1. This judgment will dispose of Second Appeal from Order No. 12 of 1950 and Regular Second Appeal No. 683 of 1950, and the only point for determination in the present case is whether a daughter amongst Rajputs of Maler in the Dehra Tahsil of Kangra District is excluded by collaterals of the sixth degree in regard to ancestral property.
2. Both the appeals are by Amar Devi against the judgments and decrees passed in appeals by the Additional District Judge, dated the 3rd of January 1950, and the District Judge dated the 21st of June 1950, respectively. The Additional District Judge allowed the appeal of the collaterals and remanded the case under Order XLT, Rule 23-A, Civil Procedure Code, and then the District Judge after the remand granted a decree lor declaration holding against the daughter as against collaterals of the sixth degree. The appeals are against the order of remand and against the appellate decree.
3. The following pedigree-table will show the relationship of the parties :
SITA RAM | Pohlu ______________|__________________________ | | Dhola Badna | | _________|______________ Santa | | | Kishnu Gharbu Jagni | | | jawala Sheru Jawahar | | | Gokal ___________|_________ Bassi | | | | Bakshi Chitru Mehru Mt. Durgo | | | (deceased) | Gulaba | | __|________ Plff.No.5 _________|_____ Mt. Amar | | | | Devi Sangara Sant Ram Prema Biknu (deft.)
Plff.No.2 Plff.No.1 | Plff.No.4 Jai Devi Plff.3.
4. On the death of Bassl, his widow Durgo succeeded to the property and on her death the estate of Bassi was mutated in the name of Amar Devi, the daughter, on the 7th of January 1947. On the 20th of January 1947, the plaintiffs, who are sixth degree collaterals of Bassi brought a suit for declaration that they were preferential heirs. The Senior Subordinate Judge dismissed the suit on the ground that the plaintiffs were sixth degree collaterals and could not exclude the daughter even from the ancestral property. The collaterals went up in appeal and the learned District Judge held that as the RiwaJ-i-am was in favour of the sixth degree collaterals the presumption was against the daughter. Although it was weak because of its being at variance with the general custom and as no evidence had been produced by the daughter defendant to rebut the presumption that the sixth degree collaterals were better heirs than the daughter, he remanded the case on the question of the frame of the suit and as on remand that was found to be in favour of the collaterals, the suit was decreed.
5. In appeal it has been submitted that daughters have a better right to succeed even to the ancestral property because the plaintiffs are too remotely related to the last male-holder being sixth degree collaterals. In paragraph 23 of Hatti-gan's Digest of Customary Law, which has been held to be a book of great authority and which has received recognition as such by their Lordships of the Privy Council in 'MT. Subhani v. Nawab', IL.R (1941) Lah 154 (PC), it is stated as follows:
"23 (1) A daughter only succeeds to the ancestral landed property of her father, if an agricultitrist, in default:
(1) *** (2) Of near male collaterals of her lather, provided that a married daughter .sometimes excludes near male collaterals, especially amongst Muhammadan tribes."
6. In Remark 1 at p. 124 It Is stated in Ratti-gan's Digest of Customary Law that:
"the seventh degree is sometimes found to be the extreme limit of collateral male relationship which excludes the succession of a daughter. And cases are only rarely met within which a collateral more remotely related is recognised as having a preferential customary right over a daughter. More usually the fifth degree is found to be the customary limit."
This was the view which is given in the 8th Edition of Rattigan's Digest of Customary Law and has continued in the 12th Edition also.
7. As long ago as 1867, In 'Wuzeera v. Hakoo', 31 P R 1867, fifth degree was recognised as the limit of exclusion of daughters by collaterals in regard to ancestral property by collaterals.
8. In 'Andizo Karim v. Sahib Jan', 5 PR 1908, at p. 33, Lal Chand, J., quoted with approval the passage from Rattigan's Digest of Customary Law, which I have given above.
9. In 'Bholi v. Man Singh', 86 P R 1908, where the competition was between the daughter and sixth degree collaterals in regard to ancestral property, the onus was placed on the sixth degree collaterals, and It was held that in that case the onus had not been discharged. There are certain observations made by Chatterji, J., which are of very great Importance, the learned Judge said:
"No doubt Sir Charles Roe, in his work on Tribal Law, published in 1895, gives it as his opinion, as the result of his examination of the records of custom in the Punjab that daughters are not in the line of heirs. But another most eminent authority, Sir William Rattigan, who made customary law the subject of special study from the early seventies, lays down in the last edition of his Digest of Punjab Customary Law, published in 1901, paragraph 23, remark 1, that the fifth degree is the ordinary limit of agnates who exclude daughters, and that in rare Instances this exclusion extends up to the seventh degree."
At the same page the learned Judge goes on to say :
"No doubt the agnatic principle Is a leading rule of Customary law particularly among exogamous tribes, but natural affection and the ties of blood should also have Its effects in moulding public opinion, on which Customary Law is founded. Indians, and particularly Hindus and Sikhs are accustomed to live in family groups, and it generally happens that nephews and near agnatic relations who are frequently associated with the owner of the property, are regarded as more inti-mately connected with him and better entitled in consequences to be his heirs than daughters. who are usually married in other localities and in strange famines. But this ordinarily applies to near relations and. the more removed a man is from the common ancestor, the less likely is he to stand high in the affections of the sonless owner."
At p. 407 the learned Judges go on to say:
"Our object in making these remarks is merel to show that too great a stress should not be laid on the agnatic principle in deciding the question of succession when the agnates are remote in degree, and that it should be borne in mind that a contrary principle in favour of the female relations, and particularly daughters, has always been in operation and has modified the former more or less In many instances."
At page 413, the learned Judge referred to the daughter being a preferential heir under the Personal Law. which was the Hindu Law in that case as it is in the case now before me. On the same pasre distinction is drawn between near and remote collaterals, and it was remarked that those beyond fifth degree can hardly be called 'near.' In that case reference was also made to 'Gujar v. Sham Das', 107 P R 1887, where Sir Meredith Plowden, said :
"It has been found as a rule that the collateral beyond the fifth degree or at most the seventh degree of relationship are not recognised as entitled to control the action of a sonless proprietor in respect of disposition."
10. In 'Manohar v. Mt. Nanhi', 2 Lah 366 at p. 371, Scot-Smith, J., said:
"Now, we have the general custom that daughters are usually preferred to collaterals so distantly related as the 6th degree even in regard to ancestral property....."
11. In 'Mt. Dhan Kaur v. Sunder', 3 Lah 184, the initial onus was placed on the 6th degree collaterals on the ground that they were more distantly related that the 5th degree.
12. 'Gurdit Singh v. Mt. Malan', 5 Lah 364, was a case where the collaterals were of the 10th degree and heavy onus was placed upon them to prove that they excluded daughters.
13. In 'Kyas Muhammad v. Banna', 73 I C 183, at p. 185, it was held that there was a presumption against the right of collaterals of 6th degree to exclude daughters from succession.
14. 'Bholi v. Man Singh', 86 P R 1908, was followed in 'Khan Beg v. Mt. Fateh Khatun' 13 Lah 273 at p. 296.
15. In 'Mano v. Basant Singh', AIR 1921 Lah 289, where the collaterals were of the 7th degree, onus was placed upon them as against daughters.
16. In 'Baryam Singh v. Mt. Vidyawati', 17 Lah 280, at p. 283, Tek Chand, J., observed :
"These entries have been considered by a Division Bench of this Court in 'Ganga
Ram v. Mt. Indi',
AIR 1925 Lah 444, as meaning that collaterals beyond the flfth degree were not entitled to exclude the daughter from succession to ancestral property. That was a case of jats of Ambala Tahsil. In 'Bholi v. Man Singh',
86 P R 1903, which was a case among Hindu Rajputs of Narai-garh Tahsil to whom also the entries in the Customary Law above cited refer equally with the Jats, it was held that no custom had been established by which daughters were excluded from succession to ancestral property by male collaterals related in the sixth degree. It was further held that the burden of proof as to whether remote collaterals, such as of the 6th degree, excluded daughters, rested on the party who asserted its existence."
17. Finally their Lordships of the Privy Council in 'Mt. Subhani v. Nawab', ILR (1941) Lah, 154, quoted With approval 'Bholi v. Man Singh, 86 Pun Re 1908. At p. 166, Mr. M. R. Jayakar, said: "In the Province as a whole, numerous decisions of the Punjab Courts show that daughters generally succeed to the self-acquired property of their father, even to the exclusion of the nearest agnatlc relations (as, e.g. uncles or nephews), and, even as regards ancestral property, it is now well settled that, more usually, the flfth degree is found to be the remotest customary limit. (See Rattigan's Digest, paragraph 23, clause (i", sub- clause (2), and authorities quoted at p. 84, and following.) This general rule, prevalent in the entire province, appears to have found expression in Section 6 of the Punjab Act II of 1920, which lays down the fifth degree as the limit of collateral relationship able to contest an alienation of ancestral immovable property, on the ground that it is contrary to custom."
18. As against this Mr. Gosain for the collaterals has referred me to 'Mt. Dhan Kaur v. Sunder', 3 Lah 184, a case which I have already discussed and then to 'Muhammad v. Mt. Bakko', 19 Pun Re 1912, which was a case of Pathans of Mianwali District, and it was conceded by the daughters in that case that custom amongst Pathans was that daughters and sisters could only be excluded from inheritance by collaterals who were not more re mote than the sixth degree. In the first place that was on the peculiar custom of that Tahsil and then all that was said was that collaterals beyond the sixth degree would not exclude female heirs. I do not think that much assistance can be derived from this judgment in regard to the point now before me.
19. He next referred to 'Padlu v. Mt. Umrao kaur', AIR 1933 Lah 473, where the Riwaj-i-am of Delhi was relied upon and wherein it was stated that amongst Hindus daughters own no right of inheritance, but it appears that the collaterals there were of a very distant degree. In view of what their Lordships said in 'Mt. Subhani v. Nawab', ILR (1941) Lah 154, I doubt very much if this case can be said to lay down good law.
20. Eills in his book on Customary Law at p. 70 has stated that the general rule is to allow daughters to succeed where there are no male heirs and on p. 72 he has said that there is no definite rule as to what degree of relationship gives the colla-terals a right to exclude the daughter and 'vice versa.' It will be seen therefore that the trend of authority, both judicial and of eminent text book writers, is that the flfth degree is the limit for exclusion of daughters even from ancestral property and that the seventh degree is only rare.
21. The next question to be decided is what is the meaning of the words "near collaterals." I have already referred to 'Bholi v. Man Singh' (sic)6 Pun Re 1908, where at p. 413, flfth degree was held to be the customary limit of nearness. Reliance was there placed on Rattigan's view given in the Customary Law. Their Lordships of the Privy Council also have accepted this to be the limit and now as observed by their Lordships the legislature has accepted that to be the limit: See 'Mt. Subhani v. Nawab', ILR (1941) Lah 154, at p. 166.
22. In 'Kirlu v. Mt. Kishan dei', AIR 1951 Simla 168, a case from Kangra, where the property in dispute was ancestral, Hamam Singh, J., held that collaterals in the fifth degree are not near collaterals.
23. In 'Abdul Karim v. Sahib Jan', 5 Pun Re 1908, at p. 38, the nearness as given by Sir Willam Rattigan was accepted by Lal Chand, J.
24. In 'Jagat Singh v. Puran Singh', 49 Pun L R 366, a case from Ambala, it was held that the collaterals over fifth degree cannot exclude both daughters and sisters and that is the limit of nearness.
25. In view of what I have said above, the onus would be on the sixth degree collaterals and it appears that the learned Additional District Judge did not correctly appreciate the rule in regard to this matter. The respondent submits that because of the entry in Middleton's Riwaj-i-am of 1914 even if the initial onus is on him it should be held to have been shifted. Question No. 49 and the answer to it are as follows :
"Question 49. Under what circumstances are daughters entitled to inherit? Are they excluded by the sons or real male kindreds of the deceased? If they are excluded by the near male kindred, is there any fixed limit of relationship within which such near male kindred must stand towards the deceased in order to exclude his daughter? If so, how Is that limit ascertained? If this depends on descent from a common ancestor state within how many generations relatively to the deceased such common ancestor must come?
Answer : Sons and widows exclude daughters. To this there Is no exception.
All the tribes except the Suds and Mahajana of Palampur Tahsils and Gaddis, Kanets and Gosains admit that daughters even when married succeed when there is no collateral of the deceased upto seven generations. The Suds and Maha-jans of Falampur limit it to five generations, while the Gaddis, Kanets and Gosains do not allow daughters in any case. Nearly all the tribes admit that when there are no sons or widows daughters succeed till they are married and this seems to be the general custom throughout the district. In Jagir villages daughters are not allowed to succeed at all."
This question is of a most complicated and composite character and, is beyond the comprehension of the simple folk who are called upon to answer these questions.
26. I have gone through the instances which are given under question 49 in support of the custom stated. There is no instance which I can find where the custom as stated in the answer can be said to have been clearly brought out. In Tahsil palampur, on the death of Saudagar Ghirth, as there were no collaterals for seven generations, his daughter succeeded. In Tahsil Dehra there are two instances in which the Jagtrdar succeeded in the presence of the daughter.
27. Mr. Gosain then referred to Question No. 10 of 1868 as given in the Customary few of the District of the year 1914 and which is at p. 117 in Middleton's Riwaj-i-am. There it is stated that a married daughter never succeeds. That is a very sweeping statement, but it is there. In the Riwaj-i-am in Urdu, Exhibit P. 14, no limit is placed as to the degree for exclusion of daughters by collaterals. On the other hand, in Lyall's Settlement Report, paragraph 74, limit, for making a gift by a sonless proprietor in cases where he has to ask the consent of his collaterals, is great grandfather. At p. 184, giving the custom in Kangra regarding inheritance Tupper in Volume II of his book says as follows:
"The general feeling seems to be that a daughter or her children can never succeed by simple inheritance to landed estate in preference to kinsmen, however remote. This is what the people say when the question is put to them in a general way; but I have seen them take another view in actual cases, and the history of estates shows that daughters have occasionally been allowed to inherit."
28. It appears that the Riwaj-i-am of the Kangra District has not always been held to be a docu-ment of any great authority. It was so held in 'MT. Chinto v. Thebu', AIR 1935 Lah 985. There, in a dispute between a daughter and the collaterals, the custom as stated In Middleton's Riwaj-i-am was relied upon. The answers, as stated to have been given by persons consulted at the preparation of the Riwaj-i-am, were in favour of the collaterals. The compiler of the Riwaj-i-am under whose supervision the answers were recorded, however, considered that these answers did not state the existing custom correctly, taut were given for ulter or motives. The custom as recorded in the previous Riwaj-i-ams and judicially interpreted was not in favour of the collaterals. It was held that the initial onus of proving correctness of the entry was therefore discharged. Dealing with this Riwaj-i-am, the learned Judge satd at p. 988 :
"In the introduction to the Customary law the Settlement Officer, Mr. Middleton, stated that the volume in question had been drafted by the Extra-Assistant Settlement Officer. Rai Bahadur Arjan Das, and that Mr. Middleton found so little amendment necessary that he wished to record the fact that all credit for the production of the volume was due to the Rai Bahadur alone. The latest edition of the Gazeteer of the Kangra District was also prepared by Rai Bahadur Arjan Das and at p. 143 of the Gazeteer the following remarks occur:
"The custom that governs the succession of daughters as given in the replies of the tribes in the Riwaj-i-am has been dictated by men who are anxious to take others' property and reminds one of the picture in which a man was shown as throwing, down a lion who objected that the case would have been otherwise had the picture been drawn by the lion. All the tribes state there that they make no distinction between ancestral and self-acquired property in connexion with the succession of daughters. This is not only not in accordance with what actually takes place but is at variance with the principle which governs the succession of ancestral property and which cannot by any stretch ot reasoning apply to property acquired by a man. On this question the Courts no longer disagree, and the latest exposition is that self-acquired property goes to the daughter in preference to collaterals.
"It will thus be seen that the compiler of the Riwaj-i-am doubted the correctness of the answers as given by the persons consulted and expressed his views in no uncertain terms that they did not represent the custom as it existed^ but merely declared what they wanted the custom to be in their anxiety 'to take others' property'. As pointed out by a Division Bench ot this Court in 'Narain
Singh Kaur v. Mt. Ba-santkaur',
AIR 1935 Lah 419, the opinion expressed by the Settlement Officer doubting the truth of the custom in the-'riwaj-i-am' is entitled to weight and lessens the burden on those seeking to prove it as not correct."
29. In 'Titru Ram v. Mt. Parsinni', 48 Pun LR 100, at p. 102, Middleton's RiwaJ-i-am was held to be not reliable in regard to question No. 45 where a widow was stated not to have the power to effect a permanent alienation. The main judgment was by Abdul Rashid, J., and Mahajan, J., agreed.
30. Again, in 'Rajinder Chand v. Kishen Ditta', AIR 1949 EP 267, the answer to question 49, in regard to Jagir village, was held not to have been correctly recorded in Middleton's Riwaj-i-am. In this case the main judgment was written by Mahajan, J.
31. In 'Mt. Inder Kiter v. Mt. Pirthepal kuer', AIR 1945 PC 128, there were two inconsistent entries in the Wajib-ul-srzes and it was held by their Lordships of the Privy Council that custom contained therein could not be held to have been proved. In the English record by Middleton, seventh degree is given the utmost limit and in the Vernacular record no limit is given and to view of the fact that this F-iwaj-i-am has been held to be not correctly compiled In regard to several other matters it cannot be said that the onus win be shifted merely by the production of the answers in Question 49 as given in the Riwaj-i-am.
32. I need hardly refer to the observations made by their Lordships of the Privy Council in regard to the compiling of the various records of Customary Law of districts and the note of caution which their Lordships have insisted upon in the case of rights of women in regard to property. I had occasion to refer to this in 'Sukhwant Kaur v. S. Balwant Singh', ATR 1951 Simla 242, where, sitting with Weston, C.J., I had said that the rights of females had not received that protection which they deserved as at the time of compilation of the Riwaj-i-am they. were not consulted. It is unnecessary for me to refer to all the cases which are there referred to except that I may mention 'Khan Beg v. Fateh Kuatoon', 13 Lah 276 at p. 291, and to the observations by their Lordships of the Privy Council in 'Mt. Subhani v. Nawab', ILR 1941 Lah 154, at pp. 168 to 171.
33. I am therefore of the opinion that the mere production of the Riwaj-i-am by sixth degree col-laterals in this case does not discharge the onus, which, as a result of what I have said above, lies upon them. The Riwaj-i-am is against the rights of women. It has been found not to be the correct record of custom on certain points. The compiler himself was not satisfied in regard to its correctness & therefore as was held by Tek Chand, J. in 'Mt. Chinto v. Thebu', AIR 1935 Lah 985, the initial onus cannot be held to have been discharged. I may here remark that in 'Saleh Mohammad Shah v. Zawab Hussain Shah', ILB (1944) Lah 195 (EC), their Lordships relied upon the Biwaj-i-am of the Jhang District in order to determine the rights of the parties as 'prima facie' that was the most accurate and fully considered statement of long standing custom. The same cannot be said of the Customary Law of the Kangra District.
34. I therefore hold: (1) That the general custom in regard to ancestral property is that usually the fifth degree is found to be the customary limit & the seventh degree is rare. (2) In cases where collaterals are more distant than the fifth degree onus lies upon them. (3) Such onus can be discharged by the production of the Riwaj-i-am of the district if it is in favour of the collaterals, but the value to be attached to the Riwaj-i-am varies in accordance with many circumstances and in the present ease the Riwaj-i-am produced is not such a document as would be sufficient to discharge that onus or even to shift the onus. Near collaterals have been rightly defined to be upto fifth degree colla-terals.
35. As the onus has been held not to be discharg ed by the collaterals, the appeal of the daughter must be allowed and the suit of the plaintiffs dis missed. I, therefore, set aside the judgment and decree of the learned District Judge and restore that of Mr. Sham Lal Senior Subordinate Judge dated the 13th of December, 1948, The appellant will have her costs in this Court and in the Courts below.