P L D 1959 (W (PLP)

KAIKAUS, J.-‑‑Muhammad respondent, a Rujput Jodhra of village Ahmadal, Tahsil Pindigheb, District Attock, made a gift of 540 kanals and 15 marlas of land and one house in favour of his two daughters and the minor son of a third daughter by means of a registered deed. In April 1952, Ihtbar Khan, a collateral of Muhammad in the 3rd/4th degree and the appellant before us, filed a declaratory suit challenging the alienation on the ground that the property in dispute was ancestral qua him, and the alienor who was governed by agricultural custom was not entitled to alienate it. The trial Court found a part of the property to be ancentral and the plaintiff to be a collateral of Muhammad respondent, but held that the defendant had unlimited power of alienation and the gift was for services rendered by (to ?) him and dismissed the suit with costs. On appeal the learned District Judge agreed with the trial Court in dismissing the suit on two grounds : (1) that after the amendment of the Muslim Personal Law (Shariat) Application Act in 1951 which made Muslim Law applicable to gifts, a gift of even ancestral property is not liable to be challenged and (2) that the alienor had full power of alienation even under custom. In this appeal by the plaintiff, both these conclusions of the learned District Judge are attacked.

2. So far as the first point is concerned, there is a Full Bench decision of this Cqurt in Bashir Ahmad v. Muhammad (P L D 1956 Lah. 934) wherein it has been held that even the amending Act of 1951, which applies Muslim Law to gifts does not entitle a person governed by agricultural custom to make an alienation of his ancestral land, for his estate which was limited is not improved by the passing of the amending Act. That point, therefore, does not need any argument and none has been addressed to us by learned counsel for the respondents.

3. The only question then that has to be decided is whether the alienor had, under the custom which governs him, full powers of alienation. In accordance with paras. 59 and 61 of Rattigan's Customary Law there is a presumption about the powers of a holder of ancestral property being limited, and the onus was on p the defendant‑respondents to establish their plea of unrestricted powers of alienation. Learned counsel for the appellant relies also on the latest riwaj‑i‑am of the Attock District (1923‑1928), questions Nos. 40 and 41 of which riwaj‑i‑am are reproduced below :‑ " Questions 40 and 41.‑Can a proprietor, having no male issue: make a gift or not ? When a gift can be made, is it essential that the gift be made to one of the near kindred or can it be made to any person without any regard to caste or tribe ? Answers 40 and 41.‑‑A proprietor without sons may dispose of only a reasonable portion of his land, by gift, in the presence of collateral heirs and has full powers to gift his property to whom he will, if there are none but very distant collaterals to inherit. Such gifts are usually made to near relatives in the female line and to daughters' husbands (ghar jawai) residing with the father‑in‑law, and often helping him to cultivate his land. It would be generally admitted by all tribes that a gift of the whole property to a mother or a daughter's sons would have the suport of public opinion if there are none but very distant collaterals ; and also that a gift of a reasonable part of such property to the above‑mentioned members of the proprietor's family would be justified even in the presence of near collaterals ".

4. The riwaj‑i‑am too raises a presumption in favour of the plaintiff appellant and it is for the defendant‑respondents to rebut the statement in , the riwaj‑t‑am. The defendants rely, in the first place, on an instance quoted under the question that relates to alienations other than gifts. I produce below the question and answer :‑ " Question 47‑B.‑As regards alienations, other than gift, what are the powers of‑ (1) a sonless proprietor, (2) a proprietor having sons. " Answer 47‑B.‑Among Awans of Tallagang a sonless proprietor has full power." It will be observed that this answer, while it states that the Awans of Tallagang have full power of alienation, gives no reply in respect of other tribes at all. After this reply it just quotes judicial precedents. The defendants rely upon an instance which is on page

176. In this case there was a sale by a Jodhra Rajput of ancestral property. The sale was upheld by the District Judge on the ground that the alienor had unrestricted powers of alienation. There was an appeal to the High Court which was dismissed. The defendants rely also on Exh. D. 5, a judgment of the District Judge of the 4th of November 1933 relating to Rajput Jodhras which again is a case of a sale. The trial Court had in that case found in favour of unlimited power of alienation relying upon the instances quoted at page 176 of the riwaj‑i‑am referred to above. Exh. D. 6 is another judgment produced by the defendants. It is a judgment of the District Judge of Attock in a case of a gift by a Jodhra Rajput. The gift was upheld by the learned District Judge, relying mainly upon the case at page 176 of the riwaj‑i‑am. Exh. D. 8 is another judgment of the District Judge, dated the 21st of January 1945. It is a case of a sale and relates to the village of the parties. It was held that the village common bond had been broken by the introduction of strangers and there were a number of uncontested alienations.

5. On behalf of the appellant, in addition to questions Nos. 40 and 41 which have already been reproduced, reference is made to quesJon No. 42 at page 139 which reads :‑ " Question 42.‑Is there any distinction between ancestral and acquired property as regards the powers of making gifts ? Answer 42:‑All the tribes, as shown in the answer to the last question, recognise a limited power of gift and the ,general feeling is that, if possible, gifts should be made of acquired property, in preference to ancestral property which should, except in exceptional circumstances, remain in the original line. There would appear to be no restriction on the power of disposing of self‑acquired property, while the restrictions mentioned under the last question apply generally to ancestral lands. This statement differs slightly from the custom as stated at last Settlement, but custom is naturally influenced by the desire for uniformity engendered by the spread of educa tion and increased acquaintance with the general principles of law. Public opinion in such cases constitutes custom, and there can be no doubt that public opinion supports the answer given to this question, though a few masterful persons still attempt to assert their right of absolutely unfettered disposal of all their property." Learned counsel also refers to three instances at pages 120, 133 and 136 of the riwaj‑i‑am. The first is a case of a sister's son and it contains an observation that gift may be made to a daughter or daughter's son which appears to go against the contention of the learned counsel, but learned counsel urges that this only means a gift of reasonable portion and that the instance is inconsistent with the proposition on which the learned counsel for the respon dents relies, namely, that there is an unrestricted power of alienation. In the instance at page 133, a suit challenging a gift was dismissed as the property in dispute was not found to be ancestral. At page 136 there is an instance of a gift to a daughter which was set aide. All these cases are of Jodhra Rajputs. Exh, P. 2 is a judgment of the 30th of October 1930, by a Sub‑Judge of Pindigheb in which a gift by a Jhodra Rajput in favour of a daughter was held to be invalid. There is no discussion in the judgment of the question whether the alienor had unlimited powers of alienation because this plea was not raised at all. The only plea taken was that the gift was valid on account of services rendered, and the trial Court held that the services had not been proved. Exh. P. 4 is a judgment of the District Judge of Attock; dated the 5th of May 1947, relating to Jodhra Rajputs. There was a gift in favour of an unmarried daughter and it was set aside on the ground that it was of more than a reasonable portion of the property.

6. The oral evidence need not be mentioned because it has not been relied upon in either Court. The question is whether the presumption as to restricted power of alienation as stated in Rattigan and the riwaj‑i‑am has been rebutted by the instances produced in evidence.

7. It will be observed that the cases in favour of the defendant‑respondents rely generally on the instance quoted at page 176 of the riwaj‑i‑am. The Courts have attached importance to that instance because an appeal to the High Court against the decree of the District Judge had been dismissed. It becomes necessary therefore to go carefully into the judgment in the case cited at page

176. The judgment had not been placed on the record but we sent for the High Court appeal in that case to which are attached copies of the judgments of the trial Court and the District Judge. The learned Sub‑Judge who tried the suit rejected the plea of unrestricted power of alienation. Following is the relevant por tion of the judgment :‑ "The Jodhras are the principal agricultural tribe in the Pindi gheb Tahsil and every alienation by a male childless proprietor of one of the agricultural clans may be presumed so far as it affects ancestral immovable property to he against customary law. The defendant's counsel says that the presumption is rebuttable by the fact (1) that the original tribal or common village bond has been broken by the introduction into the proprietory body of the village in which the land in suit is, of persons of different independent tribes and religions whose lands all intermix ; (2) that a series of alienations have previ ously taken place in the village without objection and in the presence of collaterals. As regards (1) the defendant has produced a copy of the foundation of the village attached with the pedigree‑table of the village to show that it is a Bhaya Chara Tarafwar village and Khan Mulak, Ghulam Khan D. W. 10, Bhudha Khan D. W. I and Pir Bakhsh D. W. 3 have been produced to state that ever since the foundation of the village there have been several alienations but not a single one has been challenged. It is also said that plaintiff has himself admitted that he does not know of any such alienation in his village which has been attacked. The defen dant has also produced 130 mutations, out of which 94 relate to sales and 34 to mortgages and 2 to gifts which are said to stand unchallenged. " The plaintiff's counsel has pointed out that out of these 60 are for amounts less than Rs. 100, e.g., D/6, D/9, D/10, D/11, D/14, D/15, D/17, D/19, D/20, D/21, D/22, D/23, to D/28, D/30, D/33 to 35, D/38‑39, D/40‑43, D/48, D/51, D/53, D/54, D/67, D/68, D/69, D/75, D/77, D/78, D/79, D/82, D/85, D/86, D/89, D/92, D/93, D/94, D/97, D/100, D/101. D/102, D/103, D/107, D/117, D/118, D/119, D/120, D/125, D/127, D/123, and there are 23 mutations D/44, D/45, D/46, D/57, D/58, D/59, D/60, D/61, D/62, D/63, to 66, D/70 to D/72 and D/99, D/98, D/113 to D/115, D/116 to D/131 which are within six years and time for bringing a suit regard ing them has yet expired. D/84, D/85 and D/97 show that collaterals were present at the time and consented to the alienations. The mutations D/132 and D/133 are about gifts in favour of a religious Pir. The others are about temporary alienations. The full particulars and details of these alienation however have not been disclosed and it is held in P. R. 73 1914 that evidence of this kind is but of little value inconclusives. In the absence of information as to incondensable alienations tie instances cannot be considered of practical was in dealing with questions of the kind involved in this case. P. L. R. 72 of 1914. The defendant has not shown that the lands sold of which mutations have been produced were without consideration. The village is a mixed tenure, Shamilat land is not partitioned. There is no doubt that some other tribes have purchased lands in this village but by the introduc tion of few independent tribes the village bond has not been broken. In 51 P R 1910 there had been a long series of alienations virtually uncontested and th of the village was held by members of a large variety of tribes and section 61 Provisos (2) and (3) Rattigan's Digest shows that the general rule stated in section 59 does not apply in villages where the common village bond has been broken." " The Jodhras are a predominant tribe in Pindigheb Tahsil. The general custom of agriculturists is that no male proprietor can alienate his land without necessity, when that land is ancestral. The defendant has failed to prove that there has been any judicial decision against this custom. The rulings quoted relate to minor tribes or are based on judicial decisions or upon entries in the Wajibularz of that village. I decide this issue against the defendant ". The learned District Judge upset the finding of the learned Sub -Judge and his reasoning is contained in the following portion of his judgment :‑ " The next point considered is the right of plaintiff to contest an alienation made by his father. Parties are Jodhras Rajputs. Their history will be found on pages 78 to 81 of the Gazetteer of the Attock District of 1907. The account shows that the lands of the Pindigheb Tahsil originally belonged to Awans. The Jodhras came in as a small band of military adventurers. The Awans were not evicted but remained on as tenants under the conquering Jodhras. The Jodhras never themselves culti vate. Ownership of the soil vested in the newcomers. In a few villages sub‑division of holdings has gone so far that the Jodhra is compelled to work for a living but the great majority cultivate through tenants. Their love of sport and their abstinence from cultivation are still in the opinion of the country side the proper characteristics of Jodhras. It appears to me that under the above described conditions it would be absurd to apply strictly the customary rules prevailing in different conditions in the Central Punjab. The Tribal Custom in the Attock District 1911 page 36 Question 39 : Can a man make a gift during life of part of the inheritance if he has sons? Answer. As for ordinary gifts out of the family the general feeling of the tribe is undoubtedly opposed to any such alienation of landed property without the consent of the sons. No example is given among Jodhras. Question 41 on the other hand gives two examples of gifts by Jodhras to their servants, neither of which gifts was contested. The first gift which was of a well was obviously a very valuable gift. Not a single case has been produced in which any alienation by a Jonhra has ever been contested much less a case in which an alienation was successfully contested. In the present instance the alienor was a Langrial Jodhra. The gazetteer on page 80 states that the Langrials own three villages: In the village in which the land in suit is situated defendants have shown that there have been 130 alienations by Jodhras not one of which has been contested. Multiplying this number by three for the three villages we get the large number of nearly 400 mutations for the three Langrial villages. According to the Gazetteer page 78 the Jodhras own only a little less than a third of the cultivated area of the Tahsil and pay rather more than a third of the revenue. Under these circumstances, it would be incred ible that there has not been a single case of a contested aliena tion among Jodhras. For any Tahsil in the Central Punjab there would have been hundreds of such cases. The Jodhra chiefs are described in the Gazetteer as lazy, licentious and incompetent and the Langrial family is famous for debauchery and extravagence. Under these circumstances, objectors would have had ample ground to contest numbers of alienations, yet there has not been one such case. For these reasons I hold that Jodhra proprietors have full powers to alienate their lands as have Pathans in this district. Indeed, the power of the Awan is little less circumscribed". The learned, District Judge is of the opinion that because the two chief characteristics of the Jodhras are their "love of sport" and their "abstinence from cultivation", "it would be absurd to apply strictly the customary rules to them." This inference was obvious ly unjustified. While the fact that the members of a tribe till with their own hands or by tenants is a matter to be taken into consideration, it is just one of the many relevant factors and it is not a possible argument that it was of such great force as to almost exclude the possibility of the applicability of custom. Jodhras own about one third of the Pindigheb Tahsil and the revenue they pay is more than one‑third. Even the mere fact that a tribe was consulted at the preparation of a riwaj‑i‑am is sufficient under the rulings of this Court, including a Full Bench judgment, to raise a presumption that the tribe was governed by general agricultural custom and this presumption could certainly not be rebutted by the mere proof of the fact that the Jodhras did not till their lands with their own hands. The instances of alienations having taken place without challenge have not been examined by the learned District Judge as they have been examined by the learned Sub‑Judge. It is always to be remembered that an instance is no good as an instance unless property is shown to be ancestral and the alienation unjustified. While a large number of instances do create an impression that some of them may be liable to challenge under custom, one should examine them as the learned Sub‑Judge did. The judgment of the learned Sub‑Judge illustrates how instances lose their value on examination. I would not on the evidence of the instances in that case hold against the applicability of custom. As observed by the learned Sub‑Judge there was no previous judicial instance in which an alienation by a Jodhra was held not liable to challenge. The riwaj‑i‑am before the learned District Judge was against an unrestricted power of alienation, the custom which was being set up (of an unrestricted power of alienation) was of an exceptional character, which would need strong proof and I have little doubt that the decision of the learned District Judge was not correct. The learned District Judge had also found the alienation to be for considera tion and necessity and really a finding on custom was not necessary.

8. The riwaj‑i‑am of 1923‑28 which is really the one which is applicable to the present case is against the contention of the defendant. 1 have already quoted Questions and Answers Nos. 40 and 41 according to which even to near kindred only a reasonable part of the property can be gifted. This riwaj‑i‑am having been completed after the judgment at page 176 can itself be used in rebuttal of that instance. In spite of that instance neither the Jodhras nor any other tribe, except the Awans, was prepared to concede unrestricted power of gift. At page 120 of this riwaj‑i‑am there is an instance where it was held that gift to a sister's son by a Jodhra Rajput was invalid and the suit for a declaration was decreed. At page 136 there is another instance of a gift by a sonless Jonhra Rajput to his daughters having been set aside at the instance of the collaterals. These instances definitely negative an unrestricted power of gift. I have already reproduced Question No. 42 which supports the plaintiff and I will reproduce here Question No. 44 also :‑ "Question 44.‑Can a father at the time of the marriage of his daughter alienate to her or her husband a part of his property ; if so, is the consent of his sons or near kindred necessary ? Answer 44.‑The replies to this question and the examples produced are to some extent contradictory, for it is clear from the latter that land frequently forms part of the jahez given by the bride's parents to the bride on the occasion of her marriage, whereas the tribes almost unanimously state that land is not usually given on such accasions. It is certainly by far the more common practice to give jewellery, cattle and clothes in jahez, and it is probably only in large land owning families that daughters are given land as well. The land can be given admits of no gainsaying but the custom of the district is certainly not in favour of such alienations, especially in the case of small holdings where the interests of the male heirs would be seriously affected". This reply too is in favour of the plaintiff‑appellant.

9. I will here refer again to the judicial instances produced by the appellant. Exh. P. 4 is a judgment of the District Judge of Attock of the 5th of May 1947. It relates to Jodhra Rajputs. A gift in favour of a married‑ daughter was set aside as being of more than a reasonable portion of the property. Exh. P. 2 is a judgment of the 30th of October 1930 by a Sub‑Judge wherein a gift in favour of his daughter by a Jodhra Rajput was set aside.

10. To sum up, the general agricultural custom, the fact that the Jodhras are a predominant agricultural tribe in the Pindigheb Tahsil the riwaj‑i‑am which definitely places restrictions upon j of ancestral property, and judicial instances are all too strong as against the solitary instance at page 176 of the riwaj‑i‑am which is, in the ultimate analysis, the main basis of the plea of unrestricted power of alienation. This instance had been given weight by the lower Courts because an appeal to the High Court against the judgment of the District Judge had been dismissed. I find from the record it was dismissed on the ground that it was incompetent in the absence of a certificate by the District Judge. Before the amendment of the Punjab Courts Act in 1941, no appeal on a question of custom was competent without a certificate. I would hold that the alienor had a restricted power of alienation and the gift is ineffectual against the rights of the plaintiffs, and I would accept the appeal and decree the suit, but would leave the parties to bear their own costs throughout. WAHEEDUDDIN AHMAD, J.

‑I agree. A. H. Appeal accepted.