P L D 1955 Federal Court 155 (PLP)

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 of compromise and by riwaj. Two witnesses gave unrebutted evidence that by custom of Aroras, a daughter's daughter inherited in the absence of a daughter's son, but they were unable to refer to any instances. The Customary Law of the Peshawar District (1899) stated as to Aroras that "in the event of a daughter entitled to inherit having predeceased her father, her share may. be taken by her issue." The above manual had not been put in evidence in India. The case rested on section 27 of the North‑West Frontier Province Regulation, 1901, which in terms is the same as sec tion 5 of the Punjab Laws Act, 1872. Discussing the question of custom, their Lordships observed : "there was the evidence of the two witnesses for the plaintiff that in the community of the Arora Sikhs, to which the parties belong, a daughter's daughter succeeds to the inheritance in the absence of a daughters son, and there was no evidence the other way. Though the witnesses unable to speak to any instances in which the custom has been observed, their evidence is entirely in accordance with what is laid down in the Customary Law of the Peshawar District, at page 32, that in the event of a daughter entitled ‑ to inherit having predeceased her father her share may be taken by her issue. If, as here stated in the event of a daughter dying vita patris, her issue is entitled to succeed by representation, it appears to their Lordships to follow a fortiori, that a daughter's daughter must be entitled to the share which had devolved upon her mother." In Sultan v. Mst. Sharifan I L R 10 Lah. 249., a case of Awans of the Jhelum District, these was a contest between the brother and nephews of the deceased proprietor and his own daugter with reference to self‑acquired property. The collaterals brought the suit and placed their reliance on entry in the Riwaj‑i‑am of the district which laid down that an unmarried daughter, in the absence of male lineal descendants, succeeded to the property of her father only until marriage and that no distinction was made, in the matter of inheritance between self‑acquired and ancestral property of the father or between movable and immovable property. The learned Chief Justice Sir Shadi Lal, who delivered the judgment, observed :‑ "As laid down by their Lordships of the Privy Council in Beg v. Allah Ditta 45 P R 1917., an entry in the Riwaj‑i‑am raises a presumption in favour of the custom recorded therein, and the onus lies upon the daughter to rebut that presumption. It is, however, clear that the general custom of the province favours the succession of the daughter to the acquired pro perty of her father in preference to collaterals, vide Rattigan's Digest of Customary Law, paragraph 23, sub paragraph (2) ; and that the custom invoked by the plaintiffs must be treated , as an exception to the general rule. It is to be observed that the Code of Tribunal Custom prepared by Mr. Talbott at the last Settlement of the district does not mention any ‑instances in support of the exclusion of the daughter from the self‑acquired property of her father and the declaration that a married daughter cannot inherit even the self‑acquired movable property of her father verges on an absurdity. Indeed, Mr. Talbot himself in his preface points out that the Code must not, in all cases, be regarded as a correct record of the customs actually existing, and that the more intelligent tribesmen who usually act as spokesmen as to what customs are expedient to override their know ledge of the customs as they really are." Under the circumstance the learned Judges of the High Court held that the onus placed upon the daughter by the entry in the Riwaj‑i‑am was a light one and did not require much evidence to repel. A similar dispute between the daughter and collaterals of the 6th degree regarding succession to non‑ancestral property among Awans of Mauza Mardwal, Tahsil Khushab, District Shahpur, came up before the High Court of Lahore in Khan Beg v. Mst. Fateh Khatun I L R 13 Lah. 296.. The plaintiffs‑collaterals relied upon an entry in the Riwaj‑i‑am which excluded daughters from succession to the non‑ancestral property as well. Tek Chand, J. discussing the value of the special custom, as recorded in the Riwaj‑i‑atn, observed: " I am inclined to the view that the Courts in this province are bound to make an initial presumption in favour of the entries in the Riwaj‑i‑am, irrespective of the fact whether the custom, as recorded, is in accord with the general custom or not. The quantum of evidence necessary to rebut this presumption will, however, vary with the facts and circum stances of each case. Where the Riwaj‑i‑am lays down a custom, which is in consonance with the general agricultural custom of the province, very strong proof will have to be produced to displace this presumption, but where this is not the case and the custom recorded in the Riwaj‑i‑am is opposed to the rules generally prevailing, the presumption will be considerably weakened. Again where the Riwaj‑i‑am affects adverse the rights of females who have had no opportunity whatever of appearing before the revenue authorities .the presumption will be weaker still and only a few instances might suffice to rebut it." The above observations met with the approval of their Lordships of the privy Council in Mst. Subhani and others v. Nawab and others I L R 22 (1941) Lah.

134. In this case the dispute arose between the married daughters on one side and collaterals of the 10th degree on the other, regarding succession to property which was found to be non‑ancestral. The plaintiffs relied upon an entry in the Riwa‑i‑am which stated that married daughters do not inherit their father s estate in any circumstances" The learned Subordinate Judge, who tried the suit dismissed it holding that the plaintiffs were Sahlion's collaterals of the 10th degree, that the lands in the suit were not ancestral and that, according to the general rule of custom prevailing among the Muhammadan tribes of the district of Shahpur which applied to the parties, the daughters were not ousted by the plaintiffs with regard to succession to the non‑ancestral property of their father. In arriving at his decision, the learned Judge relied on the oral and documentary evidenced by the parties and upon certain rulings of the Punjab Courts. On appeal to the High Court of Lahore the learned Judges held that there was a presumption against inheritance by the daughters and that this presumption had not been rebutted. The appeal was therefore, allowed. The judgment did not contain any detailed‑ criticism of the oral and documentary evidence of custom adduced by the parties, all of which was ignored with the brief observation that in a Full Bench decision of the Punjab High Court Bahadur v. Mst. Nihal Kaur I L R 1937 Lah. 594. it had been stated that; recent judicial decisions are not sufficient to abrogate the custom so clearly laid down in Wilson's Manual of Customary Law." Their Lordships of the privy Council before examining the questions and answers in Wilson Manual, found it useful to ascertain the customary rights of daughters against col laterals with reference to ancestral and non‑ancestral land as they are stated in Sir W. H. Rattigan's Digest (of Civil Law for the Punjab, chiefly based on customary law), a book of unquestioned authority in the Punjab. Reference was made to paragraph 23, where it is stated that (1) a daughter only succeeds to the ancestral landed property of her father, if an agriculturist, in default (a) of heir mentioned in the preceding paragraph (viz. male lineal descendants a widow or mother) or (b) of near male collaterals, provided that a married daughter sometimes excludes near male relatives, especially among Muhammadan tribes, under circumstances specified in the paragraph (not material to the present issue); (2) but in regard to the acquired property of her father the daughter is preferred to collaterals. That being the general custom of the province (the Punjab) in relation to acquired property their Lordships added "the initial onus therefore is on the collaterals to show that the general custom in favour of the daughter's succession to. the self‑acquired property of her father has been varied by 'a special custom excluding the daughters." Their Lordships proceeded: This being the legal position of the parties, the question arises whether, the property being non ancestral, the plaintiffs have discharged the onus by proving the existence of a special custom excluding daughters. They endeavoured to do this in two ways (1) by relying on the authority of Wilson's Manual, and (2) by producing oral evidence at the trial. Their Lordships held that the answers returned by the members of the tribe examined at the time of the Preparation of the Riwaj‑i‑am were admissible under section 48 of the Indian Evidence Act, being the opinion, as to the existence of a general custom or right, of persons who would be likely to know of its existence if it existed. They were also admissible under section‑ 35 of the Indian Evidence Act, as entries relating to a relevant fact contained in what may be regarded as a public record, made by a public servant in the discharge of his official duty. The earlier pronounce ments of the Privy Council in Beg v. Allah Ditta and in Vaishno Ditti v. Rameshri were re‑affirmed. In conclusion, their Lordships held :‑ "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." A careful consideration of the decisions in the above cases by their Lordships of the Privy Council would show that the existence of the general rules of custom (in the sense that they were applicable to the majority of the tribes in the greater part of the province), as collected in 'Rattigan's ,Digest, which was described as a book of "unquestioned authority", was recognised and a different statement on an incident of custom in the Riwaj-i‑am was treated as an exception. 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. The plaintiff must prove the allegations on which his claim is founded and, if the custom alleged by him is in consonance 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 by a strong piece of evidence in support of the custom therein entered subject to rebuttal, vide Beg v. Allah Ditta and it would not cease to be so merely because it is not supported by instances, vide Vaishno Ditti v. Rhemshri. 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 customs as it prevails and not merely a collection of views of 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 evidence, 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 very with the circumstances of each case. From the very fact that a particular cusotm is opposed to the general custom, the presumption 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 examine, the case must be judged as a whole and it should be seen to what extent the prime facie proof of correctness of the special custom as contained in the Riwaj-I-am has been negatived or disproved. The present case may now be decided in the light of the above conclusions. The defendant s as already mentioned took their stand upon an entry in the Riwaj-I-am of the Amritsar District, prepared at the Settlement of 1940. Question 52 is the one in point. Q. If the estate devolves upon A.‑A widow has no right The widow define her interest to alienate the property Therein. What rights by sale, gift, or bequest, Has the widow to alienate by has only interest in it till Sale gift mortgage or death or remarriage or marriage by krewa nor chadarandazi. (a) Are there any special cir‑ (a) She can mortgage the cumstances or expenses land only for the legal under or on account of necessities. which alienation is permis‑ (Legal necessities specified, sible ? If so, what are these ? but not necessary to re produce.) (b) Is there any distinction in (b) The following general respect of movable or im‑ custom has been stated movable, ancestral or acquir‑ to exist : ed property, or in respect of Movable property.‑Widows alienation to the kindred of have power to alienate such the deceased husband ? property. Immovable property ancestral. A widow has no right to alienate it. She can alienate the land by mort gage for afore‑mentioned legal necessities. Acquired by her husband himself. A widow has full powers to alienate it. An alienation in favour of the deceased husband's kindred does not make and difference. (c) Supposing alienation to be (c) Nobody's consent is permissibe, whose. consent necessary. is necessary to make it valid ? The above entry no doubt supports the contention of the defendants and is a prima facie proof of the special custom authorising the widow to alienate at her will the property which her husband had himself acquired. The copy of the Riwaj‑i‑am being not available we could not examine the other parts critically. An extract dealing with the rights of the widows, as recorded , in the Riwaj‑i‑am of Amritsar District ,prepared at the earlier Settlement of 1913‑1914 is on the record. It is Question No.

55. Q.‑If the estate devolve upon A.‑All the tribes . state the widow, define her in‑ that no widow can alie terest therein. What rights nate property by gift or has widow to alienate by sale, will. When any pro gift, mortgage or bequest? perty devolves on a State all the alienations of widow, she will have life the said kinds made by the interest in it. People in widows? general state that a widow can alienate mov able property in any manner she likes. But this is not supported by some people. But a widow cannot alienate by mortgage or sale immov able property without valid necessity no matter whether it is self‑acquired property‑ of her husband or ancestral. (Then a list of legal necessities is given which is not neces sary for four purpose.) (a) Are there any special cir cumstances or expenses under or on account of wich alie nation is permissible? If so, what are these? (b) Is there any distinction‑ in (b) No distinction is made respect of movable or immov‑ between movable and able, ancestral or acquired immovable property. If property or in respect of alienation is made to the alienation to the kindred of kindred of the deceased the deceased husband? (husband), no distinction is made even in that case. (c) Supposing alienation to be . (c) If widow is permitted permissible, whose consent is to effect alienation, no necessary to make it valid? consent is necessary. N. B.‑The question is identically the same as in the later record of 1940. Some instances of widows' alienations are cited. . Two related to Sandhu Jats. In one the widow mortgaged a part of her property in favour of the husband of her sister and it is mentioned that as the alienee was an "influential and awe inspiring" person, no collateral brought a suit. In the other, the last male owner, Man Singh, left behind a widow and a daughter. The mutation was effected in the name of the widow and she alienated the property in favour of the daughter. The suit brought by the collaterals was dismissed as the property was non‑ancestral and the daughter was held to be a preferential heir. One instance of a Bhullar Jat is given where the mort gage was made for necessity and with the permission of the Deputy Commissioner. According to the Riwaj‑i‑am of 1913‑14, the widow had no power to alienate the .property, self‑acquired or not, received from her husband, i.e. riwaj recorded was in perfect consonance with the general custom. An extract from the Riwaj‑i‑am of 1865 of Amritsar District was also produced. It dealt with the rights of a widow whose husband had died sonless and also with the rights of the daughters and her descendants. It is stated Were that a sonless proprietor's widow in possession of his estate has no right to alienate it by sale, mortgage, gift or bequest. She is at liberty to manage the estate till her death in any manner she likes. If the income from the land is insufficient for her maintenance, it shall be made over to the husband's collaterals who shall be responsible for her food and raiment in the amount fixed by the brotherhood. If none of the collaterals is so agreeable and the income is insufficient, a portion might. Be mortgaged and, if' the mortgage money is also insufficient, it might be sold. The details of the alienations made by the widows of the tribe are given. In the instance of Mst. Buran, the entire estate was gifted as the donee was ‑ a member of the brother hood. In the second instance, hfst. Rutto made a gift to her daughter's issue he was a member. of the brotherhood. In the third instance, Mst. Jindan mortgaged a portion for necessity with the consent of the brothehood according to custom, In the .forth instance, Mst. Karmon sold her estate with the consent of the brotherhood according to custom. These are the only instances of Gill Jats mentioned in the extract. According to the above extract, there is, not a single instance where the widow alienated the property at her mere will or pleasure without reference to the collaterals. On the other hand, it was clearly stated that a sonless proprietor's widow in possession of his estate could not make the alienation in any manner. The other documentary evidence produced by the defendants consists of the mutations by the mother in favour of the daughter by way of acceleration of succession and one judicial instance is of Pir Bakhsh v. Ghurlam Bibi, a judgment of the High Court, delivered on 22nd of November .1927, according to which as regards non‑ancestral property in Amritsar District, the daughter of Nathu was prefered to his collateral, On the same point Exh. D. 2 is another judgment by a Sub Judge 1st Class, Lyallpur, dated the 26th of February 1935 and the case was later compromised in the High Court. On the other hand, the plaintiffs placed upon record a copy of the judgment, by a Sub‑Judge, dated 15th of November 1934, relating to Jats of Amritsar District where the widow had surrendered her estate in favour of the daughters, who were, on a suit by the collaterals, found not to be entitled to succeed. Some oral evidence was also examined try the parties. The contesting defendant produced nine witnesses on the question of custom. D. W. 1 Mubarik Ali, a Jat, stated that sisters never succeeded their Brothers and h~, did not know about the custom regarding inheritance by the daughters. In his own village no daughter had ever succeeded. D. W. 2 Karam Dad, a Gill Jat, said that if an owner died sonless, the land would be inherited by the daughter. In cross‑examination it was stated that sisters could get the property by means of gift only and not otherwise. D. W. 3 Muhammad Ali, a Jat origi nally of Amritsar District, deposed that the ancestral property went to the collaterals and the serif‑acquired to the daughters. He could not give any instance. A widow, according to him, has unrestricted powers of alienation. As an instance, be referred to the case of Ghulam Bibi, wife of Faqir Muhammad, who had received by way of gift from her mother, the land of her father, Nathu. This evidently refers to the judicial instance (EX. D, 5) referred to above, a case decided by the High Court on 22nd of November 192' and in which as to self acquired property of their father, the daughters were held heirs in preference to the collaterals. D. W. 5 Abdur Rehman also referred to the above instance in support of the custom that daughters could get by gift from their mother the self acquired property of their father. D. W. 7 Boota, a Jat of Amritsar District, deposed that amongst the Gills, a widow could gift self‑acquired property of her husband to her daughter. Sisters could not succeed in the absence of a gift in their favour. D. VK. 8 Naw_ ab, a Jat from the Amritsar District, gave evidence that, in the absence of sons, the self acquired property was inherited by the daughters. This could also be made the subject of a gift by the mother in favour of the daughter. In cross‑examination, it was mentioned that the sisters could also Inherit their brothers, but he could not tell of any such instance. It was also stated that a widow could not make a gift in favour of a stranger, but she could do so in favour of her husband's heirs. D. W. 9 Abdul Majid, a Jat of Lahore District, is the uncle of the contesting defendant. He simply repeated the statement in the Riwaj‑i‑Am of 1940 that a widow could make alienation of self‑acquired property of her husband in favour of anybody she liked, but he could not cite any instance in which this was ever done. The plaintiffs produced eleven witnesses. P. W. 1 Ch. Karam Ilahi stated in examination‑in‑chief, that a widow could not make a gift of the property irrespective of the fact whether it was ancestral or self‑acquired. Similarly, a mother who had inherited from her son in lieu of maintenance, could not alienate it. In cross‑examination, it was stated that according to custom, even the self‑acquired property did not go to daughters. In the absence of a son and a widow, the mother would succeed for life as the widow of her husband and in that case, she had unrestricted powers of alienation. P. W. 2 Sayyed Muhammad Shah was the Patwari and produced only the revenue papers. P. W. 3 Karim Dad, a Gill Jat, now residing in Lyallpur, deposed that according to custom, sisters never inherited, nor could the widow make a gift of property whether it was ancestral or self‑acquired. The widow had only a life interest. He denied that there was any custom of the tribe of Amritsar District, by which the widow had free powers of disposition of the property of her husband. He was not, present at the time of the compilation of the Riwaj‑I-Am. Fazal Din (P. W. 4), a Gill Jat originally belonging to Amritsar District, on the question of custom, supported the previous witnesses. Ali Muhammad (P. W. 5), a Gill Jat and originally a resident of Amritsar District, also said that sisters could not inherit, no matter whether the property was acquired or ancestral, nor could the widow make a gift of the property of her husband irrespective of the character of the property. The mother was in no better position. Chiragh (P. W. 6), a Gill tat from the Amritsar District, repeated the custom stated above by the previous witnesses. P. W. 7 Ibrahim said the same about the custom as also Sultan Muhammad (P. W. 8), a Gill Jat of Amritsar District now residing in Lyallpur Colony. To the same effect is the statement of Labhu (P. W. 9), a Gill Jat of Amritsar District And now residing in Lyallpur, P. W. 10 Ghulam Muhammad, a Gill Jat of Amritsar District, gave the same custom of the tribe, according to which a sister could never succeed a brother, and a widow could not make a gift even of the self‑acquired property of her husband.. P. W. 11 is Karim Dad plaintiff himself. From the oral and documentary evidence placed upon the record of this case, if appears that a daughter succeeds to the self‑acquired property of her father, in the presence of his agnates and the alienation in her favour by the mother operates as an acceleration of succession to the next heir. The plaintiffs' witnesses were ‑ quite emphatic in stating that a sister could never inherit and wherever the defendants' witnesses stated to the contrary, they were thinking only of those cases where the daughters had excluded the collaterals of their father in relation to self‑acquired property with or without an alienation by their mother. The general customary rule defining females' power of alienation is contained in para. 64 of Rattigan's Digest. It says:‑ "Except as provided in paragraph 39 (adoption by widow or Paragraph 62 (alienation for necessity) no female in possession of immovable property acquired from her husband, father, grandfather, son, or grandson otherwise than as a free and absolute gift can permanently alienate such pro perty." Now in two successive Riwaj‑lams of 1865 and 1913, and more clearly in the latter, it was recited that a widow had no power to alienate even the self‑acquired property of her husband without legal necessity. The instances mentioned in the Riwaj‑i‑am of 1865 and which have been noticed above, relate only to an alienation either in favour of the daughters or the collaterals who were the next heirs. In the latest Riwaj‑i am of 1940, when a different custom was stated and the widow, as regards self‑acquired property of her husband; was placed in the same position as a male proprietor, it naturally implied a change of custom during the period which had elapsed since the preparation of the previous Riwaj‑i‑am in 1913. A custom may be in a fluid state and may change, but there must be some concrete evidence of the change. Any Settlement Officer engaged in the preparation of the Riwaj‑i‑am and who was recording the answers of the tribesmen on the powers of alienation by the widow, should have been at once struck by the fact that in the previous Riwaj‑i‑ams, no such power existed and before the statements of the Zamindars could be taken seriously, there should have been some proof in the form of instances showing _ that custom had changed and the widow's powers of alienation over the self‑acquired property of her husband had been enlarged and the widow had been assimilated to the position of her husband. The custom embodied in they Riwaj‑i‑am of 1940, 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. It is significant that during more then a century, that Customary Law has been administered by Courts in this Province, not a single instance could be discovered in which the widow had acquired absolute powers of alienation over the self‑acquired property of her husband to which she had succeeded on a life‑estate. The position of a widow under Customary Law is analogous to that of a widow under Hindu Law and no alienation without legal necessity could be made by her. It may be that an instance or instances of succession of a daughter to the self‑acquired property of her father, which was accelerated by the relinquish ment or renunciation by the widow of her own life‑estate, gave rise to the impression that the widow possessed full powers to alienate. However that may be, the "custom" is one of which there is no proof upon the record beyond an extract from the Riwaj‑i‑am of 1940. Under the circumstances, the Riwaj‑i‑am of 1940 cannot be said to have been carefully prepared and in the absence of any proof of variation in custom regarding the powers of alienation by the widow over the self‑acquired property of her husband, the previous of 1913. which is the same as the general Customary Law of the Province, cannot be held to have been superseded by the bald statements of persons who had no right to lay down the rule which should, in future, govern the alienation of and succession to the property left by a member of the tribe. As mentioned earlier, custom signifies that on occasions when a similar question arose, a particular rule was applied or followed, and since 1865 up till today in not a , single case did the widow exercise the right of free disposition of property to which she had succeeded on the death of her husband. For the reasons given above, this appeal must be accepted and the plaintiffs' suit decreed with costs throughout. A. H. Appeal accepted.