custom
excluding the daughter. It was also well-settled that the entries in the
Riwaj-i-am are entitled to an initial presumption in favour of their
correctness but the presumption will be considerably weak- ened if it adversely
affects the rights of the females who have no opportunity of appearing before
the Revenue authorities. In the present case, apart from the general custom of
the Punjab to which due weight must be attached three instances have been
referred by the High Court in the course of its judgment to show that the
presumption attaching to Riwaj-i-am has been rebutted in this case. The first
instance is the subject-matter of the decision in Mst. Rai Kaur v. Talok
Singh(3). It was a case of Gill Jats from Zira Tahsil of Ferozepore district.
It was held in that case that the plaintiffs on whom the onus rested had failed
to prove that by custom among Gill Jats of mauza Lohara, tahsil Zira, district
Ferozepore, they, as near collaterals of a deceased sonless proprietor,
succeeded to his self- acquired estate in preference to a daughter. As we have
already pointed out earlier, Questions 48 and 49 correspond to Questions 1 and
2 of the Riwaj-i-am of 1878 which were dealt with in this case. The second
instance is reported as Ratta v. Mst. Jai Kaur(4). It is case of a Daliwal Jat
of Tahsil Moga, District Ferozepore. It was admitted that daughter of the last
male holder was entitled to succeed to his self-acquired property. It is true
that the case (1) (1908) 86 P.R. 402.
(3) A.T.R. 1916 Lah. 343.
L2 SupCI/68 12 (2) 1 S.C.R. 1191.
(4) (1934) P. L.R. 69.
660 was decided upon the admission of Counsel
for the collaterals but it is improbable that if there was material evidence in
support of the collaterals the Counsel would have made such an admission. The
third instance referred to by the High Court is R.F.A. no. 220 of 1954, decided
on April 11, 1961, in which it was held that sister of the last male holder
excludes his collaterals from inheritance in regard to his non-ancestral or
acquired property. That is a case of Jats from Fazilka tahsil of Ferozepore
The property, however, was situated in two
villages, one in Fazilka tahsil and the other in Muktsar tahsil. It was held in
that case that in Muktsar and in Fazilka in regard to non-ancestral or acquired
property of the last male holder his sister was a preferential successor as
against collaterals. In this connection it should be noticed that in the
Riwaj-i-am of 1914 Question 58 concerns the rights of succession of sisters and
sisters' sons and the answer is that they never inherit. Considering therefore
that in the neighbouring tahsils of the same district in regard to non-
ancestral property a daughter has excluded collaterals and in Muktsar tahsil a
sister has excluded collaterals, there is in our opinion sufficient material to
displace the presumption of correctness of the Riwaj-i-am entries in this case.
In view of the considerations already mentioned in the judgment the presumption
attaching to the Riwaj-i-am entries is a weak presumption and in our opinion it
has been sufficiently discharged by the evidence adduced by the respondents in
this case. It is necessary to add that the appellants-defendants have not
relied upon any instances in support of their case.
For the reasons expressed we hold that the
judgment of the High Court dated September 6, 1961 in Regular Second Appeal No.
54 of 1960 is correct and this appeal must be dismissed with costs.