# · Shreekanliak .Ramayya · Munipalli v. The Stale of Bomha.J Bose]

- **Citation:** [1955] 1 S.C.R. 1191
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 118 of 1953
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shreekanliak-ramayya-munipalli-v-the-stale-of-bomha-j-bose-326
- **Pages:** 11

## Headnote

-
< ;
)
I
..
>.y·
S;C.R.
SUPREME COURT REPORTS
1191
to direct a retrial
though this is. the rionnal course .
when a jury frial is set aside on
the grounds of i:nisdirection
and
non-direction. We tl).erefore discharge
(nqt acquit) both the appellants leaving it to Government ~ither to drop t.he e.ntire matter or to
p~oceed
in such. manner as it may
be advised.,. We do .this
because the accused· expressly asked that
the • · charge·
under the Prevention · of ·Corruption
Act shbuld· be''·
left over ··for a separate
~rial,. ·The two convictioμ:s
~re, '
therefore quashed and. ·also . the sentences:
~e. are .
told that the first accused has already .served out his.;
sentence. The fine
if paid,
will be
refunded. The
bail bond of the second accused will .be cancelled.
MAHANT SALIG RAM
v.
MUSAMMAT MAYA DEVI.
'
(~: ~· DAS, BHAGWAT! and SYED JAFER IMA¥ JJ.] '.'
Custom-succession-Non-ancestral
property-Daughter
virsus
collateral within fourth degree-Saraswat Brahmins of Pathahl{ol •in
the
District of Gurdaspur-Riwaj-i-am-Entries ih'erein-Value of
-Riwaj-i-am of Gurdaspur District of the year 1913-Whether a
t·eliable document-,-Answer to questions 16 and 17.-Value of,
It is now well-settled that the general custoin of the P~njab,
being that a daughter excludes the collaterals from succession to the
self-acquired property of her father. the initial onus, therefore, must,
on principle, be on. the. collaterals to show that the general custom in
favour of the daughter's succession to the. self-acquired
property <1f
her tather has been varied by a special local .custom . excluding· t~c,
daughter which is binding on the parties.
.
.
.
, . •
It is also well-settled that though the entri~s ·in the'· Riwaj-i~am
are entitled to an initial presumption in favour of their cortectne,s·
irrespective of the question whether or not the custom, 'as recorded,
is in accord ·with the general custom, the quantum of evidence neces'
sary to rebut that presumption will, however, 'vary with the ·facts
and circumstances of each case.
Where, for instance; the Riwaj-iam lays down a custoin in consonance with the general agricultural
custom of the province, very strong proof would be required to dis- ·
place that presumption; but where, on the other hand, the custom
as recorded in the Ri waj'i-am is opposed to the custom generally
prevalent; the presumption will be considerably weakeneq, Likewise1
40-89 S. C. India/59
1954
· Shreekanliak
.Ramayya
· Munipalli
v.
The Stale of
Bomha.J
Bose].
1955
January
~1
!955
Maharit 'Sillig· Ram
v; ·'
M11sammat Maya
Dtvi
Il92
.SUPREME COURT REPORTS
[1955]
where. ;he Riwaj-i-:an1 affects ad\·ersely the fights Of the feffialeS who
had ~ ._no
C!pportufiity tyhatever of appearing· before the
Revenue
authOrities, the presumption will be \Veaker still and only a few instances ·would be sufficient -to rebut it.
~~ the Riw_~j-i-am prOduced is a reliable and a trustworthy ~ dot;:umeti.t, has'beeri. carefully prepared, ·and does not contain_ within its
four· corners cbntradictory ·s_taten1entiv of- custom, and · in· "the op1n1on
of the! Settleinent· Officer is· not a record of the wishes of the persons
appearing before ·him as to what the custom sμould be, it would. he
a pr,r:sump~ive piece of evidence in proof of the special custom se~ up,
which i~ left unrebutted by the daughters
would lead to a result
faVOUrable to the colfaterals. ·If, on the other liand, ·it is not a
docU:rUent .of· the kind indicated above, then such a Riwaj-i-am will
have flo value at all as a presumptive piece of evidence.
The Riwaj-i-ams of the
Gurdaspur district prepared by
Mr.
Kennaway in 1913 in so far as they purport to record
the
local
custom as to the right of the· daughter to succeed to the self-acquired property of
h~r. father are not reliable and trustworthy documents.
The answer to question 16 al)d the answer to question
17 recorded therein do l).Ot ~ontain the correct record of custom.
Held,. that the appellant-a collateral within fourth
degreea saraswat Br3.

## Text

-
< ;
)
I
..
>.y·
S;C.R.
SUPREME COURT REPORTS
1191
to direct a retrial
though this is. the rionnal course .
when a jury frial is set aside on
the grounds of i:nisdirection
and
non-direction. We tl).erefore discharge
(nqt acquit) both the appellants leaving it to Government ~ither to drop t.he e.ntire matter or to
p~oceed
in such. manner as it may
be advised.,. We do .this
because the accused· expressly asked that
the • · charge·
under the Prevention · of ·Corruption
Act shbuld· be''·
left over ··for a separate
~rial,. ·The two convictioμ:s
~re, '
therefore quashed and. ·also . the sentences:
~e. are .
told that the first accused has already .served out his.;
sentence. The fine
if paid,
will be
refunded. The
bail bond of the second accused will .be cancelled.
MAHANT SALIG RAM
v.
MUSAMMAT MAYA DEVI.
'
(~: ~· DAS, BHAGWAT! and SYED JAFER IMA¥ JJ.] '.'
Custom-succession-Non-ancestral
property-Daughter
virsus
collateral within fourth degree-Saraswat Brahmins of Pathahl{ol •in
the
District of Gurdaspur-Riwaj-i-am-Entries ih'erein-Value of
-Riwaj-i-am of Gurdaspur District of the year 1913-Whether a
t·eliable document-,-Answer to questions 16 and 17.-Value of,
It is now well-settled that the general custoin of the P~njab,
being that a daughter excludes the collaterals from succession to the
self-acquired property of her father. the initial onus, therefore, must,
on principle, be on. the. collaterals to show that the general custom in
favour of the daughter's succession to the. self-acquired
property <1f
her tather has been varied by a special local .custom . excluding· t~c,
daughter which is binding on the parties.
.
.
.
, . •
It is also well-settled that though the entri~s ·in the'· Riwaj-i~am
are entitled to an initial presumption in favour of their cortectne,s·
irrespective of the question whether or not the custom, 'as recorded,
is in accord ·with the general custom, the quantum of evidence neces'
sary to rebut that presumption will, however, 'vary with the ·facts
and circumstances of each case.
Where, for instance; the Riwaj-iam lays down a custoin in consonance with the general agricultural
custom of the province, very strong proof would be required to dis- ·
place that presumption; but where, on the other hand, the custom
as recorded in the Ri waj'i-am is opposed to the custom generally
prevalent; the presumption will be considerably weakeneq, Likewise1
40-89 S. C. India/59
1954
· Shreekanliak
.Ramayya
· Munipalli
v.
The Stale of
Bomha.J
Bose].
1955
January
~1
!955
Maharit 'Sillig· Ram
v; ·'
M11sammat Maya
Dtvi
Il92
.SUPREME COURT REPORTS
[1955]
where. ;he Riwaj-i-:an1 affects ad\·ersely the fights Of the feffialeS who
had ~ ._no
C!pportufiity tyhatever of appearing· before the
Revenue
authOrities, the presumption will be \Veaker still and only a few instances ·would be sufficient -to rebut it.
~~ the Riw_~j-i-am prOduced is a reliable and a trustworthy ~ dot;:umeti.t, has'beeri. carefully prepared, ·and does not contain_ within its
four· corners cbntradictory ·s_taten1entiv of- custom, and · in· "the op1n1on
of the! Settleinent· Officer is· not a record of the wishes of the persons
appearing before ·him as to what the custom sμould be, it would. he
a pr,r:sump~ive piece of evidence in proof of the special custom se~ up,
which i~ left unrebutted by the daughters
would lead to a result
faVOUrable to the colfaterals. ·If, on the other liand, ·it is not a
docU:rUent .of· the kind indicated above, then such a Riwaj-i-am will
have flo value at all as a presumptive piece of evidence.
The Riwaj-i-ams of the
Gurdaspur district prepared by
Mr.
Kennaway in 1913 in so far as they purport to record
the
local
custom as to the right of the· daughter to succeed to the self-acquired property of
h~r. father are not reliable and trustworthy documents.
The answer to question 16 al)d the answer to question
17 recorded therein do l).Ot ~ontain the correct record of custom.
Held,. that the appellant-a collateral within fourth
degreea saraswat Br3.hmin of Pathankot in the district of Gurdaspur had
failed to discharge the onus that initially rested on him that the responde(ll (the. daughter) was excluded by him in respect of. the noiian~~tral .property. _of her father and that therefore np burden was
y·
cast op her. of adducing evidence of particular instances. ,
The ge.neral custom laid down in para 23 of Rattigan's Dige$t
of ~ustornary .Law that "a daughter is preferred to collaterals in
regard to .the self-acquired property· of her father" was approved by
the .S:iprCffie Court.
' Buta Sing}l v. Mt. Harnamon (A.LR. 1946 Lah. 306); Gopal
Si~gk v. Uiagar Singh ([1955] 1 S.C.R. 86), Mst. Subhani v. Nawab
(I.L.R. [1940] Lah. 154), Beg v. Allah Ditta ([1916] L.R. 44 I.A.
89), Mt. Vaishno Ditti v. Mt. Rameshri ([1928] l.L.R. 10 Lah.
I
186; L.R. '55 I.A. 407), Khan Beg v. Mt.
Fateh
Khatun ([1931]
'c
l.L:R. 13 Lah. 276), fagat Singh v. Mst.
fiwan
(A.LR. 1935 Lah.
617), Qamar-ud-din v. Mt. Fathe Bano ([1943] J.L.R. 26 Lah. 110),
Mohammad Khalil v. Mohammad Bakhsh (A.LR. 1949 E.P.
252),
Gudit Singk v. Mt. Malan ((1924] 1.L.R. 5 Lah. 364), Kesar Singh
~
v. Achhar. Singh (A.LR. 1936 Lah. 68), Bawa Singh v. Mt. Partap
(A.LR. 1935 Lah.' 288), Kesar Singh v. Gurnam Singh (A.LR. 1935
Lah: 696), Najju v. Mt. Aimna Bibi (A.LR. 1936 Lah. 493), Gurdit
Singh v .. Mt. 1vlan Kaur (A.LR. 1937 Lah. 90), Labh v. Mt. Fateh
Bibi (A.LR. 1940 Lah. 436), Ramzan Shah v. Sohna Shah
([1889]
24 P.R. 191), Nanak Chand v. Basheshar Nath ([1908] 43 P.R. 15)
J_.
and Mt, Mnmn v. Sawan Mal (A.LR. 1935 Lah. 453), referred to.
...
-
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r
S.C.R.
SUPREME COURT REPORTS
1193
. .
CrvrL
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 118 of 1953. ·
Appeal from the Judgment and De~ree dated.· t~e
28th July 1949 of the High Court of · Jud.icaiure, ·for
the State of Punjab at · Simla in
Civil ,Regular ·.First
Appeal No. 365 of 1946 ari,ing out of the Decree dated
the 31st day of . October 1946 of the
Court of the Su\).
Judg~, 1st Clas~, Pat~ankot in Suit No. 110 of 1945'.. '.
.
Raji11der Narain, for the appellant. · ,
K. L. Gosain (R. s. Narula and Naunit ·Lal, with
j
(
;
~
'
him), for the respondent.
1955.
January 21.
The Judgment of the
Court
was delivered by
D~s J.-This is an itppeal by the
pl~intiff i~.· a 'd~it
for a declaration of his title as collateral within four
degrees of Gurdial, who . was a
Sarswat. Brah'.mi~, resident of Pathankot. in the ' distriGt of 'Gurdlspu~ .~nd
the last male holder of tl1e .properties in suit. . ·. · · · ·
Gurdial died many years ago lea;ing. ce~tain' 'lands
in villages
Bhadroya, · Kingarian • and
Pathankot,
Tehsil. Pathankot . in the district of . · Gurdaspur, .. and
le'aving him surviving his widow· Musammat ·Melo an9
a
daughter
Musammat Maya
Devi,.
the . respond!;nt
before us ... So111e time in the year 1926, a . portiop.
of
the land in village
Bhadroya
was . acquired for ... the
Kangra. Valley· Railway and a sum of
Rs; l,539-7-0
was awarded to Musammat Melo. On an objection py
the appellant this .amount .was deposited in. the Court
of the
Senior Subordtnate
Judge, Gurdaspur,
with :l'
direction to pay the
interest on this amount
to
Musammat Melo,
· On the 28th September 1944 Musammat Melo died
and the . ·Revenue
Courts ordered mutations in· respect
of the lands in the
three villages in favour
of the
respondent .as the daughter of Gurdial.
On the 10th March 1945 the appeliani: filed· the• s~!t
out of which this ·appeal· arises against the respondent
for a declaration ·that he
wa's entitled . to
the , lands
mentioned . in the plaint
as well as to . the sum of
1955
Mahant Salig Ram
·v.
Muslltnmat M'!)la
· , Devi: ,,1
'·.
1955
Mahant---Salig Ram
v.
Mwammat Maya
D6vi
Das J.
1194
SUPREME COURT REPORTS
[ 1.955]
Rs. ,1,539-7;0. in preference to 1the respondent under' the
Y .,
custom governing the
parties
whereunder· . the · colla'
t~~als ,of ,the last male j:iolder excluded fhe daughter ..
, . T~e)·,espondent contes.ted.: th'.e suit '·,mainly on, the
gr9~nd.~~- . ,':1 . ·
·
. ·, , .
-
·
i, ,. (i). that the 'suit '.tor ~.· iPere' . declaration
was ,n?t
maintairiable,.
·
. .
. .
1
• , • •'\-
, · (iif,t,hat, the . parties
~~~e governed , by Hindu
· '
Law and not by custom,
~
(iii) that the
appellant
was
not a collateral of
Gwc)ial.,at all, . . .
.. , .
..
_
· (iv) ·that the properties in sui\ .were not an.cestr~I,
and
· (v) that there was '.no· ·custom · whereunder · the
collaterals of the father who was the last tnak holder
excluded the . daughter
from
succession to the , selfacq\li~e;f pr~perty .'of, her fath~r.
' . '
'
'
.
. . '.fhe .. ~l!bqrdinate Judge in his judgment pron0ttnceq
Ol)- 'fhe ~l~t ,9c\obef 1946 h~ld~ .
. .
.:
, · 1
·
.
(i) that the !,ands, in. , suit being_ in. po~session o~
tenants, the suit .for a declaration of title thereto was
riiiinfainable but the ' suit' for . a: declaration iii
respect
of 'the' "siiih of Rs .. 1,539-7-0 was not ·maintainable in'
v\~w of:UJ.e pr~visions of the
Indian
Succession
Act
rdating to succession'· certificates, ·
' '(ii)'that 'the parties
were
governed
by
custom
atld not by Hindu Law, ·
. .
.'. (iii)'tha~ 'the 'appellant. ·was. a. collateral of 'Gurdlal within four degrees,
'
. . ' .
.
'
'' (iy) 'that the land in
Khata' No.' 2 of die' village
Kihgarian Was ancestral while the ' rest' of the· lands
ill: si.iit 'Were 1 ·n:ofl-·allcestral, ·a~d ·'
.,,
·''
i,
' (v)"that there was a custom
according "to
which,'
a daughter was excluded
from
inheritance
by
the
collaterals · up to the fourth degree ·, •with
respect
to
ahC!!St,ral "as weU •as self-acquired ·. property
i:Jf the last
male holder as laid down' in the ·case ·of Buta Si11gh v:
Mt. Harnamon(').
·
· ·
·
· '·
In .. the result, the, Subordinate Judge / decreed . the• suit
in:-respe<;t only'.'of.. tile_ lands, iri sujt and
order.ed. the
parties to: beat. their ,own costs.
. ... , .
· .. 1
·!-(I):·A.I.ll.' 1946 Lah. 306.
-
-
..
-
S.C.R.
SUPREME COURT REPORTS
1195
· Against this judgment and decree the · respondent
preferred an appeal to the Lahore
High Court.
The
appellant preferred cross-objections against
the .: order.
as to costs and against the
finding that the· lands" 'in
the three villages except the
land in Khata' No., 2, of
village Kingarian were non-ancestral. After . the . parti-:
-. . ~: tion of India the . appeal was transferred . to the . High
'
~ , Court of East Punjab. ·
.
. · , ·
·
· · " :
•
By its judgment dated the 28th July
1949· the <East'
Punjab· High Court allowed the appeal and · dismissed
the cross"objections ·on the following findings:- ·..
'1 •
(i) that the suit' for .: declaration of
titl~ to· tn~·
lands was maintainable as all the lands 'in suit wer~'
in the possession of tenants,
·
·
· · ·
· (i:i) that, the
lands iri suit except the· land in
Khata No. 2 of village
Kingarian were
non~ance~trai;
and
·
,
·(iii) that according to the ·custom' prevaiiing iri
the Gurdaspui: district a daughter was entitled to. s:iJo ·
ceed to non-ancestral
property iri
preference to · col-·
laterals
even ' though ' they
were within the
fourth
degree.
·
·
·
'
' ' ·
"
'r
The, .High
Court accordingly, modified the decree 'of
the· Subordinate Judge . to the extent. th.at the.
decla~:
ration . in the appellant'.s favour
was ·made. to .. relate
only to the land in. Khata No. 2 of village
Kingarian
which was held
to be ancestral.
Qn an applica_tion:
made by the appellant on the 26th
August 1949
~he.
High Court,
by its order dated
the . 5th June 1950,
granted him a certificate of fitness to appeal. ' . to ' the
Federal Court.
After the commencement of 'the Constittiti<?n · of
India the ;ippea~
has. cope before
this '
Court for final disposal.·
·
The firs~ question rai.sed
before us . but ·not . v.ery
t:
seriously pressed is as to whether
the : lands in .sui,t.
other than those in
Khata No. 2 in village, _Kingarial). ·
were ancestral
or self-acquired.
Our , attentiop. , JJ.as ·
not been drawn to any material. on tht; recon;l which.
induces us .to take a view ' different from the view eon~
J.i
currently taken by the . Courts ·_below.
We, _therefore,
see n.o force or· substance in this contention.
1955
Mahant ·Sa/ig /Wm
v.
Musammat Maya
·.
Devi ·
Das Ji
1955
Mahant Salig Ram
v.
Musammat Mqya
:..,, Devi
Das J.
.;
1196
SUPREME COURT REPORTS
( 1955]
, -
The main fight before us has been on the question
as' to 'whether there ·is a_ custom in the
Gurdaspur
district governing' the parties
under which a collateral
within the fourth degree excludes the daughter of' the
hist, male holder from succession
to
the
-~elf-acquired
p'roperty _ of her father.
The customary --rights - of' succe_ssjcin of daughters as against the collaterals· -of 'the
father
with reference to a·ncestral
and non:ancestra:l
lands are stated in paragraph 23 of
Rattigan's
Dige~t
of
Customary
Law. It is categorically
stated in· subparagraph (2) of that paragraph
that the
daughter
succeeds to the
self-acquired property
of the father
in_ preference to the collaterals
even though
they are
within -the fourth
degree.
Rattigan's work has been.
accepted by the
Privy
Council_ as "a book _ of _ U!).-
questioned authority
in
the
Punjab".
Indeed,
the
correctness of this paragraph was not disputed before
this Court in Copa/ Singh v. Ujagar
Singh(').
The
general custom of the
Punjab
being that a daughter
excludes the collaterals from succession to the selfacquired property of her father the initial onus, therefore, must, on principle, 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
local custom excluding
the daughter
which is
binding
on
the parties.
Indeed, it -has been so held by the
Judicial
Committee
in T:rfst.: Subhani v. Nawab(
2
)
and the matter is now
We\1-se,ttled.
The appellant claims to have discharged this -initialonus in two ways, namely (1) by producing the
Riwaji-am
of
the - Gurdaspur
district
prepared
by
Mr:
Kennaway in
19i3 and
(2)
by
adducing
evidenc~
showing that the collaterals of one
Harnam _ Singh,
who was also a Sarswat
Brahmin
of the
Gurdaspur
district and indeed a member of this· very
family
of
Gurdial succeeded in -preference to his daughter. It
is pointe9 out that no instance
has
been · proved on
the part of the respondent
showing that the daughter
ever excluded the collaterals from
succession
to the·
self-acquired property of the father.
The trial ·Court
(1j [19551 1 s.c.R. se.
(2) LL.R. [1940) Lah. 154.
'r .,
-
-
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.
S.C.R.
SUPREME COURT REPORTS
1197
as well as the
High Court took the view that the evi~
dence as to the succession to the property- of Harnam
Singh was of no assistance to the appellant
for the
reason that the evidence was extremely sketchy; that
it did not appear whether the
properties left by Harnam Singh were ancestral or self~acquired or whether
" the .. properties left
by him were of any
substantial
, .._._._,,
value at all as would have made it worth while for
the
daughter to claim the same in addition to the
properties gifted to her by her father
during his lifetime: Further, the. fact
that the
daughter · did .not
contest
the suq.:ession
of the collaterals to
the pro-·
perties left by fiqfllaIU Singh, eyen if they were ·selfacquired, might ·well have been the result, as held by
the High Court, of sorrie family arrangement.
We
find . ourselves in agreement · with the
Courts
below
that · the instance relied
upon
by
the
appellant
is
wholly insufficient to discharge the onus that
was on
him to displace the general custom recorded in paragraph 23(2) of Rattigan's Digest of Customary Law.
(
The appellant
contends that in any case
he
has
fully discharged the onus that was on him by producing in evidence the
Riwaj-i-am · recording
the. custom
of the district of Gurdaspur which was ·compiled
by
Mr.
Kennaway in 1913.
Reference is also . made to
the earlier
Riwaj-i-ams of the Gurdaspur District prepared iri 1865 and 1893.
Answer to question
16. as
recorded in the Riwaj-i-am of 1913 shows that subject
to certain exceptions,
which are not material for our
purpose, the general rule is that the· daughters are
excluded by the widow and 1llale
kindred of the deceased, however
remote.
This
answer
goes
·much
beyond the answers to the same question as recorded
in the Riwaj-i-ams of 1865 and 1893 for those. answers
limit the exclusion in favour of
the male kindred up
to certain specified degrees.
The answer to
question
17 of the 1913 Riwaj-i-am like those to question 17 of
the 1865 and 1893
Riwaj-i-ams
clearly- indi<;:ates . that
except amongst the Gujjars of the Shakargarh tehsil
all the remaining
tribes
consulted
by
the
Revenue
authorities recognised
no distinction
as to the rights
of the daughters to inherit (i) the immovable or
1955
...
Mahant Salig Ram
"'.'·
•.
Musamrnat Maya
Devi
-.·
Das J.
ig55
Mdiiant· Salig' Ra'Ji
v,'
''
MuSam1nat Maya
DeVi1
iJ/u J.'
SUPREME COURT REPORTS
[1955]
antestral and (ii) the niovable or sdf acquired property
of' their' respective
fathers.. It is claimed
that
these
answers _quite ': a~equatdy displace
the
general custom
and' shif\ the onus to the . respondent to disprove the
ptesrtmption arising on these
Riwaj-i-ams
by
citing
instan:2es of successioncontrary · to
these answers.
In
stlj'lpOrt' °c:if this·
contention" reference
is made to the
observations· . of
the
Privy
Conncil in
Beg v. Allah
Di'tta(1 ) 'that· ··the statements contained in a · Riwaj-iani. <£oi-ih a sttbng piece of evidence iff support
of the
c'uston\. "therein:
entered · subject to
rebuttal.
Reliance
is also .-placed on the ·observations of the
Privy
Council'·in ·Mt. VaishnlY Ditti y. Mt. Rameshri(2 ) "to the effect·
that · 'the · statements · in the
Riwaj-i-am
might· be
accepted' even if unsupported by instances.
The conterttioii is that on production by the appellant
of the
Riwaj-icain ·of the · Gurdaspur district the onus shifted
to ·the ·respondent 'to prove
instances
rebutting
the
statements contained
therein. This, it is
urged,
the
respohdent has failed to do. ·
:.There is n'o doubt or disp~te :is to the value of the.
entries . in
the . Riwaj-i-am.
It is
well-settled
that
tl}ough' they are entitled to an initial presumption . in
favour "of their
correctness irrespective of the question whether
or not the ' custom, as recorded, is in
accord with the general custom, .the' quantum
of evidence necessary to rebut
that presumption
will, however; vary ~ith_ the facts and . circumstances
of each
case.
Where, for· instance, the Riwaj-i-am
lavs down
a ~ust~ni in . consonance with the general
agricultural
cust9m of ·the province,
very strong proof would be
required to displace that presumption; · but where,
on
the oiher hand, the custom" as recorded in the Riwaji-a'.~ , {s'. oppo;ed to
the
custom
g'eneraliy
preval~nt,.
the'.presumption
will be ,considerably
weal<ened.
Likewise .where the
Riwajci-am . affects adversely
the rights
of . the
femal~s who had
no opportunity
whatever
of ~ppearing before the
Revenue authodties, · _t~e presufI1ptio11 will be weaker still and only a fe.w mstances
would be .sufficient
to rebut it.
[See Khan Beg v.' Mt.
(i) (1916].i...R. 44.i. A. 89.
(2) [tg~S] i.L.R. to Lah. 186; L.R. 55 I.A. 407.
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S.C.R.
SUPREME COURT REPORTS
1199
Fateh Khatun(1 ), Jagat Singh v. Mst. Jiwan( 2 ) ]. The
principles laid down in these cases
were
approved of
by the
Judicial
Committee in Mst.
Subhani's case
supra.
Learned counsel appearing for the appellant contends that even if the presumption
as to the correctness of the Riwaj-i-am be weak, the
respondent
has
not cited a single instance
of a daughter
having
excluded the
collaterals
from
succession
to
the selfacquired property of
her father
and has,
therefore,
failed to discharge the onus that was thrown on her as a
result of the production-by the appellant of the Riwaji-am of 1913 and,
consequently,
the appellant
must
succeed.
This argument overlooks
the
fact that
m
order to enable the appellant
to displace the
general
custom recorded in
Rattigan's work and to shift
the
onus to the
respondent the
appellant
must
produce
a Riwaj-i-am which is a reliable and
trustworthy
document. It has
been held in Qamar-ud-Din v. Mt.
Fateh Bano( 3 ) that if the Riwaj-i-am
produced
is
a
reliable and a trustworthy document,
has
been
carefully prepared and does not contain
within
its
four
corners contradictory statements
of custom
and
m
the opinion of the
Settlement Officer
is not a record
of the wishes of the presons
appearing before
him as
to what the custom should be, it would be a presumptive piece of evidence in proof of the
special
custom
set up, which if left unrebutted
by
the
daughters
would lead to a result favourable
to the collaterals.
If, on the other hand, it is not a document of the kind
indicated above then such a Riwaj-i-am will
have no
value at all as a presumptive
piece of evidence.
This
principle has been followed
by the East Punjab High
Court in the later case of Mohammad Khalil v. Mohammad Bakhsh( 4 ), This being the
position in law, we
have to scrutinise and ascertain whether
the
Riwaji-ams of the Gurdaspur district in so far as they purport to record the local custom as
to the
right
of
succession
of daughters
to the self
acquired
properties of their respective father
are reliable and
trustworthy documents.
(1) [1931] l.L.R. 13 Lah. 276, 296, 297.
(2) A.LR. t935 Lah. 617.
(3) [1943] l.L.R. 26 Lah. 110.
(4) A.LR. '949 E.P. 252.
1955
Mahant Salig Ram
v.
Musammat Maya
Deui
Das].
1955
Mahant Salig Ram
v.
Musammat Maya
Devi
Da> ],
1200
SUPREME COURT REPORTS
[1955]
Twenty-two tribes including Brahmins were consulted by Mr. Kennaway who prepared ' the
Riwaj-i-am of
1913.
In paragraph 4 of the
Preface
Mr.
Kennaway
himself
states
that many
of the
questions related
to matters on which there really existed no custom
and the people
had merely stated
what the
custom
should be and not what it actually was.
In
Appendix 'C' are
collected
56 instances
of
mutuations
rn
which the daughter inherited.
In these
there
are
four instances relating to
Brahmins.
Answer to question 16, as recorded in this
Riwaj-i-am,
has
been discredited and shown to be incorrect in at least
three
cases, namely, Gurdit Singh v. Mt. Malan('), Kesar
Singh v. Achhar Singh(') and Buta Singh v. Mt. Harnamon ( 3 ) •
The answer to question 16 as recorded
in
the 1913 Riwaj-i-am, it was pointed ont, went much
beyond the answer given to the same
question in the
Riwaj-i-ams
of
1865
and
1893.
The
answer
to
question
17
of
the
1913
Riwaj-i-am
that
no
distinction
is
to
be made
between
ancestral
and
self-acquired
property has
not
been
accepted
as
correct in not less than six cases, namely, Bawa Singh
v. Mt. Partap( 4 ), fagat Singh v. Mt. fiwan( '), Kesar
Singh v. Gurnam Singh( 0 ), Najju v. Mt. Aimma Bibi('),
Gurdit Singh v. Mt. Man Kaur('), and Labh v. Mt.
Fateh Bibi('). The statements in a Riwaj-i-am the
truth of which is doubted by the compiler himself in
the preface and which stand
contradicted
by
the instances collected and set out in
Appendix 'C' of the
same Riwaj-i-am and which have been discredited in
judicial proceedings
and held to be incorrect
cannot,
in our opinion, be regarded as a reliable
or trustworthy
document and cannot
displace the initial
presumption
of the general custom
recorded in Rattigan' s book so
as to shift the onus to the daughter who is
the respondent.
The appellant relies on the cases of Ramzan Shah
v. Sohna Shah( 10 ), Nanak Chand v. Basheshar Nath(11 ),
Mt. Massan v. Sawan Mal (,.) and Kesar Singh
v.
(I) [r924] LL.R. 5 Lah. 364.
(3) A.LR. 1946. Lah. 306.
(5) Ibid. 617.
(7) A.LR. r936 Lah. 493·
(9) A.LR. 1940 Lah. 436.
(n) 1908] 43 P.R. I5.
(2) A.LR. 1936 Lah. 68.
(4) A.LR. 1935 Lah. 288.
r6) Ibid. 696.
(8) A.LR. 1937 Lah. 90.
(IO) [I889] 24 P.R. '9'·
(r2) A.LR. '935 Lah. 453·
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S.C.R.
SUPREME COURT REPORTS
1201
Achhar Singh(1), The first three cases are of no assistance to him although the second and third relate to
Brahmins of Gurdaspur,
for the
properties in dispute
in those cases were ancestral and the respondent does
not now
dispute the appellant's
right
to succeed to
her father's
ancestral
properties.
These
cases, therefore, do not throw any light on the present case which
is concerned
with the question
of succession
to selfacquired
property.
Further,
in the
last
case,
the
collaterals were beyond the fourth degree
and it was
enough for the
Court to say that irrespective
of whether the
properties in dispute were ancestral
or selfacquired the collaterals in that case could not succeed.
It is also to be noted that the earlier decisions were
not cited or considered in that case.
In our opinion the appellant has failed to discharge
the onus that was initially on him and that being the
position no burden was cast on the respondent
which
she need have discharged
by adducing
evidence
of
particular
instances.
In these
circumstances,
the
general
custom
recorded
in Rattigan's
book
must
prevail and the decision of the High Court must be upheld. We accordingly dismiss this appeal with costs.
Appeal dismissed.
NANAK CHAND
fl.
THE STATE OF PUNJAB.
[S. R. DAs, BHAGWATI and
SYED JAFER IMAM JJ.]
Indian Penal Code (Act XLV of 1860), s. 34---Merely explanatory-No offence created thereby-Ss. 34 and 149 of the Indian Penal
Code-Distinction between the two-Code of Criminal Procedure (Act
V of 1898), s. 233-Charge under s. 302 1·ead with s. 149, Indian
Penal Code-No speci'fic charge under s. 302, Indian Penal Code as
required by s. 233 of the Code of Criminal Procedure-Conviction
under s. 302-Legality thereof.
Section 34 of the Indian Penal Code is merely explanatory.
It
does not create any specific offence.
Under this section several persons must be actuated by a common intention and when in further-
(1) A.LR. 1936 Lah. 68.
1955
Mahant Salig Ram
v.
Musammal Ml!)'a
Devi
Das].
1955
January 25