# ~---· (2) S.O.R. SUPH.EME COURT HEPOHTS > ~781 · UJAGAR SINGH v. ·l\IST. JEO

- **Citation:** [1959] Supp. 2 S.C.R. 781
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Regular Second Appeal No. 327of1948
- **Bench:** JAFER b1A~1, A. K. Sarkar, SunnA RAO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-o-r-suph-eme-court-hepohts-781-ujagar-singh-v-l-ist-jeo-1663
- **Pages:** 17

## Headnote

Customary Law-Proof of custom-TVhm can be taken judicial
notice · of-]at agriculturists of the Punjab-Sister inheriting
brother's property in preference to collaterals-Indian Evidence Act,
r872 (rof r872), s. 57(r).
·
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 pro- .
perty, 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 revei:sed 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.
IIe/d, that no distinction could be made bet.ween a general
custom or other customs so far as the need of proof \Vas 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 Pittapt<r, (1918) LR. 45 LA. 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 decis;ons 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
1959
April a3.
'
\
'" .. -
\
. '\
782
SUPREME COURT REPORTS (1959) Supp .
. r959
admission which would obviate the , necessity of proof of the
general customs or its. terms by the appellant.
Ujaga, Singh
Even supposing that the High Court was not correct in its
v.
finding that the respondent had proved. the custom entitling her
•
Mst feo
to succeed, as the custom set up by the appellant had not also
been established, s. S 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 per-
---- -·
sonal law of the parties was the Hindu law and the respondent
was entitled to succeed under that law also.
Daya Ram v. Sahel Singh, no P.R. 1906, Abdul Hussein
Khan v. Bibi Sona Dero, (1917) L.R. 45 I.A. 10 and Mst. Fatima
Bibi v. Shah Nrrwaz, (1920) I.L.R. 2 Lah. 98, relied on.

## Text

-------.--
~---·
(2) S.O.R. SUPH.EME COURT HEPOHTS >
~781 ·
UJAGAR SINGH,
v.
·l\IST. JEO
(JAFER b1A~1, A. K. SARKAR and SunnA RAO, JJ.)
Customary Law-Proof of custom-TVhm can be taken judicial
notice · of-]at agriculturists of the Punjab-Sister inheriting
brother's property in preference to collaterals-Indian Evidence Act,
r872 (rof r872), s. 57(r).
·
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 pro- .
perty, 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 revei:sed 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.
IIe/d, that no distinction could be made bet.ween a general
custom or other customs so far as the need of proof \Vas 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 Pittapt<r, (1918) LR. 45 LA. 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 decis;ons 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
1959
April a3.
'
\
'" .. -
\
. '\
782
SUPREME COURT REPORTS (1959) Supp .
. r959
admission which would obviate the , necessity of proof of the
general customs or its. terms by the appellant.
Ujaga, Singh
Even supposing that the High Court was not correct in its
v.
finding that the respondent had proved. the custom entitling her
•
Mst feo
to succeed, as the custom set up by the appellant had not also
been established, s. S 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 per-
---- -·
sonal law of the parties was the Hindu law and the respondent
was entitled to succeed under that law also.
Daya Ram v. Sahel Singh, no P.R. 1906, Abdul Hussein
Khan v. Bibi Sona Dero, (1917) L.R. 45 I.A. 10 and Mst. Fatima
Bibi v. Shah Nrrwaz, (1920) I.L.R. 2 Lah. 98, relied on.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No .
296 of 1955.
·
Appeal by· special leave from tho judgment and
decree dated September 8, 1952, of the Punjab High
Court in Civil Regular Second Appeal No. 327of1948, ·
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
Sa•••• f.
SaBKAR, 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 her
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
(2) S.C.R.
SUPREME COURT REPORTS
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 A:qnitsar, 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
r959
U jagar Singh
v.
Mst. j eo
Sarkar ].
'
I959
Ujagar Singh
v.
Mst. ]eo
Satkar ].
784
SUPREME COURT REPORTS [1959] Supp.
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 exoluded 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 J at 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 the High Court
(2) S.C.R.
SUPREME COURT REPORTS
785
nor before us that the properties were not the ancestral
x959
properties of Sahib Singh.
h
1
Ujagar Singh
Mr. Achhru Ram appearing fort e appe lant conv.
tended that the learned Judges of the High Court
. Mst. Jeo
were wrong in placing the onus on his client.
His /r -
contention was that the general custom in the Punjab .
Sarkar J.
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.
Eniinent Judges have from time to time pointed
out that the use of the expression " the general custom
of the Punjab" fa 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. 0. 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
(I) 50 P.R. 1893.
(2) (1934) l.L.R. I7 Lah, IO, rr.
(3) (I935) I.L.R. i7 Lah. Ior, 106.
99
I959
Ujagar Singh
v.
Md. ]eo
Sarkar ].
786
SUPREME COURT REPORTS
[1959] Supp.
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 0 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, ' 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
est:i.blishing 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 (2),
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, imd 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) uo P.R. 1906,
(2) S.C.R. SUPREME COURT REPOHTS
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 b~ 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 (3)
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 coufts 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. 10, 13.
(3)
0
A.I.R. 1951 Simla 239.
(2) (1918) L.R. 45 I.A. 148, 154, 155·
(4) A.LR. 1951 Simla 242.
r959
Ujagar Sinzh
v.
Mst. ]eo
Sarkar ].
I959
Ujagar Singh
v.
Mst. ] eo.
Sarkar ].
788
SUPREME COURT REPORTS [1959] Supp.
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 011 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.
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(') 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
(2) 117 P.R. 19or.
(2) S.C.R.
SUPREME COURT REPORTS
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 Ia w 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 .i.'11ussammat 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 La.w merely showed that
according to judicial decisions a large number of
tribes were governed by certain customs in certain
matters.
(1) 3.'.i P.R. 1909,
(2) 20 P. R. 1919.
(3) (1920) I.L.R. 2 Lah. 98.
(4) (1934) I. L. R. 17 Lah. 10, II.
r959
Ujagar Singh
v.
Mst. jeo
Sarkar j.
1959
Ujagar Singh
v.
lvlst. /eo
Sarkar j.
790
SUPREME COURT REPORTS [1959] Supp.
In Jagat Singh v. Puran Singh (1), a case decided
in 1944, it was oberved 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 son 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 i~ 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. Ishro ('), Harnam Singh v. Mst. Gurdev Kaur(')
and Shrimati Bui v. Ganga Singh (').
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('), the Court approved of
the decision in Shidan v. Fazal Shah('), 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 Ri wajii-am which applied to the parties and certain reported
decisions.
Obviously, Rattigan was relied upon.
(x) (x944) 49 P.L.R 366.
(3) (1957) 59 P.L.R. 6o9.
(5) 134 P.R. 1907.
(2) (1950) 52 P.L.R. 261.
(4) (1959) 61 P.L.R. 145.
(6) (1907) P.R. at p. 646,
(2) S.C.R.
SUPREME COURT RgJ:>ORTS
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 1lfussammat 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
v. Ujagar Singh, Ex. D. 6 in the present case (decided
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 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 anable to read the reference to a special custom as
(1) (1912) 13 I.e. 7u.
(3) (1919) l Lah. I.
(5) A.I.R. 1934 Lah, 554.
(7) (1948) 50 P.L.R. 249.
(2) mo P.R. 1916.
(4) (1926) 96 I.e. 907.
(6) (1948) 50 P.L.R. 220.
(8) 71 P.R. 1904.
1959
U jagar Singh
v.
Mst. jeo
Sarkar }.
792
SUPREME COURT REPORTS [1959] Supp.
I959
amounting to an admission of a general custom or its
Ujagar Singh
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 R.attigan'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 wbich the
appellant has sought to rely. \Ve therefore think
that the appellant has failed to establish the custom
v.
~1st. jeo
Sarkar ].
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 Si11gh and l\fajja Si11gh 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 R~cords 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 Lab. 607.
,
(2) S.C.R. SUPREME COURT REPORTS
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 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 Ri waji-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 9onfined to the ancestral property
(r) 35 P.R. 1909.
(2) (r943) I.L.R. 25 Lah. 228, 235.
IOO
I959 .
U jagar Singh
v.
Mst. jeo
Sarkar ].
I959
Ujagar Singh
v,
Mst. jeo
Sarkar ].
794
SUPREME COURT REPOH,TS [1959] Supp.
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 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 suppli((d
(2) S.C.R. SUPREME COURT REPORTS
795
by the tribesmen in answer to questions put to them
by the Settlement Officer. It is not possible therefore
to say that then~ is any indication-in the instances in
this H,iwaji-i-am entry that the anS\}'Cl'S were intended
to cover self acquired property also.
Now of the eight instances given rn the Riwaji-i-am
two are concerned with self acquired property where
there were no collaterals and the sisters were allowed
to succeed. The remaining six are concerned with ancestral property.
In four of these, the last ma!e
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
r959
Ujagar Singh
v.
Mst. jeo
Sarkar J.
I959
Ujagar Singh
v.
Mst. ]eo.
Sarka" ].
796
SUPREME COURT REPORTS [1959] Supp.
properties under the Hindu law. The parties are Sikhs
to whorn the Hindu law applies. Since the Hindu Law
of Inheritance (Amendment) Act, 1929, a sister is an
heir under the Hinj:lu 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 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 he seeks to
apply. If he fails to do so clause(b) of section 5 of the
Punja.b 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 (').
In Fatima Bibi v. Shah Nawaz ('),
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)
IIO P.R. 19o6.
(2)
(1917) L.R. 45 I.A. IO, 13.
(3)
(1920) I.L.R. 2 Lah. 98.
(2) S.C.R.
SUPREME COURT REPORTS
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.
Therefore 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.
I959
U jagar Singh
v.
Mst. }co
Sarkar .f.