UJAGAR SINGH v. MST. JEO
Citation: [1959] SUPP. 2 S.C.R. 781; 1959 INSC 47
Court: Supreme Court of India
Bench: SYED JAFFER IMAM , A.K. SARKAR, K. SUBBA RAO
Judgment date:
Case summary
1959 INSC 47. Supreme Court of India judgment dated 1959-04-23. UJAGAR SINGH v. MST. JEO. Read the judgment and case details on LawSphereX.
Judgment text
782 SUPREME COURT REPORTS (1959) Supp. -------. -- ~---· (2) S. O. R. SUPH. EME COURT HEPOHTS > ~781 · UJAGAR SINGH, v. ·l\IST. JEO (JAFER b1A~1, A. K. SARKAR and SunnA RAO, JJ. ) Customary Law-Proof of custom-TVhm can be taken judicial notice · of-]at agriculturists of the Punjab-Sister inheriting brother's property in preference to collaterals-Indian Evidence Act, r872 (rof r872), s. 57(r). · The question involved in this appeal was whether under the customary law of the Punjab a sister was a preferential heir in respect of her brother's self-acquired property, to a collateral. The respondent, the sister, relied on a custom, which she termed a special custom; and on that basis claimed her brother's pro- .
perty, and the appellant, a collateral of the 8th degree of her brother, resisted her claim relying solely, on a· general custom stated in paragraph 24 of the Rattigan's Digest of the Customary Laws of the Punjab to the effect that sisters were excluded by collaterals in the matter of inheritance to non-ancestral property. The Subordinate Judge, and the District Judge on appeal, held in favour of the appellant but the High Court revei:sed their decisions holding that, there was no such general custom as recorded by Rattigan and that it was in any event for the appellants to prove that custom and this he had failed to do. The High Court also held that the respondent had succeeded in proving the custom set up by her•. It was contended on behalf of the appellant that the High Court was in error in placing the onus of proving the custom on him since the custom was a general custom as stated by Rattigan. IIe/d, that no distinction could be made bet.
ween a general custom or other customs so far as the need of proof \Vas concerned and the ordinary rule was that all customs, general or otherwise, had to be proved unless. by repeated recognition by · the courts a custom had become entitled to judicial notice under s. 57(1) of the Evidence Act. Raja Rama Rao v. Raja of Pittapt ORTS 791 In Harnamon v. Santa Singh ( ) it was said that the burden of proving that the sister was entitled to succeed in preference to a collateral lay on her. The same view was taken in 1lfussammat Nurbhari v. 2 Abdul Ghani Khan ( ), Mussammat Hussein Bibi v. 3 4 5 Nigahia ( ), Jagu v. Bhago ( ), Began v. Ali Gohar( ), 6 Kirpa v. Bakshi Singh ( ) (case decided in 1944), Santi v. Ujagar Singh, Ex. D. 6 in the present case (decided in 1944) and Mussammat Ratni v. Harwant Singh (7). In some of these cases paragraph 24 of Rattigan's Digest was expressly approved of as applying to non-ancestral properties.
It will thus appear that there is a formidable array of authorities in support of either view. In this state of conflict of judicial decisions we are not prepared to say that a custom giving preference to collaterals over sisters in the matter of inheritance to non. ancestral properties has been so widely or uniformly recognised by courts as would justify us in taking judicial notice of it. It is important also to note that it is recognised that a Punjab custom is fluid and capable of adapting itself to varying conditions, as stated in 8 Hassan v. Jahana ( ) and that the decisions for the last ten years are uniformly against the view express-ed in paragraph 24 of Rattigan's Digest. We there- • fore come to the conclusion that the High Court was right in its view that it could not be held on the authority of paragraph 24 in Rattigan's Digest that a general custom excluding' sisters from inheritance as against collaterals, existed. It was then said that in the plaint it had been .
admitted by the respondent that there was a general custom as alleged by the appellant and so no proof of that general custom was required in this case. We do not think this contention is justified. No doubt in her plaint the respondent referred to a custom entitling her to succeed and termed it a special custom. We are anable to read the reference to a special custom as amounting to an admission of a general custom or its terms. That being the position we have to see if either side led any evidence in support of its claim. So far as the appellant is concerned he has relied on the alleged general custom and sought to support it by reference to paragraph 24 of Rattigan's Digest. It view of what we have said earlier we do not think that R. atti-gan's Digest can be taken as correctly laying down the custom on the point. Neither do we think that the reported decisions show the existence of any such general custom. There is nothing else on wbich the appellant has sought to rely.
\Ve therefore think that the appellant has failed to establish the custom alleged by him. ' We have next to see whether the respondent has proved the custom which she set up. We think that she has. The High Court has discussed the evidence led by the respondent, and found it acceptable. We have no reason to take a contrary view. Some reference to the evidence may now be made. Ex. P. 4, Settlement Record of 1852, proves that in the village Sultanwind Sajja Si11gh and l\fajja Si11gh succeeded to the properties of Nodh Singh as his sister's sons in the presence of collaterals. Mr. Achhru Ram contended that the statement in Ex. P. 4, that Sajja Singh and - Majja Singh were the sister's sons of Nodh Singh was wrong for, in Ex. P. 5, the Settlement R~cords of 1891 and 1892, they were described as the daughter's sons of Nodh Singh and Baghel Singh, his brother.
He contended that on the authorities it is clear that on a · conflict between two settlement records the later one in date has to be accepted. That appears to have been held in a number of cases of which Alo v. Sher (1) may be mentioned. But it seems to us that this is a point which should have been raised in the trial Court which does not appear to have been done, for, then the respondent could have led evidence to show which of the two settlement records put the matter correctly. Ex. P. 9 which is a settlement record of 1852 of the same village, shows that on Gandhi's death his sister's son succeeded to his properties though there were collaterals. Mr. Achhru Ram's comment was that in 1852 things were so unsettled in the Punjab that no one cared for lands and that was the reason why the collaterals allowed Gandhi's sister's son to succeed to his 'properties. This is an explanation which we are unable to accept. Exhibit P.
7 is a settlement document of the Bheniwal tribe in the village Sultanwind prepared in 1891-92. It shows that Mst. Chandi, the sister of Buta Singh, succeeded to his properties. It was said that the pedigree did not show that any collateral was alive. But this is not right because it shows that Buta Singh's great grand uncle, Tara Singh, was alive. Mr. Achhru Ram says that that must be a mistake and Tara Singh who was Buta Singh's great grand uncle could not have been alive when the latter died. This again is a matter which should have been cleared up in the • trial Court and we do not think it right to speculate about it. It remains to consider two entries in the Riwaji-i-am. We have first the Riwaji-i-am of 1913-14. The entry there is in this form : "Q. 70. -Does property ever devolve on sisters and/or upon their sons? (1) (1912) 13 I. e. 7u. (2) mo P. R. 1916. (3) (1919) l Lah. I. (4) (1926) 96 I. e. 907. (5) A. I. R. 1934 Lah, 554. (6) (1948) 50 P. L. R. 220. (7) (1948) 50 P. L. R.
249. (8) 71 P. R. 1904. (1) A. I. R. 1927 Lab. 607. A. All tribes. -The property never devolves upon sisters and their issues. " At the foot the case of Bholi v. Kahna (1) is cited. Now it is well established that Ri waji-i-am entries are to be taken as referring to customs relating to succession to ancestral properties unless it is stated to be otherwise. So it was stated in the Full Bench decision of the Lahore High Court in Mst. Hurmate v. Hoshiaru (2) at p. 235: "It is reasonable, therefore, to assume that when manuals of Customary law were originally prepared and subsequently revised, the persons questioned, unless specifically told to the contrary, could normally reply in the light of their own interest alone and that, as stated above, was 9onfined to the ancestral property (r) 35 P. R. 1909. (2) (r943) I. L. R. 25 Lah. 228, 235. IOO 794 SUPREME COURT REPOH,TS [1959] Supp. only.
The fact that on some occasions the questioner had particularly drawn some distinction between ancestral and non-ancestral property would not have put them on their guard in every case, considering their lack of education and lack of intelligence in general. Similarly the use of the term " in no case " or " under no circumstances" would refer to ancestral . property only and not be extended so as to cover self-acquired property unless the context favoured that construction ". The Full Bench was really authoritatively laying down a rule which had been the prevailing opinion in the courts in the Punjab. In the Riwaji-i-am of . 1913-14 we find nothing in the context to show that the answer there recorded was intended to apply to self acquired property. That being so, it does not prove any custom against the right of a sister to inherit the self acquired property of her brother. The other Riwaji-i-am was that of the year 1940. ' It was in these terms: "Q. 68.
-Does property ever devolve upon sisters or sister's son ? A. All tribe. - (1) In the case of an unmarried sister or sisters the property is entered in her or their name till marri-age. (2) Married sister 'or sisters or their descendants did not get the property in any case. " Here again there is nothing in the context to indicate that the answers were given in regard to non-ancestral property. So this does not help the appellant either. In this Riwaji-i-am eight instances are given. Some of them deal with the self acquired property. That does not in our opinion indicate that the answer recorded in the Riwaji-i·am was intended to cover succession· to self acquired property also. It is not disputed that the instances mentioned under the entries in the Riwaji-i-am are often collected by the officer in charge of the preparation of the record.
It is impossible to say whether any, and if so, which, instance recorded in the Riwaji-i-am had been suppli((d by the tribesmen in answer to questions put to them by the Settlement Officer. It is not possible therefore to say that then~ is any indication-in the instances in this H,iwaji-i-am entry that the anS\}'Cl'S were intended to cover self acquired property also. Now of the eight instances given rn the Riwaji-i-am two are concerned with self acquired property where there were no collaterals and the sisters were allowed to succeed. The remaining six are concerned with ancestral property. In four of these, the last ma! e owner died without leaving any reversioner and in each such case the married sisters succeeded to the property. In the fifth one, the sisters were unmarried at the time of the brother's death and they were allowed to take possession of the properties.
But this instance shows that on their marriages taking place they were dispossessed of the properties which appar-ently thereupon went to the collaterals. These seven instances therefore do not help either side. They show that sisters were allowed to succeed in respect of both kinds of properties in the absence of any collaterals and that sisters were on their marriages divested of the ancestral properties to which they had succeeded on their brothers' deaths, they being at that time unmarried. The last instance deals with the Rajput Mohammedan tribe of Tehsil Ajnala which is in the District Amritsar, the district to which the parties to the present litigation belong. This instance shows that a sister was allowed to succeed to the ancestral property left by the brother in preference to his collaterals of the sixth degree.
This therefore is an instance of a custom in a neighbouring Tehsil under which sisters were allowed to succeed in the presence of collaterals nearer in degree than the collateral in the present case. In these circumstances we agree with the learned Judges of the High Court that the respondent was able to prove a·custom whereby a sister was entitled to succeed in preference to the collateral relations of her brother. We think it also right to say that even if it had been held that the respondent was not able to establish a custom entitling her to succeed she would get the properties under the Hindu law. The parties are Sikhs to whorn the Hindu law applies. Since the Hindu Law of Inheritance (Amendment) Act, 1929, a sister is an heir under the Hinj:lu law in preference to collaterals and that Act would be applicable to the devolu-tion in this case.
It is however said that as the respondent had not made any claim in the plaint on the basis of Hindu law but on the contrary relied on custom, it was not open to her to fall back on the Hindu law on failing to establish the custom. We do not think that this is the correct position. Section 5 of the Punjab Laws Act, 1872, provides that in questions regarding succession, the rule of decision shall be (a) any custom applicable to the parties; (b) the personal law of the parties except in so far as modified by custom or legislation. In the Full Bench 1 case of Daya Ram v. Sohil Singh ( ) Robertson, J. , said at p. 410: "It therefore appears to me clear that when either party to a suit sets up "custom" as a rule of decision, it lies upon him to prove the custom which he seeks to apply. If he fails to do so clause(b) of section 5 of the Punja. b Laws Act applies and the rule of decision must be the personal law of the parties subject to other provisions of the clause.
" As we have earlier said this observation was approved by the Judicial Committee in Abdul Hussain Khan v. Bibi Sona Dero ('). In Fatima Bibi v. Shah Nawaz ('), a case to which we have earlier referred, the Court allowed the plaintiff's sisters, who had based their claim on custom and not on the personal law, to fall back on Mohammedan law, the personal law of the parties, on their failure to establish the custom, no custom against them having been proved by the collaterals. There are a number of other authorities, to which it is not necessary to refer, in . which personal law was resorted to when no custom on either side was established. We agree that that is the correct view to take. We therefore think that even if the respondent had been unable to prove the custom in (1) IIO P. R. 19o6. (2) (1917) L. R. 45 I. A. IO, 13. (3) (1920) I. L. R. 2 Lah. 98. her favour she is entitled to succeed in the suit on the basis of the personal law of the parties, namely, -the Hindu law.
Further, we see no prejudice to the appellant if such a course is adopted. It is not disputed that if the Hindu law applied, the respondent would be entitled to the properties in preference to the appellant. The only defence to the claim under the Hindu law that the appellant could take would be a custom. The custom on which the appellant relied for his case was a general custom entitling the collaterals to succeed in preference to sisters. We have earlier held that no such general custom has been proved in this case. Therefore it seems to us in the interest of justice and for the reason that litigation should come to an end that it is right that the respondent should succeed in the suit as her brother's heir under the Hindu law. There remains one other matter to be mentioned.
The respondent had filed an application for an order that by reason of certain agreements and certain pro-ceedings arising out of the decree in her favour passed in this case by the High Court, the appellant should not have been given leave by this Court to institute the present appeal and the leave granted under Art. 136 of the Constitution should be revoked. As, in our view, the respondent succeeds on the merits of the case we think it unnecessary to express any opinion on this question. In the result we dismiss the appeal with costs. Appeal dismissed.
Source: Supreme Court eSCR. Dataset: Dattam Labs, CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.