Judgement Appeal from a judgment and decree of the Chief Court (December 23, 1908) reversing a decree of the Divisional Judge of Shahpur (February 3, 1904) which affirmed a decree of the District Judge of Jhang. The parties belonged to the small tribe of Dhabs, a branch of the Jats, which had for many generations been settled in the Jhang district of the Punjab. The tribe was endogamous in practice, and all its members were Mahomedans. Shahamad had a daughter, Jindwadi, but no son. Jindwadi married Daim, who was the son of her fathers first cousin, and, as found by the Courts in India, a khana-damad, or resident son-in-law. In 1884 Shahamad executed a will in the following terms " I air now sixty years old. I have no male issue, nor have I any hope to have any. Daim, son of Ahmad, caste Dhab, is my son-in-law. He has been living with me since his Royhood, and has served me as a son. If a son is born of my daughter he, after the death of my wife and myself, shall be considered as my adopted son. He shall succeed to the entire property movable and immovable." The appellant, Beg, was the son of Daim and Jindwadi. After Shahamads death his widow enjoyed his property, Daim and Jindwadi continuing to live with her. On the widows death, Daim having predeceased her, Jindwadi and Beg remained in possession and obtained mutation of names. The respondents, male collaterals of Shahamad, in 1900 instituted a suit in the Court of the Additional District Judge of Jhang against Beg, under the guardianship of Jindwadi. They claimed possession of half Shahamads property, which they alleged was ancestral, admitting that Daim was entitled to the other half. The issues settled, so far as material to the appeal, were (1.) Is the property in suit ancestral ? (2.) Have the plaintiffs any right to inherit in the presence of Jindwadi and Beg ? There were further issues as to the validity of the will, the fact and effect of the adoption, and as to whether Daim was a khana-damad. Oral and documentary evidence was adduced. The defendant put in evidence the riwaj-i-am of the Jhang district, prepare 1 at the 1880 settlement, which recorded the customs of the various tribes, including the Jats. There were further issues as to the validity of the will, the fact and effect of the adoption, and as to whether Daim was a khana-damad. Oral and documentary evidence was adduced. The defendant put in evidence the riwaj-i-am of the Jhang district, prepare 1 at the 1880 settlement, which recorded the customs of the various tribes, including the Jats. There were answers with regard to the right of a proprietor to adopt and to make a gift; the settlement officer recorded, however, that he had great doubt as to the answers about adoption. As the case eventually turned upon the right of Jindwadi to succeed by custom, and not upon adoption or the will, these answers became immaterial. As to the latter custom, question 12 of the riwaj-i-am was whether in the absence of male issue daughters and their descendants or collaterals of the father succeed to property left by him. The answer recorded in the case of the Jats was, " the same answer as given by the Syeds." The answer of the Syeds was as follows "In the absence of a male issue, a daughter, or her descendants, succeed to the property, provided she is married to a near relation. The daughter who is married in another family has never got any share. The collaterals of the owner of the property succeed him." The District Judge found that Daim was a khana-damad, and that the will was genuine. He held that by the custom of inheritance Beg would have succeeded and that Shahamad was entitled to make a will in his favour. He therefore dismissed the suit. The Divisional Judge upon appeal affirmed the decision. . After referring to the answers in the riwaj-i-am as to adoption and gifts, he said that the unusual power of disposition of property vested in the agriculturists of the Jhang district raised a presumption that Shahamad had power to dispose of his property by will in favour of the defendant. He also said that the answer of the Syals (which was in the same terms as that of the Syeds) to the twelfth question showed that among them the daughters son could inherit the estate of a maternal grandfather if the daughter married a collateral, and that it was to be presumed that other collaterals had the same custom. He also said that the answer of the Syals (which was in the same terms as that of the Syeds) to the twelfth question showed that among them the daughters son could inherit the estate of a maternal grandfather if the daughter married a collateral, and that it was to be presumed that other collaterals had the same custom. The plaintiffs appealed to the Chief* Court under the Punjab Courts Act (XXV. of 1899), s. 3. That Court on November 16, 1905, affirmed the findings that the will was genuine and that Daim was a khana-damad, but remanded the case under s. 566 of the Code of Civil Procedure, 1882, for the decision of the following issues —(1.) Was the property, or any part of it, ancestral ? (2.) Had Shahamad power to give so much, if any, of the property as was not self-acquired to the male issue of the marriage between his daughter and his near collateral and khana-damad ? (3.) Was the khana-damad entitled to the property in suit (a) if self-acquired, (b) if ancestral. The Divisional Judge sent the case to the District Judge, before whom a large body of further evidence was adduced. The District Judge found that the whole property was ancestral, that Shahamad had not the power of disposition over it contended for, and that the khana-damad was not entitled to the property. He did not consider the custom as to inheritance, as he understood that no question was referred to him thereon. The Divisional Judge also found that the property was ancestral; he was of opinion that the defendant had failed to establish the custom either as to the power of disposition or as to inheritance, on the ground that instances from among the Dhabs, as distinct from the Syeds, had not been given. On the other hand he said that there were no instances which disproved the custom. The Chief Court (Sir William Clark C.J. and Reid J.) upon these reports allowed the appeal and made a decree in favour of the plaintiffs. The learned judges in the course of their judgment said " Counsel for the defendant has asked us to hold that the parties, Mahomedan Jats of the Dhab tribe, resident in the Jhang district, are governed by the custom prevailing among Syals, Sheikhs, and Biluches in that district. We are unable to accept that contention. The learned judges in the course of their judgment said " Counsel for the defendant has asked us to hold that the parties, Mahomedan Jats of the Dhab tribe, resident in the Jhang district, are governed by the custom prevailing among Syals, Sheikhs, and Biluches in that district. We are unable to accept that contention. Mahomedan Jats resident in the Central Provinces of the Punjab are ordinarily governed by the customary law of the agricultural tribes of the Central Punjab ; the Jhang district is not so far west as to induce us to hold that a special custom need not be strictly proved by cogent evidence and may be inferred from customs governing other tribes in the neighbourhood.....Only one instance of a Dhab Jat daughter succeeding in preference to near collaterals has been cited. Had the custom set up governed the tribe, we should doubtless have found more instances forth coming, and in 1900 P. R. Nos. 29, 89, and 108, four judges of this Court held that an entry in a riwaj-i-am, unsupported by instances, does not justify modification of the ordinary custom. It is by no means unusual to find representatives of tribes, when examined by the settlement officer, merely concurring in the answers given by representatives of other tribes ; answers must be supported by instances to be of value." The judgment is fully reported at 1909 P. R. No. 48. 1916. Oct. 31; Nov. 2. Sir Erle Richards, K.C., and 0 Gorman, for the appellant. The appellant relies upon the custom as to inheritance recorded in the riwaj-i-am, and not upon adoption or gift. It has additional weight in the case of a khana-damad. The custom recorded, and that as to a khana-damad, are mentioned among the tribal customs of the Punjab in Rattigans Punjab Digest, ch. 2, par. 23. The Chief Court was wrong in presuming that there was any general custom and in throwing the onus on the defendant. In any case, it should not have been pre sumed that a custom prevailing among exogamous tribes in the Central Punjab governed an endogamous Mahomedan tribe in the Jhang district. Owing to the diversity of tribes and customs in the Punjab, custom is there purely a matter of tribe and locality, and no general custom can be presumed. In any case, it should not have been pre sumed that a custom prevailing among exogamous tribes in the Central Punjab governed an endogamous Mahomedan tribe in the Jhang district. Owing to the diversity of tribes and customs in the Punjab, custom is there purely a matter of tribe and locality, and no general custom can be presumed. [Reference was made to the judgment of Sir H. M. Plowden C. J. in Ralla v. Budha ( 1893 P. R. No. 50 (F. B.).) and to Roe and Rattigans Tribal Law in the Punjab" ( 1895), pp. 15, 19.] The Chief Court in Gujar v. Sham Das ( 1887 P. R. No. 107 (F. B.).) and in other cases has no doubt presumed a prevailing custom requiring displacement by evidence. If a prevailing custom excluding thedaughter of a sonless man can be presumed, which is not admitted, very slight evidence to displace it is requisite in the case of an endogamous Mahomedan tribe settled among other similar tribes. The unrebutted statement in the riwaj-i-am was sufficient evidence for the purpose, without evidence of instances, which in the case of so small a tribe was difficult to produce. The decisions of the Chief Court in 1900 referred to in the judgment were wrong, or at any rate do not lay down a rule properly applicable to this case. In Sheran v. Sharman ( 1901 P. R. No. 117.) the Chief Court held that slight evidence was required and that the riwaj-i-am was sufficient; it was further observed that no general custom excluding daughters should be presumed. In Fatima v. Khanda ( 1895 P. R. No. 25.), which related to Jats in a district adjacent to Jhang, it was held that a daughter would have succeeded if she had married in the tribe. The appellants contention as to the evidence necessary is further supported by Jindwaddi v. Hassan Shah ( 1895 P. R. No. 41.), Ramji Lal v. Tej Ram ( 1895 P. R. No. 73.), Sher Jang v. Ghulam Mohi-ud-din ( 1904 P. R. No. 22.), and Bholi v. Fakir. ( 1906 P. R. No. 62.) The Chief Court relied on Sahban v. Ghazi ( 1885 P. R. No. 50.) and Emna v. Sajawar Khan. ( 1906 P. R. No. 62.) The Chief Court relied on Sahban v. Ghazi ( 1885 P. R. No. 50.) and Emna v. Sajawar Khan. ( 1898 P. R. No. 37.) The former of those decisions rejected an alleged custom in favour of a daughter, whether married in the family or not; the latter related to a tribe in a different locality, though, no doubt, the onus was treated as being on the daughter. [Reference was also made to the. Indian Evidence Act (I. of 1872), s. 35, Punjab Laws Act (IV. of 1872), s. 4, and Digambar Singh v. Ahmad Said Khan. (( 1915) L. R. 42 Ind. Ap. 10.)] The respondents did not appear. Dec. 18. The judgment of their Lordships was delivered by MR. AMEER ALI This is an appeal from a judgment and decree of the Chief Court of the Punjab, dated December 23, 1908, and arises out of a suit instituted by the plaintiffs (respondents) so long ago as April 4, 1900, in the Court of the Additional District Judge of Jhang, for possession of some landed property situated in that district. The property in suit was owned and possessed by one Shahamad, a Mahomedan Jat, belonging to the sub-community of Dhabs, settled in the Jhang district in Southern Punjab. Shahamad died many years ago, leaving a widow, Sahib Bibi, and a daughter named Jindwadi, who was married to a near cousin of the name of Daim. The defendant (appellant) is the son of Daim and Jindwadi. On Shahamads death his widow succeeded to his entire inheritance and remained in possession until her death, which is stated to have occurred a year before the litigation commenced. On the widows death Jindwadi, acting on behalf of her son, obtained an order from the Collector for the registration of his name in the Revenue Registers as proprietor in succession to Shahamad. The plaintiffs claim to be the collaterals or agnatic relations of Shahamad, and as such entitled by the custom of their tribe or community to their share of his inheritance on the death of the widow, to the exclusion of his daughter and the daughters son. The action, however, is confined to a moiety of Shahamads estate, as it is admitted that Daim was also a collateral and entitled to a half. The action, however, is confined to a moiety of Shahamads estate, as it is admitted that Daim was also a collateral and entitled to a half. The suit was brought against Beg, who was an infant at the time under the guardianship of his mother. He denied the plaintiffs title to the inheritance of Shahamad " in the presence of his daughter and grandson." He further alleged that Shahamad had executed a will under which also he was entitled to his grandfathers estate. He also stated that his father, Daim, lived and worked with Shahamad in his lifetime. It is unnecessary to refer to the earlier stages of the suit, which proved infructuous. The first adjudication on proper issues was made by the District Judge on December 20, 1902. The real controversy between the parties is clear from the issues framed by him and his judgment thereon. It appears that, whilst the plaintiffs based their claim to possession on a general custom of agnatic succession in their community or tribe, the defendant, without, so far as their Lordships can see, admitting the contention, alleged that a daughter married to a collateral who takes up his abode in the father-in-laws house and is known as the khana-damad, or resident son-in-law, succeeds to her fathers inheritance to the exclusion of the agnates. And in support of this special custom he produced the riwaj-i-am, or official records of custom, in addition to a considerable amount of oral testimony. Some of the issues were specifically directed to the respective contentions of the parties with regard to the custom. The District Judge in substance held that, although there was a custom more or less general among the agriculturist tribes of the Punjab by which daughters were excluded from succession, the existence of another custom, by way of exception, was .established by which married daughters residing with their husbands in the paternal house were not subject to the deprivation of the inheritance, He held also that the will set up by the defendant was proved. With regard to the custom alleged by the defendant, his conclusion is expressed in the following words " Then the khanadamadi " (the status of Daim as a resident son-in-law) " is proved ; this is a recognized custom, that a daughter or her descendants get the inheritance in preference to the collaterals. With regard to the custom alleged by the defendant, his conclusion is expressed in the following words " Then the khanadamadi " (the status of Daim as a resident son-in-law) " is proved ; this is a recognized custom, that a daughter or her descendants get the inheritance in preference to the collaterals. The same is the result of the local Commissioners report and of the evidence of the witnesses for the defendant." He thus found expressly in favour of the existence of the custom on the basis of which the defendant contended the plaintiffs must fail; and he accordingly dismissed the action. From this judgment the plaintiffs appealed to the Divisional Judge, who affirmed the first Courts decree with a specific finding based on the riwaj-i-am in accord with the District Judge. And he added that " nothing had been proved to contradict this custom"—the custom alleged by the defendant. From this decision the plaintiffs preferred an appeal to the Chief Court. On this appeal the learned judges held that the will propounded by the defendant was genuine and that Daim was, in fact, a khana-damad ; but they considered that the finding of the lower Courts was not sufficient for the disposal of the case, and they accordingly remanded it for an inquiry as to whether the property left by Shahamad was ancestral or self-acquired, what his powers of disposition were, and so forth—questions, in their Lordships opinion, wholly immaterial if the custom was established. The order of remand is dated November 16, 1905, and the appeal did not come on for further hearing until 1908. After the remand the matter came before two different officers. The second District Judge, under the orders of the Divisional Judge (not the same judge who had decided the first appeal), held an elaborate inquiry practically on the same points that had been already decided ; his report came before the Divisional Judge, who also went over at considerable length the same ground. He put aside the statements in the riwaj-i-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 Dhabs. He put aside the statements in the riwaj-i-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 Dhabs. The Divisional Judge further held, in agreement with his predecessor, that the plaintiffs had, on their side, failed to rebut the defendants allegation as to the existence of a special custom relating to the succession of married daughters among the Dhabs. On the return of the case to the Chief Court the appeal was reheard by two judges, one of whom was a party to the order for remand. The question was this time confined to the existence of the custom alleged by the defendant and the learned judges, being of opinion that the defendant had failed to establish his allegation, reversed the decision of the first Divisional Judge, dated February 3, 1904, and decreed the plaintiffs claim. From this decree the defendant Beg has appealed to His Majesty in Council. Their Lordships cannot help thinking that, had it not been overlooked that the main issue in the case upon which the lower Courts had arrived at a distinct finding related to the exist ence of the custom, twelve years ruinous litigation might have been avoided. It may be observed here that the judges who decided in favour of the existence of the custom alleged by the defendant appear to have correctly apprehended the incidence of the onus. In their Lordships opinion the Chief Court were in error in sup posing 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 Mahomedan tribes who are endogamous, it is clear that the rule is admittedly subject to a considerable number of exceptions. The late Sir W. H. Rattigan, in his valuable work called " A Digest of Civil Law for the Punjab," enumerates the exceptions under par. 23. The late Sir W. H. Rattigan, in his valuable work called " A Digest of Civil Law for the Punjab," enumerates the exceptions under par. 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." In the riwaj-i-am filed in this case the custom alleged by the defendant is mentioned in express terms as in force among the Syeds, Kureshis, and Syals. With regard to the general body of Jats (in which term the sub-community of Dhabs is clearly included) the custom is simply mentioned as "that prevailing among the Syals." The riwaj-i-am was produced and exhibited as evidence 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 facts 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 custom, which it lay upon the plaintiffs to rebut, and this, according to the findings of the Divisional Judges, they failed to do. In their Lordships opinion, the decree of the Chief Court cannot be sustained, and they will humbly advise His Majesty that it should be set aside, and the plaintiffs suit dismissed with costs in all the Courts in India. The respondents must pay the costs of this appeal.