P L D 1952 Lahore 451 (PLP)

MUHAMMAD MUNIR, C. J.‑This appeal under clause 10 of the Letters Patent from the judgment of a learned judge of this Court has arisen in the following circumstances :‑ The last male owner of the land in dispute which is situate in village Saila, Tehsil Jhelum, was one Sultan. On his death in 1924 the land was mutated in the name of his widow Mst. Sardar Begum. The widow having remarried, the land came to be mutated in favour of Mst. Farzand Begum, the unmarried daughter of Sultan. Mst. Farzand Begum married in 1944 and on her marriage the revenue authorities mutated the land in favour of Buta and Rahmat who are fourth‑degree collaterals of Sultan. Aggrieved by the mutation, Mst. Farzand Begum brought a suit against Buta and Rahmat praying for a declaration that she was the rightful owner of the land, being Sultan's next heir under custom. The defendants succeeded in proving that a portion of the land was ancestral qua them. On this the trial Court dismissed the suit with respect to the land that was found to be ancestral and decreed the claim regarding the land that was not proved to be ancestral. The defendants appealed to the District judge but were unsuccessful. The second appeal to this Court also failed but the learned judge who determined the appeal certified the case to be a fit one for a Letters Patent Appeal. The parties are Jats of Tehsil Jhelum. The learned judge has taken the view that the statement of custom as recorded in the latest Riwaj‑i‑am and the preceding Riwaj‑i‑am raises a presumption in favour of the defendants but that the pre sumption is weak and has been rebutted by the instances appended to the answer to Question No. 56 in the latest Riwaj i‑am of 1946. We have heard counsel at length and are of the view that the judgment of the ‑learned judge is right and that it can also be supported on another ground which we shall presently state. The property is non‑ancestral and the rival claimants are the daughter and fourth‑degree collaterals. Disputes of this type are governed by the Privy Council judgment in Mst. Subhani v. Nawab A I R 1941 P C 21, the last paragraph of which sums up the position as follows:‑ "For the reasons indicated in this judgment, their Lord ships are of opinion that the true legal position was that the property being non‑ancestral, the initial onus lay on the plaintiffs to prove that the general custom in favour of the daughters' succession had been varied by a special custom enabling the plaintiffs to exclude the daughters and that the plaintiffs have not discharged this onus. Their Lordships would add that even if it be held that the answers in Wilson's Manual raised an initial presumption against the daughters, having regard to the considerations mentioned' in this judgment, it was a weak presumption, which has been sufficiently discharged by the evidence adduced in the case". It cannot be disputed that the entry in the Riwaj‑i‑am on which reliance is placed by the defendants is contrary to the general custom. The initial burden, therefore, of proving that married daughters are excluded by collaterals of the fourth degree was on the defendants. That onus did not in the present case shift by reason of any entry to the contrary in the latest Riwaj‑i‑am because, though the tribes consulted stated that whether the property be ancestral or non‑ancestral, married daughters were excluded . . . . . .by collateral within the fifth degree, the compiler of the Riwaj‑i‑am expressly stated in the subjoined note the statement of custom, so far as the Jhelum and Pind Dadan Khan Tehsil were concerned, was not correct and that the prevailing custom in these Tehsils that daughters, married or un‑married, excluded all collaterals from succeeding to non‑ancestral property. This note was based on nine instances, only one of which supported the replies to Questions Nos. 55 and

56. The other eight instances were definitely opposed to the custom stated by the tribes consulted. This Riwaj‑i‑am was prepared by Mr. P. N. Thapar, who stated in the introduction that the peculiar feature of his work was the collection of instances from judicial decisions and mutations in support of the custom recorded. "Wherever the replies differ from the instances collected", he remarked, "the custom, as it actually prevails, has been stated in the form of a note." It is, therefore, obvious that the statement of the custom on the point is to be found not in the answer to Questions Nos. 55 and 56 but in the notes appended by the author to the answer to Question No. 56 Consequently the position is that not only was the A general custom in favour of the daughters but the custom of the tehsil, as stated by the author of the Riwaj‑i‑am, also favoured them. Mr. Yaqub Ali Khan for the defendants relies on Syed Khadam Hussain v. Syed Muhammad Hussain A I R 1941 Lahore 73, where Din Muhammad, J., with whom Bhide, J. agreed, held that the presumption created by the entries in a Riwaj‑i‑am could not be rebutted by the compiler's opinion to the contrary. The learned judge said:‑ " In my opinion, however, whatever, weight may be attached to the compiler's remarks, they are not sufficient to rebut the presumption arising from the entries recorded in the Riwaj‑i‑am, especially when they are in accord with the earlier Riwaj‑i‑am. A departure from the old Custorm ary Law may be discredited if the compiler thinks that the change was being introduced for a set purpose, but if the replies are in consonance with what had been the custom from time immemorial, the compiler's personal opinion that the rules were not being rigidly observed in practice will neither discredit the replies given nor lighten the burden on those who are required by the law to rebut the entries made in the Manual of Customary Law." That was a case in which more stringent restrictions on the powers of a widow to alienate had been stated by the tribes consulted to be prevalent than the limitations on her power under the general custom. It seems to us that the correct position in law is that the answers given by the tribes to the questions put by the compiler of a Riwaj‑i‑am are merely rele vant under section 48 of the Evidence Act as being the opinion, as to the existence of a custom, of persons who would be likely to know of its existence if it existed. Further, the entries in a Riwaj‑i‑am are also relevant under section 35 of that Act, being entries relating to a relevant fact made by a public servant in a public or official record in the discharge of his official duty. Where an opinion as to the existence of a custom becomes relevant under section 48, whether that opinion be stated in Court or at the time of the settlement, there is no rule that the opinion must be presumed to be correct unless it is proved to be wrong. Such opinions, when stated in a Riwaj‑i‑am, have been held to carry a presumption of correct ness because they amount to entries in a public or official record relating to the existence of a custom. The principle upon which entries in an official record are received depends on the public duty of the person who keeps the record to make such entries after satisfying himself of their truth. Entries in a Riwaj‑i‑am are admitted on the principle that the Riwaj‑i‑am is an official record prepared by a person upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, and it is the fact of these entries having been so made which creates in their favour a presumption of correctness, therefore where section 35 is sought to be made applicable to statements of cus tom in Riwaj‑i‑am so that the custom stated therein may be presumed to exist, the first question that the Court has to determine is what the exact purport of that entry is. If the entry is merely in the form of a reply to a question asked with out any comment by the compiler, the presumption is that the compiler, whose duty it was to prepare a record of the cus tom in force, agreed with the answer given; but if the compiler, taking into consideration the reply given and the result of any other investigation made by him, states that the reply does not represent the existing custom and that the prevalent custom is different, the entry must be taken to mean that the custom recorded was as stated by the compiler and not by the persons who were consulted. In the present case, for instance, though all tribes stated that collaterals up to the fifth degree excluded daughters, married or unmarried, and that in this respect there was no difference between ancestral and non‑ancestral property, the compiler stated in a note that the reply of the tribes from Jhelum and Pind Dadan Khan Tehsils was in correct and that all instances, except one, based on judicial decisions, showed that in succession to non‑ancestral property a daughter, married or unmarried, excluded all collaterals, however near. This note has to be read in the light of his remarks in the introduction to Riwaj‑i‑am, where he stated that where the replies differed from the instances collected, the custom as it actually prevailed had been stated by him in the form of a note. The compiler's opinion, therefore, that in respect of non‑ancestral propery collaterals, however near, were excluded by the daughters, must be taken as the entry relating to the existence of the custom in question. Thus, the custom stated being in favour of the daughters and in accord with the general custom, and there being no reliable' evidence in rebuttal except one dubious instance, the decision appealed from was correct and this appeal must be dismissed with costs. A. H. Appeal dismissed.