Kapur, J.
1. This is a second appeal against a judgment and decree of the learned District Judge Amritsar, affirming the decree of the trial Court dismissing the suit.
2. The relationship of the parties will be clear from the pedigree-table which is as follows:
GANGU
|
_______________________________|_____________________________
| |
Akki Jagta
| |
Sanwalia Parana
| |
Bantu Milkha Sing (Lakha Singh)
| |
Jai Sing Fateh Singh
| |
Mehr Singh Ranu
| ___________|__________
Gulab Sing | |
| Jaimal Sing Dhanna Singh
Mt. Kishan Kaur=Jawala |
| Singh Sant Singh
| |
| Ujagar Singh (Deft.) Respdt.
|
|
|___________________________________________________
| |
(Last male holder) Mt. Jio
Sahib Singh (Plff. Appellant).
(Mt. Nihal Kaur) Widow
The penultimate holder of the property was Jawala Singh who died on 24-11-1917. He was succeeded by his sou Sahib Singh who died in December 1918. Nihal Kaur, the widow of Sahib Singh, remarried soon after and mutation was entered in the name of Kishan Kaur, the widow of Jawala Singh and the mother of the last holder, she died on 12-11-1942, and in 1943 mutation was entered in the name of Mst. Jio, the sister of Sahib Singh. On appeal being taken to the Collector the mutation was ordered to be entered in the names of collaterals who are connected with the last male-Holder in the 9th degree. On 11-6-1945 Mst. Jio brought the present suit alleging that she was governed by special custom by which amongst Bheniwal Jats of the Amritsar Tahsil of Amritsar District a sister excluded collaterals. The defence was that the parties were governed by custom by which the sister was no kind of an heir and the land was ancestral. Another suit was brought by one Jagat Singh for possession who claimed to be a nearer collateral than the present respondents, but that suit was dismissed. On 28-8-1946 the suit of the plaintiff was dismissed and the appeal against this decree was also dismissed on 14-10-1946. It was found by the Courts below that the land in dispute is non-ancestral, that the defendants -- the present respondents -- were 9th degree collaterals of the last male-holder and that according to custom the sister is excluded by collaterals even to non-ancestral property.
3. The principles governing the cases of custom have now been stated by the Supreme Court in -- 'Gokal Chand v. Parvin Kumari', AIR 1952 SC 231 (A), and seven propositions have been laid down, 4th and 5th of which are of importance :
4. 'A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy and such evidence may be safely acted on which it is supported by a public record of custom such as the Riwaj-i-am or Manul of Customary Law. See -- 'Ahmad Khan v. Mt. Channl Bibi', AIR 1925 PC 267 at p. 271 (B). 5. No statutory presumption attaches to the contents of a Riwaj-i-am or similar compilation, but being a public record prepared by a Public officer in the discharge of his duties under. Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be granted as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may, however, be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if 'it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. See -- 'Beg v, Allah DTtta', AIR 1916 PC 129 at p. 131 (C), -- 'Saleh Mohammad v. Zawar Hussain', AIR 1944 PC 18 (D), --'Mt. Subhani V. Nawab', AIR 1941 PC 21 at p. 25 (E).' (4) In the present case reliance is mostly placed on para. 24 of Rattigan's Digest of Customary Law. In a previous Bench judgment, - 'Mt. Sukhwant Kaur v. Balwant Singh', AIR, 1951 Simla 242 (F) sitting with Weston C. J., I had occasion to consider this paragraph, and there I doubted its correctness and held that it was too broadly stated. It is not necessary to go into the history of this paragraph as it Js discussed at great length in that judgment. In -- 'Daya Ram v. Sohel Singh', 110 Pun Re 1900 at p. 407 (F B) (G), Chatterji J. observed as follows: 'We must also recognise that Customary Law, like other law, is a branch of sociology and must be in a fluid state and take cognizance of progress of ethical and legal notions in the community in which it is in force.'
There has been a continuous change in the opinion of the non-Mohammadan population of this State in regard to the rights of females in matters of inheritance. In 1929 the Legislature came to the help of sisters and amongst those who were governed by Hindu Law a sister was specifically made an heir and she is fairly high up in the order of succession amongst those governed by Hindu Law. According to the view of law which was affirmed by their Lordships of the Privy Council in 'AIR 1941 PC 21 (E)', the correct way of approaching a case is that the rule of succession is the personal law, and if any person relies on custom, it is for him to allege what the custom is and to prove it: vide - Abdul Hussein Khan v. Mst. Bibi Sona Dero', AIR 1917 P C 181 (H). Onus is placed on the person who relies on custom. In 'AIR 1951 Simla 242 (P),' I said that it is not a correct approach to a question of this kind to place the onus on sisters in regard to non-ancestral property merely because of para. 24 of Rattigan's Digest. I also said there that :
'(a) the rule of succession under the Punjab Laws Act, Section 5, is personal law unless the person who relies on custom proves that the parties are governed by custom and what that particular custom is;
(b) and personal law now favours sisters which is not without effect on customs of Hindu tribes if -tribes of Hindu origin;
(c) custom has to be proved by evidence adduced in the case or may be proved by the production of the Riwaj-i-am which will raise a presumption in favour of the entry if the property in dispute is ancestral unless the' statement covers non-ancestral property; Cd) custom varies from tribe to tribe and; from place to place but some customs have by frequent proof in the Courts in all parts of the province become so notorious that judicial notice can be taken of them; (e) but the exclusion of sisters from inheritance to self-acquired property has not received that notoriety as to be taken judicial notice of, at least not where the property is non-ancestral; (f) the rights of females have not received that protection which they deserved and at the time of compilation of Riwaj-i-ams they have not been consulted and therefore the onus of proving their rights to succeed is a light one which may be discharged by a few instances or by general evidence given by members of the family or tribe without proof of special instances.'
And after hearing Mr. Charanjiva Lal Aggarwal I have no reason to hold that that opinion is in any way not correct and to change it. In view of what I have said above the onus would really be on the defendant to prove that by custom sisters are excluded. The evidence produced by him consists of an entry from the Riwaj-i-am Ex. D-11, which in view of the instances there given does not seem to be of Very great help to him and of Ex. D-6, a judgment of the Lahore High Court, which also is of little help to him for reasons which I propose to give later on in this judgment. There is some other oral and documentary evidence which is equally uphelpful to the defendants. But I shall discuss it later.
5. Even if the onus is placed on sisters because of the production of the Riwaj-i-am, sufficient evidence has been produced by the appellant to discharge that onus. The custom in the present case is against the rights of females who have now been shown to have been consulted at the time of the preparation of the Riwaj-i-am; the onus would therefore be a very light one and only at few instances would suffice to discharge it, as was held in 'AIR 1951 Simla 242 (F)' and also by a Division Bench of the Lahore High court in --'Mst Kaman v. Ghafoor Ali', AIR 1928 Lah 280 (I) where two instances produced by the daughter were held to be sufficient to rebut the presumption arising from the entry in the Riwaj-i-am.
6. The latest Riwaj-i-am of 1940 is Ex. D-11; and in the printed Manual the rights of sisters are given at page 53. The question and answer are as follows:
'Q. 68. Does property ever devolve upon sisters or sisters' sons?
A. Property devolves upon unmarried sisters to (Sic) marriage but never upon married sisters or their sons.'
Two instances are given in the list attached at the end of the book; one in favour of sisters and the other against. In Ex. D-11, an entry from the Urdu Riwaj-i-am, which has been filed, there are 8 instances. The first one is of Pathans of Tehsil Tarn Taran where a married sister succeeded to ancestral property in the absence of any collaterals. The second one is of Jats of the same Tehsil where again a married sister succeeded. The third one is of Brahmans and there a married sister succeeded in the absence of collaterals. The fourth, fifth and the seventh are of Jats of Tehsil Amritsar and Tehsil Ajnala, The sixth is of Arains. In all these the property was ancestral and the sisters were married, but it is stated that there were no reversioners. The 8th one is of a Rajput of Ajnala Tehsil where Taleh Bibi, a married sister, succeeded in the presence of reversions and the property was ancestral. One judicial instance given at the end of the printed Riwaj-i-am and those given in Ex. D-11 show that the statement in question and answer Ho. 68 that married sisters never inherit is clearly too broadly stated and sisters even though married do succeed to the estate of their brothers.
7. Of the instances which have been proved by the plaintiff the first one is of the family itself. It is Ex. P-4, of the year 1852 where on the death of Nodh Singh and Baghel Singh their sisters' SODS succeeded in preference to the 4th degree collaterals. The next instance is of the same Got as the parties i.e., Bhainiwals, and is Ex. P-7 of the year 1891-92. There a sister Chandi by name succeeded in preference to the 6th degree collaterals. The third again is of the year 1852 and is Ex. P-9. There a sister succeeded in preference to a collateral of the 4th degree. P. W. 1 has also deposed to this instance. The fourth instance is of Mahal Jats and is Ex. P-8 and is of the year 1891-92. The fifth instance relied upon is of Sukhwant Kaur which is deposed to by P. W. 6 and is the case which was decided by this Court in 'AIR 1951 Simla 242 (F)'. Then there is another judicial instance of Dogars, --
Mst. Bholi v. Kanna', 35 Pun Re 1909 (J). The sixth instance in favour of the succession by sisters has been mentioned above and is the 3th instance given in the Urdu Riwaj-i-am of 1940 Ex. D-11. There are also two oral instances given toy witnesses, but they are not supported by any documentary evidence. One is of Dato, sister of Ganda Singh, and she succeeded to her brother's property. This is deposed to by P. Ws. 1, 2 and 3. The second Bhago's case, which is deposed to by P. W. 6 has already been referred to as it is the thiEd instance in Ex. D-11. imam Singft P. W. 4, Vir Singh P. W. 5, and Ujagar Singh P. W. 6 .are witnesses who have given oral evidence in support of the sisters' right to succeed. An analysis of this would show that there is one instance of sisters succeeding in the family itself, one in the same Got, the third of the same village as also the fourth and three others which are supported either by documentary evidence or by judgments of the Chief Court and of this Court,
8. Mr. Charanjiva Lal Aggarwal has submitted that the general custom of the State is against the sisters and this applies equally to ancestral and non-ancestral property and that in this particular ease the onus should have been on the sisters. I have doubted the correctness of this proposition in 'AIR 1951 Simla 242 (F)', and I do not propose to go over again. I have discussed the plaintiff's evidence, both documentary and oral, which in my opinion is sufficient to discharge the onus even if it were placed on the sister. But it is significant that in spite of his vigorous assertion that a sister never succeeds, the evidence in support of this assertion is wholly insufficient. The defendant relies on certain documentary evidence which he has placed on the record. The first is Ex. D-6 which Is a judgment of the Ignore High Court where a mother made a gift in favour of her daughter who was the sister of the last male-holder. Eighth degree collaterals challenged the gift, and it was held that the mother could not make it. Incidentally, it was also held that although the property was non-ancestral, onus under custom was on the sister to prove against the general custom that she was entitled to succeed to the property of her brother. Reference was made to para. 24 of Rattigan's Digest of Customary Law. But in the case no evidence seems to have been led, and it was decided on the question of onus being on the sister. As an instance of exclusion of sisters also it is not a good instance, and I doubt very much if It would be correct view of custom in view of what Mahajan J. himself held in a later judgment, -- 'Jagat Singh v. Puran Singh', 49 Pun L. R. 366 (K) which was a case from Ambala. The other instance which has been relied upon is a mutation Ex. D-12 where a real nephew succeeded to his uncle (father's brother). There is nothing to show that there was a sister in existence or there was a contest between the two. So also Ex. D-13 where a fourth degree collateral succeeded to the estate of the last holder, and there again there in nothing to show the existence of a sister. In Ex. D-14 also collaterals got the property, but again there is no proof that there was a sister in existence. D. W. 4 has referred to three oral instances, but no mutations have been produced nor has he stated that there was any contest between sisters and collaterals. All that he stated is that there were sisters in existence.
9. Reference was then made by Mr. Aggarwal to two Division Bench judgments of the Lahore High Court reported as -- 'Kirpa v. Bakhshi Singh'. 50 Pun L. R. 220, (L) & -- 'Mst Ratni v. Harwant Singh', 50 Pun L. K. 249 (M). Only in the former case was reference made to para. 24 of Rattigan's Digest. The dispute there was between sisters and fourth degree collaterals and although it was broadly stated there that tenth degree collaterals would exclude sisters, the case must be confined to the facts of that case. The property in that case was non-ancestral and in spite of that reliance was placed on para. 24 and sisters were held to be excluded. In the second case, 50 Pun L. R. 249 (M), a second appeal from Perozepore, the disputants were sisters and collaterals of the 6th degree and the property was non-ancestral. The onus was placed on the sisters who were held to have failed to discharge it. Both these judgments go counter to the Judgments of Mahajan J. in 49 Pun L. R. 366 (K), to which reference has already been made and in -- 'Maulu v. Mst. Ishro', AIR 1950 E. P. 289 (N), a case from Karnal where the Riwaj-i-Am was of a similar kind as the one in 50 Pun. L. R. 220, (L) and it was held that sisters would succeed to non-ancestral property in preference to collaterals beyond the sixth degree. This case came up on appeal and the opinion of Mahajan J. was affirmed by my learned brother and myself in AIR 1950 EP 289 (N). In another case from Ambala where the dispute was between sisters and 7th degree collaterals, I sitting singly held in favour of the sisters : See -- 'Sohanlal v. Firm Madho Ram Banwarllal', AIR 1952 Punj. 240 (O).
10. The broad proposition laid down in Rattigan's Digest of Customary Law has not received the approval of this Court and of Mahajan J. sitting alone, and even if the onus Is on the sister in the present case, the evidence led by her and the instances produced would be sufficient to rebut the statement in the Riwaj-i-am, particularly in view of the rule laid down by the Supreme Court in 'Parvin Kumari's case (A)' to which I have already made reference. In spite of the fact that the Riwaj-i-am is alleged to be in such emphatic terms, no well defined instance has been produced where on the evidence led by the contesting parties the sister was excluded by collaterals so far removed as the collaterals in the present case. I am therefore of the opinion that the sister has proved that she is a better heir than the collateral of the 9th degree in the present case. I have not taken into consideration the fact that in 'Sukwant Kaur's case (F), and in a case which was previously decided it had been held that beyond the seventh degree the pedigree-table is of no or to put it mildly of very little evidentiary value.
11. I would therefore allow this appeal, set aside the judgment and decree of the Courts below and decree the plaintiff's suit with costs throughout.
Soni, J.
12. I agree. The evidence which has been produced in tnis case relates to revenue records beginning from the year 1862. In the 1852 records there are two instances which have been quoted to us that the sisters succeed in spite of near collaterals being in existence. It cannot, therefore, be stated that something new has been put forward before the Courts in the present case. The instances related to this particular family and to the family of Mahal Jats in which the sisters had been married. Paragraph 24 of the Rattigan's Digest does not appear to lay down a universal rule that sisters never succeed anywhere in the province. In AIR 1950 E. P. 289 (N), the case from Karnal which was decided by my learned brother and myself, there was actually mentioned that sisters were preferential heirs to collaterals beyond the 5th degree.
13. Custom is always in a fluid state and isnow varying round giving females greater rightsthan they were supposed to possess when exponents of Customary Law basing deductions fromSir Henry Maine's works laid down the law forthis province in the sixties or eighties of the lastcentury. The matter has been discussed very fullyin the 'case of Sukhwant Kaur (F)', which hasbeen decided by my learned brother to which hehas made reference in his order. The matter hasbeen so elaborately discussed in his judgment thatit would be superfluous for me to cover the groundover again. In ray view, so far as the presentcase is concerned, the collaterals are of a degreeso remote that it is doubtful whether the pedigree-table on which they rely can be said to be quiteauthentic, but whether it is authentic or not inmy opinion it is sufficiently proved by the evidence that has been led In this case on behalf ofthe sisters that the sisters have preferential rightto the property against collaterals of such remotedegrees as the defendants claim to be. I agreewith the order proposed by my learned brotherthat this appeal should be accepted with coststhroughout.