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1917 Supreme(SC) 68
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER, SIR JOHN EDGE, MR. AMEER ALI, AND SIR WALTER PHILLIMORE, BART.
ABDUL HUSSEIN KHAN - Appellant
Versus
BIBI SONA DERO - Respondents
On Appeal from the Court of the Judicial Commissioner, Sind.
Decided On : October 30, 1917.
Solicitors for respondents: Wontner & Sons.
To override personal law, a family custom must be proven to be ancient, invariable, and established by clear, unambiguous evidence. The burden of proof lies on the party asserting the custom, and instances of female exclusion may result from social factors rather than a binding legal custom.
Headnote:(A) Bombay Regulation IV of 1827, s. 26; Indian Evidence Act, s. 13; Mahomedan Law - Inheritance of estate - Conflict between personal law and family custom - Burden of proof - The person asserting that they are governed by custom rather than personal law bears the burden of proving the existence and nature of that custom. There is no presumption in favor of custom over established law; it is only when the custom is established that it becomes the rule of decision. (Paras 11-13)
(B) Proof of Custom - Standard of evidence - For a special usage modifying the ordinary law of succession to be recognized, it must be ancient, invariable, and established by clear and unambiguous evidence. (Para 16)
(C) Evidence of Exclusion - Instances where women are excluded from inheritance are not conclusive proof of a binding custom if such exclusions can be attributed to social influence, maintenance agreements, or overriding customs such as primogeniture in ruling families. The mere partition of property among males without reference to females may occur even where personal law applies, as females may prefer maintenance or be under the influence of male relations. (Paras 20-22)
Facts of the case:
A dispute arose over the intestate estate of a male who died without a widow or children. The claimant, a son of a half-brother, asserted that a family custom existed which excluded daughters and sisters from inheritance in favor of male paternal collaterals, thereby overriding the applicable personal law. The respondents, the sister of the deceased and her son, claimed inheritance under personal law.
Findings of Court:
The court affirmed that the deceased belonged to the Shia sect. Regarding the alleged custom, the court found that the evidence provided—consisting of various instances of inheritance—failed to satisfy the necessary standard of proof. Testimony from a prominent head of the family denying the custom and revenue records showing a division of property according to personal law further undermined the claimant's case.
Issues: Whether the deceased was a Sunni or a Shia, and whether a family custom excluding women from inheritance had been sufficiently proved to override the provisions of Mahomedan law.
Ratio Decidendi: The burden of proving a custom that modifies personal law lies heavily on the party asserting it. Such a custom must be ancient and invariable. Evidence of the exclusion of women is not sufficient if it can be explained by social pressure, family arrangements, or other specific customs. Where prominent family members deny the existence of the custom and official records demonstrate succession according to personal law, the custom is not established.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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family law
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succession
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intestate succession
- mahomedan law
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intestate succession
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succession
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practice and procedure
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evidence
- burden of proof
- proof of custom
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evidence
Judgement
Appeal from a judgment and decree of the Court of the Judicial Commissioner of Sind (January 9, 1912) reversing the decree of the District Court (May 31, 1910).
The litigation related to the estate of Mir Hussein Ali Khan of Talpur, a Mahomedan, who died intestate on January 30, 1907, leaving no widow or issue. The suit was instituted by the appellant, a son of a half-brother of the deceased, against the respondents, who were respectively the sister of the deceased and the sisters son. The pleadings raised an issue whether the deceased was a Sunni or a Shia; both Courts held, in the respondents favour, that he was a Shia. The main question arising upon the appeal was whether the appellant had established a family custom which he alleged. The custom was put forward in different forms, but in substance it was that in the family of the deceased daughters were excluded from inheritance in favour of sons, and sisters in favour of male paternal collaterals.
The trial judge held that the custom was established by the evidence, but that decision was reversed upon appeal.
The facts are stated in the judgment of their Lordships.
1917. July 2, 3, 5, 6, 9, 10, 12. P. O. Lawrence, Z.C., and Arthur Grey, for the appellant.
De Gruyther, K.C., and Sir W. Garth, for the respondents.
The arguments were chiefly directed to the evidence, more especially to the evidence of instances of inheritance in the family in accordance with, or contrary to, the custom alleged. On behalf of the appellant reference was made to Bengal Regulation IV. of 1827, s. 26 ; Hurpurshad v. Sheo Dyal (( 1876) L. R. 3 I. A. 259, 285.), Daya Ram v. Shohal Singh ( 1906 P. R. No. 110 (F.B.).), Makhan Singh v. Dolo ( 1906 P. R. No. 4.), Mohesh Chunder Dhal v. Satrugan Dhal (( 1902) L. R. 29 I. A. 62.), Pranjivan Dayaram v. Bai Reva (( 1881) I. L. R. 5 B. 482, 489.), Rajah Deedar Hossein v. Zohoor-oon-nissa (( 1841) 2 Moo. I. A. 441.); and the Indian Evidence Act (IX. of 1872), s. 13. For the respondents reference was made to Mirabivi v. Vellayanna (I. L. R. 8 M. 464.), Mahomed Sidick
v. Haji Ahmed (( 1885) I. L. R. 10 B. 1, 9.), and the Gazetteer of India, vol. 22, pp. 397 et seq.
Oct. 30. The judgment of their Lordships was delivered by
LORD BUCKMASTER. On January 30, 1907, Mir Hussein Ali Khan of Talpur died intestate, leaving neither widow nor" child. His nearest surviving relations were the plaintiff, Abdul Hussein, the son of his brother by the half-blood, one sister, the first defendant upon the record, and his sisters son, who is the second defendant. His estate, consisting exclusively of personal property, and largely of what we should call personal effects, is of great value, and doubtless also, from the character of many of the articles, of great personal interest to his relations. It is a dispute about the inheritance of this property that has given rise to the present appeal. The deceased was a member of the family of Talpur Mirs of Sind, who were a branch of the large Baluchi tribe. He was a Mahomedan, and, if MAHOMEDAN LAW governed the question, the rights of the parties would vary accordingly whether the deceased was a member of the Shia or of the Sunni sect. If the former, the sister would inherit the whole estate ; if the latter, the plaintiff would be entitled to a half. The plaintiff alleges, however, that the rights of inheritance are not to be determined according to MAHOMEDAN LAW , but that they are regulated by a custom well known and distinctly ascertained, by which, notwithstanding the provisions of the Koran, women are excluded from any share in the inheritance of a paternal relation. He further alleges that, if this contention does not prevail, the deceased was a Sunni and not a Shia, and that he is therefore entitled to the more limited rights to which reference has been made. Their Lordships think it is convenient to dispose of the latter contention first.
Although the holding of religious opinion is a matter of personal faith, and o
