Bawa Singh and Another vs Mt. Taro

Harnam Singh, J.—Mt. Taro daughter of Kala Singh deceased inetituted the suit out of which this appeal has arisen on 20-10-1943, for declaration that the was entitled to succeed to the land in suit in preference to Bawa Singh and Naurang Singh Defendants on the ground that the land in suit was non-ancestral in the hands of Kala Singh and that the Defendants were not related to the said Kala Singh.

Bawa Singh and Naurang Singh Defendants resisted the suit pleading that the land in suit was ancestral in the hands of Kala Singh qua them and that they being collaterals of Kala Singh in the fifth degree were preferential heirs of Kala Singh as compared with the Plaintiff. Defendants also pleaded that Mt. Soman, another daughter of Kala Singh, was a ueceseary party.

Of the issues arising in the case we are concerned, in these proceedings, with issues 3 and 4. Issues 3 and 4 read:

(3) Whether the land in suit is ancestral qua Kala Singh and the Defendants and whether the Defendants are collaterals of Kala Singh in the fifth degree? (4) If not, are the Defendants preferential heirs of Kala Singh?

On issues 3 and 4 the trial Court found that the land in suit was not ancestral in the hands of Kala Singh qua the Defendants and that the Defendants were not collaterals of Kala Singh deceased within the fifth degree. In the result, the trial Court finding that Mt. Taro was entitled to succeed to the land, in suit in preference to the Defendants granted the Plaintiff a decree for possession of Khasra Nos. 686 and 694 and declaration regarding the rest of the land in suit. Defendants were ordered to pay the costs of the Plaintiff.

4a. From the decree passed by the trial Court, Bawa Singh Defendant went up in appeal in the Court of the District Judge, Amritsar. In the Court of the District Judge, Defendant-Appellant contended that the land was ancestral qua the Defendants and that the Defendants, being collaterals in the 5th degree of Kala Singh, were preferential heirs of Kala Singh as compared with the Plaintiff.

From the judgment of the lower appellate Court it appears that it was not disputed before that Court that the Defendants wore related to Kala Singh in the 5th degree and that the land in suit was non-ancestral qua them. That being the situation, the lower appellate Court has found that Mt. Taro has a superior right of inheritance to the non-ancestral property of her father as compared with the Defendants, collaterals of the deceased Kala Singh in the 5th degree.

From the decree passed in appeal Bawa Singh and Naurang Singh have come up in further appeal u/s 100, Code of Civil Procedure.

In the Appellate proceedings in this Court Mr. D.N. Aggarwal contends that the finding of the lower appellate Court that the land in suit was non-ancestral is not sustainable and that the lower appellate Court has erred in holding that in regard to the succession to the acquired property of Kala Singh Mt. Taro Plaintiff is preferred to Bawa Singh and Naurang Singh Defendants.

Considering that it was conceded in the Court of the District Judge that the land in suit was non-ancestral in the hands of Kala Singh deceased qua the Defendants I find that it is not open to the Appellants to dispute that point in second appeal in this Court. But be that as it may, it is clear from the excerpt Ex. D.W. 5/1 that in 1852 the land in suit was not held by the ancestors of Kala Singh. In 1887-88 the land in suit was held by Bhoop Singh, brother of Sarup Singh. Budh Singh, grandfather of Kala Singh, did not at any time hold the land in suit, Defendants filed a copy of the note, Ex. D-4, appended to the pedigree table of 1865, but the copy of the pedigree table at the foot of which the note appears was not filed. On these facts the land in suit was clearly non-ancestral in the hands of Kala Singh qua the Defendants.

I now pass on to examine the question raised in these proceedings that even in regard to the acquired property of her father Mt. Taro is not preferred to collaterals.

Now, the earliest record of Customary Law of Amritsar District makes no provision as regards succession to a sonless male owner with respect to the self-acquired property held by him and it cannot be said, therefore, that daughters were excluded in the matter of succession by custom recorded in the earliest settlement. This state of affairs continued up to 1913-14 when in answers to questions Nos. 60 and 61 it was stated by the representatives of the tribes consulted that in the case of self acquired property daughters were excluded by collaterals, however remote.

Clearly the answers to questions Nos. 60 and 61 are not in accord with the general agricultural custom of the province and were not considered by the Settlement Officer to embody the rule of custom governing the tribes.

In AIR 1941 21 (Privy Council) it was said that the general custom of the province is that a daughter excludes collaterals in succesion to self-acquired property of her father and it the initial onus in such cases is on the collaterals to show that tbe general custom in favour of the daughters'' succession to the self-acquired of her father has been varied by a custom excluding the daughters. On this point reference may be made to Para. No. 23(2) of Sir William Rattigan''s Digest of Customary Law. In Para. No. 23(2) it is stated: (2) But, in regard to the acquired property of her father, the daughter is preferred to collaterals." Now, in cases of this nature, if there is a Riwaj-i-am satting out the custom relating to the acquired property, the question as to the initial onus will be determined by that entry, and the onus of rebuttal will be upon the party disputing its correctness. In other words, though the initial onus in every case is on the Plaintiff who comes into Court relying on a particular custom that onus can very often be discharged by the production of an entry in the Riwaj-i-am in support of the Custom. Answers to questions Nos. 60 and 61 in the Customary Law of the Amritsar District prepared in 1913-14 which are relevant to the point in dispute in these proceedings read:

Question 60. - Under what circumstances are daughters entitled to inherit? Are they excluded by the sons or the widows, or by the near male kindred of the deceased? If they are excluded by the near male kindred, is there any fixed limit of relationship within Which such near kindred must stand towards the deceased in order to exclude his daughters? If so, how is the limit ascertained? If it depends on descent from a common ancestor, state within how many generation relatively to the deceased such common ancestor must come?

Answer 60. - According to the Riwaj-i-am of 1865 sons exclude daughters. But nothing is said as to agnates . Nearly all tribes state daughters are excluded by)male lineal descendants through males and by the widow or windows of the deceased. Similarly nearly all of them say that agnates, however remote, exclude daughters.

Question 61 - Is there any distinction as to the rights of daughters to inherit (1) the Immovable or ancestral the moveable or acquired, property of their father?

Answer 61 - All tribes.

No distinction is made, and the answers to question are applicable. But in reality daughters have a right to exclude agnates with respect to non-ancestral property, though the right is seldom assorted for reasons given under answer 60.

These answers are clearly admissible under Sections 48, Evidence Act, 1872, being the opinion as to the-existence of a general custom or right of persons who would be likely to know of its existence if (sic) existed. They are also admisaible under Sections 35 of that Act, as entries relating to a relevant fact contained in what may be regarded as a public record made by a public servant in the discharge (sic) his duty. Indeed, the statements contained in (sic) Riwaj-i-am form a strong piece of evidence in support of the custom therein entered subject to rebuttal.

That being so, it is for the Plaintiff to establish that in regard to the acquired property of her father she is preferred to collaterals.

Now, in deciding the point arising in these proceedings we have to bear in mind that where a custom has been repeatedly brought to the notice of the Court and has been recognised by it regularly in a series of judicial decisions extending over a very long period of time such custom attains the force of law and it is no longer necessary to prove it in each individual case. A point identical to the one arising in this case arose in Mt. Jawali v. Lal Singh AIR 1942 Lah. 164 (2) : ILR (30) 1943 Lah.135. In that case Din Mohammad J., (Dalip Singh J., concurring) said:

The earliest record of customary law of Amritsar District makes no mention of the self-acquired property in the matter of succession to a sonless owner and it cannot be said therefore that the daughters had been excluded in the matter of such succession. This state of affairs continued up to 1913-14 when in the Riwaj-i-am of that year in answer to questions 60 and 61 it was stated by the representatives of the tribes consulted that even in the case of self-acquired property daughters wore excluded by the collaterals however remote. This reply was not considered even by the compiler to be truely representative of the practice among the various tribes. Due weight must be attached to his remark that the reply was not in consonance with reality.

As observed in Mt. Jawali v. Lal Singh, AIR 1942 Lah. 164(2) : ILR (1943) Lah. 135, whatever weight may be attached to the compiler''s remarks in the manual of customary law, they are not sufficient to rebut the presumption arising from entries recorded in the Riwaj-i-am. A departure from the old customary law may, however, be discredited if the compiler thinks that the change was being introduced for a sob purpose. The earliest record of customary law of Amritsar District, as stated above, makes no mention of self-acquired property in the matter of succession to a sonless owner and it cannot be said therefore that the daughters had been excluded in the matter of succession. Then, in Mt. Jawali v. Lal Singh AIR 1942 Lah. 164 (2) : ILR (1943) Lah. 135, on a consideration of the judicial decisions the Court came to the conclusion that in the case of self-acquired property, daughters were not excluded by the collaterals in the Amritsar District.

With great respect, I follow Mt. Jawali v. Lal Singh AIR 1942 Lah. 164 (2) : ILR (1943) Lah. 185 and find that Bawa Singh and Naruang Singh, collaterals of Kala Singh deceased, do not exclude Mt. Taro in the matter of succession to the self-acquired property of Kala Singh. No other point was raised in these proceedings.

For the foregoing reasons I affirm the judgments and decrees of the Courts below and dismiss the appeal with costs.