Nature of daughter's estate-daughter not absolute owner-reversion of estate on failure of issue.
As observed in Roe and Rattigan's Tribal Law of the Punjab (page 61), "where the succession of a married daughter is allowed, the general principle is that she succeeds not as an ordinary heir, but merely as the means of passing on the property to another male, whose descent from her father in the female line is allowed under exceptional circumstances to count as if it were descent in the male line. She will indeed continue to hold the land in her own name, even after the birth of sons and their attaining majority, for her own life but she has no more power over it than a widow would have. If she has sons, the estate will of course descend to them and their lineal male issue, in the usual way. But if she has no sons, or if their mate issue fail, the land will revert except in some special instances where her husband is allowed to hold for his life, to her father’s agnates, just as it would have done if no exception to the general rule of agnatic succession had ever been made in her favour."
It was held in Lehna v. Mst. Thakri (1) that 'in a village community where a daughter succeeds either in preference to or, in default of male heirs, she simply acts as a conduit to pass on the properly as ancestral property to her sons and their descendants, and does not alter the character of the property.' Similar views were expressed in Kali Bakhsh v. Nabi Bakhsh (2) and Mandas v. Mst. Shah Wasim (3).
If a male" proprietor makes a gift of self-acquired property to his daughter with the intention of making her full owner thereof,. she becomes a full owner but if she merely inherits such property from him, she takes merely a limited interest for herself and her issue (4).
Amongst Arains or village Mozang daughters have the same power of alienation of their father's property as a male proprietor and hence they cannot alienate it except for necessity of just antecedent debts (I).
Among Hindu Rajputs of Ambala District, a daughter who has succeeded to the property of her sonless father, does not take an absolute estate, with full power of disposition, i.e. she has not an absolute power of disposal over the inherited property, uncontrolled by her sons, or in their absence, by the collaterals of the deceased father, but she is entitled to a life-estate only (2).
See also Mst. Santi V. Dharam Singh (3), a case relating to the Sainis of Jullundur District, to the same effect.
In a claim to a full estate, she received only a life-estate-in-
81 P. R. 1879- Awans of Tahsil Khushab.
18 P. R. 1906- Sayyads of Shahabad Karnal.
70 P. R. 1905- Bokhari Sayyads of Gujrat.
121 P. R. 1908- Awans of Pind Dadan Khan.
141 P.W.R. 1910- Sayyads of Khanpur, District Hoshiarpur.
What has been stated above is the custom generally found prevailing in the province though no doubt a special custom to the contrary has been established among some tribes. A daughter when allowed to succeed to her father's estate-does not take an absolute estate, with full power of disposition i.e., she has not an absolute power of disposal over the inherited property uncontrolled by her sons, or, in their absence, by the collaterals of her deceased father, but she is entit1ed to a 1ife-estate only.
For discussion of the subject in detail, see notes under Chapter on"Alienation".
On the lineal descendants of the person in whose favour a diversion of ancestral property had been made dying out, the land reverts to the male heirs of the last owlet before the diversion and not to those of the person who received the land from him (4).
In the case of Musa1man Naru Rajputs in the Hoshiarpur District, where the daughter of the 1ast ma1e owner has succeeded to his ancestral estate excluding his collaterals in the 6th degree, the latter are not entitled on her death to succeed in the presence of her daughter (5). It was observed in this case-coin arriving at the above finding (that a daughter's daughter had no right to succeed) the learned Judge of the Court below has given effect to the general rule of the customary law of the province that a daughter like any other female successor is a limited owner and that she inherits the estate of her father to transmit it eventually to his agnates or to her own sons but not to her daughter. He failed to realize that the real question for determination was one of a special custom which might obtain in a particular tribe in spite of the general custom being to the contrary. Almost every general rule has exceptions to it, and no person is precluded from establishing a special custom at variance with the general one."
Similarly, it was remarked in 94 P.L.R. 1911, at p. 388-"It may be that where a daughter succeeds to an absolute ownership her daughter will succeed her, but there is. much authority for the proposition that ordinarily a daughter's estate is not like a son's and that the burden of proof is on any person who asserts in a concrete case that a daughter who has taken her father's property took as full owner."
There exists a special custom of Lodhi Pathans of Dhogri, Jullundur District, where under a daughter succeeds to her sonless father in preference to collaterals, and she succeeds as full owner and not as a life-tenant only. A daughter's daughter succeeds as daughter of the last full owner in preference to collaterals, and there is no reversion to the collaterals of the last male owner in the preference of the daughter's daughter (I). ,
Among Mithu Jats of Muzaffargarh District, an alienation by a daughter of ancestral property inherited from her father, in favour of a stranger, was held valid as against a reversioner (5th degree), the Riwaj-i-am entry being in favour of the daughters having full powers of
By custom among the Sayyads of Gurgaon District, a daughter inheriting ancestral landed property of her deceased father., in default of male lineal descendants, succeeds as full owner (3).
When a daughter has been allowed to succeed as heir to her father's estate, to the exclusion of collaterals (whether in view of her feminine disability she took a limited estate or not), she is capable of transmitting her own estate to her daughter and there can be no reason for holding that her heir ship depends on her producing sons. The pro-position put forward in argument that females never in any tribe, whether Hindu or Muhammadan, exogamous or endogamous, succeed to any-thing more than a life-rent, much more limited and restricted than that of a male succeeding under the same circumstances, cannot be acceded to, the theory not being based upon a sufficiently solid substratum of fact (4).
SUCCESSION TO DAUGHTERS
(43) Daughter's son, whether heir under custom.
Roe has observed on page 66 of his Tribal Law in the Punjab-"Daughter's sons are nowhere recognized as having any independent rights. Their right to succeed as heirs is entirely confined to their right to succeed their mother in the exceptional cases in which she has been allowed to succeed as a daughter. This right is undisputed."
The proposition laid done in paragraph 23 of Rattigan's Digest is that a 'daughter's son is not recognized as an heir of his maternal grand- father, except in succession .to his mother.
What does this statement signify? Does it mean that the right of a daughter's son to succeed to the property of his maternal grand-father is contingent upon his mother having survived her father, and actually inherited his property? Or does it simply convey that a daughter's son succeeds only in tribes among whom, and to property to which, the right of the daughter to succeed to her father's property is recognized by custom?
It has been l1eld more than once by the Punjab Chief Court and the Lahore High Court that the "remark" in the digest is not a correct statement of the Customary Law of the province. In Gobinda v. Nandu (1) Shadi Lal, C. J. and Martineau, J., after referring to the above remark in
para 23 of the Digest, observed: .
"That no case or instance could be cited in support of it. Whatever the exact meaning of the remark may be, we consider that there is no reason for holding that custom excluded a daughter's son from inheritance on the ground of his mother Having predeceased her father."
The matter came up again for decision before another Division Bench in Chambeli v. Bishna (2) where the learned Judge followed Mst. Jaswant Kaur v. Wasawa Singh (3) and declined to accept the "remark" in the Digest as a correct statement of the Customary Law of the province. Harrison and Dalip Singh, JJ. again considered this question in Nizam-ud-Din v. Muhammad Bashir Khan (4) wherein it was observed.-" It has undoubtedly been laid down as a dictum in Sir William Rattigan's Digest of Customary Law, that a son of a predeceased daughter does not succeed. No authority and no instances are given for this, far-reaching generalization and we are not prepared to accept it in its entirety and even if it were I accepted were of opinion that it would not be conclusive where, as in this tribe, the daughter's rights are so clearly established. It is one thing for the son of a predeceased daughter to succeed, where his mother would have succeeded had she lived and a very different one for him to succeed where she would have had no rights. "The parties in this case were Sheikh Qureshis of Palwal town (District).
Referring to Answer to Question No. 50 in the Riwaj-i-am of the Gujranwala District, Tek Chand, J. (Monroe, J. concurring) remarked in -Ilahi. Bakhsh v. Ghulam Nabi (5)-"Mr.. contends that this answer means that the daughter's son inherits, only in those cases in which his mother had actually succeeded to her father's property. In my opinion this interpretation is not warranted by the language used. It seems to me clear, that what the answer, as recorded was intended to convey is that a daughter's son succeeds only in tribes among whom, and to property
to which, the right of the daughter to succeed to her father's property is recognized by custom. It does not, and cannot, mean that the right of a daughter's son to succeed to the property of his maternal grand-father is contingent upon his mother having survived her father, andactually inherited his property.
In the tribe of Khattars (Attock District) the daughter's son is an heir to his maternal grandfather to his self-acquired property although his mother has died before succession opened out (1). Similarly, in Miran Bakhsh v. Mst. Mehr Bibi (2) it has been held that among the Arains of Lahore brothers and their sons are not heirs abintestato in the presence or the widow and the daughter's Sons. It was remarked by Sir Henry Rattigan-"There is no foundation for the contention that the daughter's sons whose mother predeceased her father, were in a worse position than those whose mother survived him. In fact the learned counsel for the appellant admits that he is unable to cite any authority on which the alleged distinction could be supported and the general principle of Customary Law, which favours the succession of daughter and daughter's son, certainly does not contemplate' any such rule."
See also Sayyad Muhammedan. West. Azim-un-Nisa (3); Mst. Chinto v. Thebu (4) and Ahmad v. Muhammad (5) to the same effect.
In Nizam Din v. Ali Muhammad (6) Jai Lal, J. observed-- "In my opinion the learned District Judge has come to a right conclusion that the respondents in this case have succeeded in proving that the daughter's sons succeed to the self-acquired property of their maternal grandfather in pre-ferrous to the collaterals. It is not shown that this right is depend upon their; mother succeeding to her father's estate." A contrary 'view was. Held by the same Judge in Gul Muhammad v. Attar Singh (7), but that was presumably based on the facts of that particular case and therein interpretation of a clause in a Wajib-ul-arz was involved.
It is thus clear that a daughter's Son has a right to succeed to his maternal grandfather's property only when his mother has such a right, though this right is not contingent upon his mother having survived her father and actually inherited his property. If the daughter herself has under custom no right to succeed, her Son is in no better position (8).
Where custom recognizes, as it generally does, the right of the daughter to succeed to the self-acquired property of her father in preference to the collaterals, the custom also usually confers on the daughter's son a right to succeed to such properly. That is, when a daughter is entitled by Custom to succeed to her father's property, she is also entitled to pass the succession On to her sons (9).
In Khizar Hayat v. Allah Yar Shah (10) it has been held that among Sayyads of Kot Isa Shah, Jhang Tehsil, having regard to the entries in the Riwaj-i-ams prepared at the Settlements of 1880 and 1894, a near collateral has a preferential claim to daughter's sons whose mother has not married in the family of her father. Similarly, it has been held in Nur Ahmad v. Rahim Bakhsh (11) that among Rajputs of the Rupar tehsil, a daughter's, son is not a preferential heir as compared with near collaterals (third degree). The property in this case was self-acquired.
(a) Claim of daughter’s son to succeed to the property of his maternal grandfather was recognized in the following cases-
95 P. L. R. 1908- Sarsut Brahmins of Gopalpura. Hindu Law
30 P. R. 1903- applies. Tewari Brahmins of Amritsar City. Hindu Law applies. Daughter’s son excluded by a. nephew.
A. I. R. 1935 Lab. 425- Khattars of Mungiwali. Daughter's son is an heir to his maternal grandfather to his self- acquired property although his mother has died-before succession opened out.
= 16 Lah. 160
= 158 I. C. 220
61 P. R. 1903 - Hindu Goldsmiths trading at Dagshai. Hindu
= 134 P. L. R. 1903 Law applies. A separated nephew is excluded by a daughter's son.
113 P. R. 1884- Mirasis. There is no custom contrary to the Mohammedan Law by which a first cousin can succeed to the exclusion of a daughter's so whose mother has succeeded to her father immoveable estate.
Gurgaon District. .
A. I. R. 1927 Lah. 510- Qureshi Sheikhs of Palwal,Tahsil. The
= 8 Lah. 536 Son of a pre-deceased daughter succeeds' to the
= 102 I. C. 238 estate of his grandfather to the exclusion of his collaterals.
Lahore District. -
A. I. R.1930 Lah.629 (I)- In Lahore District the daughter's sons
= 129 Y. C. 122 succeed to the self-acquired property of their maternal grandfather in preference to collaterals.
A. I. R. 1929 Lah. 238- A daughter's son even though his mother
= 116 Y. C. 183 has died before the succession opened, is entitled to succeed in preference to the nephews. Position of daughter's grandson is not different from that of a daughter’s son in this respect.
143 P. R. 1882- Khattris of Lahore. No custom exists by which daughter's son is excluded from inheritance to an ancestral estate by a brother's son.
123 P. R. 1918- Dhami Brahmans of Kamalia. Acquired
-48 I. C. 813 property.
78 P. R. 1913- Bhatias of Kangarh. Not established that they follow
=74 P. L. R. 1913 a custom modifying Hindu Law to the extent of
= 19 I. C. 87 excluding daughters and their sons in favour of separate collaterals.
102 P. R. 1907- Bunjahi Khatris of Rawalpindi City. Follow Hindu Law. Daughter's sons and grandsons succeed to the exclusion of collaterals.
L03 P. R. 1900- Telis of Pachnand Village The onus lay on the collaterals to establish a custom under which they had a superior claim to defendants who were the original owner's daughter's Sons.
(b) Claim to daughter's son to succeed to the property of his mater.
I grandfather was not recognized in the following cases:-
134 P. R. 1908- Rajputs Daughter's sons are not entitled by custom to succeed in preference to collaterals that were descendants of the grandfather of the last male owner.
A. I. R. 1933 Lah. 473 (2)- Collaterals succeed in preference to daughter's
= 142 I. C. 284 son in Delhi.
55 P. R. l88l- Mahtam Rajputs. By custom daughter's sons as a class have no right of succession superior to collateral of the fifth degree?
A. I. R. 1937 Lah. 321- Daughter's Sons inherit only if their mother
:= 173 I. C. 903 had inherited the property as a daughter and was in possession of such property. Where the daughter had ceased to be in possession, it was held that the sister was a preferential heir to the daughter's sons.
44 P. R. 1879- Dakot Brahmans of Rupar. A daughter's son cannot succeed in the presence of cousins and nephews of the last male holder.
52 P. R. 1912- Rajputs of Rupar. It is not established that a daughter's son is a preferential heir to collaterals
Lahore District. .
40 P. R. 1888- Kambohs. Sons of a daughter or the Sons of a sister of a sonless proprietor do not inherit ancestral estate to the exclusion of an agnate (second cousin) of the last male-holder.
64 P. R. 1892- Awans. Collaterals (10th degree) held entitled to succeed to the estate of a deceased proprietor to the exclusion of his daughter's sons.
172 P. R. I 882- Mehmars. By custom collaterals beyond the 6th degree do not exclude the daughter’s sons of a sonless proprietor when their father was a Khana-damad.
(44) Daughter's daughter versus collaterals.
As has already been noted above, generally speaking, a daughter, when she succeeds to the property of her father, .has merely a limited interest there in, i.e., as a life-tenant, and is not an absolute owner. In that case daughter's daughter will have no claim to succeed. But where a daughter is allowed to succeed as full owner to her father's property, a daughter's daughter will succeed.
In the case of non-ancestral property, daughter's daughters are to be preferred to collaterals (1).
In Mohindra Kaur v. Hira Singh (2) it has been held that although life-estate holder cannot ordinarily form a fresh stock of descent and a daughter's daughter is not as such an heir to her maternal grandfather and cannot succeed to him either under the Customary Law or the Hindu Law when a daughter has once succeeded to the estate of her father after excluding his collaterals, her daughters should as her lineal descend-ants be held entitled to succeed for their lives in preference to such collaterals after her death
A. I. R. 1931 Lah. 708- There is nothing in the Customary Law
134 I. C. 107 of the Ambala District which allows a daughter's daughter to succeed as Heir.
A. I. R. 1928 Lah. 40- Musalman Naru Rajputs of the Hoshiarpur
-1927,9 Lah. 333 District. Where a daughter of the last male sonless proprietor has succeeded to his ancestral estate excluding his remote collaterals in the sixth degree, she becomes the full owner and consequently her daughter is entitled to succeed on her mother's death in preference to those distant collaterals of her maternal grand-father. Held, also, that the Riwaj-i-am being in favour of the daughter's daughter the onus of proving a custom contrary to that laid down in the Riwaj-i-am was upon the collaterals and that they had failed to discharge the onus.
5 P: R. 1910- Muhammadan Rajputs. Daughters succeed to their father’s estate as heir and' exclude their father's collaterals. In the absence of direct male theirs daughter's daughters are entitled to succeed to their mother's estate. On the death of any of them, her sister" or her sister’s sons exclude the collaterals in respect of such an estate.
3 I. C. 984- Rajputs. By custom daughters and after them their
= 121 P. L. R. 1909 daughters are entitled to succeed as against remote collaterals and a daughter's daughter can question the alienations made by their mothers without necessity.
=9 Lah. 496 is herself entitled to succeed the mere fact that
=109 I.C. 590 she predeceased the widow of her father will not deprive her heirs of the succession to the property left by her father an there is not logic in holding that whereas a daughter can succeed as full heir to her father’s self acquired property a daughter’s daughter will not so succeed in case her mother had predeceased the father’s widown.
61 P.R. 1902- Lodhi Pathans of Mauza Dhogri, daughter’s daughter =72 P.L.R. 1902 entitled to succeed in preference to collaterals.
29 P. R.1911- Gariwal jats. A daughter does not become an absolute owner of immoveable estate that has come to her from her maternal grand. Father through her mother. Where a daughter succeeds to an absolute ownership her daughter will succeed her. The onus lay on him who asserts that a daughter who has succeeded her father or her mother as owner succeeds as a full Owner.
18 P. R. 1889- Gardezi Sayyads of Sarai Sidhu Tahsil. Collate Jell were entitled to succeed on the death of widow of their uncle's Son to the exclusion of his daughter’s daughter.
1928 10 Lab. 86 P. C.-Arora Sikhs of Peshawar Town. By general, custom among the community, a daughter's daughter succeeds to the inheritance in the absence of a daughter's son.
(45) Granddaughter and her sons versus remote agnates.
According to the general agricultural custom a granddaughter and her sons are more or less on the same footing as a daughter and her Sons as against distant collaterals (1).
(46) Daughters and rule of survivorship."
Hindu Kalals of village Kaluwal in Gurdaspur District are governed by Customary Law and a daughter succeeds to her father on the same terms as male proprietors. Succeed. And on her death the property goes, to her son and not her sister (2).
(47) Unmarried daughter's right to a life-estate or maintenance.
Unmarried daughters among all tribes are invariably entitled to maintenance out of the estate of their deceased father till their marriage.” Residence in a strange village has no effect upon the daughter's right to ‘maintenance; but if she lives with her mother's family she is usually maintained by them. In some families a widowed daughter is also held entitled to. Maintenance especially where her husband has left no property for her support.
According to the general custom in this Provide, unmarried daughters are entitled to be maintained out of the estate of their father (3).
In Gujarat District the unmarried daughters are entitled to inherit the property of their father and remain in possession till marriage. They are therefore competent to challenge the alienation of their mother (4).
Amongst Sayyads of Shahpur District, when an unmarried daughter does take the succession that right lapses on her marriage and she cannot retain, after marriage, even her father's self-acquired property (5).
In certain circumstances, widow's right to maintenance may be secured to her by possession.
50 P.R. 1892- Hindu Jats of Ludhiana. Unmarried daughters are entitled to maintenance and sometimes even to separate possession.
139 P. R. 1892- Manjh Rajputs, Ludhiana District. Unmarried daughters are sometimes permitted to remain in possession of their father's estate till their marriage.
44 P. R. 1896- The unmarried daughter ordinarily has the right to be maintained till she is married. If she is allowed to retain possession of her father's land it is a mere temporary provision for her enjoyment of her right.
12 P. R. 1902- Where a daughter, being unmarried, was entitled to maintenance, the position of her father's landed property was given to her in presence of 7th
collaterals. Compare 18 P. R. 1894.
In one case (84 P. R. 1868) relating to Jats of Hoshiarpur District. even a married daughter who was living apart from her husband was given maintenance.
81 P. R.1879- Awans of Tahsil Khushab.
56 P. R. l899- Khots of Mauza Udharwal, Tahsil Chakwal, Jhelum District, in the presence of uncle.
12 P. R. 1902- Jats of Panipat. in the presence of 7th degree collaterals.
2 P. R. 1910- Glljars of Ludhiana District. In the following cases an unmarried daughter was allowed maintenance or residence only :-
72 P. R. 1880- Awans of Mallza Daiwal, Tahsil Khushab, whether married or unmarried, are entitled to residence in father's house.
31 P. R. 1893- Awans of Tahsil D.Jaba, Peshawar, in presence of near collaterals.
44 P. R. 1896- Razzai Pathans of Peshawar.
29 P. R. 1903- Kalar Jats of Jagraon, Ludhiana District.
112 P. R. 1912- Khatlars of Tahsil Fattehjang, in presence of sons.
(48) Married versus unmarried daughter.
Amongst Jats of Mauza Kanjhaola in Delhi Province a married daughter is not entitled to succeed to her father's property after his death (1).
24 Sisters are usually excluded as well as their issue Sisters.
(49) Right of sisters to, succeed against collaterals.
The question of sister's right to succeed in preference to collaterals has been recently considered in Sukhwant Kaur v. Balwant Singh (2) and the following principles laid down:
(a) The rule of succession under the Punjab Laws Act, S. 5, is personal law unless the person who relies on custom proves that the parties are governed by custom and what that particular custom is.
(b) Personal law now favours sisters which is not without effect on customs of Hindu tribes or tribes of Hindu origin.
(c) Custom has to be proved by evidence adduced in the case or may be proved by the production of the Riwaj-i-am which will raise a presumption in favor of the entry if the property in dispute is ancestral unless the statement covers non-ancestral property.
(d) Custom varies from tribe to tribe and from place to place but some customs have by frequent proof in the courts in all parts of the province become so notorious that judicial notice can be taken of them.
(e) The exclusion of sisters from inheritance to self-acquired property has not received that notoriety as to be taken judicial notice of at least not where the property is non-ancestral.
(f) The rights of females have not received that protection which they deserved at the time of compilation of Riwaj-i-am they have not been consulted and therefore the onus of proving their rights to succeed is a light one which may be discharged by a few instances or by general evidence given by members of the family of tribe without proof of special instances..
In this particular case the contest was between collaterals of the 12th degree and sister of the deceased. The collaterals had relied on a custom ., excluding the sister. It was held that the sister had been able to show that the initial onus was wrongly placed on her and even if it was rightly placed she had discharged the onus and that the collaterals were not able to establish the particular custom if the burden of proof was on them (1).
In Mst. Ratni v. Hanwant Singh (2), a case from Ferozepur, the contest was between sisters and sixth degree collaterals. The property was self-acquired. It was held that general agricultural custom is against succession of sister to exclusion of collaterals in respect of non-ancestral property, and sister can only succeed by proving a special custom. Commenting on this case it was observed in Sukhwant Kaur v, Balwant Singh (3):
"The property was self-acquired but no contest seems to have been raised as to the nature of the property and it was assumed that according to general agricultural custom of the Punjab a sister can succeed only by proving a special custom in her favor. A large number or cases were relied upon by the respondents where the onus was placed on the sisters because of a general custom excluding them. The basis for this assumption that there is a general custom in the Punjab of exclusion of sisters to prove their right to succeed seems to be the statement in paragraph 24 of Rattigan's Digest. I would like to state here that in none of these cases have the principles which I have enumerated above been taken into consideration, e.g., the presumption in favor of personal law and the onus on the person relying to prove a custom in modification of that law, the rights of females not having been enquired into at the time of the various Riwaj-i-amr, and lastly, the quantum of evidence sufficient to discharge the onus even if it is on such females. But apart from that there is a very large number of decided cases in which sisters have excluded collaterals generally more distant than the fifth degree but some- times nearer ones also and this by itself may be sufficient to put one on guard against accepting the universality or even equality of the rule laid down by Sir William Rattigan even apart from the note of caution that the learned author himself struck at the time he published the first edition of this book." In Mst. Sane Kaur v. Sher Singh (4) it was urged on behalf of the sisters that paragraph 24 of the Digest really applied to cases where the property-was ancestral, but the learned Judges rejected the contention holding that the paragraph equally applied to cases of acquired property. But see Mst. Fatima Bibi v. Shah Nawaz (5) in which it was observed—“As for the general rule laid down in paragraph 24: of Rattigan's Digest of the Customary Law, it is open to the same criticism, namely, that it is based mainly on authorities, regarding ancestral property and on the general1y accepted principles of agnatic succession which do not apply in the case of acquired property."
The status of a sister is different from that of a daughter, and the mere fact that, among a tribe or a family, the daughter has a favored place, does not raise a presumption that the same rule will apply to the sister.
As observed in 110m Din v. Mubarak (1)-"We find a material point of difference between a sister’s son and a daughter's son. Whatever favour is extended by custom to daughter's sons is extended in default of male issue: the daughter and her issue replace and are substituted for the sons and their issue in the case of a sonless man. But in the case of a sister she and her issue do not take the place of sons and their issue. She is the daughter .of a man who has living issue, the brother, who seeks to adopt or make a gift, and neither she nor her children are issue of the sonless man... Instances of succession by the sons of a resident daughter, or of valid gifts to a daughter's sons, whether or not resident, do not raise any strong presumption that a gift to a sister's son would be valid, whether or not he had been brought up in the donor's house unless there was an adoption, which would imply the assent of the brotherhood."
Similarly it was remarked in Nawab Ali v. Nathu (3)-"We do not think that 'there can be any doubt that the succession of the sister and her descendants does not stand upon the same footing as that of a daughter and her issue, though the former frequently comes immediately after the latter, where the principle of female succession is recognized.”
In no system of Jaw, that we are aware of, are the claims of daughter and sister placed on the same footing and we cannot imagine that the agriculturists of this Province by a subtle train of reasoning would ever have put them on the same footing" (3). .
A daughter occupier generally a much more favorable position than a sister (4).
Instances of succession of daughters in the presence of collaterals are insufficient to prove a custom of succession of sisters in preference to collaterals (5). When it is established that in a particular tribe collaterals exclude daughters even as regards no ancestral property, a fortiori sisters and still more sister's daughters would be excluded (6). When it is proved that by custom daughters are excluded from inheritance in a certain family, it may be safely assumed that sisters and their sons are also excluded (7).
In Bland v. Mst. Suban (8) it was argued that where instance of exclusion of collaterals by sister could be established in a particular tribe, there would be greater reasons for holding that daughters likewise in that tribe excluded the collaterals. But this View did not find favor with the Judges on the ground that custom is not logical and cannot be extended by analogy.
But see 71 P. R. 1892 (Faiz-ud-Din v. Mst. Wqjib-un-Nisa) in which it was remarked-'When marriage into a different got involving. as It usually does, migration to another village IS not obligatory, the position as regards succession of a daughter and of a sister is not so vastly different as it is when such marriages are obligatory. It may indeed from a particular point of view be regarded as identical." The tribe in such a case will be endogamous. See also 102 P. R. 1900; 110 P. R. 1906[F. B.].
Thus under the customary law sisters are usually excluded from inheritance by agnate however distant. When the sisters seek to inherit the estate of their deceased brother in preference to collaterals (of the tenth degree), the onus is on them to establish a custom in favor of their succession (1).-Dhotar Jats, of Gujranwala District.
The onus of proving that a sister or a sister's son excludes male collaterals so near as great-grandsons of the common ancestors, lies, in the case of Hindu Jats, on the person who asserts it (2).
In Faiz-ud-Din v Mst. Wajib-un-Nisa (3), a case relating to Moghals of Kharkhanda in Rohtak District, it was held that the burden of proof rested in the first instance upon the plaintiff, the sister -and sister's sons claiming against male issue of the grand-father.
In Sheran v. Mst. Sharman (4), in which the parties were Channar Jats of Lodhran Tahsil, Multan District, it was held that even assuming that the onus was on the defendant (sister) to rebut the inference to be drawn from the existence of a custom according to which collaterals excluded sisters from inheritance. the rules of inheritance as detailed in the Riwaj-i-am were sufficient to shift the burden .on to the plaintiffs (collaterals).
In the case of Afghans of Mauza Nasran. Tahsil Hoshiarpur. It was held that the married sister of a deceased interstate sonless proprietor. upon whom onus rested. failed to prove that collaterals in the 7th degree were too distant to compete successfully with her in the matter of succession to ancestral estate (S}