P (PLP)

MUHAMMAD SHARIF, J.‑The only question for decision in this Letters Patent Appeal is.‑

Whether among the Mair Minhas Rajputs of Chakwal tahsil; according to custom, a sister excludes a collateral of the 3rd degree from non‑ancestral property ? One Muhammad died fifteen years ago and the mutation of his estate was made in favour of his widow Mst. Rehmatan. On her re‑marriage, the property was mutated in the name of Mst. Bhari, the mother of the deceased. Mst. Bhari herself died three years ago and the mutation was sanctioned in favour of defendants 1 to 7 the collaterals of the last male owner in the third degree ...... on 17th of March 1942. Mst. Mehar Bhari, the sister of Muhammad deceased, brought a suit for possession on the ground that she was, according to the custom of the tribe, a better heir than the collaterals. It was also alleged that the property was non‑ancestral. The defendants collaterals denied her claim and maintained that the property was ancestral. It was found by the trial Court that the property had not been proved ancestral qua the defendants, but the sister could not succeed in the presence of the near collaterals like the defendants and the suit was dismissed. On appeal, the learned District Judge came to a different conclusion on custom. He held that the sister had proved her better claim under custom and a decree was granted in her favour. On second appeal to this Court, ..the learned Single judge accepted the appeal and restored the decree of the trial Court dismissing the suit. The sister has now filed a letters patent appeal. It is agreed that the property is. non‑ancestral. Question and Answer 76, Riwaj‑i‑am of the Jhelum District complied by Mr. P. N. Thapar in 1946, are as follows:‑ Question 76.‑Sister's rights to succession‑can sisters or sisters' sons inherit the estate of their brothers in the presence of collaterals ? If not, what is the degree of collateral relation ship necessary for the exclusion of sisters or sisters' sons ? Can they inherit when there are no collaterals ? Answer.‑In Chakwal tahsil (to which the parties belong) in the absence of daughters or their issue and of collaterals up to the 4th degree the sister succeeds." Question 77 dealt with the rule of custom, where the property was not found to be ancestral. The answer was that the character of the property would make no difference and the sister could succeed only as laid down in Question

76. According to the latest entry in the Riwaj‑i‑am the sister is excluded by the collaterals up to the 4th degree. The initial onus is, therefore, put on the sister to establish, that she has a right to succeed in the presence of the collaterals of the 3rd degree. In the earlier Riwaj‑i‑am prepared by Mr. Talbot in the year 1901, Question 68 related to the rights of the sisters. It was mentioned therein; that sisters and their sons could inherit, if there were no daughters and no agnates within the 4th degree. There was no reference to' what was to happen, if the property was not ancestral. As a matter of fact, no reference to the character of the property was made Question 68, presumably, would concern itself with ancestral property, for, in the absence of anything to the contrary, the entries in the Riwaj‑i‑am must be taken to refer to ancestral property only. It would thus appear that the exclusion of a sister from non‑ancestral property, was introduced for the first time in the Riwaj‑i‑am of 1946. No instances are cited. Even without them the presumption, in the first instance would be in favour of the correctness of the custom stated. The presumption, however, cannot be said to be very strong, because the earlier Riwaj‑i‑am was different and a clear distinction, which has always been recognised as to the devolution of the ancestral and non‑ancestral property, appears not to have been kept in view. The plaintiff has produced some instances where a sister was preferred to a collateral as to non‑ancestral property. In Azim Khan v. Mst. Bhag Bhari decided by Ch. Karam Ilahi, Senior Subordinate Judge, Jhelum, on 27th February 1939, a case of Mair Minhas of Padshahan in tahsil Chakwal. It was found that the collaterals of the 4th degree could inherit ancestral property only and the sister was entitled to exclude the collaterals from non‑ancestral property. The decision was upheld on appeal by the District Judge, Jhelum, by his judgment dated 11th of November 1939. Similarly, in another case Mst. Bhakht Bhari v. Allah Ditta of Chak Bhawn in tahsil Chakwal, decided by Ch. Azam Ali, Subordinate Judge 1st Class at Chakwal, on 8th of January 1946. It was held that, according to custom, the sister excluded a collateral of the third degree from non‑ancestral property and the earlier instance of Azim Khan v. Mst. Bhag Bhari was referred to with approval. No instance to the contrary was produced by the collaterals. In the Riwaj‑i‑am of 1946 a judicial instance, Azam Khan v. Mst. Bhag Bhari, is mentioned. This is the same case which was decided on appeal by the District Judge, Jhelum, on 11th of November 1939. The date of the judgment seems to be in correctly given as 27th of March 1939 in the Riwaj‑i‑am. This instance, as shown above, would favour the claim for a sister to succeed to the non‑ancestral property. It should not be overlooked that in the western districts 'of the Punjab (the old United Punjab) agricultural custom had not acquired such a strong hold and influence ever the people as is to be found in the central districts which were considered to be home of custom. These were found to be more under the influence of Muhammadan Law. It was for this reason that the powers of alienation of proprietors residing in the western districts of the Punjab, were unrestricted. Reference might be made to the remark at page 280 of Rattigan's Digest and P. L. R. 1951 Lab.

27. In the neighbouring district of Attock, among the Khattars of Attock district the custom was found to be in favour of a sister to inherit the non‑ancestral property in preference to the collaterals of the 2nd degree of her father, vide Mst. Channi Bibi v. Ahmad Khan reported as 69 I. C

331. The learned counsel for the respondents, cited Mst. Sant Kaur v. Sher Singh, reported as A. I. R. 1923 Lab.

476. It is a case of Jats of the Amritsar District. The Riwaj‑i‑am excluded the sisters from all share in the inheritance, even from ancestral property. It was held that the sister had failed to discharge the once which rested upon her. This instance cannot serve as a useful guide in cases, arising in the western districts of the Punjab and among Mussalmans. We would hold, therefore, that the sister has succeeded in discharging the burden placed upon her by the Riwaj‑i‑am entry of 1946. The appeal is, consequently, accepted, the decree of the learned District judge is restored and the sister shall succeed to the property, to the exclusion of the collaterals of her brother. In view of the peculiar circumstances of this case, we would leave the parties to bear their own costs throughout. K. M. A./A. H. Appeal accepted.