P L D 1949 Lahore 193 (PLP)

CORNELIUS, J.‑This is a first appeal by Barkat Ullah and two other persons, from a judgment and decree of a first class Sub‑Judge of Lahore, whereby it was declared in favour of the plaintiffs Zulfiqar Ali Shah and Siddiq Ali Shah, sons of Qutab Ali Shah, and Muhammad Iqbal Shah, son of Abid Hussain Shah, that certain mortgages and a subsequent sale of certain property by Qutab Ali Shah and Abid Hussain Shah in favour of the defendants in the suit other than Qutab Ali Shah and Abid Hussain Shah were not for consideration and valid necessity, and accordingly would be without effect as against the plaintiff's reversionary rights. The property consists of about 72 kanals of land, situated in village Nawankot, which has been included in the limits of Lahore Corporation since about the year 1940. This land was originally mortgaged by Qutab Ali Shah and Abid Hussain Shah in favour of Siraj Din by registered deed, dated the 24th October 1942, for a sum of Rs, 2,600 and was again mortgaged by registered deed on the 19th July 1943 for Rs. 5,000 in favour of one Muhammad Din; finally, on the 26th May 1944, it was sold to Barkat Ullah, Ghulam Ullab, Ghulam Ahmad and Muhammad Ahmad, sons of Sheikh Jan Muhammad, for a sum of Rs. 50,575‑8 by registered deed, dated the 26th May 1944. The plaintiffs are minors and they contended that they are Sayyeds by. caste, and are statutory agriculturists, and further that they are governed by agri cultural custom in matters of alienation. They allege that Qutab Ali Shah and Abid Hussain Shah are given to excessive immorality and extravagance, and that this is the reason for the alienations effected by them, although their income was sufficient to provide for their ordinary needs. It was declared that the property was ancestral qua the plaintiffs. The contesting defendants opposed the claim on all points, even going to the length of denying that the plaintiffs were the sons of the alienors, but this plea was subsequently not pressed, after evidence had been led to prove the paternity of the plaintiffs. It was contended that the suit was collusive, and that the plaintiffs were estopped from suing. On the merits, it was said that the suit land was not ancestral qua the' plaintiffs, that the plaintiffs were not governed by agricultural custom in matters of alienation, and finally, that in any case, the alienations were supported by consideration and necessity ‑from the point of view of custom. It was held by the trial Court that the plaintiffs had an independent right of suit and in the absence of period of collusion, it could not be held that the suit was collusive. No grounds had been alleged or proved in support of the plea of estoppel. On a consideration of the evidence led, the Court held that the land in question was ancestral qua the plaintiffs, that payment of consideration had been established and that as regards necessary, the vendees had no case as no necessity was mentioned in the sale deed and none had been proved, the allegations of the contesting defendants that the vendors had intended to purchase other land, to build houses and to pay their debt out of the proceeds of the alienation remaining entirely unproved. As regards the law governing the alienors, the discussion in the judgment of the Court below reads as follows. Firstly, it was held that as Bukhari Sayeds were a notified agricultural tribe, it must be presumed that their power of disposition of ancestral land was restricted as provided by the general custom applicable to agriculturists. Secondly, it was held that the onus lay upon the alienees to prove that the alienors' family did not follow agricultural custom. The alienee defendants had produced judgments recorded by the trial Court, .the first appellate Court and by the High Court in a suit brought by one Mst. Iqbal Begum against the alienors and others for possession by partition of certain property. In that case an issue had been framed regarding the law governing the family of the alienors in matters of alienation and it had been held by the trial Court and the first appellate Court that the parties were governed not by custom but by their personal law. An appeal was taken to the High Court by Qutab Ali Shah, but it was dismissed. The learned Sub‑Judge held that the judgments were not binding on the parties but were relevant only as instances under section 13 of the Indian Evidence Act. Remarking that the Court was not entitled to take advantage of the evidence led in that case for the purpose of deciding the present case, and that in the present case, there was no sufficient evidence from which the Court could conclude that the family had drifted away from agriculture, but that the weight of evidence in the present case was on the other 'side, the learned Sub‑Judge discounted the effect of the previous judicial decisions, citing an authority to the effect that the value of a judicial decision depends on the evidence adduced in the case which may be a badly conducted one. The learned Sub‑Judge was of the view that in the previous case, proper evidence had not been led which would have shifted the onus and required the party which rested its case on personal law to establish its case. Without any further discussion of the evidence led in the present case, the learned Sub‑Judge proceeded to cite a number of rulings, but did not discuss the facts or the conclusions of those cases, and held that it had been established that the vendors were governed by custom. On the finding that necessity for the sale had not been proved, the suit was decreed. The vendees Sheikh Barkat Ullah and others have accordingly come up to this Court in appeal. The argument addressed to us on behalf of the appellants was confined to two propositions, firstly that the vendors were governed by their personal law, and secondly that even if it be supposed that they were governed by custom, the sale was justified as an act of good management. On the first point, attention was invited to' the fact that the vendors belong to the Sayed tribe, which enjoys pre‑eminence from the historical, religious point of view among Muslim tribes, and provides a great proportion of men of learning, spirituality and sanctity. In fact, the plaintiffs are themselves descendants of 'Sayed Fazal Shah, a person who attained sanctity and at whose tomb in Nawankot, an annual urs is still held. Although it is true that Bukhari Sayeds were consulted at the time when the latest Riwaj‑i‑am was drawn up, and that Sayeds are among the notified agricultural tribes in the Lahore district, it should not be over‑looked that these Sayeds have lived for generations in the immediate vicinity of the City of Lahore, and further that they do not form a compact community even in Nawankot, that there are only three tatnilies of Sayeds in Nawankot, living at the time of the alienation among a heterogeneous community composed of Arains, Mehtams, Kambohs, Rujputs Jats, Hindu shop keepers and others, The Sayeds of Nawankot had never .furnished iambardars, and maini', they follow literate occupations. Even the alienors themselves were shown on the record to have been following trade and service all their lives, and their father was an employee of the Lahore High Court. The value of the judicial decision in Mst. Iqbal Begum's case which was instituted on the 4th December 1942, and finally ended with the judgment of this Court on the 13th December 1945, had been unreasonably discounted, by the learned Sub‑Judge. Mst. Iqbal Begum was the wife of Qutab Ali Shah vendor, and the suit was brought against her husband, his brother Abid Hussain, their mother Mst. Sardar Begum and their sister Mst. Faiz Batul as well as two alienees of part of the suit property, for possession by partition of her alleged share in the property. The basis of the claim was a deed of settlement executed' in her favour by Qutab Ali Shah in 1932. Qutab Ali Shah and Abid Hussain Shah sought to avoid the deed of settlement on the ground that they were governed by customary law, that Qutab Ali Shah had no right to gift away the suit property to Mst. Iqbal Begum, and that as possession of the suit property had never been given to her the settlement was without effect. Thus, the principal question which arose for decision between the parties was whether Qutab Ali Shah was governed by custom in matters of alienation, and that is the precise question which falls for decision in the present suit as well. The judgment of the first Court in that case is Exhibit D. 10. the question of custom is embodied in issue No. 6 and there is nothing to show that the onus of that issue which had been placed on the contesting defendants had been objected to. The learned Sub‑Judge in discussing the question first declared that it did not lie in Qutab Ali Shah's mouth, he being himself the donor, to raise the plea. Having discussed the evidence led in the case, the learned Sub‑Judge recorded the clear opinion that .custom had not been proved to apply. He relied on a judgment of this Court published as Muzaffar Muhammad v. Imam Din I L R 9 Lah. 120 relating to certain Kambohs of Lahore, who had been shown to follow the occupation of service or trade and never to have followed agriculture as a profession within memory, and consequently, although Kambohs were a dominant agri cultural tribe of the Lahore District, it was held that the parties in that case were governed by their personal law and not by custom in matters of alienation. The suit of the plaintiff having been decreed, Qutab Ali Shah and Abid Hussain Shah went up in appeal to the Additional District Judge who expressly upheld the finding of the trial Court that custom did not apply. When the case came up before the High Court, on an appeal by Qutab Ali Shah, the only ground on which emphasis was laid was that Qutab Ali Shah, was governed by customary law, and it was held by a Division Bench that Qutab Ali Shah being himself the donor, it was not open to him to raise this plea 'and therefore his appeal failed. Nothing was said about the remaining findings of the Courts below, but the decision of the lower appellate Court was confirmed. In the absence of any indication to be found in the judgment of the Division Bench, that the learned judges were not in agreement with the conclusion of the Courts below that custom did not govern the parties in the relevant sense, the affirmation of the decisions of the Courts below by the High Court must be assumed to proceed on the basis of affirmation also of the findings of those Courts on the points decided by them. It was urged that in this view of the matter, the decision in Mst. Iqbal Begum's case was a judicial instance of the very highest value, relating as it did to the very persons whose powers of alienation are in dispute in the present case. Even if it be supposed that the initial presumption is that the vendors were governed by custom, in the circumstances already stated, the onus of proof on the opposite side could not be regarded as at all heavy, and it should be held to have been sufficiently rebutted by a solemn decision by three Court of law in a case arising within the family of the vendors, that they were not governed by custom but by their personal law. There remains the oral evidence and as to this, the argument for the appellants wqs that the statements of a few persons for the plaintiffs were none of them supported by instances, and each one was vitiated by un certainty on the deponent's part in respect of an important matter. Even in the latest compilation of the customary Law of the Lahore District, while it was said that Bukhari Sayeds had been consulted, and it was generally noted in the answer to question No. 47 that in matters of inheritance all tribes said that they followed custom, except Ahmadis and a few parti cular families. In the list of instances contained in the appendix under question No. 47, which included about 90 cases, there was not a single case of a Bukhari Sayed included, and two cases of Sayeds namely the one of a Gilani Sayed from Sabrai in the Kasur Tahsil, and the other of a Qureshi Sayed from Baghbanpura in the Lahore Tahsil were merely instances of a special custom whereby surviving widows shared equally with surviving sons. Dealing with the evidence of witnesses for the plaintiffs, there was first Haidar Shah of Babu Sabu, a village close to Nawankot, who said generally that Sayeds of Lahore District were governed by custom in matters of alienation, and could not alienate ancestral property except for necessity which was confined to marriage, ancestral debts and land revenue. The witness could not say if antecedent debts of a Sayed or his father were a necessary purpose. Sayed Abbas Hussain (P. W. 3) made statement regarding custom more suitably to a legislator than to a mere follower of law. Thus, he started off by saying that Sayeds who are Zamindars are governed by custom, but Sayeds who are not Zamindars are governed by Muslim Law. (In the Lahore District, all Sayeds have been notified as belonging to an agricultural tribe). Sayed Abbas Hussain went on to say that Sayeds who lived in villages were governed by custom, even though they were not engaged in agriculture, while those who resided in the city were governed by Muslim Law. In cross‑examination, he said that Sayeds who own land but give it on batai or lease and themselves reside in the city would be governed by custom, while as for those who live in villages but whose ancestral occupation is business rather than agriculture, would be governed some by custom and some by Muslim Law. The witness himself was governed by Muslim Law. Sayed Mubarik Ali Shah (P. W. 5) made a somewhat similar statement, saying that Sayeds living in the suburbs of Lahore are usually governed by custom, but those of Lahore City are governed by Muslim Law. Elaborating this, he added that Sayeds living in villages were governed by custom, irrespective of the profession they followed, while as for Sayeds living in cities, they were governed by custom in respect of land owned by them in villages and by Muslim Law as regards property in the city. The witness himself followed Muslim Law. He belongs to Mozang which within living memory was itself a village and a suburb of Lahore. Abdul Raza (P. W. 4) is an Afghan contractor of Lahore City and has known the plaintiffs' family for 30 years or so; this indicates the close association of plaintiffs' family with Lahore City. Abdul Raza's statement that the family follows custom is not of great value, being that of an outsider. Murad Ali Shah (P. W. 6) is a resident of Nawankot, and is related to two of the alienees. He stated that the Sayeds of Nawankot were governed by custom. Yet he admitted that he had sold a ghumaon of his ancestral land, and none of his reversioners had sued to contest the alienation. He explained that the land had been sold for a necessary purpose, but he did not say what that purpose was. His cross‑examination shows that his idea of purposes valid in the eye of custom was extremely vague. Sadiq Hussain (P. W. 7) is a Sayed of Lakhodehr near Baghbanpura, and stated that Sayeds of Lahore suburbs follow custom in matters of alienation, succession and marriage; in cross‑examination he admitted that their marriages were performed according to Muhammadan rites. He said also that at the mutation following the death of his sister's husband, he appeared and declared that the deceased's daughter had no share according to custom, and consequently the land went to an uncle. There is no documentary evidence in support of this instance, such as could easily have been produced if it was true. Bahadur Ali Shah (P. W. 8) belongs to Sheikhupura District, but said that the Sayeds of Lahore suburbs were governed by custom and in cross‑examination said that there had been some suits among such Sayeds to challenge alienations of ancestral property but he was unable to give any instance. (As has been seen, no instance is given even in the compilation of custom made in 1940 which was particularly careful). One other witness namely Qutab Ali Shah defendant who appeared as D. W. 12 made a declaration regarding custom, viz. that his grandfather's brother Imam Ali had died leaving behind a daughter and a widow, and that the widow took his estate, the daughter getting nothing. When the widow died, Qutab All Shah and others, collaterals of Imam Ali got th property in preference to the daughter, but there is no documentary evidence in support of this instance, except that in the damabandi of 1891‑92 and succeeding years, the name of Mst. Allah Jawai, widow of Imam Ali appears in the revenue papers as owner, but this is no proof that there was a daughter in existence, and that she was excluded from succession, for particularly among Muslim families, the names which appear in the revenue records are frequently a matter of arrangement in the family, and not every person who owns a share under the complex system of devolution in Muslim Law is mentioned in the list of owners. Frequently, the names of female owners are missing from the revenue records altogether. But it was contended by learned counsel that even assuming that the statements of Qutab Ali Shah and Sadiq Hussain are correct, namely, that among the Sayeds of Nawankot and neighbouring localities, daughters do not inherit, that is not by itself sufficient to hold that in matters of alienation also the Sayeds of these places follow custom. Reference was made in this connection to the well known case of majawars of Data Ganj Bakhsh, a shrine in Lahore City, who are Rajputs by caste, and members of a dominant agricultural tribe in Lahore District. The case is published as Muharram Ali v. Barkat Ali (I L R 12 Lah. 286). In that case, collaterals had need to have it declared that an alienation by one of their family being without consideration and necessity was void and ineffectual as against their rights. It was found as a fact that in matters of succession, the family had departed from Muhammadan Law in several instances, and had adopted rules which were akin to those obtaining among agricultural tribes. On this basis, it was sought to argue that in matters of alienation of ancestral property as well, the powers of male members of the family were restricted under agricultural custom. Tek Chand J. regarded this argument as wholly fallacious, and unhesitatingly rejected it, citing a number of authorities to the effect that custom is not to be enlarged by reasoning or logical process. It was contended on behalf of the appellants in the present case that from the mere fact of daughters being excluded from' succession among Sayeds of Nawankot and neighbouring localities, it could not in the absence of further evidence be inferred that the‑powers of these Sayeds were also restricted in matters of alienation of ancestral land. Mr. Inyat Ullah for the respondents placed his clients' case merely on the basis of onus. His contention was that as Sayeds were a notified agricultural tribe, it should be assumed that their power of alienation of ancestral land was restricted. Of the defendants, the present appellants had produced no evidence to shift that onus, but Muhammad Din one of the intermediate mortgagees, had produced four witnesses, namely Hakam Shah (D. W. 6), Ahmad Hussain (D. W. 7), Nawazish Ali (D. W. 8) and Ahmad Shah (D. W. 9), Sayeds of Lahore, to show that the Sayeds of Lahore were governed by Muslim Law in matters of succession and alienation of property. The first three witnesses were unable to cite any instances or other material on which their knowledge was based. Nawazish Ali even said that his source of knowledge was that whenever the Sayeds met they said that they observed Muslim Law. Ahmad Shah (D. W. 9) said that his father died leaving land in village Babu Sabu, in which his sister had also got a share, but no documentary evidence was produced in support of this statement. Urging that this evidence was of no value at all, learned counsel for the respondents argued that the onus resting on the alienee‑defendants had not been discharged. He sought to avoid the effect of the judgment in Mst. Iqbal Begum's case on the same grounds as were put forward by the learned Sub‑Judge of the trial Court. He cited certain rulings to the effect that members of agricultural tribes who have recently shifted to Lahore should not be held to have abandoned custom and adopted their personal law, even though there may be some proof that they had drifted away from agriculture. Having given my best consideration to the arguments advanced in the case and to the evidence led by the parties. I am clearly of the opinion that the onus resting upon the defendants to establish that their alienors enjoyed the right of unrestricted alienation was, in the circumstances of the case, very light, and might he held to have been shifted on the basis of the single decision in. the case brought by Mst. Iqbal Begum so recently as 1943. As that decision relates to one of the alienors in this very case, it constitutes a judicial instance of the highest value. The opponents were members of the same family and thus in a position to place before the Court all the available evidence to establish that they followed custom in matters of alienation. The Courts based their decision that the family followed personal law on a full and proper examination of the evidence led before them, and I can see no reason arising out of the judgments themselves for discounting the effect of the conclusions reached and recorded in that case. The evidence led for the plaintiffs to establish that the Sayyeds of Nawankot followed custom proves on examination to be merely composed of bold assertions by persons who were devoted of means of knowledge, and in some cases visibly draw on their imagina tions for giving an appearance of reality to their statements of custom. An indication, albeit unsupported by adequate evidence, may be found in these statements that daughters do not take a share in the inheritance of Sayyeds of this locality, but from this proposition alone, it is not possible to draw the further conclusion that there is restriction also in regard to the power of male proprietors to alienate ancestral land. On this point, I consider that the statement of a disinterested witness for the defendants, Ahmad Hussain (D. W. 1), a broker, who brought about the sale in favour of the appellants should be given considerable weight. This witness has stated that he was told by the vendors at the time of the sale that the were governed by their personal law Throughout the transaction, no mention appears to have been made of, and no attention was given to, the question of necessity under custom, and this call only nave been because the transaction was carried out throughout in the belief on both sides that it was free from the restraints of custom. Otherwise, it is not to be supposed that ail experienced broker would have allowed the transaction to go through and become a matter of record in the registry office, without enquiring into and reducing to documentary form, the particular needs for which the alienors were selling the land. Although the statements of witnessed produced by Muhammad Din defendant to the effect that the alienors are governed by Muslim Law in matters of alienation are not particularly convincing, the oral evidence for the plaintiffs is no better, and the onus of proof being displaced by reason of the judicial decision mentioned above, it must be held that the plaintiffs have failed to establish in the present case that the alienors were restricted by custom in regard to their power of alienation of ancestral land. In this view of the matter, it is unnecessary to consider the further questions of necessity for the sale and the character of the vendors Holding that the custom on which the plaintiffs rely is not established, I would allow this appeal, and dismiss the plaintiffs' suit with costs throughout. KAYANI, J.‑I am in respectful agreement with my learned brother in holding that the onus placed on the vendees to prove that the vendors did not follow custom in matters of alienation was shifted to the plaintiffs by the judicial decision in which both of the present vendors were held not to be governed by custom in matters of alienation. Under section 13, clause (b) of the Evidence Act, where the question is as to the existence of any right or custom, particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from are relevant. Under) section 42 of the same Act, judgments are relevant if they relate to al matter of a public nature relevant to the enquiry ; but these judgments are not conclusive proof of that which they state. At page 420 of Munir's Commentary (3rd edition) it is stated, relying on certain rulings, that the question as to what the custom is in a particular matter in a locality or a class of people or perhaps a family is a question of public nature and judgments as to the existence or non‑existence of the custom would be relevant both under section 13 and section

42. In the next paragraph I L R 10 All. 585 and I L R 1 All. 440 have been cited, apparently with approval, for the opinion that the most cogent evidence of a custom is a final decree based on that custom. The evidence led by the plaintiffs to establish that the Sayyeds of Nawankot follow custom in matters of alienation consists, as my learned brother has pointed out, of bold statements unsupported by concrete instances. The judgment under appeal states that one of these witnesses belonging to the village also mentioned an instance in his family which is Exhibit P. I." The reference is apparently to Din Muhammad (P. W. 2) The learned judge of the Court below overlooked the fact that Din Muhammad was an Arain and that a custom applicable to Arains could not necessarily be applicable to Sayyeds. The learned Judge has relied for his conclusion mostly on the circumstance that Sayyeds were one of the tribes consulted at the preparation of the Revaj‑i‑am. I find, however from 'the appendix attached to the Riwat‑i‑am that, barring tire two instances relating to Gilani Sayyeds and Qureshis‑‑who are only Sayyed by courtesy‑‑on pages XXIX and XXX with which my learned brother has dealt adequately, there is no other instance of inheritance or succession relating to Sayyeds. On the contrary, there are several instances which show that custom was departed from in the case of Sayyeds. Thus at page XLVIII, there is an instance relating to 1895 in which the estate of one Bahadur Ali, a Sayyed, was mutated in favour of the heirs in accordance with the Islamic Law. At page LXVII there is an instance of a Qureshi widow in 1923, who made a gift of her deceased husband's property in favour of her daughter without any objection. At page LXXV there was a sale in 1919 by a widow. At page LXXVI there was another sale by a widow made with the consent of the collaterals in 1935. At page CXIV there is a mortgage by a widow made in the presence of collaterals in 1916. At page CXXXVIII there is an instance of a Qureshi Hashmi relating to 1918 in which a daughter suc ceeded to widows and collaterals did‑not object. At page CXLIX there is an instance of a Bukhari Sayyed relating to 1925 in which a widow mortgaged land in the presence of the collaterals of the first degree who did not object. At page CLIII there is an instance of a Sayyed relating to 1912 in which a daughter was succeeded by her three sons. Further, it seems to me that the onus was in this case wrongly placed on the persons who maintained that the Sayyeds were not govern ed by custom in matter of alienation. Their Lordships of the Privy Council lard down in Abdul Hussain Khan v. Bibi Sona Dere (45 I. A. page 10) that it lies upon the person asserting that he is ruled in regard to a particular matter by custom to prove that he is governed and not by personal law and further to prove what the particular custom is, and that there is no presumption in favour of the existence of any custom. The matter again came before their Lordships in Muhammad Jan v. Rafi‑ud‑din, Privy Council Appeal No. 43 of 1947 (P L D 1949 Privy Council 18 : A I R 1949 P. C. 70) when the question was whether the Qureshis of Attock district which formerly formed part of Rawalpindi were governed by custom in matter of alienation. In that case; this Court had held, relying on paragraph 59 of Rattigan's Digest of Customary Law which lays down that ancestral immovable property is ordinarily inalienable except for necessity or with the consent of made descendants, that the powers of the Qureshis of Attock district were similarly restricted. Their Lordships of the Privy Council remarked that "the view the learned Judges took was that entries in the Riwaj‑i‑Am established that Qureshis of the district in question were governed by custom and that in that situation paragraph 59 of Rattigan's Digest was sufficient to establish that the custom precluded unrestricted alienation of ancestral land. Entries in Riwaj‑i‑Am are always regarded as of great importance in establishing custom and it is important to notice the entries on which the High Court relied in the present case. . . In Exh. P. 20 the question put was, can a proprietor having no male issue make a gift or not? and the answer on behalf of the Qureshis was that a proprietor having no male issue is not competent to make a gift. Exh. P.21 dealt with the interest which daughters took in their father's estate. In Exh. P.22 the question was, is there any distinction between ancestral and acquired property as regards the power of making gifts ? and the answer of the Qureshis was that a proprietor can make a gift of his self‑acquired property ; he cannot make a gift of ancestral property without the consent of his sons. These entries do establish that‑ the Qureshis of Rawalpindi district which formerly included the Attock district were to some extent governed by custom in 11384. If this had not been so, it would have been simple to answer all the questions by saying that Qureshis were not governed by custom. Further the subject‑matter of the questions in Exh. P.20 was gift, which is a form of alienation. There is, however, a big jump from a custom which restricts gifts to one which restricts alienations for value, Unlike the common law, customs do not grow and develop to meet the changing needs of society. As was well pointed out by Mr. Justice Tek Chand in the case of Muharram Ali v. Barkat Ali (I L R 12 Lah. 286) custom cannot be extended by logical process : it can only be established by evidence. If the contention be that a custom existing in 1884 against a proprietor making a gift of atlcestral property without the consent of his male issue had developed by 1940 into a custom extending such restrictions to alienations for value, the extension should have been proved by evidence. There is no such evidence. There are no instances on the record of any alienations for value by members of this community having been challenged." The position is more or less the same here. So far as alienations go, the Riwaj‑i‑Am has devoted to them only one question, namely, Question 142, and that relates to a sonless proprietor. The answer that a sonless proprietor cannot alienate his ancestral property by gif; or bequest except under certain conditions. He can, however, mortgage or sell it for necessity, The grounds upon which necessity can be based are then given and these are followed by 34 instances which, with three exceptions, relate to Jats and these three exceptions relate to a Rajput a Kamboh and an Arora. There is, in short, no reference to a Sayyed. In these circumstances, when the burden of proof should have been on the other side, I think the judicial decision relating to the vendors themselves is of extreme importance. I agree with my learned brother that the plaintiff's suit should be dismissed with costs throughout. A. H. Appeal allowed.