There are four leading canons governing succession to an estate amongst agriculturists. First, than male descendants invariably exclude the widow and all other relations ; second, that when the male line of descendants had died out, it is treated as never having existed, the last male who left descendants being regarded as the proprietors, third, that a right of representation exists, whereby decendants in different degrees from a common ancestor succeed to the share which their immediate ancestor, if alive, would succeed to ; forth, the females other than the widow or mother of the deceased are usually excluded by near male collaterals, an exception being occasionally allowed in favour of daughters or their issue, chiefly amongst tribes that are strictly endogamous.
In the case of several sons the ordinary rule is, that they take per capita and equally, primogeniture not being recognized except in the case of ruling Chiefs or Jagirdars whose ancestors were ruling chiefs or in regard to the succession to the post of Lambardar. But sometimes an elder son is allowed an extra share, and amongst some tribes the division in the case of sons by different wives is per stirpes : these, however, are exceptional cases, and persons who claim a right of this kind must be required to prove that it is recognized by the customary law applicable to them. In a contest between relations of the whole and the half blood, the decision will largely depend on the rule followed at the distribution of estate on the death of the common ancestor, which will give rise to a presumption in favour of the continuance of the rule then adopted.
6. Sons are first entitled to the inheritance, whether the deceased was joint with others or not.
(2) General rule of succession.
The general rule of succession under the Customary Law in the Punjab is that succession first goes to the direct male lineal descendants of the last owner to the exclusion of female descendants, and failing them, subject to certain life-estates in favour of some female, to the collaterals, among whom the right of representation exists, all heirs sharing equally by degrees.
Custom excludes females and their offspring with verying degrees of strictness. As a rule, daughters and their son, as well as sisters and their sons are excluded by near male collaterals. In the absence of male lineal descendants the widow of the deceased ordinarily succeeds to a life-estate. If a person dies leaving no male lineal descendants or a widow then his mother succeeds to a life-interest, provided she has not re-married. A daughter’s right to the ancestral landed property of her father is recognized when there are no male lineal descendants; nor a widow or a mother of the deceased; nor any near male collateral of the deceased, surviving him. A daughter’s son is not recognized as an heir of his maternal grandfather, except in succession to his mother. A married daughter sometimes excludes near male collaterals, especially amongst Muhammadan tribes. Sisters are usually excluded as well as their issues. Last of all come the village proprietors, who get the property when there is no other heir. But when the custom does not recognize the right of proprietary body, the estate reverts to the Crown.
(3) Daughter-whether any right to succeed in the presence of sons or direct male lineal descendants?
Daughters are generally excluded by custom from inheritance, in the presence of sons. The onus, therefore, would lie upon the daughter to establish a special custom entitling her to inherit in the presence of the sons or direct male lineal descendants of the last male owner. Where the parties are governed by their personal law and not by custom a daughter may succeed according to the personal law.
Claim of the daughter was disallowed in the following cases:-
113 P.R. 1885 – Brahmins of Sialkot.
52 P.R. 1888 – Mohammadan Khojas of Kasur.
109 P.R. 1888 – Brahmins of Lahore.
35 P.R. 1891 – Non-agricultural Syads of Kharar, Ambala.
105 P.R. 1895 – Hindu Rajputs of Ambala.
30 P.R. 1896 - Telis of Lahore District.
63 P.R. 1911 – Koreshis of Mauza Mianapura, Sialkot City.
92 P.R. 1911 – Agricultural Bokhari Syads, Tahsil Zira.
79 P.R. 1912 – Koreshis of Kasba Thura, Gurgaon.
112 P.R. 1912 – Khattars of Tahsil Fatehjung.
17 P.R. 1913 – Muhammadan Kashmiri, combination-makers, Jhelum City.
C.A. 1550 of 1916 – Vighmal Khojas, Shahdara, Lahore.
I.L.R. 1931, 13 Lah. 366 – Gul Farosh Arains of Amritsar city.
A.I.R. 1933 Lah. 486 – Gujranwala District.
= 15 Lah. 425 I. C. 751
A.I.R. 1934 Lah. 371 – Gishkori Biloches of Jampur Tahsil, Dera
= 15 Lah. 425 F. B. Ghazi Khan District.
Right of the daughter to inherit was recognized in the following cases:-
56 P.R. 1879 – Muhammadan Jogis of Lahore.
89 P.R. 1888 – Gilani Syads of Multan.
36 P.R. 1889 – Agriculturists of Mauza Keshopur, Sirsa.
23 P.R. 1897 – Panzati Arains of Subzimandi, Delhi.
47 P.R. 1900 – Muhammadan carpenters in Multan City.
62 P.R. 1904 – Syads of Tahsil Bannu, if unmarried.
136 P.R. 1908 – Lagheri Biloches of Dera Ghazi Khan.
113 P.R. 1912 – Sheikh artisans of Delhi.
It is clear that under the general rule of agnatic succession a daughter can never inherit. As already stated, incases where the parties are governed by Customary Law the burden of proving that a daughter is entitled to inherit in the presence of the sons or other direct male lineal descendants of the last male owner lies on her. In exceptional cases, however, i.e., where the parties are non-agriculturist Muhammadans living in a town and are governed by personal law, the onus of proving a custom excluding daughters has been laid upon the person alleging it (1).
(4) Murderer and his descendants excluded from inheritance.
It is contrary to public police to allow a murderer to derive from his crime the benefit of succeeding to the property of his victim. Where a person has been murdered with the sole object of securing his property, the murderer as well as his son are excluded from inheriting the property of the deceased, not withstanding that it is ancestral property, as their succession would be opposed to public policy. The murderer’s right in such a case is swept away and with it is carried away the right of every one who claims through (and not merely from) him.
In Mst. Shah Khanam v. Kalandhar Khan (1) P was convicted by a Jirga of the abetment of murder of his half-brother A, and on the completion of 7 years’ sentence, P claimed to succeed as customary heir to his murdered brother’s property and the defendants pleaded (1) that plaintiff was excluded from inheritance on that principle of Muhammadan Law that precludes “the slayer inheriting from the person whom he has slain,’ ‘and (2) that by custom the mother of the deceased was entitled to a life-estate. Held, (i) that the plaintiff was disentitled to succeed upon that principle of public policy which demands that no criminal should benefit by the result of his crime. No system of jurisprudence can with reason include amongst the rights which it enforces, rights directly resulting to the person asserting them from the crime of that person; (ii) that the rule of Muhammadan Law lent support to this principle, though upon the above view it was unnecessary to consider either Muhammadan Law or custom ; (iii) that even if it could be shown that custom expressly recognized the right of an abettor of his brother’s murder, to inherit to the property of the deceased, and to the property of the deceased, and to profit by this criminal act, it would be a custom contra bonos mores and invalid.
Muhammad Khan v. Mst. Sis Bano (2) related to a suit for the possession of the estate of a murdered man by the monor son of the murderer, who was the paternal uncle of his victim. The defendant was the deceased’s sister in whose name the land had been mutated. It was held that both the murderer and his son were incapable of succeeding to the victim’s property. “The true position of the plaintiff in our opinion appears to be that he has no right of inheritance at all in the deceased’s estate. The principle of exclusion applies to all who derive their claim from the criminal” – per Chatterji J.
Similarly, it was observed in Mst. Jind Kaur v. Inder Singh (3) – “As Inder Singh (the son) derives his right to succeed through, though not from, his father (Ramk Singh) his right to succeed is taken away by the criminal act of Ram Singh.” Similar view was held in Har Bhagwan v. Hukum Singh (4). It is contrary to public police to allow a murdere to derive from his crime the benefit of succeeding of the property of his victim but for his murder (5).
Sadhu Singh v. Secretary of State for India (6) has been distinguished. In that case plaintiff’s father, accused in 1898 of the attempt to murder a child, absconded. Proceedings were taken against him under sections 87 and 88 of the Criminal Procedure Code and his property was sold by auction. Plaintiff sued for declaration that the sale should not affect his reversionary right as heir after his father. Held, by a majority of the Full Bench that where ancestral immoveable property held by a person subject to Punjab Customary Law is attached and sold by order of a Criminal Court, under section 88 of the Code of Criminal Procedure the sale conveys the life-interest of that person only and does not extinguish the right of inheritance after his death of his male lineal descendants of collaterals descended from the original holder of the property.
(5) Son’s right to enforce partition during father’s life-time.
The Hindu in this province are governed by the Mitakshara law and according to that law when the father and the sons constitute a joint Hindu family the sons can ordinarily claim partition of the co-parcenary property in the life-time of their father even against his will (see L. R. XV Ind. App. 51). In Hari Kishan v. Chandu Lal (1) however, a Full Bench of the Chief Court, Punjab, has held that though under the Mitakshara system of Hindu Law a son can enforce partition even during his father’s life-time in the Punjab this form of Hindu Law is not in force, and in every case the onus of proving that a son has such a right lies upon the person affirming it. The same view prevails in the North-West Frontier Province (2).
But the mere fact that a son cannot enforce partition of his share during the life-time of his father under Hindu Law does not justify the conclusion that he has no share in the family property during the life-time of his father or that he is not even entitled to claim joint possession of the family property along with the other co-sharers. Thus a son is entitled to sue for joint possession of the family property, although he is not entitled to claim partition of such property during the life-time of his father (3). Under Hindu Law the son’s interest in co-parcenary property is liable to attachment and sale in the Punjab during the life-time of the father, although the son has no power to enforce a partition in his father’s life-time (4).
Under Customary Law a son cannot enforce partition of ancestral immoveable property during his father’s life-time.
1 P.R. 1867 – Muhammadans of Rawalpindi.
78 P.R. 1879 – Takhans of Ludhiana.
113 P.R. 1886 – Brahmans of Sialkot.
109 P.R. 1888 – Brahmans of Lahore.
112 P.R. 1891 – Bairagis of Amritsar
105 P.R. 1895 – Hindu Rajput agriculturists of Ambala.
5 P.R. 1913 – Arora of Sialkot.
“In the Punjab at least, generally the Mitakshara doctrine of a son being born with a share is not known, nor has a son a right to compel partition,” – per Plowdon, J. (5).
“In customary law inheritance does not vest in the son by birth in respect of ancestral property as in Hindu Law by the Mitakshara, so that the son cannot claim to set aside his father’s alienation, or partition in his father’s life-time.” – per Chatterji, J. (1)
See also I. L. R. XIII Bom.534 as relating to Khoja Muhammadans.
7. Sons Share equally
As a general rule, sons, whether by the same or different wives, share equally.
(6) Rule of primogeniture – “Haq Sardari”.
The general rule in the Punjab is that sons whether by the same or different wives, share equally. In some families, however, the eldest son’s right are sometimes considered to be superior to his younger brother’s rights, and either he gets the whole to the exclusion of the latter, or gets and extra share.
The rule of primogeniture means the rule by which the eldest son gets the whole. According to this rule wherever it exists, the eldest son succeeds to the whole estate of his father, moveable and immoveable, to the exclusion of his younger brothers, who are considered entitled only to maintenance.
The onus of proving that a custom of primogeniture obtains in the family, lies upon the party asserting it (2), it being not generally recognized except in the case of ruling Chiefs or Jagirdars whose ancestors were ruling Chiefs.
The custom of primogeniture has been found to exist in the families noted below:-
77 P.R. 1892 – Khanship in Peshawar District.
67 P.R. 1903 – The whole estate known as Tank proper belonged to the Chief for the time being who was both ruler and proprietor, and the succession devolves upon the eldest son of the Chief, the other members of the family being entitled to maintenance only.
47. P.R. 1908 – Kunjpura estate – By family custom all the property which once appertained to that State (which ceased to exist as a semi-independent State in 1849) descended to the eldest son, the others being entitled to maintenance only, but the rule of succession to lands and property acquired since 1849 was subject to the personal law of the parties.
Rule of primogeniture not found to exist.
85 P.R. 1901 – Pathans, Rawalpindi District. The custom that the eldest or the fittest son succeeds, to the exclusion of other sons who get maintenance only must be proved to be ancient, definite and invariable. In this case it was held that, even if the custom existed at one time, it was abrogated.
I. L. R. 4 Lah. 297 – The rule of primogeniture does not prevail in the
Sodhi family of Ananapore, district Hoshiarpur.
In certain families the eldest son is sometimes allowed an extra share.
4 P.R. 1910 – Janjiana Syals of Mauza Kharanwala, Jhang; the eldest son is entitled on final partition to receive extra land in addition to his share by Haw-I- sardari or Haw-I-pagri (dastar).
108 P.L.R. 1915 – Dakhna Aroras, Multan District, eldest son gets 1¼ share of ancestral immoveable property.
65 P.R. 1917 – Awans of Attock. Particular family case, where eldest son succeeds to one village.
I.L.R. 13 Lah. 474 – A Sayad of Chak Abdul Khaliq, Tahsil and District Jhelum, can by custom make an unequal distribution of his ancestral property among his sons, by making a gift in favour of certain sons. But he cannot do this if the result of such a gift is inequitable and amounts practically to disinheriting the other sons.
A.I.R. 1934 Lah. 576 – By the custom of the family of Rana Mehtab Chand of Manswal
= 1934, 151 I.C. 490. in Hoshiarpur District, the Manswal Mauza devolves on the eldest son.
A.I.R. 1935 Lah. 872 – Awans of Attock, Among Awans of Tahsil, Attock District, the
Attock=156 I.C. 1016. only limitation imposed on the power of the father is in the matter of total disinheritance of one son in favour of the others, but where he merely deals with a part of his property during his life-time, an aggrieved son has to remain content with his lot.
“Haq Sardari” custom not followed.
A.I.R. 1930 Lah. 705 – Among Lath Brahmans of the Una Tahsil of the Hoshiarpur
=I.L.R. 11 Lah. 626. District, there is no custom of haq sardari in favour of the eldest son.
A.I.R. 1936 Lah. 59 – Among the Awans of Tallagang Tahsil, Attock District, a
= 163 I.C. 108. proprietor cannot make an unequal distribution of ancestral property amongst his sons.
Where a person has several sons by one wife, or by different wives, and the eldest gets an extra share, and a younger son dies, will the fact that the eldest sone has already got an extra share prevent him from inheriting the property of the deceased brother along with the other surviving brother ? The eldest son will have the usual right of inheriting equally along with the surviving brothers and the onus will be on the surviving brothers to prove that the eldest brother is not so entitled (1).
See also 86 P.R. 1915 where the learned Judges held that it was not proved that the parties had adopted the very unusual rule which sometimes, though rarely, obtains among agricultural tribes and gives a father the right either to disinherit a son from succession to ancestral property or at all events, to distribute such property unequally among his sons.
(7) Pagvand or Chundavand rule of succession
Pagvand is a word derived from pag, a turban, and connotes the rule according to which an estate is distributed in equal shares amongst the sons and corresponds exactly to the phrase per capita, Chundavand is from Chunda, which means the hair braided on the top of the head and means equal division as between the groups of sons by each wife. Thus, if A leaves five sons from 2 different vives, B, C and D from one wife and E and F from the second wife, according to the Pagvand rule of succession all the sons will inherit equally, while according to the Chundavand rule B, C and D from one wife will inherit one half and the other half will go to E and F from the second wife. (2).
As observed by Sir Meredyth Plowden in Ghulam Mohammad V. Mohammad Bakhsh (3) the customs of Pagvand and Chundavand are modes of distribution of an estate among the persons entitled to share them, rather than customs of succession. The characteristic difference between the two customs is that the former, ignores the existence of the ancestors’ wives, and the latter recognizes their existence, and makes it the basis of distribution.
The normal custom in the Punjab prescribes a division according to the Pagvand rule, and the onus lies heavily upon the person who relies upon the Chundavand rule (4), Or in other words, as a general rule, sons, whether by the same or by different wives, share equally. Inheritance as a rule goes per capita (according to the Pagvand rule) and not per stirpess (Chundavand). It lies upon the party alleging the special custom of Chundavand to establish such custom; and in the absence of such proof the general custom of Pagvand will apply without any proof being necessary(5). A special custom cannot be held to be established merely because the balance of evidence inclines very slightly in favour of the person alleging its existence(6). The Chundavand custom frequently prevails in one family of a tribe while it does not prevail in another family of the same tribe (7).
1. See 63 P.R. 1868.
2. Tupper’s Customary Law. Vol. II Pages 80, 202; Rose’s Customary Law, p.69.
3. 4 P.R. 1891 (F.B).
4. 1922, 71 I. C.864; 86 P.R. 1915 ; 98 P.R. 1919; 22 P.L.R. 1913.
5. 101 P.R. 1897; 3 P.R. 1913 (Rev); see also 46 P.R. 1897; 74 P.R. 189; 22 P.R. 1899; 29 P.R. 1900; 148 P.R. 1908; 9 P.R. 1877; 71 P.R. 1887; 32 P.R. 1891; 5 Lah. L.J. 212.
6. Gujar Khan V. Ghulam Khan = A.I.R. 1926 Lah. 163 = 91 I.C. 482.
Even in those tribes in which the Chundavand rule at one time prevailed, the custom has in more recent years been undergoing transformation, the Pagvand distribution being gradually substituted for the former (1).
An entry in the Riwaj-I-am, even in favour of a special custom like Chundavand, is an important piece of evidence in support of it and is sufficient to shift the onus to the party challenging it. But, the burden of proof on the party challenging the entry in the Riwaj-I-am would be comparatively light in view of the general custom in the Province being opposed to the Chundavand custom. Certain admission made by plaintiffs in favour of the Pagvand custom were sufficient to shift the burden of proof on to them (2). Commenting on Bhag Singh v. Jai Singh, Addison, J. observed in Fazl-I-Hussain v. Tafazil Hussain (3) – “It was contended, however, that Bhag Singh v. Jai Singh (2), did not go so far as had been done in the previous judgment which followed the Privy Council decision. It is true that Beg v. Allah Ditta (45 P.R. 1917 P.C.) and Labh Singh v. Mst. Mango (I.L.R. 8 Lah. 281) were followed to the extent that it was held that an entry in the Riwaj-I-am in favour of a so-called special custom like Chundavand was an important piece of evidence in support of it and was sufficient to shift the onus to the party challenging it. Apparently, however, it then went on to lay down that the burden of proof would be comparatively light in view of the general custom in the Province being opposed to the Chundavand custom. If this is the correct meaning of the judgment, I am, with all respect, unable to agree with it; for the words, used by their Lordships in 1917 were that such an entry was a strong piece of evidence even though it was against the general custom, while in Labh Singh v. Mst. Mango it was laid down that it could not be said that such an entry was of little evidentiary value. Even in Bhag Singh v. Jai Singh it appears to have been said that such an entry was an important piece of evidence. In these circumstances how can it be said that the burden of proof would be light if the custom was opposed to the so-called general custom when their Lordships of the Privy Council said that such an entry was a strong piece of evidence, though against the so-called general custom. There would thus appear to be a contradiction in terms in this authority. Such a decision in reality would mean a return to the old state of affairs before their Lordships’ decision of 1917, and to go against what was laid down then.
“In these circumstances it seems unnecessary to discuss the remarks in certain judgments of the Chief Court that Chundavand is a dying system and a barbarous rule and that it must always be established by the person setting it up, as it is against general custom. It is no concern of mine to condemn it or to praise it ; but merely to see whether it existed in 1910 as the custom amongst this tribe.
“There has been some speculation as to the origin of the rule of Chundavand but without any success. The rule is a tribal one in vogue in several districts; but it has sometimes happened that a large number of sons by one wife have been able to enforce the opposite Pagvand rule against the one son of another wife. That does not militate against the custom ; nor does it make it a family custom. It remains essentially a tribal custom.”
In some of the earlier rulings (1) it has been held that the custom of Chundavand is generally speaking a family rather than a tribal one, and had probably its origin in the power of the head of the family to make a distribution of the family estate among the members of the family during his life-time. The fact that the custom has been found to exist in some tribes will, therefore, be no reason for presuming its existence in another tribe, and it may even be found to exist in some villages or some families of a tribe without any strong presumption arising that it exists among other neighbouring villages or families of the same tribe.
If in any family the custom fluctuates, the rule of Pagvand should be given preference to that of Chundavand.
When the scheme of distribution approximates to neither rule, the natural presumption is that Chundavand is not the rule (4 P.R. 1893 ; 50 P.R. 1909). But see 48 P.R. 1891, in which one-third of the property had gone to the one son of the wife and two-thirds had gone to the three sons of the second wife, and it was held that it must be regarded as a case of Chundavand.
Where two-fifths went to the son of one wife and three-fifths to the two sons of the other, held, it must be regarded as a case of Chundavand, especially where the two latter held jointly.
See also 150 P.R. 1880 (where the facts are the same as in 48 P.R. 1891) and 31 P.R. 1903.
Proof of chundavand rule.
The custom of Chundavand is proved, like custom on all other points, by entries in a Riwaj-I-am, by private instances, and by judicial decisions. The rule followed in the family on previous occasions will be a strong proof of what the custom really is.
In 31 P.R. 1894 the father had one son A, from one wife and 3 sons from another. He made a division of the whole estate by which he gave one-forth of the property to A. After the death of his father, A sued for one-half by Chundavand rule. Held, that there was no final partition of the property made during the life-time of the father, and that the plaintiff’s separate possession of about one-forth of the estate while his father lived, was an arrangement made for the purpose of cultivation and was no Pagvand distribution (2).
‘In Hukam Singh v. Sochet Singh (3) it was proved that the original custom had been Chundavand. It was held that probably the custom had been for some years undergoing a rapid process of transformation, and had been veering round towards Pagvand, but still as it was not shown that the old custom had entirely ceased to exist, the Chundavand rule was held to govern the parties. “The courts in dealing with question of custom cannot recognize a progressing change of custom, the old custom must prevail unit it has been superseded by the new custom, and their action in this way has at times the unfortunate effect of crystallizing the existing custom whatever it may be” (1).
It was observed in Gopal Singh v. Prabh Diyal Singh (2) – “It is doubtless correct to say that in the Punjab plains the custom of Chundavand is slowly giving place to Pagvand, even where it may have been prevalent at one time. We do not think that there is any such certainty as regards the hilly tracts of the Province. Mr. Lyall’s Settlement Report for Kangra, quoted in Mst. Kundo v. Shiv Dial (3) where this court decided a Kangra case in favour of Chundavand, is a notable authority to the contrary, and we can see no reason why there should be any broad distinction between the Kangra District and the adjoining Una Tahsil of Hoshiarpur.”
CUSTOM FOLLOWED IN THE PUNJAB
Question – (in the form in which it is usually dealt with in the official manuals of Customary Law relating to the various districts in the Punjab).
If there be more sons than one, will they take equal shares?
If the sons do not take equal shares, state upon what principle the shares are regulated?
(a) Is any regard had to uterine descent, are the shares in the inheritance distributed according to the number of mother’s?
(b) Is any regard had to be caste or tribe of the mother so that the sons by a wife of a high caste or of the same caste or tribe with the father take larger shares than the sons by the wife of a low caste or of a different caste or tribe?
(c ) Is any regard had to the age of the sons, so that (1) the eldest son (2) the youngest son, would take a greater or less share than his brethren.
* Answer to question No. 29.__
1887 – No tribes make any distinction under (b) or (c). Under (a) the great majority of tribes in all tahsils assert the custom of equal division among all sons (pagvand or bhaibant) without regard to uterine descent. The custom is not universal in Naraingarh of Pipli. Among the Rajputs of Naraingarh, division is said to be according to the number of wives (chundavand) in the villages of Tepla, Laha Jangumajra, Ojalmajri, Badhaoli, Panjlassa and Kathemajra, all Muhammadan villages except Badhaoli. Similarly among the Jats of Naraingarh Chundavand is stated as common in Jatwar, Fathegarh, Sadapur, Khera Jatan, Dehri, Bharog, Hosaini Khurd, and Chajjumajra, all Hindu villages and most of them held by Jats of the Bachal Got. Further, more or less rare instances of chundavand are found among Jats, Rains, and Rors of Pipli. The last mentioned tribe mentions a curious custom of modified chundavand, which they upheld at attestation though it may be doubted whether the custom is really well established. On the whole it is pretty safe to say that chundavand is the very rare exception anywhere except in Naraingarh and Pipli, but that in those tahsils it is quite possible that it should be recognized in case of dispute. I have certainly come across cases where there can be no doubt that the custom really does prevail.
1918. – Since settlement the custom of the chundavand has become still rare, but at the present attestation instances were given among Jats of Kharar Tahsil, Rajputs of Naraingarh and Ambala, Gujars of Ambala. The custom still prevails but has almost died out. Regard is had to the caste or tribe of the mother when she is of a much lower caste than her husband as her sons may be excluded from the inheritance.
Pagvand rule applies.
34 P.R. 1879 – Jats of Mauza Kolaran, Ropar Tahsil.
127 P.R. 1884 – Sindhu Jats of Jagadhri Tahsil, Ambala District.
57 P.R. 1889 – Mohammadan Rajputes of Pipli Tahsil.
“Custom still fluctuates very decidedly between chundavand and pagvand and that when the former prevails the whole blood excludes the half.” As no custom adequately at variance with Muhammadan Law is established the Muhammadan Law must be followed which gives preference to the whole blood.
11 P.R. 1905 = 126 P. L. R. 1905. – Sheikhs of Mulana, Tahsil Ambala.
Chundavand rule applies.
C.A. 1140 of 1883 – Bains Jats of Ambala District.
A. I. R. 1927 Lah. 508 – By Custom in the family of Jagirdar Jats of village =8 Lah. 225=102 G Garanage, Tahsil Kharar, the rule of succession
is that I. C. 836=28 P. L. R.of chundavand. 434.
35 Other judicial decisions – Chundavand, rule applied.
329 of 1915 (Court of the Divisional Judge) decided on 4th may 1916 – Hindu Jats of Hamirgarh, Tahsil Kharar.
117 of 1891 (Court of the Divisional Judge) decided on 9th September, 1891 – Hindu Jats of Nogla, Tahsil Kharar.
438 of 1903 (Court of the Divisional Judge) decided on 25th January 1904 – Hindu Jats of Rupalheri, Tahsil, Kharar.
1469 of 1898 (Court of the Divisional Judge) decided on 26th May, 1899 – Hindu Gujars of Khera, Tahsil Ambala.
285 of 1909 (Court of Munsiff) decided on 26th May, 1910 – Mohammadan Rajputs of Rataur, Naraingarh Tahsil (settled by compromise).
259 of 1900 (Court of Munsiff) decided on 15th March 1910 – Mohammadan Rajputs of Talakaur, Jagadhri Tahsil (settled by compromise, the plaintiff getting a little more than his share, giving up his claim to have chundavand enforced).
8 of 1907 (Court of Sub-Judge) decided on 17th February 1908 – Mohammadan Rajputs of Godkaula, Jagadhri Tahsil – as in 259 of 1900.
395 of 1888 (Court of the District Judge) decided on 4th March 1889 – ` Mohammadan Rajputs of Ramgarh Majra Azizpur, Jagadhri Tahsil.
** Answer to Question No. 44. –
“All the tribes state that no regard is paid to the age of the sons and the tribe of caste of the mother.
In the case of sons by more than one wife, the following of the tribes dealt with in this book are recorded in the Riwaj-I-am of 1865 to have replied in favour of Chundavand.
Aulaks, Paddehs, Kangs with the exception of one village in Tarn Taran, Hundal, Brahmans, Khatris, Awans of the whole district, Bajwa, Bhangu, China, Chima, Gil, Man, Kambohs and Pathans of Amritsar and Ajnala tahsils. Pannus, Sidhus, Bhullar, Sohals, Virks and Rajputs (all gots) of Ajnala tahsil, Randawas of Amritsar and of the greater portion of the Ajnala tahsil. Dhillons of Ajnala and of a few villages of Amritsar tahsil, Sarais of Ajnala and one village of the Amritsar tahsil, Hers of Amritsar and Tarn Taran. Gujars of Amritsar Tahsil.
Most of the above tribes and all the others now declare for pagwand which is the more equitable rule. The only tribes who is their answer still stick to the Chundavand rule are as follows:-
Bhatti Rajputs of Chak Sikandar, Hindu China Jats of Harseh China, Randawa Jats of Sahnsra and Samrai, Aulak Jats of Ugar Aulakh; Manj Rajputs of Manj in the Ajnala tahsil, Bhatti Rajputs of Sadhar and a few individuals of the Gill Jat tribes in the Amritsar tahsil. In the case of some of these no instances were cited, and I think the answer was based on some interested motive.
The representatives of the Mahil Jats both in 1865 and now replied in favour of the pagwand rule. But in a case from Sultanwind in the Amritsar tahsil, they were held to follow the Chundavand system. The case was originally decided by Lala Hukam Chand, Revenue Assistant, under Section 117 of Act XVII of 1887, and his decision was upheld by the Chief Court. Wasawa Singh, Lambardar, was a party to this suit. In another case decided by the same officer on 31st January 1905 (Jiwan Singh and others v. Sunder Singh) the Gil Jats of Dadupur near Majitha were held to be governed by the Chundavand rule of inheritance.
Pagvand rule applies.
35 P.R. 1889 – Pathans of Amritsar District.
36 P.R. 1897 – Jhawar Jats of Mauza Changanwan, Amritsar
37 I. R. 1935 Lah. 270 – Aulkh Jats of Lopoke, Tahsil Ajnala.
38 I. R. 1935 Lah. 454 – Dhillon Jats of Mauza Khara, Tarn Taran Tahsil.
39 I. R. 1935 Lah. 709 – Randhawa Jats of Mauza Budha Teh, Ajnala
Chundavand rule applies.
C. A. 1160 of 1877 – Kolair Jats, Amritsar District.
101 P. R. 1879 – Aulkh Jats, Amritsar District.
63 P. R. 1885 – Sindhu Jats, Amritsar District.
46 P. R. 1886 – Aulakh Jats, Amritsar District.
53 P. R. 1886 – Sanwan Jats, Amritsar District.
134 P. R. 1892 – Randhawa Jats of Mauza Chamiari, Tahsil Ajnala.—
Distinguished in 1935 Lah. 709 = 156 I. C. 107, where the pagvand rule was applied, and it was observed that the earlier judgment must be confined to the particular village of Ajnala from which the parties came.
* Answer to Question No. 2. __
“In answer to this question it may be said that, whereas in the neighbouring district of Rawalpindi the chundavand principle has a considerable following, here the pagvand custom has the field to itself except in a very few isolated cases.
The examples appended – and many more might be added – will show the universal prevalence of this custom and it is here only necessary to touch briefly on the exceptions. The example produced by the Chohan Rajputs would appear to be unique, though Mr. Robertson remarked at last settlement that they claimed to follow the chundavand custom but could produce no instance to bear out their statement.
There were two attempts on the part of Khattar families to assert the chundavand principle but recourse to the Law Courts reduced these revolutionaries to their normal habits.
The Pathan instances are genuine, but the general Pathan custom is pagvand inheritance, from which the instances under consideration are merely relics of the older system surviving in a few families. The Tarkheli Phatans of Hassan Abdul state that a father may decide before his death on the method of inheritance to be observed by his sons with the proviso that he cannot absolutely disinherit any of them.
It may be mentioned incidentally that the Khattars of Wah in Tahsil Attock are bound by a legal (Chief Court?) decision of 1863 to follow the pagvand rule.”
* Answer to Question No. 3.__
“Enquiries on this point elicited the answer that there is no distinction made between the sons of high and low caste wives. All share alike.
The rule is universally admitted, but the Pathans of the Attock tahsil make a distinction excluding the sons of low caste women from any share in the inheritance.
In the Rawalpindi district the distinction between Sahu and other wives is widely recognized and Mr. Robertson attributes this recognition to the fact that the tribes of the Rawalpindi or Eastern tahsils were more recently converted from Hinduism than their Western neighbours thus retaining in a greater degree the essentially Hindu prejudice against inferiority of caste. It would appear that this prejudice is practically non-existent in the Attock district.
It should be noted that the Jodhras who at last settlement claimed that low born sons were excluded by custom have now ceased to urge this obviously unjustifiable claim.
Among the appended examples will be found only three exceptions to the general rule ; accordingly it may without hesitation be stated that except by the Attock Pathans no distinction between high and low birth is admitted in matters of inheritance.”
Pagvand rule applies.
58 P. R. 1892 – Sheikhs of Mauza Saman, Tahsil Attock.
22 P. R. 1899 – Awans of Tahsil Talagang.
29 P. R. 1900 – Kutab Shihi Awans, Mauza Paur Miana, Attock.
A. I. R. 1926 Lah. – Ferozal Khattars of Thatti Gujran, Fatehjang Tahsil.
163=91 I.C. 982
29 P. L, R. 1906 – Though the estate was distributed according to the rule of pagvand, yet the evidence produced by the defendants rebutted the presumption.
Sons share equally and the rule of pagvand prevails. Sons by high and low caste wives share equally except in the Isakhel clan in which they get one-third less than their otherwise full shares.