P L D 1949 Lahore 256 (PLP)

Khuda Bakhsh (D. W. 3) stated that he went to the house of Fatta to inquire after his health as he was suffering from Asthma and sinking of heart. The will was written in his presence and he attested it. It was read out to the testator. He agreed to it and thumb-marked it. The description and the details of the property were supplied by Fatta to the scribe. In cross‑examination it was admitted that Fatta was sailing for a long time and had become very weak. His heart was sinking and he felt uneasiness. He reached the place at about b p. in he will was written in his presence. Whatever Fatta was saying, it was being recorded directly and this thing continued for about four hours. During all this time Fatta kept sitting and giving instructions. The plaintiff objected at the time that he was opposed to the will as he alone was the heir. Fatta retorted that he would give nothing to Fazal Dad plaintiff, but he would give something to his sons. Allah Bakhsh (D. W. 4) is an overseer and presumably a respectable man. He knew Fatta for the last twenty years or so. Fatta was in his senses at the time of the making of the will. He reached the house at about 6‑30 or 7‑0 or 7‑30 p.m. The will was being scribed then. Fatta continued to live for four days after the execution of the will. On one occasion long before, he too had purchased some property from Fatta and Mst. Fazal Nishan. In cross‑examination he disclosed that Fatta was suffering from Asthma and one Dr. Shah was treating him and after that Dr. Jagan Nath treated him. Nobody, however, suggested that some medical man might be called to testify to the mental condition of Fatta. The will was being written when the witness reached there, but he could not tell at what stage he reached there, Fatta was speaking and the scribe was writing. Fatta talked for about one‑and‑a‑half hours in his presence. The witness kept quiet during all this period. Muhammad Umar and Khuda Bakhsh D. Ws., were already there.' The witness himself left at about 9 p. m. leaving behind the scribe. The Sub‑Registrar Capt. Muhammad Sadiq was examined by inter rogatories as he was then at Lahore Cantonment. He stated that he knew Fatta already. Fatta was in possession of his senses. He admitted the will to be correct and signed it. He admitted that he remained a tenant of Fatta for about six months but this tenancy terminated about a year before the will was registered. The Sub‑Registrar was very closely questioned as regards another receipt, Exh. D. X. which was said to have been executed some months later at the house of the Sub‑Registrar and to which the plaintiff affixed his thumb‑impression. This was a receipt for Rs. 790 alleged to have been paid to the plaintiff in accordance with the directions in the will. This shall be dealt with separately. Beyond the fact that the Sub‑Registrar was once a tenant of Fatta for about six months, there was nothing else to indicate that he was out to injure the interest of the plaintiff or to go out of his way to do something for defendants. The will had been completed on the evening of the 28th of June 1941, at about 9 p. m. and there was nothing suspicious of extraordinary if the Sub‑Registrar, was called at the house to register the document. The Sub‑Registrar, may be on account of his old acquain tance with Fatta or for some other reasons, did .not hesitate to come immediately to the house. This fact would not mean that the Sub Registrar was dishonest. Any conscientious public officer would have done the same, and it is very well known that frequently documents like wills must be urgently attended to, I could not discover anything in the whole of the statement of the Sub‑Registrar which might in any way suggest that the Sub‑Registrar was in league with the defendants or had made a common cause with them to defeat the plaintiff. It has been mentioned above that Fazal Dad, the plaintiff himself put his thumb‑impression upon the will in question. On 4th of December 1942, before the issues were framed, the plaintiff was specifically questioned about it. His reply was that his "thumb‑mark was secured on a blank paper Exh. D. 1 (the will)." The thumb‑impression being admitted, it was for the plaintiff to enlighten us about the circumstances under which he put his thumb‑impression upon the document. As his own witness all that he could urge was that about one or one‑and‑a‑half months before his death, Fatta obtained his thumb‑impression "on the pretext of making an application with regard to shamilat land in which I had a share". There is no material upon the record to show that the plaintiff had any share in the shamilat. It was quite easy for him to produce a copy of the revenue entry in proof of this claim. It should not be, however overlooked that an application for the partition of the shamilat could be made by any co‑sharer, and it was not necessary that there should be more than one. This statement would not stand further scrutiny. If Fatta really played a trick upon the plaintiff one or one‑and‑a‑half months before his death, it might mean that Fatta wanted to make a will to which he could not expect the plaintiff to agree and in order to bind him, he got the thumb‑impres sion in a fraudulent manner. Apart from any other thing, it would clearly demonstrate that Fatta was bent upon making a will to the prejudice of the plaintiff. That would at least indicate the intention of Fatta to that effect, and the validity in relation to the law governing Fatta would be considered later. The explanation offered by the plaintiff is most unconvincing. The plaintiff thumb‑marked the document as he was there at the time of the execution of the will and he did so in token of his assent, and more so as one house and some other property was also being given to his own sons. The plaintiff appears to be an improvident man. He had parted with his entire property and was now driving a bullock‑cart to earn a living. It was perhaps not considered safe to give the property directly to the plaintiff, and Fatta, at his own initiative, or on the representation of the plaintiff, consented to give it to the plaintiff's sons. Fatta was, therefore, perfectly in possession of his senses and the plaintiff himself was fully aware of it. Much capital was made of another receipt Exh. D. X. executed on 10th of August 1941. It purported to be on behalf of Fazal Dad Plaintiff in which it was recited that he had received Rs. 350, for Mst. Nur Nishan widow of Chaudhri Fatta and the same sum from Mst. Fazal Nishan widow of Chaudhri Matta, in all Rs. 700, in accordance with the will of Chaudhri Fatta. This receipt was attested by Capt. Muhammad Sadiq, the Sub‑Registrar. It was written by one Abdul Malik, a teacher in a school. The receipt of Rs. 700, half from Mst. Fazal Nishan and half from Mst. Nur Nishan was admitted by the plaintiff as early as 4th of December 1942, but the amount, according to the plaintiff was left in trust with these very persons, Abdul Malik the scribe of the receipt was examined as P. W.

6. He stated that the thumb‑impression of the plaintiff was not taken, nor was any money paid to the plaintiff in his presence. He did not even know the plaintiff, and he had never seen before the plaintiff therein Court. He wrote out the receipt at the house of Capt. Muhammad Sadiq, whose children he used to teach, and the receipt was written at the instance of Capt. Muhammad Sadiq himself. Abdul Malik fully knew at the time that the person on whose behalf the receipt was being written, was not present and his conscience felt satisfied when he was told that the' payment would be made some time after. I am not impressed with this statement. Either Abdul Malik is a fool or he has been got at by the plaintiff. The thumb‑impression upon the receipt was not clear and distinct. It was sent to the Finger Print Bureau for comparison. As far as it could be deciphered, there was several points of similarity with the admitted thumb‑impression of the plaintiff. To my mind this receipt Ex D. X. is not of much value if it was intended to furnish evidence as to the subsequent consent of an heir on the death of the testator to the disposition of property exceeding one‑third under Muhammadan Law. No more need be said about this receipt. The will Exh. D. 1 was perfectly a natural one. The claims of all the persons who looked to Fatta for his bounty were duly considered. His own widow had been provided for, his brother's widow and her children had been provided for, and even the remote heir like the plaintiff was not left without a provision. I would, therefore, hold that the will is a genuine document executed by Fatta in full possession of his senses and with a disposing mind. The next question that rises for determination is whether Fatta was governed by custom or by Muhammadan Law. The onus of proving the application of the Shariat in matters of alienation and succession was wrongly placed upon the plaintiff. In all cases an initial presumption shall arise that the parties are governed by their personal law, and any person setting up a custom different from and in derogation of, the personal law must prove it. The burden was, therefore, upon the defendants to prove satisfactorily that Fatta or his family or tribe was governed in matters of alienation and succession not by Muhammadan Law but by custom. I shall now proceed to deal with the evidence of the point. There are some instances of inheritance in this very family. On the death of Matta, a brother of Fatta, his entire estate was inherited by his widow Mst. Fazal Nishan. The mutation is Exh. D. 68 and was sanctioned on 17th March 1925. According to Muhammadan Law the widow should have got only one‑fourth and three‑fourths should have been sanctioned in the name of Fatta. Similarly, on the death of one Pir Bakhsh, his sons succeeded to the estate to the exclusion of the daughter. The mutation was sanction on the 31st of August 1929, and is marked Ex h. D,

65. Exh. D. ‑67 is the mutation order of the property of Budhu, another brother of Fatta. It was sanctioned on 21st June 1927. One‑half was mutated in the name of his brother Fatta and the other half in the name of Mst Fazal Nishan, the widow of Matta,. a pre‑deceased brother of Fatta. The widow was given the right to succeed to the share, her husband would have succeeded to. According to personal law Fatta might have got the whole of the property. These instances would, therefore, leave no room for doubt that in the family of Fatta itself, the widow never succeeded in accordance with the personal law but got the usual estate known to customary law. Fatta, as stares earlier, was a Bhatti Rajput. There are on the record some judicial instances where Bhatti Rajputs were held to be governed by custom ii: matters of alienation. On the death of one Badar Din, a Bhatti Rajput of Rawalpindi on 12th February 1912, his estate was mutated in favour of his mother and his widow and a minor daughter. It consisted of agricultural land aged some houses. Mst. Daulo Bibi, the mother, sold one of the houses 'The plaintiffs, who claimed to be the reversioners of Badar Din in the fifth degree, brought a suit for declara tion on the usual grounds that the alienation was without consideration and necessity. The learned District judge, Rawalpindi, on 28th April 1916. granted the usual declaratory decree. On the death of Mst. Daulo Bibi the property sold by her was mutated in favour of the plaintiffs who had obtained the aforesaid declaratory decree. Again one Karamat Hussain, a Bhatti Raiput of Rawalpindi, sold some land upon. which the plaintiffs who were his collaterals brought the usual suit. One of the issue tried in the case was whether the plaintiff'; family was governed that this by agricultural custom was so. The decree was granted by the Senior Subordinate Judge, Rawalpindi, on 16th of October 1935. A similar question arose again in another suit before the Senior Subordinate Judge, Rawalpindi, in 1940. The then learned Senior Subordinate judge by his order, dated 5th of March 1941, held that the parties were governed by customary law. An appeal against this was taken to the High Court. The finding as to the applicability of custom was affirmed by Dalip Singh, J., on 10th of April 1942. There was no evidence in rebuttal, oral or documentary, produced by the plaintiff. It would thus be evident that the Bhatti Rajputs of Rawalpindi have in some of the cases which‑came to the Court, been held to be governed by customary law and not by their personal law. Fatta was a Bhatti Rajput and there is nothing to indicate that he did not follow the custom of other members of his own tribe. Custom is usually tribal and not a family one. For that reason too Fatta should be taken to be governed by the same custom which ruled the other members of the tribe living in the same locality. The learned counsel for the respondent vehemently urged that the initial presumption of the applicability of personal law had not been rebutted in this case by the defendant‑appellants ; that the parties were residents of a town and were not proved to have had any connection with a village community, and in support of his proposition relied upon A I R 1947 Lab. 642 ; A I R 1930 Lab. 695 ; A I R 1936 Lab. 107 and A I R 1942 Lab.

167. A I R 1927 Lab. 642 is a case of Kambohs residing in Lahore. The question was whether there was any presumption in favour of restricted powers of alienation in the case. It was held that "the presumption in favour of restricted power of alienation applies to members of agricultural tribes who are members of village communities. But where a family, though member of an agricultural tribe, 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 occupa tion and means and source of livelihood, no initial presumption exists" The same proposition was affirmed in A I R 1930 Lab. 695, a case of Mujawars of the shrine of Data Ganj Bakhsh, Lahore and in A I R 1938 Lab. 107, a case relating to Arains of Lahore, who had altogether drifted away from agriculture. A I R 1942 Lab. 167 has no relevancy. It appears to have been cited with a view to show that a judicial decision would be a relevant one, if based upon an instance. The cases referred to above do not really touch the matter to dispute. In these cases the question was whether it could be presumed that the powers of alienation of some property were or were not restricted, and it was laid down that the presumption of restriction of powers could only arise where the alienor was a member of some village community engaged in agriculture. This proposition is unexceptionable. In the case before us the question involved is a little different. The question is not whether the powers of alienation were or were not restricted ; the question is whether Fatta was to be ruled by personal law in matters of alienation or not. It was nowhere laid down that where a title, as a matter of fact, has been proved to have been governed by custom in the past, it should not be so governed in future. These decisions might have been of some force of value if there had been no judicial instances in favour of the fact that Bhatti Rajputs of Rawalpindi are governed by custom. Even a family or a tribe not connected with agriculture and not having had ever anything to do with agriculture, would still be governed by custom, if it is proved as a fact that custom is the rule of decision and not their personal law. The burden no doubt would be heavy. The Bhatti Rajputs of Rawalpindi City have been proved to have followed custom both in matters of succession and alienation. The property in this case is not ancestral qua the plaintiff. Custom does not recognise any distinction as to the mode in which an alienation is effect ed. It may be inter vivos or one to take effect after death. In other words, there is no distinction maintained between a gift and a will. A non‑ancestral property could be alienated at the mere will and pleasure of a mile owner and no person would have a right to object to it. The result of the above discussion is that Fatta, as a member of the Bhatti Rajput tribe, was a follower of custom in matters of succession and alienation, and as the property was non‑ancestral, he could will it away in any way he liked. The will has been proved to be a valid and a genuine document, and it must take effect with full force. I would, therefore, accept this appeal, and set aside the judgment and decree of the lower Court. In view of the fact that the question involved was a fairly intricate one, I would leave the parties to beat their own costs throughout. Cornelius, J.‑I agree. A. H. Appeal accepted.