P (PLP)

S. A. RAHMAN, J.‑The facts giving rise to this Letters Patent Appeal are as follows. One, Nathe Khan, a Bhakral Rajput of village Malot Bhakral, Tehsil Gujar Khan, District Rawalpindi, made a gift of his lands to his daughters, Fazal Bi and Barkat Bi, on 18th May, 1939, by a registered‑deed. On 4th November, 1941, Nathe Khan died. On 12th May, 1945, Khan Muhammad, a nephew of the deceased, sued for a declaration under custom that the gift in favour of the daughters would not affect his reversionary rights after the death of Nathe Khan's widow, Kamla Bi, who was still alive. He claimed the property in question to be ancestral qua him and alleged that Bhakral Rajputs of Gujar Khan Tehsil were not authorised by custom to make alienations by way of gift. The trial Court decreed the plaintiff's suit and the Court of first appeal agreed with that decision. A second appeal taken to this Court on behalf of the daughters also failed, having been dismissed by a learned single judge of this Court. The daughters have, therefore, presented this appeal under clause 10 of the Letters Patent. There are concurrent findings of the Courts below to the effect that the property involved in this appeal is ancestral qua the plaintiff respondent. Learned counsel for the appellants tried to attack this finding but, in our opinion, unsuccessfully. The trial Court, it may be noted, had refused to grant a declaratory decree with regard to 3/8th of khasras Nos. 509 and 529 which area was held by it to be non‑ancestral in character. It decreed the plaintiff's suit in respect of the rest of the land. This finding was affirmed by the Courts of first and second appeals, and no good reason has been shown to us for differing from their opinion. We would, therefore, proceed on the assumption that the property now in dispute is ancestral qua the respondent. The Riwaj‑i‑Am of Rawalpindi District compiled in 1910 contains an entry which goes against the daughters. Question 40 in this Riwai‑i‑Am and its answer are recorded as follows; so far as the present case is concerned. "Question 40.‑Can a proprietor, having no male issue, make a gift, or not ? Answer.‑Bhatti, Rathial, Pakhral Rajputs and Mughals reply that no gift can be made even if there be no sons, and Koreshis allege the same custom". It is agreed before us that the custom, as thus recorded, is at variance with the entry in the older Riwaj‑i‑Am of 1887. Ins answer to a similar question numbered 40 in that Riwaj‑i‑Am, the answer attributed to Ghakhars, Pathans, Rajputs, Jasgams, Awans, Jats, Malliars, Hindus and Bhabras was that a proprietor, having no male issue, had the power to make a gift. Mr. Muhammad Amin on behalf of the appellants has contended before us that the custom had not changed since the compilation of the older Riwaj‑i Am and, therefore, the later Riwai‑i‑Am entry should not be preferr ed to the former. It is, however, well‑settled that an entry in the latest Riwaj‑i‑Am is sufficient to raise a presumption in favour of its correctness, even though it may be unsupported by instances. In the present case, at page 69 of the 1910 Riwaj‑i‑Am, a specific instance of Pakhral Rajput Fateh Muhammad by name, who was sonless, gifting his property to his brother's son and son‑in‑law is given and it is mentioned that Nawab Khan and Fazal Khan; his brothers brought a: suit in Rawalpindi as a result of which the gift was cancelled. On the basis of the entry in the latest Riwaj‑i‑Am, therefore, the onus was clearly on the daughters to prove that they' were preferential heirs in competition with the respondent who is a. nephew of the last male owner. This burden, however, is a light one, as the entry adversely affects the rights of females .who had very little opportunity of appearing before Revenue Officers to assert their claims at the time when tribal customs came to be investigated. The burden becomes lighter still when we remember that the older Riwaj‑i‑Am of 1887 upheld the power of gift among Rajputs. A distinction appears to hay c been made in this regard in the Courts below between the entries in the two Riwaj‑i‑Ams on the ground that the older entry was a general one, whereas the entry in the later Riwai‑i‑Am specifically pertained inter alia to Pakhral Rajputs which was the tribe of the last male holder. In the present case, this distinction does not appear to be weighty, as the Compiler of the 1887 Riwaj‑i‑Am has given a prefatory note to his compilation, in which he has mentioned that under the head 'Rajputs' several tribes had been included, among them being Bhakrals. It is no longer disputed, before us that Pakhrals and Bhakrals are the same. Another circumstance, which would make the onus placed on the daughters, easy to displace, is that in both the Riwaj‑i‑Ams the power of testa mentary disposition, even among Pakhral Rajputs, is‑mentioned as existing. Reference may be made to the answers to Questions 37 and 38 of the 1910 Riwaj‑i‑Am which make it clear that among Pakhral Rajputs a proprietor can make a testamentary disposition of his property without the consent of the heirs. The answers recorded in the. older Riwaj‑i‑Am of 1887 under Questions 37 and 33, are in similar terms. There is ample authority for the proposi tion that the power of testation is a later development generally than the power of gift inter vivos among tribes governed by custom. Reference may be made in this connection to the decision of this Court in Mirza Khan v. Muhammad Benaras (P. L. R. 1951 Lah. 27) and to the judgment of Chatterjee J., in Mst. Bano v. Fateh Khan, 48 P. R. 1903. That the two powers are generally co‑extensive wits also laid down in Wali Dad v. Mst. Imam Khatun (A. I. R. 1938 Lah. 527, D. B.) and Mst. Nadran v. Muhammad Hussain (A. I. R. 1931 Lah. 450). In these circumstances, we are of the opinion that in the present case the onus can be shifted by the daughters with the proof of a few instances in their favour. Besides the instance mentioned at page 69 of the later Riwaj‑i‑Am, the respondent also relied in the trial Court on a previous judgment of that Court, copy of which is Exhibit P‑5. This was a case decided on the 15th November, 1945, but it is not known whether the matter was agitated in appeal or not. In that case, one, Shahamad, had gifted the suit land in favour of his married daughter. He was a Bhakral Rajput of Gujar Khan Tehsil. The learned Sub‑Judge mainly relied on the entry in the latest Riwaj‑i -Am of the District and held that, although the donees had proved tour instances of gifts being upheld, they had not succeeded in discharging the onus that lay on them. The case was, therefore, decided principally on the question of onus. Considering that the older Riwaj‑i‑Am unequivocally upheld the power of gift among Rajputs, including Bhakrals, in our judgment, the proof of four instances on behalf of daughters in favour of the power of gift should have been held sufficient to shift the onus to the other side. As it is, the judgment in question contains intrinsic evidence of four mutations of gifts in favour of daughters being upheld in two of which, mutation had been sanctioned despite contest by collaterals. We consider that the four instances mentioned in the judg ment Exhibit P‑5 may be availed of by the appellants in the present case: It is also noteworthy that in the Riwaj‑i‑Am of 1887'it is also mentioned that instances were given in some cases in support of the custom alleged in answer to Question 40, though, unfortunately; no actual instances are cited. Another instance was proved on behalf of the daughters in the trial Court which is evidenced by a copy of a mutation Exhibit D‑1.. In that case, one, Karam Dad, a Bakhral Minhas (Minhas being a sub‑tribe of Rajputs) had gifted part of his property to his daughter, Gul Begam, in the year 1925. The‑circumstances in which the gift was made are brought out in the evidence of D. W. 1 Khan Gul. He deposed that, when the gift was made, the donor's four brothers were alive. There is nothing to repute his statement on the file. Unfortunately, he does not seem to have been questioned as to whether the property involv ed in that case was ancestral or non‑ancestral. It is to be observed, however, that the Riwaj‑i‑Am of 1910 makes no distinction between ancestral and non‑ancestral property as regards the power of gift. See the answer to Question 42 in this respect. The ins tance, therefore, should be regarded as a valuable one in favour of the power of gift. The net result is that the daughters can claim five instances in their favour, four being evidenced by the document Exhibit P‑5 and one by Exhibit D‑1. In another case of Dhanial Rajputs of Gujar Khan Tehsil, it was held that a son less proprietor can gift ancestral property in favour of his daughter. See Nizam Din v. 141st. Faxal Nur (A. I. R. 1939 Lah. 259). Rawalpindi is one of the western districts of the Punjab anal it is well‑known that these western districts have been more influenced by Muhammadan Law than the central districts of the Punjab. The daughter's rights are therefore regarded with more consideration in these districts as compared with those where the agnatic theory of custom is applied in all its rigour. Considering that the older Riwaj‑i‑Am is in favour of the competency of the gift and that there are five instances of Bhakrals and one of Dhanial Rajputs in favour of the daughters as against the two marshalled by the respondent and all the other circumstances detailed above, we are of the opinion that the onus, which lay on the daughters to disprove the correctness of the entry in the 1910 Riwoj‑i‑Am, had been successfully discharged. It was laid down by a Division Bench of this Court in Subedar Kesar Singh v. Achhar Sigh (A. 1. R. 1936 Lah. 68) that the earliest Riwaj‑i‑Am Serves as a very useful check on subsequent Riwaj‑i‑Ams and may even be regarded as the most important document in which custom has been recorded. In these circumstances, we hold that the daughters had made out a good case. We allow the appeal and setting aside the orders of the Courts below, dismiss the plaintiff's suit with costs through out. A. H. Appeal allowed.