P (PLP)

MUHAMMAD SHARIF, J.‑This is an appeal by the plaintiffs against the judgment and decree of the learned Sub‑Judge, 1st Class. Sheikhupura, dated 17th January 1947 dismissing the suit. The dispute relates to the property left by one Kalu. He died in 1945 leaving behind his widow Mst. Rani and two daughters Mst. Fatima and Mst. Nur Bibi. At the time of the mutation, Mst. Rani made a statement before the Revenue Officer, that the property be entered in the names of the daughters and that it was acquired by Kalu himself and she did not want the property to be entered in her own name. Her wishes were acceded to as regards one khata and the mutation effected in the name of the daughters by Exhibit P. 3 on 4th March 1945. As to the other khata noted in Exhibit P. 4, the mutation was he name of the daughters as the land comprise; was considered by the Revenue Officer to be ancestral. The plaintiffs, who claim to be the reversioners of Kalu, brought the suit on 19th May 1945 for a declation, that according to the custom governing the parties, the widow could not make any alienation in favour of the daughters and that it should be declared of no effect against their reversionary interests. The defendants pleaded that the property was not ancestral and that the daughters were better heirs than the alleged collaterals. It was further stated that the mutation of the estate in favour of the daughters was made, with the consent of the widow as an acceleration of succession. The trial. Court dismissed the suit on the short ground that the plaintiffs lead not proved their relationship with the last male owner: Hence this appeal The character of the property is no longer in dispute. It is conceded that it has not been shown that it was ever held by the alleged common ancestor. Two questions need determination in this case ; (1) whether the plaintiffs are the reversioners of Kalu and (2) whether there was an acceleration of succession in favour of the next heir. Exhibit P.1 is a copy of the pedigree table on the record relating to the proprietors of Mauza Chambal. It purports to have been taken from the Settlement Record of 1924.25 and brought up to date. In this, according to this table, Jafar was the common ancestor who had four sons. One son Lakhu was represented by Kalu, whose property is now in suit and the plaintiffs are the descendants of the other three sons. If this pedigree table be correct, the plaintiffs would be connected with the deceased in the third degree. In the year 1924‑25 Kalu deceased was in possession of the property and there was no occasion to enter the names of any of his ancestors. It was incumbent upon the plaintiffs, to establish affirmatively by producing a copy of the pedigree table, from the earlier Settlement, that Jafar, who is shown as the common ancestor of the parties, was really so. It is not clear who .had brought the pedigree table up‑to‑date, nor is there any evidence to that effect. The same remarks apply to Exhibit P. 5, copy of an extract from the pedigree table from the Settlement Record of 1944‑45 and brought up‑to‑date. The learned trial judge was, therefore, right in holding, that there was no reliable evidence, that the parties were the descendants of Jafar and that the pedigree tables produced on the file, could not carry the presumption of truth attaching to the revenue records. The second question as to " acceleration of succession " by Mst. Rani may now be dealt with. The trial Court has found, that there was no surrender of the estate by the widow, because there was a' house also inherited from Kalu, which was to be divided among the heir, according to personal law as laid down in the Muslim Personal Law (Shariat) Application Act of 1937. The " house " could not be surrendered in favour of some of the heirs, as the daughters would be under the Personal Law and in order to make a complete surrender, it should have been given over to all the heirs, including the reversioners of her husband. The doctrine of " surrender an estate " is taken from the Hindu Law. The leading Privy Council case on the subject is reported as I. L. R. 19 Cal

236. Lord Morris delivering the judgment of the Board said " It may be accepted that, according to Hindu Law, the widow can accelerate the estate of the 'heir by conveying absolutely and destroying her life estate. It was essentially necessary to withdraw her own life estate, so that the whole estate should get vested at once in the grantee." This approved the doctrine of surrender as enunciated in I. L. R. 10 Cal. 1102. It was observed that, " a surrender, strictly speaking, can only be made by one, who has a particular estate, (such as an estate for life ), to the person who has the reversion, or remainder immediately expectant, on the determination of that estate ''. It was added :‑-- " What is usually therefore called a surrender ' of a Hindu widow's estate is more properly a ` relin quishment ' of it in favour of her husband's heirs. If she died a natural death, those heirs would succeed ; or if she were to become a byragee, or otherwise die a civil death, the result would be the same. And as I take it to be clear, that when her husband died, she might, if she had so pleased, have disclaimed her estate, there would seem nothing wrong or objectionable in her relinquishing her estate at any time in favour of her husband's heir for the tune being after she had once accepted it." Two important conditions must be fulfilled before the " surrender " by a widow could operate. These are (a) the relinquishment of the entire estate of which she is in possession as a widow and (b) surrender to the next heir. It would follow necessarily, that where a widow is in possession of a part of the property, to which she has not succeeded on the usual life estate that could not form the subject‑matter of surrender. The " surrender " or relinquishment " of an estate must be confined to that property, which is in the possession of a widow as a limited estate and which on her death must go to the reversioner, of her husband. As pointed out in A. I. R 1946 Lah. 180 (F. B.) " the estate of a widow under the customary law of the Punjab is analogous to that of the widow under the Hindu Law. Under both laws she holds for life for the purpose of maintenance, with certain powers of disposition which are necessarily incident to her position. She is, at least undo the customary law, in no sense a co‑sharer, and the succession on her death, is not to her but to her husband. In fact, her estate is one interposed only for a limited purpose between that of her husband and the next heir ". Where she does not "interpose " for the limited purpose, the surrender of that part of the property, is not necessary to complete the process of the relinquishment or self-effacement. The possession of the house by Mst. Rani, may now be judged in the light of the principles enunciated above. Mst. Rani appeared as D. W.

2. She deposed that she had given all the property, she got from Kalu to her daughters, defendants 1 and

2. Defendants 1 and 2 enjoyed it and were in possession of the whole. The house was also the property of the daughters and she sometimes lived in it with them. She had no other house of her own. The Shariat Application Act XXVI of 1937 prescribed ; that the inheritance to property other than agricultural land, was to be regulated in accordance with the Muslim Personal Law where the parties were Muslims. In consequence, on the death of Kalu, Mst. Rani became a co‑sharer to the extent of 1/8th and the daughters had also their own share, allowed to them under the law. There was still a small residue left, which could go to the reversioners if there were any. Mst. Rani did not succeed to the house as a widow under the Customary Law with a life estate only. She had a definite share and would rank as a tenant in common with the other co‑sharers. The doctrine of " surrender " is unknown to Muhammadan Law. It applies only to succession .of a widow unifier Hindu Law or by analogy to a widow succeeding to the usual life estate under custom, It was not, therefore, necessary that the house should have been surrendered to all the heirs of her husband under personal law, to make her surrender of the estate of her husband, to which she had succeeded as a widow for life only, complete and effective. The view of the trial Court, that the surrender, as to agricultural land forming the subject‑matter of litigation, did not amount to " acceleration of succession " was erroneous. 'It is undisputed, that as regards non‑ancestral property, the daughters would exclude the collaterals under the custom applic able to them. The plaintiffs had, therefore, no right to maintain the suit in the presence of the daughters who were the next heirs of Kalu. The suit was rightly dismissed and we would uphold the decision also on the ground that it was a case of acceleration of succession, in favour of the next heir. The appeal is hereby dismissed with costs. A.H Appeal dismissed.