1. This is a first appeal by the plaintiff Amarchand in a suit for declaration and possession, and was first heard by this Court some time in 1952. By a judgment dated 14th July, 1952, the case was remanded to the trial Court for fresh trial and report on the most important issue in the case which related to custom and which issue was recast by this Court in its proper form The earlier judgment of this Court shall be read as part of this judgment.
2. The facts of the case have been narrated fully in the earlier judgment and we need not state them at length again. It. is enough to say that the parties are Allhuwalias of the Punjab, who originally lived in village Bherunwal in the Hoshiarpur district, and thereafter migrated to the former State of Bikaner.
The dispute relates to ten 'Murabtaas Noa. 29 to 38 measuring 248 Bighas in Chak 12-Z in the former State of Bikaner, which were purchased by the deceased Indersingh. Indersingh died some time in 1933-34 leaving him surviving three sons Amarchand who is the plaintiff, and Keharchand and Krishan Deo who are pro forma defendant-respondents, and Mt. Shankari widow of the predeceased son Meharchand who is the contesting defendant-respondent. Meharchand died in 1908.
The plaintiff's case, as disclosed in the amended plaint, was that although he and his other two brothers were the lawful heirs to the estate of the deceased Indersingh, Mt. Shankari had somehow obtained mutation in her name with respect' to l/4th share of the land mentioned above and got into possession thereof. It was contended that Mt. Shankari had no right of succession to Indersingh's estate according to custom or law, and the plaintiff, therefore, prayed for a declaration as to his own title and that of his brothers (pro forma defendants) and for possession in respect of the share mutated in Mt. Shankari's name.
The main defence put forward by Mt. Shankari in her amended written statement was that according to the custom applicable to Allhuwalias in the Punjab, she as widow of a pre-deceased son was the lawful heir of the deceased Indersingh and was entitled to the same share to which her husband would have been entitled if he had survived his father Indersingh.
She also raised the plea that she had provided a considerable portion of the funds, that is, Rs. 6500/- to her father-in-law for the purchase of the ten Murabbas of land, and in lieu thereof the latter had agreed to give her half share thereof; but out of regard for her husband's brothers, she had agreed to accept one-fourth share only of which she was in possession.
It was further prayed that in case the Court came to the conclusion that she was not entitled to the share claimed and held by her, she may be allowed to remain in possession of the suit land as maintenance and her possession in respect of it may not be disturbed.
3. It is obvious from the contentions of the parties set out above that one of the main issues for determination in this case was whether the widow of a pre-deceased son among the Allhuwalias in the Punjab had a right of succession to her father-in-law's estate equal to her own husband's share, and the burden of this issue must have been laid on the defendant who really set up the custom; but the trial Court placed the burden of this issue upon the plaintiff and did so wrongly.
This Court, therefore, held by its judgment dated 14-7-1952, for reasons mentioned at length therein and which it is unnecessary to repeat that the issue as respects custom had been incorrectly framed so as to cast its burden upon the plaintiff and that that had resulted in a defective trial, and consequently, that issue was recast and remitted to the trial Court for fresh trial. The issue framed by this Court is in the following terms:
'Whether a custom exists among the community of Allhuwalias of the Punjab to which community the parties belong, whereby the widow of a pre-deceased son is entitled to inheritance in the property of her father-in-law to the same extent as if her husband had been alive at the time of the death of her father-in-law?'
The learned Civil Judge having given fresh opportunity to both parties to lead oral and documentary evidence bearing on the above issue has returned the finding that in his opinion the custom asserted by the defendant has been established. The effect of this finding, if upheld by us, must be the dismissal of the plaintiff's laim.
The correctness of the finding of the trial Court on the question of custom has therefore been strenuously challenged before us on behalf of the plaintiff, and we shall proceed to examine it on merits presently.
4. We may briefly point out at the utset that the finding of the learned trial Judge in this connection is based upon, apart from oral evidence, a number of instances produced by the defendant and supported in certain cases by documentary evidence such as mutation entries, Judicial decisions and certain instances mentioned therein which, if believed, go to show that the predeceased son's widow among the. Allhuwalias of the Punjab succeeds to her father-in-law's estate to the same extent as her husband would have succeeded if he had survived his father.
It may be pointed out that the defendant cited as many as twenty-four instances of such succession in all out of which the trial Judge has held 9 to have been proved beyond any doubt whatever and he has rejected the remaining instances either because they were not proved to the hilt to be cases of widows of predeceased sons and were, therefore, irrelevant; or, because they were supported by mere oral testimony of unsatisfactory character and were not corroborated by documentary evidence.
As the finding of the learned trial Judge was not seriously challenged before us in respect of the instances rejected by him, we shall confine our scrutiny to the examination of only such instances as have been accepted by him. We shall briefly consider these now.
5. The first instance is that of Mt Maya Devi. She was married in an Allhuwalia family of Bherunwal -- the very village to which the parties belong. Maya Devi's father-in-law Amar-singh had two sons Balla Singh, husband of Mt. Mayadevi, and Harjsingh, Balla Singh predeceased his father and the succession- opened in 1933. It is said that Mayadevi succeeded to a share equal to that of her husband in her father-in-law's estate.
Apart from the oral evidence of several witnesses such as D. Ws. Shamshersingh, Charansingh, Moolraj and Pratapsingh, the succession of Mayadevi is supported by a mutation entry in her favour in the revenue records. This entry is Ex. D-6. The plaintiff has been wholly unable to rebut this evidence and pretends not to know anything about Amarsingh, who belonged to his own village, and about Mayadevi's succession. This obviously - cannot be accepted.
6. Another instance relating to the Hoshiarpur district is that of Mt. Puran Devi (widow of Labh Singh) who was married into an Allhu-walia family at Gandhawal -- a village about a mile away from the parties' home village Bhe--runwal. Jamiat Singh, Mt. Purandevi's father-in-law, had four sons, namely, Gandasingh, Sher-singh, Gurudayal and Labh Singh. Labh Singh predeceased his father.
Purandevi succeeded to her father-in-law, and obtained the same share as her husband would have got. The defendant produced the relevant mutation entry Ex. 10 in support of this case apart from the oral evidence of a number of witnesses among whom reference may be made to D. W. Puransingh, Jamiat Singh's nephew and D. W, Nagina Singh, a cousin of Purandevi's husband, who completely support her succession. There is no reason whatsoever to doubt this testimony.
7. The third instance comes from the Khagwara district in Pepsu, and relates to the estate of Allhuwalia Chandansingh who had three sons Amreeksingh, Tarasingh and Harbans Singh. Amreeksingh, husband of Mt. Vidyawati, died in the life-time of his father. Mt. Vidyawati got an equal share to that of Tara Singh and Harbans Singh in her father-in-law's estate in 1939.
This case also stands supported by a mutation entry in favour of Mt. Vidyavati's name (Ex. 5). D. W. Harnamsingh who is Vidyavati's brother has appeared in support of the case and we see no reason to disbelieve his testimony in this respect.
8. The fourth instance is that of Mt. Parmeshwari widow of Harnamsingh. The latter lived in village Chamkor in the Ambala district. Mt. Parmeshwari's case also stands supported by the mutation entry Ex. 7 by which she was recorded as an equal co-sharer with her father-in-law Gurubux Singh's other sons Rangiram and Nanaksingh.
9. The fifth instance relates to Mt. Mohan Kunwar who was married to Allhuwalia Dalip-singh son of Gurubux Singh of Bhutari in the Ludhiana district. On Gurubux Singh's death, Mt. Mohan Kunwar succeeded to her fathqr-in-law's estate along with her husband's brothers Hukamsingh, Nathasingh and Narendrasingh. This instance is also supported by mutation entries in Mt. Mohan Kunwar's favour in the revenue records (Exs. 8, 9 and 10).
The surviving sons of Gurubux Singh brought a suit against Mt. Mohan Kunwar for a declaration that they were entitled to the lands which had been mutated in Mt. Mohan Kunwar's name and that the latter had no title thereto and was only entitled to maintenance. The Sub-Judge, Ludhiana by his judgment dated 5-7-1940, which is Ex. 1, partly dismissed the plaintiffs' suit on the ground that the widow of a predeceased son was entitled, to her husband's share so far as the ordinary property of the family was concerned but held that the same rule did not apply to Jagir lands.
But the distinction made by the learned Sub-Judge is of no relevance for our present purposes because there is no such controversy in the present case. When that case went in appeal before a learned District Judge, the entire controversy centered round the question whether the lands were Jagir or not, and the plaintiffs did not dispute the position that so far as the ordinary property of the family was concerned, -Mt. Mohan Kunwar was entitled to inherit her husband's share therein.
10. Two other instances relied on by the trial Court are those of Mt Kirpi and Govindi. Allhuwalia Nihalsingh of Bherunwal had three sons, Bhagalsingh, Heerasingh and Jagatsingh, out of whom Heerasingh and Jagatsingh died during the life-time of their father leaving behind their widows Kirpi and Govindi respectively. These widows are said to have inherited an equal one-third share each in their father-in-law's estate on the latter's death.
It is said that Nihalsingh died about 60 years ago, and no documentary evidenee was produced in support of these instances. The learned trial Judge has believed them, as the instances came from Bherunwal which was the home village of the parties, and the plaintiff has led no rebuttal whatsoever which he would not have failed to do if the instances were incorrect. On the whole, therefore, we see no sufficient reason to disagree with the view of the Court below in this connection.
11. One more instance cited by the defendant is that of Mt. Bhagi or Bhagwanti widow of Sona, a predeceased son of Nanaksingh. Allhuwalia of village Illawalpur of the Jallundhar district. This instance is also supported, by & mutation entry in favour of Mt. Bhagi (Ex. 18) wherein she was recorded as an equal co-sharer with Nanaksingh's two other sons Khushkal Singjs and Baiwant Singh. This entry relates to the year 1924.
12. The trial Court also relied on a judgment of this Court in 'Laj Kunwar v. Inder Singh', which was decided by a Division Bench of this Court by its judgment dated 24th January, 1950 (A). Lal Kunwar war, the widow of one Sohan Singh Allhuwalia of Amritsar. Sohan-singh was the son of Santasingh who had migrated to the former State of Bikaner. On the death of Santa Singh, Mt. Laj Kunwar obtained a mutation in the revenue records along with Indersingh, the surviving son of Santa Singh, in 1942.
This gave rise to litigation between the parties, which was finally decided by this Court by its judgment referred to above. It appears that Mt. Laj Kunwar had obtained a mutation in her name so far as the property in her home village fatehwal in Amritsar district was concerned some time in 1932 although her name was mutated in the former State of Bikaner in 1942.
It is remarkable that apart from the Riwaj-i-am of the Amritsar district, according to which the widow of a predeceased son was entitled to inherit, the learned Judges relied on three instances which pertained to the Hoshiarpur district to which the present parties also belong; these instances being of (1) Mt. Puran Devi of Gadhuwal widow of Labh Singh a predeceased son of Jamjat Singh (an instance already referred to above); (2) Mt. Dhandevi widow of Shiv-singh, a predeceased son of Dalersingh and (3) Mt. Har Kunwar widow of Mansingh, a predeceased son of Harnamsingh.
In all the three cases, the widows had obtained mutations in the revenue records with respect to their husbands' share on the death of their fathers-in-law. It was argued before the learned Judges in that case that the instances related to the Hoshiarpur district (the district with which we are concerned in the present case) and not to those of the Amritsar district.
This argument was repelled by the Bench on the ground that reliance had been placed by the parties on a custom prevailing in the community of Allhuwalias rather than a local custom confined to a particular district. The learned Judges came to the conclusion that the Allhuwalias of the Punjab whether they belonged to an agricultural or non-agricultural class were governed by the customary law of the Province and that the existence of the special custom in the community as alleged by the defendant was proved and in that view they dismissed the plaintiff's suit.
The above in brief is the evidence which has been relied on by the trial Court in support of the finding which it has returned in Mt. Shankari's favour. We shall now deal with the main points of attack which learned counsel for the plaintiff has directed against the above evidence.
13. The first serious objection raised on behalf of the plaintiff was that the evidence of custom upon which the trial Court has relied comes from districts other than Hoshiarpur and, therefore, to that extent such evidence must be entirely excluded, as it was contended that custom in the Punjab varies from district to district and even in different villages falling within the same district. (See -- 'Anantram v. Ram Rattan', AIR 1925 Lah 247 (Al), and -- 'Mt. Barkat Bibi v. Mohd. Amin', AIR 1935 Lah 325 (B).).
This contention, however, to our mind, is without any real substance. In the first place, we may draw attention to the issue which was framed by this Court and which has been set forth in full in the foregoing part of our judgment, and which refers to the custom as regards the Allhuwalia community in the Punjab and not to the custom of Allhuwalias living in the particular district of Hoshiarpur.
Both parties accepted the issue as it was framed without demur, and what is more, evidence was led without raising any objection at any stage of the trial. It seems to us, therefore, that it is too late in the day for the plaintiff now to contend that the evidence led as to the custom prevailing in the neighbouring districts of the Hoshiarpur district among the Allhuwalia community should be ruled out.
We are not unmindful that there are numerous decisions from the Punjab of the pre-partition days, of distinguished Judges, some of whom have held that custom in the Punjab is mainly tribal and others that it is local and varies from place to place and among the same community in various places.
We confess, without meaning the slightest disrespect, that it seems to us an impossible task to attempt any reconciliation of the various decisions which have taken the one view or the other; but speaking for ourselves we are inclined to agree to the view that custom in the Punjab is primarily 'tribal' or community-wise, although in some cases there may be local variations among members of the same community.
But these apart, it is reasonable to presume that as social life in India has tended to fashion itself, there has always been a tendency for members of a community situated more or less in neighbouring places to evolve a sort of common way of life and thus to adopt common customs in matters of marriage, inheritance and similar other things.
We are, therefore, of opinion that evidence of the neighbouring areas as regards the custom prevailing among the Allhuwalia community is of distinct value and considerable significance, and may well be considered as having a definite bearing on the custom of succession in question among the Allhuwalias of the Hoshiarpur district.
In our opinion, such evidence may have added importance when the Riwaj-i-am of a particular district may not be clear enough or may indeed be silent with regard to the particular matter in controversy. In this back ground we have no hesitation in holding that we do not see any valid justification for excluding the evidence led by the defendant with respect to the custom in question in other districts than that of Hoshiarpur to which the parties admittedly belong.
In this connection we may refer to -- 'Bui v. Bela Singh', AIR 1947 Lah 233 (C). In that case the question was whether Hundal Jats of Gurdaspur district were governed lay the rule of Chundawand or Pagwand in 1942 A.D. Instances were cited in the trial Court as to the custom in vogue among the Hundal Jats of the neighbouring district of Amritsar.
The District Judge was of opinion that much value could not be attached to such instances, as they were from a neighbouring district and not the same district. On appeal Mahajan J. (now the Chief Justice of India) who delivered the main judgment of the Bench observed as follows :
'I cannot subscribe to that view. Custom is usually tribal and though it may vary from locality to locality, but generally speaking the same tribe living in the neighbouring distinct follows the tribal custom. Hundal Jats of the Gurdaspur district are not a big community and it is difficult to hold that the instances of Hundal Jats living in neighbouring villages though within the artificial boundaries of the Amritsar district are not of much value when dealing with, this question of custom.'
With respect, we desire to say that the above remarks are clearly applicable to the case before us. The Allhuwalias of the Punjab, so far as we have been told, are not a big community, and it is reasonable to infer from the cases cited before us that members of this community living in the Hoshiarpur district do follow the custom which appears to us to have been clearly in vogue among the Allhuwalias in the neighbouring districts.
14. It was next contended before us that many of the instances relied upon by the trial Court were of a date subsequent to the present case and were, therefore, inadmissible in evidence. The argument was that the very language of Section 13, Evidence Act made instances subsequent to the controversy in any particular case inadmissible, and reliance was placed in support of this view on -- 'Jhingur Raut v. Emperor', AIR 1931 Pat 386 (D).
We wish to point out, however, that although the last holder Indersingh died some time in 1933-34 A.D. and Mt. Shankari had secured mutation of her family lands in Bherunwal some time in 1945, no dipsute arose between the parties until July 1947, a little after Mt. Shankari had got her name mutated in the former State of Bikaner, In the circumstances, we see no objection to cases prior to 1947 being considered.
Viewed from this angle, it will be noticed that succession in the case of Mt. Mayadevi of the Hoshiarpur district took place in 1933, of Mt. Purandevi also of the Hoshiarpur district in 1935; of Mt. Vidyawanti who belonged to the Phagwara district, now in Pepsu, in 1935; of Mt. Mohankunwar who was from the Ludhiana district in 1914; and in the case of Mt. Bhagwanti who belonged to the Jullundhar district, in 1924.
It is further noteworthy that at least two of these cases in addition to the cases of Mt. Kirpi and Govindi, which happened 60 years ago, are of a prior date to 1933-34 when succession to Indersingh's estate opened out. We also wish to state that we are not disposed to agree with the view that such instances should not be relied upon because they relate to transactions which took place after succession opened out in the present case.
To our mind, such instances are of value and importance to show that the custom which is alleged to have existed before was still in continuance and that there was no variation relating to it.
15. We consider it convenient here to dispose of the criticism directed against the trial Court for its having taken a judgment of this Court in -- 'Lajkunwar's case (A)' into consideration in arriving at a finding on the question of custom in Mt. Shankari's favour. It was urged that this judgment was definitely given by this Court in 1950 after the plaintiff had filed his suit in the present case.
We may point out, however, that the judgment in question is of importance for the purposes of the present case, as the learned Judges who decided that case had relied on certain instances relating to the Allhuwalia community of the Hoshiarpur district so far as the rights of succession of a predeceased son's widow were concerned.
We are disposed to think that leaving aside the question whether the judgment itself was of value on the question of custom before us as it had been pronounced after the present case arose in 1947, we are of opinion that the instances quoted therein of predeceased sons' widows succeeding are certainly admissible in evidence, as they were of a prior date. For such view, we rely on the following observations of their Lordships of the Privy Council in -- 'Mt. Subhani v. Nawab, AIR 1941 PC 21 (E), at page 32.
'A judicial decision, though of comparatively recent date, may contain, on its records evidence of specific instances, which are of sufficient antiquity to be of value in rebutting the presumption. In such a case, the value of the decision arises from the fact not that it is relevant under Sections 13 and 42, Evidence Act, as forming in itself a 'transaction by which the custom in question was recognized, etc.,' but that it contains, on its records, a number of specific instances relating to the relevant custom.
To ignore such judicial decisions merely on the basis of the Riwaj-i-am would add greatly to the perplexities and difficulties of proving a custom'.
We may also point out that in order to make a judgment admissible under Section 42 on the question of custom, it is not obligatory, in our opinion, that it should have been pronounced before the commencement of the controversy although what weight should be attached to such a judgment is a different matter.
16. We are, therefore, of opinion that the trial Court was entitled to take the judgment in the case of Lajkunwar into consideration in arriving at a decision as to the existence of the custom in question although we may add that by itself it should not be treated as conclusive.
Taken with the other evidence led in the case, we are disposed to hold the view that it furnishes evidence of a judicial instance of the custom propounded in the present case which cannot be ignored, and in any case, the instances of succession, mentioned in the judgment, of predeceased sons' widows among the Allhuwalia community coming from the Hoshiarpur district which is the very district to which the parties belong, are of definite value.
17. It was next argued with great force on behalf of the plaintiff that the Riwaj-i-am of the Hoshiarpur district as recorded in Humphrey's Customary Law of the Hoshiarpur District (Vol. XXII) does not recognise the existence of any custom of succession in favour of the widows of predeceased sons among the Allhuwalia community. The question and answer to which we were referred in this connection are as follows:--
'Question 36A. -- Has the widow of a son who predeceases his father any right to succeed to the share of the deceased son in presence of other sons of the deceased?
Answer -- Generally the right of the widow of a predeceased son in the presence of other sons of the deceased to succeed even to a widow's estate in her deceased husband's share is not admitted and she is declared to be only entitled to maintenance. Gujars, Arains, Chhangs and Brahmins however admit her right to a widow's estate in what would have been her deceased husband's share had he lived'.
It was argued, therefore, that the statement contained in the Riwaj-i-am which does not include the community of Allhuwalias among those who admit the widows' right to succeed was a strong piece of evidence against the custom set up by the defendant. It was also stressed that the Ka-lals, which is another name for Allhuwalias were consulted when the customary law of the Hoshiarpur district was being ascertained as found in Humphrey's volume.
Learned counsel further argued that where the Riwaj-i-am lays down a custom which is in consonance with the general custom of the Province, very strong proof will have to be adduced to displace the presumption created by the Riwaj-i-am that no such custom existed; but where this is not the case, and the custom recorded in the Riwaj-i-am is opposed to the rule which is generally prevailing, the presumption will be considerably weakened.
In this connection, we were referred to Khan Beg. v. Mt. Fateh Khatun', AIR 1932 Lah 157 (F) and Rattigan's Digest of Customary Law (1953 Edition), page 289, where it is stated that
'the widow of a sonless son who predeceased his father, is, in some tribes, permitted to succeed to his share, but the right is not universally admitted, and the onus of proving it lies on the widow who asserts it to exist'.
The contention put forward before us in short is that as the Riwaj-i-am in the present case contained a 'statement of the custom in accordance with the general custom which did not favour the rights of succession of the widows of the predeceased sons, a very heavy burden must rest on the defendant to prove the 'special' custom on which she relies and that this burden was not discharged by her in the present case.
Now, so far as that aspect of the matter is concerned, we wish in all humility to say two things. Firstly that it seems to us to be a misnomer to say that generally speaking there can be such a thing as a general custom of the Punjab. As observed by Sir Charles Roe in his book on Tribal Law in the Punjab,
'under such circumstances, seeing that the origin of all the tribes is not the same and that even with tribes of the same origin local and social conditions have greatly differed, it would be impossible that there could be a single body of customary or tribal law common to the whole of the Punjab'.
Secondly, where the so-called general custom is identical with and indistinguisnable from the general law of the land, it would, in our judgment, be introducing an entirely unnecessary element of confusion to say that such law is a general custom of the province and then to argue that a heavy burden rests on those alleging the custom contrary to such general custom to prove the so-called special custom.
So far as we are able to comprehend the true, position, a custom can only be in derogation of the law of the land and not identical with it, and Where indeed it is indistinguishable from the general law, we fail to see what useful purpose is served by calling it 'general custom' and not law, and as we have already pointed out above, the burden to prove a custom in derogation of the law, whether we may call it heavy or slight, rests squarely on a person who sets it up and wishes to be governed by it.
Indeed, there is an initial presumption that a person is governed by the personal law applicable to him in matters of succession; but where he says that he is governed by a custom, it is for him to prove that custom and where such custom happens to be recorded in the Riwaj-i-am, such a statement contained therein is a strong 'prima facie' proof which must prevail subject to rebuttal.
Reference may be made in this connection to 'Beg v. Allah Ditta', AIR 1916 PC 129 (G), 'Ab-dul Hussein v. Bibi Sona Dero', AIR 1917 PC 181 (H), 'Mt. Vaishno v. Mt. Rameshri', AIR 1928 PC 294 (I) and 'Gokal Chand v. Parvin Kumari', AIR . 1952 SC 231 (J). Now, either the Riwaj-i-am supports the custom or ,it does not. If it supports the custom, then the burden of proof is shifted to the opposite party, and jt will be for that party to rebut the Riwaj-i-am.
In case, however, the Riwaj-i-am does not record the custom with reference to a particular community, or is silent in the matter, then we are of opinion that the burden rests on the party relying upon that custom, and that burden is neither more heavy nor less than in the case of a person who is called upon to prove a custom in derogation of the law.
We may also add that where the Riwaj-i-am merely reiterates the general law, no particular evidentiary value attaches to it. Authority for this is to be found in 'Pjara Lal v. Atma Singh', 53 Pun LR 335 (PB) (K) at p. 351, where it is held that as
'most of the matters contained in the Riwaj-i-ams were not different from the rules of Hindu Law and in these circumstances the attestation of the Rjwaj-i-ams...... was not of much evidentiary value'.
and the same view is reiterated at page 385, and reliance was placed for this statement of the law on the judgment of Mahajan J., as he then was, in R.S.A. No. 1826 of 1945 (Punj) (L).
18. Now let us analyse the Riwaj-i-am in the present case. It does not record any custom so far as the Allhuwalias of the Hoshiarpur district are concerned. All that it does, in the initial part of the answer, is to repeat the ordinary law of the land as it then was, viz., that the predeceased sons' widows do not succeed to their husbands' property. In the latter part, it is stated that the four communities named there recognized such a custom.
We may now point out that the value of the entry in the Riwaj-i-am so far as the rights of the widows of the predeceased sons of the Allhuwa-lais are concerned is considerably weakened in the present case for the following reasons. Firstly, it may be pointed out that although Humphrey's Manual of the Hoshiarpur District does not mention Rajputs as one of the communities in which a custom in favour of a predeceased son's widow is recognized, Rattigan's Digest of Customary Law in the Punjab, 13th Edition (a work of high authority) under the heading Hoshiarpur District at page 294 shows that such a right was recognized in the case of Rajputs in 'C.A. No. 872 of 1869' and in 'Sandal Khan v. Mt. Akki', 23 Pun Re 1892 (M) in the case of 'Ghore-wala Rajputs' and in 'Fatteh Muhammed v. Sultan Muhammad', 19 Ind Gas 122 (Lah) (N) which was a case of Mohammaden Rajputs.
Again, while Brahmins are stated to admit a widow's right to succeed in Humphrey's Manual of the Hoshiarpur district, Rattigan's Digest at page 295 goes to show that Joshi Brahmins there do hot recognize such a right, 'Shadi v. Mt. Jeoni', AIR 1922 Lah 362 (O). It appears, therefore, clear to us that the statement of custom contained in the answer to question 36 A in Hum-phrey's Manual cannot be very helpful.
Secondly, this Riwaj-i-am does not contain any statement regarding custom among the Allhuwalias and, therefore, does not possess any evidentiary value regarding them. Thirdly, the entry contains a sort of a foot-note which shows that the result of the inquiries made showed a good deal of conflict on the custom in question.
Fourthly, it is remarkable that although it is stated in the introduction to Humphrey's volume that Kalals were consulted, not a single instance relating to that community is to be found among about forty instances collected under the answer to Question 36A.
Again, we must point out that the principle is well established that, where rights of women are concerned, we should construe the record of their rights in the Riwaj-i-am with considerable caution, the reason being that, firstly, women have had no opportunity whatever of appearing before the revenue authorities; and secondly, the male members of a community have been known to be much too apt to advance their own rights at the expense of the members of the opposite sex which has undoubtedly been the weaker one in the social conditions which prevailed in India.
The adverse presumption, therefore, arising from a Riwaj-i-am with regard to the rights of women is considerably weakened, and only a few instances might suffice to rebut it. There is a long line of decisions right from 1893 -- in 'Har-narain v. Mt. Deoki', 24 Pun Re 1893 (P) of the Punjab Courts to this effect, barring a few exceptional cases such as 'Bahadur v. Mt. Nihal Kaur', AIR 1937 Lah 451 (FB) (Q) which was emphatically disapproved by their Lordships of the Privy Council in -- 'Mt. Subhani v. Nawab1, (E). In the last mentioned case their Lordships observed as follows:--
'Where the Riwaj-i-am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weaker still, and only a few instances would suffice to rebut it'.
Further there is abundant 'authority for the proposition that unless there are clear indications to the contrary an entry as to succession in a Riwaj-i-am must be taken to refer only to succession to ancestral property and not to self-acquired property. Reference may be made in support of this view to 'Ganga Ram v. Naranjan Das', AIR 1935 Lah 518 (R), Ahmad v. Mohammad', AIR 1936 Lah 809 (S) and Mt. Hurmate v. Hoshiaru1, AIR 1944 Lah 21 (T).
There can be no question that the property in this case, viz., 10 Murabbas of land was purchased by the deceased Inder Singh himself and was his self-acquired property. The entry in the Riwaj-i-am, therefore, may not be construed to have any bearing on such property. We are, therefore, of opinion that the Riwaj-i-am of the Hoshiarpur district leaves the matter at large so far as the Allhuwalia community is concerned, and cannot be said to contain any statement of custom with regard to them.
19. The position, therefore, boils down to this that the question of custom in the present case falls to be decided on the evidence led by the parties relating to it and it is undoubtedly for the defendant to prove the custom set up by her.
20. Viewing the case from this point, we may point out that the cases of succession of the widows of predeceased sons among the Allhuwa-lia community cited above number eleven in all & six of them belong to the Hoshiarpur district. One more analogous case was brought to our notice relating to the Kangra district during the course of arguments (Mt. Jhumri v. Mt. Khalehlo', 53 Pun LR S. N. 7 (U) ).
In the very nature of circumstances, cases of predeceased sons' widows cannot be numerous, and the instances relating to the Allhuwalia community in the Hoshiarpur district produced in this case are adequate in number and quality to lead us to the conclusion that such a custom may well be held to be established among them.
The instances produced from the neighbouring districts where the same custom has been recognised strengthen this view. In addition, the defendant has produced two judicial instances. One of these is of our own Court which also tends to support the defendant's case.
Almost all of these instances are supported by revenue records which do not appear to have been challenged by the male heirs in most of the cases, and we have no doubt that if the widows of predeceased sons had no such rights, they would not have been allowed to have their names mutated in the revenue records.
Such a mutation was allowed to be effected in the case of Mt. Shankari herself so far as the lands in village Bherunwal are concerned much earlier than the time when the present suit was brought in 1947. We are not prepared to believe the plaintiff when he says that he was not aware of this mutation. It is remarkable that although the defendant has led considerable oral and documentary evidence in support of her contention, the plaintiff has not been able to cite a single case which would negative the custom set up by the defendant.
The plaintiff himself was unable to cite a single case against the custom and the same thing is true of most of his witnesses. P.W. 5 Fakir Chand undoubtedly referred to the case of his own sister Mt. Banti, wife of Mathuradas, in his cross-examination as an instance in point. The evidence of this witness, however, is of such a vague and unreliable character that no reliance can be placed on what he says.
No documentary evidence has been produced in support of this case. Fakirchand does not know even the father's name of Mathuradas and although he stated that his sister was involved in some litigation regarding her right of succession and also that the matter had gone up in appeal, not an iota of documentary evidence has been produced in support of this assertion.
This instance, therefore, cannot negative the evidence led by the defendant. The only other instance that has been cited is that of Mt. Jan. gali. P.W. Moolraj deposed that Mt. Jangali who was a cousin of his father did not receive any property in her father-in-law's estate. But there is nothing to satisfy us on this record that her husband had predeceased his father.
No documentary evidence has been produced to prove that her husband predeceased his father. We are, therefore, of opinion that these instances are of no value whatsoever.
21. In these circumstances we are of opinion that the defendant's evidence, unrebutted as it is, is enough to establish the custom set up in the present case, at any rate, so far as a predeceased son's widow's right of succession in the Hoshiarpur district is concerned.
22. There were two other criticisms which, in our opinion, were of a minor character to which the defendant's evidence was further subjected, and we shall dispose of them briefly. An attempt was made by the plaintiff's witnesses to show that in one or two of the instances relied on by us above, the predeceased son's widow when she succeeded to her father-in-law's esate had a daughter living and, therefore, she was allowed to succeed, and that such cases were, therefore, outside the scope of the custom set up by the defendant.
We are of opinion that the mere fact of a predeceased son's widow having a daughter does not and cannot advance her case to succeed under the custom pleaded by her if she was not otherwise entitled to succeed. A daughter according to the general law applicable to Hindus in the Punjab was not entitled to succeed except in accordance with custom and, therefore, this additional feature is a mere device to confound the custom pleaded by the defendant and cannot be permitted to affect the issue raised in this case.
In any event if the daughter has any right of succession in such a case, then it seems to us that it is the daughter who would succeed and not the mother. Secondly, it was contended that in some of the cases the la,nd allowed to the predeceased son's widows by the male heirs might have been allowed by them merely as maintenance to which they were certainly entitled, and, therefore, the possession of such lands by the widows would not prove any custom of succession in their favour.
This contention is, in our opinion, without any force. Learned counsel wants us to assume that the holdings in many of these cases were small and that the portion of the land that was allowed to be mutated in the names of the widows was just sufficient for the purposes of their maintenance. But clearly we are unable to make all these assumptions in the absence of definite material leading us to that conclusion.
No cross-examination was directed against any of the defendant's witnesses on this point to elicit the necessary facts and circumstances bearing upon this contention and in the absence of such cross-examination we are not prepared to make any conjecture such as the plaintiff now wants us to.
Then the entries of mutations referred to by us above in every case recorded the widows as holders of exactly the share in her father-in-law's estate to which her husband would have been entitled if he had survived his father. This clearly negatives the contention raised by the plaintiff and we have no hesitation in overruling it in the circumstances of the present case.
23. It only remains for us to say that the evidence produced in proof of the alleged custom satisfies, in our opinion, all the requirements of ft valid custom, viz., that it should be certain, ancient, invariable and not opposed to reason or public morality. It is impossible to say that the custom contended for in the present case is at all opposed to reason or good conscience.
In fact the recognition of the right of succession of a predeceased son's widow under the Hindu Women's Rights to Property Act, 1937, is proof par excellence of the essential reasonableness of such a rule. So far as the ancient nature of the custom is concerned, it has been held on the highest authority that the English rule of the custom running beyond the memory of man in order to be recognized need not be followed in India.
All that is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule among the people concerned in the particular district. (See 'Mt. Subhani v. Nawab (E)'.)
The condition of invariability has, in our opinion, been satisfactorily established in the present case, as not a single instance to the contrary has been brought forward by the plaintiff negativing the custom claimed by the defendant' over a considerable number of years. In these circumstances, we have no hesitation in upholding the finding of the trial Court that the custom of a predeceased son's widow succeeding to her father-in-law's estate to the extent of the share of her husband among the Allhuwalia community stands proved on this record.
24. We may also add that even if it be assumed that the Riwaj-i-am of the Hoshiarpur district raises a presumption against Mt. Shankari so far as her right to succeed as a predeceased son's widow is concerned, we are of opinion that the quantum of proof necessary to rebut the presumption varies with the facts and circumstances of each particular case, and we consider that such presumption has been satisfactorily' rebutted in the present case by the evidence produced on behalf of her and unrebutted by -the plaintiff.
25. As regards issue No. 2, as our finding has been in Mt. Shankari's favour on the point of custom, all that we need say is that this issue does not call for any decision at all. We may add, however, that if our finding on the issue relating to custom had been against the defendant, our view is that her claim to maintenance could not be decreed in this suit in the absence of necessary material and a proper inquiry relating thereto and we would have directed her to file a separate suit for the purpose
26. The only remaining issue relates to Mt. Shankari's contention that she provided some funds to her father-in-law Inder Singh to purchase the 10 Murabbas of land in dispute in lieu whereof the latter agreed to give her half share thereof and that as there was a mutual settlement later between her and her husband's brothers, she agreed to accept only 1/4th share in the whole land.
This issue has been found by the trial Court against the defendant, and this finding has not been challenged before us.
27. Consequently, we dismiss this appealwith costs to the contesting respondent Mt. Shankari.