1. This is an appeal brought against a judgment and decree of the Additional District Judge, Amritsar, dated 22-7-1947 affirming the decree of the trial Court by which the suit of the plaintiffs was dismissed.
2. Briefly stated, the facts are that Paten Singh, the last male holder, died in or about 1906 leaving 419 'kanals' 11 'marlas' of land which was inherited by his widow Raj Kaitr. On 3-3-1926 Raj Kaur adopted her daughter Har Kaur's son Kapur Singh. Some of the plaintiffs including Narain Singh brought a declaratory suit challenging the adoption which was decided on 10-5-1928 and is Ex. P-7. The defendants in that suit were Raj Kaur, the widow of Fateh Sing, Kapur Singh, a son of Har Kaur and a grandson of Fateh Singh, and Har Kaur was not a party. The suit had been brought for a declaration that the adoption of Kapur Singh by Mt. Raj Kaur was invalid according to custom and would not affect thereversionary rights of the plaintiffs. The first issue was in regard to relationship, & in Ex. p. 7 it has been stated that this issue was decided by an order dated 9-2-1928, Evidently the finding was in favour of the then plaintiffs, but it is not clear what was the relationship claimed nor is it clear as to what exactly the finding of the Judge was, excepting that he held that the plaintiffs had a right to bring the suit. It was also held in that suit that the property was not ancestral and that according to the 'riwaj-i-am' the daughters were excluded from inheritance.
3. In 1943 Raj Kaur died and mutation was effected in favour of her daughter Har Kaur. The plaintiffs, Narain Singh and others who claimed to be 7th degree collaterals, brought a suit for possession claiming that they were preferential heirs to Har Kaur. Both the Courts have found that the plaintiffs have not been proved to be collaterals of the seventh degree, that the property is not ancestral and that the daughters are preferential heirs as against the plaintiffs in regard to self-acquired property.
4. I need not discuss the question of limitation. Mr. Fakir Chand Mital for the appellant has submitted that the finding in the previous Judgment Ex. P. 7 of 10-5-1928 operates as 'res judicata' and therefore it was not open to the lower Court to go into the question of relationship of the plaintiffs with Fateh Singh. Exhibit P. 7 does not show as to what exactly was claimed to be the relationship of the then plaintiff with Fateh Singh. Mr. Fakir Chand Mital has now stated that the trial Court has found that the previous claim was that the plaintiffs were 7th degree collaterals of Fateh Singh deceased. But there is no evidence in support of that finding. There is nothing to show as to what exactly was the relationship claimed and, therefore, I am unable to agree that there was any such claim. In the absence of any material on the record, it is difficult for us to differ from the finding of the learned District Judge in regard to the relationship. On the present record there is no proof that the plaintiffs are related in the 7th degree to Fateh Singh. The evidence of the Pandas on which the plaintiffs seem to rely has been rightly rejected by the learned Judge, and beyond that there is no other material. Besides this Har Kaur was not a party to these proceedings, and any finding given in regard to the relationship of the then plaintiffs with Fateh Singh will not bind her.
5. The next question is as to what are the rights of collaterals of the 7th degree as against daughters in regard to non-ancestral property. The 'riwaj-i-am' of 1914 in question and answer No. 60 no doubt excluded the daughters as against an agnate howsoever remote, but the rigour of that 'riwaj-i-am' has now been lessened by Question No. 55 of the 'riwaj-i-am' of 1940 where in answer to Question No. 55 it is said :
'Daughters are excluded from succession to ancestral and non-ancestral property by a son or sons, failing them by a widow or widows, and failing both son and widow by collaterals to the fifth (among Sandhu Jats, the seventh) degree unless the daughter is unmarried when she is preferred to collaterals until marriage. Married daughters succeed after collaterals of the specified degree. Daughters are entitled to succeed to both classes of property to the order of succession.Unmarried daughters preferred to collaterals have the same limited interest in the estate as a widow would have. Daughters succeeding in due order after collaterals have an absolute title.'
At page 79 of the Riwaj-i-am of 1940 are given instances of . the exclusion of daughters and where daughters had excluded collaterals. It is not necessary to go into all those cases, because after the pronouncement in -- 'Mt. Subbani v. Nawab', AIR 1941 PC 21 (A), the approach is different which has now been approved of by the Supremo Court in -- 'Gokal Chand v. Parvin Kumari', AIR 1952 SC 231 (B), where the learned Judges have laid down the value of the Riwaj-i-am in the following words :
'No statutory presumption attaches to the contents of a Riwaj-i-am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and win generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may, however, be proved to be incorrect and the question of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities.'
6. The value of the Riwaj-i-am in regard to daughters was again reviewed in two Division Bench judgments of the Lahore High Court: firstly, by Mahajan J. with whom Harries C. J. agreed in -- 'Qamar-ud-Din v. Mt. Fateh Bano', AIR 1944 Lah 72 at p. 75 (C) the learned Judge observed as follows :
'The learned counsel's contention, therefore, was that this Riwaj-i-am entry was by itself sufficient evidence to discharge the onus that rested on the collaterals. To my mind this Riwaj-i-am is on no better footing than the one that came up for consideration before their Lordships of the Privy Council in 'Mt. Subhani's case (A)', and the criticisms levelled against the Shahpur Riwaj-i-am prepared by Mr. Wilson apply with full force to the present Riwaj-i-am. It is interesting to note that in the Urdu answer to question 17, the custom as regards self-acquired property is not clearly stated. All that is said is that movable and immovable property ('manqula wa ghair mankula') the daughters do not inherit. On such a cryptic statement on this important subject in the RiwaH-am I am afraid I cannot hold that the onus has been discharged. On the other hand, I find that a sufficient number of instances, which have been discussed by both the Courts below, have been placed on the record where after contest, and after a keen fight it has been held that daughters are preferential heirs to self-acquired property in Sirsa as well as in Hissar. Therefore, on the true view of the case this second appeal has no substance.'
In a later judgment which was from Amritsar another Bench of the Lahore High Court in --'Sadhu Singh v. Mst. Hamamon', AIR 1946 Lah 444 (D), held that in regard to non-ancestral property daughters had superior right to succeed as against collaterals. It is not stated clearly as to what was the degree of relationship, but it appears that they were not very remote. It was there held that the Riwaj-i-am should be treated as only a piece of evidence, and as it was opposed to the general custom it was not sufficient in itself to shift the onus from the collaterals on to the daughters. Mr. Fakir Chand Mital emphasises the fact that the plaintiffs are Sandhu Jats who aremore restrictive in regard to the rights of daughters than other Jats, but I am unable to agree that even in their case the custom is any different. At least on the evidence produced it is not shown that amongst them the collaterals have any better rights than they have in the case of other Jats. I would, therefore, dismiss this appeal with costs throughout.
7. I agree.