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1941 Supreme(SC) 11
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKIN, LORD RUSSELL OF KILLOWKN, LORD ROMER, SIR GEORGE RANKIN, AND CLAUSON L.J.
SARDAR NISAR ALI KHAN - Appellant
Versus
MST. FATIMA SULTAN - Respondents
On appeal from the High Court at Lahore.
Decided On : April 28, 1941.
Solicitors for appellants : Peake & Co.
Solicitors for first respondent: Douglas Grant & Dold.
To override ordinary laws of succession, a family custom must be ancient, invariable, and proven by clear and unambiguous evidence. The burden of proof is heavy, and the mere failure of female heirs to claim property does not establish a custom of exclusion.
Headnote:(A) Succession Law - Customary Law vs. Ordinary Law of Succession - To modify the ordinary law of succession, special usages or customs must be ancient and invariable, and established by clear and unambiguous evidence. The burden of proof in such cases lies heavily upon the plaintiff.
(B) Evidence of Custom - The mere fact that female members of a family have not made claims to succeed to property is not conclusive evidence of a custom excluding them from inheritance. Such occurrences may be attributed to the influence of male relations or a preference for maintenance over a separate share.
(C) Evaluation of Evidence - Where evidence of successions by males only is of recent date and capable of alternative explanations, it cannot be deemed clear and unambiguous evidence of a custom. Evidence such as prior denials of the custom by the claimant, land records indicating devolution according to general law, and mutations of land in favor of female heirs serve as strong evidence against the existence of a custom of exclusion.
Facts of the case:
A suit was brought by the sons of a deceased person against the widow and daughters of the deceased, seeking a declaratory decree that the sons were the exclusive heirs and owners of specified lands. The plaintiffs contended that a family custom existed which excluded women from inheriting. While the widow and most daughters admitted the custom, one daughter contested it. A lower court initially decreed the suit in favor of the sons, but this was reversed by the appellate court, leading to the present appeal.
Findings of Court:
The court found that the evidence produced by the plaintiffs was neither clear nor unambiguous. The instances of male-only succession were too recent and could be explained by factors other than custom. Furthermore, the plaintiff's own previous denial of the custom, land records showing devolution according to general law, and the mutation of land in favor of the widow and daughters strongly contradicted the claim of a custom of exclusion.
Issues: Whether the plaintiffs had proved the existence of a family custom that excluded women from inheriting property, thereby overriding the ordinary laws of succession.
Ratio Decidendi: A custom that departs from the ordinary laws of succession must be proven to be ancient and invariable through clear and unambiguous evidence. The failure of women to insist on their inheritance rights does not constitute proof of a custom of exclusion, as such behavior is often a result of social influence rather than legal prohibition. When contradictory evidence exists in land records and prior statements, the burden of proof for the custom is not discharged.
Result: Appeal dismissed.
Legal Category Hierarchy
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family law
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succession
- customary law
- shiah mahomedan law
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succession
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practice and procedure
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evidence
- burden of proof
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evidence
Judgement
Appeal (No. 17 of 1939) from a judgment and decree of the High Court (January 18, 1937), which reversed a decree of the Assistant Collector, First Grade, Lahore (May 8, 1935).
8 Law. Rep. 68 Ind. App. 104 ( 1940- 1941)
Sardar Nisar Ali Khan V. Fatima Sultan 19
The following facts are taken, substantially, from the judgment of the Judicial Committee The suit out of which this appeal arose was brought by three sons of the late Sir Fateh Ali Khan against seven defendants, namely, Sir Fatehs widow and his five daughters, and a fourth son, who was absent in England, and who was also joined as a defendant.
The relief claimed was a declaratory decree to the effect that the plaintiffs and the defendant son were the heirs of Sir Fateh, and exclusive owners of the lands specified in the plaint ; and that the defendants, the widow and daughters, had no right therein. The foundation of the claim was that by the custom of the family women did not inherit. The family were Shiah Mahomedans of the Asna Ashari sect.
The alleged custom was admitted by the widow and all the daughters, except one, namely, Fatima Sultan, the first respondent.
The Assistant Collector held that the alleged custom had been proved, and gave judgment decreeing the suit.
Fatima Sultan appealed to the High Court (Coldstream and Bhide JJ.) who allowed the appeal and dismissed the suit.
From that decision the four sons now appealed.
1941. March 20, 24. Wilfrid Barton K.C. and J. M. Pringle for the appellants. The judgment in the High Court, in three separate instances, draws attention to the fact that no claim to succeed to property has actually been made by females of this family. It is submitted that the judgment is giving undue importance to that sort of evidence ; where there is a custom one ought not to found on inferences of people not making claims contrary to the custom. [Having dealt with the relevant evidence, counsel contended that the appellants had discharged the burden which lay upon them of establishing that a custom of succession existed in the family according to which females were excluded from inheriting.] The appellants are the sole heirs of their father. [Reference was made to Mohammad Ali Khan v. Nisar Ali Khan (( 1928) A. I. R. (Oudh) 67.) ; Ameer Alis Mahommedan Law, 4th ed., vol. ii., pp. 66, 135, 137 ; Punjab Laws Act, IV. of 1872, s. 5 ; Aga Mahomed Jaffer Bindaneem v. Koolsom Bee Bee (( 1897) L. R. 24 I. A. 196.) ; Abdul Hussein Khan v. Bibi Sona Dero (( 1917) L. R. 45 I. A. 10.) ; Roshan Ali Khan v. Chaudhri Asghar Ali (( 1929) L. R. 57 I. A. 29, 33.) ; Ahmad Khan v. Channi Bibi (( 1925) L. R. 52 I. A. 379.).; and Ratilal v. Motilal (( 1925) A.
I. R. (Bom.) 380, 382,384.).]
J. M. Pringle followed, and referred to Musammat Subhani v. Nawab (( 1940)
L. R. 68 I. A. 1.).
Sir Thomas Strangman K.C. and Wallach for the respondents were not called upon to argue.
April 28. The judgment of their Lordships was delivered by Lord Russell of Killowen. [The judgment, after stating the. facts, continued] The question for their Lordships consideration Is whether the plaintiffs have proved the alleged family custom ; but before stating the conclusion which they have reached, their Lordships think it advisable to recall certain Statements previously made by the Board when dealing with alleged departures from the ordinary laws of succession.
In Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar (( 1872) 14 Moo. I. A. 570.) the Board stated that (Ibid. 585.) " It is of the essence of special "usages, modifying the ordinary law of
8 Law. Rep. 68 Ind. App. 104 ( 1940- 1941)
Sardar Nisar Ali Khan V. Fatima Sultan 20
succession, that they "should be ancient and invariable and it is further essential "that they should be established to be so by clear and unambiguous evidence," and in Abdul Hussein Khan v. Bibi Sona Dero (( 1917) L. R/ 45 I. A. 10.) their Lordships observed that (L. R. 45 I. A. 19.) " in every "case of this kind the burden of proof lies heavi
