“It is clear that under the general rule of agnatic succession a daughter can never inherit. Whatever favour custom may allow to be shown her under the form of a gift, the daughter is not, and cannot be one of the warisan yak jaddi, or group of agnates, amongst whom the estate of a sonless man is divided on his death, and who controls his action during his life. This is the general principle laid down in all the Riwaj-i-ams, and the Settlement Officers of Ambala and Bannu say that even if there are no agnates at all, the estate would not pass to or through females but, would pass to the tribe or willage community”.–Roe’s Tribal Law in the Punjab, p. 62.
Commenting on this, Lal Chand, J. observed in Abdul Karim v. Sahib Jan (1) – “It is true as observed by the learned author of the Tribal Law that a daughter has no place in the line of succession. “A daughter is not and cannot be one of the warisan yak jaddi.” But it appears to have been assumed that in the absence of male issue and of a widow the general rule of succession is necessarily that of agnatic succession as against the daughters however distant in degree the agnates might be and whatever might be the creed and tribe of the parties concerned.
“There appears to be no foundation in Customary Law for a rule of succession so broadly stated…….. Further the Code of Customary Law prepared for different districts and different tribes are full of answers in favour of a daughter in the absence of collaterals beyond a certain degree. These answers cannot be lightly passed over and being so numerous cannot be ignored as merely fanciful. They apparently indicate a general consensus of opinion that, excepting among certain tribes, daughters as a rule are not excluded from succession by collaterals, however distant and remote. To say the least the custom certainly varies and it appears to be altogether unsafe to lay down a general rule of Customary Law, regardless of tribe and creed that daughters are excluded from succession by collaterals, however remote.”
Similarly it was remarked by Chatterji, J. in Bholi v. Man Singh (2) – “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 mounding 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 intimately connected with him and better entitled, in consequence to be his heirs than daughters, who are usually married in other localities and in strange families. 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. Adverse interests are also more likely to spring up and cause estrangement among distant collaterals. But where the daughter is married in the village and is resident in her father’s house, and her husband or sons help him in cultivation and in managing his affairs, she is regarded in a different light. Natural affection inclines the owner to make her and her descendants his heirs, and this has given rise to the institution of ghar jawai or khanadamad, which is still a common feature of family life in succession in some districts and which was very well known in the early days of British rule, though latterly there is a greater inclination shown by land-owners for its suppression. It is perhaps open to question whether in later years too rigid an adherence to the agnatic principle has not led some settlement officers to lend to weight of their authority or influence to help in the abrogation of the custom. Other devices, such as the adoption of daughter’s son show the same feeling on the part of landowners who have only daughters and no male issue. In old times, when land was less valuable and men mere as cultivators of land, settlement of daughter’s sons in the village of their maternal grandfathers was quite common, and this is evidenced by the history of the foundation of many old villages. Our object in making these remarks is merely 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. The extent of that modification is a matter for inquiry, which should be made with an open mind as an excessive and general subservience to the doctrine of agnatic succession probably means hardship and injustice on daughters and their issue. The principal recommendation of the doctrine is that it offers an easy and workable rule for the decision of cases, but this alone should not weigh much with Courts of Justice.”
(33) The position of the daughter is stronger in endogamous tribes than in exogamous tribes.
By exogamy is meant marriage outside the got, or clan of the father, mother, father’s mother and often mother’s mother, but still marriage within the tribe. By endogamy it is not meant that the marriage must, but only that it may, be within the family, the only prohibited degrees being those of the Muhammadan Law.
The distinction between the position of a daughter in an endogamous tribe and in an exogamous tribe has been drawn by Plowden, S. J. in Chiragh Din v. Mst. Talla Bibi (i) in the following words –“In the exogamous got, the daughter takes no share in the ancestral land by inheritance. She is entitled to be maintained while she is unmarried, and to be married at the expense of her father, or whoever for the time being holds the ancestral land. On completion of her marriage, she is transferred to her husband’s household, and becomes dependant upon him and his land for support…. If she continues to reside in her father’s house with her husband, the father being sonless, she is sometimes found to be capable of taking his land for her life, and transmitting it to her own male issue.
“With endogamy as the marriage law, the daughter’s position is different. She may now marry kinsman, who may be a resident of the same village, and she is no longer separated from her family of origin. As such marriages become more frequent in course of time, her claim to a share in the ancestral land presses for recognition…… The customary rule is found to vary greatly as to the degree of remoteness which excludes warisan ek jaddi, in favour of a daughter when she does succeed….. The highest position she has yet attained in the Punjab is in societies – rarely if ever rural – which follow the Muhammadan Law, a personal law of which the marriage rule is endogamy….. Therefore, in such cases, we have first to consider the general and ordinary course of development of the customary law, and then to ascertain the stage of development which has been reached in the particular society or group. The general and primary presumption with reference to an exogamous society which has been transformed into an endogamous society is that the daughter does not succeed as heir to ancestral land upon the death of her father without male issue in preference to warisan ek jaddi.”
The parties in this case were Arains of Sharakpur Tahsil (Lahore District).
In an earlier ruling reported as Ladhu v. Mst. Daulati (1) also the same learned Judge observed that by the ancient agricultural custom of the Punjab, females took no share by inheritance in ancestral property, the co-sharers always being males descended from the common ancestor, into whose line of descent no female entered. In course of time the natural claim of females to take a share in the presence of collaterals has come to be recognized as a right, at least in some tribes, more especially Muhammadan tribes. But customs vary widely in different places and tribes as to the exact place where the daughter comes in and it would not be possible to lay down any precise general rule applicable to all tribes and places on the subject of burden of proof in a competition between a daughter and male collaterals. The custom of a tribe permitting intermarriage between near relatives is a circumstance favourable to the early succession of a daughter.
Again, in a case in which the parties were the Mughals of Kharkhadah, District Rohtak, it was remarked that “as a class, daughters who have never left their native village are in a better position to assert their claims to take the family estate than daughters resident in another’s village, who have severed their connection with their own village” (2).
In Ata Muhammad Khan v. Mst. Jiwani (3), the parties were Barki Sayyads of Basti Pirdad Khan, Jullundur District. It was remarked –“Further, it is to be borne in mind that the tribe is an endogamous one and though the record does not clearly show whether the defendants in the present case are married in the family, the fact that two of them are married in this Basti, the Sayyads of which are descended from a common ancestor, lends support to the allegation that their husbands are collaterals of their father.”
Among Ganga Jats of Muzaffargarh District, daughters do succeed, in the absence of sons, when they marry a member of their own khandan, but they lose their right to succeed to their father’s estate when married to a stranger (1).
In Khazar Hayat v. Allah Yar (2) in which the parties were Sayyads of Kot Isa Shah, Jhang Tahsil, governed by custom and not by Muhammadan Law, and the question before the Court was whether by custom, the plaintiff, a near collateral, had a claim preferential to the defendants (daughter’s sons) whose mother had not married in the family of her father. Held, that having regard to the entries in the Riwaj-I-ams prepared at the Settlements of 1880 and 1904, on which both sides relied, the mother of the defendants, not having married within the family, would notsucceed in preference to the plaintiff, and consequently the defendants, her sons, could not claim the property of their maternal grandfather.
By custom among Kalasra Jats (Muhammadan) of Dogar Kalasra, Muzaffargarh District, a daughter of a sonless proprietor loses her right of succession to ancestral property, in the presence of her father’s brother’s grandson by marrying outside the family (3).
A daughter married within the family, i.e., to a near collateral, is entitled under the custom prevailing in the family of Shirazi Sayyads in village Jarahi in the Kabirwala Tahsil of Multan District (originally belonging to Jhang District), excludes the collaterals in succession to her father’s ancestral property (4). So also, among Rana Jats (Muhammadan) of Multan Tahsil, an unmarried daughter as well as a daughter who has married within the family or caste (e.g., to a collateral) succeed to her father’s entire property in preference to his collaterals (5).
By special custom (as recorded in the Riwaj-i-am), among Muhammadan Rajputs of Panipat (District Karnal), daughters are preferred to collaterals in respect of ancestral property “provided they may be married in Panipat (6).
In Ghausa v. Nathu (7), a case relating to Arains of the Hoshiarpur District, it was observed –“I find that taken as a whole there is one characteristic that pre-eminently distinguishes the Arains and that is the greater regard they have than that shown by other agricultural tribes for the rights of women. This, no doubt, is largely due to the fact that they are a strictly endogamous tribe, and that, consequently land when it passes into a women’s hands is not likely to leave the family it belongs.
(34) Ancestral property-daughters usually excluded from succession by male collaterals-more distant collaterals generally excluded by daughters.
According to the rule of the Customary Law generally applicable to agricultural tribes in this province regarding ancestral property, the presumption, at the outset, is in favour of the exclusion of a daughter by a near collateral and onus is on the daughter to prove an exception to this rule (1).
The general rule (at all events where the parties are Jats) is that a daughter only succeeds to the ancestral landed property of her father in default of near male collaterals. The burden of proof, in all cases where a married daughter seeks to exclude near collaterals from the succession to her father’s ancestral property, or to resist their claim to such succession is upon her. In exceptional cases, sometimes, and especially amongst Muhammadan tribes, a married daughter excludes collaterals when she has married a near collateral or has with her husband continuously lived with her father since her marriage, or heing married to a collateral of the father’s family has been appointed by her father as his heir (2).
Under the ordinary rules of customary law in this Province, a daughter would have no right to succeed the father’s ancestral immoveable property in the paresence of her paternal uncle (3).
Under the general law of the province daughters succeed even to the ancestral landed property of their father in the absence of near male collaterals (4).
Onus of proof.
It will perhaps be of some interest to review some of the earlier rulings on the question of onus. In 29 P. R. 1868, a case relating to the Muhammadan Rajputs of the Jullundur District the contest was between a married daughter and collaterals. The onus was placed on the brother to prove that he, by some special custom, excluded the daughter. In 78 P. R. 1868 it was, however, remarked that the general lex loci, both among Hindu and Muhammadans of the Punjab, is that married daughters are not entitled, in the presence of their father’s nephews, to inherit any of their father’s landed estate, as of right. The onus was therefore laid on the daughter to show that the custom was otherwise. The parties in this case were Dogras of Mamdot, Ferozepur District, and the onus was not discharged. In 38 P. R. 1870, the onus was placed on the first cousin to prove that he excluded a daughter, which was not proved.
Again, the learned Judge deciding 2 P. R. 1874, remarked in his judgment –“I am unable, in the face of the judgment recorded by the lower courts, to say that there is a custom in the Punjab that absolutely prevents daughters and their sons from inheriting land left by their father and grandfather. Certainly the Hindu Law allows them to succeed and, unless there be a custom to the contrary, I do not see why the law of inheritance should not take its course.”
In 16 P. R. 1877, in a contest between a daughter and a nephew, the onus was placed upon the nephew to prove that he excluded the daughter. In 150 P. R. 1877, again in a contest between a daughter and collaterals, the onus was thrown on the latter to prove that they excluded the former.
In 85 P. R. 1881 it was doubted whether anything approaching to a general rule could be deduced from decided cases as to the degree of relationship in which collaterals related through males must stand to enable them to exclude daughters and their descendants from succession. But the weight of authority seems to be in favour of the view that, at least so far as married daughters are concerned, in succession to the ancestral landed property of their father, they are excluded by near male collaterals of their father but exclude distant collaterals.
In 60 P. R. 1889, Row, J. remarked – “In his Digest, Mr. Rattigan says that collaterals generally exclude daughters, provided they are not more remotely related than the seventh degree; but the cases quoted under the note show clearly that no such broad proposition has ever been authoritatively laid down by this Court. No doubt it has been held that daughters are generally excluded by nephews (though there are exceptions even to this), but in all cases where the collateral was more distantly related, the question of custom has had to be made the subject of a special inquiry, the result of which has been sometimes for, sometimes against, the exclusion naturally increasing as the relationship of the collateral became remote. But, in each case, the custom has been decided by special inquiry and not on general assumptions”.
In Rajo v. Karam Baksh (1) it was again observed –“It is impossible to contest the view that as a matter of fact custom in this matter is not based upon pure logic and that it is a fully and practically universally recognized principle that near agnate collaterals have power of veto as regards alienations and preferential rights of succession in respect of daughters which are not recognized in respect of more distant collaterals. As pointed out in Dilawar v. Mst. Jatti (2) this is constantly found to be the case, and is based upon sound views of common sense and expediency”.
The initial burden in cases of succession between married daughters and near male collaterals is upon the daughter (3).
What does “near collateral” mean ?
“In Rattigan’s Digest it is laid down that the seventh degree is sometimes found to be the extreme limit of collateral male relationship which excludes the succession of a daughter but it is also stated that more usually the fifth degree is found to be the customary limit. We may, therefore, take it that where a collateral is more distantly related than the fifth degree, the initial onus is on him to prove that he excludes the daughters and the more remote the collateral is the more heavily does the onus lie upon him” (1). –per Scott Smith and Broadway, JJ.
The male agnates generally exclude daughters and their issue in succession to landed property derived from a common ancestor, provided they are not more remotely related than the seventh degree (2). The special circumstances which would justify onus not being laid on the collaterals would be indications in the Riwaj-i-am of the tribe or in the Wajib-ul-arz of the village that there was a great determination to exclude strangers, or indications that daughters should be debarred from inheritance even by remote collaterals (3). It was observed in this case –“This being so, I should say that, in our present state of knowledge, there might be some doubt as to the burden of proof with regard to the sixth and seventh degrees, but that, beyond that, we should not hesitate, under ordinary circumstances, to lay it on the collaterals.-“per Benton, J.
In a contest between a daughter and collaterals of the seventh degree, the onus is on the latter to prove that they exclude the daughter (4).
The burden of proof as to whether remote collaterals such as of the sixth degree exclude daughters (amongst Chohan Rajputs of Ambala District) rests on the party who asserts its existence (5).
The onus lies on collaterals more distantly related than the fifth, or at any rate, the seventh degree, to show that they are entitled to succeed in preference to a daughter of the deceased (Wirk Jats of Gujranwala Tahsil) (6).
According to common consensus among Muhammadan Jats of D. I. Khan Tahsil, the power of interference with alienations by widows, being restricted to collaterals descended from the great grandfather of the deceased male proprietor, the plaintiffs who were not within the fourth degree of relationship calculated from the deceased to the common ancestor, were not entitled to object to an alienation by the widow (7). It was remarked in this case –“Experience shows that custom is not by any means always logical, and that although it is difficult to support the right of veto on behalf of collaterals in the fifth degree on a priori reasoning, people themselves undoubtedly do in some tracts recognize it as reasonable and in accordance with custom that the line should be drawn some where quite ignoring the more consistent theory that if it exists at all it should extend to all agnates.”
As regards ancestral property it is now well settled that “more usually the fifth degree is found to be the customary limit” (8).
In a contest between married daughter and agnates of the sixth or seventh degree, onus is on the latter (1).
In 174 P. R. 1888, a collateral who was within the fifth degree, was considered to be a near male collateral and excluded the daughter (2).
In a contest between a daughter and agnates of the fifth degree, the general custom of agriculturists being against the daughter, onus is on the daughter to prove that in succession she excluded collaterals (3).
Collaterals descended from a common ancestor who is third degree from the male proprietor, are near collaterals (4).
Where a collateral is more distantly related than the fifth degree, the initial onus is on him to prove that he excludes the daughters and the more distant the collateral is the more heavily does the onus lie upon him (5).
In 48 P. R. 1889 Plowden, J. remarked –“Ordinarily by the custom of the Punjab daughters are excluded by collaterals, and it is for the daughter to prove that the collaterals of the nineth degree from the common ancestor are too far in relationship to be able to succeed”. Similar observations will be found in 36 P. R. 1905. But these cases go against the view generally held in the judicial decisions of the Punjab Chief Court and the Lahore High Court.
Note. –Normally entries in the Riwaj-i-am will in most cases decide the question of onus in a contest between a daughter and the collaterals of the deceased owner regarding succession to his property. Where Riwaj-i-am is silent on the point, the rules given above, which are rather based on the decisions given from time to time on this question amongst the various tribes of the Punjab, will help the Courts in adjusting the initial burden of proof in some cases. But these are not hard and fast lines and the onus of proof may be shifted by showing that in a particular case there are some special circumstances which justify the variation of the rule. “The true spirit of customary law is neither more not less than the custom which is proved to exist” (6).
(35) Non-ancestral property –daughters generally preferred to collaterals as regards succession to self-acquired property.
Sub-para (2) of para 23 of Rattigan’s Digest states that ‘but in regard to the acquired property of her father, the daughter is preferred to collaterals.
The custom that is generally followed in the province is that a daughter excludes collaterals in succession to self-acquired property of her father. What does the word ‘generally’ really convey ? Is there any presumption in favour of the daughter’s succession to the self-acquired property of her father ?
It has already been observed on page ante that there is no such thing as general custom in the Punjab and it is necessary in every case to prove that the parties are governed by custom and what the custom is. The view held in numerous rulings of the Punjab Chief Court and the Lahore High Court, on the authority of sub-para. (2) of para. 23 of Rattigan’s Digest, is that there is a general custom of the Province in favour of daughters in regard to the acquired property, and that the onus probandi is on the collaterals asserting a special custom to the contrary. According to these decisions the initial onus is 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 custom excluding daughters (1).
The general custom of the province is in favour of the succession of the daughter to the self-acquired property of her father in preference to collaterals, and the custom relied upon by the collaterals in the present case (Jats of Sialkot District) must be treated as an exception to the general rule (2).
According to general custom daughters are entitled to inherit non-ancestral property in preference to collaterals (3).
The general custom of the province favours the succession of the daughter to the acquired property of her father in preference to collaterals and any claim excluding daughters from the acquired property of their father should be treated as an exceptional case (4).
Hilton, J. observed in Mst. Aishan v. Allah Ditta (5) –“Although the present suit relates to non-ancestral land, instances of the succession to ancestral land among Sandhu Jats by daughters, if any, might be relevant, on the ground that if daughters could succeed to ancestral land they could surely inherit non-ancestral land also.
The value of the entries in the Riwaj-i-am regarding the rights of females and presumptions arising therefrom have already been explained on pages 165 to 169 and may be referred to. It is an admitted fact now that where the entries in the Riwaj-i-am are against the succession of married daughters even regarding self-acquired property, the onus should be placed on the daughters to prove that they excluded the collaterals from succession to the self-acquired paoperty of their father, and as to whether from a given piece of evidence rebuttal of the custom recorded in the Riwaj-i-am can be inferred is always a question of fact.
It has also been noticed before (see pages 215 to 217) that the latest view of the learned Judges of the Lahore High Court is that there is no such thing as a general custom in the Punjab, and it is necessary, in every case, to prove that the parties are governed by custom and what the custom is. And as observed in Mst. Samon v. Shahu (1), “Rattigan’s Digest of Customary Law merely shows that according to judicial decisions a large number of tribes are governed by certin customs in certain matters. It cannot however he said that there is any presumption that a particular tribe in a particular locality is governed by the custom which governs a great many other tribes in the same locality or in other localities.”
From this it is clear that if the custom recorded [in the Wajib-ul-arz is in favour of the exclusion of daughters from the acquired property, then undoubtedly the burden of proof rests on the daughters to establish a contrary custom. According to this view in cases of contest between daughters and collaterals as regards self-acquired property, the courts cannot, in the absence of any evidence on either side, fall back upon the so-called general custom of the Punjab (viz. that daughters exclude collaterals in succession to the acquired property). The custom, whether for or against the daughter’s succession, must be established by evidence (2). It was observed in Gulab v. Umar Bibi (3), a case relating to Dillu Jats of Sialkot District, -“In his judgment the learned Subordinate Judge did not refer to the provisions of the Riwaj-I-am of the Sialkot District, and decided the question of custom in favour of the daughter on the strength of certain rulings dealing with different tribes in districts other than Sialkot. No evidence was produced by either party on the question of custom, which was decided in favour of the daughter on the ground that the general custom of the province was that daughters were preferred to distant collaterals in succession to acquired property of their father. In view of the observations of their Lordships of the Privy Council in 45 P.R. 1917 to the effect that the entries in the Riwaj-i-am are a strong piece of evidence in support of a custom and that it is for the party asserting a custom contrary to the entries in the Riwaj-i-am to establish such custom and it is necessary to examine the provisions of the Customary Law of the Sialkot District.”
In Thakar Singh v. Mst. Dhan Kaur (4) Hilton, J. summed up his conclusions as follows –“Thus the state of the evidence is that there is no proof of any importance on either side in respect of the custom alleged, with the single exception of the Gurdaspur case 1925 Lah. 35 which to a slight extent supports the defendants. The position being as stated, I would apply the general custom of the Punjab, as recorded in para 23 of Rattigan’s Digest of Customary Law, which is in favour of daughters. The question of onus is immaterial as both parties have a full opportunity to call evidence in support of their case.” But this view was not approved in Ujjagar Singh v. Mst. Dayal Kaur (1) in which Bhide, J. observed –“There is therefore no direct evidence to establish the custom of Kaler Jats on the points at issue. According to S. 5, Punjab Laws Act, the Court has to ascertain the “custom governing the parties” and in the absence of such custom personal law will apply. The learned District Judge following the case reported in 1935 Lah. 408, has applied the rule of ‘general custom’ as stated in para 23 of Rattigan’s Digest. With all deference to the learned Judges who decided that case, I must say that I do not see why this was done. Para 23 merely states a custom which has been found to govern in any tribes in this province. It cannot raise any presumption in this case of a particular tribe in the absence of instances. It seems to me that when no rule of custom governing the parties to this case was held to be proved, the personal law of the parties, viz., Hindu Law, should have been applied ; cf. 110 P.R. 1906 and S. 5, Punjab Laws Act.”
The observations noted below made by the learned Judges of the Lahore High Court in their judgments delivered from time to time may be referred to with advantage –
“According to the Customary Law of the district (Lyallpur District) collaterals within the fifth degree exclude daughters, but it has been consistently held by this Court that Riwaj-i-ams refer only to ancestral land unless there is a clear statement to the contrary. It is unnecessary to refer to the numerous decisions on this point. Customary Law is in fact usually only concerned with protecting ancestral property, while self-acquired property can be disposed of as the owner pleases, that is reversioners are usually concerned only with property ancestral qua them” (2), per Addison, J.
“The principle underlying the restrictions on alienation by sonless proprietors of ancestral property is that such property should ordinarily revert to the descendants of the common ancestor. But the same considerations do not apply to self-acquired property as no question of reversion arises in respect of it. This, I believe, is the reason for the rule propounded in para. 23 of Rattigan’s Customary Law” (3). –per Jat Lal, J.
“The agnatic theory reposes on the principle that collaterals descended from the common ancestor derive their the title from that common ancestor, but when the common ancestor had no interest in the property in dispute his descendants derive from him no more right than he had, i.e., they acquire no right. In this case the collaterals derive no right to this property from the common ancestor and, in accordance with custom, are not to be preferred to a daughter of the last male owner” (4). –per Rossignol, J.
“It has been observed in para. 23 of Rattigan’s Digest of Customary Law that with regard to the self-acquired property of her father the daughter is generally preferred to collaterals. This being the general custom all over the Province, the onus lay heavily on the plaintiffs to show that they were entitled to exclude the daughter from succession in the present case” (1). –per abdul Rashid, J.
“It is obvious that in a matter like this it is not possible to lay down a hard and fast rule about the quantum of evidence necessary to rebut the presumption arising from the entries in the Waijb-ul-arz or the Riwaj-i-am, and each case must be decided on its own peculiar facts. It may be observed however that the view taken in the rulings cited above is not of recent growth, but is merely a re-statement of the pronouncements of the Privy Council and of several eminent Judges of the Chief Court dating back almost to the very time when the District Riwaj-i-am first came to be judicially examined in that Court” (2). –per Tek Chand, J.
“It is admitted that the custom found to prevail generally among the agricultural tribes of the Punjab in regard to succession to self-acquired or non-ancestral property is that the daughter of a sonless male proprietor has a preferential right to succeed to such property as against collaterals” (3). –per Tek Chand, J.
Harris, C. J. and Mehr Chand, J. held in Qamar-ud-din v. Mst. Fateh Bano (4):
In the case of contests between daughters and collaterals regarding inheritance to self-acquired or non-ancestral property, the initial onus should be laid on the collaterals to prove that they have a right to inherit it as against the daughters, and they should be given an opportunity to discharge that onus. If the collaterals produce an entry in the Riwaj-i-am of the district stating a special custom in their favour and if the Riwaj-i-am produced is a reliable and trustworthy document and has been carefully prepared, and does not contain within its own four corners contradictory statements of custom and in the opinion of the settlement officer is not a record of the wishes of the persons appearing before him as to what the custom should be, the Riwaj-i-am would be a presumptive 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, the Riwaj-i-am is not a document of the kind indicated above then such a Riwaj-i-am would have no value at all as a presumptive piece of evidence. A reliable and trustworthy Riwaj-i-am reciting a special custom against the rights of daughters would, however, only furnish a weak presumptive evidence to the collaterals. A few clear instances of the custom against the statement recorded in the Riwaj-i-am would be sufficient to rebut the presumption, and to shift back the onus to the place where it was originally laid. After the initial onus stage, the Court should judge the case by taking into consideration the Riwaj-i-am, and other materials placed on the record in proof of the custom alleged or against it and giving the Riwaj-i-am its full value considering the circumstances of each case the Court should come to the conclusion whether the initial onus has really been discharged.
What can legitimately be inferred from all the rulings cited above when read together, is –
(a) It is for the party asserting a custom contrary to the entries in the Riwaj-i-am to establish such a custom, and if the entry is against the daughter’s right of succession to the self-acquired property of her father in the presence of his collaterals, the onus will be on the daughter ;
(b) The quantum of evidence necessary to rebut an entry in the Riwaj-i-am against the right of a daughter will depend on the facts of each and every individual case ;
(c) Where there is no entry in the Riwaj-i-am either way, the initial onus should be no the collaterals to prove that they exclude a daughter from succession to the self-acquired property of her father.
(36) Method of computing degrees of relationship.
The proper mode of computing degrees of relationship in relation to sucession according to the common custom of the Punjab is to reckon the generation commencing with the including the deceased upwards until the common ancestor is reached, he being also counted and included (1). It was observed in Mst. Santi v. Dharam Singh (2) –“In the Answer to Question 2 (of the Customary Law of the Jullundur District) dealing with the system of reckoning the degree of relationship it is recorded inter alia, that a brother and an uncle’s son are bothe related to the proprietor in the first degree, while a brother’s grandson is related in the third degree. It is hardly necessary to say that this is contrary to the method of counting degrees which has been well established in the Punjab, including the Jullundur District, since the annexation. I am not aware of a single case in which an attempt has been made to apply this particular method of reckoning degrees of relationship, and counsel for the respondents frankly admitted that it was wrongly recorded.”
In Isa Khel Tahsil, the mode of computation is from the collateral to the common ancestor both being counted (3). Amongst the parties (Pathans in this case) belonging to the Mianwali Tahsil, formerly part of the Bannu District, the mode of computation was to count from the collaterals to the common ancestor both being included (4).
According to the general rule obtaining throughout the Punjab, the rule as to the computation of degrees of relationship is to calculate from the deceased to the common ancestor of the claimants, the deceased and the ancestor being each counted as one. But according to the Riwaj-i-am of Isa Khel and Bannu Tahsils, the rule is that the calculation must be made from the collaterals claiming to the common ancestor, each counting as one. Mianwali Tahsil being a Cis-Indus tahsil separated by the River Indus, from the Tahsils of Isa Khel and Bannu, and differing very materially from those tahsils in character and a population, must be presumed to be governed by the general rule of the Punjab (1).