D, a Sidhu Jat of Muktsar Tahsil, Ferozepore District,
Punjab was tile last male holder of certain land in that
area. He was succeeded by his widow after whose death, the
land was mutated in favour of D's collaterals in the 5th
degree. D's daughter filed a suit for a declaration that
she was the legal heir of .he land and was entitled to
inherit to the exclusion of the collaterals. The trial
court held that the land was not ancestral but the
defendants were preferential heirs under the custom of the
district. The decree was affirmed by the first appellate
court. In second appeal, however, the High Court decided in
favour of the plaintiff holding that the general custom
recorded in Rattigan's Digest had not been shown to be
displaced by any special custom in the Riwaj-i-am, The
defendants appealed.
HELD : The entries in the Riwaj-i-am on which the appellants
relied, did not refer at all to non-ancestral property and
were therefore not relevant evidence to establish a special
custom among the Sidhu jats of Muktsar Tahsil of Ferozepore
District entitling collaterals for succession to non-
ancestral property in preference to daughters. The
appellants had not discharged the onus which lay upon them
of proving that the general custom had been varied by a
special custom enabling the collaterals to exclude the
daughters. It was manifest therefore that the customary law
among the Sidhu Jats of Muktsar Tahsil of Ferozepore
district -Is regards non-ancestral property was the same as
recorded generally for the State of Punjab in Paragraph 23
of Rattigan's Digest i.e. a daughter is preferred to
collaterals. [657 G-H]
Mst. Rai Kaur v. Talok Singh, A.I.R. 1916 Lab. 343, Budhi
Prakash v. Chandra Bhan, A.I.R. 1918 Lab. 225, Narain v.
Mst. Gaindo, A.I.R. 1918 Lab. 304, Fatima Bibi v. Shah
Nawaz. A.I.R. 1921 Lab. 180, Abdul Rahiman v. Mst. Natho,
I.L.R. [1932] 13 Lab. 458, Mst. Hurmate v. Hoshiaru, I.L.R.
25 Lab. 228 and Mst. Subhani v. Nawab and Ors., 68 I.A. 1,
referred to.
(ii) Even on the assumption that the Riwaj-i-am entries
referred to the non-ancestral property of the last male
holder the appellants could not succeed. For though the
entries in the Riwaj-i-am are entitled to an initial
presumption in favour of their correctness, the quantum of
evidence necessary to rebut this presumption would vary with
the facts and circumstances of each particular case. Where,
for instance, the Riwaj-i-am laid down a custom in
consonance with the general agricultural custom of the
State, very strong proof would be required to displace this
presumption, but where, on the &-her hand, this was not the
case, and the custom as recorded in the Riwaj-i-am was
opposed to the rules generally
652
prevalent the presumption would be considerably weakened.
Likewise, when the Riwaj-i-am affected adversely the rights
of females who had no opportunity whatever of appearing
before the revenue authorities, the presumption would be
weaker still, and very little evidence would suffice to
rebut it. [658 B-D]
Har Narain v. Mst. Deoki, (1893) 24. P.R. 124. Sayad
Rahim Shah v. Sayad Hussain Shah, (1901) 102 P. R. 353,
Bholi v. Man Singh, ( 1908) 86 P. R. 402 and Mahant Salig
Ram v. Mst. Maya Devi [1955] 1 S.C.R. 1191, referred to.
(iii)In. the present case the High Court bid mentioned three
instances in its judgment which showed that the presumption
attaching to Riwaj-i-am had been rebutted in this case. The
appellant's-defendants had not relied upon any instances in
support of their case. The High Court therefore rightly
decided in favour of the plaintiffs. [660 C-D]
Mst. Rai Kaur v. Talok Singh, A.I.R. 1916 Lah. 343, Ratta
v. Mst Jai Kaur, (1934) P.L.R. 69 and R.F.A. No. 220 of 1954
decided by the Punjab High Court on April 11 1961, referred
to.
