P L D 1956 Federal Court 92 (PLP)

MUHAMMAD SHARIF, J.‑

This is‑ an appeal by special leave by the plaintiffs against the judgment and decree of the High Court of Judicature at Lahore, dated the 28th of February 1951, by which the decision of the Subordinate Courts was reversed and the plaintiffs' suit was dismissed. The dispute concerns 173 kanals and 18 marlas of land left by one Gehna, a Gondal Jat of Sadullahpur, Tahsil Phalia in the District of Gujrat. On his death without issue, the property was mutated in the name of his sister's son, Shahu, respondent, on the basis of a will said to have been made in his favour by the deceased. The plaintiffs, who are collaterals of Gehna in the fourth degree instituted a suit for possession on the allegations that the property was ancestral that no will was ever made and that if one was proved, it was invalid according to law and custom and that the sister's son was not an heir in the presence of the fourth degree collaterals. The defendant denied the ancestral character of the land or the plaintiffs' status as‑collaterals. It was further mentioned that his uncle had made a will which could not be challenged. The following issues were struck :‑ (1) Whether the plaintiffs are collaterals of Gehna deceased ? (2) Whether the land in dispute is ancesteral qua the plaintiffs ? And are the plaintiffs entitled to succeed to the land as against the defendant ? (3) Whether Gehna deceased made any valid will in favour of the defendant ? (4) In case the land is proved as ancestral, was Gehna deceased competent to make a will of the same ? The trial Court found that the plaintiffs were collaterals in the fourth‑degree; that the land in suit was not ancestral ; that the alleged will was not established; and that, according to custom, the plaintiffs were entitled to succeed in preference to the sister's son. On these finding, the first Court decreed the plaintiffs' suit. On first appeal by the defendant, which was heard by the Additional District Judge, Gujranwala at Gujrat, the findings of the trial Court were affirmed, but on the question of custom, it was found that though the sister excluded collaterals however near, her son had no such right. The appeal was, consequently, dismissed. On second appeal to the High Court, the learned Judge granted the right of representation to the sisters' son 'and the appeal was accepted. It is against this judgment that the present appeal has been filed. It is common ground that the parties follow 'custom and the dispute has to be settled primarily with reference, to the Riwaj‑i‑am of the district. And since the defendant was in possession, the plaintiffs had to prove their superior right to oust him. The relevant question and answer from the customary law of Gujrat District, printed in 1922, arc reproduced below:‑ Q.

84. Does property ever devolve upon sisters or upon sister's sons ? 1f upon sister's sons how are their shares computed ? A.‑All tribes‑ In the absence of collaterals, the sister and sister's son succeeds ". The above statement of custom is wholly silent about the nature of the property. If it refers to Ancestral property only, the plaintiffs must fail and if it covers both ancestral and non‑ancestral, the defendant must fail. In the Punjab, the view has been consistently held that, in the absence of indications to the contrary, the manuals of customary law should be taken to refer to ancestral property only. In Mst. Hurmate and another v. Hoshiaru and another (A I R 1944 Lah. 21 (F B)) a Full Bench judgment of the High Court of Judicature at Lahore, it was held :‑-- "It is obvious, therefore, that there is a formidable array of authority in support of the proposition that manuals of Customary Law should be taken to relate to ancestral property only unless there is a clear indication in them to show that they do contemplate self‑acquired property as well." This is so, because custom mainly restricts dealings with property in which the agnates possess some reversionary interests by reason of the fact that it once belonged to the common ancestor. The extent of the interest and the conditions for its exercise may vary from place to place and from tribe to tribe. This is a matter of detail to be determined in every case and the Riwaj‑i‑am of a district affords useful guidance and concrete assistance in this respect. The learned counsel for the appellants contends that the word "ever" in Question 84 was intended to include non‑ancestral property as well and referred to Mst. Man and another v. Jiwan Singh and others (2) in support of his argument. The argument is rather thin. Throughout the customary law of the district in several questions and answers, the character of the property is not ignored and the custom relating to non‑ancestral property was specifically indicated. Under these circumstances, there ought to have been a clear mention that the exclusion of the sister or sister's sons was as much from non‑ancestral as from ancestral property. In re: Mst. Man and another v. Jiwan Singh and others (A I R 1933 Lah. 553) case relating to Garewal Jats of the Samrala Tahsil of Ludhiana District, the proposition that the entries in the Riwaj‑i‑am apply only to the ancestral property was accepted, but it was observed that the use of expressions that certain persons are excluded from succession "in any case" or "under any circumstances" without reference to ancestral character of property or otherwise showed that the exclusion operated on self-acquired properties also. This view was derived from the remarks of the author of the customary law of the Ludhiana District prepared at the Settlement of 1882 to the effect that no distinction between self‑acquired and ancestral property was as a rule recognised in the answers of the tribesmen with regard to the rules of succession, aliena tion, etc. 1n the later Riwaj‑i‑am prepared in 1911 some change in custom was noticed, but in the case of married daughters A was again stated in unqualified language that "they have no right of succession whatever." On these considerations, the learned Judges held that the customary law applied not only to ancestral but also to self‑acquired property. In several reported cases it was pointed out that as compared with the central districts‑the home of the Jat agriculturist‑ of the old Punjab (of which Ludhiana was one), where the hold of agricultural custoi.1s was full and complete and women were hardly given any rights, the posi tion of females in western districts of the Punjab (in which Gujrat is also included) was more favourable. As long ago as 1884, it was held by the Punjab Chief Court in Makhan etc. v. Mst. Nur Bhari (116 P R 1884) that among Gujars of the Kharian Tahsil of. Gujrat District, it was for the collaterals of the sixth and seventh‑degrees to prove that they were, by custom, entitled to exclude the sister of the last male owner. No such custom was established and the inheritance was divided according to Muhammadan Law. In another case from the same district, Mst. Bhari v. Khanun (20 P R 1919), relating to Sivaya Jats of Mauza Sivaya, the onus was placed upon the plaintiffs' collaterals in the ninth‑degree to prove their right to exclude the sister in succession to land which was found to be non ancestral qua the plaintiffs. When the plaintiffs saw that they had failed to establish the custom alleged by them, they wanted to have recourse to Muhammadan Law. This con tention was repelled by the learned Judges with the observa tion : "It must be remembered that the parties, who are Jats, are governed presumably by agricultural custom in the matter of inheritance ; and indeed they appear to have placed their reliance upon custom. In these circumstances the plaintiffs' failure to prove a custom in favour of their claim does not lead to the conclusion that no custom regarding succession to the estate is applicable to the tribe and that the personal law, must necessarily be followed. The only thing which can be said is that the custom set up by the plaintiffs has not been proved, and upon that finding their suit should be dismissed." In the present case, the plaintiffs had fought out the case on the basis of the custom set up by them that in regard to ancestral property they were preferential heirs to the sister's son. The property was ultimately found to be non‑ancestral and, if the plaintiffs had to' prove a custom, entitling them to C exclude the sister from ancestral property, the burden was heavier still upon them to establish that even as regards non‑ancestral property, custom preferred the collaterals to the sister. No precedent or other material was brought to the record to discharge the onus that rested on them. On the contrary, the defendant relied on a Division Bench judgment of the Lahore High Court Muhammad Baksh and another v. Msl. Ghulam Fatima (Regular Second Appeal No. 1869 of 1946) in which the learned Judges, on the basis of custom prevailing in Gujrat District and which favoured the females, held that among Jats of Gurdaspur District, a sister excluded the collaterals of the fourth degree from non‑ancestral property. It was finally contended that even if a sister was an heir to self‑acquired property, her son could not be so. This is a bare assertion not founded upon any evidence. On the other hand, it is implicit in Question 84 itself that the sister and her descendant are placed by custom on the same footing and where one succeeds, the other also succeeds. In a large number of cases the right of representation, which is one of the cardinal principles of customary law, was allowed to females wherever they were found to be the next heir, and while some difference of opinion might exist as to the scope of the extension of that right in cases of collateral succession, there appears to be none in the case of lineal succession. It was again for the plaintiffs to prove that there was a special custom, according to which, the sister's son was excluded from inheritance where his mother was entitled to it. On this too, there is no evidence. For the foregoing reasons, this appeal fails and is hereby dismissed with costs. A.H. Appeal dismissed.