2002 PLP 1637 (YLR)

8. The learned trial Court found that the suit was within time; that the suit was maintainable in its existing form that Ahmad Din was not a necessary party and that the suit was not bad for non joinder of necessary parties and that the suit was properly values for the purposes of court‑fee and jurisdiction. On the material Issue No.4‑A, the learned trial Court came to the conclusion that the respondent has not been able to produce positive evidence that Bucha was governed by custom and found this issue against the respondent. Issue's Nos. 4 and 6 were found in favour of the petitioners and it was held that Mst. Amina Mai was the daughter of Bucha and was entitled to her Islamic share of inheritance in the estate of her deceased father. Consequently, vide judgment and decree, dated 25‑11‑1989, the suit of the petitioners was decreed in their favour.

9. The respondent preferred an appeal, wherein the judgment and decree of the learned trial Court was assailed on the ground that the suit was time‑barred, that the plaintiff had failed to prove that Mst. Amina Mai was the daughter of Bucha and more importantly on the ground that at the time of the impugned mutation of inheritance, the family of Bucha deceased was governed by custom The learned Appellate Court upon reconsideration of the case placed reliance upon Exh.D.1, copy of Wajib‑ul‑Arz for the year.1904 and Exh.D.20 to Exh.D.37 copies of mutations of inheritance relating to Mouza Goth Lal showing the inheritance of male heirs only and came to the conclusion that the deceased Bucha was governed by custom and Mst. Amina Mai was not entitled to inherit him. It was also found that the suit of the plaintiffs tiled on 21‑11‑1987 against mutation dated 7‑3‑1920 was barred by time. The learned Appellate Court, however, held that Mst. Amina Mai was the daughter of Bucha. As a result, the appeal was accepted on 31‑1‑1991, the judgment and decree of the learned trial Court was set aside and the suit of the petitioners stood dismissed.

10. The important question raised in this civil revision is whether Bucha deceased was governed by custom and whether the respondent upon the strength of evidence on the record have been able to prove the custom whereby females were deprived from inheritance.

11. The review of the evidence on the record would show that it will primarily be the documentary evidence which can determine the issue. It is not disputed that Mst. Amina Mai was the daughter of Bucha. However, upon the strength of Exh. D.1, the respondent urged that in village Goth Lal, custom of Pagwand i.e. inheritance by the male heirs per capita to the exclusion of female heirs of the deceased was inforce. The actual entry in Exh.D.1 relevant to the case is reproduced asunder:‑‑ Copy of Shart Wajib‑ul‑Arz for the year 1904 is Exh.D.1. The respondent has also placed on the record Mutations Exh.D.20 to Exh. D.37 which are mutations which have been invariably entered in the year 1921‑22, although, Exh.D.36 and Exh.D.37 related to the year 1925‑

26. It is the case of the respondent that these documents were sufficient to prove custom coupled with the statements of D. W.1, D.W.2 and D.W.3.

12. It may be important to note that the respondent had not produced any evidence prior to the year 1904 in order to support their claim regarding custom. Interestingly, Shart Wajib‑ul‑Arz for the year 1925‑26 was produced by the respondent himself as Exh.D.2. This very document has been tendered by the petitioners as Exh.P.12 and further supported it by Exh.P.13. According to Exh.D.2, the rule regarding succession is stated as under:‑‑ The petitioners have also produced mutations relating to the year 1925‑26 onwards to show that female heirs of a deceased Muslim received their Islamic Law Share of Inheritance.

13. The entire contention of the respondent was that the alleged custom prevailed in Mauza Goth Lal from 1904 upto 1925‑

26. In fact, it was upon this specific contention that issue No.4‑A was framed in the‑following terms:‑‑ "4‑A. Whether there was no right of inheritance available to the daughters in 1904 to 1925 in the village Goth Lai? If so, what effect? In other words, the custom which was claimed commenced in 1904 and was put to an end in 1925. The precise question 'would be whether such time bound practice even if proved shall amount to custom, so as to override governing principles of Islam relating to inheritance.

14. In order to determine the. rule of decision for matters of succession, it would be appropriate to refer to section 5 of the Punjab Laws Act, 1872 which is reproduced as under:‑‑ "Decisions in certain cases to be according to native laws.‑‑‑In questions regarding succession, special, property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, basterdy, family relations, Wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be‑‑ (a) any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent Authority. (b) the Muhammadan Law in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to.

15. The effect of section 5 was that notwithstanding that Muslim Law was to be applied as the governing rule under sub clause (b), this was subject to any modification made by any custom which was alleged and proved to have modified the Muslim Law.

16. From the above, it is manifest that whenever custom is alleged which is contrary to the Muslim Personal Law (Shariat), the person alleging the same must prove the existence of that custom and also as to what that custom is.

17. According to Halsbury, a custom is a particular rule which has existed either actually or presumptively from time immemorial and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm. Before practice is clothed with the authority of a custom, it must be proved that the same existed from a date beyond memory arid has been consistently followed by all and sundry. It is this collective will of the people practised from time immemorial which will grant legal sanction to what otherwise would be merely a matter of practice. Even in the Indo Pak Subcontinent, this rule of antiquity of custom is followed, though not with the rigidity as stated hereinbefore. What is necessary to be proved is that the usage has been acted upon in practice for such a long time and so invariably that it acquires the status of a governing rule.

18. This shall now take us to the evidentiary value and the primary object of Wajib‑ul‑Arz which reflects the existence of such a custom. Here a line of distinction between Riwaj‑i‑Aam and Wajib‑ul‑Arz has to be drawn. Riwaj‑i‑Aam is the record of Custom prevailing in a territory or a tribe in all matters including succession. Wajib‑ul‑Arz, on the other hand, concerns itself mainly with the customs relating to right and liabilities in an estate. Instances of some such rights and obligations are as under:‑‑ (a) Common land, its cultivator and management and the enjoyment of the proceeds thereof; (b) Rights of grazing on common land. (c) Rights to the enjoyment of produce. (d) Usage relating to irrigation of land. (e) Customs relating to irrigation of land. (f) Customs relating to mills, tanks, streams, or natural drainage. (g) Customs of alluvion and diluvion. (h) The rights of cultivators of alt classes not expressly provided for by law (for instance, right to trees or manure and rights to plant trees) and their customary liabilities other than rent. (i) Customary dues payable to village servants and customary service to be rendered by them. (j) The rights of Government to any nazul property, forests, unclaimed, unoccupied, deserted, or waste lands, quarries, ruins, objects of antiquarian interest, spontaneous and other accessory interest in land included within the boundaries of the estate. (k) The rights of Government in respect of fish and fisheries in streams, rivers, etc. (l) Any other important usage affecting the rights of landowners, cultivators or other persons interested in the estate not being a usage relating to succession and transfer of landed property. In view of this distinction, an entry regarding custom in respect of succession in Wajib‑ul‑Arz cannot be received with same legal value as is associated with the Riwaj‑i Aam.

19. Viewed in this perspective, the custom alleged by the respondent and which is alleged to have its roots only in the Shart Wajib‑ul‑Arz for the year 1904 and which was admittedly superseded by the subsequent Sham Wajib‑ul‑Arz of 1925‑26 shall not have the legal sanction of a custom as understood in law and shall not by any stretch of imagination override or supplant the rules of succession as ordained in the Injunctions of Islam. Having, come to this conclusion, the rule governing the inheritance of Bucha deceased shall be the Muslim Personal Law irrespective of the fact that he died in 1920.

20. This proposition of law has been set at rest by the promulgation of the Punjab Ordinance No.XIII of 1983, by virtue of which, the following section 2‑A was incorporated in the Punjab Muslim Personal Law. (Shariat) Application (West Pakistan Act V of 1962):‑‑ S.2‑A Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:‑‑ (a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat)."

21. The effect of this provision would be that no matter when the Muslim propositus died, his estate would devolve upon all his legal heirs in accordance with the Islamic Law of Inheritance.

22. As it is being held that the predecessor‑in‑interest of the petitioners I namely Mst. Amina Mai was entitled to succeed deceased Bucha to the extent of 1/2 share in his estate upon his death, the bar of limitation shall not apply against the petitioners.

23. For the afore‑stated reasons, this civil revision succeeds, the judgment and decree, dated 31‑1‑1991 of the learned Appellate Court is set aside and the decree passed by the learned trial Court is maintained, leaving the parties to bear their own costs. Order accordingly. T.A.F./M‑1268/L