Mahant Salig Ram v. Musammat Maya Devi.

D~s J.-This is an itppeal by the pl~intiff i~.· a 'd~it for a declaration of his title as collateral within four degrees of Gurdial, who . was a Sarswat. Brah'.mi~, resi­ dent of Pathankot. in the ' distriGt of 'Gurdlspu~ .~nd the last male holder of tl1e .properties in suit. . ·. · · · · Gurdial died many years ago lea;ing. ce~tain' 'lands in villages Bhadroya, · Kingarian • and Pathankot, Tehsil. Pathankot . in the district of . · Gurdaspur, .. and le'aving him surviving his widow· Musammat ·Melo an9 a daughter Musammat Maya Devi,. the . respond!;nt before us ... So111e time in the year 1926, a . portiop. of the land in village Bhadroya was . acquired for ... the Kangra. Valley· Railway and a sum of Rs; l,539-7-0 was awarded to Musammat Melo. On an objection py the appellant this .amount .was deposited in. the Court of the Senior Subordtnate Judge, Gurdaspur, with :l' direction to pay the interest on this amount to Musammat Melo, · On the 28th September 1944 Musammat Melo died and the . ·Revenue Courts ordered mutations in· respect of the lands in the three villages in favour of the respondent .as the daughter of Gurdial. On the 10th March 1945 the appeliani: filed· the• s~!t out of which this ·appeal· arises against the respondent for a declaration ·that he wa's entitled . to the , lands mentioned . in the plaint as well as to . the sum of 1955 Mahant Salig Ram ·v. Muslltnmat M'!)la · , Devi: ,,1 '·. 1955 Mahant---Salig Ram v. Mwammat Maya D6vi Das J. 1194 SUPREME COURT REPORTS [ 1.955] Rs. ,1,539-7;0. in preference to 1the respondent under' the Y ., custom governing the parties whereunder· . the · colla' t~~als ,of ,the last male j:iolder excluded fhe daughter .. , . T~e)·,espondent contes.ted.: th'.e suit '·,mainly on, the gr9~nd.~~- . ,':1 . · · . ·, , . - · i, ,. (i). that the 'suit '.tor ~.· iPere' . declaration was ,n?t maintairiable,. · . . . . 1 • , • •'\- , · (iif,t,hat, the . parties ~~~e governed , by Hindu · ' Law and not by custom, ~ (iii) that the appellant was not a collateral of Gwc)ial.,at all, . . . .. , . .. _ · (iv) ·that the properties in sui\ .were not an.cestr~I, and · (v) that there was '.no· ·custom · whereunder · the collaterals of the father who was the last tnak holder excluded the . daughter from succession to the , self- acq\li~e;f pr~perty .'of, her fath~r. ' . ' ' ' . . . '.fhe .. ~l!bqrdinate Judge in his judgment pron0ttnceq Ol)- 'fhe ~l~t ,9c\obef 1946 h~ld~ . . . .: , · 1 · . (i) that the !,ands, in. , suit being_ in. po~session o~ tenants, the suit .for a declaration of title thereto was riiiinfainable but the ' suit' for . a: declaration iii respect of 'the' "siiih of Rs .. 1,539-7-0 was not ·maintainable in' v\~w of:UJ.e pr~visions of the Indian Succession Act rdating to succession'· certificates, · ' '(ii)'that 'the parties were governed by custom atld not by Hindu Law, · . . .'. (iii)'tha~ 'the 'appellant. ·was. a. collateral of 'Gur­ dlal within four degrees, ' . . ' . . ' '' (iy) 'that the land in Khata' No.' 2 of die' village Kihgarian Was ancestral while the ' rest' of the· lands ill: si.iit 'Were 1 ·n:ofl-·allcestral, ·a~d ·' .,, ·'' i, ' (v)"that there was a custom according "to which,' a daughter was excluded from inheritance by the collaterals · up to the fourth degree ·, •with respect to ahC!!St,ral "as weU •as self-acquired ·. property i:Jf the last male holder as laid down' in the ·case ·of Buta Si11gh v: Mt. Harnamon('). · · · · · '· In .. the result, the, Subordinate Judge / decreed . the• suit in:-respe<;t only'.'of.. tile_ lands, iri sujt and order.ed. the parties to: beat. their ,own costs. . ... , . · .. 1 ·!-(I):·A.I.ll.' 1946 Lah. 306. - - .. - S.C.R. SUPREME COURT REPORTS 1195 · Against this judgment and decree the · respondent preferred an appeal to the Lahore High Court. The appellant preferred cross-objections against the .: order. as to costs and against the finding that the· lands" 'in the three villages except the land in Khata' No., 2, of village Kingarian were non-ancestral. After . the . parti-: -. . ~: tion of India the . appeal was transferred . to the . High ' ~ , Court of East Punjab. · . . · , · · · · " : • By its judgment dated the 28th July 1949· the <East' Punjab· High Court allowed the appeal and · dismissed the cross"objections ·on the following findings:- ·.. '1 • (i) that the suit' for .: declaration of titl~ to· tn~· lands was maintainable as all the lands 'in suit wer~' in the possession of tenants, · · · · · · (i:i) that, the lands iri suit except the· land in Khata No. 2 of village Kingarian were non~ance~trai; and · , ·(iii) that according to the ·custom' prevaiiing iri the Gurdaspui: district a daughter was entitled to. s:iJo · ceed to non-ancestral property iri preference to · col-· laterals even ' though ' they were within the fourth degree. · · · ' ' ' · " 'r The, .High Court accordingly, modified the decree 'of the· Subordinate Judge . to the extent. th.at the. decla~: ration . in the appellant'.s favour was ·made. to .. relate only to the land in. Khata No. 2 of village Kingarian which was held to be ancestral. Qn an applica_tion: made by the appellant on the 26th August 1949 ~he. High Court, by its order dated the . 5th June 1950, granted him a certificate of fitness to appeal. ' . to ' the Federal Court. After the commencement of 'the Con­ stittiti<?n · of India the ;ippea~ has. cope before this ' Court for final disposal.· · The firs~ question rai.sed before us . but ·not . v.ery t: seriously pressed is as to whether the : lands in .sui,t. other than those in Khata No. 2 in village, _Kingarial). · were ancestral or self-acquired. Our , attentiop. , JJ.as · not been drawn to any material. on tht; recon;l which. induces us .to take a view ' different from the view eon~ J.i currently taken by the . Courts ·_below. We, _therefore, see n.o force or· substance in this contention. 1955 Mahant ·Sa/ig /Wm v. Musammat Maya ·. Devi · Das Ji 1955 Mahant Salig Ram v. Musammat Mqya :..,, Devi Das J. .; 1196 SUPREME COURT REPORTS ( 1955] , - The main fight before us has been on the question as' to 'whether there ·is a_ custom in the Gurdaspur district governing' the parties under which a collateral within the fourth degree excludes the daughter of' the hist, male holder from succession to the -~elf-acquired p'roperty _ of her father. The customary --rights - of' suc­ ce_ssjcin of daughters as against the collaterals· -of 'the father with reference to a·ncestral and non:ancestra:l lands are stated in paragraph 23 of Rattigan's Dige~t of Customary Law. It is categorically stated in· sub­ paragraph (2) of that paragraph that the daughter succeeds to the self-acquired property of the father in_ preference to the collaterals even though they are within -the fourth degree. Rattigan's work has been. accepted by the Privy Council_ as "a book _ of _ U!).­ questioned authority in the Punjab". Indeed, the correctness of this paragraph was not disputed before this Court in Copa/ Singh v. Ujagar Singh('). The general custom of the Punjab being that a daughter excludes the collaterals from succession to the self­ acquired property of her father the initial onus, there­ fore, must, on principle, be on the collaterals to show_ that the general custom in favour of the daughter's succession to the self-acquired property of her father has been varied by a special local custom excluding the daughter which is binding on the parties. In­ deed, it -has been so held by the Judicial Committee in T:rfst.: Subhani v. Nawab( 2 ) and the matter is now We\1-se,ttled. The appellant claims to have discharged this -initial­ onus in two ways, namely (1) by producing the Riwaj­ i-am of the - Gurdaspur district prepared by Mr: Kennaway in 19i3 and (2) by adducing evidenc~ showing that the collaterals of one Harnam _ Singh, who was also a Sarswat Brahmin of the Gurdaspur district and indeed a member of this· very family of Gurdial succeeded in -preference to his daughter. It is pointe9 out that no instance has been · proved on the part of the respondent showing that the daughter ever excluded the collaterals from succession to the· self-acquired property of the father. The trial ·Court (1j [1 9551 1 s.c.R. se. (2) LL.R. [1940) Lah. 154. 'r ., - - - . S.C.R. SUPREME COURT REPORTS 1197 as well as the High Court took the view that the evi~ dence as to the succession to the property- of Harnam Singh was of no assistance to the appellant for the reason that the evidence was extremely sketchy; that it did not appear whether the properties left by Har­ nam Singh were ancestral or self~acquired or whether " the .. properties left by him were of any substantial , .._._._,, value at all as would have made it worth while for the daughter to claim the same in addition to the properties gifted to her by her father during his life­ time: Further, the. fact that the daughter · did .not contest the suq.:ession of the collaterals to the pro-· perties left by fiqfllaIU Singh, eyen if they were ·self­ acquired, might ·well have been the result, as held by the High Court, of sorrie family arrangement. We find . ourselves in agreement · with the Courts below that · the instance relied upon by the appellant is wholly insufficient to discharge the onus that was on him to displace the general custom recorded in para­ graph 23(2) of Rattigan's Digest of Customary Law. ( The appellant contends that in any case he has fully discharged the onus that was on him by produc­ ing in evidence the Riwaj-i-am · recording the. custom of the district of Gurdaspur which was ·compiled by Mr. Kennaway in 1913. Reference is also . made to the earlier Riwaj-i-ams of the Gurdaspur District pre­ pared iri 1865 and 1893. Answer to question 16. as recorded in the Riwaj-i-am of 1913 shows that subject to certain exceptions, which are not material for our purpose, the general rule is that the· daughters are excluded by the widow and 1llale kindred of the de­ ceased, however remote. This answer goes ·much beyond the answers to the same question as recorded in the Riwaj-i-ams of 1865 and 1893 for those. answers limit the exclusion in favour of the male kindred up to certain specified degrees. The answer to question 17 of the 1913 Riwaj-i-am like those to question 17 of the 1865 and 1893 Riwaj-i-ams clearly- indi<;:ates . that except amongst the Gujjars of the Shakargarh tehsil all the remaining tribes consulted by the Revenue authorities recognised no distinction as to the rights of the daughters to inherit (i) the immovable or 1955 ... Mahant Salig Ram "'.'· •. Musamrnat Maya Devi -.· Das J. ig55 Mdiiant· Salig' Ra'Ji v,' '' MuSam1nat Maya DeVi1 iJ/u J.' SUPREME COURT REPORTS [1955] antestral and (ii) the niovable or sdf acquired property of' their' respective fathers.. It is claimed that these answers _quite ': a~equatdy displace the general custom and' shif\ the onus to the . respondent to disprove the ptesrtmption arising on these Riwaj-i-ams by citing instan:2es of succession- contrary · to these answers. In stlj'lpOrt' °c:if this· contention" reference is made to the observations· . of the Privy Conncil in Beg v. Allah Di'tta(1 ) 'that· ··the statements contained in a · Riwaj-i­ ani. <£oi-ih a sttbng piece of evidence iff support of the c'uston\. "therein: entered · subject to rebuttal. Reliance is also .-placed on the ·observations of the Privy Coun­ cil'·in ·Mt. VaishnlY Ditti y. Mt. Rameshri(2 ) "to the effect· that · 'the · statements · in the Riwaj-i-am might· be accepted' even if unsupported by instances. The con­ terttioii is that on production by the appellant of the Riwaj-icain ·of the · Gurdaspur district the onus shifted to ·the ·respondent 'to prove instances rebutting the statements contained therein. This, it is urged, the respohdent has failed to do. · :.There is n'o doubt or disp~te :is to the value of the. entries . in the . Riwaj-i-am. It is well-settled that tl}ough' they are entitled to an initial presumption . in favour "of their correctness irrespective of the ques­ tion whether or not the ' custom, as recorded, is in accord with the general custom, .the' quantum of evi­ dence necessary to rebut that presumption will, how­ ever; vary ~ith_ the facts and . circumstances of each case. Where, for· instance, the Riwaj-i-am lavs down a ~ust~ni in . consonance with the general agricultural cust9m of ·the province, very strong proof would be required to displace that presumption; · but where, on the oiher hand, the custom" as recorded in the Riwaj­ i-a'.~ , {s'. oppo;ed to the custom g'eneraliy preval~nt,. the'.presumption will be ,considerably weal<ened. Like­ wise .where the Riwajci-am . affects adversely the rights of . the femal~s who had no opportunity whatever of ~ppearing before the Revenue authodties, · _t~e pre­ sufI1ptio11 will be weaker still and only a fe.w mstances would be .sufficient to rebut it. [See Khan Beg v.' Mt. (i) (1916].i...R. 44.i. A. 89. (2) [tg~S] i.L.R. to Lah. 186; L.R. 55 I.A. 407. y ...... .. - ) - } ( S.C.R. SUPREME COURT REPORTS 1199 Fateh Khatun(1 ), Jagat Singh v. Mst. Jiwan( 2 ) ]. The principles laid down in these cases were approved of by the Judicial Committee in Mst. Subhani's case supra. Learned counsel appearing for the appellant con­ tends that even if the presumption as to the correct­ ness of the Riwaj-i-am be weak, the respondent has not cited a single instance of a daughter having ex­ cluded the collaterals from succession to the self­ acquired property of her father and has, therefore, failed to discharge the onus that was thrown on her as a result of the production-by the appellant of the Riwaj­ i-am of 1913 and, consequently, the appellant must succeed. This argument overlooks the fact that m order to enable the appellant to displace the general custom recorded in Rattigan's work and to shift the onus to the respondent the appellant must produce a Riwaj-i-am which is a reliable and trustworthy document. It has been held in Qamar-ud-Din v. Mt. Fateh Bano( 3 ) that if the Riwaj-i-am produced is a reliable and a trustworthy document, has been care­ fully prepared and does not contain within its four corners contradictory statements of custom and m the opinion of the Settlement Officer is not a record of the wishes of the presons appearing before him as to what the custom should be, it would be a presump­ tive piece of evidence in proof of the special custom set up, which if left unrebutted by the daughters would lead to a result favourable to the collaterals. If, on the other hand, it is not a document of the kind indicated above then such a Riwaj-i-am will have no value at all as a presumptive piece of evidence. This principle has been followed by the East Punjab High Court in the later case of Mohammad Khalil v. Moham­ mad Bakhsh( 4 ), This being the position in law, we have to scrutinise and ascertain whether the Riwaj­ i-ams of the Gurdaspur district in so far as they pur­ port to record the local custom as to the right of succession of daughters to the self acquired proper­ ties of their respective father are reliable and trust­ worthy documents. (1) [1931] l.L.R. 13 Lah. 276, 296, 297. (2) A.LR. t935 Lah. 617. (3) [1943] l.L.R. 26 Lah. 110. (4) A.LR. '949 E.P. 252. 1 955 Mahant Salig Ram v. Musammat Maya Deui Das]. 1955 Mahant Salig Ram v. Musammat Maya Devi Da> ], Twenty-two tribes including Brahmins were consult­ ed by Mr. Kennaway who prepared ' the Riwaj-i-am of 1913. In paragraph 4 of the Preface Mr. Kennaway himself states that many of the questions related to matters on which there really existed no custom and the people had merely stated what the custom should be and not what it actually was. In Appen­ dix 'C' are collected 56 instances of mutuations rn which the daughter inherited. In these there are four instances relating to Brahmins. Answer to ques­ tion 16, as recorded in this Riwaj-i-am, has been dis­ credited and shown to be incorrect in at least three cases, namely, Gurdit Singh v. Mt. Malan('), Kesar Singh v. Achhar Singh(') and Buta Singh v. Mt. Har­ namon ( 3 ) • The answer to question 16 as recorded in the 1913 Riwaj-i-am, it was pointed ont, went much beyond the answer given to the same question in the Riwaj-i-ams of 1865 and 1893. The answer to question 17 of the 1913 Riwaj-i-am that no distinction is to be made between ancestral and self-acquired property has not been accepted as correct in not less than six cases, namely, Bawa Singh v. Mt. Partap( 4 ), fagat Singh v. Mt. fiwan( '), Kesar Singh v. Gurnam Singh( 0 ), Najju v. Mt. Aimma Bibi('), Gurdit Singh v. Mt. Man Kaur('), and Labh v. Mt. Fateh Bibi('). The statements in a Riwaj-i-am the truth of which is doubted by the compiler himself in the preface and which stand contradicted by the in­ stances collected and set out in Appendix 'C' of the same Riwaj-i-am and which have been discredited in judicial proceedings and held to be incorrect cannot, in our opinion, be regarded as a reliable or trustworthy document and cannot displace the initial presumption of the general custom recorded in Rattigan' s book so as to shift the onus to the daughter who is the res­ pondent. The appellant relies on the cases of Ramzan Shah v. Sohna Shah( 10 ), Nanak Chand v. Basheshar Nath( 11 ), Mt. Massan v. Sawan Mal (,.) and Kesar Singh v. (I) [r924] LL.R. 5 Lah. 364. (3) A.LR. 1946. Lah. 306. (5) Ibid. 617. (7) A.LR. r936 Lah. 493· (9) A.LR. 1940 Lah. 436. (n) 1908] 43 P.R. I5. (2) A.LR. 1936 Lah. 68. (4) A.LR. 1935 Lah. 288. r6) Ibid. 696. (8) A.LR. 1937 Lah. 90. (IO) [I889] 24 P.R. '9'· (r2) A.LR. '935 Lah. 453· J· r - ) t - ~ I - ( S.C.R. SUPREME COURT REPORTS 1201 Achhar Singh(1), The first three cases are of no assist­ ance to him although the second and third relate to Brahmins of Gurdaspur, for the properties in dispute in those cases were ancestral and the respondent does not now dispute the appellant's right to succeed to her father's ancestral properties. These cases, there­ fore, do not throw any light on the present case which is concerned with the question of succession to self­ acquired property. Further, in the last case, the collaterals were beyond the fourth degree and it was enough for the Court to say that irrespective of whe­ ther the properties in dispute were ancestral or self­ acquired the collaterals in that case could not succeed. It is also to be noted that the earlier decisions were not cited or considered in that case. In our opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances. In these circumstances, the general custom recorded in Rattigan's book must prevail and the decision of the High Court must be up­ held. We accordingly dismiss this appeal with costs. Appeal dismissed. NANAK CHAND fl. THE STATE OF PUNJAB. [S. R. DAs, BHAGWATI and SYED JAFER IMAM JJ.] Indian Penal Code (Act XLV of 1860), s. 34---Merely explana­ tory-No offence created thereby-Ss. 34 and 149 of the Indian Penal Code-Distinction between the two-Code of Criminal Procedure (Act V of 1898), s. 233-Charge under s. 302 1·ead with s. 149, Indian Penal Code-No speci'fic charge under s. 302, Indian Penal Code as required by s. 233 of the Code of Criminal Procedure-Conviction under s. 302-Legality thereof. Section 34 of the Indian Penal Code is merely explanatory. It does not create any specific offence. Under this section several per­ sons must be actuated by a common intention and when in further­ (1) A.LR. 1936 Lah. 68. 1955 Mahant Salig Ram v. Musammal Ml!)'a Devi Das]. 1955 January 25