1969 PLP 607 (SCMR)

ABDUL RASHID, C. J.‑This is an appeal from the judgment and decree of the High Court of Judicature at Lahore, dated the 22nd February 1949, dismissing the plaintiff's suit and reversing the decree granted to him by the Subordinate Judge of Rawalpindi dated the 1st February 1945. Fatta, a Bhatti Rajput of Rawalpindi Town died on the 1st of July 1911, leaving him surviving his widow, Mst. Noor Hishan, his brother's widow, Mst. Fazal Nishan, and her two daughters. The plaintiff is the collateral of Fatta deceased in the fourth degree. It is the plaintiff's case that Fatta died intestate, that the deceased was governed by his personal law, and that the plaintiff as one of his heirs, under the Muhammadan Law, was entitled to a 12/16th share in the estate of Fatta. The widow of the deceased was entitled to a 4/16th share. The plaintiff had sold 5/16th share of the estate of Fattato various persons. He was, therefore, entitled to a decree for separate possessions by partition of 7/16th share of the houses and ahatas left by Fatta. The plaintiff further claimed a declaratory decree regarding 7/It.th share in two plots of agricultural land measuring 92 kanals, 10 marlas, 6 sirsais, and 16 marlas 3 sirsais, respectively. It was further stated in the plaint that the defendants had declared that Fatta deceased had executed a will in their favour on the 28th June 1941. Fatta deceased was not competent to make a will of his property either under the personal law or in accordance with any customs governing the parties. Fatta's will was, therefore, a nullity and had no effect on the rights of the plaintiff. It was alleged that Fatta deceased had lost consciousness many days before, death, and that at the time that the will is alleged to have been executed, he was not in a fit condition to understand the effect of any action attributed to him. The defendants pleaded, inter alia, that Fatta deceased being a Bhatti Rajput was governed by Customary Law; that the property in dispute was non‑ancestral qua the plaintiff; that Fatta had full powers of alienation in respect of this property by means of gift and will; that he made a will bequeathing the property in certain specified shares to various relations of his; and that the plaintiff's suit was, therefore, liable to dismissal. It was further pleaded by the defendants that Fazal Dad plaintiff had signed the will of Fatta in token of acceptance, that certain houses were bequeathed to the sons of the plaintiff, and that it was in lieu of this consideration that he had consented to the will. He was therefore estopped from challenging the validity of the will. The trial Court framed sixteen issues but it is unnecessary to reproduce them here. It was held by the Subordinate Judge that the will of Fatta was invalid, as it was not established that he was in possession of a disposing mind at the time of the execution and registration of the will. It was further held that as Fatta was not a member of a village community and had taken up residence in the town of Rawalpindi he must be held to be governed by the Muhammadan Law in spite of being a member of the Rajput tribe. On these findings, the plaintiff was given the decree prayed for in the plaint. On appeal, the decision of the Subordinate Judge was reversed by the High Court, and it was held that the will of Fatta "was a genuine document executed by Fatta in full possession of his senses and with a disposing mind." It was further held that the evidence produced on behalf of the defendants had conclusively established that Fatta and his family were governed by the Customary Law of the Punjab, and that the property being non‑ancestral Fatta had full powers to alienate this property by sale, gift, or will. On these findings, plaintiff's suit was dismissed, but the parties were ordered to bear their own costs throughout. Mr. Kaikaus, on behalf of the plaintiff‑appellant, contended that it had not been established that Fatta was in possession of a disposing mind at the time of the execution of the will. He urged that it had been proved by reliable evidence adduced by the plaintiff that Fatta was unconscious for several days before his death, and that the will did not represent any disposition made by Fatta deceased. In this connection, reliance was placed on the testimony of Dr. Attar Singh (P. W. 7). Dr. Attar Singh stated that he was treating Fatta during his last illness. He was called in on the 28th of June 1941, by Aslam Khan, the son‑in -law of Fatta. He found that Fatta was suffering from paralysis of the right side and was unconscious. Somebody present near Fatta told Dr. Attar Singh that Fatta wanted to make a will. Dr. Attar Singh, however, refused to be a party to this will as Fatta was in a dangerous condition and could not speak. We have given careful consideration to the evidence of Dr. Attar Singh, and we have no hesitation in holding that his testimony does not represent the truth. Dr. Attar Singh is not a qualified physician and does not keep any regular registers of the patients treated by him. He deposed that he had refreshed his memory by a look at his diary, and had then stated that it was on the 28th of June 1941, that he saw Fatta for the last time. The trial Court examined this diary and noted on the record that the diary from which the witness had refreshed his memory about his visit to Fatta on the 28th of June 1941, was a very irregularly kept document. Dr. Attar Singh further stated that he also maintained a register of cash and credits. He, however, did not produce this register in Court. The entry in the diary was to the following effect :‑ "Tirath Ram to proceed Hardwar. Ch. Fatta "Daylson"." The word "Daylson" was read by the witness as dangerous. The witness evidently is a half educated person and does not even know how to write the word "dangerous". In any case, the diary contains no entries to the effect that Ch. Fatta was unconscious and was unable to speak. This is the sole evidence relied upon by the plaintiff to establish that Ch. Fatta was in no condition to make a will on the 28th June 1941. The defendants have produced overwhelming evidence which establishes beyond a shadow of doubt that the will Exh. D. 1 was written at the instance of Fatta deceased, and that it was a result of his dictation for a long period of time that the will was prepared. Fazal Haq (D. W. 1) is the scribe of the will. He states that he wrote the will at the house of Ch. Fatta in the afternoon and Ch. Fatta gave him the facts that were embodied in the will. A rough draft was admitted by Fatta to be correct and was thumb‑marked by him in his presence on all the sheets. The final draft was written at about 8 0 p. m. After the will had been completed it was attested by three witnesses in the presence of the petition‑writer. Later, on, the Sub‑Registrar, Capt. Muhammad Saddiq Khan, was sent for and the will was registered. The execution of the will was entered in the petition‑writer's register. The evidence of the scribe of the will is corroborated in all material particulars by the statements of the three attesting witnesses, namely, Muhammad Umar (D. W. 2), Khuda Bakhsh (D. W. 3), and Allah Bakhsh (D. W. 4). This evidence has been carefully examined by the learned Judges of the High Court; and they have stated that they saw no reason to discard this evidence simply because there were a few minor discrepancies in the statements of these witnesses. Capt. Muhammad Saddiq Khan, the Sub‑Registrar appears to us to be an entirely disinterested witness, and there is no reason to regard him as a partisan of the defendants simply because he lived as a tenant of Fatta deceased in one of his houses on. payment of rent for a period of about six months. When the Sub‑Registrar went to the house of Fatta he was sitting on a cot. He was undoubtedly ill, but the Sub‑Registrar did not question him fully about the nature of his ailment. The will was read over to him; and he admitted it to be correct. He further told the Sub‑Registrar that he bad executed the will without any undue influence from any body. The Sub‑Registrar states that he thoroughly explained the will to Fatta, and he understood' the contents of the document that he had executed. We hold therefore that the will Exh. D. 1 was executed by Fatta on the 28th of June 1941, when he was in full possession of his senses and that the disposition of property embodied in the will was fully understood by him. By means of this will, he divided his property between his own widow, the widow of his deceased brother, and her two daughters. He also left a certain amount of property to the two sons of the plaintiff, namely, Taj Muhammad (defendant No. 4), and Gul Muhammad (defendant No. 5). As the deceased made adequate Provision for all his relations it is a will which the deceased would naturally be inclined to make. No suspicion can attach to a document of this type, specially as it was got registered two, days before the death of the testator. The only other question for determination is whether Fatta was governed by Muhammadan Law or Customary Law. 1n all cases, an initial presumption arises that the parties are governed by their personal law, and any person setting up a custom differing from and in derogation of the personal law must establish the custom. In the present case, the defendants have fully proved that Fatta deceased was governed by the Customary Law of the Punjab in matters relating to alienation and succession. Fatta was a Bhatti Rajput which is a predominantly agricultural tribe in the Punjab. The representatives of Bhatti Rajputes were consulted at the time of the compilation of the Riwaj‑i‑am of the district of Rawalpindi. Fatta possessed a fair amount of agriculture land which forms a part of the property which is the subject‑matter of this litigation. 'There is no evidence that Fatta and his ancestors had given up agriculture and had taken to industrial or commercial pursuits. In addition to the considerations mentioned above, the defendants have produced evidence of several instances showing that Bhatti Rajputes of Rawalpindi Town, and in particular, the family of Fatta deceased, are governed by Customary Law. Matta, the brother of Fatta, died in 1924 or 1925. His entire estate was mutated in the name of his widow Mst. Fazal Nishan as is clear from Exh. D. 68, dated the 17th March 1925. Had Matta's estate been divided according to Muhammadan Law, 1/4th of his property would have gone to his widow while 3/4th would have been inherited by his brother Fatta. Another instance relates to the estate of Pir Bakhsh, a Bhatti Rajput of Rawalpindi, who died in 1929. His estate was mutated on the 31st of August 1929, in favour of his sons to the exclusion of his daughter (Exh. D. 65). One Bhudu, a brother of Fatta died in 1927. His estate was divided into two sharers. One half was mutated in the name of his brother Fatta, and the other half was mutated in the name of Fazal Nishan, the widow of Matta, the pre‑deceased brother of Fatta. Had the parties been governed by Muhammadan Law the widow of the pre‑deceased brother would not have received any share. These instances in the family of Fatta himself are almost conclusive on the question that Fatta and his family are governed by the Customary Law of the Punjab, and that the personal law has no application in their case. There are three judicial instances wherein it has been held that Bhatti Rajputs of Rawalpindi are governed by Customary Law. The details relating to these instances are given in the e judgment of the High Court at page

91. It is thus clear that the defendants have produced overwhelming evidence in favour of the applicability of Customary Law to the estate of Fatta. In rebuttal the plaintiff has produced two witnesses, who are persons of no status, and they have deposed that Bhatti Rajputs of Rawalpindi Town are governed by their personal law. This evidence is of such a flimsy character that it has simply to be read to be discarded. The counsel for the appellant relied on the case of Firoz Din v. Hussan Din (A I R 1938 Lah. 107) and contended that if members of a dominant agricultural tribe migrate to a town and do not live amongst the village communities, there is no presumption that they are governed by Customary Law. The case on which reliance has been placed is not even remotely applicable. There is no evidence in the present case that Fatta had given up agricultural pursuits. On the other hand, the very plaint shows that he possessed a considerable area of agricultural land. It had never been held that the mere residence of a member of an agricultural tribe in a town establishes that he has discarded the Customary Law and that he would in future be governed by a law different from that governing the other members of his tribe in the same district. We have, therefore, no hesitation in holding that Fatta and his family are governed by Customary Law. If Customary Law is applicable, there can be no question' that a male proprietor has unfettered powers of alienation in respect of his non‑ancestral property by sale, gift, or will. At the conclusion of his arguments, it was stated by Mr. Kaikaus that the whole of the estate of Fatta did not form the subject‑matter of the will, and that there were some items of property which were not mentioned in the will. He urged that in respect of property not mentioned in the will it was a case of intestate succession, and that such property should devolve in accordance with the provisions of Muhammadan Law. This question was not raised by the plaintiff‑appellant in the trial Court or in the High Court. It was not even mentioned in the grounds of appeal to this Court. The question is purely one of fact, that is, whether Fatta died possessed of any property which has not been included in the will. A question of this type cannot be allowed to be raised for the first time in this Court. There is no force in this appeal and we therefore dismiss it with costs of this Court. The costs of the Courts below will be borne by the parties as directed by the High Court. Appeal dismissed.