The general custom of Punjab favored the daughter's succession to the self-acquired property of her father, and the onus was on the collaterals to prove a special custom excluding daughters. The presumption attaching to the Riwaj-i-am entries could be rebutted by evidence, especially when it adversely affected the rights of females.

Judgement

RAMASWAMI, J.:- The question to. be considered in this appeal is whether under the customary law applicable to Sidbu Jats of Muktsar Tahsil of Ferozepore district collaterals of the 5th degree of the deceased land-owner could take precedence over his married daughters in succession to his non-ancestral property.

2. The dispute relates to 1574 kanals 4 marlas of land situate in village Kotli Ablu ,Muktsar Tahsil of Ferozepore district. Dulla Singh was the last male holder of the land and he was succeeded by his widow, Smt. Indi on his death. Smt. Indi died on September 8, 1955 and thereafter the estate was mutated by the revenue authorities on February 11, 1956 in favour of the defendants who were the reversioners of her husband in the 5th degree. Smt. Nihal Kaur is the daughter of Dulla Singh On November 14, 1057 she instituted the suit which is the subject-matter of the present appeal in the court of Subordinate Judge Muktsar for a declaration that she was the legal heir of the land left by Smt. Indi and that she was entitled to inherit the estate to the exclusion of the collaterals. The suit was resisted by the defendants who claimed that the whole of the land was ancestral and they were preferential heirs to the deceased Dulla Singh than the plaintiff. the trial court held that the land in dispute was not the ancestral property of Dulla Singh but the defendants who were 5th degree collaterals of Dulla Singh were entitled to exclude his daughter from succession even to the non-ancestral property under the custom of the district. Accordingly the trial court dismissed the suit of the plaintiff. The decree was affirmed by the Additional District Judge Ferozepore in appeal Mst Nihal Kaur preferred a Second Appeal to the Punjab High Court which was allowed and the suit of the plaintiff was decreed. The High Court took the view that the general custom of the Punjab as laid down in Rattigan s Customary Law was that the daughters excluded collaterals for succession to the self-acquired property of their father and the special custom set out in the Riwaj-i-am that the agnates. however, remote, exclude daughters from succession to their father s property was opposed to the general custom referred to above and the Riwaj-i-am was only a presumptive evidence in favour of the collaterals and the presumption has been rebutted by the plaintiff Mst. Nihal Kaur in the circumstances of the present case. In other words, the High Court held that the general custom in favour of the daughter s succession prevailed and the defendants had not been able to prove that the general custom had been varied by a special custom enabling the collaterals to exclude the daughters .

3. This appeal is brought by the defendants on a certificate from the judgment of the Punjab High Court dated September 6, 1961 in Regular Second Appeal No. 54 of 1960

4. On the question of custom the respondents relied upon the statements in paragraph 23 of Rattigan s Digest of Customary Law (14th Edn.), a book of unquestioned authority in the Punjab State. In para, 23, p 182 it is stated that (1) a daughter only succeeds to the ancestral landed property of her father, if an agriculturist in default :- (1) of the heirs mentioned in the preceding paragraph (viz., male lineal descendants , widow or mother), or (2) of near male collaterals of her father, provided that a married daughter sometimes excludes near male collaterals in certain circumstances specified in the paragraph. (2) But in regard to the acquired property of her father, the daughter is preferred to collaterals. It is further stated at p. 152 that the general custom of Punjab is that daughter excludes collaterals in successions to self-acquired property of her father and the initial onus, therefore, is on the collaterals to show that the general custom in favour of the daughter s succession to the self-acquired property of her father, has been varied by a special custom excluding daughters. This being the legal po