Mahant Salig Ram vs Musammat Maya Devi

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 118 of 1953

Decision Date: 21 January, 1955

Coram: Natwarlal H. Bhagwati, Syed Jaffer Imam, Das

In the matter of Mahant Salig Ram versus Musammat Maya Devi, decided on 21 January 1955, the Supreme Court of India delivered its judgment. The bench consisted of Justice Natwarlal H Bhagwati, Justice Syed Jaffer Imam and Justice Das, Sudhi Ranjan. The petitioner was Mahant Salig Ram and the respondent was Musammat Maya Devi. The citation for the decision is 1955 AIR 266 and 1955 SCR (5) 1191. The case concerned the law of custom-succession relating to non-ancestral property, specifically the right of a daughter compared with collateral heirs within the fourth degree among Saraswat Brahmins of Pathankot in the Gurdaspur district, as recorded in the Riwaj-i-am of that district for the year 1913. The principal questions were whether the entries in the Riwaj-i-am were reliable evidence of local custom and how the value of that evidence should be assessed. The Court noted that the established principle in Punjab is that a daughter excludes collaterals from succession to the self-acquired property of her father. Accordingly, the initial burden of proof rests on the collaterals to show that a special local custom, which excludes the daughter, overrides the general custom. The Court reaffirmed that while entries in the Riwaj-i-am are initially presumed correct, the strength of the presumption depends on the relationship of the recorded custom to the general custom of the province. When the Riwaj-i-am reflects a custom that aligns with the prevailing agricultural custom, the presumption is strong and only very strong evidence can overturn it. Conversely, if the recorded custom contradicts the general custom, the presumption is weakened and comparatively little evidence may suffice to rebut it. The presumption is further weakened when the Riwaj-i-am adversely affects the rights of females who had no opportunity to be heard before the revenue authorities. The Court explained that a Riwaj-i-am that is reliable, carefully prepared, free of internal contradictions, and not merely a record of the wishes of informants, can be treated as presumptive evidence of a special custom, provided that the daughters fail to rebut it. If, however, the document does not meet those criteria, it has no evidentiary value. Applying this test, the Court found that the Riwaj-i-ams of Gurdaspur district prepared by Mr Kennaway in 1913, insofar as they purported to record the local custom regarding a daughter’s right to succeed to her father’s self-acquired property, were not reliable or trustworthy documents.

The Court observed that the materials recorded in question sixteen and the answer to question seventeen did not provide a correct record of the custom in issue. It held that the appellant, who was a collateral within the fourth degree and a Saraswat Brahmin of Pathankot in the district of Gurdaspur, had failed to discharge the onus that initially rested upon him to show that the respondent, who was the daughter, was excluded by him with respect to the non-ancestral property of her father; consequently, no burden was placed on the daughter to adduce evidence of particular instances. The Court approved the general custom articulated in paragraph twenty-three of Rattigan’s Digest of Customary Law, which states that “a daughter is preferred to collaterals in regard to the self-acquired property of her father.” The Court supported this proposition by referring to a long line of authorities, namely Butta Singh v. Mt. Harnamon (A.I.R. 1946 Lab. 306), Gopal Singh v. Ujagar Singh ([1955] 1 S.C.R. 86), Mst. Subhani v. Nawab (I.L.R. [1940] Lab. 154), Beg v. Allah Ditta ([1916] L.R. 44 I.A. 89), Mt. Vaishno Ditti v. Mt. Rameshri ([1928] I.L.R. 10 Lab. 186; L.R. 55 I.A. 407), Khan Beg v. Mt. Fateh Khatun ([1931] I.L.R. 13 Lab. 276), Jagat Singh v. Mst. Jiwan (A.I.R. 1935 Lab. 617), Qamar-ud-din v. Mt. Fateh Bano ([1943] I.L.R. 26 Lab. 110), Mohammad Khalil v. Mohammad Bakhsh (A.I.R. 1949 E.P. 252), Gurdit Singh v. Mt. Malan ([1924] I.L.R. 5 Lab. 364), Kesar Singh v. Achhar Singh (A.I.R. 1936 Lab. 68), Bawa Singh v. Mt. Partap (A.I.R. 1935 Lab. 288), Kesar Singh v. Gurnam Singh (A.I.R. 1935 Lab. 696), Najju v. Mt. Aimna Bibi (A.I.R. 1936 Lab. 493), Gurdit Singh v. Mt. Man Kaur (A.I.R. 1937 Lab. 90), Labh v. Mt. Fateh Bibi (A.I.R. 1910 Lab. 436), Ramzan Shah v. Sohna Shah ([1889] 24 P.R. 191), Nanak Chand v. Basheshar Nath ([1908] 43 P.R. 15) and Mt. Massan v. Sawan Mal (A.I.R. 1935 Lab. 453). The matter concerned Civil Appeal No. 118 of 1953, an appeal from the judgment and decree dated 28 July 1949 of the High Court of Judicature for the State of Punjab at Simla in Civil Regular First Appeal No. 365 of 1946, which arose out of the decree dated 31 October 1946 of the Sub-Judge, First Class, Pathankot in Suit No. 110 of 1945. Counsel for the appellant was Rajinder Narain and counsel for the respondent was K. L. Gosain. The judgment of the Court was delivered by Das J. This appeal was filed by the plaintiff in a suit seeking a declaration of his title as a collateral within four degrees of Gurdial, who was a Saraswat Brahmin residing in Pathankot, district of Gurdaspur, and who was the last male holder of the lands in dispute. Gurdial had died many years earlier, leaving lands in the villages of Bhadroya, Kingarian and Pathankot, Tehsil Pathankot, district of Gurdaspur, and surviving his widow Musammat Melo and his daughter Musammat Maya Devi, who appeared as the respondent before the Court. Some time in the year 1926, a

In the present dispute, a portion of land situated in the village of Bhadroya was taken for the construction of the Kangra Valley Railway, and a compensation sum of Rs 1,539-7-0 was awarded to Musammat Melo. The appellant objected to this award, and consequently the amount was lodged with the Court of the Senior Subordinate Judge at Gurdaspur, together with an order that interest on the sum be paid to Musammat Melo. Musammat Melo died on 28 September 1944, and the Revenue Courts subsequently effected mutations of the lands in the three villages—Bhadroya, Kingarian and Pathankot—in favour of the respondent, identified as the daughter of the late Gurdial. On 10 March 1945 the appellant instituted the suit that is the subject of this appeal, seeking a declaration that he was entitled to both the lands described in the plaint and the compensation sum of Rs 1,539-7-0, asserting that under the custom applicable to the parties the collaterals of the last male holder were excluded from succession in favour of the daughter. The respondent challenged the suit on five principal grounds: (i) that a suit seeking only a declaration of right was not maintainable; (ii) that the parties were governed by Hindu law rather than by any customary rule; (iii) that the appellant was not a collateral of Gurdial; (iv) that the properties in dispute were not ancestral; and (v) that no custom existed under which collaterals up to the fourth degree could be barred from inheriting either ancestral or self-acquired property of the last male holder. The Subordinate Judge delivered his judgment on 31 October 1946, holding that the suit for a declaration of title to the lands was maintainable because the lands were in possession of tenants, but that the suit for the declaration of entitlement to the compensation sum was not maintainable under the provisions of the Indian Succession Act relating to succession certificates. He further found that the parties were indeed governed by custom rather than by Hindu law, that the appellant was a collateral of Gurdial within four degrees, that the land recorded in Khata No 2 of the village of Kingarian was ancestral while the remaining lands were not ancestral, and that a custom existed—citing the authority of Buta Singh v. M Harnamon, AIR 1946 Lah 306—according to which a daughter was excluded from inheritance by collaterals up to the fourth degree with respect to both ancestral and self-acquired property of the last male holder. Accordingly, the Subordinate Judge decreed the suit only with respect to the lands, ordering each party to bear its own costs. The respondent appealed this judgment and decree to the Lahore High Court, and the appellant entered cross-objections against the order on costs and against the finding that the lands in the three villages, except the land in Khata No 2 of Kingarian, were non-ancestral. Following the partition of India, the appeal was transferred to the High Court of East Punjab, which, by its judgment dated 28 July, allowed the appeal, dismissed the cross-objections, and affirmed that (i) the suit for a declaration of title to the lands was maintainable because all the lands were in tenant possession; (ii) the lands, except the one in Khata No 2 of Kingarian, were non-ancestral; and (iii) the custom prevailing in the Gurdaspur district permitted a daughter to succeed to non-ancestral property in preference to collaterals even when they were within the fourth degree. The High Court therefore modified the Subordinate Judge’s decree so that the declaration in favour of the appellant was limited to the ancestral land in Khata No 2 of Kingarian, and ordered the parties to bear their own costs. On an application made by the appellant on 26 August 1949, the High Court, by an order dated 5 June 1950, granted him a certificate of fitness to appeal to the Federal Court.

In 1949 the East Punjab High Court allowed the appeal and dismissed the cross-objections, reaching three principal findings. First, it held that the suit for declaration of title to the lands was maintainable because all the lands in suit were possessed by tenants. Second, it found that, with the exception of the land recorded in Khata No. 2 of village Kingarian, all other lands in suit were non-ancestral. Third, it concluded that under the custom prevailing in the Gurdaspur district a daughter was entitled to succeed to non-ancestral property in preference to collaterals even when those collaterals were within the fourth degree. Accordingly, the High Court modified the decree of the Subordinate Judge so that the declaration in favour of the appellant applied solely to the land in Khata No. 2 of village Kingarian, which it deemed ancestral. On 26 August 1949 the appellant filed an application, and by an order dated 5 June 1950 the High Court granted him a certificate of fitness to appeal to the Federal Court. After the Constitution of India came into force, the appeal reached the Supreme Court for final disposal. The first question that arose before the Court, though it was not pressed aggressively, concerned whether the lands in suit other than the parcel in Khata No. 2 of village Kingarian were ancestral or self-acquired. No material on the record was brought to the Court’s attention that would justify adopting a view different from that already expressed by the lower courts. Consequently, the Court found that the appellant’s contention on that point lacked any force or substantive basis. The principal issue before the Court was whether a custom existed in the Gurdaspur district that, for parties in this case, excluded a daughter of the last male holder from succeeding to his self-acquired property when a collateral within the fourth degree was present. The customary rights of succession of daughters vis-à-vis the collaterals of the father with reference to both ancestral and non-ancestral lands are set out in paragraph 23 of Rattigan’s Digest of Customary Law. Subparagraph (2) of that paragraph unequivocally states 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 unquestioned authority in the Punjab, and its correctness was not disputed by this Court in Gopal Singh v. Ujagar Singh. The general custom of the Punjab, therefore, is that a daughter excludes the collaterals from succession to the self-acquired property of her father. Hence, the initial onus, as a matter of principle, rested on the collaterals to demonstrate that the general custom favouring the daughter’s succession had been overridden by a special local custom that excluded the daughter. If such a special local custom were proven, it would be binding on the parties involved in the dispute. Indeed, the Judicial Committee had affirmed this principle in the case of Mst. Subhani v. Nawab.

In the present case the matter has become settled law, and the appellant asserted that he had satisfied the initial burden of proof in two distinct manners. First, he produced the Riwaj-i-am of the Gurdaspur district that had been prepared by Mr Kennaway in the year 1913. Second, he offered evidence indicating that the collaterals of a certain Harnam Singh—who was a Sarswat Brahmin residing in the Gurdaspur district and a member of the same family as Gurdial—had succeeded to his estate ahead of his daughter. It was noted that the respondent had failed to produce any instance showing that the daughter had excluded the collaterals from inheriting the self-acquired property of her father. Both the trial Court, as reported in [1955] 1 S.C R. 86 and I.L.R. [1940] Lah. 154, and the High Court held that the evidence concerning the succession to Harnam Singh’s property did not aid the appellant. The reasons were that the evidence was extremely sketchy, it did not disclose whether the properties left by Harnam Singh were ancestral or self-acquired, and it was unclear whether those properties possessed any substantial value that would have motivated a daughter to claim them in addition to any gifts received from her father during his lifetime. Moreover, the fact that the daughter did not contest the collaterals’ succession—whether the properties were self-acquired or not—could plausibly have resulted from a private family arrangement, as the High Court observed. The Supreme Court agreed with the lower courts that the instance relied upon by the appellant was wholly insufficient to discharge the burden of disproving the general custom recorded in paragraph 23(2) of Rattigan’s Digest of Customary Law. The appellant further contended that he had fully discharged his burden by introducing the 1913 Riwaj-i-am, which recorded the custom of the Gurdaspur district, and he referred to earlier Riwaj-i-ams prepared in 1865 and 1893. The answer to question 16 in the 1913 Riwaj-i-am, subject to certain exceptions that were not material to the present enquiry, stated that the general rule was the exclusion of daughters by the widow and the male kindred of the deceased, however remote they might be. This formulation went beyond the answers given in the 1865 and 1893 Riwaj-i-ams, where the exclusion in favour of the male kindred was limited to certain specified degrees. Similarly, the answer to question 17 in the 1913 Riwaj-i-am, like those in the earlier editions, made clear that, except among the Gujjars of Shakargarh tehsil, all other tribes consulted by the revenue authorities recognised no distinction regarding the daughters’ right to inherit either (i) immovable or ancestral property or (ii) movable or self-acquired property.

It was submitted that the answers recorded in the Riwaj-i-am concerning inheritance of self-acquired property of fathers effectively displaced the prevailing custom and placed upon the respondent the burden of disproving the presumption created by those answers. To support this submission, the appellant relied on the observations of the Privy Council in Beg v. Allah Ditta, which held that statements contained in a Riwaj-i-am constitute strong evidence of the custom recorded therein, subject only to rebuttal. The appellant also cited the Privy Council’s remarks in Mt. Vaishno Ditti v. Mt. Rameshri, indicating that the statements in a Riwaj-i-am may be accepted even when not supported by specific instances. Accordingly, the appellant argued that once the Riwaj-i-am of the Gurdaspur district was produced, the onus shifted to the respondent to produce instances that contradicted the statements therein, and that the respondent had failed to meet that burden.

The Court acknowledged that the entries in a Riwaj-i-am are valuable and that they enjoy an initial presumption of correctness, regardless of whether the recorded custom aligns with the general customary law. However, the Court noted that the amount of evidence required to rebut that presumption varies with the circumstances of each case. When a Riwaj-i-am records a custom that coincides with the general agricultural customs of the province, very strong proof is needed to overturn the presumption. Conversely, if the recorded custom opposes the generally prevailing custom, the presumption is considerably weakened. Moreover, when the Riwaj-i-am adversely affects the rights of females who had no opportunity to appear before the Revenue authorities, the presumption is further weakened and only a few contrary instances may be sufficient to rebut it. The Court cited authorities such as Khan Beg v. Mt., Fateh Khatun, and Jagat Singh v. Mst. Jiwan, which were endorsed by the Judicial Committee in Mst. Subhani’s case. The appellant’s counsel contended that even a weak presumption would require the respondent to cite at least one instance of a daughter being excluded from succession to her father’s self-acquired property, and that the respondent had failed to do so. The Court observed, however, that for the appellant to displace the general custom recorded in Rattigan’s work and shift the burden to the respondent, the appellant must first produce a Riwaj-i-am that is reliable and trustworthy.

The Court observed that the decision in Qamar-ud-Din v. Mt. Fateh Bano (3) established that a Riwaj-i-am will be treated as presumptive evidence only when it satisfies conditions of reliability and trustworthiness. The document must have been carefully prepared and must not contain contradictory statements of custom within its four corners. The Settlement Officer must also be of the opinion that the record does not simply capture the wishes of persons appearing before him about how the custom should be. When these criteria are satisfied, the Riwaj-i-am becomes evidence of the custom that has been set up, and if the daughters do not rebut it, the result will be favorable to the collaterals. Conversely, if the document fails to meet the foregoing requirements, it will have no value as a presumptive piece of evidence. The Court indicated that this principle was applied by the East Punjab High Court in the case of Mohammad Khalil v. Mohammad Bakhsh (4). (1) [1931] I.L.R. 13, Lah. 276, 296, 297. (2) A.I.R. 1935 Lah. 617. (3) [1943] I.L.R. 26 Lah. 110. (4) A.I.R. 1949 E.P. 252. The Court set out to scrutinise the Riwaj-i-ams of the Gurdaspur district that claim to record the local custom concerning daughters’ succession to self-acquired property. Various tribes, including Brahmins, had been consulted by Mr. Kennaway, who compiled the Riwaj-i-am of 1913. In paragraph four of the Preface, Mr. Kennaway admitted that many questions dealt with matters on which no actual custom existed. He further stated that informants had merely expressed how the custom ought to be, not how it actually was. Appendix ‘C’ lists fifty-six instances, called mutations, in which a daughter inherited property. Among the fifty-six instances, only four relate specifically to Brahmins; these are the sole Brahmin cases in the appendix. The Court observed that the answer for question sixteen in the 1913 Riwaj-i-am has been challenged in several decisions. It has been shown to be incorrect in three cases: Gurdit Singh v. Mt. Malan (1), Kesar Singh v. Achhar Singh (1) and Buta Singh v. Mt. Harnamon (3). Furthermore, the Court noted that the response to question sixteen in the 1913 compilation went beyond the answer given to the same question in the earlier Riwaj-i-ams of 1865 and 1893. Regarding question seventeen, the 1913 Riwaj-i-am states that no distinction should be drawn between ancestral and self-acquired property. The Court found that this statement has not been accepted as correct in several reported cases at all. Six decisions have rejected it, namely Bawa Singh v. Mt. Partap (4), Jagat Singh v. Mt. Jiwan (5), Kesar Singh v. Gurnam Singh (1) and Najju v. Mt. Aimna Bibi (7). Further judgments rejecting the same statement include Gurdit Singh v. Mt. Man Kaur (8) and Labh v. Mt. Fateh Bibi (9). The Court concluded that statements in a Riwaj-i-am whose truth is doubted by the compiler in the Preface cannot be regarded as reliable. The Court further held that when those statements are contradicted by the instances collected in Appendix ‘C’ and have been discredited in judicial proceedings, they cannot be considered trustworthy.

The Court observed that the document could not be regarded as reliable or trustworthy, and therefore it could not displace the initial presumption of the general custom recorded in Rattigan’s book so as to shift the burden of proof to the daughter who was the respondent. The appellant relied on the decisions in Ramzan Shah v. Sohna Shah("), Nanak Chand v. Basheshar Nath(11), Mt. Massan v. Sawan Mal("'), and Kesar Singh v. (1) [1924] I.L.R. 5 Lah. 364.(2) A.I.R. 1936 Lah. 68. (3) A.I.R. 1946 Lah. 306.(4) A.I.R. 1935 Lah. 288. (5) Ibid, 617. (6) Ibid, 696. (7) A.I.R. 1936 Lah. 493.(8) A.I.R. 1937 Lah. 90. (9) A.I.R. 1940 Lah. 436.(10) [1889] 24 P.R, 191. (11) [1908] 43 P.R. 15. (12) A.I.R. 1935 Lah. 453, Achhar Singh(1). The Court noted that the first three authorities offered no assistance to the appellant; although the second and third involved Brahmins of Gurdaspur, the properties in those disputes were ancestral, and the respondent did not contest the appellant’s right to succeed to her father’s ancestral property. Consequently, those cases did not illuminate the present question, which concerned succession to self-acquired property. The Court further explained that in the last cited case the collaterals were beyond the fourth degree, and the court had merely observed that, irrespective of whether the property was ancestral or self-acquired, the collaterals could not succeed; moreover, the earlier decisions had not been cited or considered in that case. The Court concluded that the appellant had failed to discharge the onus initially placed upon him, and because that burden remained unmet, no burden shifted to the respondent, who therefore needed not adduce evidence of particular instances. In these circumstances, the Court held that the general custom recorded in Rattigan’s book must prevail and that the decision of the High Court should be affirmed. Accordingly, the Court dismissed the appeal with costs and ordered the appeal to be dismissed.