Case Note & Summary
The dispute concerned ownership of agricultural land in village Sultanwind, Amritsar, Punjab, following the death of Sahib Singh in December 1918. His widow succeeded but was divested on remarriage, and the land passed to his mother, Kishen Kaur, who died on November 12, 1942. The contesting parties were Sahib Singh's sister, the respondent, and his agnatic collateral, the appellant, an eighth/ninth degree relation. The appellant claimed under a general custom excluding sisters from inheritance, as recorded in paragraph 24 of Rattigan's Digest of Customary Law of Punjab, while the respondent claimed under a special custom of the village and family that sisters inherit in preference to collaterals beyond the fifth degree. The revenue authorities initially entered the respondent's name, but on appeal the Collector ordered the appellant's name to be entered. The respondent filed a suit on June 11, 1945 seeking a declaration of ownership. The trial court and first appellate court held in favor of the appellant, finding that the respondent failed to prove the special custom and that the general custom excluded sisters. The Punjab High Court reversed, holding that the appellant bore the burden of proving the general custom and failed, and that the respondent had proved her custom. The Supreme Court considered whether the High Court erred in placing the onus on the appellant. The Court held that all customs, general or special, must be proved by the party relying on them unless judicially noticeable under Section 57(1) of the Indian Evidence Act, 1872. Rattigan's Digest, though authoritative, could not be judicially noticed due to conflicting decisions. Consequently, the appellant failed to establish the general custom excluding sisters. The Court further held that even if the respondent had not proved the special custom, Section 5 of the Punjab Laws Act, 1872 would require application of personal law, which was Hindu law, and under Hindu law the sister was a preferential heir over collaterals for self-acquired property. The appeal was dismissed, and the respondent's claim was upheld.
Headnote
A) Customary Law - Proof of Custom - General Custom Must Be Proved - Indian Evidence Act, 1872, Sections 48 and 57(1) - The Supreme Court held that all customs, whether general or special, must be proved by the party relying on them unless courts can take judicial notice under Section 57(1). No distinction exists between general and other customs; the onus lies on the party asserting custom. Held that the appellant failed to prove the general custom excluding sisters. B) Customary Law - Judicial Notice of Custom - Rattigan's Digest Not Judicially Noticeable - Indian Evidence Act, 1872, Section 57(1) - While Rattigan's Digest is highly authoritative on Punjab customs, conflicting judicial decisions precluded taking judicial notice of the custom in paragraph 24 excluding sisters from inheritance. The court reviewed case law and held the custom must be proved. C) Customary Law - Burden of Proof - Onus on Party Relying on Custom - Indian Evidence Act, 1872, Sections 48 and 57; Punjab Laws Act, 1872, Section 5 - The appellant, who relied on a general custom excluding sisters, bore the burden to prove it; he failed. The respondent's plaint reference to a 'special custom' did not amount to an admission obviating the appellant's burden. Held that the High Court correctly placed the onus on the appellant. D) Succession - Punjab Customary Law - Personal Law Applicable When Custom Not Proved - Punjab Laws Act, 1872, Section 5 - Since neither party established custom, Section 5 of the Punjab Laws Act, 1872 applied, directing decision by personal law of the parties. The personal law was Hindu law, under which the respondent sister was entitled to succeed. Held that the respondent was entitled to the property even without proving a special custom.
Issue of Consideration
Whether under the customary law of the Punjab a sister was a preferential heir in respect of her brother's self-acquired property to a collateral; and whether the High Court erred in placing the burden of proving the custom excluding sisters on the appellant.
Final Decision
Supreme Court dismissed appeal, upheld High Court's decision that respondent sister was entitled to lands. Court held that customs, general or special, must be proved unless judicially noticed; Rattigan's Digest's paragraph 24 custom not entitled to judicial notice due to conflicting decisions; appellant failed to prove general custom; even if respondent did not prove special custom, Section 5 Punjab Laws Act applied and Hindu personal law made sister preferential heir.
Law Points
- Legal points not extracted
- All customs must be proved unless judicially noticed under Section 57(1) Evidence Act
- Rattigan's Digest not judicially noticeable due to conflicting decisions
- burden of proof on party relying on custom
- Section 5 Punjab Laws Act 1872 applies if custom not proved
- personal law governs in absence of proved custom
- Hindu law makes sister preferential heir over collaterals
