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Petitioner: KARIM DAD VS Respondent: SHARIFAN
P L D 1955 Federal Court 155
P L D 1955 Federal Court 155
(Appellate Jurisdiction)
Present : Muhammad Munir, C. J., A. S. M. Aram, A. R Cornelius and Muhammad Sharif, JJ
KARIM DAD and another‑Appellants
versus
Mst. SHARIFAN and 5 others‑Respondents
Civil Appeal No. 4 of 1953 decided on 8th March, 1955.
(On appeal from the judgment and decree of the High Court of Judicature at Lahore, dated the :0th of January 1952, in Regular First Appeal No. 264 of 1946.)
(a) Riwaj‑i‑am‑Entries in, regarding custom of tribi Value‑Burden of proof‑Riwaj-i‑am of Amritsar District (1940) not carefully prepared.
A different statement on an incident of custom in the Riwaj‑i‑am is treated as an exception to the general rule as em bodied in Rattigan's Digest of Customary. Law in the‑ Province of Punjab. As such, in any controversy where the existence of a particular custom is in issue, the onus of proof would be regulated in the first instance by the general custom on the point, if any. If the custom alleged by the plaintiff is in con sonance with the general custom, an initial presumption would arise in his favour and a very strong proof would be needed to rebut it. The other party to the dispute might rely upon a special custom and in proof thereof, produce an entry from the Riwaj‑i‑am relating to the tribe concerned. This statement of a special custom, which is in the nature of an exception to the general rule, would be a strong piece of evidence in support of the custom therein entered subject to rebuttal, and it would not cease to be so merely because it is not supported by instances if there is no other evidence produced in the case and the Riwaj‑i‑am containing the special custom, is found to have been carefully prepared and does not contain inherent evidence of defects in its compilation, or it is a record of cus toms as it prevails and not merely a collection of views bf persons as to the custom which ought to prevail the special custom would be taken to have been successfully established. If, however, the Riwaj‑i‑am suffers from the defects mentioned above, it would have no value as a presumptive piece of evi dence, unless there were clear instances in support of that custom. It is difficult to lay down a hard and fast rule as to the quantum of evidence which should be considered necessary to. rebut a presumption in any particular case. It would vary with the circumstances of each case. From the very fact that a particular custom is opposed to the general custom, the pre sumption in favour of the special custom must be a weak one, and a few well‑ascertained instances might suffice to displace it. Where other evidence oral and documentary, has been examined, the case must be judged as a whole and it should be seen to what extent the prima facie proof of correctness of the special custom, as ‑contained in the Riwaj‑i‑am has been negatived or disproved.
The custom embodied in the Riwaj‑i‑am of 1940 of Amrit sar district, that a. widow could alienate the self‑acquired property of her husband in favour of any person she liked is an astounding custom and runs counter to the very concept of Customary Law as understood by agricultural communities residing in the Province.
This custom was one of which there was no proof upon the record of this case beyond an extract from the Riwaj‑i‑am of 1940. Under the circumstances, the Riwaj‑i‑am could not be said to have been carefully prepared and in the absence of any proof of variation, the previous Riwaj‑i‑am of 1913, which was the same as the general Customary Law of the Province, could not be held to have been superseded.
Beg v. Allah Ditta 45 P R 1917, Ahmad Khan v. Mst Channi Bibi I L R Lab. 502 (P C) Vaishno Ditri v. Rameshri and others I L R 10 Lab. 86, Sultan v Mst. Sharifan I L R 10 Lab. 249, Khan Bege v. Mst. Fateh Khatoon I L R. 13 Lah. 296, and Mst Subhani and others v. Nawab and others I L R 22 (1914) Lab. 154 ref.
Labh Singh v. Mst. Mango I L R 8 Lab. 281 and Bahadur v. Mst. Nihal Kaur I L R 1937 Lab. 594 ref.
(b) Custom (Punjab)‑Alienation‑Self‑acquired property of husband‑Widow's powers to alienate‑Whether unrestricted Muhammadan Gill Jats of Amritsar District.
A widow has no unrestricted power of alienation in respect of self‑acquired property of her husband over which she enjoys a life‑estate. The case related to Muhammadan Gill Jats of Amritsar district. Entries in Riwaj‑i‑Am of 1940 were dis counted as they varied from the entries in Riwaj‑i‑ams of 1913 and 1865 and were against the general custom of tile Province as embodied in Rattigan's Digest, and further because there was no instance in support of the variation.
S. A. Kareem, Advocate, Federal Court, instructed by V. H. Naqvi, Attorney, for Appellants.
'Muhammad Hussain, Senior Advocate, Federal Court, (Abdul Halim, Advocate, Federal Court, with him) instructed by Naziruddin, Attorney, for Respondent No. 1.
Respondents Nos. 2 to 6: Not present: ex parse against them.
Date of hearing: 31st January 1955.
JUDGMENT
MUHAMMAD SHARIF, J.‑This is an appeal by the plain tiffs against the judgment and decree of the High Court of Judicature at 'Lahore, dated the 30th of January 1952, dismiss ing the suit with costs throughout and reversing the decision of the Senior Subordinate Judge who had decreed the suit for a declaration.
The third‑degree colleterals of one Gauhar Jat brought a suit for a declaration to the effect that the alleged oral gift made by Mst. Rehmate, defendant 2, in favour of her daughter, Mst. Sharifan defendant 1, in respect of land, measuring 218 kanals and 14 marlas, comprising square No. 22 in Chak No. 265‑R. B. on or about the 22nd of June 1943 and on the basis of which, a collusive decree was obtained from the Court of the Senior Subordinate Judge, Lyallpur, on the 17th of November 1943, shall not effect the reversionary rights of the agnates on the death or remarriage of Mst. Rehmate, the donor. The parties are Gill Jats and originally belonged to Amritsar District. Gauhar, the son of Malla, had acquired to squares of land, Nos. 22 and 23, in Lyallpur District, and died in 1929. He had two wives. From Mst. Imam Bibi, he had one son, Makhan, and one daughter, Mst. Nawab Bibi. Makhan himself had died during the lifetime of his own father, leaving behind one son, Umar Hayat. From the other wife, Mst. Rehmate defendent 2, Gauhar had one son, Muhammad lain, and one daughter. Mst. Sharifan, defendant 1. On the death of Gauhar, square No. 23 was mutated in the name of his grandson, Umar Hayat, and the other square No. 22 was mutated in favour of his son, Muhammad Din.
The dispute in the present case is restricted to square No: 22. Muhammad Din also died in the year 1933, while he was still a child. There being no descendant of his, the estate was inherited by his mother, Mst. Rehmate and she remained in possession.
On 22nd of October 1943, Mst. Sharifan defendant 1, the sister of Muhammad Din, the last male owner, tiled a suit for a declaration against Mst. Rehmate, her mother, that square No. 22 had been transferred to her by the defendant, by oral gift and that she had, therefore, become its owner and was in pos session, and for the issue of a permanent injunction restraining her mother from interfering with her property. On the 17th of November 1943, the mother confessed judgment and the decree was passed accordingly. It was against this decree that the suit for a declaration, out of which this appeal has arisen, was instituted.
It was claimed that Mst. Rehmate, as the mother of Muhammad Din, did not become the PW1 owner, but was enti tled to remain in possession for her lifetime only or till remarriage and that the alienation by her in favour of her daughter was not valid, according to the custom governing the parties.
Defendants 1 and 2 admitted the facts mentioned in the plaint, but denied that the decree of 17th of November 1943 was of a collusive nature. It was alleged that, according to custom and law, defendant 2 had full powers to make the gift; as the property in question was the self‑acquired property of her husband. It was also asserted that defendant I was the heir of her father after the death of her mother, defendant 2.
It is common ground that the parties are, in matters of succession and alienation, governed by agricultural customs of the Gill tribe of the Amritsar District. The two main issues tried in the case were:‑
(1) Whether defendant 1 is a preferential heir regarding the land in suit as compared to the plaintiffs?
(2) If so, then whether the gift is illegal and not binding on the plaintiffs?
The trial Court found that the property was not ancestral qua the plaintiffs and that it was proved to have been acquired by Gauhar himself. It was held that Mst. Sharifan defendant 1 could not be regarded as the daughter of Gauhar as she was the sister of Muhammad Din, the last male owner and as such, she could not exclude the collaterals even from non‑ancestral property according to custom. In this connection 134 P. R. 1907 was referred to. It was further held that notwithstanding the entry in the Riwaj‑i‑Am of Amritsar District prepared in 1940, that a widow had unrestricted powers of alienating the self‑acquired property of her husband, Mst. Rehmate could not make her daughter the full owner as she had inherited the property in her capacity as the mother of Muhammad Din and had not received it directly from her husband, Gauhar. On these findings, the suit was decreed.
On appeal to the High Court by defendant 1, her learned counsel rightly conceded that, according to the agricultural custom, Mst. Sharifan, the sister of the last male holder, Muhammad Din, could not, for purposes of inheritance, be treated as the daughter of Gauhar, the penultimate owner or the land. It was, however, urged that Mst. Rehmate took the property not as the mother of Muhammad Din .but as the widow of her own husband and, according to the entry in the Riwaj‑i‑Am, she was fully competent to make the alienation in suit. Referring to answer to Question No. 52 in the Riwaj‑i‑Am of the Amritsar District prepared in 1940, the learned Judges of the High Court held that in view of the entry empowering the widow to deal with the self‑acquired property of her husband in any manner she liked, the onus was upon the plaintiffs‑respondents to show that the custom recorded therein was not correctly recorded. The learned Judges also held that there was no reason to think that the latest Riwaj‑i‑Am of the Amritsar District was imperfectly compiled, and that, on the other hand, there were indications that the earlier Riwaj‑i‑Ams did not represent the custom correctly and, as there were no instances on the record to rebut the presumption created by the . latest Riwaj‑i‑Am, the appeal was accepted and the suit of the plaintiffs was dismissed. The plaintiffs have now come up in appeal on a certificate granted by the High Court under section 110 of the Code of Civil Procedure.
The contention of the learned counsel for the appellants was that the learned Judges of the High Court approached the case from a wrong standpoint in placing the initial onus upon the plaintiffs‑collaterals and that, in any case, the presumption, if any, arising in favour of an alienation by the widow under the Rlwaj‑i‑Am of 1940, was fully rebutted.
Before discussing the allocation of onus in a case of this kind, it would be desirable to have some idea as to the manner in which a Riwaj‑i‑Am is prepared. On reference to the Punjab Settlement Manual by Sir James M. Douie, Fourth Edition (1930), it would appear from paragraph 5b0, that the practice of preparing these documents finds its origin in a despatch, dated the 31st of March 1849, in which Lord Dalhousie, the then Viceroy and Governor‑General of India, clearly laid down the policy of upholding the "native institu tions and practices as far as they are consistent with the distribution of justice to all classes," of maintaining village communities in all their integrity, and of improving and conso lidating "popular institutions". In pursuit of this object, a careful study of the customs existing among the rural popula tion in respect of inheritance, pre‑emption, and the like, was made by the earlier Settlement Officers and the result was embodied in the village administration papers of early settle ments. Since these were prepared as part of the village administration papers, a presumption of truth under section 44 of the Punjab Land Revenue Act of 1887 could attach to them. In 1864, however, Mr. Prinsep, as Settlement Commissioner, started the plan of preparing records of tribal custom and the measure received the sanction of the Punjab Government as also the approval of the Government of India. His object was twofold : to lighten the settlement record by setting forth once and for all for tribes or tracts, customs which had hitherto been recorded for each estate, and to collect information which would be of use to ‑ the Courts in the administration of M. justice. (Vide para. 561.)
In the year 1872, the Punjab Laws Act was enacted which declared that "in questions regarding inheritance, special property of females, betrothal, marriage, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision" should be "any custom of any body or class of persons, which is not contrary to justice, equity and good conscience and has not been declared to be void by any competent authority". (Vide para. 562.) , This led. to increased attention being paid to the compilation of records of tribal custom at times of settlements. In 1872, the Financial Com missioner issued a circular on the subject, and the rules under the Land Revenue Act of 1871 provided that, where the customs regulating particular relations were common to the whole of a tribe or to a group of villages, they might be collected into tribal‑or Ilaqawar statements. The record was to be one of usages actually existing, and precedents were to be cited where possible. "Nothing", it was noted, "can be called a custom which is not acted on, or which is not of the nature of a rule habitually applied by the persons amongst whom the custom is said to prevail whenever the occasion arises, and . . . . no determination of the headman of the tribe, or group of villages to adopt new rules not founded upon existing custom would be of any force, as they have no power to bind the members of the communities to which they respectively belong". (Vide para. 563.)
In order to give a still greater degree of system and precision to the executive investigation of customary law, Sir Lewis Tupper drew up two sets of questions, one dealing with the tribal customs, regulating the domestic relationships, inheritance, etc., anti the other with local agrarian customs. (Vide para. 564.)
Paragraph 565 of Douie's Settlement Manual contains the directions which should be followed in the compilation of the Riwaj‑i‑Am. It is stated there that in any district in which no Riwaj‑i‑Am or record of tribal custom has been prepared, it is the duty of the Settlement Officer to have one drawn up. A list of the principal tribes in each Tehsil should be prepared. The actual enquiry should be made by the Settlement Tehsil dars or the Extra Assistant Settlement Officers, who should assemble the leading men, including all the village headmen of each tribe, at a convenient centre, explain the questions to them, and record their answers. He should be particularly careful to ask for precedents, as regards customs which are likely to be disputed in law court, as, for example, where a tribe or a part of a tribe assert a usage whereby the primary division of the .land in the case of an owner leaving male children by two wives is into two equal shares, one for the offspring of each (chundavand), as opposed to the usual custom of division among all sons per capita (pagvand) The Settle ment Officer should scrutinize the answers, marking any which seem to him to be founded on a misunderstanding of the meaning of the questions or vague, or probably incorrect. He should himself call together the leading tribesmen in each Tahsil and examine them again as to such doubtful points. The faired vernacular Rawaj‑i‑Am may conveniently contain separate columns for the questions, the answers, precedents quoted and the Settlement Officer's notes. Wherever it appears to a Settlement Officer that any answer embodies rather a vague popular sentiment, or a feeling of what ought to be, that what is actually, customary, he should not fail to note the fact.
It might be added that no presumption of truth, such as attaches to entries in the village Administration papers under section 44 of the Land Revenue Act 1887, belongs to the con tents of a Rawaj‑i‑Am. But if the record of tribal custom has evidently been prepared after careful. enquiry and especially if the answers are fortified by the quotation of precedents, courts of justice may be expected to treat the replies recorded as valuable evidence. (Vide para. 566.)
From the above, it would be quite clear that much empha sis was laid upon the collection of precedents as regards the applicability of the custom alleged‑. The extent to which the above instructions concerning the compilation of the Riwaj‑i Am were followed and acted upon, would in a large measure determine the value and the weight of the customs recorded therein. .
The question of onus may now be dealt with. Before 1917, the Punjab Chief Court was of the view that a Riwaj‑i‑Am which was not supported by instances or which was opposed to general custom, was of no value. One of such cases, Beg v. Allah Ditta (45PR1917) went up to the Privy Council. In that case, the last male owner of the property was one Shahamad, who died leaving behind a widow and a daughters married to a near cousin of the, name of Daim. On the death of Shahamad, his widow succeed to the entire estate and whet she died, muta tion of the property was effected in the name of the daughter's son, the defendant‑appellant. The plaintiff's claimed that, as the agnatic‑ relations of Shahamad deceased, they were, accord ing to the custom of their tribe, entitled to succeed to the property of Shahamad to the exclusion of his daughter and daughter's son. The defendant's plea was that a daughter married to a collateral, who taken up his abode in the father -in‑law's house and is known as khana damad or resident son‑in‑law, succeeded to her father's inheritance in preference to the agnates and in support of this special custom, the entry from the Riwaj‑i‑Am, or "official record of custom", was produced in addition to a considerable amount of oral testimony. The case was remanded by the Chief Court for further enquiry as to custom. The learned Divisional Judge put aside the statements in the Riwaj‑1‑Am, apparently on the ground that they required to be proved by instances before any value could be attached to them. With regard to the evidence of instances, he thought, it referred, with one exception, to other, sections of the community and did not apply to the Dabs‑the tribe of the parties. The Divisional Judge further held, in agreement with his predecessor, that the plaintiffs had, on their side, failed to rebut the defendant s allegation as to the exis tence of a special custom relating to the succession of married daughter among the Dabs. When the appeal came to be heard by the Chief Court (it is reported as 48 P. R: 1909), the learned Judges confined themselves to the existence of the custom alleged by the defendant and they held that the defendant had failed ‑to establish his allegation and, consequently, the decision of the Divisional Judge was reversed and the suit of the plaintiffs decreed. The learned Judges observed : "Had the custom .set up by the respondent governed the tribe, we should doubtless have found more instance forthcoming, and in Hayat Muhammad v. Nawab (108 P R 1900), Allah Ditta v. Allah Bakhsh (89 P R 1100) and Nizam Din v. Shahab‑ud‑Din (108 P R 1900), 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."
Their Lordships of the Privy Council observed that "the Chief Court are in error in supposing that the defendant did not discharge the onus that lay on him of establishing the custom he alleged. Assuming that there is a general custom of agnatic or collateral succession in default of male issue to the exclusion of female heirs among the agricultural tribes of the Punjab, about which the decisions of the Punjab Chief Court are by no means uniform, especially in the case of Muhammadan tribes who are endogamous, it is clear that the rule is admittedly subject to a considerably number of excep tions. Mr. Rattigan, in his valuable work called 'A Digest of Customary Law for the Punjab', enumerates the exceptions under paragraph 23. Sir Charles Roe, himself at one time a Judge of the Chief Court, in his Tribal Law in the Punjab', lays particular stress on the value of the Riwaj‑i‑Am as a record of tribal customs ; and, he adds, that `a son‑in‑law of the house is a regular institution' ".
"The Riwaj i‑Am did not specifically record the custom of the Dabs, but mentioned in clear terms that for the general body of Jats (in which term the sub‑community of Dabs is clearly included) the custom is simply mentioned as `that prevailing among the Syala' ".
On the above facts, their Lordships of the Privy Council held : "The Riwaj‑i‑Am was produced and exhibited as evi dence at the very outset of the case ; it is a‑ public record prepared by a public officer in discharge of his duties, and under Government rules ; it is clearly admissible in evidence to prove the acts therein entered subject to rebuttal. In their Lordships" opinion, the statements contained in the Riwaj‑i Am form a strong piece of evidence in support of the custam which it lay upon the plaintiffs rebut, and this, according to the findings of the Divisional Judges, they failed to do."
In spite of the clear pronouncement as to the evidentiary value of the Riwaj‑i‑Am, the Punjab Chief Court and its suc cessor, the High Court of Lahore, failed to give full effect to the prima facie presumptive evidence of correctness of the statements in the Riwaj‑i‑Am and several judments were delivered which did not keep in view the dictum laid down in Beg v. Alla Ditia. This is particularly referred to in Labh Singh v. Mst. Mango (I L R 8 Lah. 281). Examining the argument of the learned counsel for the defendants‑respondents that a Riwaj‑i Am unsupported by instances is not a sufficiently strong piece of evidence in support of custom to shift the onus of rebuttal to the other side and more especially so, when the special custom recorded is opposed to the general custom of agricul tural tribes in the Province and in support of which, some recent decisions were cited, Fforde, J. had to point out "the reasoning, therefore, comes back to this: that whenever you have an entry in a Riwaj‑i‑Am recording a special custom, that entry must always be valueless as a piece of evidence and it is only when it records a general custom of agricultural tribes that it can be of any value‑unless it happens to be supported by instances". After discussing the rulings cited, the learned Judge proceeded to observed :‑
"It seems to me that in these five decisions of this Court the Judges have by progressive stages returned to a proposi tion of law which has been expressly dissented from by the Privy Council. ******** I find myself unable to accept the view on this matter expressed by the learned Judges in the above‑mentioned cases for the simple reason that a contrary view has been laid down in the clearest possible terms by an authority from which these Courts are not permitted to dissent."
One mode of rebutting the presumption arising from the entry in the Riwaj‑i‑Am, was indicated by their Lordships of the Privy Council in Ahmad Khan v. Mst. Channi Bibi (I L R 6 Lah. 502 (P C)). It was held that "custom of the kind alleged in this case may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognisant of its existence and its exercise without controversy."
"There is a large body of oral evidence establishing the custom, wholly unrebutted by the defendants who have relied exclusively on the Riwaj‑i‑Am. The Judges of the High Court have commented on these documents, and their Lordships see no reason to differ from them."
In Vaishno Ditti v. Rameshri and other, (I L R 10 Lah. 86) their Lordships of the Privy Council had another occasion to deal with the question of custom and the value that should be given to entries in the Riwaj‑i‑Am. The parties were Arora Sikhs, residents of Peshawar. The plaintiff by her plaint claimed that she was entitled by a deed…
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