(18) Entries in Riwaj-i-am opposed to general custom and unsupported by instances—presumption is that these are correct unless rebutted:
In Labh Singh v. Mango, Eforde, J., in laying down that a Riwaj-i-am recording even a special custom (whether supported or unsupported by instances) is a piece of evidence which, if unrebutted, is sufficient to decide the case, remarked:-
“In 48 P.R. 1909 the Chief Court of the Punjab from whose judgment the appeal to the Privy Council had been brought (see 45 P.R. 1917) had held that an entry in a Riwaj-i-am recording a special custom, but without giving instances in support of it, was special custom, but without giving instances in support of it, was insufficient as evidence to cast the onus of rebuttal upon the side contesting such custom. Reid, J., who delivered the judgment of the Court, referring to certain decisions of the Chief Court observed: ‘four judges of this court held that an entry in the Riwaj-i-am, unsupported by instances, does not justify modification of the ordinary custom and again ‘answer must be supported by instances to be of any value.’ In dealing with this matter their Lordships of the Privy Council expressed the opinion that the Chief Court was ‘in error in supposing that the defendant did not discharge the onus that lay on his of establishing the custom he alleged and they concluded by saying that in their opinion ‘the statements contained in the Riwaj-i-am form a strong piece of evidence in support of the custom, which it lay upon the plaintiffs to rebut.’ Mr.........’s argument that the case is distinguishable from he present one in as much as the special custom recorded in the Riwaj-i-am in that case was not opposed to general custom, whereas in the present it is, does not seem to me to be of any substance. In point of fact their Lordships of the Privy Council, in the case referred to, assumed that there was a general custom among the agricultural tribes of the Punjab which was opposed to the special custom recorded in the Riwaj-i-am but was in accordance with the express exception to the principle emphasized by the Privy Council as to the value to be attached to any entry contained in a public record of this nature, that the recorded entry is opposed to general custom........... The principle upon which an entry in a Riwaj-i-am is a admitted as a piece of evidence conclusive of the facts stated, unless rebutted, is that it is an official record kept by a person upon whom there is a public duty to mahe entries in it only after satisfying himself of the truth of those entries, and accordingly the documents itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidential value of any public book, register or document, may be attacked. The principle upon which their Lordships of the Privy Council relied upon the entry in the Riwaj-i-am in the case already referred to, is based upon the well established rules of the law of evidence in England which have been given statutory expression in section 35 of the Indian Evidence Act.”
The learned Judge after citing the decisions in 84 P.R. 1917; 13 P.R. 1919; 1921, 2 Lah. 366; 1922, 4 Lah. 99 and 1924, 5 Lah. 364, where it was laid down in effect that a Riwaj-i-am opposed to the general custom and unsupported by instances was not sufficient to shift the onus to the party attacking the custom, recorded in that document, proceeded:-
“It seems to me that in these five decisions of this court the Judges have by progressive stages returned to a proposition which has been expressly dissented from by Privy Council....... I must, therefore, hold that n entry in a Riwaj-i-am recording a special custom is prima facie proof of that custom and places the onus of rebuttal upon the party disputing the correctness of the entry.”
In the same case, Campbell J. remarked:-
“The rule is put in Beg v. Allah Ditta 45 P.R. 1917 (P.C.) perfectly plainly. Statements in a Riwaj-i-am which is public record prepared by a public officer in discharge of his duties and under Government rules are a strong piece of evidence that their contents are true, and that strong evidence must be believed unless rebutted by the party against whom it tells. Of the numerous methods of rebuttal one is that which succeeded in 84 P.R. 1917, namely, to convince the Court from an examination of other portions of the Riwaj-i-am that it had not been compiled in a properly careful manner, or that for other reasons it is not a reliable record. But the fact that a statement of custom in Riwaj-i-am is not supported by instances, does not in itself provide the necessary rebuttal, and if on an issue regarding the existence of an exception to a general rule of custom the sole evidence offered is a Riwaj-i-am entry without instances, the issue must be decided in accordance with that entry.”
This ruling has invariably been followed in subsequent rulings of this court. In Sardar Shah v. Mst. Sardar Begam, it has been held that a statement in a Riwaj-i-am opposed to general custom though unsupported by instances possesses much evidentiary value. An entry therein of a special custom is prima facie proof of that custom and places the onus of rebuttal on the party disputing the correctness of the entry.
An entry in a Riwaj-i-am recording a special custom is prima facie proof of that custom and must be rebutted by the party disputing its correctness. The only question in these cases in the quantum of proof required to rebut the presumption.
An entry in the Riwaj-i-am, recording a special custom, is admissible to prove the statement alleged therein even if the statement be unsupported by instances and the onus of rebuttal is upon the party disputing the correctness of the entry.
In Bhag Singh v, Jai Singh, it was held that an entry in the Riwaj-i-am in favour of the so called special custom like Chundavand was in important piece of evidence in support of it and was sufficient to shift the onus to party challenging it. The burden of proof would be comparatively light in view of the general custom in the province being opposed to the chundavand rule.
The remarks in italics were not, however, approved in Fazli Hussain v. Tafazal Hussain.
(19) Rebuttal of statements of custom in Riwaj-i-am:
It is thus clear that in view of the decisions of their Lordships of the Privy Council in Beg v. Allah Ditta (45 P.R. 1917 P.C.) and Vaishno Ditti v. Rameshvri (1928 P.C. 294: 10 Lah. 86 P.C.), Courts in this province are bound to make the initial presumption in favour of the entries in the riwaj-i-am irrespective of the fact whether the custom, as recorded, is in accord with the general custom or not. This presumption, however, is rebuttable. The quantum of evidence necessary to rebut it will vary with the facts and circumstances of each case; where the riwaj-i-am lays down a custom which is in consonance with the general agricultural custom of the province, very strong proof will have to be produced to displace this presumption, but where the custom recorded in the riwaj-i-am is opposed to the rules generally prevailing, the presumption will be considerably weakened.
The observation of Fforde J. in Labh Singh v. Mst. Mango, that the ‘entry in a Riwaj-i-am is admitted as a piece of evidence conclusive of the facts stated unless rebutted,’ is liable to be misunderstood. ‘Conclusive proof’ is defined in section 4 of the Indian Evidence Act, 1872. That it was never the intention of the learned Judges to use the word ‘conclusive’ in this sense is clear from a passage in the same judgment wherein it is remarked—“The principle upon which an entry in a Riwaj-i-am is admitted as a piece of evidence conclusive of the facts stated unless rebutted, is that it is an official record kept by a person upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, and accordingly the document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which any public book, register, or document may be attacked.”
In Kahan Singh v. Gopal Singh the same Judges held that a general proposition that an entry in a riwaj-i-am, unsupported by instances, is of little evidentiary value and insufficient to cast the onus of rebuttal upon the other side, is unwarrantable. An entry in the riwaj-i-am, though unsupported by instances, imposes the burden of proving that it was an incorrect statement of the custom on the party who challenges it. Similarly, it was held in Ahmad v. Pahlwan that an entry in a riwaj-i-am though unsupported by instances, is a strong piece of evidence, which it lies upon the opposite party to rebut, in favour of the truth of the statements of custom which it contains. To the same effect are at he observations of Tek Chand J, in Mst. Santi v. Dhram Singh. In Mohammad Khalil v. Mohammad Baksh it was held that Riwaj-i-am not carefully compiled and evidence showing what custom should be and not what it is, has no evidentiary value. Riwaj-i-am of Jalandhar District was held not reliable.
Of the numerous methods of rebutal one is that which succeeded in Waziar v. Mst. Maryam, namely, to convince the court from an examination of other portions of the Riwaj-i-am that is had not been compiled in a perfectly careful manner, or that for other reasons it is not a reliable record.
But where a particular paragraph of the Riwaj-i-am is supported by definite instances the presumption of correctness which attaches thereto is not necessarily rebutted by an adverse finding to the effect that the Riwaj-i-am as a whole should be received with caution.
As observed by Currie J. in Sajjan Singh v. Mst. Dhanti—“Certain answers might be shown to be at variance with the real custom if a sufficient number of instances were produced against the custom as stated, but it would, in my opinion, be unsafe to reject any particular statement in the Riwaj-i-am merely on the ground that a custom had been wrongly stated with regard to some other matter.”
But the matter is different where, without citing any instances, a Riwaj-i-am which has been imperfectly compiled describes a special custom opposed to the general custom of the Province and the great mass of authorities. In that case statements in the Riwaj-i-am carry very little weight unless supported by instances. This case related to the Riwaj-i-am of the Gujranwala District.
It was observed in Khushia v. Haji regarding Riwaj-i-am of the Gujarat District—“As pointed out by the District Judge it does not appear that when the Customary Law of 1922 was compiled, the attention of the tribes concerned was drawn to the previous answer of 1868. In fact no specific question dealing with the rights of a widow to make a gift in lieu of services was put at all. There are some other circumstances diminishing the authority of work of 1922 (which was not published until six years after the conclusion of the settlement during which it was compiled) and these will be found in the preface of the book. In my judgment the onus arising from an answer of this kind in view of the custom previously recorded is very slight.”—per Skemp J.
To the same effect are the observations of Tek Chand J. about the Riwaj-i-am of the Sialkot District in Mangal Singh v. Mst. Inder Kaur—“There is no indication in the printed Riwaj-i-am that these various aspects of the problem were explained to the persons who were summoned to declare the custom, and their replies were given separately to each component part of this omni but question. Most of the persons present must have been illiterate or men of little or no education, and it is by no means clear that before giving the cryptic reply” that married daughters do not inherit in the presence of the collaterals “they realised the full significance and implications of this highly involved and all embracing question” cover as it does all possible cases of daughter’s succession in respect of property of every conceivable relation of the deceased......It will thus be seen that the entry is highly ambiguous and it cannot be said with any degree of certainty that the distinction between succession to ancestral and self-acquired property was clearly present to the minds of the persons on whose statements the answer was based.”
In Sham Das v. Mst. Moolo Bai it was held—“The value of the Riwaj-i-am (of the Muzaffargarh District) has been challenged on the ground that the replies of the different castes of Hindus were not separately recorded and that a consolidated answer referring to all the castes of Hindus cannot be an accurate representation of the customs of such a diversity of castes. It is quite sufficient to say in this connection that the Riwaj-i-am does not inspire as much confidence as it would have done had it been prepared with greater attention to detail.”
A Riwaj-i-am which contains contradictory answers to the same question cannot be depended upon and can carry no presumption of truth.
Speaking about the Riwaj-i-am of the Jhelum District, Shadi Lal, C. J. observed in Sultan v. Mst. Sharfan—“The plaintiffs place their reliance upon an entry in the Riwaj-i-am of the district which lays down that an unmarried daughter in the absence of male lineal descendants succeeds to the property of her father only until marriage, and that no distinction is made in the matter of inheritance between self-acquired and ancestral property of the father or between moveable and immoveable property. As laid down by their Lordships of the Privy Council in Beg v. Allah Ditta, an entry in the Riwaj-i-am raises a presumption in favour of the custom recorded therein, and the onus lies upon the daughter to rebut that presumption. It is, however, clear that the general custom of the province favors the succession of the daughter to the acquired property of her father in preference to collaterals vide Rattigan’s Digest of Customary Law, para 23 sub-para 5; and that the custom invoked by plaintiffs must be treated as an exception to the general rule. It is to be observed that Code of Tribal Custom prepared by Mr. Talbot at the last settlement of the district does not mention any instances in support of the exclusion of the daughter from the self-acquired property of her father and the declaration that a married daughter cannot inherit even the self-acquired moveable property of her father verges on an absurdity. Indeed, Mr. Talbot himself in his preface points out that the Code must not, in all cases, be regarded as a correct record of the customs actually existing and that “the more intelligent tribesmen who usually act as spokesmen on an occasion of this kind sometimes allow their opinion as to what customs are expedient to override their knowledge of the customs as they really are.”
The considerations set out above leave no doubt that the onus placed upon the daughter by the entry in the Riwaj-i-am is a light on and does not require much evidence to repel it.”
To the same effect are the observations of Tek chand J. about the Riwaj-i-am of the Jhelum District, in Pahalwan Khan v. Bagga—“Now generally speaking the Customary Law does not recognize any distinction between the right to make a transfer inter vivos and one to take effect after the death of the transferor and it has been held that where in any particular tribe the former right is recognized very strong evidence will be required to prove that the latter does not exist. See 48 P.R. 1903 [F.B.], and the authorities collected in section 56-B of Rattigan’s Digest. If to these considerations is added that fact that this Riwaj-i-am has been judicially found to be defective in some other particulars also the presumption against the validity of the will in question arising from the aforesaid entry, becomes very light indeed.”
Addison J. remarked in Devan Singh v. Mst. Santi as follows:- “According to the answers to questions 45 A and B of that Code, collaterals up to the fifth degree exclude daughters as regards ancestral or self-acquired property in the three tehsils—Jalandhar, Nakodar and Phillaur, while collaterals up to the 7th degree in the Nawanshahr tehsil exclude daughters with respect to both the properties. In accordance with the decision of their Lordships of the Privy Council in Beg v. Allah Ditta (45 P.R. 1917 P.C.), this entry is a strong piece of evidence in favour of the collaterals-appellants in support of the custom alleged by them, and as I have remarked in various other judgments of this statement their Lordships cannot be whittled away by general remarks that daughters are not usually consulted when an enquiry is made into the customs of the people or that the custom generally followed in the Punjab is to the contrary. Similarly, there is little use in attempting to reason a priori that the purports to be or should be is a compilation of the statements of custom as given by the people.”
An entry in Riwaj-i-am as to custom raises an initial presumption of its existence but the presumption is a rebuttable one. The presumption is rebutted if it is shown that the Customary Law containing the entry of the custom is an imperfectly compiled document. Thereupon the onus of proving the custom reshifts on the party relying on the existence of custom in its favour.
The sum and substance of all the rulings cited above is that as laid down by their Lordships of the Privy Council in Beg v. Allah Ditta [45 P.R. 1917 P.C.], an entry in the Riwaj-i-am raises a presumption in favour of the custom recorded therein, and the onus lies upon the party challenging its correctness to rebut that presumption. But where it is shown that the Riwaj-i-am contains on the fact of it intrinsic evidence of being prepared very carelessly and imperfectly, and records numerous patently erroneous, inconsistent, unintelligible, and highly ambiguous entries, and is otherwise not a very trustworthy or reliable document, the initial presumption in favour of the correctness of custom recorded in such Riwaj-i-am is weak, and the onus of rebuttal would be very slight indeed. If certain portions of a Riwaj-i-am are shown to be compiled defectively it does not necessarily follow that other portions of the Riwaj-i-am are also unreliable and should not be followed.
Custom is a question of fact and not of inference. Where the entries in the Riwaj-i-am assert that a certain custom exists among a particular sub-division of the Rajput tribe instances relating to other sub-divisions of the tribe are not sufficient to rebut the presumption arising from the entries in the Riwaj-i-am.
(20) Earlier v. Later Riwaj-i-am –contradictory entries—which to be relied upon—changing custom:
When there is a conflict between the entries as recorded in the earlier Riwaj-i-am and those recorded in the later Riwaj-i-am, which Riwaj-i-am would usually prevail ? The following observations by Addison J. in Fazl Hussain v. Tafazil Hussain may be studied with advantage:-
“Further, even if the Riwaj-i-ams of 1911-12 were not subject to the above objections, their value is well defined by Roe and Frizelle JJ. in Rahiman v. Bala. They said that the parts of a wajib-ul-arz referring to customs were not provisions intended to be in force for a limited period only—there were statements that a certain custom existed. The statements might or might not be correct but, if it was correct, there would be for those alleging that a change had subsequently taken place to prove the allegation. Thus the production of a later record of rights containing entries opposed to the earlier ones would not doubt be some proof of such a change but there would then merely be a balance of evidence on either side and it could not be said that the second record destroyed or abrogated the earlier one. With the opinion of these learned Judges I am with all respect in full agreement. The subsequent Riwaj-i-am can never by itself destroy the effect of the first, while there is always the difficulty in cases where it is alleged that an old custom has been abrogated by a new one that, when it is held that the old custom has gone, it becomes a question whether the parties should not then be bound by their personal law, rather than by an alleged new custom, which has arisen recently....
It was again said in Hasan v. Jahana by a Division Bench as follows:-
“Custom is said to be in a fluid condition in the Punjab, capable of adapting itself to the varying conditions, views and opinions of the community among which it prevails, but no custom can be recognized as of binding authority unless it is generally, if not universally, recognized, and this is especially true where an old established custom is alleged to be replaced by a new one. It is obvious that the attempts of the agnates among the Phapras to abrogate the old custom have been few and their success still less and that sonless owners among them are still going on making alienations under the old established rule. It cannot be said, therefore, that the old custom has been set aside or has felled into disuse,” See also Natha Singh v. Harnam Singh.
It is true that another Division Bench in Ranjha v. Bulanda said that later record was quite as valuable as the earlier Riwaj-i-am if not more so, and they did not see why it should be inflexible presumption that the previous Riwaj-i-am correctly recorded the custom. With great respect, I think, that the other authorities quoted contain the correct rule; but in any case this decision cannot influence the present case as admittedly the prior documents were properly and correctly recorded.
A very similar case to the present is Hira v. Shibbu in which it was held that the change in the statement of custom merely showed that a previous custom was in the process of abandonment and not that it had been abandoned. This is the highest value which can be attached to such subsequent statements. It may be the case that it is not necessary to prove that a custom in the Punjab is ancient, as has been held, though as to this I prefer to offer no opinion, but it is certainly necessary at least to establish that it is being invariably or very generally followed for some time in the past; for, otherwise we would have to find some other name than custom for such a variable process.”
In this particular case an entry in the Riwaj-i-ams of 1865 and 1892, were preferred to an entry in the Riwaj-i-am of 1911-12 of Batala Tehsil, District Gurdaspur. Similarly, it was remarked in Walayat Shah v. Mohammad Hussain—“The question, therefore, resolves itself into this. Is the present Riwaj-i-am in the Jhelum District which is unsupported by instance, rebutted by the previous Riwaj-i-am, by the fact that the Riwaj-i-ams of the neighboring districts are in favour of the contention of the defendants-appellants and by the fact that the one district whose Riwaj-i-am favors the plaintiffs-respondents shows a case where gift was made and up-held so far as Sayads are concerned. In my opinion, bearing in mind that the West Punjab is more under the influence of Mohammedan Law than the Central Punjab, and that the burden of the issue, which rests on the defendants-appellants, undoubtedly is slight, the Riwaj-i-am has been rebutted, and I would hold that a Sayad of Chak Abdul Khaliq has power to make an unequal distribution of the ancestral property in the presence of sons by making a gift of a portion to a particular son.” Per Dalip Singh J.
In Ghulam Sarwar Khan v. Abdul Majid Khan Agha Haider J. observed—“The Riwaj-i-am, according to the leading case on the subject reported in Beg v. Alla Ditta, is the most important document as it is a record of the customs prevailing among the particular communities with which it deals. It, however, raises only a presumption being subject to rebuttal.
“In Rahiman v. Bala it is laid down that the production of a later record-of-rights containing entries opposed to the earlier one would no doubt be some proof of a change, but there would then merely be a balance of evidence on either side, and it could not be said that the later record destroyed or abrogated the earlier one. Now, as already stated, the Riwaj-i-am of the year 1878 contains an old and well-established custom supported by a number of instances, though it refers to some unspecified observations from the general rule.
“We have now to see how far the plaintiffs have succeeded in rebutting the evidence, such as it is supported by the Riwaj-i-am of the year 1908 in support of the custom on which the defendants rely. As stated above the whole controversy reduces itself to the question of rebuttal.
Where Riwaj-i-ams of 1879 and 1909 were in conflict, the Court relied on the earlier one.
In Mst. Jhandi v. Chiragh Din, Tek Chand J. observed..... “It was contended on behalf of the plaintiff-appellant that in view of the entry in the latest and more carefully prepared Riwaj-i-am (1911-14) the initial presumption is in favour of the custom set up by her and that the onus ought to have been placed upon the defendant-respondent to prove the contrary. On the other hand, the respondent’s learned counsel urged that as succession to Mehraj Din opened out in 1904 the onus ought to be regulated according to the entries in the Riwaj-i-am of 1891-94, and it lay on the plaintiff to affirmatively establish that by custom she had a right to succeed. After fully considering the arguments of the learned counsel, I am of opinion that in view of the conflict in the Riwaj-i-ams the learned Subordinate Judge followed the proper course in keeping the onus open and calling upon both parties to prove their respective contentions.
In Lajpat Rai v. Karam Chand and others, it was remarked by Abdur Rashid J.—“It was contended that the presumption of correctness regarding the question of custom in the circumstances of their case attaches to the Riwaj-i-ams of 1865 and 1893 and the onus of proving that the custom which existed in 1865 and 1893 had been abrogated or given up by the Sainis of the Pathankot tehsil ought to have been placed on the plaintiff. Reliance was placed in this connection on 1925 Lah. 206, and 1932 Lah. 222. The soundness of the view taken is 1925 Lah. 20, has been considerably shaken by the observations made in 1928 Lah. 893, (1) and 1929 Lah. 381, 1932 Lah. 292 is distinguishable as in that case succession had opened out before 1910, and it was observed that the entries made in the subsequent Rewaj-i-ams of 1911 and 1912 might have some evidentiary value, but this value would be very low as the custom to be ascertained was that existing in 1910 and not in subsequent years. Reliance was, therefore, placed on the entries in the Rewaj-i-am of 1865 and 1892. In the present instances the adoption took place in 1928, and obviously the entries in the Rewaj-i-am of 1913 must govern the case.”
In Sher Mohammad v. Zulfiqar, (2) the defendant produced the earlier Rewaj-i-am of 1907 in which it was stated that a proprietor could make unequal distribution of his property in favour of his heirs including his son. This earlier Rewaj-i-am was supported by four instances. The only instance cited in the present Rewaj-i-am from the tribe of the parties, namely, Sials, also tended to support the defendant’s case. It was held that on the ground that the earlier Rewaj-i-am was supported by six instances at least and no instance supporting the present Rewaj-i-am had been cited by the plaintiffs, and there was one judicial case supporting the defendant’s case (101 I.C. 852) the earlier Rewaj-i-am was to be relied upon.
Again, as pointed out in Kesar Singh v. Achhar Singh, (3) the earliest Rewaj-i-am generally serves as a useful check on subsequent Rewaj-i-am and may be considered as the most important document in which custom was recorded. For the earliest Rewaj-i-am was prepared at a time when the villages were less sophisticated and less likely to be influenced by interested motives in giving their replies to the enquiries as regards customs governing them.
It was observed by Jai Lal, J, in Fazal Din v. Charan Das (4)—“The latest authority of this Court is that the later Rewaj-i-am must carry more weight than the previous one and this is on the ground that originally a statement of custom in the Rewaj-i-am is enforceable only during the currency of the settlement.” With all respects, it is however, submitted that significance of these remarks is not clear in view of the rulings cited above. No authority has been actually quoted in support of it.
From what has been stated above it seems sufficiently clear that whether an earlier Rewaj-i-am is to be preferred to a later Rewaj-i-am or vice versa is always a question of fact and will be decided on merits in each particular case. In view of the Privy Council ruling reported as Beg v. Allah Ditta (44 Cal. 79: A. I. R. 1916 P. C. 129), initial presumption will be in favour of the entry in the latest Rewaj-i-am but if this is shown to be unreliable on account of entries in the previous Rewaj-i-am to the contrary coupled with some other evidence, the onus will be at once shifted and it will be for the person who relies on the entry in the latest Rewaj-i-am to prove that it correct. As pointed out in Mst. Jhand v. Chiragh Din (1928, 10 Lah. 422) the proper course for following in this case will be to keep the onus open and call upon both the parties to prove their respective contentions.
The entry in the Rewaj-i-am no doubt raises the initial presumption that it is correct, but this presumption can be amply rebutted by the instances and judicial decisions in which after inquiry this Rewaj-i-am has been found to be an incomplete and imperfectly prepared document(1).
In Fateh Chand v. Siri Pat Singh (2), it has been held that according to the Rewaj-i-am of the Kangra District, sons are bound to discharge the debts of their father even though it may involve attachment and sale of ancestral property. Evidence of witness who merely states that ancestral property cannot be sold to pay off the debts of the father without supporting their allegations by citing any instances is not sufficient to rebut the presumption of correctness attaching to the entries in the Rewaj-i-am to the contrary.
See also in section II, on Rewaj-i-am v. oral instances and Rewaj-i-am v. judicial decisions.
Entries in Riwaj-i-am affecting adversely the rights of females have been the subject of comments in judicial decisions from time to time. In Har Narain v. Mst. Deoki (3) it was observed by Roe, J.—“There is no doubt a general tendency of the stronger to override the weak, and many instances may occur of the males of a family depriving females of rights to which the latter are legally entitled. Such instances may be followed so generally as to establish a custom even though the origin of the custom were usurpation, but the courts are bound to carefully watch over the rights of the weaker party, and to refuse to hold that they have ceased to exist, unless a custom against them is clearly established.’
These remarks were endorsed by another high authority, Clerk, C.J. (Reid, J. concurring) in Maula Baksh v. Mohammedan Baskh (4). In the meantime another Division Bench, of which the senior member, Robertson, J. was the author of one of the official codes of tribal custom, had held in Rahim Shah v. Hussain Shah (5):
“It must be remembered that in these cases it is the rights of women which have been under discussion, and the eh record before us shows that the male relations in many cases at least have been clearly more concerned for their own advantage than for the security of the rights of widows and other females relatives with rights or alleged rights over family property, and the statements of the male relatives, in such matters, have to be taken cum grano salis where they tend to minimize the rights of others and to extend their own.”
Again, in Bholi v. Man Singh (1) where the Riwaj-i-am under consideration had laid down that daughters were excluded by collaterals, even up to the tenth degree, from succession to the property of their fathers, the learned Judges remarked—“it may be conceded that as land is rising in value the landholders are becoming more and more anxious to exclude female succession . they are ready to state the rule against daughters as strongly as possible, but if the custom is so well established, it is strange that they are unable to state a single instance in point on an occasion like the compilation of the Riwaj-i-am , when detailed inquiries are made and leading men are supposed to give their answers with deliberation and care.
In Ganpatrai v. Kesho Ram (20 it was observed—“The entries in the wajib-ul-arz are undoubtedly in favour of the plaintiff’s contention. But they seek to support a custom in defeasance of the rights of persons who were no parties to that declaration, i.e., the female relatives of the signatories, and it is quite clear that no body of men deprive another set of right-holders under personal law by their mere ipsi dixit that their custom is different from personal law. No doubt usurpation successfully carried out for a long time may possibly eventually establish a custom, but it is necessary in such a case to show not merely that certain persons desire such and such to be the custom to the detriment of the rights of others but that such and such have really become a binding custom fully established and followed.”
Again, it has been held in Mohammad v. Mst. Jiwani (3) that the Riwaj-i-am carries with it the initial presumption of correctness, and the onus of proving that the entries in the Riwaj-i-am do not contain a correct record of the custom applicable to the parties lies on the person who challenges the correctness of the Riwaj-i-am. But the onus is not equally heavy in all cases. If the custom embodied in the Riwaj-i-am is opposed to the general custom of the Province, the presumption in favour of the Riwaj-i-am is weak and can be easily rebutted. Where at the time of the preparation of the Riwaj-i-am the women of the tribe are absent and where the entries are opposed to general custom and also adversely affect the rights of women the onus will be easily shifted to the other side.
Where the Riwaj-i-am is clearly in favour of collateral succession in preference to daughters the onus is on latter to show that the Riwaj-i-am was an incorrect statement of custom. But in the case of women’s rights slight evidence is sufficient to shift the onus. (4)
Where the entries in Riwaj-i-am were against the succession of married daughters both as regards ancestral and self-acquired property, the onus should be placed on the daughters to prove that even after their marriage they excluded the collaterals if the property was the self-acquired property of their father. But the presumption in such cases is so weak that on a mere proof of a small number of instances to the contrary it stands rebutted and the onus is then shifted on to the collaterals to prove that they exclude the married daughters from the self-acquired property of their father )1).
In Khan Beg v. Mst. Fateh Khatun (2), it was remarked that the quantum of evidence necessary to rebut the presumption arising from the entries in the Riwaj-i-am would vary with the facts and circumstances of each case:
Where there lays down a custom which is in consonance with the general agricultural custom of the province, very strong proof will have to be produced to displace this presumption, but where this is not the case and the custom recorded in the Rewaj-i-am is opposed to the rules generally prevailing, the presumption will be considerably weakened. Again, where the Riwaj-i-am affects adversely the rights of females who have had no opportunity whatever of appearing before Revenue authorities, the presumption will be weaker still and only a few instance might suffice to rebut it.
In Sultan v. Mst. Sharfan (3) four instances in favour of the daughters against one instance in favour of the collaterals were considered quite sufficient to discharge the onus that lay on the daughters in view of the entries in the Riwaj-i-am in favour of the collaterals.
Similarly, in Narain Singh v. Chand Kaur (4), six instances in favour of the daughters supported by reliable documentary evidence while not a single well established instance in favour of the collaterals, was held sufficient to discharge the onus placed on the daughters as records succession to self-acquired property of her father, among the Jats of the Jalandhar district.
In a case relating to succession to the self-acquired property by the daughters amongst Mohammadan Rajputs of the Hissar District, it was observed—
“As has been pointed out by their Lordships of the Privy Council where a custom is acknowledged by which woman’s right to succeed is admitted, such an acknowledgment has great force, but it is equally true that where the Riwaj-i-am is to the contrary the onus upon the females is not so heavy as it would be in the case of males. In this particular case there is a note by the officer who prepared the Riwaj-i-am ......that he has great doubts as to the accuracy of the reply that daughters in no case inherit their father’s property whether ancestral or acquired and he gives instances against the alleged custom including one of Mohammedan Rajputs of the district. He is of opinion that the people who give no explanation of their cases have stated their wishes for the future in this matter and not their existing custom. Besides this note at least two instances have been produced by the defendants in which daughters succeeded to the estate of their father.... On the other hand the plaintiffs have not been able to prove a single instance in which collaterals have excluded daughters in succession to self-acquired property of the father.....After considering this evidence we are of opinion that the presumption raised by the Riwaj-i-am has been rebutted in this particular case and that daughters have a right to succeed to the self-acquired property of their father.”(1)
To the same effect, see Khuda Dad v. Mst. Rabia Bibi (Sialkot District), (2), Khuda Dad v. Mst. Rabia Bibi (3), Ghulam Mohammad v. Mst. Ralli (Jalandhar District) (4), Ahmad Khan v. Mst. Sat Bharan (Shahpur District) (5) and Mst. Mohan v. Mst. Rali (6).
This view, however, has not been accepted by Addison, J. In Kesar Singh v. Achhar Singh (7) he held that an entry in the Riwaj-i-am about the existence of a custom was a strong piece of evidence in support of that custom which cannot be subtracted from by general considerations, such as, that daughters succeed in this province amongst the majority of tribes to the self-acquired property of their sonless father (8). See also his views quoted in Diwan Singh v. Mst. Santi (9).
It was observed in a recent Full Bench ruling of this Court reported as A. I. R. 1937 Lah. 451 :--“It has been argued that the effect of the statements in the Riwaj-i-am is weakened by the fact that women were not in those days consulted by the officer compiling the Customary Law. We do not agree. In India, as indeed in all other countries, women until recently have had nothing to do with the making either of law or custom. It is possible that in a few hundred years, when our present era may have been wholly forgotten, custom may be created in favour of the rights of women if in the meantime legislation has not altered the existing law.”
It would thus appear 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 Riwaj-i-am, and each case must be decided on its own peculiar facts. Nor in this case a rule can be laid down as to the number of instances to the contrary which would suffice to rebut the initial presumption raised by the entry of custom in the Riwaj-i-am. 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 which would obviously be decided after taking into consideration all the facts of the case.
(22) Official Manual of Customary Law as substitute for the Riwaj-i-am—evidential value
As pointed out by the Privy Council in Vaishno Ditti v. Rameshri (1) “Manuals of Customary Law in accordance with Riwaj-i-am have been issued by authority for each district, and in their Lordships’ opinion stand on much the same footing as the Riwaj-i-am itself as evidence of custom.” Where therefore a reference is made to the Manual of Customary Law for the purpose of proving a custom, the mere absence of a copy of the Riwaj-i-am on the record is immaterial (2). The same view has been upheld in Badlu v. Mst. Umara Kaur (3) and Mst. Chajji v. Bhagat Ram (4). See also A.I.R. 1936, 111 Pesh.= 163 I.C. 52 at p. 54.
The Riwaj-i-am is usually prepared in vernacular in the first instance and the English version is generally abstract of the same; but the vernacular version is checked by the Settlement Officer when preparing the English abstract and he may at time find it necessary to alter the statements of custom in the vernacular Riwaj-i-am if he finds it to be incorrect. The question whether the vernacular of the English version should be preferred must, therefore, depend upon the circumstances of each case. In order to determine whether the vernacular or the English version contains a correct statement of custom it is useful to refer to the compilation of Riwaj-i-am prepared at the previous settlements of the district (5).
If there is a difference in the original vernacular version and the English version, the English version (of the Customary Law) should be preferred on the ground that it is the final draft (6).
In Jagat Singh v. Ishar Singh (7) Abdul Qadir, J. rejected a statement of custom as recorded in the Customary Law of the Amritsar District, observing:-“On this particular point the Manual states the proposition too broadly to be accepted as correct, in as much as it is materially at variance with the view embodied in Art. 48 of Rattigan’s Digest.....Art. 48 may, therefore, be taken as a more reliable basis for decision in a case like this.” It may, however, be submitted that this ruling does not in any way underrate the value of the Manual of the Customary Law in general as a piece of evidence, but is covered by what has been stated in Article above, viz., loss in intrinsic value of the document on account of its defective compilation.
In Rajendra Chand v. Kishen Ditta (1) it was held that where an answer to question recorded in Riwaj-i-am of particular Tehsil is rejected by the Settlement Officer in preparing consolidated Riwaj-i-am of the District, custom as recorded in consolidated Riwaj-i-am should be preferred.
The Customary Law of the Punjab is an unwritten law and when a party relies upon a particular custom, he is required to prove it by evidence. These may consist of instances in which the alleged custom was asserted or followed, or of public records, e.g., Wajib-ul-arz and Riwaj-i-am, containing the statement of the custom. Both Wajib-ul-arz and Riwaj-i-am are admissible to prove custom, though they are not conclusive. The presumption afforded by these may be rebutted. Similarly, Manuals of Customary Law are prepared in accordance with the Riwaj-i-am and are issued by the authority of each district, and stand on much the same footing as the Riwaj-i-am. The fact that a party relies on Wajib-ul-arz to support the alleged custom and does not refer to Manual of Customary Law in his pleading cannot prevent him from relying upon them, at the appellate stage (2).
In the case of recitals in manual of customary law, onus is on person who challenges its correctness. If any party urged to the contrary, the onus shifts on to that party to establish that what has been recited in the manual of customary law is incorrect.(3)