P L D 1967 Supreme Court 200 (PLP)

Mutation in respect of 1/4th share of the property at Mauza Rangu, by virtue of inheritance has been sanctioned in favour of Mst. Mirza Nur by order of Lala Wali Ram, Naib‑Tehsildar. Hazro, and mutation entry in respect of 1/4th share of the mortgagee rights at Mauza Kalu Khurd has also been sanctioned in favour of Mst. Mirza Nur by order of the Tehsildar Settle ment. For the foregoing reasons, ,it is ordered that the mutation entry in respect of the rights of ownership of khata Nos. 312 to 348, land measuring 798 kanals and .14 marlas, and khata Nos. 391 to 411, land measuring 3,708 kanals and 6 marlas vesting in Muhammad Ji deceased be sanctioned in favour of Ghulam Rabbani, Muhammad Sharif and Fazal Ilahi, in equal shares‑1/4, Roshan Din and Bahauddin, in equal shares‑1/2, and Mst. Mirza Nur‑1/4." The order does not specify that Mst. Mirza Nur was not to have the power to mortgage or sell the property. But what makes these mutation proceedings particularly significant is the admission made by Mst. Mirza Nur in her statement of the 2nd October 1901, reproduced above. She had a daughter living at the time of her husband's death, and was then carrying a child. She said that she and her daughter would use this land for their maintenance. She, made it clear that if a son were born, the land would be forthwith entered in his ,name, and her name would be deleted from the record. She. undertook not to make any sale or mortgage of the property. Up to the year 1951, when the gift in favour of the respondent Mst. Hukam Jan was made, and the present litigation followed immediately after the land remained in the condition in which it was left as a result of these mutations. There is nothing to show that in the interval, Mst. Mirza Nur either sold or mortgaged any part of the property or even that she attempted to do so. By the fact of her reliance on the will, which expressly restrained her powers in this respect, and by her own statement made before the. Mutation Officer at village Thikarian, she recognized and accepted a diminution of her rights in respect of this land. Equally, the sons and grandsons of Muhammad Ji were prejudiced by the making by these mutation orders to the extent that they were deprived of direct inheritance of the land‑ which was mutated in the name of Mst. Mirza Nur. On the basis of custom, they could have contended that in the presence of sons, the widow was entitled only to maintenance. They even had in their possession a registered document, ,which might have sustained the interpretation of being cancellation of the will of the 3rd May, 1890. They could therefore have litigated to obtain a decision‑ from the Civil Courts that they were the sole successors to Muhammad Ji and that the bequest in favour of Mst. Mirza Nur was not valid under custom or law. They did not, so far it appears from the present record, take any step to establish any rights in the land beyond those which were given to them by the mutation orders. It appears that Mst. Mirza Nur only died after an appeal in this case had been taken to the High Court in May 1952. She filed a written statement before the trial Court, and was a party to the appeal before the District Judge. It is of interest to note that in her written statement, Mst. Mirza Nur made the following assertions in paragraph 3 :‑ "the will was not given effect to in respect of the property situate at Mauza Rangu and Chhawani Rangu, because before his death, Muhammad. Ji had made Mst. Mirza Nur absolute owner of the property in dispute situate in the villages Rangu and Rangu Chhawani by means of gift, dated the 19th May, 1891. The plaintiffs had consented to this gift, and the property situate at Mauza Thikarian devolved on Mst. Mirza Nur under the will, but the stipulation regarding mortgage and sale is invalid and null and void in law. At any rate, this stipulation was, for the benefit of the male issue of Mst. Mirza Nur, and Mst. Mirza Nur had no male issue." There is here an admission in respect of the estate‑ which accrued to her under the will albeit in the alternative to an assertion that by the will she was to be full owner of the property after the death of Muhammad Ji. This has a strong bearing upon the determination of the central question in the case, which is‑what was the ‑ nature of the estate which Mst. Mirza Nur took upon the death of Muhammad Ji under the will ? The statement that all the lands in villages Rangu and Rangu Chhawani had already been gifted to her before the will was made was factually incorrect, as admitted before us by Mr. M. Jaffar, counsel for the respondent. Only a small area of land in these villages was gifted, and Mr. M. Jaffar was at pains to emphasise that in case the appeal was allowed, it should be made clear in the order of this Court that it did not cover the gifted lands, of which details are available from the two mutations of date the 26th May, 1891, which are Exh. P. 3 and P. 4 on the record. On the 5th January 1951, Mst. Mirza Nur made a gift of all her land in villages Rangu and Rangu Chhawani and Thikarian to Mst. Hukam Jan, respondent, the daughter of her daughter Mst. Amir Nissa. In the deed of gift, which was registered, she described hereself as owner, possessor and co‑sharer of this land, of which full details are given. In this document, her daughter's name is given as Amiran Jan, but as she had only one daughter, it may be accepted that this was the same ,person whose name was given earlier as Amir Nissa. After stating that her stepsons had treated her very badly, and that her daughter and grand‑daughter had served, her, throughout until her advanced years, and she wished to reward the latter, she proceeded to make an absolute and permanent gift of all her land in the aforesaid villages in lieu of services to Mst. Hukam Jan and declared that she had delivered possession and divested herself of all connection with the land gifted. The following declaration may be quoted in extenso :‑ "From today's date, the donee shall be the absolute owner of the entire gifted land like me, and 1, or any of my other heirs shall have no connection or concern with this gifted land." As has been said already, this was the first occasion in a period of some 50 years on which Mst. Mirza Nur purported to improve her status beyond that which she had expressly accepted when the lands in question were mutated in her name in 1903. By 1951, all the sons of Muhammad Ji were dead, and even some of his grandsons. On the 2nd May.1951, the suit out of which this appeal arises was brought by five of Muhammad Ji's grandsons, and one great grandson, for a declaration that the gift of the 8th January 1951, would be "null and void and ineffectual against the plaintiff right after the death of Mst. Mirza Nur." They claimed that the testator was governed by the zamindara custom under which he had full power to make the will in question and moreover, since the will had been given effect to, with the consent of all the heirs, it was binding both on the plaintiffs as well as on Mst. Mirza Nur. She was in possession as a widow according to custom, simply for her lifetime with limited powers for the purpose of maintenance, and she was not competent to make the impugned gift. As has been seen, Mst. Mirza Nur in her written statement attempted to make out that the land in villages Rangu and Rangu Chha`wani had already been gifted to her in 1891, which was not correct. With respect to the will, she pleaded that the stipulation regarding mortgage and sale was invalid, and at the worst was a stipulation for the benefit of her male issue only and she had no son. She denied that Muhammad Ji was governed by zamindara custom, adding at the same time that the plaint did not disclose "in which matters Muhammad Ji deceased was governed by custom." In paragraphs 7 and 8, somewhat inconsistent pleas were taken. In the first paragraph, it was said that Muhammad Ji was not governed by zamindara custom, "but it is not denied that the will is binding on the plaintiffs," and at the same time it was said that "although the conditions in respect of mortgage and sale are valid in law, the will does not affect the property situate in Rangu and Rangu Chhawani." This would appear to be a re‑assertion of the claim that the land in the latter villages had all been gifted to her, and as to the will, its effect was confined to the land in village Thikarian. In fact, however, the gift of 1891 did not include all the land in Rangu and Rangu Chhawani that belonged to Muhammad Ji, and therefore the admissions that "the will is binding on the plaintiffs" and "the conditions in respect of the mortgage and sale are valid in law" would appear to be inconsistent with the earlier denial in paragraph 3 that these stipulations were invalid and void in law. In paragraph 8, the claim 'vas made that Mst. Mirza Nur was absolute owner of the property and was competent to make a gift, but it was added in the alternative that "if she is not proved to be the absolute owner, the plaintiffs have no right to raise an objection in respect of the share of defendant' No. 1 and that of the daughter of Muhammad Ji." This would appear to be a repetition of the point urged in paragraph 3, that the stipulation against sale and mortgage was only for the benefit of finale issue of Mst. Mirza Nur and she had no son, who could raise the question. She was denying to the plaintiffs, who were descendants of three sons of Muhammad Ji, the right which by this contention, she was claiming could have belonged only to her own son by Muhammad Ji. In another aspect, this contention is an admission that the rights of an heir under custom would have belonged, to her son, if she had had one. By such an admission, it was impliedly conceded that a similar right belonged also to the sons of Muhammad Ji by another wife, for under Pagvand custom all sons have equal standing in the matter of succession. The issues in the case, nine in number, were largely concerned with the question where Muhammad Ji was governed by agricultural custom "in matters of succession and alienation" and whether the will was binding, and if so, what was its effect. A question of fact also arose with reference to the quantum of land in Rangu and Ration Chhawani, which was covered by the gift of 1891; and on this question, the trial Court held that because it was difficult to distinguish the gifted land in these two‑villages from the other land, it was necessary to conclude that no part of the land in these two villages had been mutated on the basis of the will, but all of it had been gifted to Mst. Mirza Nur in 1891. This finding was set aside in appeal by the District Judge, who came to the‑conclusion that only three khasra numbers in Rangu Chhawani had been gifted and as for village Rangu, only 14 kanals 4 marlas had been shown to have passed under the will. In the High Court, no decision was given on this point, although it was found that the District Judge had decreed the plaintiffs' suit in respect of all the land in Rangu and Rangu Chhawani (as well as the land in village Thikarian) despite having held that some part of it had been given in absolute gift to Mst. Mirza Nur in 1891. As has been mentioned, the respondent does not now claim that all the land in Rangu and Rangu Chhawani had been gifted to Mst. Mirza Nur, but as the suit is for a declaration only, the determination of the exact area to be excluded, in case the appeal succeeds, may be left safely to subsequent proceedings, in which the rule of succession as laid down in the West Punjab Muslim Law (Shariat) Acts of 1948 and 1951 would presumably be applied. The trial Court held that Muhammad Ji was not governed by customs in matters of succession and alienation. As to the right of the plaintiffs to sue, it found that since the elder son Muhammad Ibrahim had pre‑deceased Muhammad Ji, Ibrahim's sons were not heirs under the, Muhammadan Law, and therefore they were not entitled to sue even under the Muhammadan Law, but the remaining plaintiffs were entitled to challenge the gift as being "contrary to the tenure on which defendant No. 1 (Mst. Mirza Nur) held the land in dispute under the will." This was on the basis that it is open to Muslims to make a bequest so as to confine the benefit to the usufruct of the land and to nominate a subsequent donee. On the question whether the will in fact bequeathed to Mst. Mirza Nur only the usufruct for her lifetime, the' trial Court after an elaborate discussion of the terms of the will came to the con clusion that the restraint on the right of mortgage and sale was confined to the mortgagee rights in the two other villages Tajak Basia and Kalu.Khurd, and did not apply to the lands in Rangu, Rangu Chhawani and Thikarian. But even if the restraint against sale and mortgage were applicable to all the suit lands, in the view of the trial Court, they did not operate to bar the power of gift and he further inferred the existence of a power to gift from the words of the bequest, namely, to "my wife Mst. Mirza Nur or her issue 1/4th." Accordingly, the trial Court came to the conclusion that there was nothing in the will to bar the making of a gift of the suit land. For these reasons, the suit was dismissed. . The District Judge before whom the plaintiffs took an appeal came to the conclusion that Muhammad Ji was governed by Agricultural custom and not by Muhammadan Law "in matters of succession and alienation" and that under the will, she did not become the full and absolute owner of the suit, property ,on the death of Muhammad Ji. He proceeded to hold that both under custom as well as under the rules of Muhammadan Law, . Mst. Mirza Nur was not . competent to make the gift in dispute. Accordingly, the appeal was allowed and the suit was decreed, leaving the parties to bear their own costs throughout. Mst. Hukam Jan appealed further to the Hight Court. Her appeal was allowed and the suit of the plaintiffs was dismissed with costs throughout. The learned Judges dealt with the will of 1890 in some detail. They were of the opinion that the concluding words of the disposition "she shall not sell or mortgage" applied both to the proprietary land as well as to the mortgagee rights. But they found that in respect of the proprietary rights, the will contained no mention that "in case Mst. Mirza Nur does not give birth to any child, male or female, the land bequeathed to her would devolve on the other three legatees." On this ground, the learned Judges thought that the bequest of the land in suit was of an absolute nature and that the subsequent provision in the will that the legatee would not be entitled to alienate the land given to her, was a restriction imposed upon the bequest and being repugnant thereto was of no effect. They expressly followed the rule of Muslim Law in coming to this conclusion, observing that in their view, the plaintiffs had failed to establish that Muhammad Ji was governed by custom in matters of succession and alienation. They considered that if Muhammad Ji had intended to confer upon Mst. Mirza Nur only a life estate in respect of the suit land, "he would not have included in that bequest her child" and moreover, he would have made "a device of the corpus after the death of Mst. Mirza Nur." They found that the plaintiffs had failed to establish that Sheikhs Siddiqi of Attock district were governed by custom. It had been established that Sheikhs Siddiqi were owners of Shamilat land in the village, and one of their number was a lambardar in village Rangu, but they found that in the absence of proof from the kafiat dehi of that village, it could not be held that they were original 'owners in village R4ogu. Mehfuz, Ali,' P. W. 1, a Sheikhs Siddiqi was indeed a lambardar, but the learned Judges thought it was significant that no other instance of a Sheikh Siddiqi being a lambardar had been mentioned in the case. There was evidence to show that mostly the Sheikhs Siddiqi were not tilling land, but had taken to service as an occupation. Reliance had been placed on two instances of succession under custom, one is the case of a Sheikh Siddiqi named Muhammad Akbar whose sons succeeded him to the exclusion of his daughters, and another of one Nazar Din, a Sheikh Siddiqi being succeeded by. his daughter Ghulam Fatima, and upon the latter's marriage, the land being mutated in the name of her father's collaterals. As to these instances, the learned Judges thought that the circumstances had not been "succinctly brought out" and therefore they did not advance the plaintiff's case. Two judicial decisions, of which copies are placed on the record, were interpreted by the learned Judges as holding that Sheikhs Siddiqi in matters of succession and alienation were not governed by custom, but by Muslim Law. Finally, the learned Judges thought that by "mere acquisition of land" Sheikhs Siddiqi could not transform themselves "into a village compact community among whom the theory of agnatic succession had taken root as a well‑established custom." They came to the conclusion that the parties were governed by the rules of Muslim Law. A certificate for appeal to this Court was granted. We have heared Mr. Muhammad Shafi in support of the appeal who has urged that in the matter of succession Muhammad Ji was governed by custom and that his will should be propounded in that light. He has contended that the document has been wrongly construed in two parts by the trial Court as well as by the High Court. Reading it as a whole and bearing in mind particularly the interpretation placed upon it in the mutation proceedings by the parties themselves, after the death of Muhammad Ji, the intention of he latter must be accepted as being to ensure that his estate should pass in the male line through his three living sons, and any son or sons that might be born to Mst. Mirza Nur. It was only under a common understanding to that effect that the descendants in the male line, who had protested against any land being mutated in Mst. Mitza Nur's name, allowed possession as awarded by the orders of the Mutation Officers to stand for the long period of 50 years. The will itself gave to Mst. Mirza Nur only the ordinary widow's life interest in case she had no son by Muhammad Ji, and the possession awarded to her by the Mutation Officers was also on the same basis. Had it been advanced on behalf of Mst. Mirza Nur before those officers that the will gave her an absolute estate, or had the orders in the mutation proceedings been made on that basis, the male descendants would certainly have sued at once to assert devolution under custom. By the gift Mst. Mirza Nur had sought to improve her status beyond that which ‑she had accepted in 1903. This she had no right or power to do, and the trial Court and the High Court were wrong in accepting her pretended claim on the application of Muslim Law. which had never been pleaded at any earlier stage. Special reliance was placed on the specific instance of a Sheikh Siddiqi woman, Mst. Gaularn Fatima, who succeeded to the estate of her father Nazar Din, but upon her marriage, it was mutated in the names of the male collaterals. Other instances had been mentioned by Mehfuz Ali, a Sheikh Siddiqi, and a lambardar , aged 70 years, and all these went to show that Sheikhs Siddiqi followed the rule of custom that a widow or a daughter only took a life interest in succession. Besides two judgments of District Judges which have been placed on the record, there were two decisions of the Chief Court relating to Sheikhs Siddiqi, namely, Faizullah and others v. Abdul Hamid (58 P R 1892 ) and Habibullah v. Habibullah.& others (62 P R 1903). In each case, an aliena tion by a Sheikh Siddiqi proprietor was challenged by his col laterals. This was only possible under custom. In none of these cases was the plea raised before the Courts that the parties followed Muslim Law. Such a plea would have been a complete answer to the suit in each case. In each case, the Court was concerned to find what the custom was. In all the four cases, the finding was that Sheikhs Siddiqi as a matter of custom had unrestricted powers of alienation of their agricultural land. It was not necessary in order to find that a tribe followed custom in the matter of succes sion to hold also that its male members did not enjoy unrestricted powers of alienation. In the western districts of the old Punjab, there are a number of important agricultural tribes, which follow custom in matters of succession, but nevertheless a male proprietor among these tribes enjoys unrestricted power of alienation. Muhammad Ji's will was perfectly valid according to custom, and being made at a time when Mst. Mirza Nur was still capable of having a child, but as yet had no son, in view of the hostile attitude of his three living sons towards Mst. Mirza Nur, he provided for her a widow's estate in respect of one‑fourth of his property with the provision that this land should go to a son in case she had one. The words "Mst. Mirza Nur or her issue (aulad)" were to be understood as providing not two estates in succession to each other, but two alternative estates, of which the first was subject to a contingency, on the happening of which, it was to give way to the second. There was a bequest which should operate in favour of Mst. Mirza Nur to confer upon her the usual widow's life interest, but if she had a son the estate was bequeathed to her son., This was the sense in which Mst. Mirza Nur herself understood the document as becomes clear from the statement which she made to the Revenue Officer at village Thikarian in September 1901, shortly after the death of her husband: She clearly said she was carrying a child and if it proved to be a boy, then the estate should be mutated in his name. Otherwise, she and her daughter would keep the estate for their maintenance, in other words, in life interest or until marriage. It is not known what happened to the child that Mst. Mirza Nur was then carrying. She never appeared in evidence and no indication appears on the record of the eventuality in this respect. In all probability‑the child if it was born alive, did not survive, and it was a girl. If it had been a boy and had lived, the succession would have immediately opened for his benefit, and his immediate heir would have been his mother under custom, and there would have been averments to this effect. Mr. Muhammad Jaffar replied on behalf of Mst. Hukam Jan. It is of interest to note that Mr. Jaffar himself signed the written statement filed by Mst. Mirza Nur in the suit, and as has been seen, the stand taken there on the point of applicability of custom or of Muhammadan Law was scarcely confident. While it was denied that Muhammad Ji was. governed by zamindara custom, it was not asserted that Muslim Law governed by the succession, and in fact, there is no mention of Muslim Law in this document at all. The attempt to differentiate between the land in Thikarian and that in the two other villages on the basis that the latter property had already been gifted to Mst. Mirza Nur was disingenuous. Even as to the land in Thikarian while on the one hand it was said that the stipulation that Mst. Mirza Nur should not sell or mortgage the land was invalid, it was further averred that "at any rate" this stipulation was for the .benefit of the male issue of Mst. Mirza Nur; and she had no male issue. Had the stand been firmly taken on the applicability of Muhammadan Law, such a concession would have been totally out of place in this document. Its inclusion can only be understood as a half‑hearted admission that custom was to apply. Again, while it was asserted that zamindara custom did not apply, the averment was gravely prejudiced by adding that "although the conditions in respect of mortgage and sale are valid in law, the will does not affect the property in suit at Rangu and Rangu Chhawani." Mr. Jaffar attempted‑ to support the view of the High Court that the rule of succession to apply was that of the Muhammadan Law, but it was difficult for him to assert that the will of 1890 was at all sustainable under Muslim Law. A will in favour of an heir requires the consent of all the other heirs to be valid in Muslim Law, and here no consent is shown. The sons were throughout opposed to any land being given to Mst. Mirza Nur. More than one third of the estate of the testator cannot be validly bequeathed under Muslim Law, and here the whole was included in the bequest. Viewed in the light of Muslim Law, the will could only be looked at as providing the basis of a tacit understanding to accept the orders made by the Mutation Officers respecting possession. Those orders made it clear that the possession given to Mst. Mirza Nur was subject to restraint upon her power of sale and mortgage, and according to the admissions made in the written statement, these restraints were valid in law. They would have been equally valid under Muhammadan Law, but the will was clearly in violation of Muhammadan Law. Therefore, it would seem difficult to procure aid from the Muslim Law for the interpretation and application of this will. Mr. Jaffar's main contention was that the will should be interpreted in the sense adopted by the trial Court. The High Court had held that the stipulation against sale and mortgage by Mst. Mirza Nur, though valid in respect both of the proprietary lands as well as the land held under mortgage, was without effect in respect of the bequest' made earlier as being contrary to that bequest, and therefore under Muslim Law, of no effect. This view was not ‑accepted by Mr. Jaffar, whose contention was that the restraints applied only in respect of the mortgaged land, but that the bequest of the proprietary land was of full rights in favour of Mst. Mirza Nur, and after her, upon her issue, whether male or female. That was the interpretation he wished to apply to the words "Mst. Mirza Nur, ya ke jo aulad uski ho," and he placed reliance on the ordinary interpretation of the word "aulad" which includes issue both male as well as female. As he enjoyed unrestricted power of alienation, Muhammad Ji, it was urged, was fully competent to make such a bequest, to his widow or her children by him. We are unable to agree with the view taken in the High Court that Sheikhs Siddiqi are not governed by custom in matters both of alienation as well as succession. In the western districts of the old Punjab among the Muslim tribes there were many‑who, while following custom in matters of succession, nevertheless allowed unrestricted power of alienation to male proprietors. In the customary law of the Attock district compiled in 1927‑31, pathans, for instance, a far more numerous and well‑established agricultural tribe, are shown to have unrestricted power of alienation in the Chach ilaqa and in Pindigheb tehsil. But all tribes, including Pathans, agreed that in the presence of sons, a daughter does not succeed to agricultural land, and even male collaterals have preference to daughters. The general rule among all tribes is that when a widow inherits, in the absence of sons, she takes for life or till re‑marriage, with no power to alienate unless in very special circumstances. When there are sons, the custom varies., The widow will share for life, equally with her sons, but without power of alienation, in certain cases. 1n others, the widow is given maintenance only. Instances of both kinds are found among Pathans of the Attock district. It clearly does not follow, in relation to Muslim tribes of the Attock district, that if a tribe allows unrestricted power of alienation to a male proprietor, such tribe does not follow custom in matters of succession. Despite the general application of succession under the Shariat, by the West Punjab Acts of 1948 and 1951, these rules, are. still applicable for P the resolution of questions of succession to an estate inherited under custom. In the judgments delivered by the trial Court and the High Court a great deal of reliance appears to have been placed upon the fact that many members of the Sheikh Siddiqi tribe obtained their livelihood through service. That appears to us to be a matter of their particular aptitude, but it would not prevent a conclusion that the tribe itself follows agricultural custom in such a matter as succession. Moreover, the point of tine to which attention has to be applied is not a time in the present. It is with reference to the years 1890 and 1901 that it is to be found whether or not in matters of succession, Sheikhs Siddiqi of these villages followed custom, and there can be no question but that between 70 and 80 years ago, employment opportunities in the areas in question were minimal as compared to what they are at present, or even what they were. in 1951, when this litigation commenced, and evidence as to the pursuits followed by Sheikhs Siddiqi was brought on record. With respect to the relevant period, it can be held with some degree of certainty that those who possessed land, not being of extraordinary status, derived their main livelihood from the land. The circumstances that Sheikhs Siddiqi were owners of the Shamilat and also had a lambardar are in that aspect very significant At the time when evidence was recorded the question was not raised whets there had been lambardars from this tribe before Mehfuz Ali, presumably because it was not anticipated that evidence on this point would have a determinative influence on the decision of any fort, which might .later deal with the case. Equally, if it had seen feared that ownership of Shamilat might be discounted at after stage in the litigation, the affected parties would surely have been careful to obtain proof from the Kafiat dehi or the wajibul arz to show how and at what time in the past, the Sheikhs Siddiqi became possessed of land in these villages in such wise that they ail gained a share in the Shamilat, The kafiat dehi and wajibul arz being public documents, the High Court could very well have sent for them to ascertain the facts: In our opinion, the treatment of the instances led in proof through the mouth of Mehfuz Ali, which were supported by relevant mutations, have not wen given their appropriate value in the judgment of the High Court. The full circumstances of the loss on marriage by Mst. Ghulam Fatima of the rights which she had inherited from her father Nazar Din, and the taking of those rights by her father's collaterals, appear very clearly on the record, and furnish a str6ng.and infutable instance of the nature of a woman's estate in agricultural land among the Sheikhs Siddiqi. The pedigree table appears of the mutation order, which is Exh. 8, . and shows that eight Mons, collaterals of Nazar Din in different degrees, took the eaje land of Mst. Ghulam Fatima in different shares according to decent. This was a clear casein which the succession went according to the rule of descent through the male line exclusively, with mad mixture of or reference to Muhammadan Law. The date of the succession is 1926, a quarter of a century after the death dMuhammad Ji, and it took place in village Rangu. By itself thu instance was sufficient to show that Sheikhs Siddiqi followed custom in the matter of succession. In addition, other instancawere mentioned by Mehfuz Ali, P. W. 1, some in sufficient details' establish that the rule of succession was custom. Thus, he aentioned that on the death of one Sheikh Nur Elahi, only lPS sons took the inheritance and.not his daughters. He mentiond also the case of one Muhammad Akbar, who left two widows and two sons, and "perhaps" also a, daughter, but the inhcntance devolved exclusively on his sons. The mutation is Exh. P. 7, and shows that the two sons of Muhammad Akbar took histtate. It makes no mention of widows or daughter, but on this Fount, the evidence of Mehfuz Ali, an old man aged 70 years,uthe time of his evidence may be accepted with confidence, for tht mutation took place in the year 1915, While rejecting this evidttee~ the leaned Judges in the High Court took no account of tk fact that there was no evidence whatsoever led in rebuttal. 'lye conditions for a finding of custom which have been canvassed to the judgments of the trial Court and of the High Courts, nNly, whether the members of the tribe formed a compact vkge community; t1 whether they lived by agriculture, and whether tutphad held land in the village for a great length of time, aretot sine qua non. They can only be regarded as external evidence, as the basis of which an inference as to custopa may be drawn. Another condi tion of this kind, namely that the tribe was tasulted at the 1 Settlement, may safely be held satisfied, by the circumstances that instances relating to Sheikhs Siddiqi are to be found in the Customary Law of Attock district drawn up in 1927‑

31. The evidence of instances within the tribe is internal and is direct proof that in actual cases arising, the rule of succession in the male line was exclusively followed, and that women only took a. temporary estate till death or marriage. No instance was cited where, in relation to agricultural land, succession to a Sheikh Siddiqi went. according to Muslim Law, 1. e., to widows and daughters as well as sons, in specified shares, although the commonest case is that of a man on death leaving a widow and daughters as well as sons, and every such succession is necessarily recorded in the revenue papers. In' the four decided cases which have been mentioned, where alienations were challenged, the obvious defence, if Muslim Law was followed by this tribe, would have been to raise that plea. No such plea was raised. Each case was decided purely on custom. For all those reasons, we are clearly of the opinion that the view of the High Court that the rule to be applied in the present case is that of Muhammadan Law cannot be sustained. To some extent, the error is due to the supposition that to hold that succession goes under custom, it is necessary also to hold that male proprietors are subject to , restraint in alienating their property, and that this restraint is applied for the benefit of the I male collaterals. That is not the cafe at least among a considerable number of tribes in the western Punjab. We hold that, Muhammad Ji was governed by custom in matters of succession, as a member of the Sheikh Siddiqi tribe. The will of 1890 must in our opinion be construed in that light bearing in mind that one custom followed is that a widow takes, but only for life, an equal share in the estate of her husband, along with her sons, and that daughters are excluded. The will must also be construed as a whole, reading each part, so far as the words allow, consistently with every other part. It is a brief document; and in our opinion, if it be read in the light of custom, and if full effect be given to every word used therein, it will be found to suffer from no inconsistency or contradiction. In the construction of this will, valuable aid is to be derived from the meaning in which it was understood by Mst. Mirza Nur herself, when upon the death of her husband, the occasion arose for the first and the last time to give effect to the' bequest in her favour. We are in agreement with the view of the High Court that the restraint upon Mst. Mirza Nur's power of sale and mortgage was intended by the testator to apply to the whole estate, which was being bequeathed to her. So much can in our opinion be settled on the fact that after the conclusion of the clauses of disposition, there appears the word "fact," which is a word of finality in respect of those dispositions, and thereafter the words are added "she will not sell or mortgage". It remains to examine the exact meaning to be given to. the word "aztlad" appearing twice in this document. With respect to the proprietary land, the bequest of one‑fourth was to Mst. Mirza Nur " ya ke jo aulad uski ho," and a question which arises is whether by these words, it was intended to donate two estates in succession to each other, or was it the intention that the estate given to Mst. Mirza Nur should not take effect, if she had "aulad." In our view, the second is the true interpretation to be placed upon the words, "ya ke jo aulad uski ho." The word "aulad" includes daughters as well as sons, and the question next arises whether Muhammad Ji, being an agriculturist governed by custom in matters of succession, when he was creating at best a life interest in favour of Mst. Mirza Nur, could have intended that her estate should be superseded by an alternative estate in favour of a daughter, should she have only a daughter. A strong indication that this could not have been intended is available from the statement, which Mst. Mirza Nur made at Thikarian in September 1901 upon her husband's death, namely, that if a son were born to her, her ,name would be removed from the record and would be replaced by the name of her son. She had at the time a living daughter, but there was no suggestion by her or by any one else that the daughter should take the estate in preference to the mother. What was clearly said was that if there was a son, he would take the estate in preference to Mst. Mirza Nur, and .this action on the part of Mst. Mirza Nur, which was clearly contrary to her personal interest, constitutes an admission of the greatest importance for the interpretation of the expression "ya ke jo aulad uski ho" occurring in the will. The subsequent disposition in the will of the mortgagee rights also furnishes a clear pointer in the same direction. With respect to this land, it provides that if Mst. Mirza Nur gives birth to a son, i.e., one son, "all the four shares shall remain equal," and the intention is clear, namely, that the newly‑born son and the three sons already living would take these mortgagee rights in equal shares. Moreover, they were to take these rights forthwith, i.e., Nlst. Mirza Nur would not take them at all or would be superseded by her son. A further provision. was made, namely, that if Mst. Mirza Nurgave birth to two or more sons, then the entire mortgagee rights were to vest "in the issue of Mst. Mirza Nur and here again the word "aulad" is used, but clearly to mean only sons. That Mst. Mirza Nur was to be excluded from the inheritance altogether if she had a son or sons is thus made clear. The expectation was probably that she would get her maintenance from the share of the land and from part or whole of the mortgagee rights, which fell to her son or sons. The disposition in case she had a son or sons is easily understandable. Since three‑fourths of the proprietary rights were being bequeathed to three living sons, and only one‑fourth . remained, the only way by which equality could be restored among five or more sons, without disturbing the bequest to the three elder sons, was if the non‑proprietary rights, which were available, were appropriated to the later‑born sons (through Ust. Mirza. Nur) exclusively. It appears that Muhammad Ji had little prospect of having even one son by Yst. Mirza Nur, and the prospect of two or more was even more remote. He was probably a very old man at the time when this will was executed. Therefore, these dispositions were made against eventualities which were compara tively remote, but the fact that they were made in close accordance with the rule of succession through males is significant not only as proving that custom was being sought to be followed, but also for the understanding of the expression "aulad" as used in the will. Mst. Mirza Nur's rights were very carefully restricted. With reference to the mortgagee rights, after providing for the possibility of one son acid then of two or more sons being born to her, the disposition further provided that if she had .no son, "she shall enjoy the produce during her lifetime," in other words, that she would have a widow's estate under custom even in respect of rights in land which were obviously self‑acquired. Thereafter, the word "fact" appears and then follow to supplementary words "she shall not effect mortgage or sale" ; lich plainly applied to all the dispositions made in her favour by the will. Accordingly, it seems to us clear that on a proper reading of this will, it is a document made on the basis of succession under custom which provides for the wife Mst. Mirza Nur to whom the living sons were hostile, a widow's estate in one‑fourth of the proprietary land and in the whole of the mortgagee rights, with the provision that in case she had a son or sons, all the land to which the will related would, so far as possible, be distributed equally among all the sons, and she would get her maintenance from the share which fell to her own son or sons. On these findings, it is clear that the plaintiff's suit was entitled to succeed. Mst. Mirza Nur's act in a gift of the estate in proprietary right, which came to her under the will, in favour of her grand‑daughter was in excess of the powers which were conferred upon her by the will, and which she expressly accepted as binding at the time‑ when she gained possession of these rights by means of the mutation of 1903. The male descen dants of Muhammad Ji were therefore entitled under custom to the declaration which they sought, in respect of the proprietary lands in the three villages, Rangu, Rangu Chbawani and Thikarian, but with the exception of the lands in villages Rangu and Rangu Chhawani, which were gifted in favour of Mst. Nlirza Nur on a date subsequent to the making of the will, i.e., 1891. These lands still remain to be demarcated. We accordingly allow this appeal and setting aside the judg ment of the High Court, we grant the plaintiffs a declaration that the gift made by Mst. Mirzwa Nur in favour of Mst. Hukam Jan in 1951 is effective only in relation to the lands in villages Rangu and Rangu .Chhawani gifted to her by M,uhammad Ji in the year 1891, but is without effect in relation to the other land of Muhammad Ji in three villages Rangu, Rangu ChnaNNani and Thikarian, which under his will, she held in life interest. Upon her death, the heirs of her husband Muhammad Ji are entitled to succeed to the land last‑mentioned. We entertain no doubt that Mst. Mirza Nur made the gift to Mst. Hukam include lands which had not been gifted to her in 1891, in full conscious ness that she was exceeding her power in doing so, and that her action was bound to be challenged by the descendants of her step‑sons. For that reason, we consider that the latter namely the plaintiffs, are entitled to their costs of this litigation throughout flout, and we direct accordingly. K. B. A. Appeal accepted.