- (1.) The sole point in this plaintiff's second appeal is whether in the Ambala District collaterals of the seventh degree are preferential heirs then sister's sons in regard to non-ancestral property.
(2.) According to the Riwaj-i-am of Ambala District the common custom is taht a daughter is excluded by the collaterals descending from a common great great-grandfather (shakarbaba) and sister will succeed in the absence of a daughter or daughter's son, the rule with regard to sons of sisters being the same. Mr. Tek Chand has submitted that the Riwaj-i-am of Ambala District must be taken to refer, as indeed to other Riwaj-i-ams, to ancestral property and therefore whatever be the right of the sisters or their sons in regard to ancestral property, non-ancestral property must be governed by the general custom of the Punjab which is contained in paragraph 24 of Rattigan's Digest, and he relies on a judgment of the Lahore High Court in Kirpa V. Bakshish Singh, 50 PunLR 220 where collaterals of the fourth degree where preferred to sister's son and the question was decided solely on the basis of paragraph 24 of the Rattigan's Digest. This judgment has been followed in two judgments of this Court in Santi V. Surjit Singh, L.P.A. 3 of 1948 and Banti V. Harnam Singh L.P.A. 15 of 1949. In all these cases the rights were decided in accordance with paragraph 24 of Rattigan's Digest which was held to lay down the general custom of the Punjab and unless it was rebutted it governed the parties.
(3.) In reply Mr. Shamair Chand relied on several judgments - (i) Gurdit Singh V. Baru, 1933 AIR(Lah) 1005 That was a case from Rupar Tehsil and it was held that sisters were entitled to inherit in the absence of fifth degree collaterals. Although the question has not been discussed at great length it is a good instance showing the preference of sisters over collaterals of the fifth degree; (ii) Munshi V. Niranjan Singh, 39 PunLR 379. It is a Division Bench case where again it was held that in the absence of fifth degree collaterals a sister or sister's sons woudl succeed in preference to collaterals of a more remote degree or of a daughter's sons. Property in this case ws non-ancestral. Reference was made to questions 28 and 47. This is another instance where sisters were held to be entitled to non-ancestral property. (iii) Jagat Singh V. Puran Singh, 49 P.L.R. 365. In this case collaterals of the third degree were the disputants and the case was from the Rupar Tehsil of Ambala District. Mahajan, J., doubted the correctness of paragraph 24 as given in Rattigan's Digest; (iv) Maulu V. Ishro, 52 P.L.R. 263. In this case parties were Jats of Pipli area which was once in Ambala Tehsil but is now in Tehsil Thanesar of Karnal District. There Soni, J., and myself had an occasion to consider this very Riwaj-i-am of the Ambala District, and though the property was non-ancestral, we held that sisters were better heirs than collaterals' more remote than the fifth degree in the absence of daughters or daughters' sons. (v) Sikhwant Kaur V. S. Balwant Singh,1951 AIR(Simpla) 242 The parties in this case were twelfth degree collaterals and sisters. The case was from Amritsar District. Sitting with Weston C.J., I had an occasion to refer to the history of the rule laid down in paragraph 24 of Rattigan's Digest and paragraph 24 was not found to be a correct statement of custom and it was also held that the exclusion of sister from inheritance to self-acquired property had not received that notoriety as to be taken judicial notice of at least not where the property is non-ancestral. Certain Propositions were laid down at P. 251 of the report :- "The authorities show taht (a) the rule of succession under the Punjab Laws Act, Section 5 is Personal Law unless the person who relies on custom proves that the parties were governed by custom and what that particular custom is; (b) and Personal law now favour sisters which is not without effect on customs of Hindu tribes or tribes of Hindu origin see Mst. Rajo V. Karam Bakhshi, 11 P.R. 1905 at page 78 : 92 P.L.R. 1908; (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 favour of the entry if the property in dispute is ancestral unless the statement covers non-ancestral property; (d) customs 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) but the exclusion of sisters from inheritance to self-acquired property has not received that notoriety and has 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 and 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 or tribe without proof of special instances. See Ahmed Khan V. Chandni Bibi, I.L.R. 6 Lah. 502";