1. This is an appeal by the plaintiff in a suit for a declaration of histitle as collateral within four degrees of Gurdial, who was a Sarswat Brahmin,resident of Pathankot in the district of Gurdaspur and the last male holder ofthe properties in suit.
2. Gurdial died many years ago leaving certain lands in villages Bhadroya,Kingarian and Pathankot, Tehsil Pathankot in the district of Gurdaspur, andleaving him surviving his widow Musammat Melo and a daughter Musammat Maya Devi,the respondent before us. Some time in the year 1962, a portion of the land invillage Bhadroya was acquired for the Kangra Valley Railway and a sum of Rs.1,539-7-0 was awarded to Musammat Melo. On an objection by the appellant thisamount was deposited in the Court of the Senior Subordinate Judge, Gurdaspur,with a direction to pay the interest on this amount to Musammat Melo.
3. On the 28th September 1944 Musammat Melo died and the Revenue Courtsordered mutations in respect of the lands in the three villages in favour ofthe respondent as the daughter of Gurdial.
4. On the 10th March 1945 the appellant filed the suit out of which thisappeal arises against the respondent for a declaration that he was entitled tothe lands mentioned in the plaint as well as to the sum of Rs. 1,539-7-0 inpreference to the respondent under the custom governing the parties whereunderthe collaterals of the last male holder excluded the daughter.
5. The respondent contested the suit mainly on the grounds -
(i) that the suit for a meredeclaration was not maintainable,
(ii) that the parties weregoverned by Hindu Law and not by custom,
(iii) that the appellant was nota collateral of Gurdial at all,
(iv) that the properties in suitwere not ancestral, and
(v) that there was no customwhereunder the collaterals of the father who was the last male holder excludedthe daughter from succession to the self-acquired property of her father.
6. The Subordinate Judge in his judgment pronounced on the 31st October 1946held -
(i) that the lands in suit beingin possession of tenants, the suit for a declaration of title thereto wasmaintainable but the suit for a declaration in respect of the sum of Rs.1,539-7-0 was not maintainable in view of the provisions of the Indian SuccessionAct relating to succession certificates,
(ii) that the parties weregoverned by custom and not by Hindu Law,
(iii) that the appellant was acollateral of Gurdial within four degrees,
(iv) that the land in Khata No. 2of village Kingarian was ancestral while the rest of the lands in suit werenon-ancestral, and
(v) that there was a customaccording to which a daughter was excluded from inheritance by the collateralsup to the fourth degree with respect to ancestral as well as self-acquiredproperty of the last male holder as laid down in the case of Buta Singh v. Mt.Harnamon A.I.R. 1946 Lah. 306.
In the result, the Subordinate Judge decreed the suit in respect only of thelands in suit and ordered the parties to bear their own cost.
7. Against this judgment and decree the respondent preferred an appeal tothe Lahore High Court. The appellant preferred cross-objections against theorder as to costs and against the finding that the lands in the three villagesexcept the land in Khata No. 2 of village Kingarian were non-ancestral. Afterthe partition of India the appeal was transferred to the High Court of EastPunjab.
8. By its judgment dated the 28th July 1949 the East Punjab High Courtallowed the appeal and dismissed the cross-objections on the following findings:-
(i) that the suit for declarationof title to the lands was maintainable as all the lands in suit were in thepossession of tenants,
(ii) that the lands in suitexcept the land in Khata No. 2 of village Kingarian were non-ancestral, and
(iii) that according to thecustom prevailing in the Gurdaspur district a daughter was entitled to succeedto non-ancestral property in preference to collaterals even though they werewithin the fourth degree.
9. The High Court accordingly modified the decree of the Subordinate Judgeto the extent that the declaration in the appellant's favour was made to relateonly to the land in Khata No. 2 of village Kingarian which was held to beancestral. On an application made by the appellant on the 26th August 1949 theHigh Court, by its order dated the 5th June 1950, granted him a certificate offitness to appeal to the Federal Court. After the commencement of theConstitution of India the appeal has come before this Court for final disposal.
10. The first question raised before us but not very seriously pressed is asto whether the lands in suit other than those in Khata No. 2 in villageKingarian were ancestral or self-acquired. Our attention has not been drawn toany material on the record which induces us to take a view different from theview concurrently taken by the Courts below. We, therefore, see no force orsubstance in this contention.
11. The main fight before us has been on the question as to whether there isa custom in the Gurdaspur district governing the parties under which acollateral within the fourth degree excludes the daughter of the last maleholder from succession to the self-acquired property of her father. Thecustomary rights of succession of daughters as against the collaterals of thefather with reference to ancestral and non-ancestral lands are stated inparagraph 23 of Rattigan's Digest of Customary Law. It is categorically statedin sub-paragraph (2) of that paragraph that the daughter succeed to theself-acquired property of the father in preference to the collaterals eventhough they are within the fourth degree. Rattigan's work has been accepted bythe Privy Council as 'a book of unquestioned authority in thePunjab'. Indeed, the correctness of this paragraph was not disputed beforethis Court in Gopal Singh v. Ujagar Singh : 1SCR86 . The generalcustom of the Punjab being that a daughter excludes the collaterals fromsuccession to the self-acquired property of her father the initial onus,therefore, must, on principle, be on the collaterals to show that the generalcustom in favour of the daughter's succession to the self-acquired property ofher father has been varied by a special local custom excluding the daughterwhich is binding on the parties. Indeed, it has been so held by the JudicialCommittee in Mst. Subhani v. Nawab I.L.R.  Lah. 154 and the matter isnow well-settled.
12. The appellant claims to have discharged this initial onus in two ways,namely (1) by producing the Riwaj-i-am of the Gurdaspur district prepared byMr. Kennaway in 1913 and (2) by adducing evidence showing that the collateralsof one Harnam Singh, who was also a Sarswat Brahmin of the Gurdaspur districtand indeed a member of this very family of Gurdial succeeded in preference tohis daughter. It is pointed out that no instance has been proved on the part ofthe respondent showing that the daughter ever excluded the collaterals fromsuccession to the self-acquired property of the father. The trial Court as wellas the High Court took the view that the evidence as to the succession to theproperty of Harnam Singh was of no assistance to the appellant for the reasonthat the evidence was extremely sketchy, that it did not appear whether theproperties left by Harnam Singh were ancestral or self-acquired or whether theproperties left by him were of any substantial value at all as would have madeit worth while for the daughter to claim the same in addition to the propertiesgifted to her by her father during his lifetime. Further, the fact that thedaughter did not contest the succession of the collaterals to the propertiesleft by Harnam Singh, even if they were self-acquired, might well have been theresult, as held by the High Court, of some family arrangement. We find ourselvesin agreement with the Courts below that the instance relied upon by theappellant is wholly insufficient to discharge the onus that was on him todisplace the general custom recorded in paragraph 23(2) of Rattigan's Digest ofCustomary Law.
13. The appellant contends that in any case he has fully discharged the onusthat was on him by producing in evidence the Riwaj-i-am recording the custom ofthe district of Gurdaspur which was complied by Mr. Kennaway in 1913. Referenceis also made to the earlier Riwaj-i-ams of the Gurdaspur District prepared in1865 and 1893. Answer to question 16 as recorded in the Riwaj-i-am of 1913shows that subject to certain exceptions, which are not material for ourpurpose, the general rule is that the daughters are excluded by the widow andmale kindred of the deceased, however remote. This answer goes much beyond theanswers to the same question as recorded in the Riwaj-i-ams of 1865 and 1893for those answers limit the exclusion in favour of the male kindred up to certainspecified degrees. The answer to question 17 of the 1913 Riwaj-i-am like thoseto question 17 of the 1865 and 1893 Riwaj-i-ams clearly indicates that exceptamongst the Gujjars of the Shakargarh tehsil all the remaining tribes consultedby the Revenue authorities recognised no distinction as to the rights of thedaughters to inherit (i) the immovable or ancestral and (ii) the movable orself acquired property of their respective fathers. It is claimed that theseanswers quite adequately displace the general custom and shift the onus to therespondent to disprove the presumption arising on these Riwaj-i-ams by citinginstances of succession contrary to these answers. In support of thiscontention reference is made to the observations of the Privy Council in Beg v.Allah Ditta that the statements contained in aRiwaj-i-am form a strong piece of evidence in support of the custom thereinentered subject to rebuttal. Reliance is also placed on the observations of thePrivy Council in Mt. Vaishno Ditti v. Mt. Rameshri I.L.R. Lah. 18;L.R. 55 IndAp 407) to the effect that the statements in the Riwaj-i-am might beaccepted even if unsupported by instances. The contention is that on productionby the appellant of the Riwaj-i-am of the Gurdaspur district the onus shiftedto the respondent to prove instances rebutting the statements containedtherein. This, it is urged, the respondent has failed to do.
14. There is no doubt or dispute as to the value of the entries in theRiwaj-i-am. It is well-settled that though they are entitled to an initialpresumption in favour of their correctness irrespective of the question whetheror not the custom, as recorded, is in accord with the general custom, thequantum of evidence necessary to rebut that presumption will, however, varywith the facts and circumstances of each case. Where, for instance, theRiwaj-i-am lays down a custom in consonance with the general agriculturalcustom of the province, very strong proof would be required to displace thatpresumption; but where, on the other hand, the custom as recorded in theRiwaj-i-am is opposed to the custom generally prevalent, the presumption willbe considerably weakened. Likewise, where the Riwaj-i-am affects adversely therights of the females who had no opportunity whatever of appearing before theRevenue authorities, the presumption will be weaker still and only a fewinstances would be sufficient to rebut it. [See Khan Beg v. Mt. Fateh Khatun I.L.R. 13 Lah. 276, Jagat Singh v. Mst. Jiwan A.I.R. 1935 Lah. 617). The principles laid down in these cases were approved of by theJudicial Committee in Mst. Subhani's case supra.
15. Learned counsel appearing for the appellant contends that even if thepresumption as to the correctness of the Riwaj-i-am be weak, the respondent hasnot cited a single instance of a daughter having excluded the collaterals fromsuccession to the self-acquired property of her father and has, therefore,failed to discharge the onus that was thrown on her as a result of theproduction by the appellant of the Riwaj-i-am of 1913 and, consequently, theappellant must succeed. This argument overlooks the fact that in order toenable the appellant to displace the general custom recorded in Rattigan's workand to shift the onus to the respondent the appellant must produce a Riwaj-i-amwhich is a reliable and trustworthy document. It has been held in Qamar-ud-Dinv. Mt. Fateh Bano I.L.R.  Lah. 110 that if the Riwaj-i-am producedis a reliable and a trustworthy document, has been carefully prepared and doesnot contain within its four corners contradictory statements of custom and inthe opinion of the Settlement Officer is not a record of the wishes of thepersons appearing before him as to what the custom should be, it would be apresumptive piece of evidence in proof of the special custom set up, which ifleft unrebutted by the daughters would lead to a result favourable to thecollaterals. If, on the other hand, it is not a document of the kind indicatedabove then such a Riwaj-i-am will have no value at all as a presumptive pieceof evidence. This principle has been followed by the East Punjab High Court inthe later case of Mohammad Khalil v. Mohammad Bakhsh A.I.R. 1949 E.P. 252.This being the position in law, we have to scrutinise and ascertain whether theRiwaj-i-am of the Gurdaspur district in so far as they purport to record thelocal custom as to the right of succession of daughters to the self acquiredproperties of their respective father are reliable and trustworthy documents.
16. Twenty-two tribes including Brahmins were consulted by Mr. Kennaway whoprepared the Riwaj-i-am of 1913. In paragraph 4 of the Preface Mr. Kennawayhimself states that many of the questions related to matters on which therereally existed no custom and the people had merely stated what the customshould be and not what it actually was. In Appendix 'C' are collected 56instances of mutuations in which the daughter inherited. In these there arefour instances relating to Brahmins. Answer to question 16, as recorded in thisRiwaj-i-am, has been discredited and shown to be incorrect in at least threecases, namely, Gurdit Singh v. Mt. Malan I.L.R.  Lah. 364, KesarSingh v. Achhar Singh A.I.R. 1936 Lah. 68 and Buta Singh v. Mt. HarnamonA.I.R. 1946 Lah. 306. The answer to question 16 as recorded in the 1913Riwaj-i-am, it was pointed out, went much beyond the answer given to the samequestion in the Riwaj-i-ams of 1865 and 1893. The answer to question 17 of the1913 Riwaj-i-am that no distinction is to be made between ancestral andself-acquired property has not been accepted as correct in not less than sixcases, namely, Bawa Singh v. Mt. Partap A.I.R. 1935 Lah. 288, Jagat Singh v.Mt. Jiwan (Ibid, 617), Kesar Singh v. Gurnam Singh (Ibid. 696), Najju v. Mt.Aimna Bibi A.I.R. 1936 Lah. 493, Gurdit Singh v. Mt. Man Kaur A.I.R. 1937 Lah. 90, and Labh v. Mt. Fateh Bibi A.I.R. 1940 Lah. 436. The statements ina Riwaj-i-am the truth of which is doubted by the compiler himself in thepreface and which stand contradicted by the instances collected and set out inAppendix 'C' of the same Riwaj-i-am and which have been discredited in judicialproceedings and held to be incorrect cannot, in our opinion, be regarded as areliable or trustworthy document and cannot displace the initial presumption ofthe general custom recorded in Rattigan's book so as to shift the onus to thedaughter who is the respondent.
17. The appellant relies on the cases of Ramzan Shah v. Sohna Shah  24 P.R. 191, Nanak Chand v. Basheshar Nath  43 P.R. 15, Mt. Massan v.Sawan Mal A.I.R. 1935 Lah. 453 and Kesar Singh v. Achhar Singh A.I.R. 1936Lah. 68. The first three cases are of no assistance to him although the secondand third relate to Brahmins of Gurdaspur, for the properties in dispute inthose cases were ancestral and the respondent does not now dispute theappellant'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 withthe question of succession to self-acquired property. Further, in the lastcase, the collaterals were beyond the fourth degree and it was enough for theCourt to say that irrespective of whether the properties in dispute wereancestral or self-acquired the collaterals in that case could not succeed. Itis also to be noted that the earlier decisions were not cited or considered inthat case.
18. In our opinion the appellant has failed to discharge the onus that wasinitially on him and that being the position no burden was cast on therespondent which she need have discharged by adducing evidence of particularinstances. In these circumstance, the general custom recorded in Rattigan'sbook must prevail and the decision of the High Court must be upheld. Weaccordingly dismiss this appeal with costs.
19. Appeal dismissed.