P (PLP)

MUHAMMAD SHARIF, J.-This second appeal by the plaintiff has arisen out of a suit for a declaration under custom. On 28th October 1946, Rehmat Din made a gift of his land in favour of his sister's sons defendants No, 1 and

2. The plaintiff brought the suit for the usual declaration for the property was ancestral and according to custom could not be given away in the presence of a near collateral. Both the Courts below have concurred holding that, according to the custom governing the parties, the gift of ancestral property in favour of a sister's son was valid and the suit and the appeal were dismissed. The plaintiff has now come up in second appeal. The character of the property is no longer in dispute. It was found to be ancestral by the Courts below. It further appears that Faqir Muhammad, the father of the present appellant, and other reversionary brought a suit on 21st December 1946 to contest the gift. This continued till 27th November 1947, when all the evidence in the case had been produced. On that day, one Jumma plaintiff was present in Court. He and Mr. Zaka Ullah, who appeared for the plaintiff, made a statement in Court withdrawing the suit which was consequently dismissed. The suit, out of which this appeal has arisen, was brought on 5th July 1948. Two questions need determination: (1) Whether there is a custom of making gift of ancestral property to a sister's son? and (2) Whether the withdrawal of the previous suit on 27th Nov ember 1947 would bar the present suit? The parties are Chohan Rajputs of Chakwal Tahsil in Jhelum District. The latest Riwaj-i-am was compiled in 1946 by Mr. P. N. Thapar. The subject of "gifts" is dealt with in section VIII at page

92. The relevant Question is

107. As to the disposal of ancestral property by gift, the same reply was given as under Question 102 regarding bequests of ancestral property It so happens, however, that no specific reply on behalf of the proprietors of Chakwal Tahsil is noted under Question 107, though some instances of that Tahsil are cited. It appears to be a case of an inadvertent omission. "Wills and Legacies" are discussed in section VII. The rele vant portions are reproduced below:- Question 102.-Power to make a will-Can a ,proprietor make a disposition of his property (whether agricultural land or houses in village abadi) to take effect after his death:- (a) when the property is self-acquired? (b) When it is ancestral? If the power to will exists, is it limited to any share or part of the property? Answer.-Self-acquired property may be disposed of in any manner as one likes." As to ancestral property, the Mussalman tribes in Chakwal Tahsil stated, "in the presence of male issue not more than 1/8th of the property can be bequeathed to wife, and not more than 3rd to daughters, sisters or issue of both, father and brother or his issue. In the absence of male issue not more than 1/4th of the pro perty can be bequeathed to the wife, but whole of it can be be queathed to other relations mentioned above." According to the answer given by the Mussalman tribes of Chakwal Tahsil, in the absence of a male issue, the whole of the property might be devised in favour of other relations, i.e. there is nothing to prevent the property being willed away in favour of a sister's son, in the absence of a male issue. The custom is therefore, in favour of making a will as regards ancestral pro perty where there is no male issue. The learned compiler has indicated in his "introduction" that wherever the replies differ from the instances collected, the custom, as it actually prevails, has been stated in the form of a notice". Note No. 4 added to Answer to Question 102 runs as follows:- "Now, as at last settlement, many tribes are reluctant to concede rights to a male proprietor of bequeathing ancestral property. But from the instances quoted below it will ppear that there is now- no tribe to which the use of wills is completely unknown". It was contended by the learned counsel for the appellant that this note destroys or reduces the value of the answer given by the proprietors of Chakwal Tahsil regarding the freedom of king a will about the ancestral property. This is not the proper meaning of the note. It appears that many tribes did not in their statements before the Settlement Officer, concede that ancestral property could be bequeathed by a male owner, but the instances were to the contrary. In view of the statement of custom in the Riwaj-i-am, the initial presumption shall be in favour of the power to make a will of the ancestral property. It is up to the plaintiff now to rebut that presumption and to show that the custom was not correctly recorded. The learned counsel for the appellant submits that the initial presumption has been, rebutted by (a) oral evidence produced by the plaintiff, (b) the corresponding entry in the earlier Riwaj-i-am of 1901, and (c) judicial decisions reported as 83 P. R. 1895 and 50 P. R. 1902. The oral evidence is of no value. Four persons have appeared to say that according to their knowledge, no will or gift was ever made. No instance could be quoted one way or the other. These statements could not be sufficient to displace a presumption of correctness arising regarding the statement of a custom in the latest Riwaj-i-am. It might be noted that the witnesses did not more than what their friends or relations had done when they appeared before the Settlement Officer and stated that there was no custom of making a will or gift, though concrete instances were forthcoming. The earlier Riwaj-i-am of 1901 was prepared by Mr. W. S. Talbot, Settlement Collector. Questions Nos. 89, 90 refer to the powers of transfer of ancestral property and the answer recorded is: that ancestral property could not be alienated without the con sent of the reversionary up to the 4th degree. Even the gift in favour of a daughter or her descendants was prohibited. This entry in the Riwaj-i-am was not found to be in accordance with the prevailing custom. There is a long string of judicial decisions where it was held that the custom was not correctly recorded and that gifts or wills in favour of daughters regarding ancestral pro. perty were fully competent. Reference to A. I. R. 1931 Lah. 450 and A. I. R. 1939` Lah. 3212 shall suffice for the purpose. The former is a case of will of ancestral property by a Jat in favour of his daughter. It was observed that the earlier Riwaj-i-am of 1880 was in favour of a will to a daughter-or other person and in spite of this clear entry, most of the tribes were found asserting in 1991 that there was no power of testation. That; in the words of the learned judge, in itself is enough to throw great suspicion on the Summary of Tribal Custom prepared by Mr: Talbot. Mr. Talbot was also held to have shown "his personal bias against the power of alienation." The latter case also refers to the power of making a will in favour of a daughter, by a sonless (Chohan proprietor of Tahsil Pind Dadan'Khan. As the entry in the Riwaj-i-am of Mr. Talbot was against the power of making a will or gift, the initial onus was placed upon the daughter: This was held to have been discharged and the alienation was held valid accord ing to custom. It was rather pointed out that Chohans are a sub-tribe of Rajputs as would be evident from the Gazetteer of the Jhelum District. In both these cases, a large number, of decided cases of the Jhelum District are enumerated where will or gift in favour of a daughter was held valid. The earlier entry in the Riwaj-i-am of Mr. Talbot could not, therefore, be used to rebut the initial presumption in favour of the latter Riwaj-i-am of 1946 on the short ground that the Riwaj-i-am of 1901 itself was found to be not carefully or correctly com piled. 83 P. R. 1895 is a case of Khandia Chohans of Chakwal Tahsil and the alienation by way of will in favour of the daughter was found to be invalid. The learned judges observed : "Wills and gifts do not stand exactly on the same footing, and it is easy to conceive of a state of society in which gifts, followed by, possession, are allowed but wills are not. The power to make dispositions of property after death is a later development of the power to transfer inter was by gift, and cannot be assumed merely from the existence of the latter right." 50 P. I2. 1902 is -a case of gift of ancestral property in favour of a sister's son. The initial presumption, in spite of the Riwaj-i-am to the contrary, was raised against the power of alienation as that was the then prevailing view enunciated in 107 P. R. 1887 (F. B.). Much has taken place since then. The transfer of ancestral property in favour of a daughter in Jhelum District by gift or by will is no longer open to question. During the long interval that has elapsed, there has been either a change in custom or in the approach to custom cases and the value to be given to the entries in the Riwaj-i-am. The cases decided in the year 1895 and 1902 would not be safe guides in finding out the, custom in the year 1948. It should not be overlooked that the presumption against alienation is very strong among the Jats residing in the central districts of the Punjab (old united one). But the same thing is not true regarding Muhammadan proprietors residing in the western district of the Punjab. At page 280 of Rattigan's Digest it is noted: "It has been frequently held that among Muhammadan proprie tors of the western districts the Punjab (which is more under the influence of Muhammadan Law than the, central and eastern districts of the Province), there is an extensive of practically unrestricted power of' alienation in respect of an central property, specifically in the absence of sons". Various Judicial instances are cited in support of this remark: I would, therefore, the Courts below that the plaintiff has failed to entry of custom in the Riwaj-i-am of 1946 it was proved that according to the custom of the gift in favour of a near relation, in the absence be made. In view of this conclusion, the other matter, effect of the withdrawal of the first suit in 1947 loses all and need not be decided. The result is that this appeal is dismissed with costs. A. H. Appeal dismissed.