Ujagar Singh vs Mst. Jeo
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: supreme-court
Case Number: Civil Appeal No. 296 of 1955
Decision Date: 23 April, 1959
Coram: A.K. Sarkar, Syed Jaffer Imam
In this case the matter was decided on 23 April 1959 by a bench composed of Justice A K Sarkar, who authored the judgment, and Justice Syed Jaffer Imam. The appeal, cited as 1959 AIR 1041 and 1959 SCR Supl. (2) 781, concerned a petition filed by Ujagar Singh against his sister, Mst. Jeo. The case was recorded under the citation 1961 SC 1374 (2) and has been referenced subsequently in several reports, including 1964 SC 1821 (8), 1973 SC 1134 (4), 1989 SC 1359 (19), and 1991 SC 1654 (15). The legal issue involved the proof of a customary rule among Jat agriculturists of the Punjab that gave a sister preferential inheritance rights over a collateral in respect of her brother’s self‑acquired property, with reference to section 57(1) of the Indian Evidence Act, 1872.
The court noted that the principal question on appeal was whether, under Punjab customary law, a sister could be a preferential heir to her brother’s self‑acquired property, outweighing the claim of a collateral of the eighth degree. The respondent, the sister, pleaded a “special custom” that allegedly entitled her to inherit her brother’s property. The appellant, a collateral, countered by relying on a general custom recorded in paragraph 24 of Rattigan’s Digest of the Customary Laws of the Punjab, which purportedly excluded sisters from inheriting non‑ancestral property of a brother. The subordinate judge and the district judge had ruled for the appellant, but the Punjab High Court reversed those decisions, finding that the general custom cited by Rattigan did not exist and that it was the appellant’s burden to prove any such custom, a burden it had failed to meet. The High Court further held that the respondent had successfully proved the special custom she relied upon. The appellant contended that the High Court erred in placing the burden of proof on it, asserting that the custom cited by Rattigan was a general custom and therefore the burden should rest on the respondent.
The Supreme Court held that no distinction could be drawn between a general custom and any other custom insofar as the requirement of proof is concerned. The ordinary rule, as the court reiterated, is that all customs—whether general or specific—must be proved unless the courts, by repeated recognition, have elevated the custom to the status of judicial notice under section 57(1) of the Evidence Act. The judgment relied upon the authority of Raja Rama Rao v. Raja of Pittapur (1918) L.R. 45 I.A. 148. Although Rattigan’s Digest is regarded as an authoritative source on Punjabi customs, the court observed that, given the considerable body of conflicting judicial decisions regarding the existence of the custom in paragraph 24, it could not take judicial notice of that specific custom without additional proof. The court therefore concluded that the respondent’s reliance on a “special custom” did not constitute an admission that eliminated the necessity for the appellant to prove the existence and terms of the alleged general custom. Consequently, the burden of proof remained on the appellant, and the High Court’s finding that the appellant had failed to establish the general custom was affirmed.
The Court observed that the appellant was required to prove the existence and the precise terms of the alleged general custom. Even if it were assumed that the High Court had erred in holding that the respondent had established the custom that gave her a right to succeed, the appellant also failed to prove the custom he proposed. Consequently, under section 5 of the Punjab Laws Act, 1872, the dispute had to be decided according to the parties’ personal law. The Court held that, although the respondent’s plaint relied upon a customary right, she was nonetheless permitted to base her claim on the applicable personal law. Both parties were governed by Hindu law, and under that personal law the respondent was also entitled to succeed. The Court accordingly referred to the authorities Daya Ram v. Sohel Singh, 110 P.R. 1906; Abdul Hussein Khan v. Bibi Sona Dero, (1917) L.R. 45 I.A. 10; and Mst. Fatima Bibi v. Shah Nawaz, (1920) I.L.R. 2 Lah. 98, which were relied upon in support of this position.
The judgment concerned Civil Appeal No. 296 of 1955, filed by special leave from the Punjab High Court’s decree dated 8 September 1952 in Civil Regular Second Appeal No. 327 of 1948. That appeal arose from the decree of 21 November 1947 of the District Judge, Amritsar, in Appeal No. 212 of 1946, which itself stemmed from the decree of 20 August 1946 of the Sub‑ordinate Judge, First Class, Amritsar, in Suit No. 297 of 1945. Counsel for the appellant were Achhru Ram and R. S. Narula, while the respondent was represented by Gurbachan Singh and Madan Lal Kapur. The judgment was delivered on 23 April 1959 by Justice Sarkar. The suit from which the appeal arose dealt with the right to several plots of land situated in the village of Sultanwind, Tehsil and District Amritsar, Punjab, and raised the issue of Punjab customs. Sahib Singh, the last male owner of the disputed lands, died in December 1918 leaving his widow Nihal Kaur. The widow initially succeeded to the lands, but on her remarriage she was dispossessed and the property passed to Sahib Singh’s mother, Kishen Kaur, who died on 12 November 1942. Following Kishen Kaur’s death a dispute emerged between her daughter Jeo, the respondent, and her nephew Ujagar Singh, the appellant, concerning ownership of the lands. The Tehsildar entered the respondent’s name as owner in the revenue records, but the appellant appealed and the Collector of Amritsar ordered the removal of the respondent’s name and the entry of the appellant’s name. On 11 June 1945 the respondent filed a suit against the appellant seeking a declaration of her ownership. Paragraph 3 of the plaint stated that the respondent “came into possession of the properties left by Kishen Kaur, as the heir of her father and brother, according to the Zamindara‑Custom prevailing in Mauza Sultanwind among the people of the Got (sub‑caste) Bheniwal and the custom of the family.”
In the plaint, the respondent asserted that she had taken possession of the properties left by Kishen Kaur “as the heir of her father and brother, according to the Zamindara‑Custom prevalent in Mauza Sultanwind among the people of the Got (Sub‑caste) Bheniwal and the custom of the family of her father”. In paragraph 5 of the plaint, the respondent further stated that “according to the afore‑mentioned special custom, the right of inheritance of the daughter and her descendants and, in their absence, that of the sister and her descendants to the property left by her father and brother is preferential to that of the collaterals beyond the fifth degree; no matter whether the property is ancestral or self‑acquired.” The appellant’s written statement countered this claim by alleging that “according to the General Custom and the Custom of the District of Amritsar, the plaintiff as his sister is in no way the heir of the property left by (her) brother in presence of the reversionary heirs, no matter whether the land is ancestral qua reversionary heirs or it is self‑acquired. There is no particular family, Got or village custom of the District of Amritsar.” In substance, the appellant contended that, as an agnatic relation or collateral of Sahib Singh, he was entitled to the properties under the general custom of the Punjab, which he argued placed him ahead of the respondent. The central issue before the court was therefore to determine who was the preferential heir of Sahib Singh.
The Subordinate Judge of Amritsar examined the matter and held that the appellant was a collateral of Sahib Singh of the eighth degree and that the disputed properties were not ancestral. The Judge observed that the respondent’s claim rested on a special custom which she had failed to prove with the necessary evidence, and consequently concluded that the appellant should be deemed the preferential heir under the general custom. The respondent appealed this decision to the District Judge of Amritsar. The District Judge affirmed the lower court’s findings that the land was not ancestral and that the appellant was an eighth‑degree collateral of Sahib Singh. Relying on paragraph 24 of Rattigan’s Digest of the Customary Law of the Punjab, the Judge explained that the general custom among agriculturists in the Punjab was that “sisters are usually excluded as well as their issues.” Accordingly, he placed the burden of proving any special custom that would entitle the sister to inherit on the respondent. After considering the evidence presented by the respondent, the District Judge concluded that she had not discharged this burden and dismissed the appeal.
The respondent then lodged a further appeal before the High Court of Punjab. Justice Kapur, delivering the principal judgment, observed that paragraph 24 of Rattigan’s Digest did not correctly state the custom and that its formulation was overly broad. He held that the onus of proving a custom by which a sister was excluded from inheritance lay with the appellant, and that the appellant had failed to meet this burden. Justice Kapur further noted that even if the burden had been on the respondent to prove a special custom granting her the right to succeed, she...
In this appeal, the Court noted that Justice Soni, who was a member of the bench that heard the case, delivered a short judgment that concurred with the observations of Justice Kapur. Accordingly, the High Court had allowed the appeal and had upheld the claim of the respondent. The present appeal therefore challenged that decision of the High Court. It was uncontested that both parties belonged to an agriculturist Jat tribe and were members of the Bheniwal sub‑caste of the village Sultanwind in the Tehsil and District of Amritsar. The genealogical table placed on the record showed that the appellant was a ninth‑degree collateral of Sahib Singh, a finding that the High Court had accepted. Neither the High Court nor the present Court disputed that the properties in dispute were not the ancestral properties of Sahib Singh.
The counsel appearing for the appellant argued that the learned Judges of the High Court had erred in placing the evidential burden on his client. He maintained that the prevailing custom among the agriculturist tribes of the Punjab was that sisters were excluded by collaterals in matters of succession to both ancestral and non‑ancestral property, and that this custom had been correctly set out in Rattigan’s Digest. On that basis, he contended, the respondent could not claim the properties unless she could demonstrate a special custom of the tribe or family that entitled her to succeed ahead of the collaterals, and that the burden of proving such a special custom rested on her. He further asserted that the respondent had failed to discharge that burden.
The Court then referred to several authorities that had warned against the use of the expression “general custom of the Punjab.” Justice Plowden, speaking in Ralla v. Buddha at page 223, observed that there was strictly no such thing as a general custom of the Punjab in the same sense as there is a common law of England, because any such custom was subject to modification by a special custom of a class or by a local custom. Justice Young, C.J., in Mussammat Semon v. Shahu, similarly declared that there was no “general customary law known to the Legislature.” Justice Addison, A.C.J., in Kesar Singh v. Achhar Singh, described the phrase “general custom of the Punjab” as a clear misnomer, explaining that customs in the Punjab were tribal and that even within a single tribe different locales observed different customs. Sir Charles Roe, in his work Tribal Law in the Punjab, reinforced this view by stating that the origin of the tribes varied and that local and social conditions differed so greatly that a single body of customary or tribal law common to the whole of the Punjab could not exist; he cited Rattigan’s Digest (13th Ed.) p. 157 in support of this observation.
Nevertheless, the Court acknowledged that the expression “general custom of the Punjab” had been frequently employed in judicial decisions. Justice Addison, J., in Kartar Singh v. Mst. Preeto, explained that it had become customary in the courts to treat custom as something generally followed and to place the burden of proof on any person who asserted that his custom differed from the so‑called general custom of the province. If that person succeeded in proving his particular custom, it was then described as a “special custom.” The present Court therefore considered these observations in assessing the arguments concerning the burden of proof and the existence of any special custom that might benefit the respondent.
In the Punjab, each tribe possesses its own distinct customs, and because there are many such tribes, it is impossible for a single body of customary or tribal law to be common to the whole province, as noted in Rattigan’s Digest (13th Ed.) p. 157. Nevertheless, the expression “general custom of the Punjab” has been frequently employed. The purpose of this usage was explained by Justice Addison in Kartar Singh v. Mst. Preeto, where he observed that courts had come to treat custom as something generally followed and that the burden of proof fell on any person who claimed his custom differed from the so‑called general custom of the province. If that person succeeded in establishing his particular custom, the court would label it a “special custom.” Reported decisions often proceeded on the assumption that, if a general custom existed, it did not need to be proved, and that anyone wishing to rely on a custom contrary to the general custom must prove it or would fail in his claim. The Court considered this assumption to be incorrect. Halsbury’s Laws of England (3rd Ed.) Vol. 11, Art. 319 p. 171 states that all customs which courts do not take judicial notice of must be clearly proved, and the burden of establishing them rests on the party relying on their existence; no distinction is drawn between a general custom and other customs. Section 48 of the Evidence Act likewise contemplates proof of a general custom, as illustrated in Daya Ram v. Sohel Singh, where Justice Robertson said that “it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is.” These observations were endorsed by the Judicial Committee in Abdul Hussein Khan v. Bibi Sona Dero. Consequently, the ordinary rule is that all customs, whether general or otherwise, must be proved. However, Section 57 of the Evidence Act provides that nothing need be proved of a custom that courts can take judicial notice of. According to Lord Dunedin in Raja Rama Rao v. Raja of Pittapur, when a custom or usage—whether concerning tenure, contract, or family right—is repeatedly brought before the courts, the courts may deem that custom to be introduced into law without the necessity of proof in each individual case. Once a custom has been so recognized, it becomes part of the law of the land and the proof of it is no longer required under Section 57(1) of the Evidence Act.
When a custom is repeatedly brought to the notice of the courts of a country, the courts may hold that such custom or usage is to be introduced into the law without the necessity of proving it in each individual case. Once a custom has been recognised in this manner by the courts, it consequently becomes part of the law of the land and the requirement to prove the custom is discharged under section 57(1) of the Evidence Act. The Court observed that in the courts of the Punjab the expression “general custom” has been employed in precisely this sense, meaning that a custom, having been repeatedly recognised by judicial decisions, acquires the status of judicial notice, as was articulated in the decisions of Bawa Singh v. Mt. Taro and Sukhwant Kaur v. Balwant Singh. The Court then examined whether there exists a custom according to which sisters are to be excluded by collaterals in the inheritance of non‑ancestral property, a custom that courts ought to take judicial notice of. Counsel for the petitioner, Mr. Achhru Ram, argued that such a custom does indeed exist and that it is recorded in paragraph 24 of Rattigan’s Digest, a work that commands the highest authority on the customs of the Punjab. However, the Court noted that judicial notice of a statement of custom contained in a treatise may be taken only when that custom has been well recognised by decisions of courts of law. After reviewing a large number of reported decisions on the issue, the Court concluded that the custom described by Rattigan (1) (1917) L.R. 45 I.A. 10, 13; (2) (1918) L.R. 45 I.A. 148, 154, 155; (3) A.I.R. 1951 Simla 239; and (4) A.I.R. 1951 Simla 242 cannot be said to have been sufficiently recognised to merit judicial notice without further proof. The Court observed that the law reports contain a very large number of cases concerning a sister’s right to inherit. One group of decisions maintains that no custom exists that excludes sisters from inheritance when collateral relations of the last male holder are present, while another group takes the opposite view. Although it would be neither possible nor useful to refer to all these cases, the Court elected to mention some illustrative authorities. First, the Court cited cases that do not recognise any custom excluding sisters from inheritance. In Makhan v. Musammat Nur Bhari (1), certain seventh‑degree collaterals of the last male holder sued the latter’s sister for possession of his properties. No claim was made by the collaterals that any general custom entitled them to succeed in preference to the sister. After the matter was returned to the Chief Court following an enquiry directed by it, Justice Elsmie held: “The result of the further enquiry is to show that the plaintiffs have been unable to prove that they are by custom entitled to exclude the sister of the last owner. On the other hand, there is some evidence, though not much, to show that sisters have inherited. It is indeed”
In the earlier case, the court observed that it was “quite clear that no well defined custom is made out one way or the other.” Consequently, the sister was declared entitled to a share of the property under Mohammedan law, because both parties were Mohammedans and no custom favoring either side had been proved. This decision was rendered in 1884. In the later case of Sheran v. Mussammat Sharman, the plaintiffs were collaterals and the defendant was the sister. The court noted that the plaintiffs argued that, under the general Customary Law of the Punjab governing agricultural communities, male‑line collaterals of the fifth degree from a common ancestor excluded sisters. However, the court expressly refused to accept the broad proposition that such a general custom existed. The judgment further held that there was no recognized custom in the Mooltan District that gave collaterals preference over a sister. Because no custom could be established in favor of either party and the parties were Mahomedans, the court applied Mohammedan law and awarded the sister a share of the property.
The judgment then turned to several other authorities. In Bholi v. Kahna, the court remarked that paragraph 24 of Rattigan’s Digest was expressed in overly broad terms and was not sufficiently supported by the authorities cited both for and against it. In Mussammat Bhari v. Khanun, where the dispute involved ninth‑degree collaterals and a sister, the burden of proving that the collaterals were entitled to succeed ahead of the sister was placed on the collaterals as plaintiffs; their failure to meet this burden resulted in a loss for them. In Mst. Fatima Bibi v. Shah Nawaz, the court critiqued the general rule in paragraph 24 of Rattigan’s Digest as being based largely on authorities concerning ancestral property and the accepted principles of agnatic succession, which do not apply to self‑acquired property. The court further held that the reported decisions did not establish a universally accepted rule on a sister’s right to succeed that would allow a court to decide the matter on custom alone. Finally, in Samo v. Sahu, the court held that the lower court erred in placing the burden on the sister in a contest with fourth‑degree collaterals, because there was no recognized general customary law in the legislature, and Rattigan’s Digest merely reflected that various tribes were governed by specific customs in particular matters. The discussion concluded with a reference to Jagat Singh v. Puran Singh.
In the case decided in 1944, the Court noted at page 369 that there was no rule of special custom when a dispute arose between a sister or the sister’s son and a near collateral. Consequently, the Court said that the proper reference was to general custom, but that no rule of general custom existed on that point. The Court further observed that paragraph 24 of Rattigan’s Digest stated that sisters and their sons are generally not heirs, yet that statement was made in very broad terms. The Court indicated that such a statement might apply to ancestral property, but it was difficult to say that any special rule of general custom applied when the dispute involved a sister and collaterals of the third or fifth degree and the property in question was self‑acquired. The decision therefore relied on the personal law of the parties, namely Hindu law, because neither a general nor a special custom had been proven. Subsequent cases decided after 1950 have consistently taken the view that no general custom gives collaterals preference over sisters in inheritance matters. Those cases include Sukhwant Kaur v. Balwant Singh, Maulu v. Mst. Ish‘ro, Harnam Singh v. Mst. Gurdev Kaur and Shrimati Bui v. Ganga Singh. Another group of decisions appears to recognize a general custom that excludes sisters from inheritance where collaterals of the last male holder are present. In Hamira v. Ram Singh, the Court approved the decision in Shidan v. Fazal Shah, whose judgment is reproduced as an appendix. In Shidan the dispute was between a sister and collaterals of the seventh degree, and the Court held that the burden of proving a custom that entitled sisters to succeed rested on the sisters, basing that position on paragraph 24 of Rattigan’s Digest, an entry in the Riwaji‑i‑am and certain reported decisions. Clearly, Rattigan was relied upon. (1) (1944) 49 P.L.R. 366. (2) (1050) 52 P.L.R. 261. (3) (1957) 59 P.L.R. 609. (4) (1959) 61 P.L.R. 145. (5) 134 P.R. 1907. (6) (1907) P.R. at p. 646. In Harnamon v. Santa Singh the Court said that the burden of proving that a sister was entitled to succeed in preference to a collateral lay on the sister. The same principle was followed in Musammat Nurbhari v. Abdul Ghani Khan, Mussammat Hussein Bibi v. Nigahia, Jagu v. Bhago, Began v. Ali Gohar, Kirpa v. Bakshi Singh (a case decided in 1944), Santi in 1944 and Mussammat Ratni v. Harwant Singh. In several of those judgments paragraph 24 of Rattigan’s Digest was expressly approved as applying to non‑ancestral property. It thus appears that there is a formidable array of authorities supporting either view. In this state of conflict of judicial decisions the Court is not prepared to say that a custom giving preference to collaterals over sisters in inheritance of non‑ancestral property has been so widely or uniformly recognized by courts as to justify taking judicial notice of it.
In this case, the Court observed that the notion that collaterals should be preferred to sisters in the inheritance of non‑ancestral property had not been so widely or uniformly accepted by the courts as to permit judicial notice of such a rule. The Court also noted that Punjab customs were regarded as fluid and capable of adapting to changing circumstances, a principle that had been affirmed in Hassan v. Jahana (8). Moreover, the Court found that decisions issued during the preceding ten years consistently rejected the view expressed in paragraph 24 of Rattigan’s Digest. Accordingly, the Court concluded that the High Court had been correct in holding that paragraph 24 of Rattigan’s Digest could not be relied upon to establish a general custom that excluded sisters from inheritance in favour of collaterals. The Court further examined a submission made in the plaint that the respondent had admitted the existence of a general custom alleged by the appellant and therefore that no proof of such a custom was required. The Court disagreed with that submission, holding that it was not justified. Although the respondent, in her plaint, referred to a custom that entitled her to succeed and described it as a “special custom,” the Court was unable to treat that reference as an admission of a general custom or its terms. Consequently, the Court turned to determine whether either party had produced evidence to support the custom they asserted. Regarding the appellant, the Court noted that he had relied solely on the alleged general custom and had attempted to substantiate it by citing paragraph 24 of Rattigan’s Digest. The Court reiterated that, based on the earlier observations, Rattigan’s Digest could not be taken as correctly laying down the custom in question, and the cited reported decisions did not demonstrate the existence of any such general custom. Since the appellant had no other material on which to depend, the Court held that he had failed to establish the custom he alleged.
The Court then considered whether the respondent had proved the custom she relied upon. The Court was satisfied that she had done so. It noted that the High Court had examined the evidence presented by the respondent and had found it acceptable, and the Court saw no reason to depart from that view. The Court referred to specific documentary evidence, particularly Exhibit P‑4, a settlement record dated 1852, which showed that in the village of Sultanwind the sons of a sister, Sajja Singh and Majja Singh, succeeded to the properties of Nodh Singh despite the presence of collaterals. The respondent’s counsel, Mr. Achhru Ram, challenged the statement in Exhibit P‑4 that Sajja Singh and Majja Singh were the sister’s sons, arguing that later settlement records, namely Exhibit P‑5 dated 1891 and 1892, described them as the sons of a daughter of Nodh Singh and of Baghel Singh, his brother. Mr. Achhru Ram further contended that, according to settled authority, when two settlement records conflicted, the later record should be preferred. The Court observed that this issue should have been raised before the trial Court, an opportunity that had apparently not been taken, because the respondent could then have been given a chance to introduce evidence to demonstrate which of the two settlement records accurately reflected the facts.
The Court observed that the settlement records of 1891 and 1892 described the heirs as the daughter’s sons of Nodh Singh and Baghel Singh, who was his brother. Counsel for the respondent argued that, according to established authority, when two settlement records conflict, the later‑dated record must be given effect, referring to the principle explained in Alo v. Sher. The Court noted, however, that this point should have been raised before the trial Court, a step that apparently was not taken. Had the point been raised, the respondent could have been afforded an opportunity to produce evidence showing which of the two settlement records accurately reflected the succession. Exhibit P‑9, a settlement record of 1852 from the same village, indicates that on Gandhi’s death his sister’s son succeeded to his property notwithstanding the existence of collaterals. Counsel for the respondent explained that in 1852 the Punjab was so unsettled that land ownership received little attention, and that this circumstance permitted the sister’s son to succeed. The Court found this explanation untenable. Exhibit P‑7, a settlement document of the Bheniwal tribe prepared in 1891‑92, shows that Mst. Chandi, the sister of Buta Singh, succeeded to his property. It was submitted that the pedigree did not demonstrate any living collateral, yet the document actually records that Tara Singh, the great‑grand‑uncle of Buta Singh, was alive. Counsel for the respondent contended that this must be a mistake because Tara Singh could not have been alive at the time of Buta Singh’s death. The Court held that this issue also needed resolution at the trial level and declined to speculate on the matter.
The Court then turned to two entries in the Riwaji‑i‑am. The first entry, dated 1913‑14, reads: “Q. 70.—Does property ever devolve on sisters and/or upon their sons? A. All tribes.—The property never devolves upon sisters and their issues.” The footnote cites the case of Bholi v. Kahna. The Court reiterated the well‑settled rule that Riwaji‑i‑am entries are to be interpreted as reflecting customs concerning succession to ancestral property unless the entry expressly indicates otherwise. In support of this rule, the Court quoted the Full Bench decision of the Lahore High Court in Mst. Hurmate v. Hoshiaru, which stated: “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… the answer was confined to the ancestral property.” The Court noted that this principle has been consistently applied in Punjab jurisprudence and that the 1913‑14 Riwaji‑i‑am entry does not contain any contextual language indicating its applicability to self‑acquired property. Consequently, the entry does not establish a custom that would bar a sister from inheriting the self‑acquired property of her brother.
In this discussion the Court observed that a reference to non‑ancestral property would not necessarily cause informants to be cautious in every instance, given their general lack of education and limited intellectual capacity. The Court further explained that expressions such as “in no case” or “under no circumstances” should be understood as applying solely to ancestral property unless the surrounding context clearly indicates that they extend to self‑acquired property. By issuing its judgment, the Full Bench was formally establishing a rule that reflected the prevailing view of the Punjab courts. When the Court examined the Riwaji‑i‑am of 1913‑14, it found no contextual indication that the answer recorded there was meant to apply to self‑acquired property. Consequently, that record could not be used to demonstrate a custom that prohibited a sister from inheriting her brother’s self‑acquired property. The Court then considered another Riwaji‑i‑am dated 1940, which contained the entry: “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 marriage. (2) Married sister or sisters or their descendants did not get the property in any case.” Again, there was no indication in the context that these answers related to non‑ancestral property, and therefore this entry did not aid the appellant’s position. The 1940 Riwaji‑i‑am listed eight instances, some of which involved self‑acquired property. The Court held that the presence of such instances did not imply that the recorded answers were intended to cover succession to self‑acquired property as well. It was noted that the examples recorded under the Riwaji‑i‑am entries are often assembled by the officer responsible for compiling the record, making it impossible to determine which, if any, of the instances were supplied directly by the tribesmen in response to questions posed by the Settlement Officer. Hence, no inference could be drawn that the answers were meant to extend to self‑acquired property. Of the eight instances, two concerned self‑acquired property where, in the absence of collaterals, sisters were permitted to succeed. The remaining six dealt with ancestral property. In four of those six cases, the last male owner died without a reversioner, and in each instance married sisters succeeded to the property. In a fifth case, unmarried sisters succeeded to the property after their brother’s death, but upon their subsequent marriages they were dispossessed, and the property apparently passed to the collaterals. Consequently, these seven instances did not favour either party, as they demonstrated that sisters could inherit both ancestral and self‑acquired property when no collaterals existed.
The record showed that when the sisters married, they were stripped of the ancestral properties to which they had succeeded after their brothers' deaths, the sisters having been unmarried at the time of succession. The final example concerned the Rajput Mohammedan community of Tehsil Ajnala, located in District Amritsar, which is the same district to which the parties in the present suit belonged. That example demonstrated that a sister was permitted to inherit the ancestral property left by her brother, taking precedence over collaterals as remote as the sixth degree. Consequently, it illustrated a custom in a neighboring tehsil whereby sisters could inherit even when there were closer collateral relatives than those present in the present case. Considering these facts, the Court concurred with the High Court judges that the respondent had successfully established a custom that entitled a sister to inherit ahead of her brother's collateral relations. The Court also held that even if the respondent had failed to prove such a custom, she would still be entitled to the properties under Hindu law. Both parties were Sikhs, and therefore the Hindu law governed their personal status and their rights of inheritance in the matter before the Court. Under the Hindu Law of Inheritance (Amendment) Act, 1929, a sister is recognized as an heir with preference over collaterals, and this statute applied to the succession in the present dispute. It was argued that because the respondent had not pleaded her claim on the basis of Hindu law but solely on custom, she could not revert to Hindu law if her custom claim failed. The Court disagreed with that argument, finding that the procedural limitation was not justified under the applicable statutes. Section five of the Punjab Laws Act, 1872, stipulated that in succession matters the rule of decision was first any custom, and second the personal law of the parties unless altered by custom or statute. In Daya Ram v. Sohil Singh (1), Justice Robertson observed at page 410 that when a party relied on custom as rule of decision, the burden was on that party to prove the custom; if the custom was not proven, clause (b) of section five of the Punjab Laws Act applied and the personal law of the parties governed the decision. The Court noted that this observation had been endorsed by the Judicial Committee in Abdul Hussain Khan v. Bibi Sona Dero (2) as an authoritative affirmation of the principle regarding the burden of proving custom. In Fatima Bibi v. Shah Nawaz (3), a case previously cited, the plaintiff’s sisters had pleaded their claim on custom rather than personal law. The Court allowed those sisters to rely on Mohammedan law, the parties’ personal law, when their custom claim failed.
In this case the Court observed that the collaterals had failed to prove any custom that would support their claim, and that no contrary custom had been established against them. The Court noted that numerous authorities, although not all of them being cited, demonstrated a consistent principle that when neither party could establish a customary rule, the personal law of the parties must be applied. The Court affirmed that this principle represented the correct approach. Consequently, the Court held that even if the respondent had been unable to establish a custom in her favour, she was nonetheless entitled to succeed in the suit on the basis of the personal law governing the parties, which was Hindu law. The Court further found that applying Hindu law would not cause any prejudice to the appellant, because the appellant’s only possible defence under Hindu law would be the existence of a customary rule that gave collaterals a preference over sisters. The appellant had relied upon a purported general custom that purported to allow collaterals to succeed in preference to sisters, but the Court reiterated its earlier finding that no such general custom had been proved in the present proceedings. In light of these findings, the Court concluded that, in the interest of justice and to bring the litigation to a final conclusion, the respondent should be declared the heir of her brother under Hindu law, thereby entitling her to the properties in question.
The Court also addressed an ancillary application filed by the respondent, which sought an order that, because of certain agreements and subsequent proceedings stemming from the decree granted in her favour by the High Court, the appellant should not have been permitted to obtain leave to file the present appeal and that the leave authorized under Article 136 of the Constitution ought to be withdrawn. Since the Court had already determined that the respondent succeeded on the merits of the case, it considered it unnecessary to express any opinion on the request to rescind the leave. Accordingly, the Court dismissed the appeal, ordered that the appellant pay the costs of the proceedings, and entered a final order that the appeal was dismissed.