1982 PLP 18 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑Leave to appeal has been sought from judgment dated 19‑4‑1981 of the Lahore High Court whereby a regular second appeal arising out of a land case relating to custom was dismissed. A suit was filed from the respondents' side that an alienation by one Ali Bahadur of his entire land to Mst. Sardar Khanum (predecessor‑in interest of the petitioners) in lieu of her dower and subsequent alienations by her, being contrary to custom, were void and ineffective, vis‑a‑vis, their rights. The suit was decreed by the learned trial Judge on the finding that the land was ancestral qua the parties, that they were governed by custom ; that the present petitioners' claim that the dower was fixed at Rs. 20,000 was not established ; nor the dower, in the peculiar circumstances of this case, constituted a "just debt" which under custom could be satisfied through alienation of ancestral property. It was further found that Ali Bahadur's power to alienate such property was restricted and if as held, he wanted to deprive the revision Aries of their rights under the custom, the alienations would be ineffective in this behalf. Accordingly, the suit was decreed. A learned District Judge while dismissing the first appeal filed by the petitioners side armed the findings of the trial Court that the land was ancestral and that its alienation was governed by custom. Regarding the validity of the alienation under custom, reliance was placed in the first appellate judgment on the question and answer in this behalf as recorded in the customary law of District Attock compiled by K. S. Chaudhary Sardar Khan. It was found as a fact that although the dower in question could not be more than Rs. 3,000, the value of the property alienated in lieu thereof was at the relevant time about Rs. 45,

000. Accordingly, while maintaining an alienation by Mst. Sardar Khanum to the extent of the land worth Rs. 3,000, the decree of the trial Court regarding the remaining transactions including that by Ali Bahadur was upheld and maintained. On second appeal by the petitioners, the findings by the learned District Judge were affirmed with the observation that the learned Judge for good reasons held that the dower might only be Rs. 3,000 and that "The learned counsel for the appellants did not address arguments on this point to assail the view taken by the learned District Judge. Thus if the dower stood at Rs. 3,000 there is no reason to permit the alienation of his entire ancestral land by the alienor, which was of such more value, to pay the paltry debt. Obviously the purpose behind such alienation was to deprive the plaintiffs of their reversionary rights". Before addressing arguments in support of this petition, learned counsel stated that he would not challenge the findings that, regarding the relevant transactions between then the parties were governed by custom; that the property was ancestral qua them, and, further that it was not a case of enhancement of dower by Ali Bahadur during subsistence of marriage. According to him the petitioners' plea was and remains that the first alienation was in lieu of the dower already fixed which thus constituted an antecedent debt. When questioned as to whether there was any serious argument to disturb the findings of fact recorded by the learned District Judge and affirmed by the High Court in the aforequoted observations, learned counsel replied in the negative. He, however, vehemently repeated the same "sole submission made by the learned counsel on behalf of the appellants (before the High Court) that answer to question No. 46 was not properly construed by the learned District Judge" ; because "he wrongly relied on the compilor's opinion which was not part of the `answer' and could not be treated as an element of the Customary law of the District." The question and answer which were the subject for interpretation by the learned Courts below, read as follows :‑ "Question 46.‑Can a husband or father‑in‑law, without consent of his heirs, alienate a part of his property to his wife, or daughter‑in‑law, respectively, in consideration of dower (Kibin) ? Answer 46.‑Examples are quoted by every tribe which clearly show a husband's right to alienate a portion of his estate to his wife on her marriage. No cases have come to light in which objection was successfully raised to such alienation and it cannot be doubted that custom sanctions gifts of landed property by husband to wife. Many persons declare that gifts of land are rare in these circumstances and this is probably true, the dower more usually consisting of Jewels, cattle or clothes. The customary right of the husband to make gifts of land cannot, however, be disputed and such gifts, whenever disputed in court, have, so far as is ascertainable, been upheld. Custom would obviously not sanction a gift of this kind made for the purpose of defrauding the rightful heirs and the amount of land so gifted together with. the circumstances of the giver are doubtless considerations of same weight in the eyes of custom." According to the learned counsel, there was no restriction on the powers of the alienator to transfer his ancestral property in lieu of dower and that there was no warrant for the out applied by the learned District Judge. We do not agree with him. The precise argument which was repelled by the learned Courts below and has been repeated before us is that the last part of the answer to question No. 46 is not a statement of fact and that it is only the opinion of the compilor. The reliance of the learned counsel is on the middle part of the answer that "the customary right of the husband to made gifts of land cannot, however, be disputed and such gifts, whenever disputed in Court, have, so far as is ascertainable, been upheld." Even if it be assumed that the last part of the answer to the effect that whenever the gift of this kind is made for purpose of defrauding the rightful heirs", it was not sanctioned under custom, is treated as an opinion ; the fact remains, that the reliance of the learned counsel on the middle part of the answer is of no assistance to the petitioners. That part does not relate to the alienation of the entire holding ; which, it appears from the first part of the answer, is not permissible under the custom if it is not in lieu of comparable amount of dower. The mere fact that the alienation o a portion of his estate can be gifted to his wife by an owner on her marriage does not mean that the custom permits the alienation of entire holding when it is intended to deprive and defraud the heirs. The interpretation of the answer by the learned Courts below accordingly is unexceptionable. Learned counsel for the petitioners also wanted to cite case‑law to contend that the answers in a compilation on customary law are rebuttable by evidence and further that the High Court omitted to consider the evidence in rebuttal. We have gone through the evidence relied upon by the learned counsel is not enough to displace the finding by the learned Courts below. There is no force in this argument of the learned counsel either. None of the contentions raised has any force. This petition accordingly is dismissed. Petition dismissed.