P L D 1949 Lahore 155 (PLP)

55 P R 1908 followed ; A I R 1940 Lah. 475 ref. Muhammad Yaqub Ali for Appellant. B. Z. Kaikaus for Respondents. CORNELIUS, J.‑The suit out of which this appeal arises related to a house owned by Mst. Nur Jan, a resident of Pira Gheb, which is described as an outlying suburb of Jhelum town. Mst. Nur Jan was a Ghakhar by caste. She was married to one Sayed Fateh Shah who by another wife had a daughter, whose son, Ghulam Ghaus Shah, is the fifth defendant in the case. The suit was brought by Mst, Sajjada Begum, mother of Mst. Nur Jan, who gave her own caste as Ghakhar, and the other defendants in the case, were Mst. Sardar .Begum, sister of Mst. Nur Jan, Sardar Khan and Khan Muhammad, sons of another sister of Mst. Nur Jan, and Muhammad Sabir son of Sardar Khan, In the course of the litigation, Mst. Sardar Begum also died and was replaced on the record by her husbands Abdul Karim. It is noteworthy that the caste of Abdul Karim Khan, his son Muhammad Sabir, and Khan Muhammad is given in each case as Ghakhar, and the caste of Mst. Nur Jan's father might also be presumed to be the same. Reference to the Riwaj‑i‑am of the Jhelum District shows that Ghakhars as well as Sayeds were among the tribes consulted at the last Settlement, and the answer to question No. 26 which relates to the order of succession to immovable property shows that both these tribes along with all other Mussalman tribes consulted declared that they followed custom. Mst. Nur Jan died on the 10th December 1945. On the 18th August 1945, she made a will which was registered on the 15th October 1945, whereby she left the house in suit to Ghulam Ghaus Shah stating that he had lived with her and served her like a son for many years. The suit was brought by Mst. Sajjada Begum on the 30th April 1946, to challenge the will and to claim a one‑sixth share in the suit property on the basis of the personal law. The Courts below have held that Mst. Nur jan was governed by the Muslim Law. The grounds stated in the trial Court's judgment are as follows, viz., firstly, that she had married a Sayed, and Sayeds are normally supposed to follow their personal law, secondly that she lived not in a village but in Pira Gheb which is adjacent to the Courts and the town of Jhelum and is within the municipal limits of that town, thirdly that there was nothing to suggest that she was a member of any compact village community or that she subsisted on agriculture or shared in any shamilat, and fourthly that according to the Shariat Act of 1937, succession to houses and movable property is to be determined by Muslim Law in relation to Muslims. These grounds were adopted by the learned Additional District judge with slight changes of phase. On this basis, the trial Court granted the plaintiff a preliminary decree to the effect that she was entitled to a one‑sixth share in the house, and declaring at the same time the shares of Abdul Karim to be 18/54ths and Ghulam Ghaus Shah to be one‑half, the learned judge appointed a Commis sioner to carry out the partition. The learned Additional District judge changed the shares, allowing 7/15ths to the plaintiff, 5/15ths to Ghulam Ghaus Shah and 3/15ths to Abdul Karim, The share given to Ghulam Ghaus Shah was on the basis that the will in his favour was valid only in part. Ghulam Ghaus Shah has appealed to this Court from the decision of the learned Additional District Judge. It is contended before me that the question whether Mst. Nur Jan was governed by Muslim Law or by the agricultural custom has been approached by the Courts below from a wrong angle, and the argument which they have adopted suffers from patent defects. Firstly, Pira Gheb, although it is included within the municipal limits of Jhelum, is not yet part of Jhelum town. At best it can be described as a village situated on the outskirts of a town, whose area has been included within the municipal limits of that town, presumably for proper administration from the health and sanitation point of view, but which is only slowly being assimilated into the town. Secondly, it is said that enough weight has not been given to the circumstances that Mst. Nur Jan was a daughter of Ghakhar parents and belonged to a Ghakhar family as established by the fact that both her sisters had married Ghakhars. The circumstance that she married a Sayed would not by itself operate to change the law by which she was herself governed particularly as in the Jhelum District, Sayeds are themselves governed by custom in matters of succession. The assumption made by the Courts below that Sayeds are normally supposed to follow their personal law was characterised as unfounded. Thirdly, the reference to the Muslim Law (Shariat) Application Act, 1937, was misconceived, for action 2 of that Act is clearly confined in its operation to intestate succession, and in the present case, the entire property in suit, being non‑agricultural in char acter, had been disposed of by will, so that unless it was held that Mst. Nur Jan was governed by Muslim Law, the section would have no application. Under that Act, it was open to a. person by a formal declaration to become subject to the Muslim Law, but no such declaration had been made by Mst. Nur Jan. Reference was invited to the answer to question No. 102 in the Rewaj‑i‑am of Jhelum District, where it was clearly laid down that with reference to a self‑acquired property Ghakhars had stated that they had power to bequeath the whole of it even in the presence of male issue. The suit property was not shown to be ancestral in Mst. Nur Jan's hands, but on the other hand it was shown that she had acquired it on the 11th May 1932 by means of an exchange, from her husband Fateh Shah, the transaction being evidenced by the deed Exhibit P/2. There was nothing to show that the property which she had given in exchange had come to her from her father. Further, attention was invited to section 7 of the Punjab Custom (Power to Contest) Act of 1920, which provides that no person shall contest any alienation of non‑ancestral immovable property on the ground that such alienation is contrary to custom, and the word "alienation" is defined to include testamentary disposition. As regards the evidence placed on the record, it was pointed out that none of the plaintiff's witnesses had said a word as to whether Mst. Nur Jan followed custom or personal law. One witness for the defendants on the other hand, namely, Jahan Dad lambardar (D. W. 5) of Pira Gheb, had said that Mst. Nur Jan followed Shariat. This witness was himself a Ghakhar, and when closely questioned on this point, he said that he did not know whether Ghakhars followed custom, but yet admitted that certain land which he said had been received by his sister from their father's estate had been received before the father's death and after his death, Jahan Dad alone succeeded to the estate. The fact of Jahan Dad being a lambardar shows that in Pira Gheb the Ghakhars community has a powerful position among the land owning tribes. Learned counsel for the respondents argued that the mere fact of Mst. Nur Jan being described as a Ghakhar was not sufficient for holding that she was also governed by custom. He attempted to argue that her family had drifted away from agriculture, and pointed to the fact that one of her brothers‑in‑law had been described as a mistri and the other as a fruit merchant. He referred to a Division Bench decision of this Court cited as Mst. Sharifa Begum v. Court of Wards (A I R 1940 Lah. 475) where it had been held with reference to a Muhammadan Qureshi family belonging to a notified agricultural tribe, that it was governed by Muhammadan Law. That conclusion was, however, based on the considerations that the family had been living from time immemo rial in the town of Gujrat, and almost all its members were shown to have followed urban pursuits, and there was no evidence to show that any of them ever followed agriculture as an avocation. The facts are very different here. This particular family of Ghakhars, comprising persons of ordinary status, none of whom is shown to follow any typical urban avocation, lives not inside the town but in a village on the fringe of a town. The Ghakhars are one of the predominent agricultural tribes of the Jhelum District and particularly in the Jhelum Tahsil. It is not shown that the family to which Mst. Nur Jan belonged "has altogether drifted away from agriculture as its main occupation; and has settled for good in urban life, and adopted trade, industry or service as its principal occupation and means and source of livelihood" (Per Lal Chand J. in "M. Hayat Khan v. Sandhe Khan", 55 P R 1908), and consequently the initial presumption that she was governed by custom in matters of alienation and succession stands. The learned judges of the Courts below appear to me to have ignored this presumption, and the validity of their conclusion has been prejudiced thereby. Further the conclusion reached by these learned judges is vitiated in each case by certain erroneous assumptions which are, firstly that Pira Gheb is a town or part of a town, secondly that by marriage to a Sayed, Mst. Nur Jan must be deemed to have changed over from custom to Muslim Law, and thirdly that the property being not agricultural land but house property, its devolution must under the Act of 1937 follow the rule of Muhammadan Law. On the contrary, in the circumstances established on the record, the only presumption which could have been drawn was that Mst. Nur Jan.followed custom and there being no evidence to the contrary whatsover, a finding should have been given accordingly. There is no proof that the house is ances tral property, and it is not contended that Mst. Nur Jan had only a life interest in it. Therefore, she was fully competent to make a will in respect of the house in favour of any one she chose. Both the Courts below have held that the will in question was duly executed while the testatrix was of sound disposing mind, and this finding is not open to challenge in second appeal. I accordingly allow this appeal and setting aside the decrees of the Courts below, I dismiss the plaintiff's suit, and grant the appellant his costs throughout. A. H. Appeal allowed.