P L D 1949 Lahore 441 (PLP)

(4) Whether sale by defendant No. 2 in favour of defendant No. 4 is fictitious, if not, its effect? (5) Whether the suit is properly valued for jurisdictional purposes? (6) Whether the plaintiffs are estopped from suing? It may be noted that the fourth issue was necessitated by the fact that, subsequent to mutation in his name, Pehlwan, defendant No. 2, had sold a part of the property in dispute to defendant No. 4 On the second issue, the learned trial Judge held that the adoption of Pehlwan by Naurang had been proved. On the first issue it was held that the parties' family having migrated from Jhang must be presumed to have carried with them the customs of Sayals residing in Jhang district. It was further held that Sayals of Jhang district did not recognize adoption at all. The contention of the defendants as to their being governed by the customs of Multan district was repelled. It was, however, also held that, even if the custom of Multan district was to be applied, according to the entries contained in the latest Riwaj‑i‑am of that district. Muhammadan tribes did not recognize adoption. On behalf of the defendants, reliance was placed on the Customary Law of Multan district as compiled at the Second Settlement. The learned Judge held that the same had been abrogated by the Customary Law, compiled at the latest Settlement. He was, however, also of the opinion that even the Customary Law of Multan district as compiled at the Second Settlement could not help the defendants because according to it, only kinsmen could be validly adopted and Pehlwan was not a kinsman of the deceased Naurang. On the third issue it was held that Mst. Dullan could not validly make a gift of the property inherited by her from her husband in favour of Pehlwan. The fourth and the fifth issues were also decided in the plaintiffs' favour and in the result their suit was decreed. On an appeal by the defendants the learned Senior Subordinate judge upheld all the material findings of the learned trial Judge and affirmed the decree passed by him. It may be noted that on first issue the finding of the learned Senior Subordinate judge was that the parties were gover ned by custom in matters of adoption. The disputed adoption was, however, held to be invalid on the ground of Pehlwan not being the kinsman of Naurang. The learned judge did not come to a clear decision as to whether the parties were governed by the custom of Sayals of Jhang district or by that of Sayals of Multan district. He noticed that according to the Customary Law of Jhang district among Muhammadan tribes the custom of adoption did not exist. Holding, however, that even according to the Customary Law of Multan district adoption only of a kinsman amongst Sayals was permitted, he held the adoption in dispute to be contrary to that custom. The defendant feeling aggrieved from the decree of the learned Senior Subordinate judge have come UP in second appeal to this Court. On behalf of the appellants, Mr. Chona's main contention was that the land in dispute being admittedly non‑ancestral and the factum of adoption having been held proved, section 7 of Act II of 1920 was an absolute bar to the plaintiff's right to contest the appointment of Pehlwan as an heir to the suit‑land on the ground of the appointment being contrary to custom. He urged that having decided the question of the factum of adoption in the appellant's favour the learned Senior Subordinate Judge ought to have dismissed the plaintiffs' suit, even though under the custom Pehlwan was not eligible for adoption by Naurang. In reply to this argument of the learned counsel for the appellant Mr. Shamair Chand for the respondents contended that section 7 applied only where there was a custom of adoption but the particular adoption was alleged to be contrary to that custom, and that the aforesaid action had no application where the plaintiff came into Court alleging that no custom of adoption at all existed amongst the parties tribe and therefore the alleged adoption was wholly inoperative and ineffectual. The question whether the operation of section 7 is confined to cases where the custom of adoption to appointment of an heir in the parties tribe is recognized and the dispute is only with regard to the validity under that custom of the particular adoption or appointment or it also extends to cases where no custom of adoption or appointment of an heir at all exists, is not altogether free from difficulty. However, after hearing the learned counsel for the parties I feel inclined to agree with the conten tion put forward by Mr. Shamair Chand. Section 3 of Act II of 1920 provides: "This Act shall apply only in respect of alienations of immovable property or appointments of heirs made by persons who in regard to such alienations or appointments are governed by custom." It seems necessarily to follow from the above passage that the act cannot be applied to cases where the custom of appointment of heirs does not obtain amongst the parties at all, because in such cases, the parties cannot be said to be governed by any custom in regard to such appointments. In case of people whose personal law does not recognize adoption or appointment of an heir, and who are not found to follow any custom sanctioning adoption or such appointment, the adoption or appointment, if made cannot and does not confer on the adoptee or appointee any legal status and does not give him any right to succeed to the property of the adopter or appointer on the latter's death. The adoption or the appointment in such a case really does not exist in the eyes of law and has to be simply ignored. A suit for a declaration that such an adoption or appointment of an heir will not affect the plaintiff's right to succeed to the property of the adopter or appointer on his death cannot be regarded as a suit to avoid or set aside the adoption or appointment, for the simple reason that the adoption or the appointment does not require to be set aside. The plaintiffs in such a case cannot be regarded as attacking the adoption or the appointment on the ground of its being' opposed to any rule of custom because no custom on the subject exists. In some cases decided before the enactment of Act II of 1920 and with reference to Article 118 of ‑the Indian Limitation Act, it was held by the Chief Court that the aforesaid Article was not applicable to cases where a person whom neither personal law nor custom permitted to make an adoption chose to go through the form of adopting or appointing an heir. The ratio decidendi of these cases was that the alleged adoption mentioned in the Article had to be a transaction by a person with inherent right to adopt which was challenged as invalid on some ground of law or custom which did not go to the length of asserting that the adoption as an adoption was wholly impossible. In the view of the learned judges who decided these cases an adoption unknown to the personal law of the adopter which had no legal inception and did not displace or threaten to displace the right of succession of heirs did not require to be avoided. The language of Article 3 of Act I of 1920, is not materially different from that of Article 118 of the Indian Limitation Act and on principle I see no reason to suppose that the scope of the former is wider than that of the latter. Section 7 of Act II of 1920 is simply intended to restrict the powers of reversioners to file suits to contest alienations or appointments of heirs which are contemplated by Act I of 1920 and for which limitation is provided by the said Act. Where the suit is one which is outside the scope of Act I of 1930, it must be held to be equally outside the scope of the restrictive provisions contained in Act II of 1920. Mr. Chona laid stress on the fact that the learned Senior Subordinate judge had found the parties to be governed by custom in the matter of adoption and contended, that even if Mr. Shamair Chand's interpreta tion of section 7 were accepted, the present suit did attract the application of that section because the plaintiffs had been granted a decree, not on the finding that the custom of adoption did not obtain amongst the parties, but on the finding that the adoption of the appellant Pehlwan was invalid by reason of its being opposed to custom which allowed adoption or appointment only of a kinsman which the appellant was not. There is force in this contention of Mr. Chona and if it can be held that the custom of adoption or appointment of an heir does obtain amongst the parties, the appointment of Pehlwan cannot be held to be invalid by reason of his not being eligible for appointment under the custom applicable to the parties, inasmuch the suit land being non‑ancestral section 7 debars the plaintiffs from contesting the validity of the appointment on any such ground It was, however, very vehemently urged by Mr. Shamair Chand for the respondent that the learned Senior Subordinate Judge was not right in holding that the parties were governed by custom in the matter of adoption and that he ought to have held that the custom of adoption or appointment did not obtain amongst them. He conceded that if the custom of adoption is found to exist, the particular adoption now in question cannot be challenged on the ground of the ineligibility of Pehlwan for adoption under custom governing the parties. The real question, therefore, that requires determination in this case is whether or not the custom of adoption or appointment prevails in the parties' tribe. It is not disputed that the family of the parties originally belonged to Jhang District and that they migrated to Multan District some generations ago. On the materials on the record; it is not possible to fix exactly, or even approximately, the point of time when the migration took place. Quite irrespective of the time when they left their original home, normally, the parties should be presumed to have carried with themselves, the custom which governed them before they migrated from Jhang and to have retained that custom even while settled in Multan District. The presumption is, of course, rebuttable, but in the present case no special circumstances have been proved to rebut it. The answer to question' 85 in the Customary Law of Jhang District shows that the custom of adoption or appointment of an heir does not exist amongst the Muhammdan tribes of that District The general presumption in favour of a customary power of appointment of an heir is confined by paragraph 35 of Rattigan's Digest of Customary Law only to agricultural tribes in the central and eastern‑parts of the Punjab. I have been unable to discover any reported case in which such power may have been found to exist amongst Muhammadan agriculturist residing in the western parts of the Province. No evidence worth the name has been led to rebut the entry in the Customary Law of the District. The oral evidence on the subject is extremely meagre, vague, unconvincing and unsatisfactory. No instances of adoptions amongst any of the Muhammadan tribes of Jhang have been proved. It is true that Sayals have a Hindu origin. They, however, embraced Islam more than three centuries ago and have since then been living in those parts of the Province where the inroads by Hindu Customs and usages in the domain of the Muslim Law have not been quite as serious as in the Central and Eastern Districts. I am, therefore, of the opinion, that the defendant has failed to prove that the custom of adop tion or appointment of heir existed in the parties' tribe. Mr. Chona did not contend that the custom of adoption or appointment of any heir existed amongst Muhammadan agriculturists of Jhang District. His con tention was that the parties had, after migration, adopted the customs and usages of Multan District and that according to the custom of Multan as recorded in the Customary Law of that District compiled by Sir Charles Roe at the Second Settlement, the practice of adoption did prevail amongst Muhammadan agriculturists of the said District, particu larly those of Kabirwala Tahsil which at the time of the said Settlement was known as Serai Sidhu Tahsil. A reference to the answer to question 50 of the said Customary Law shows that there was a general statement made by all Muhammadans that adoption was not recognised amongst them. However, is the notes underneath the answer, Muhammadans of Serai Sidhu purport to have stated that adoption was practised amongst them, that it might be either verbal or written, but that the adopted son had to be a near kinsman. It is true that in Customary Law of Muslim District as compiled at the latest Settlement we have an un qualified statement that amongst all Muhammadans custom of adoption or appointment of an heir is not recognised and no exception is made in favour of Muhammadan tribes of any particular Tahsil. I, however, feel inclined to attach greater importance to the record of custom compiled at the second Settlement, inasmuch as it differentiated between the customs prevailing in different parts of the district and gave greater details as to the results of the enquiries made than are to be found in the Customary Law of the latest Settlement. Mr. Shamair Chand; in support of his contention that the entry in the latest Cutomary Law should be pre ferred, drew my attention to the statement' in the perface thereof that very elaborate and exhaustive enquiries had been made by the Settlement Officer and all available and relevant instances had been collected. How ever, under the answer to question 84, which stands for question 50 of the Customary Law compiled at the previous Settlement, no instance are mentioned and it is otherwise not possible to discover any basis for the change in the statements as to the custom of Muhammadan tribes in the matter of adoption. Nor has any explanation been offered for the omission to refer to the answers given by the Muhammadan tribes of different Tahsils at the time of the earlier Settlement; If on the materials on the record, I could possibly hold that the parties' family were governed by the custom prevailing in Multan District, I should have had no difficulty in accepting the record of custom contained in the Customary Law of the Second Settlement and holding that the custom of adoption did exist amongst them. However, on the evidence I do not find it possible to hold that the custom which they followed before their migration from Jhang to Multan District has been abrogated and the custom prevailing in Multan district has been adopted in its place. There being no evidence worth the name to rebut the presumption attaching to the entry in the Customary Law of Jhang I cannot but hold that the custom of adoption or appointment of an heir has not been proved to exist amongst the parties. In the end Mr. Chona contended that, in any case, even if the appel lant was not entitled to succeed to the land left by Naurang as his adopted son, he had a right to succeed to the same under the bequest left in his favour by‑the said Naurang, and in support of this contention reli ance was placed on the statement purporting to have been made by Naukang at the time of reporting to the patwari the gift of half of his land. In that statement, he purported to have said that after his death the rest of the property should devolve on Pehlwan and that his collaterals should have nothing to do with it. The alleged bequest was specifically mentioned in the written state ment. It is a pity, however, that no specific issue on this subject was framed. The matter appears to have been urged before the learned Senior Subordinate judge. The learned judge, however, disposed of it summarily with the following remarks:-- "This statement before the patwari cannot be regarded as a will and no authority has been shown to me that it should be regarded as such." The learned Judge has not expressed any opinion as to whether the statement had been proved to have been actually made by Naurang before the patwari, nor has he expressed any opinion as to whether the words purporting to have been used by Naurang did amount to a testamentary disposition of his property. He appears to assume that there were some a priori reasons for not regarding a statement made before a patwari as a will. There are no such a priori reasons. The ques tion whether a particular statement does or does not contain a‑ bequest or a testamentary disposition is a question of fact to be decided in each case with reference to the words actually used in the statement regardless of the person to whom the statement was made. However, on the record there is no evidence to prove that Naurang actually made the statement which he purports to have made to the patiwari on the 13th April, 1924. Mr. Chona complains that this was due to the absence of any issue on the subject. There is considerable force in this contention. The plea of bequest having been specifically raised in the written statement the learned trial judge ought to have framed an issue regarding it. The plea was passed before the learned Senior Sub ordinate judge and has been reiterated in the grounds of appeal filed in this Court. I am of the opinion drat the appellant is entitled to an enquiry into this question. Before finally disposing of this appeal there fore, I think it proper to frame the following additional issues and to remit them for trial to the learned trial judge who should record such evidence on these issues as the parties may like to produce and should then submit his findings along with the evidence through the learned Senior Subordinate judge, who should also give his own findings on these issues. The additional issues are :‑ (a) Whether Naurang deceased made a bequest of the land in dis pute in favour of Pehlwan? (2) If so, how does that bequest affect the present suit? The case is remanded to the learned trial judge under Order 41, rule 25, Civil Procedure Code, with the above directions. The findings on the additional issues to be submitted to this Court within three months. The parties will file their objections, if any, to those findings within ten days of the receipt of the report whereafter the appeal will be set for hearing. The parties have been directed to appear in the trial. Court on the 29th April, 1946. K. M. A. Case remanded.