Mt. Sukhwant Kaur vs S. Balwant Singh and Others

Kapur, J.—This is a Defendant''s appeal against a judgment and decree of a learned Subordinate Judge, 1st class, of Amritsar. The dispute relates to property left by one Anup Singh and the contesting parties are collaterals of Anup Singh in the 12th degree and his sister Sm. Sukhwant Kaur. On 12-10-1926, Anup Singh died childless and without leaving any widow and was succeeded by his mother Kishan Kaur who on 26-1-1940 made a gift of the land to her daughter Sukhwant Kaur. Part of the land was exchanged by Sukhwant Kaur with Pal Singh Defendant. On 16-5-1940 Kishan Kaur died and on 17-7-1940 a mutation was effected in favour of Sukhwant Kaur, Ex.D. 2.

On 26-8-1944 Plaintiffs, about 125 in number, brought a suit for possession on the allegation that the land was ancestral, that they were preferential heirs as against the sister and that there was no gift made by Kishan Kaur in favour of Sukhwant Kaur. They also applied for the suit being proceeded with under Order1, Rule 8, Code of Civil Procedure, and this application was allowed on 22-10-1944.

The defence was that the widow was the full owner and the gift made by her was valid that Sukhwant Kaur was the daughter of the penultimate holder, that in any case among the Nijjar Jats a sister was a preferential heir to the 12th degree collaterals and that there was no custom on this point which governed the parties, and therefore under Hindu law a sister was a better heir than the collaterals.

The learned Judge held that the Plaintiffs were 12th degree collaterals of Anup Singh that the land was not proved to be ancestral that the Plaintiffs were preferential heirs to the sister and that Kishan Kaur, the mother of Anup Singh, did make a gift in favour of Sukhwant Kaur Defendant but it was not valid. Against this decree an appeal has been brought to this Court.

The question to be decided is whether in the case of self-acquired property the Plaintiffs who are 12th degree collaterals, would exclude, the sister. The learned Judge mainly relied on the Customary Law of the Amritsar District as given in Craik''s Riwaj-i-am of 1914 and he also held that a sister could not be treated as a daughter of the penultimate heir relying on Hamira v. Ram Singh 134 P.R. 1907 : 74 P.L.R. 1908 F.B. and the cases that have followed this judgment. The custom has been stated in the Riwaj-i-am of 1914 in question No. 70 which is as follows:

Question 70.-Does property ever devolve upon sisters or upon sisters'' sons? If upon sisters'' sons, how are their shares computed?

Answer 70.-All tribes

The property never devolves upon a sister or her sons. Most tribes however state that an unmarried daughter of a sonless and widowless proprietor succeeded to her father''s estate till her marriage.

(Answer to question 60).

Note.-In Bholi v. Kehna 35 P.R. 1809 : I.L.C. 695, however, it was found that by custom among Dogars of the Amritsar District a sister is entitled to inherit acquired landed property in preference to collaterals of the sixth degree.

The latest Riwaj-i-am of Amritsar District is of the year 1940 and an extract from has been produced on the record as Ex. P, which is given at p. 79 of the record and question 68 is as follows:

Question.-Does property ever devolve upon sisters or upon sister''s sons?

Answer.-All tribes-

(1) In the case of an unmarried sister or sisters, the property is entered in her or their names till marriage;

(2) Married sister or sisters or their descendants do not get the property in any case.

For civil judgments, please see the second schedule.

Eight instances are given in this extract and the last one i.e. No. 8 is as follows:

Rajput-Munj-Munj, Tehsil Ajnala-On the death of Allah Bakhsh, his property was entered in the name of his sister Mt. Taleh Bibi, who was married. There were reversioners meeting him in the sixth degree. The land was ancestral. Vide mutation No. 1441 sanctioned on 80-7-1939.

At p. 80 of the paper book another extract from the same Riwaj-i-am is given which gives question No. 63 which is as follows:

When a man dies loaving no sons or his male lineal descendants, and no widows, upon whom will the inheritance successively devolve?

(a) In case of ancestral property.

(b) in case of self-acquired property.

In the answer sisters are not mentioned as heirs. But the presumption attached to this statement is rebutted by the instances given in answer to question No. 68 where sisters ware at least shown to exclude the proprietary body. It is to be noticed that in the first Riwaj-i-am of Amritsar District nothing has been said in regard to the rights of sisters. In Customary Law by Tupper, Vol. 3, in the chapter dealing with succession at p. 52 no custom is stated in regard to sisters. On the other hand, it is said that sisters are not enumerated amongst the heirs and reference is made to principles of Hindu Law by Macnaghten, Chapter II, p. 29. Reference there is also made to three cases one of which was decided against the sister''s sons as against male collaterals and was decided on the basis of local Custom. This is Mohunee Ram v. Mohanna Ram 35 P.R. 1866. In the two other cases decision was again based on local custom but sister''s sons were held to inherit in the absence of the nearest jaddis (collaterals). Seo Ganpat v. Kanah 19 P.R. 1868; also Moola v. Mt. Raj Devi 76 P.R. 1866 and Ruttun Singh v. Mt. Chundan 80 P.R. 1866. In the case of Muhammadans also, the principles of Muhammadan law are stated to be applicable. Up to 1880, therefore, there was no ascertained custom either Amritsar or in the Punjab dealing with sisters.

At p. 59 of Tribal Law in the Punjab by Roe and Rattigan are discussed the principles of succession under Customary law. There also no mention is made of a sister or any custom dealing with her rights to succeed to her brother.

Under custom succession is confined to (sic)ates the main principles of which are: (1)descent in the male line; (2) to treat the estate as if left by the last male in the family tree who has left male heirs; and (3) right of representation. Amongst agnates male descendant alone is regarded as the basis of the right of succession which excludes all females except the widow and the mother who in the absence of male descendants are allowed to hold on life estate but this is in lieu of maintenance. In this book by Roe and Rattigan daughters are mentioned but they, if unmarried, are entitled to keep the estate till marriage. This book was published in 1895 and there also no mention is made of the right of sisters, In the Digest of Customary Law by Sir William Rattigan para. 24 is as follows: "24. Sisters are usually excluded, as well as their issues." It appears that this rule in this form was first stated in the first edition of the book i.e. of the year 1880. In the preface to this edition the learned author has thus stated the scope of the book:

My object, in short, has been to collect and classify the materials for a future code; and while I am fully sensible of the many difficulties involved in such an undertaking, and of the shortcomings of the present crude attempt.... After what has been said above, it is scarcely necessary perhaps to add the caution that the propositions laid down in the following pages are not intended to exclude but rather to aid judicial inquiry in future cases. It is important, however, that the design and aim of the work should cot be misunderstood.

Up to 1880 I find besides the cases which I have already given when dealing with Tupper''s Customary Law, Vol. 3 only one other case is reported which was Mt. Uttur Kour v. Atma Singh 47 P.R. 1870. In that case, the contest was between a sister and fourth degree collaterals. Campbell J. held that in accordance with Hindu Law applicable to the Jat Sirdars a sister was excluded and even by custom the collaterals on whom the onus lay had shown that they excluded the sister. In this view of the law, the learned author formulated para 24 which has stood unchanged upto this day. In the year 1887 is reported the case of Mir Mumtaz Ali v. Jawad Ali 82 P.R. 1887 and in that case it was held that sisters'' sons would exclude second cousins. Two years later, in Bunyad Ali v. Faiz Mohammad 173 P.R. 1889, where the property was ancestral but collaterals were not more than three degrees distant the dispute being between paternal uncle''s son and sister''s son - the case was decided against the sisters but the crucial point seemed to be one of onus. In Ahmed Ali v. Mst. Fatima 163 P.R. 1890, the disputants were Imdad Ali''s brother and his sister and it was held that no custom had been established on this particular point. Later on and even before this there are reported cases which show that sisters exclude collaterals of a somewhat distant degree and I shall deal with them later.

Before I do that I would like to discuss some principles of Customary Law which are of some importance in the decision of the cases under that law and which come up for decision to the Courts. As long ago as 1903 in Muhammad Hussain v. Sultan Ali 54 P.R. 1903 at p. 210 was laid down the method of enquiry in the determination of the question of custom. Robertson J., has stated it thus:

We must start on our enquiry with no presumption in favour of custom, more particularly agricultural custom, as opposed to law, and with no predilection for the ''agantic theory'' as governing the case.

In Daya Ram v. Sohel Singh 110 P.R. 1906 : 31 P.L.R. 1907 F.B., the method of investigation was stated thus by Robertson J:

It lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is.... If he fails to do so Clause (b) of Section 5, Punjab Laws Act, applies, and the rule of decision must be the personal law of the parties subject to the other provisions of the Clause.

This statement of the law was stated with approval in a judgment of the Chief Court in Ayaz-ud-Din v. Mst. Mahjuzunnisa 53 P.R. 1915 242 : AIR 1915 Lah. 184 Their Lordships of the Privy Council in Abdul Hussain Khan v. Sana Dero 45 Cal. 450 459 : AIR 1917 P.C. 181 termed this statement to be ''apt'' and approved of the statement in the following words: "The principle that underlies this statement is, in their Lordships'' opinion, correct." And this principle was restated by the Privy Council in AIR 1930 35 (Privy Council)

The custom set up must be proved by satisfactory evidence but, without insisting, as Lord Buckmaster was careful to point out, on the rigorous and technical rules which would be applicable to such a case in England.

In 1932 in Mst. Bishiran v. Muhammad Zahur 13 Lah. 119 at p. 122 : AIR 1931 Lab. 446, this statement was followed, as indeed it had to be, by a Division Bench of the Lahore High Court consisting of Harrison and Tek Chand JJ. Shadi Lai C.J., in Iqbal Singh v. Jasmer Singh 15 Lah. 715 719 : AIR 1934 Lah. 296 has thus described the manner of investigation:

...it is for the person relying upon a rule of custom contrary to his personal law to allege and prove it. In support of his allegation he may rely upon an entry in the riwaj-i-am, applicable to the members of his tribe residing in a local area, and in that case the presumption may arise in favour of the existence of custom and the onus is then thrown on the opposite party to rebut it. But, whether he invokes a presumption in favour of custom or produces evidence to prove it, the fact remains that he has to assert and prove its existence; and that only when it is established, it is to be adopted as the rule of decision in supersession of the personal law

and the learned Chief Justice again referred to Abdul Hussein Khan v. Sona Dero 45 cal. 450 : AIR 1917 P.C. 181 and this was also the opinion of Bhide and Din Mohammad JJ. in Sohan Lal v. Ishar Singh 16 Lah. 320 at p. 324 : AIR 1934 Lah. 800. Bhide J. put in the following words:

The initial presumption is that Hindus and Muhammadans are governed by their personal laws and if a custom modifying such laws is alleged it must be proved.

He then referred to the judgment of their Lordships of the Privy Council. In Mt. Samon v. Shahu 17 Lah. 10 at p. 11 : AIR 1935 Lah. 93 again this rule was stated by Young C. J., with whom Rangi Lai J., agreed in the following words:

The lower Court did not approach the case from the correct point of view. There is no such thing as general customary law known to the Legislature. The Legislature has provided in Section 5, Punjab Laws Act, that in regard to the matters dealt with in the first sentence of that section when any custom is set up and proved to obtain that custom shall be the rule of decision, but that when no such custom has been established, the rule of decision shall be the personal law of the parties.... The initial onus is in every case on the person who comes into Court relying on a particular custom.

These authorities show that whenever a question arises before the Courts where the point to be determined is whether the succession would go to one party or another, there is no presumption in favour of custom and I would respectfully agree with the way that Bhide J. has put it that the initial presumption would be in favour of personal law which has to be rebutted on that particular point by the person asserting that he is governed by custom.

Another principle that I would here like to mention which the Courts have to keep in view is that at the time of the preparation of the Riwaj-i-am women are never consulted. At least I know of no case where women have been consulted and the observations of Robertson J., in Ganpat Rai v. Kesho Ram 34 P.R. 1909 at p. 89 : 181 P.L.R. 1908 may be quoted with advantage:

They (the Riwaj-i-ams) may represent the wishes of those who made them, or they may simply represent the ordinary entry made in the wajib ul-ars of the villages throughout a district mainly Mubammadan. But they seek to support a custom in defeasance of the rights of persons who were no parties to that declaration, i.e., the female relatives of the signatories and it is quite clear that no body of men can deprive another set of right-holders under personal law by their mere ipse dixit that their custom is different from personal law,

InBholi v. Man Singh 86 P.R. 1908 : (sic)P.W.R. 1908 the learned Judges remarked:

It may be conceded that as the land is rising in value the landholders are becoming more and more anxious to exclude female succession. They are ready to state the rule against daughters as strongly as possible.

In Maula Bakhsh v. Muhammad Bakhsh 54 P.R. 1906 : 74 P.L.R. 1907, Clark C.J. and Reid J., have said that it is the clear duty of the Court to watch with special care over the rights and interests of the weak as against the strong and in particular to see that the rights of the weaker sex are not sacrificed to a desire on the part of an "agnate" to take advantage of customs obtaining around him which are more favourable to him and his sex. In another case Rahim Shah v. Hussain Shah 102 P.R. 1901 : 119 P.L.R. 1901, a similar caution was " uttered by Robertson J., who said:

The male relations in many cases at least have been clearly more concerned for their own advantage than for the security of the rights of widows and other female relatives with rights or alleged rights over family property, and the statements of the male relatives in such matters have to be taken cum grano salis where they tend to minimise the rights of others and to extend their own.

Their Lordships of the Privy Council quoted with approval the passages from the Punjab Records which I have given above at pp, 169 and 170 in AIR 1941 21 (Privy Council)

In Mt. Kaman v. Ghafoor Ali 9 Lah. 496 : AIR 1928 Lah. 280, judgment of Harrison and Dalip Singh JJ., it was observed by Dalip Singh J., that where a custom is acknowledged by which women''s right to succeed is admitted, such an acknowledgment has great force, but it is equally true that where the Riwaj-i-am is to be contrary, the onus on the females is not so heavy as it would be in the case of males and in that case two instances produced by the daughters were held to be sufficient.

The third important matter which has to be kept in mind is that the Manuals of Customary Law unless it is otherwise so stated relate to ancestral property. As was observed by Addison J., in Abdul Rahman v. Mt. Natho (sic)Lah. 458 at p. 460 : AIR 1932 Lah. 591;

Customary Law is in fact usually only concerned with protecting ancestral property...that is, reversioners are usually concerned only with property ancestral qua them.

See also Rattigan''s Digest p. 130. In a large number of cases of the Punjab Chief Court and then of the Lahore High Court this has been so held. The rule was finally laid down in a Full Bench decision of the Lahore High Court in Mt. Hurmate v. Hoshiaru ILR (1944) Lah. 228 at p. 235 : AIR 1944 Lah. 21 P.B. where it is stated:

It is reasonable, therefore, to assume that when manuals of Customary Law were originally prepared and subsequently revised, the persons questioned, unless specifically told to the contrary, could normally reply in the light of their own interest alone and that, as stated above, was confined to the ancestral property only. The fact that on some occasions the questioner had particularly drawn some distinction between ancestral and non-ancestral property would not have put them on their guard in every case, considering their lack of education and lack of intelligence in general. Similarly, the use of the terms ''in no case'' or ''under no circumstances'' would refer to ancestral property only and not be extended so as to cover self-acquired property unless the context favoured that construction.

In Jagat Singh v. Puran Singh 49 P.L.R. 366, where the disputants were the sister and the collaterals of the third degree and the land was situate in Rupar Tehsil of the Ambala District, it was held that the Riwaj-i-am dealt with ancestral property and not with self acquired property. Mahajan J. there doubted the correctness of para. 24 as given in Rattigan''s Digest. From this it is safe to deduce that the incidents of Customary law as they are given in the manuals of the various districts would be applicable to ancestral property only. Decided cases not only lay down that the statements contained in the manuals of Customary law should be taken with a certain amount of caution, particularly where the rights of women are concerned, but they also show that the statements made in the manuals refer to ancestral property unless otherwise specifically stated.

The learned advocate for the Respondents admitted that the statement made in the Customary law of the district would relate to ancestral property but there was, according to him, a general custom of the Punjab excluding sisters and therefore, the onus should be placed on a sister to prove he might to succeed to her brother even in regard to non-ancestral property and for this he relied on a judgment of a Division Bench of the Lahore High Court reported as Kirpa v. Bakhshi Singh 50 P.L.R. 220 where collaterals of the fourth degree had been preferred to sisters'' sons and the question was decided solely on the applicability of general custom as given in para. 24 of Rattigan''s Digest. He also relied on Mt. Ratni v. Harwant Singh 50 P.L.R. 249 : AIR 1949 E.P. 158, a case from Ferozepore, where the contest was between sisters and sixth degree collaterals. The property was self-acquired but no contest seems to have been raised as to the nature of the property and it was assumed that according to general agricultural custom of the Punjab a sister can succeed only by proving a special custom in her favour. A large number of cases were relied upon by the Respondents where the onus was placed on the sisters because of a general custom excluding them. The basis for this assumption that there is a general custom in the Punjab of exclusion of sisters and that the onus lies on the sisters to prove their right to succeed seems to be the statement in para, 34 of Rattigan''s DigeBt. I would like to state here that in none of these cases have the principles which I have enumerated above been taken into consideration e.g., the presumption in favour of personal law and the onus on the person relying to prove a custom in modification of that law, the rights of females not having been enquired into at the time of the various Biwaj-i-ams, and lastly, the quantum of evidence sufficient to discharge the onus even if it is on such females. But apart from that there is a very largo number of decided oases in which sisters have excluded collaterals generally more distant than the fifth degree but sometimes nearer ones also and this by itself may be sufficient to pub one on guard against accepting the universality or even usuality of the rule laid down by Sir William Rattigan even apart from the note of caution that the learned author himself struck at the time he published the first edition of this book. As early as 1909 in Bholi v. Kehna 35 P.R. 1909 : 1 I.C. 695, a case of Dogars of Amritsar District, Sir William Clark said:

The rule in para. 24 of Rattigan''s Digest seems to be rather broadly stared and was hardly warranted by the authorities quoted for and against. No distinction is referred to between ancestral and acquired property such as is made in the case of daughters.

In Mt. Hussain Bibi v. Nigihia 1 Lah. 1 : A.I.R 1920 Lah. 410 where the parties were sisters and eighth degree collaterals para. 24 was again referred to but in spite of that the learned Judges were of the opinion that the onus was a doubtful matter and it was therefore left open. See p. 4 of the report. The case was remanded for enquiry to the trial Court for decision whether eighth degree collaterals exclude sisters in regard to non-ancestral property. In Mt. Fatima Bibi v. Shah Nawaz 2 Lah. 98 at p. 101 : A.I.R 1921 Lah. 180; Wilber-force J. observed:

As for the general rules laid down in para, 24 of Rattigan''s Digest of Customary Law, it is open to the same criticism, namely, that it is based mainly on authorities regarding ancestral property and on the generally accepted principles of agnatic succession which do not apply in the case of acquired property.

It is hardly necessary to say that it was held in that case that there was no general Rule so widely accepted among the agricultural tribes of the Punjab that would justify any definite conclusion based on custom. Quite recently Mahajan J. in Jagat Singh v. Puran Singh 49 P.L.R. 366, doubted the correctness of para, 24. At any rate according to that learned Judge this paragraph did not apply to non ancestral property.

It may at this stage perhaps be convenient to deal with the argument based on general custom of the Punjab, a phrase which has been used in many judgments of the Lahore Chief and High Courts but against the use of which very eminent Judges have always been giving a warning. Sir Charles Roe and Mr. H.A.B. Rattigan (later Sir Henry Rattigan C.J.) at p. 15 of the Tribal Law of the Punjab said:

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.

Sir Meredith Plowden J., one of the foremost of the great Punjab Judges, in Balle v. Budha 50 P.R. 1893 made certain observations with reference to a head note of a case which used the phrase "Custom of the Punjab", At p. 223 he said:

It seems expedient to point out that there is strictly speaking no such thing as a custom or a general custom of the Punjab, in the same sense as there is a Common Law of England-a general custom applicable to all persons throughout the Province subject (like the English Law) to modification in its application, by a special custom of a class or by a local custom.

In a Bench judgment of the Punjab Chief Court Gohra v. Hari Bam 115 P.R. 1907 at p. 530 Rattigan J. said:

So far as we know there is no such thing in existence, nor, indeed, could there be any such thing as a body of general customary law, Tribes in various localities follow different customary rules and because a certain rule of custom is observed among certain tribes in other parts of the Province, it would be unsafe to hold that the same rule must necessarily prevail in the cases of totally different tribes in other parts of the Province.

A Full Bench of the Punjab Chief Court pointed out in Mt. Bissi v. Hira Singh 16 P.R. 1917 at p. 300 : AIR 1917 Lah. 308 P.B. that it found itself unable to give any answer to the question referred to it for the simple reason that custom varied from tribe to tribe and from one locality to another. If it were to answer the question put to it either, one way or the other, its ruling would be quoted as applicable to all persons in the Punjab governed by customary law whatever their tribe or residence. The answer might be correct as regards some tribes and soma localities and quite incorrect as regards others. Chevis J. there said:

It is impossible for us to give an answer to the question referred to us and that the only safe and proper course in such cases is to come to a decision in each particular suit on the merits.

Indeed, this seems to have been the trend of later decisions also. The Privy Council in Abdul Hussein v. Sona Dero 45 Cal. 450 A.I.R (4) 1917 P.C. 181 pointed out that it ma incumbent on the Plaintiff to allege and prove custom on which he relied and the same seems to be the effect of the rule laid down in AIR 1930 35 (Privy Council)

Young C.J., with whom Rangi Lal J. agreed said in Mt. Samon v. Shahu 17 Lah. 10 at p. 11 : AIR 1935 Lah. 93. "There is no such thing as general customary law known to the Legislature."

Similar observations have boon. made by other Judges, notably by Addison J. in Balanda v. Mt. Suban 17 Lah. 232 at p. 234. : AIR 1936 Lah. 418 and Kartar Singh v. Mt. ''Banto 17 Lah. 296 at p. 300 : AIR 1936 Lah. 804. In Kasar Singh v. Achhar Singh IT Lah. 101 at p. 106 : AIR 1936 Lah. 68, it was pointed out that the term General Custom was "clearly a misnomer."

Dalip Singh J. in Misri Lal v. Babu Lal AIR 1936 Lah. 151 : 161 I.C. 844. observed that even the Punjab Customary Law (sic)

nothing more than a convenient phrase for describing certain customs which long experience has shown frequenly govern tribes occupied in agriculture and forming compact village oommunities throughout the Punjab.

In Rattigan''s Digest at p. 92 of 1935 Rdn. and at p. 126 of 1933 Edn. there is a statement that there is a general custom of the exclusion of collaterals by daughters in succesion to self-acquired properties and this state-went is based on a large number of cases beginning from the earliest times and is in accord with the main rules of Customary Law one of which is embodied in para 53 of the Customary Law that acquired property is ordinarily alienable according to the will and pleasure of the last full owner. At p. 130 of the Digest it is said: "Customary Law is usually only concerned with protecting Self-acquired property" and the "main reason for the rule (or general custom propounded in para. 23 of the Digest sub para (2)" is that no question of coneversion arises.

It was in this state of the law and almost universal sentiment of the agricultural classes as determined by the Courts after enquiry in cases coming from all parts of the province that this statement was stated by the learned authors of Rattigan''s Digest and was'' restated by the Privy Council in AIR 1941 21 (Privy Council) This means nothing more than this that the particular custom has by frequent proof in the Courts become so noto-rious that the Courts take judicial notice of it. See Amissah v. Krabah AIR 1936 P.C. 147 : 162 I.C. 461.

But all these statements of the law relating to the customs of the Punjab have to be interpreted in the light of the dictum of Sir Meredith-Plowden, J., in Ralla v. Budha 50 P.R. 1893 at p. 223:

There are in existence numerous bodies, so to speak, of Customary Law of different landholding societies or communities in the Punjab which can be compared and which exhibit a remarkable degree of similarity in many particulars: and it is possible, after such comparison, to propound, on some points, a rule which can be stated in an abstract form, irrespective of any parti ocular group or locality, and to affirm that it is generally recognised by custom in the Punjab, so far as it has been ascertained.... The phrase (General Custom) under notice really imports no more than this that among the various groups who are governed by custom in the Punjab a particular usage is generally found to prevail, or not to prevail as the case may be.

At p. 72 of Rattigan''s Digest (1938 Edn.) it is stated:

However that may be, it is still convenient to speak of certain universal and well reoognised customs as the general custom of the Province...., though, no doubt, the term general custom in this connection is a little misleading and is indeed a misnomer.

The Respondent based his case on the general custom of the province and his main reliance was on Kirpa v. Bakhshi Singh 50 P.L.R. 220 which again is based on para 24 of Rattigan''s Digest. As I have indicated above, the rule stated in the Digest in para. 24 in Edn. 1 of the book could only have been based on the four rulings which have been discussed above and as far as I can see in none of them was there a dispute between a sister and collaterals of such a distant degree as the 12 th and the property was in every case ancestral. An analysis of the latter cases if interesting as it shows how the rule stood at different times and how its scope was widened or restricted at different periods of the development of Customary Law of the Punjab. Needless to say that there are a large number of cases given in out Law Reports where the rights of sisters have been recognised as against collaterals of varying degree and perhaps an equal number of cases where these rights have been held not to have been established,

Tupper excluded the sisters from inheritance as they were not heirs under Hindu law. Sir Charles Roe and Rattigan in the tribal Law in the Punjab did not include a sister in the list of heirs as up to then the rights of female heirs did not seem to have received any recognition which is indicated by reference there to the Settlement Report of the Bannu Distriot by Mr. Thornburn. He says:

"Most of our wildest tribes scorn the idea of a woman having any rights in property; they tell you that she is as much a chattel as a cow.... "See pp.16 and Tribal Law in the Punjab.

Whatever may have been the view as to the rights of females when Thorburn wrote about Bannu tribes, the sentiments of society have undergone a radical change since then and we have travelled far beyond the conception of women as chattels. Even Hindu Law on which Topper seems to have relied has by subsequent legislation given to the sister a high place in the list of heirs. I am not oblivious of the fact that it is said that Hindu Law is not the basis of custom. A perceptible change in that law cannot, however, fail to have reactions on societies which are kindred to those who are governed by Hindu law and who themselves in the absence of proved or established customs are subject to that law. See Mt. Rajo v. Karam Bakhsh 11 P.R 1908 at p. 78 : 92 P.L.R. 1908, Chatterji J., in Daya Ram v. Sohel Singh 110 P.R. 1906 at p. 407 : 31 P.L.R. 1907 F.B. has observed:

We must also recognise that Customary Law, like other law, is a branch of sociology and must be in a fluid state and take cognizance of progress of ethical and legal notions in the community in which it is in force.

Under para. 24 of Rattingan''s Digest, a large number of cases have been quoted and in order to determine whether there is a general rule In the Punjab excluding sisters it may perhaps be necessary to investigate into and analyse the various cases that have been cited or are given in Rattigan''s book. I have at a previous page in this judgment dealt with some of the reported cases. I shall now deal with those to which our attention was drawn by learned advocates in this case or have been found in the law reports. Wazira v. Natha 12 P.R. 1882 was a case from Hoshiarpur relating to Jats and the property appears to be ancestral. Evidence had been led which showed that a sister''s son did not exclude grandfather''s brother''s grandsons i.e., sisters were excluded by fourth degree collaterals. Plowden J. held in that case that the onus was on sister''s sons. Ahmed Ali v. Mst. Fatima 163 P.R. 1890 was a case of Sheikhs of Jhajjar in which a half brother excluded a sister, The case was decided on the entry in Tupper''s Customary Law, Vol. II, p. 177, as also on the statement of the law contained in Rattigan''s Digest. Custom there excluded even the daughters and their children and others not related in the male line. This again does not seem to be a case of non-ancestral property. Likar v. Ghulam Rasul 65 P.R. 1892 was a case relating to ancestral property. A gift had been made by a sonless proprietor to his sister''s sons which was challenged by fourth degree collaterals. Relying on the Riwaj-i-am the onus was placed on the sisters. Sohna Singh v. Kah(sic) Singh 118 P.R. 1892 was a case of Jats of Ferozepore. The property was acquired and the disputants were third degree collaterals and a sister. Relying on the Riwaj-i-am which said that the sister did not inherit and not even daughters it was held that the presumption was against sisters who were unable to discharge the onus. Mt. Jindwaddi v. Hassan Shah 41 P.R. 1895 was a case of Sayyads of Jhang in which sisters were held to be excluded by fifth degree collaterals in regard to ancestral property. Riwaj-i-am there made no mention of sisters as heirs and even daughters were excluded by custom. In this case reliance was placed on Faizuidin v. Mt. Wajibunntssa 71 P.R. 1892 a case of Maghals cf Rohtak, where the property was ancestral. Fatteh Muhammad (sic) v. Daulat Khan 46 P.R. 1895 was again Andhra Pradesh High Court case of ancestral property and the parties were Lodi Pathans of Jullundur. Fourth degree collateral were held to be preferential heirs sisters Sahbi v. Niaz Muhammad Khan 55 P.R. (sic) (2 I.C. 117) was a case between sisters and seventh degree collaterals. The property as ancestral and the onus was placed on the sisters because of the Riwaj-i-am and authority being in favour of the collaterals. The parties were Afghans of District Hoshiarpur Ali Muhammad v. Suraj-ud-Din 13 P.R. 1912 : 10 I.C. 236 was a case of Jats of Lahore and the property in dispute was ancestral. The contest was between paternal aunt''s son and third degree collaterals and the point in dispute was whether in such a case gift can be challenged by cognate. Mt. Nur Bhari v. Abdul Ghani Khan 100 P.R. 1916 : AIR 1916 Lah. 886 was in which the parties were fifth degree collaterals and sisters and were Pathans of Shahbad in Karnal District. The onus was placed on the sisters because of the statement in Rattigan''s Digest and the Riwaj-i-am which exclueded even the daughters.

Mt. Hay at v. Rustam 48 P.R. (sic) AIR 1917 Lah. 155 was a case from Muzaffargarh relating to Jats and second consine were preferred to sisters, property being ancestral. In this case onus was placed on the conllaterals but it was held to be a light one in view of the fact the Riwaj-i-am was in their favour, A case that was strongly pressed to our attention is Mt. Harnamon v. Santa Singh 122 P.L.R. 1912 : 18 I.C. 711 where in the case of between tenth degree collateral and sisters (sic) was placed on the sisters even in regard to no ancestral property. But this was because of two cases, Gurditta v. Jai Singh 72 P.R. 1907; P.L.R. 1908 and Hamira v. Ram Singh P.R. 1907 : 74 P.L.R. 1908 F.B. In the formats Case sisters were held to be no heirs because of the Wajib-ul-arz, the parties being sisters and AlaMaliks and the property being ancestral; in the latter case the property was no doubt non-ancestral but the case seems to have been decided on the ground that there was so reason for departing from the ordinary order of succession and as no instances had occurred on which a custom in favour of sisters could be based. Another case found in the reports is Saidan Bibi v. Fazal Shah 134 P.R. 1907 n. Which is given at p. 646 of 1907 Record where reference was made to para. 24 of Rattigan''s Digest but main reliance was on the Riwaj-i-am of Rawalpindi District, question 27.

Coming now to the cases decided by the Lahore High Court, Mt. Hussain Bibi v. Nighia 1 Lah. 1 : AIR 1920 Lah. 410 is of very little assistance to the collaterals because the question of onus was hold to be a doubtful matter in spite of para. 24 of Rattigan''s Digest. I have already dealt wish this case at another place Mt. Jiwi v. Shahi 1 Lah. 433 : AIR 1920 Lah. 240 was decided because of the Riwaj-i-am. See p. 435. Qnes was no doubt placed on the sisters but that was because of the entry in the Riwaj-i-am. The property was non-ancestral. This case was mainly decided because of the force of the Riwaj-i-am and one of the canons of agricultural custom that in regard to immovable property collaterals exclude female connections of the propositus except the widow, the mother and, in soma cases, the daughter. Although it was contended before the learned Judges that the property was no ancestral and therefore the onus should have been on the collaterals, the contention was rejected as the Riwaj-i-am made no distinction as between ancestral and self-acquired proporty. Mt. Sant Kaur v. Sher Singh 4 Lah. 392 : AIR 1923 Lah. 476, was a case undo Amritsar custom from Lyallpur District. Property was no doubt self-acquired but relying on the general custom contained in para. 14 and Ctaik''s Riwaj-i-am the onus was placed on the sisters. In Kame Shah v. Muhammad Sharif 68 I.C. 544 (Lah.), a case of Bodlas of Ferozepore District, it was hold that there was no general custom in favour of sisters. The collaterals were of the fourth degree and it was hold that they were entitled to exclude the sisters from succession to non-ancestral property. There also the contention that the property was non-ancestral was rejected on the ground that the Riwaj-i-am made no such distinction. In Mt. Chandan v. Khushal Singh 15 Lah. 638 : AIR 1934 Lah. 761 the property was ancestral. The parties were Dhotar Jats of Hafizabad in Gujranwala District. The disputants were the sister and distant collaterals but the case was decided on the Riwaj-i-atn of the district of Gujranwala, Mt. Began Ali Gohar, 16 Lah. 4 : (A.I.R. 1934 Lah. 554) was the case of a step-sistor. At p. 5 however it was said that it was well established that sisters wore generally not recognised as heirs and that the custom was in favour of collaterals. In Jaggu v. Mt. Bhago 96 I.C. 907 : 27 P.L.R. 419 it was held that amongst Sainis of Hoshiarpur District the onus of proving that a sister succeeds to the self-acquired property of her brother was on her and the general rule of Customary Law was that sisters are usually excluded. The case was decided not on any evidence but on the authorities which are in favour of exclusion of sisters. Reference was also made to Rattigan''s Digest of Customary Law, para. 24.

Then two cases of this Court which I have already dealt with, Kirpa v. Bakhshi Singh 50 P.L.R. 220, Mt. Ratni v. Hanwant Singh 50 P.L.R. 249 : A.I.R 1949 E.P. 158, were cited before us. It is only in Kirpa v. Bakhshi Singh 50 P.L.R. 220 that the decision was rested on the law as stated in Rattigan''s Digest. The parties here were sisters and fourth degree collaterals and the statement must be confined to the facts of that case. Besides in a judgment which had been delivered not very long before by Mahajan, J., in Jagat Singh v. Puran Singh 49 P.L.R. 866 the applicability of para. 24 to self acquired property was doubted by the learned Judge. These are all the cases which may be said to be in favour of the collaterals as against the sisters. In the majority of these cases, the property was ancestral and the collaterals were not more distant than the fifth degree. No doubt there are a few where the collaterals were more distant and there is one where they were of the tenth degree but it cannot be said that any principle can be evolved from these cases. In Amissah v. Karbah AIR 1936 P.C. 147 : 162 I.C. 461 it was held that material customs must be proved in the first instance by calling witnesses acquainted with them until the particular customs have, by frequent proof in the Courts, become so notorious that the Courts take judicial notice of them.

From the discussion that I have given above, it cannot be said that this custom was established by evidence being led and had there by become so notorious that it must be taken to have been established. It will be shown in the next para, that there are a large number of cases reported in our Law Reports which have been decided just the opposite way.

Apart from the cases where under the Customary Law sisters have a higher right under the Riwaj-i-am, as for instance, the Arains of Lahore, there are several other cases given in our Law Reports where the rights of the sisters were recognised to be superior to those of collaterals. In Makhan v. Mt. Nur Bhari 116 P.R. 1884 the onus was placed on the collaterals of the 6th and 7th degree and it was held that they were unable to prove that they were by custom entitled to exclude the sisters of the last owner and the case was therefore decided according to Muhammadan Law. In Mumtaz Ali v. Jawad Ali 82 P.R. 1887 sisters sons were held better heirs than second cousins and in Ahmed Ali v. Mt. Fatima 163 P.R. 1890 it was held even where the dispute was between brothers and sisters that no custom had been established. In Faiz-ud-Din v. Mt Wajib-un-Nisa 71 P.R. 1892 in a contest between sisters and 3rd degree collaterals where the parties were Moghuls of Rohtak and the property was ancestral onus was placed on sisters and they succeeded in proving that they were better heirs. At p. 255 Plowden J., observed:

As a general rule, by agricultural custom, females or the issue of females, do not inherit ancestral lard. Occasionally daughters and daughters sons do inherit, after their father, in the absence of sons. More rarely sister and their issue inherit after brothers. The right to succeed of females and their issue when it exists, generally exists only in presence of remote collaterals, and the sons of a grandfather of the deceased are not remote collaterals.

Sheran v. Mt. Sharman 117 P.R. 1901 was a case of Channar Jats of Lodhran Tehsil of the Multan District and the parties were sisters and collaterals of the 5th degree. It appears that the property was ancestral and sisters were held to exclude collaterals of the 5th degree and because of the Riwaj-i-am the onus was held to have shifted to the collaterals but as no positive custom was proved the parties were held to be governed by Muhammadan Law. Maude, J., at p. 406 said that the wide proposition that sisters are excluded by collaterals of the 5th degree was not made out. In a casa of Bhatias from Bannu, Wasna Ram v. Mt. Uttam Bai 79 P.R. 1903 : 165 P.L.R. 1903 a sister was held to succeed for life or until marriage to the estate of her deceased brother and Robertson J., remarked that the main principles of personal law could not be lost sight of in deciding a case of Bhatias. Two cases are reported in the Punjab Record of 1909. No. 35: (1 I.C. 695) is Bholi v. Kahna, a case which I have discussed above, where it was doubted that para. 24 of the Rattigan''s Digest applied to non-ancestral property and the sisters were held to be better heirs than collaterals of the 6th degree among Dogars of Amritsar District.No. 44 (44 P.R. 1909) Sawan v. Sahib Khatun, was a case of Panwars of Tahsil Muzaffargarh anti a sister was held to, exclude collaterals of the 6th decree even in regard to ancestral property. The entry in the Riwaj-i-am was also in favour of the sister. Ranjha v. Mt. Jindwaddi 104 P.R. 1914 : A.I.R 1914 Lah. 110 was a case of Gurmani Bilches of Muzaffargarh District and it was held that collaterals in the 5th and 6th degree had failed to prove that they had a preferential right of succession as against a sister. The Riwaj-i-am favoured the sister and the onus was placed on the collaterals. I have already made a reference to Ayaz-ud-Din v. Mt. Mahfuzan Nisan 53 P.R. 1915 : A.I.R 1915 Lah. 184. This was a case of Sheikhs of Rohtak and the contest was between collaterals of the 4th degree and a sister and it was held that no custom had been proved by which such collaterals excluded sisters in modification of the personal law. Muhammad v. Mt. Bakhto 19 P.R. 1912 : 13 I.C. 27, was a case of Pathans of Mian, wali and it was held there that daughters and sisters could be excluded from inheritance to their fathers and brothers by collaterals not more remote than the 6th degree. I need not refer to two other cases Bishen Singh v. Bhagwan Singh 38 P.R. 1904 : 64 P.L.R. 1904 and Ballu v. Gurdyal 95 P.R. 1905 : 47 P.L.R. 1906 the former a case of Jats and the latter of Ghirths because there the disputants were sisters and proprietary body. Mt. Bhari v. Khanun 20 P.R. 1919 : AIR 1919 Lah. 147 was a case in which the Plaintiffs were collaterals of the 9th degree and it was held that they had failed to prove that by custom among Sivaya Jats of the Gujrat District they had a right to exclude a sister in succession to non-ancestral property.

Ladha v. Mt. Sardar Bibi 11 Lah. 298 : A.I.R 1930 Lah. 255 was a case from Lahore District of Khokhar Rajputs and it was held that a sister excluded collaterals of the 7th degree in the matter of succession to self, acquired property. The case no doubt was decided in accordance with the Customary Law of the Lahore District where sisters are stated to have the same rights as daughters. Hayat v. Ahmun 71 I.C. 201 : A.I.R (11) 1924 Lah. 321 was a case from Jhelum District and the parties were Khotis of Tahsil Pind Dadan Khan and the dispute was between collaterals of the 8th degree and sisters. In view of the Riwaj-i-am the onus was placed on the sisters and relying on two reported judgments. Hussain Bibi v. Nighia 1 Lah. 1 : AIR 1920 Lah. 410 and Mt. Jiwi v. Sandhi 1 Lah. 489 AIR 1920 Lah. 240 the learned Judges applied the general custom of exclusion of sisters given in Rattigan''s Digest in para. 24 to exclude the sisters from inheriting ancestral property and just remarked that even if the property was non-ancestral, the right of the collaterals would be superior. In Mt. Fatima Bibi v. Shah Nawaz 2 Lah. 98 : AIR 1921 Lah. 180 a case that I have discussed at length at another place, it was held that Para. 34 does not apply to self-acquired property and in a dispute between collaterals of the 9th degree and the sister''s personal law was applied. Mt. Samon v. Shahu 17 Lah. 10: A.I.R 1935 Lah. 93 was a case of collaterals of the 4th decree and sisters. Onus was in this case held to be on the collaterals because of Section 5, Punjab Laws Act and Abdul Hussein Khan v. Sona Dero 45 Cal. 450 : AIR 1917 P.C. 181. Young C.J., at p. 11 expressed an opinion Against such a thing as general Customary Law. Two cases have been decided in regard to the Customary Law of Karnal. One is Munshi v. Naranjan Singh AIR 1937 Lah. 701 : 171 I.C. 959 . There it was held that among Jats of Thanesar Tehsil in the absence of collaterals of less than 5th degree and in the absence of a daughter, a sister had a right to succeed and the same was held in Maula v. Mt. Ishro 52 P.L.R. 261 : AIR (37) 1950 E.P. 289. Their Lordships of the Privy Council in AIR 1925 267 (Privy Council) decided on the evidencec led against the custom of exclusion of sisters and held that the onus on the sisters had been discharged in the case of ancestral property by general evidence given by members of the family or the tribe without proof of special instances.

An analysis of .the cases which I have given above shows that sisters were excluded in four cases where the collaterals were of more than 5th degree and one where they were of 5th degree. In regard to non-ancestral property curiously enough 10th degree collaterals in one case 8th in another, 7th in a third and 5th in a fourth excluded sisters. There are in all eight cases in which sisters were excluded in regard to non ancestral property. Three were decided by the Chief Court and five by the High Court of Lahore. There are seven cases which were decided in favour of the sisters as against collaterals of varying degree from 3rd degree collaterals to 9th degree collaterals and practically in everyone of them the property was ancestral. I have not in this case taken into consideration those cases where the property was non-ancestral. A consideration of all these cases leads me to the conclusion that neither the generality of the exclusion of sisters nor the usuality of such exclusion is made out and really there is no general custom with regard to the exclusion of sisters and I would most respectfully record my dissent from the observations of Harries C.J., in Kirpa v. Bakhshi Singh 50 P.L.R. 220. My opinion, therefore, is that it is not a correct approach to a question of this kind to place the onus on the sisters in regard to non-ancestral property merely because of para. 24 of Rattigan''s Digest or a bald statement in the Customary Law, of the District which favours collaterals howsoever remote.

The authorities show that: (a) the rule of succession under the Punjab Laws Act, Section 5 is Personal Law unless the person who relies on custom proves that the parties are governed by custom and what that particular custom is; (b) and Personal Law now favours sisters which is not without effect on customs of Hindu tribes or tribes of Hindu origin. See Mt. Rajo v. Karam Bakhsh 11 P.R. 1905 at p. 78 : 92 P.L.R. (sic) (c)custom has to be proved by evidence adduced in the case or may be proved by the production of the Riwaj-i-am which will raise a presumption in favour of the entry if the property in dispute is ancestral unless the statement covers non-ancestral property; (d) custom varies from tribe to tribe and from place to place but some customs have by frequent proof in the Courts in all parts of the province become so notorious that judicial notice can be taken of them; (e) but the exclusion of sisters from inheritance to self-acquired property has not received that notoriety has to be taken judicial notice of at least not where the property is non-ancestral; (f) the rights of females have not received that protection which they deserved and at the time of compilation of Riwaj-i-am they have not been consulted and therefore the onus of proving their rights to succeed is a light one, which may be discharged by a few instances or by general evidence given by members of the family of tribe without proof of special instances. See Ahmed Khan v. Channi Bibi 6 Lah. 502 : AIR 1925 P.C. 267 and Mt. Kauran v. Ghafoor Ali 9 Lah. 496 : AIR 1928 Lah. 280 and (g) there has been a swing in judicial opinion in favour of female heirs after the decision of AIR 1941 21 (Privy Council) and in cases which came to the High Court the Judges have begun to give more attention to the observations of the Chief Court Judges where they had struck a note of caution in disregarding the claims of these heirs. Our law reports are full of these cases and they need not be quoted again.

We cannot lose sight of the fact that the Plaintiffs in this case claim to be 12th degree collaterals so that the common ancestor if there one must have lived round about the year 1700. It is doubtful if any authentic pedigree tables going so far exist and although no attack has been directed against the correctness of the pedigree tables produced, any pedigree table going beyond 7 degrees can have as little accuracy as the claim to descent from the moon. In Rajo v. Karam Bakhsh 11 P.R. 1908 : 92 P.L.R. 1908 at p. 78 Robertson J., said:

As a matter of fact pedigree tables which extend beyond the 7th or 8th degrees are in most cases visionary as those in the case of some exulted families deriving descent from the sun and moon and the people fully recognise this,

It is an equally notorious fact that female heirs, particularly sisters, seldom if ever contest their rights of inheritance against male heirs and "are always complaisant enough not to insist on their '' pound of flesh''". It has been held therefore, that instances whore female heirs have been excluded from inheritance are not sufficient to prove that Personal Law is not followed unless there has been actually an assertion of claim by the female and a denial by the male heirs. Per Din Mohammad J., in Sharifa Begum v. Court of Wards ILR (1941) Lah. 843 : AIR 1940 Lah. 475); at p. 861 reference in this case has been made to similar observations in other judgments. See Murad Khatoon v. Mohammad Bakhsh 84 P.R, 1916 : AIR 1916 Lah. 166; Mt. Ganesh Devi v. Darshan Singh 55 I.C. 478 : AIR 1920 Lah. 224 and Hajra Bibi v. Janat Bibi 4 Lah. 85 : AIR 1923 Lah. 184.

In the present case, the Riwaj-i-ams which have been relied upon, i.e., Graik''s Customary Law of 1914 and the latest Riwaj-i-am of 1940 relating to sisters must be taken to apply to ancestral property, and indeed this was not contested seriously. In this connection, it is necessary to compare questions 60 and 61 which deal with the rights of daughters and their issue. Question 61 is in the following terms:

Is there any distinction as to the rights of daughters to inherit (1) the immovably or ancestral, (2) the movable or acquired, property of their father?

Answer 61.-All tribes-No distinction ht made and the answers to question 60 are applicable. But in reality daughters have a right to exclude agnates with respect to non-ancestral property, though the right is seldom asserted for the reasons given under answer 60.

No such question was put to the tribes in regard to the right of sisters in 1914, and in 1940 ques-tions 63 and 68 again show that that amount of care and caution has not been bestowed in obtaining the answers of the tribes as was necessary in a case of this kind. In question 63 which is typed at p. 80 of the record the heirs are enumerated when a man dies without male issue and without leaving a widow and we find that this sister is not mentioned but in question 68 unmarried sisters at least are allowed to inhertill marriage and amongst the instances given there are several instances in which the sisters excluded the proprietary body and in instance No. 8 which I have already given sisters excluded 6th decree collaterals. It cannot be said, therefore, that the exclusion of sisters is so established a custom in Amritsar or is so well established that they are not even to be taken amongst the enumerated heirs.

In the list of Sub-division of the Jat tribes who were consulted at the time of the preparation of the Riwaj-i-am of 1914 Nijjar Jats are not mentioned and it cannot be said, there, fore, that in 1914 their answers were in favour of collaterals excluding sisters even where collaterals were so far distantly related as the 12th degree or where the property was non ancestral In Mt. Samon v. Shahu 17 Lah. 10 at p. 12 : AIR 1935 Lah. 93, Young C.J., and Rangi Lal J., held that there is no presumption that a particular tribe in a particular locality is governed by custom which governs a great many other tribes in the same localities or in other localities. On this ground alone, the questions and answers given in question 70 would not be applicable to the Nijjar Jats which is the sub tribe of the parties. Even in the Riwaj-i-am of 1914 an exception is given in the case of Bholi v. Kahna 36 P.R. 1909 : 1 I.R. 695 where the parties were Dogar Mohammadans and the dispute was between sisters and 6tb degree collaterals and sisters ware held to be preferential heirs. In that case, the instances quoted where sisters were excluded were all instances, where the collateral excluding was nearer than the 6th degree. On the other hand, as was said by Clark C.J. there were many instances quoted where the sisters excluded collaterals within the 6th degree.

In view of what I have said above, it was for the Plaintiffs to prove the exclusion of sisters because according to the personal law of the parties a sister is a preferential heir to a collateral so far removed as the 12th degree. The learned Judge decided the case on the Customary Law of the district which I have already discussed and which, in my opinion, is of very little assistance to the Plaintiffs. Bat should the initial onus be placed on the sisters in my opinion it is a light one and in this case baa been discharged,

Quite a large number of witnesses have been produced in the present case. Three witnesses have appeared for the Plaintiffs. The first of them is P.W. 1 at p. 25 according to whom Andhra Pradesh High Court collateral, howsoever remote, succeeds in preference to a sister whether the property is ancestral or non-ancestral but he could not give any instance and in re-examination ho stated that a sister never asserted her right to succeed in preference to the collaterals. D.W. 1 at p. 27 in another witness who beyond his ipse dixit has Stated nothing and has not given any instance. The third witness is Balwant Singh, a Plaintiff, Andhra Pradesh High Court p. 46 who stated that the sister was excluded by a collateral howsoever distantly related, whether the property was ancestral or self-acquired. Even he has not given any instance in support of the custom which he was claiming.

The Defendant''s case, on the other hand is supported by as many as seventeen witnesses who are all Nijjar Jats. P.W. 2 at p. 26 in cross-examination said that at the time of the preparation of the Riwaj-i-am it was announced that a daughter as well as a sister would exceed to self-acquired property of her brother in preference to the collaterals beyond the 5th degree. Witnesses for Defendants 2 to 13, are ali Nijjar Jats who have stated that sisters are preferred to collaterals of the 6th degree. It is true that they gave no instances and also said that the custom of other Jats was the same but they seem to have unanimously deposed that this custom was stated at the time of the preparation of the Riwaj-i-am.D. Ws. 14 to 17 are also '' Nijjar Jats who have stated the same thing, as also Pal Singh Defendant 2 at p. 37.

It appears that Nijjars have all congregated in a small area in about six. villages, Panjgirain, Matia. Boewali, Ajnala, Madu Ghhanga and Pandhri, and it is significant that amongst the twenty witnesses who have appear, ed on both sides not one has given an instance where a collateral has excluded a sister from self-acquired property.

Coming now to the cases decided by the subordinate Courts or by the revenro officers Ex. D-ll at p. 97 is a pedigree table which shows that sister''s son inherited the property when distant collaterals were in existence. Exhibit D-9 at p. 99 is another pedigree table which shows that sister''s sons got land belonging to Bur Singh by filing a suit and there the existence of Collaterals is shown. Exhibit D-8 at p. 102 is not of much assistance as the dispute was between the sisters and the proprietary body. Exhibit D-6 at p. 116 is a copy of a judgment of Chaudhri fazal Illahi, Sub-Judge 1st Class, Amritsar, "where the contest was between a sister and pttidars. At pp. 124 and 125 are given ten instances where sisters wore held to be preferential their to distant collaterals and there instances given in other judgments are relevant. See Mt. Jawali v. Lal Singh AIR 1942 Lah. 164 : ILR (1943) Lah. 135.

The Plaintiffs have produced some copies of judgments of decided cases one of which is Ex. P-20 at p. 83. Here the parties were sisters and collaterals of the 7th degree and the question was decided in favour of the collaterals on the question of onus in view of question 70 of the Riwaj-i-am of 1914 and the learned Judge held the entry to apply equally to self-acquired and ancestral property and reliance was also placed on para. 24 of Rattigan''s Digest. In view of what I have said already, reliance on question 70 of the Riwaj-i-am or para. 24 of Rattigan''s Digest cannot be of much assistance. Exhibit p-22 is a copy of an order of the Collector typed at p.89. Here the contest was between the sisters and the 9th degree collaterals and the latter wore preferred, the Collector remarking that this was the ordinary Customary law. This instance cannot be of much assistance to the Plaintiffs.

The evidence in the case discloses that only 2 witnesses besides the Plaintiff supported the claim of distant collaterals against sisters and only two instances were proved and of them one was based on the Riwaj-i-am and the other assumed that such was the custom. The sisters on the other hand had seventeen witnesses belonging to the tribe of the parties who gave general evidence in favour of the sisters and they produced two pedigree tables showing ex-elusion of collaterals and one judgment which gives 10 well-defined instances where sisters were preferred to collaterals. On this material and considering that sisters are now very high up in the list of heirs according to Hindu Law and the Plaintiffs are 12th degree collaterals and relying on the decision of the Privy Council in AIR 1925 267 (Privy Council) the onus if on the sisters must be taken to have been discharged. In a somewhat similar case of daughters in Mt. Kaman v. Ghafoor Ali 9 Lah. 496 : AIR 1928 Lah. 280 two instances were held sufficient to discharge the onus on daughters and rebutted the presumption raised by'' the Riwaj-i-am of the district. And if the onus is on the Plaintiffs they have not succeeded in proving their case.

I must, therefore, hold that the Defendant, the sister, has been able to show that the initial onus was wrongly placed on her and even if it was rightly placed on her she has discharged the onus.

And the Plaintiffs have not been able to establish the particular custom if the burden of proof was on them.

In the result, this appeal must be allowed and the suit of the Plaintiffs dismissed. The Appellant will have her costs in this Court and the Court below.

Weston, C.J.

I agree