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PUNJAB & HARYANA HIGH COURT
Kapur and S.M.Soni JJ.
Mst.Jeo
Versus
Ujagar Singh
Second Appeal No. 327 of 1948,
Decided On : SEPTEMBER 8, 1952
CUSTOM - SUCCESSION - SISTER - NON-ANCESTRAL PROPERTY - PUNJAB - EVIDENCE - SUFFICIENCY - BURDEN OF PROOF - CUSTOMARY LAW - INTERPRETATION - RATTI GAN'S DIGEST OF CUSTOMARY LAW - PARA 24 - APPLICABILITY - REBUTTAL OF PRESUMPTION - SUCCESSION ACT, 1925 - SECTION 5.
Fact of the Case:
The dispute arose over the succession to non-ancestral property of a deceased male holder. The plaintiff, the sister of the deceased, claimed the property based on custom, while the defendants, collaterals of the deceased in the 9th degree, asserted that sisters were excluded from inheritance by custom. The trial court and the lower appellate court dismissed the plaintiff's suit, holding that the defendants were entitled to the property as per custom.
Finding of the Court:
The High Court allowed the plaintiff's appeal and decreed the suit, holding that the plaintiff, as the sister of the deceased, was entitled to inherit the non-ancestral property in preference to the collaterals of the 9th degree. The court found that the plaintiff had discharged the onus of proving the custom of succession in favor of sisters, despite the presumption arising from the entry in the Riwaj-i-am that sisters were excluded from inheritance.
Issues: 1. Whether the plaintiff, as the sister of the deceased, was entitled to inherit the non-ancestral property in preference to the collaterals of the 9th degree. 2. Whether the plaintiff had discharged the onus of proving the custom of succession in favor of sisters.
Ratio Decidendi: 1. The court held that the plaintiff, as the sister of the deceased, was entitled to inherit the non-ancestral property in preference to the collaterals of the 9th degree, based on the following grounds: - 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. - Personal law now favors sisters, which is not without effect on customs of Hindu tribes if tribes of Hindu origin. - 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 favor of the entry if the property in dispute is ancestral unless the statement covers non-ancestral property. - 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. - The exclusion of sisters from inheritance to self-acquired property has not received that notoriety as to be taken judicial notice of, at least not where the property is non-ancestral. - The rights of females have not received that protection which they deserved, and at the time of compilation of Riwaj-i-ams, they have not been consulted; 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 or tribe without proof of special instances. 2. The court held that the plaintiff had discharged the onus of proving the custom of succession in favor of sisters, based on the following evidence: - Instances of sisters succeeding to the property of their brothers, both from the plaintiff's family and from other families of the same Got and village. - Judicial instances supporting the succession of sisters. - Oral evidence of witnesses supporting the sister's right to succeed.
Final Decision: The High Court allowed the plaintiff's appeal, set aside the judgment and decree of the Courts below, and decreed the plaintiff's suit with costs throughout.
Kapur, J.
1. This is a second appeal against a judgment and decree of the learned District Judge Amritsar, affirming the decree of the trial Court dismissing the suit.
2. The relationship of the parties will be clear from the pedigree-table which is as follows:
GANGU
|
_______________________________|_____________________________
| |
Akki Jagta
| |
Sanwalia Parana
| |
Bantu Milkha Sing (Lakha Singh)
| |
Jai Sing Fateh Singh
| |
Mehr Singh Ranu
| ___________|__________
Gulab Sing | |
| Jaimal Sing Dhanna Singh
Mt. Kishan Kaur=Jawala |
| Singh Sant Singh
| |
| Ujagar Singh (Deft.) Respdt.
|
|
|___________________________________________________
| |
(Last male holder) Mt. Jio
Sahib Singh (Plff. Appellant).
(Mt. Nihal Kaur) Widow
The penultimate holder of the property was Jawala Singh who died on 24-11-1917. He was succeeded by his sou Sahib Singh who died in December 1918. Nihal Kaur, the widow of Sahib Singh, remarried soon after and mutation was entered in the name of Kishan Kaur, the widow of Jawala Singh and the mother of the last holder, she died on 12-11-1942, and in 1943 mutation was entered in the name of Mst. Jio, the sister of Sahib Singh. On appeal being taken to the Collector the mutation was ordered to be entered in the names of collaterals who are connected with the last male-Holder in the 9th degree. On 11-6-1945 Mst. Jio brought the present suit alleging that she was governed by special custom by which amongst Bheniwal Jats of the Amritsar Tahsil of Amritsar District a sister excluded collaterals. The defence was that the parties were governed by custom by which the sister was no kind of an heir and the land was ancestral. Another suit was brought by one Jagat Singh for possession who claimed to be a nearer collateral than the present respondents, but that suit was dismissed. On 28-8-1946 the suit of the plaintiff was dismissed and the appeal against this decree was also dismissed on 14-10-1946. It was found by the Courts below that the land in dispute is non-ancestral, that the defendants -- the present respondents -- were 9th degree collaterals of the last male-holder and that according to custom the sister is excluded by collaterals even to non-ancestral property.
3 The principles governing the cases of custom have now been stated by the Supreme Court in -- Gokal Chand v. Parvin Kumari, AIR 1952 SC 231 (A), and seven propositions have been laid down, 4th and 5th of which are of importance :
4. "A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy and such evidence may be safely acted on which it is supported by a public record of custom such as the Riwaj-i-am or Manul of Customary Law. See -- Ahmad Khan v. Mt. Chann
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