P L D 1952 Lahore 408 (PLP)

M. R. KAYANI, J.-The only point in this second appeal is whether an Awan of Attock tehsil who has sons has unres tricted powers of alienation. The Awan in question is Ilahia of village Qazi Abad in Attock tehsil. In 1944 he created occupancy rights in respect of 43 kanals 15 marlas of land in favour of Chanan Shah defen dant and in the following year he sold proprietory, rights in the same land to the same person for Rs. 1,

000. It is against this sale that his son Muhammad Fazil has filed a declaratory suit under custom. On the issues raised in the case the two Courts below have held that the land-in suit is ancestral ; that the sale was for consideration but without valid necessity and that vendor had no right under custom to alienate ancestral land without valid necessity. The first two findings being those of fact, it is on the third point that the vendee's counsel has' argued the case. I do not see any support for the plaintiff's case in the answer to question 48 of the Riwaj-i-am of the district upon which the learned District Judge has relied : Question 48 is not relevant to the subject, for it deals with the right of a father to deprive one of his sons or near kindred of his share of the inheritance and to divide it among the rest. The, relevant question is 47-B which is in the following form :- "As regards alienations, other than gift, what are the powers of- (1) a sonless proprietor. (2) a proprietor having sons." The answer. is that among Awans of Talagang a sonless pro prietor has full powers. Then follow judicial instances of which quite a large number relate to Awans. Apart from these in stances, however, there is no statement of the custom itself by the compiler in respect of a proprietor having sons, whether amongst the Awans or other tribes. The instances relating to Awans having sons are as follows :- (1) Mawaz, an Awan of Khichi in Talagang tehsil was held competent by the Chief Court to make an alienation of his ancestral property in the presence of his sons. The decision is reported in Khuda Bakhsh v. Wham Ali and others 88 P R 1911. (2) Sohna, an Awan of Kawah in Attock tehsil, was held competent to make such an alienation This is an unreported decision of the High Court, based on 88 P R 1911 and 100 P R 1912 which relate to Awans of Talagang tehsil. In the latter case, however, the alienor was childless. (3) This case related to the Awan of Chechi in Attock tehsil and is a decision by the District Judge. The suit of the son to contest the alienation was dismissed on the ground that both Pathans and Awans were found to have extensive powers of alienating ancestral property and, further, the tenure of the village was also bhaiachara. (4) This is a case relating to the Awans of Kalu Kalan in Attock tehsil and the decision was by the District Judge. The trial judge held that an. Awan proprietor possesses un restricted powers of alienation but the District Judge based his decision on the fact that necessity had been established. This consequently is not a helpful instance. (5) This case relates to the Awans of Jand in Pindigheb tehsil. The District judge held that since Awans of Talagang tehsil have unrestricted powers of alienation, the analogy could be extended to Pindigheb tehsil, also. (6) This case relates to Awans of Tamman in Talagang tehsil. The High Court decided against the son, who in stituted the suit, largely on the ground, it would appear, that the alienation was for valid necessity. (7) This was a suit by the collaterals of an Awan of Talagang tehsil. The High Court held, following P. W. R. 60 of 1914 and 70 P. W. R. of 1914, that while proprietors with sons had restricted powers of alienation except in favour of near relations, proprietors without sons had un restricted powers. (8) This case relates to Awans of Dhermond in Talagang tehsil. The Chief Court held that an Awan of Talagang tehsil who has sons living, does not enjoy unrestricted powers in respect of ancestral property. The decision is reported in Muhammad Khan v. Dalal and others 42 P L R 1914. The case for the appellant thus depends on 88 P L R 1911 only. The last mentioned case, namely, 42 P L R 1914, was decided by the same Judges (Mr. Justice Rattigan and Mr. Justice Scott Smith) who decided Lal Khan. v. Nura 72 P R 1914. In that case their Lordships observed that custom makes a clear distinction between cases where an alienation is by a proprietor who has sons and cases where it is by a sonless proprietor. They rejected the view taken in 88 P R 1911 with the following remarks :- "That case has been discussed and explained in Khuda Bakhsh and others v. Ahmad Khan and others 114 P R 1913 and it is unnecessary for us to say more than that it is not clear whether the son there referred to was born before the alienation in question took place." Now although the question involved in 114 P R 1913 was whether an Awan of Talagang tehsil has power to distribute ancestral land unequally among his sons, the answer, which was in the negative, was based on an examination of the powers of Awan proprietors in general, and is, therefore, of great assistance here. In respect of 88 P R 1911 the learned judges said this : " It may be remarked (though this does not appear from the judgment of this Court) that in this case the son was born after the alienation in question, so that the case is not one of an alienation by the father in presence of a son. It may also be noted that of the three rulings relied on in 88 P R 1911," I think their Lordships mean four-"the three earlier ones are not cases of alienations in presence of sons but of alienation by sonless proprietors, while in Khuda Yar and others v. Fateh and others 8 P R 1906 the right of the son to object was not decided as the son assented to the gift, and the contest was between the nephews of the donor and the daughter's sons." Thus the only reported case in favour of the unrestricted powers of an Awan proprietor 88 P R 1911 has not been followed in two subsequent reported cases by two different Benches. 88 P R 1911 is a case by a Single judge and in a very short judgment relies on four previous cases which, as noted in 114 P R 1913, are not to the point. The very fact that the answer to question 47-B makes a clear statement of custom in respect of proprietors without sons 'but says nothing about proprietors having sons, indicates that the distinction between the two cases was present to the mind of the compiler. I think the view which has found more favour with this Court and with which I respectfully -agree, is that an Awan pro prietor having sons has only restricted powers of alienation. The appeal is, therefore, dismissed with costs. A. H. Appeal dismissed.