1969 PLP 953 (SCMR)

Nemo for Respondents. Date of hearing : 12th October 1967. HAMOODUR RAHMAN, J.‑This is a petition for special leave to appeal from a judgment and order of a Division Bench of the High Court of West Pakistan, Lahore, dismissing a regular second appeal. The said appeal arose out of a suit filed by the petitioners for a declaration that a gift of land made by their brother Ali Ahmad (respondent No. 2) in favour of his sister's daughter by means of a registered deed of gift executed on the 19th December 1955, was invalid, on the ground that under customary law the donor was not competent to transfer it by means of a gift to such a female relation. The respondents contested the suit alleging that although they were governed by custom the property was not ancestral and that the custom of their tribe permitted such a gift. The trial Court, however, held that the gift was invalid and decreed the suit. On appeal, the District Judge took the view that the properties were ancestral but held that their local custom did permit the making of such a gift in favour of sister's daughter. The decree of the trial Court was, therefore, reversed and the suit was dismissed. In the High Court in second appeal the only point agitated was that regarding the power to make such a gift under the custom by which the parties were governed. The parties were Jats and the High Court on a reference to the District Riwaj‑e- Aam and the answer to question No. 107 of the General Code of Tribal Custom in the Jhelum District as reproduced in the book published by P. N. Thapar, 1946 Edition, also came to the conclusion that the tribal customs of Jats in the Jhelum district permitted the making of such a gift and affirmed the decision of the learned District Judge. The petitioners now seek special leave to appeal and contend that the High Court has not properly construed the answers to question‑No. 107, particularly, since it has failed to notice that no instance has been cited therein of a gift in favour of a sister's daughter being held to be valid. There is also no specific illustration regarding the Jats. The contention raised is, in our opinion, not entirely withou foundation, for, it does appear that the answers to question No. 107 in the book referred to above by the High Court furnishes no clear indication of the fact that there was any such custom amongst Jats of Jhelum district which permitted the making of a gift in favour of a sister's daughter. This, in our opinion, raises a substantial question of law of some general importance. We, accordingly, grant leave in this matter as prayed for to examine the above question. Security Rs. 1,

000. Leave granted.