# 6 51 KEHAR SINGH & ORS v. CHANAN SINGH & ORS

- **Citation:** [1968] 2 S.C.R. 651
- **Court:** Supreme Court of India
- **Decided:** 1967-12-14
- **Case number:** Civil Appeal No. 781 of 1964
- **Bench:** J. C. Shah, V. Ramaswami, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/6-51-kehar-singh-ors-v-chanan-singh-ors-4261
- **Pages:** 10

## Headnote

Custo1nary law, Punjab-Sidhu lats of Muktsar Ta!1sil of Fero-;:epore District-5th degree callaN!rals of deceased landowner 1vlzether take
precedence over his rnarried daughters in succession to his non-ancestral
property-General custo1n in
Rattigan's Digest or
special custon1 in
Riwaj-i-am-JUhich to prevail.
D, a Sidhu Jat of Muktsar Tahsil. Ferozepore District, Punjab was the
last male holder of certain land in •that area.
He was sucoeeded by his
widow after whose death, the land was mutated in favour of D'.s collate·
rals in the 5th de:gree,.
D's daughter filed a suit for a declaration that
she was the legal heir of the 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.
Jn
second appeal, however, the High Court decided in favour of the plaintiff
holding 1hat the general custom recorded in Rattigan's Dige.st 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 an~ were therefore not relevant evidence to establish a special custom among the Sidhu . jats of
Muktsar Tahsil of Feroz~pore District entitling collaterals for succession
to non-ancestral property in preference to daughters. The appellants had
not discharged the onus \Vh{ch lay upon them of proving that the general custom had been varied by a special cuS1:om enabling the collaterals
to exclude the daughters.
It was manifest therefore that the customary
law among the Sidhu Jats of ~1uktsar Tahsil of
Feroz·~pore district as
regards non-·ance9tral property v.1as the same as recorded generally for
the State of Punjab in Paragraph 23 of Rattigan's Di!l"sl i.e. a daugh:er is
preferred to collaterals. [657 G-HJ
Mst. Raj Kaur v. Talok Singh, A.LR. 1916 Lah. 343. Budhi Prakash
v. Chandra !Jhan, A.I.R. 1918 Lah. 225, Narain v. Mst. Gaindo, A.I.R.
1918 Lah. 304. Fatima Bibi v. Shah Nawaz. A.LR. 1921 Lah. 180, Abdul
Rahman v. Mst. Natho, I.LR. [1932] 13 Lah. 458, Mst. Hurmate v.
Hoshiaru, I.L.R. 25 Lah.
228 and Mst. Subliani v. Nawab and Ors., 68
I.A. 1, referred to.
(ii) Even on the assump:ion 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
ar·~ entitled to an
initial presumption in favour of their correctness. the quantum of cvid~n.ce necessary to rebut this presumption would vary with the facts and
circumstances of each pal'!:icular 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, 3nd the
custom as recorded in the Riwaj-i-am was opposed to the rules generaily
652
SUPRE~E COCRT REPORTS
[1968] 2 S.C.R.
pre\'alcnt the prcsumpLion \vould be con'iiJcr .. hly \vcaJ...cncd.
I.ikcv.-isc.
v.·hen the Riv.·aj-i-am affected adversely the righ1s of females "·ho h;.td
no opportun~:y \\·halcver of appearing hefnrc the rcvcn.uc authorities. the
presumption would he '''e:1kcr still, and very lilllc evidence \voul<l sufficl.!
to rebut it. [658 B-DI
Har Narai11 v. Mst. Di!ol..i, ( 1893) 24. P.R.
L!4.
Sayad Ra/ii11i Shalr
v. Sayt1d Hm.mi11 Shafi,
(1901)
102
P. R.
353,
8/10/i v. Man Si1111h,
( 1908) 86 P. R. 402 and Mahanr Salig Ram v. M<r. Mcya Dni (19551 1
S.C.R. 1191, referred to.
.
(iii) In 1he present case the High Couot had mentioned three instances
in its judμmcnt which showed that the presumption auaching to Riwaji-am had been rebuued in this cose.
The appe!lar>:s-defendants had not
relied upon any instances in support of their case.
The High
Court
therefore rightly decided in ,"vour of the plaintiffs. (660 C-DJ
Mst. R

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6 51
KEHAR SINGH & ORS.
v.
CHANAN SINGH & ORS.
December 14, 1967
(J. C. SHAH, V. RAMASWAMI AND V. BHARGAVA, JJ.]
Custo1nary law, Punjab-Sidhu lats of Muktsar Ta!1sil of Fero-;:epore District-5th degree callaN!rals of deceased landowner 1vlzether take
precedence over his rnarried daughters in succession to his non-ancestral
property-General custo1n in
Rattigan's Digest or
special custon1 in
Riwaj-i-am-JUhich to prevail.
D, a Sidhu Jat of Muktsar Tahsil. Ferozepore District, Punjab was the
last male holder of certain land in •that area.
He was sucoeeded by his
widow after whose death, the land was mutated in favour of D'.s collate·
rals in the 5th de:gree,.
D's daughter filed a suit for a declaration that
she was the legal heir of the 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.
Jn
second appeal, however, the High Court decided in favour of the plaintiff
holding 1hat the general custom recorded in Rattigan's Dige.st 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 an~ were therefore not relevant evidence to establish a special custom among the Sidhu . jats of
Muktsar Tahsil of Feroz~pore District entitling collaterals for succession
to non-ancestral property in preference to daughters. The appellants had
not discharged the onus \Vh{ch lay upon them of proving that the general custom had been varied by a special cuS1:om enabling the collaterals
to exclude the daughters.
It was manifest therefore that the customary
law among the Sidhu Jats of ~1uktsar Tahsil of
Feroz·~pore district as
regards non-·ance9tral property v.1as the same as recorded generally for
the State of Punjab in Paragraph 23 of Rattigan's Di!l"sl i.e. a daugh:er is
preferred to collaterals. [657 G-HJ
Mst. Raj Kaur v. Talok Singh, A.LR. 1916 Lah. 343. Budhi Prakash
v. Chandra !Jhan, A.I.R. 1918 Lah. 225, Narain v. Mst. Gaindo, A.I.R.
1918 Lah. 304. Fatima Bibi v. Shah Nawaz. A.LR. 1921 Lah. 180, Abdul
Rahman v. Mst. Natho, I.LR. [1932] 13 Lah. 458, Mst. Hurmate v.
Hoshiaru, I.L.R. 25 Lah.
228 and Mst. Subliani v. Nawab and Ors., 68
I.A. 1, referred to.
(ii) Even on the assump:ion 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
ar·~ entitled to an
initial presumption in favour of their correctness. the quantum of cvid~n.ce necessary to rebut this presumption would vary with the facts and
circumstances of each pal'!:icular 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, 3nd the
custom as recorded in the Riwaj-i-am was opposed to the rules generaily
652
SUPRE~E COCRT REPORTS
[1968] 2 S.C.R.
pre\'alcnt the prcsumpLion \vould be con'iiJcr .. hly \vcaJ...cncd.
I.ikcv.-isc.
v.·hen the Riv.·aj-i-am affected adversely the righ1s of females "·ho h;.td
no opportun~:y \\·halcver of appearing hefnrc the rcvcn.uc authorities. the
presumption would he '''e:1kcr still, and very lilllc evidence \voul<l sufficl.!
to rebut it. [658 B-DI
Har Narai11 v. Mst. Di!ol..i, ( 1893) 24. P.R.
L!4.
Sayad Ra/ii11i Shalr
v. Sayt1d Hm.mi11 Shafi,
(1901)
102
P. R.
353,
8/10/i v. Man Si1111h,
( 1908) 86 P. R. 402 and Mahanr Salig Ram v. M<r. Mcya Dni (19551 1
S.C.R. 1191, referred to.
.
(iii) In 1he present case the High Couot had mentioned three instances
in its judμmcnt which showed that the presumption auaching to Riwaji-am had been rebuued in this cose.
The appe!lar>:s-defendants had not
relied upon any instances in support of their case.
The High
Court
therefore rightly decided in ,"vour of the plaintiffs. (660 C-DJ
Mst. Raj Kaur v, Talok Si11gli, A.I.R, 1916 Lah. 343, Raua v. Mrt,
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 Coun in Regular Second Appeal No. 54
of 1960.
N. S. Bindra, Kartar Singh Suri, Champa/ Rai and E.
C.
Agrawa/a, for the appeUants.
S. P. Sinha, S. K. Mehta and K. L. Mehta, for respondents
Nos. I, 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
Ralnll5Wami, 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 coUaterals 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. Smt. Indi died on September 8, 1955 and thereafter the estate was mutated by the revenue
authorities on February 11, 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 Slngh. 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 leglll heir of the land left by Smt. In<li and that
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KEHAR SINGH V. CHANAN SINGH (Ramaswami, /.)
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 Dulia Singh, but. the defendants who were 5th degree collaterals of Dulla Singh were entitled to exclude his dal,lghter 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 Disti:ict
Judge, Ferozepore in appeal. Mst. Nihal Kaur preferred a Second
Appeal to Jhe 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 11s laid down
in
Rattigan's.
Customary Law was that the daughters excluded collaterals for
succession to the self-acquired property of their fafher 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 su.ccession 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 faiher·,
if an
agriculturist, in default:-(!) 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
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SUPREME COURT REPORTS
[1968] 2 SC.R.
excluding daughters". This being the legal position of the parlic;.
lhe question arises whether the deiendants 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
<jUestions and answers are comprised in the Riwaj-i-am of the
settlement of Ferozepore district of 1914 ~nd are
reproduced
below:
"Question
48-lJnder what
circumstances
are
daughters entitled to inherit ? Arc 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 ascertain-
-Cd? If this depends on desc.~nt 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 Sa,yyads all tribes say that
a daughter
can never succeed.
Some Sayyads say that
an
unmarried daughter can succeed like a son; but
no instanC!'...s are given.'
The custom has now changed completely, most tribe,
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 Ferozcpore,
Zira ,and
Muktsar.
Bodlas (unless there are no collaterals in the 5th degree),
Chishtis (unless no coll~terah in
the
7th
degree),
Pathans of Ferozepore (except the l<asuria
group).
Rajputs of Fazilka, Wauus of Zira and Fazilka, Moghals
except ill 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 colla'erals who do not come within the 4th
degree.
Question 49-ls there any distinction as to the rights
of daughters to inherit (i) the immovable o'r ancestral.
(ii) the movable or acquired property of their father 9
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KEHAR SINGH v. CHANAN SINGH (Ramaswami, J.)
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Answer-There is no distinction. A father can of
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course gift his movable or acquired property to his
daughter."
In the present case, there is no proof of '!ny 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 Tahsi! 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 generaT 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
Msr. Raj Kaur v. Talok Singh( 1 ) Sir Donald Johnstone, the
Chief Justice held that the Riwaj-i-am as compiled, did not cover
self-acq,uir.ed 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 differP..nt tehsil and different subcaste of fats, 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 ), 'lnd
Fatinia Bibj v. Shah Nawaz(-'). In Abdul Rahman v.
MstNatho(') 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 Riwaji-am refer only to ancestral land unless there is a c~ear
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-a~quired property can be disposed
of as the owner pleases, that is, reversioners are usually
concerned only wlth property ancestral qua them."
II) A.l.R. 1916 Lah. 343.
(2) A.I.R. 1918 Lah. 225.
f3) A.LR. 1918 Lah. 304.
(4) A.I.R. 1921 Lah. 180.
(5) I.L.R. [1932j 13 Lah. 458.
'656
SUPREME COURT REPORTS
[1968) 2 S.C.R.
The decision of ·this case was affirmed by the Full Bench of the
Lahore High Court in Mst. Hurmate v. Hoshiaru(').
Din
Mohammad, J. delivering the leading judgment
in
this case,
<>bserved as follows :
"In my view, the raison d' et re 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, I. in Abdul Rehman v. Mst. Natho(') 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 manuats 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
occasioos 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 fo ancestral property only and not be extended so as to co\·er
self-acquired property unless the con'.ext 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. ( 8 ) 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 orqer 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.
(I) 1.L.R. 25 Lah. 228.
(3) 68 I.A. I.
(2) I.LR. (1932[ 13 Lah. 4l8.
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KEHAR SINGH v. CHANAN SINGH (Ramaswami, J.)
651
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 Jn presence of agnate descendants
of the deceased, or of her own mother; but if there be
no agnate descendants and no sonless widow, the unmarried 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)-ls 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 17-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 al! 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
be!ween 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 da\!Shter 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 17 of the Wilson's Manual are couched in
similar language to Questions 48 and 49 of the Riwaj-i-am with
which we are concerned in the present appeal. In view of these
authorities we have therefore come fo the conclusion that the
entries in the Riwaj-i-am 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 Mu:k;tsar Tahsil of Ferozepore
district entitling collaterals for succession to non-ancestral property
in preference to daughters. lt 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 custom enabling
the collaterals to exclude the daughters. It is manifest therefore
that the customary raw among the Sidhu Jats of Muktsar Tahsil
of Ferozepore district as regards non-ancestral property is the same
SUPREME COURT REPORTS
(1968] 2 s.c.R.
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 fa\·our of the appellants that
Questions 48 and 49 of the Riwa,j-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
arc 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 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 appearing
before the revenue authorities, t.he presumption would be weaker
still, and very little evidence would suffice to
rebut it. In Har
Narain v. Mst. Deoki('), Roe, J. stated as follows:
"There is no doubt a general
tendency of the
stro.nger 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 arc 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 established".
In a later case, Sayad Rahim Shah v. Sayad Hussain Shah('),
a similar caution was uttered by Robertson, J. who observed as
follows:
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"The male relations, in many cases at least, have
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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 stattments 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
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their own.M
(I) (1893) 24 P-R. 124.
(2) (19'>1) 1~2 P.R. 3S3.
KEHAR SINGH v. CHANAN SINGH (Ramaswami, J.)
G5·.9
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The same view was expressed by the Lahore High Court in a
still later case-Bholi v.
Man Singh(') 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 vaiue under British rule,
the land-holders are becoming more and more anxious
B
to exclude female succession. 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 s-ingle ·instance in
point on an
occasion like the. compi.Jation of the Riwaj-i-am, when
detailed inquirie> are being made and when the leading
c
men are supposed to give their ans\'iers with deliberaD
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tion and care.:'
The principle was
reiterated
by this
Court in Maham Sali;?
Ram v. Mst. Maya Debi('). It was pointed out in that case th.at
it was well-settled that the geqcral 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 weakened 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 Pun jab
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 Ms;. Raj Kaur v. Ta/ok Singh('). It was a case of Gill
fats from Zira Tahsil of Ferozepore district. It was held in that
ca:;e that the plaintiffs on whom the onus rested hac,l 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(').' It is a
case of a Daliwal Jat of Tahsil Moga, District Ferozepore. It
was admitted thz.t daughter of the last male holder was entitled
to succeed to his self-acquired property. It is true that the case
(I) (1908) 86 P.R. 402.
(2) [t955] l S.C.R. 1191.
(3) A.I.R. 1916 L"h. 343.
f4) (1934) P.!.R. ~~.
I.1 SupCJJiF- I 2
660
SUPREME COURT REPORTS
[1968] 2 s.c.R.
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 district.
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
th_e answer is that they never inherit. Considering therefore that
in the neighbouring tahsils of the same district in regard to nonanccstral 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
cl'nsiderations already mentiollld in the judgment the presumptioa attaching to the Riwaj-i-am entries j_, a weak presumption
and in j)Uf 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 th"
High Court dated September 6, 1961 in Regular Second Appeal
No. 54 of 1960 is correct and this appeal must be dismissed with
costs.
G.C.
Appeal dismissed
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