There is no general custom in the Punjab excluding sisters from inheritance when there are collaterals of the last male holder. The burden of proving a custom entitling a sister to succeed in preference to collaterals lies on the sister.

Headnote:
CUSTOM - PUNJAB - SUCCESSION - SISTER - RIGHT TO INHERIT NON-ANCESTRAL PROPERTY - GENERAL CUSTOM EXCLUDING SISTERS FROM INHERITANCE - EXISTENCE OF - BURDEN OF PROOF - CUSTOM IN FAVOUR OF SISTER - PROOF OF.
Fact of the Case:

The dispute arose between the appellant, a collateral of the deceased, and the respondent, the deceased's sister, over the ownership of certain plots of land in village Sultanwind, Tehsil and District Amritsar in the Punjab. The Tehsildar entered the respondent's name as the owner of the lands in the revenue records, but on appeal by the appellant, the Collector of Amritsar directed the respondent's name to be removed and the appellant's name to be entered in its place. The respondent filed a suit against the appellant asking for a declaration that she was the owner of the lands, claiming that she came into possession of the properties left by Kishen Kaur, as the heir of her father and brother, according to the Zamindara Custom prevalent in Mauza Sultanwind among the people of the Got (Sub-caste) Bheniwal and the custom of the family of her father.
Finding of the Court:

The High Court allowed the respondent's appeal and upheld her claim, holding that the onus of proving the custom whereby a sister was excluded from the inheritance lay on the appellant and that he had failed to discharge that onus. The appellant challenged this decision in the Supreme Court.
Issues: 1. Whether there is a general custom in the Punjab excluding sisters from inheritance when there are collaterals of the last male holder? 2. If not, who has the burden of proving a custom entitling a sister to succeed in preference to collaterals? 3. Whether the respondent had proved the custom which she set up?
Ratio Decidendi: 1. The court held that there is no general custom in the Punjab excluding sisters from inheritance when there are collaterals of the last male holder. The court noted that there is a large number of reported decisions on the subject, with some taking the view that there is no such custom and others taking the contrary view. The court found that the cases decided since 1950 all take the view that there is no general custom giving collaterals preference to sisters in matters of inheritance. 2. The court held that the burden of proving a custom entitling a sister to succeed in preference to collaterals lies on the sister. The court noted that the general rule is that all customs, general or otherwise, have to be proved, and that the onus of establishing them is upon the parties relying upon their existence. 3. The court held that the respondent had proved the custom which she set up. The court noted that the respondent had led evidence in support of her claim, including settlement records, Riwaji-i-am entries, and instances of sisters succeeding to the properties of their brothers in the presence of collaterals.
Final Decision: The Supreme Court dismissed the appeal, holding that the respondent was entitled to succeed in the suit as her brother's heir under the Hindu law.

Judgment

A. K. SARKAR J. : The suit out of which this appeal arises concerns the right to certain plots of land in village Sultanwind, Tehsil and District Amritsar in the Punjab. It raises a question of the Punjab customs

2. Sahib Singh, the last male owner of the lands in dispute, died in December 1918 leaving a widow Nihal Kaur. The widow succeeded to the lands but on her remarriage soon thereafter, she was divested of them and they passed to Sahib Singh s mother, Kishen Kaur who died on 12-11-1942.

3. On Kishen Kaur s death disputes arose between Sahib Singh s sister, Jeo, the respondent in this appeal and his agnatic relation, the appellant Ujagar Singh, as to the ownership of the lands. The Tehsildar entered the respondent s name as the owner of the lands in the revenue records but on appeal by the appellant, the Collector of Amritsar directed the name of the respondent to be removed and the appellants name to be entered in its place.

4. On 11-6-1945, the respondent filed a suit against the appellant asking for a declaration that she was the owner of the lands. In paragraph 3 of the plaint it was stated that the respondent "came into possession of the properties left by Kishen Kaur, as the heir of her father and brother, according to the Zamindara Custom prevalent in Mauza Sultanwind among the people of the Got (Sub-caste) Bheniwal and the custom of the family of her father." In paragraph 5 it was stated, "According to the afore-mentioned special custom, the right of inheritance of daughter and her descendants and in their absence that of the sister and her descendants to the property left by her father and brother is preferential to that of the collaterals beyond the fifth degree; no matter whether the property is ancestral or self acquired." The defence taken in the written statement of the appellant was that "According to the General Custom and the Custom of the District of Amritsar, the plaintiff as sister is in no way the heir of the property left by (her) brother in presence of the reversionary heirs, no matter whether the land is ancestral qua reversionary heirs or it is self-acquired. There is no particular family, Got or village custom of the District of Amritsar." In substance, the position taken by the appellant was that he as the agnatic relation or collateral of Sahib Singh was entitled to the properties under general custom of the Punjab in preference to the respondent. The question that the suit involved was, who was the preferential heir of Sahib Singh.

5. The suit was heard by the Subordinate judge, Amritsar, who found that the apellant was a collateral of Sahib Singh of eighth degree and that the properties in dispute were not ancestral. He held that the respondent had based her claim on a special custom but had not been able to establish it by necessary evidence and therefore the appellant was to be considered as the preferential heir under the general custom.

6. The respondent then appealed to the District Judge, Amritsar. That learned Judge confirmed the findings of the Court below that the land was not ancestral and that the appellant was a collateral of Sahib Singh of the eighth degree. He then held that the general custom of the Punjab among the agriculturists which the parties were, was, as stated in para. 24 of Rattigan s Digest of the Customary Law of the Punjab, that "sisters are usually excluded as well as their issues" and therefore put the onus of proving any special custom entitling the sister to succeed on the respondent. On the evidence led by the respondent he came to the conclusion that she had failed to discharge the onus and thereupon dismissed the appeal.

7. The respondent took the matter up in further appeal to the High Court of Punjab. Kapur J., who delivered the main judgment of the High Court, observed that para. 24 of Rattigan s Digest did not lay down the custom correctly and that the statement there was too broad. He held that the onus of proving the custom whereby a sister was exclu

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