1. This appeal has arisen under the following circumstances. One Bubedar Bhan Singh, a Thind Jat of the village Dialpura in Pargana Utalan in Tahsil Samrala of Ludhiana District, died on 16th January 1941 leaving him surviving three sons, namely, Labh Singh, Surjit Singh and Bakhatawar Singh. Of these Labh Singh was from one mother, namely, Mt. Bishni while Surjit Singh and Bakhatawar Singh were from another mother, namely, Mt Santi. Bhan Singh left considerable movable and immovable property. On his death the mutation in respect of a part of the landed property left by him was sanctioned in the names of his three sons in equal shares. In November 1944, Labh Singh brought the suit which has given rise to the present appeal for possession of a 1/6th share of the land in respect of which mutation had been sanctioned and for a declaration of his title to a one-half share in the other land left by his father. He also claimed a one-half share in the movable property left by the latter. The ground of claim was that according to the custom governing the parties tribe Chundawand rule applied. The defendents Surjit Singh and Bakhatawar Singh resisted the suit on the plea that the rule of Pagwand applied and that under that rule the three sons of the deceased were entitled to succeed to the property left by him in equal shares. The learned trial Judge negatived the contention of the plaintiff and, holding that the rule of Pagwand applied, dismissed his suit for possession of 1/6th of the land regarding which a mutation had been sanctioned in the names of the parties in equal shares. He granted the plaintiff a declaration of his title to one third only in the inheritance of his father and decreed his claim for recovery of his share of the movable property on that basis. Feeling aggrieved from this decree the plaintiff has come-up in appeal to this Court.
2. The only question that arises for decision in the appeal is whether the plaintiff is entitled to a one-half share in the inheritance of his father according to the Chundawand rule or must share the same equally with his brothers without any reference to their mothers.
3. The learned Counsel for the appellant has mainly relied on EX. P. 21 which is a copy of para. 14 of the wajib-ul-ara relating to the village of the parties prepared at the settlement of 1852. The heading of para. 14 is: 'Relating to sale and mortgage of lands owned by Khewatdars.' About the end of the paragraph a statement to the following effect is to be found:
After the death of their father, the sons from the previous and the present wives shall be owners in equal shares according to Chundawand Rule getting share per stirpe.
The plaintiff has also produced copies of para. 14 in the wajibul-arzes of two other villages, namely, the village Kotla Shamaspur and the village Isru, prepared at the aforesaid settlement. Of these the village Kotla Shamaspur was situate like the village of the parties, in Pargana Utalan while the village Isru was situate in a different Pargana, namely, Pargana-Khanna. These paragraphs of the wajib-ul-arz of these villages are identical in terms with para. 14 of the wajib-ul-arz of the village of the parties to which reference has already been made. The object of the plaintiff in 'producing these copies appears to be to show that the custom of Chundawand prevailed also in the neighbouring villages, evidence having been led to show that both the aforesaid villages are situate at a short distance from the parties' village.
4. The title of the paragraph shows that enquiry was being made by the official concerned in respect to the local customs governing the Bales and mortgages of lands by individual proprietors. It appears that during the course of the enquiry into such customs a statement was incidentally made as to the property of a proprietor being divisible, after his death, amongst his sons per stirpes and according to Chundawand Rule. It does not appear that any enquiry was made at the aforesaid settlement as to the custom regarding succession and one really fails to see what occasion there was for any reference to Chundawand in dealing with customs relating to sales and mortgages of lands. Be that as it, may, the statement is there and a wajib-ul-arz being a part of the record of rights any statement contained therein will ordinarily carry a presumption of correctness as provided in Section 44, Punjab Land Revenue Act. The presumption, however, is indisputably a rebuttable one and its strength must vary according to the circumstances in which the statement purports to have been made, The presumption attaching to the statement referred to above cannot be as great as it would have been if the enquiry during the course whereof the statement had been made had related to customs of inheritance, or, to be more accurate, to customs of distribution of a fathers's estate, because, as has been pointed out in a number of decided cases the rule of Chundawand is not strictly speaking a rule of succession but a rule of distribution. Reference may in this connection be made to the following observations of Plowden, J. in the Pull Bench judgment in Gholam Muhammad v. Muhammad Bakhsh 4 P.R.1891:
What then are these customs of Pagwand and Chundawand?
On this point the collected cases appear to me to lead very clearly to the following conclusion:
They are not customs of succession properly so called, inasmuch as (1) they do not profess to ascertain the heir, and (2) neither operates only on the occasion of a death. They are, in reality, customary modes of distribution of an estate among the persons who are, by custom, entitled to a share, and they operate on the assumption that these persons are already ascertained.
5. Whatever presumption, however, attached to the above statement in the wajib-ul-arz was destroyed by the answer given by all the tribes residing in the village of the parties at the time of the preparation of the riwaj-i-am at the settlement of 1882 thirty years later. Exhibit-D. 2. is a certified copy of the relevant entry in the riwaj-i-am which is printed at page 54 of the paper-book. The heading of the entry clearly shows that enquiry was being made into the customs of different Gots of Jats residing in a number of villages including the village of Dialpura, i.e. the village of the parties. The question which was asked from the representatives of the tribes residing in the villages named was quite clear and explicit in its terms. It ran as follows:
If there are more sons than one, will they take equal shares?
If not, upon what principle are the shares regulated?
(1) Is succession according to Chundawand or Pagwand?
The answer to this question was equally explicit and categorical. It was:
In such case, all the sons inherit the moveable and immoveable property equally, according to Pagwand Rule....
(1) The Rule of Pagwand prevails in our tribe.
The settlement operations of the district of Ludhiana in 1882 were conducted by no less an officer than Mr. T. Gordon Walker who eventually became the Lieut. Governor of the Punjab and who is quite well known in the province for the care and precision with which settlement operations were generally conducted by him in different districts of which he held charge from time to time. In the Manual of Customary Law of the district compiled by himself in English on the basis of the answers of tribesmen recorded in original Varnacular riwaj-i-am he has made the following observations in reference to question No. 33 at page 36:
The almost universal custom is to neglect uterine descent and that each son (or his representatives) should take an equal share, that is, the Pagwand custom prevails. The rule of Chundawand, under which the property was divided according to the number of wives, the descendants of each wife taking one share, is dearly a barbarous and unjust one, and is fast disappearing, the common sense of the people having declared against it. In early times, when land was plentiful and the paternal power was in full force, such a distribution was not likely to meet with much opposition; but now with' the growing scarcity of land the right of every son to an equal share in his father's property is insisted on. This was the way in which most of the representatives of the tribes and Gots put the matter to me when questioned. Even where cases were quoted of Chundawand succession, these were declared to be instances of an extinct and not of a living custom. Some whole villages of moat tribes still declared for Chundawand; and their statements have been thus recorded. It is remarkable that on this point the representatives of each village agreed amongst themselves on one or other of the customs, and there was no dispute inside of any village. The custom of Chundawand can scarcely be said to be such a bad one that a Court of law ought to reject it; but it may, I think, be held to be prima facie opposed to justice and equity. There is such a strong presumption in favour of the equal right of all a man's sons in his property, that the fullest evidence should be required to establish the contrary; and this is the view that the people themselves take.
The above passage shows that utmost care was taken by the settlement officer in ascertaining the existing custom of different villages and different tribes. Where any village or any tribe declared in favour of Chundawand the statement was taken down with care. In the circumstances, more than ordinary weight attaches to the record of custom as contained in the riwaj-i-am prepared at the settlement of 1882.
6. The learned Counsel for the appellant laid stress on the circumstance that out of the instances quoted in Ex. D. 2 three were cases in which Pagwand rule had been followed while Chundawand rule had been followed in four cases. It was urged that there was a larger number of instances of chundawand succession and that in the circumstances there was no justification for assuming that the Pagwand rule had been abrogated by the Chundawand rule. It was contended by the learned Counsel that unless quite an overwhelming number of instances in which Pagwand rule had been followed subsequent to the preparation of the wajib-ul-arz of 1882 were forthcoming it could not be said that the custom recorded at the settlement of 1852 had in fact been replaced by a different and a contrary custom. This contention of the learned Counsel overlooks the fact that according to all well-recognised authorities, the custom of a Chundawand is a most exceptional custom which has been slowly giving place to Pagwand even where at one time it was in force and that even in tribes and families in which Chundawand at one time admittedly prevailed the custom has in more recent years been undergoing transformation, the Pagwand distribution being gradually substituted for it.
7. As pointed out by Chatterji, J. in Ranjha v. Bulanda 14 P.R.1909 being an exception to the ordinary rule Chundawand may become obsolete merely by reason of not being enforced. It was not in the circumstances necessary to show that in any appreciable number of instances subsequent to the settlement of 1852 Pagwand rule had been followed in preference to the Chundwand rule in order to prove that the Chundawand rule had in fact been re. placed by the Pagwand rule in the tribes concerned by the time the riwaj-i-am of 1882 came to be prepared.
8. It is indisputable that in case of a contest between records of customs prepared at two different settlements the presumption of correctness attaches to the later record unless it is shown that it was prepared carelessly or did not otherwise represent the existing custom. As against the entry in the wajib-ul-arz of 1852, therefore, the entry in the riwaj-i-am of 1882 must prevail and it can be no ground for ignoring it that the instances mentioned did not warrant change. As has been pointed out above the statement as to Chundawand rule being the rule governing the distribution of a father's estate had been made merely incidentally in 1852 while an enquiry was being made into a different set of customs and this circumstance must naturally weaken the presumption which would ordinarily attach to it. The entry in the riwaj-i-am of 1882 is not only an entry in a later record but is entitled to particular weight because the statements contained therein were made in answer to precise and express questions asked from the persons concerned in relation to the custom of Pagwand and Chundawand succession.
9. It has further to be remembered that out of the instances of Chundawand mentioned in Ex. D. 2 none relates to the village or the Got of the parties. It is well-settled that the custom of Chundawand is essentially a family custom. In Kaku and Ors. v. Bhagwan Singh 119 P.R.1893 in which Bhaundher Jats of Mauza Kbohli Khurd in the Ludhiana Tahsil were found to be governed by the Chundawand rule of inheritance, the following observations were made by Sir Charles Roe who wrote the judgment of the Bench:
The fact that the custom has been found to exist in one tribe would be no reason for presuming its existence in another tribs, and that it might even be found to exist in some villages or some families of a tribe without any strong presumption arising that it exists amongst other villages or families of the same tribe.
In Ahmad and Ors. v. Haji Muhammad 50 P.R.1909 similar observations were made. In Nanak Chand v. Munshi Ram and Ors. A.I.R. (9) 1922 Lah. 452.
Le Rossignol, J. observed as follows:
in each case, however, the safest guide is the rule which is proved to have been observed in the family of the parties.
In Gujar Khan v. Ghulam Mohammad A.I.R.1926 Lah.163 the. Bench observed:
The Chundawand custom is one which frequently prevails in one family of a tribe and does not prevail in another family of the same tribe.
10. There is nothing to show that the rule of Chundawand was ever applied in the matter of succession to a father's estate in the village Dialpura either before 1852 or thereafter. No single instance of Chundawand succession in the village has been mentioned either in any official record of custom or during the course of the present trial. In the circumstances, there can be no reasonable ground for assuming that the statement in Ex. p. 21 was based on any instances and was anything more than a mere expression of a wish on the part of the village proprietor that the inheritance of a father should be distributed amongst his sons according to the Chundawand rule. It may well be that the settlement official preparing the wajib-ul-arz for the village simply copied the entries made in the wajib-ul-arzes of other neighouring villages. Be that as it may, in the absence of anything to indicate that the statement contained in the wajib-ul-arz of Dialpura was based on any instances of Chundawand succession, there can be no reasonable ground for ignoring the entry as to custom contained in Ex. D. 2 by reason of no instances of Pagwand succession in the village being mentioned therein. A perusal of EX. D. 2 shows that great care had been taken by the settlement officer responsible for the preparation of the riwaj-i-am to ascertain the custom as prevailing in different villages comprised in the two Parganas of Utalan and Bahalopur. It is true that at one time the view taken was that a mere entry in the riwaj-i-am, unsupported by instances cannot carry much weight.
11. However, since their Lordships of the Judicial Committee delivered their judgment in Beg v. Allah Ditto A.I.R.1916 P.C.129, this cannot be said to be any longer the view as to the weight due to such an entry. Now it is well settled that an entry in the riwaj-i-am is presumptive evidence of the existence of the custom recorded therein even though it is not supported by any instances. Reference may in this connection be made amongst other cases to the decision of their Lordships of the Judicial Committee in Mt. Vaishno Diiti v. Mt. Bameshri and Ors. A.I.R.1928 P.C.294.
12. Much stress was laid by the learned Counsel for the appellant on the circumstance that Thind, the Got of the parties, is not one of the 14 Gots mentioned in Ex. D. 2, and it was urged by him that in the circumstances the custom recorded in the aforesaid document could not be regarded as the custom applicable to Thind Jats of Dialpura. This contention of the learned Counsel is obviously based on a fallacy. The enumeration of Gots in Ex. D. 2 does not even purport to be exhaustive. After mentioning 14 Gots the word 'etc.' is used and then follow the names of the villages of which the custom was being recorded. It seems to be quite clear from the language used that the custom recorded in Ex. D. 2 was the custom of the Jats of all the Gots residing in the villages mentioned.
13. Another and a revised riwaj-i-am was prepared at the settlement of 1909/10. Exhibit D. 8 is a certified copy of the relevant entry in that riwaj-i-am. A perusal of this document shows that Hindu Jats of the Parganas of Bahalopur and Utalan stated that their custom in the matter of Pagwand or Chundawand succession was the same as recorded at the previous settlement. The settlement of Ludhiana District in 1909-10 was conducted by Mr. J.M. Dunnett another very capable and careful officer. The preface to the English Manual of Customary Law of the district compiled by him shows that in preparation of the riwaj-i-am be did not depend entirely on the enquiries made by his Assistants and that on all doubtful and difficult points he made personal enquiries. At p. 64 of the Book he Bums up the result of the enquiries on the subject of Chundawand or Pagwand succession as follows:
In early times, when land was plentiful and the paternal power was in lull force, Chundawand, whether the general rule or not, appears to have been a very common rule of distribution. But by last Settlement it had become an almost universal custom to neglect uterine descent, each son (or his representatives) taking an equal share. Cases of Chundawand were quoted by several tribes as instances of an extinct and not of a living custom. But some whole villages of most tribes still declared for Chundawand....
At the present attestation only the Hindu Rajputs clink to the rule of inheritance by uterine groups. It is admitted by all tribes to have died out in Jagraon Tahsil. In Ludhiana the Dhaliwal and Bundher Gots and the Hindu Jats of Pargannah Malaudh and a few villages of Pargannah Ghungrana, who at last Settlement recorded their custom as Chundawand, now follow Pagwand and quote numerous instances. The same reply is made by Muhammadan Bajputs of Mattewara, Mangli Kadir, Mangli Khan, Walipur, Lakhowal, Gaddowali Mehlon and Paharuwal and by Dogars and Arains.
Chundawand is rapidly disappearing. Cases still occur, but the rule is now not even a village custom, instances being confined to special families. As far as tribal custom goes, Pagwand is now the universal rule, save among Hindu Bajputs.
In view of the entries in the riwaj-i-ams prepared at the settlements of 1882 and 1909-10, we are clearly of the opinion that the custom as recorded in the wajib-ul-arz of 1852 can no longer be regarded as the custom applicable to Hindu Jats of Dialpura. It is at best doubtful if they followed Chundawand rule of succession even in 1852 when the wajib-ul-arz was prepared. Even if they did follow the Chundawand rule at that time, it is quite clear that the said rule had been abandoned before 1882 and that since then they have adhered to the Pagwand rule.
14. The plaintiff has not been able to pro-duce any evidence to show that the riwaj-i-ams prepared at the last two settlements did not correctly record the custom applicable to Thind Jats or Hindu Jats generally of the village Dialpura. On the other hand, there is unimpeachable evidence to prove the contrary. Exhibit D. 4 is a copy of a mutation order, dated 28th January 1889, relating to the inheritance of one Gujar Singh a Jat of the Basahti Got belong to Dialpura. According to this document, on the death of Gujar Singh his land was inherited equally by his sons from different wives. He had left three sons from one wife and one son from another wife.
15. Exhibit D. 5 is a copy of the mutation order relating to the inheritance of one Subedar Hari Singh of the parties' village who died on 9th December 1944. He had five sons and the land left by him was inherited by all the five sons in equal shares. As stated by the plaintiff himself as P.W. 1, Hari Singh had two wives, Mt Balwant Kaur and Mt. Autar Kaur. The former had only one son while the latter had as many as four sons.
16. It will thus be noticed that besides the entries in the riwaj-i-am there are two clear instances of actual succession by sons of different wives amongst Jats of the village of the parties while there is no instance at all to the contrary. All the instances relied on by the plaintiff relate to other villages and Jats of other Gots and, therefore, are wholly irrelevant. It is at best doubtful if these instances would have been considered to be sufficient to establish the custom of Chundawand even in the villages to which they relate. By reason of the exceptional nature of the custom it has generally been insisted that the instances cited in support of it should be such as may justify the Court in holding that the custom prevails universally among the family or group of families concerned and not merely that it has been followed in just a number of cases. In Atar Singh v. Nihal Singh and Ors. 125 P.R.1884 there were 20 instances of Chundawand succession against 12 instances of Pagwand succession, but the Chief Court Bench declined to hold the Ohundawand rule to have been proved to apply. The following observations in the judgment of the Bench are worthy of note:
The local commissioner's enquiry shows that several oases of Chundawand have taken place, though there have been divisions also on Pagwand principles, and he has collected about 20 of the former to 12 of the latter. Now this only shows that Chundawand, though followed often, is not universally recognized and since it has been laid down in Dhyan Chand and Ors. v. Mehtab Singh 101 P.R.1879 that in the absence of proof the general custom of Pagwand must be held to apply, with which conclusion we fully concur, we can only say that, as was decided in that case, which was also between Sidhu Berars of this tahsil, we do not think Chundawand custom is sufficiently shown to prevail to warrant us in holding it to govern this inheritance.
17. That in order to establish that Chundawand rule, instances of that rule having been followed in a particular family or in a particular clan of a certain tribe should be so overwhelming in number and of such a character as to justify the conclusion that this custom of succession prevails universally among the family of the clan will also appear from the following observations to be found in Gopal v. Sheivag Ram 12 P.R.1899:
In the face of all these considerations after going most carefully into the whole question we find it necessary to come to the conclusion that although a fair number of instances of Chundawand succession have been adduced they are not sufficient to prove that this custom of succession prevails universally among the Kataria got of Jats of Rohtak generally, nor do we consider it proved that the Chundawand custom of succession prevails in the family to which the parties belong.
18. It has further to be observed that out of the seven instances cited on behalf of the plaintiff only one relates to a village of which the custom is recorded in Ex, D. 2. All others relate to Jats of other parganas and it may well be that custom amongst them has not undergone any change since 1862. The only two instances in which there was a contest and the matter went to Courts relate to villages other than those mentioned in Ex. D. 2 and in both the decision of the Courts was based on the wajib-ul-arz of 1852. In one of them the learned Subordinate Judge declined to consider the evidence as to the change in the custom because he was of the view that custom, in order to be valid, baa to be so old that human memory runneth not to the contrary, although from the earliest time it has been recognized that this does not hold good of customs in the Punjab. Writing as far back as 1881, O.L. Tupper who subsequently became Sir Lewis Tupper and rose to be the Lieutenant Governor of the Province, and who made very extensive and careful researches about the Punjab custom, observed in vol. I. of his treatise on the Punjab Customary Law at p. 147:
The English rules as to proving custom have no application here.
Adverting to the same subject at p. 204 of the same volume he observed:
Custom in English law has, of course, a technical signification. Amongst other maters it must have been used so long that the memory of man runneth not to the contrary, so that if any one can show the beginning of it is no good custom but custom, i.e. rivaj in the native acceptation of the term, has a more extended signification. Besides hereditary practices, it includes new rules made to suit new needs rules spontaneously evolved, in a manner most appropriate to the primitive state of the society in which they appear, by the agency of those interesting fictions which have played so large a part in all legal history.
19. The learned Counsel for the appellant also relied on the oral evidence of Daulat Singh (P.W. 1) and Kapur Singh (P.W. 5) both of whom are Thind Jats of the village Dialpura and urged, relying on the judgment of their Lordships of the Privy Council in Ahmad Khan v. Mt. Channi Bibi that this oral evidence was by itself sufficient to prove the custom contended for by him. Both the aforesaid witnesses are young men of 40. They are unable to cite any instances in support of the custom deposed to by them and otherwise give no date on which they base their opinion as to custom which is in direct conflict with the statements made by the representatives of all the Hindu Jats, including Thind Jats of their village, at the two settle, ments for 1882 and 1909-10. The judgment of the Privy Council in Ahmad Khan v. Mt. Channi Bibi A.I.R.192S P.C.267 is of no help to the appellant. It is true that in that case custom was held proved merely by the general evidence given by the members of the family without proof of special instances, but in each case the Court has got to consider the oral evidence on its merits and the decision from each case will depend upon the quality of the evidence produced. Their Lordships have laid down no absoulte rule of universal application. Their decision was based on the special facts of the particular case. There is no warrant in it. The general proposition put forward by the learned Counsel that oral evidence of a few members of a family, a clan or a tribe as to the existence of a custom should be taken to establish the existence of that custom even though there is no evidence of any instances in which that custom was actually followed.
20. Our attention was drawn by the learned Counsel for the appellant to the judgment of a Division Bench of the High Court of Lahore in Fazl-i-Hussain v. Tafazil Hussayn A.I.R.1932 Lah.222. We are unable to discover anything in that Judgment which can be said to be of any assistance to the appellant. That case was decided on its own special facts. The succession in that case opened out in 1910. The entries in the riwaj-i-am of 1865 and 1892 were in favour of Chundawand and it was only at the time of the attestation of the riwaj-i-am compiled at the settlement of 1911-12 that an attempt was made to say that the Pagwand should be followed in preference to the Chundawand. The learned Judges were of the opinion that in view of the succession having opened out before the compilation of the riwaj-i-am of 1911-12 the entry in the said riwaj-i-am could not be regarded as a useful guide and on the strength of that entry it could not be held that custom had 'actually undergone a change by the time the propositus died. The learned Counsel laid stress on certain observations appearing in the judgment in which it had been stated that an entry in an earlier riwaj-i-am was entitled to greater weight than the one appearing in a later riwaj-i-am and that the custom of Chundawand was not merely a family custom but was a tribal custom. Those observations are merely in the nature of obiter dicta and run counter to a large number of other decisions of the Punjab Chief Court and High Court of Lahore to which the learned Judges did not advert at all. In the circumstances in our opinion, these dicta cannot be accepted as any guide for the decision of the present case.
20. For the reasons given above we are of the opinion that this appeal is wholly devoid of force and dismiss the same with costs.