INDER SINGH Vs. S RAGHBIR SINGH

JUDGEMENT

(1.) THE facts of the case are succinctly given in the order of reference prepared by P. C. Pandit J. and need not be started all over again. The decision of the case depends upon the reply to the following question:-" Whether the answer to Question NO. 52 of the Riwaj-i-am of the Amritsar district, which states that alienation of immovable property acquired by the husband is permissible to the same extent as he could have alienated it makes a correct exposition of the customary law on the subject. "

(2.) IN a large number of judgments rendered by this Court it has been laid down that there is no uniform custom applicable to the whole of the Punjab. It varies from tribe to tribe and from place to place. It is also well known that customs relating to the same tribe some times vary from District to District and even in different localities of the same District. It is precisely for this reason that a party relying upon a particular custom is called upon to allege and to prove that custom. Reference in this connection may be made to Joginder Singh v. Kartara, AIR 1936 Lah 551 and Kartar Singh v. Mt. Banto, AIR 1936 Lah 804. A Riwaj-i-am normally furnishes a reliable piece of evidence for proving the custom. It is no doubt true that no presumption of truth attaches to it under S. 44 of the Punjab Land Revenue Act, 1887, yet, it being a public record prepared by a public officer in discharge of his official duties is admissible in evidence under S. 35 of the Evidence Act. The evidentiary value of Riwaj-i-am varies according to the facts and circumstances of each case. If it records the statements of the persons governed by a particular customs and is also supported by some instances, much greater weight is attached to it. But, when the statements recorded merely show that a particular customs was desired to exist, little or no importance is given to such entries recorded in the Riwaj-i-am. At one time it was held that a Riwaj-i-am which was not supported by instances or which was opposed to general custom should be considered unreliable but in view of the Privy Council decision in Beg v. Allah Ditta, AIR 1916 PC 129, this view can no longer be held to be good law. According to the Privy Council, an entry in a Riwaj-i-am even if unsupported by instances is a strong piece of evidence in support of that custom and it lies on the person denying the custom to rebut that evidence.

(3.) AT this stage I would like to reproduce the relevant portion of Question No. 52 and its answer:- (For Question and Answer see next page)5. A perusal of the aforementioned answer shows that the members of the agricultural community consulted instead of giving their own opinion made a statement which shows the nature of custom as followed by the community. Furthermore, the Urdu record of the Riwaj-i-am shows that the aforementioned custom was supported by about 400 instances in Tehsil Ajnala and about 2,000 instances in the whole District. In Gokal Chand v. Parvin Kumari, AIR 1952 SC 231 it was laid down that if the entries contained in the Riwaj-i-am are based on the result of the entry (inquiry?) conducted by its Compiler, such Questionsis there any distinction in respect of movable or immovable, ancestral or acquired property, or in respect of alienation to ancestral to the kindred of the deceased husband? Answerthere is no restriction on the alienation of movable property. Alienation of ancestralimmovable property is permissible only to the extentshown in (i) above. Alienation of immovable property acquired by the husband is permissible to the same extent as he could have alienated it. It makes no difference in any of these cases whether or no the alienee is related to the deceased husband. entries should be given due weight. The same view was reiterated in Gurdit Singh v. Mst. Angrez Kaur, AIR 1968 SC 142. In the face of these authoritative pronouncements by their Lordships of the Supreme Court it has to be held that the answer given to Question No. 52 mentioned above makes a correct exposition of the customary law applicable to the parties. 6. Mr. Sarin, the learned counsel for the appellants has, however, relied upon a Single Bench judgment of this Court reported as Chet Singh v. Rur Singh, AIR 1949 East Punj 209. However, in that case only the English version of the Riwaj-i-am which contains no instances in support of this custom appears to have been produced. As already noticed, the vernacular version of the Riwaj-i-am contains as many as 400 instances in support of the aforementioned custom. The view taken in that case can, therefore, not be regarded as good law. 7. The second case cited by Mr. Sarin is reported as Gurbachan Singh v. Mst. Jaswant Kaur, 1952-54 Pun LR 480: (AIR 1953 Punj 45 ). In that case the Division Bench followed with approval the view taken in Cheit Singh's case (AIR 1949 East Punj 209) (supra) without ascertaining whether the custom recorded in the Riwaj-i-am was in fact supported by instances or not. For similar reasons and with utmost respect to the learned Judges, who constituted the Division Bench, it might be observed that the view taken by them also does not lay down correct law. 8. On the other hand, the learned counsel for the respondents, has placed reliance upon Bhan Singh v. Bishan Kaur, R. S. A. No. 460 of 1949, decided by another Division Bench of this Court on October 11, 1955. In that case it was held that merely because the Riwaj-i-am prepared by Mr. A. Mac Farquhar complied in 1940 took a different view from the Riwaj-i-am of 1911-12, it could not be held that the same is not correct. The Bench also held that the words, 'self-acquired property' had been used in a loose manner and the words 'self-acquired property' were sometimes loosely used as equivalent to non-ancestral property. The right of the female heir to dispose of non-ancestral property inherited by her from her husband was upheld on the basis of the answer given to Question No. 52 mentioned above. I am in respectful agreement with the view taken in this case. 9. For the reasons mentioned above. I would answer the question framed in the affirmative. Once this answer is given, it is conceded that the appeal has to be dismissed and I order accordingly. No costs. P.C.JAIN, J. 10. I agree. S.C.MITAL, J. 11. I agree. 12. Appeal dismissed.