P (PLP)

MEHR CHAND MAHAJAN J.‑This appeal arises out of a partition snit and embraces certain land and a number of houses. In order to appreciate the dispute it is necessary to set out the pedigree‑table of the parties. |

Karim Bakhsh Rahim Bakhsh | | | Allah Bakhsh, | | | Daughter

Muqim Miran Mehr Mst. Fazal‑ Daughter Bakhsh Baklish Bakhsh un‑Nisa Begum, Imam | | widow Defendant Bibi | Maula | | Bakhsh | | | | | |

| | Muham‑ Muhammad Daughter Daughter =Taj Din Daug1hter | | mad Hateez Wazir Amir‑ Defendant 8 ‑Iqbal | | Latif Plaintiff Begum un‑Nisa | Begum | | Defendant Defendant Begun | Defendant | | | | |

| | Said‑ud‑Din Rashid‑ud‑Din . Daughter | | Defendant

5. Defendant

6. Surayya Begun | | Defendant 7. | |

| Abdul Hamid Abdul Majid Kala | | |

Muhammad Muhammad Daughter Ibrahim Hassan The ancestor of the parties, Mian Mehr Bakhsh was an old resident of the town of Lahore. He was popularly known as Mehr. Mali. The name of the locality where his house was situate was known as Kucha Mali Gulfarosh, (mohalla Sathan), Lahore Recently that Kucha has been named as Kucha Haji Muqim Bakhsh. It is certain that Mali had died before 1868 and the Kucha must have been named after him sometime before that date. There is considerable evidence on the record that he used to sell flowers, as the Kucha named after him indicates.' In the year 1868, the two sons of Mali are shown as owners of a half share in two pieces, of land situate at village Katarband which is situate at a distance of about 12 miles from Lahore. Half of 53 kanals 10 marlas owned by them was sailab land while half of 71 kanals 8 marlas, which is recorded as in their‑ownership, was described as banjar qadim. In the year 1892, Karim Bakhsh was shown as jointly owing this half share with Allah Bakhsh son of Rahim Bakhsh. In the year 1913‑14, Allah Bakhsh's share went to his daughter Khair‑un‑Nisa, while the share of Karim Bakhsh was held by his three sons. The later jamabandi entries show that Allah Bakhsh's daughter died and her share also came to the descendants of Karim Bakhsh. The family owned also some land in village Shishmahal which was at one time a village near Lahore but has now become a part of the area of greater Lahore. Both sons of Mali were shown as owners of 6 bighas 17 biswas of land in the year 1.868. In the year 1892, however, the area was reduced to 3 bighas 13 biswas and Karim Bakhsh alone was shown as the owner. It is not known what happened to the share of Rahim Bakhsh. Subsequently, Karim Bakhsh's share was inherited by his three sons. It is also in evidence that the family had some landed property in village Faizpur but it seems to have been subsequently acquired. On the 12th of March 1885, Karim Bakhsh executed a deed of dower in favour of his daughter‑in‑law Mst. Fazal‑un‑Nisa. In that deed of dower he described himself as a resident of mohalla Sathan, Kucha Mali Gulfarosh, and stated as follows:‑- "My real son Mehr Bakhsh, grandson of Mali, aforesaid, has been betrothed to Mst. Fazal‑un‑Nisa, daughter of Haii Shahab Din, son of Mehr Murad Bakhsh, caste Arain, resident of Lahore, Bhati Gate. The condition is that prompt dower amounting to rupees one thousand and two hundred (Rs. 1,200) as marriage consideration of the aforesaid Fazl‑un -Nisa has been fixed as per following detail :‑ One well containing water with land, measuring 8 ghumaons 1 kanal and 3 marlas, * * * situate at mauza Shishmahal, tahsil Lahore, valued at Rs. 600 (rupees six hundred), a house with site underneath, built of pucca, bricks, situate in the city of Lahore, Guzar Talwara, * * * valued at Rs. 200, and clothes, gold and silver ornaments worth Rs. 200 would be given‑to the aforesaid Fazl‑un‑Nisa at the time of the reading of the nikah." This deed was registered on the same date and in the registra tion endorsement Karim Bakhsh described himself as a resident of Lahore, mohalla Sathan, Zaonindar by occupation. The sons of Karim Bakhsh, Mehr Bakhsh, Muqim Bakhsh and Miran Bakhsh, were not engaged‑in agricultural pursuits. It is in evidence that Muqim Bakhsh was a contractor and it is common ground between the parties that he acquired property worth lacs. A number of houses, agricultural lands and considerable movable and immovable property was acquired by him. Karim Bakhsh, his father, looked after the agricultural lands of his son. He engaged servants and got the lands cultivated through them. Mehr Bakhsh was a building contractor and eked out his living by that profession. The third brother Miran Bakhsh worked as a mason. Defendant Muham mad Latif stated that his father used to do contract business and also used to sell fruits and give lands on lease. It is common ground between the parties that both Muhammad Hafeez and Muhammad Latif are not engaged in agricultural pursuits. Both of them live on service. The plaintiff has also been carrying in a shop. It appears that Karim Bakhsh was not possessed of much wealth ; excepting a small share in the Katarband land and in the Shishmahal village he had very little property. He was really living with his son Muqim Bakhsh, a rich man, and was looking after his property. When he died, the lands entered in his name were mutated in the name of his three sons. In the present litigation we are only concerned with the descendants of one of his sons, namely Mehr Bakhsh. Mehr Bakhsh died in the year 1932. On his death he left seven houses which he had purchased with his own money and he also left his share in the Katarbandwali land and his share in the lands situate on Mohni Road, Lahore. He also left certain land at Faizpur which was his self‑acquired property. Mehr Bakhsh bad money dealings with the Punjab and Sind Bank, Lahore Branch, since 1920. The Bank had obtained a decree against him. It appears that Mehr Bakhsh had given security of the house that had been given to his wife in dower in 1885 to the Bank. Mst. Fazal‑un-Nisa on the 28th of July 1929 had also written to the Bank that she had no claim for dower on this property (vide Exhibit D. 55). After the death of Mehr Bakhsh letter Exhibit D 54 was sent to the Bank signed by lust. Fazal‑un‑Nisa and the three daughters to the effect that they had no claim on the property of Mehr Bakhsh. The account of Mehr Bakhsh seems to have been transferred in the name of his two sons and they were making payments to the Bank. The Bank made no inquiries about the rights of the ladies and started dealing with the plaintiff and defendant No. 1 on the footing of Exhibit D.

54. The writing was obtained by the sons in order to avoid trouble with the Bank which was threatening a suit. The Manager of the Bank as D. W. 7 has given evidence to that effect. It seems that Muhammad Latif went on managing the property, realizing the rents, spending money on repairs and paying debts, etc. For some time ' the two brothers and the sisters were pulling on amicably. Eventually, on the 2nd of July 1940, Muhammad Hafeez brought the present suit for possession by partition of a one‑fourth share under Muhammadan Law. Curiously enough he also claimed a half share alternatively under Custom. The suit related to seen houses and a residential site on the Mohni Road. It was alleged in the plaint that the whole of the property belonged to Mehr Bakhsh, that the parties were governed by Muhammadan Law and the plaintiff was entitled to one‑fourth share in the entire property. It was also alleged that in case the Court held that the parties were governed by Custom, then he was the owner of one‑half share. The suit was resisted by Muhammad Latif, defendant No.

1. He raised a number of preliminary objections and filed a written statement on the merits. He contended that in matters of succession Mian Mehr Bakhsh and his family were not governed by Muhammadan Law, but being Arains they belonged to an agricultural tribe and according to the custom prevailing in that tribe widow and daughters .did not get any share in the presence of sons. He also pleaded that defendants 2 to 4 and the mother of defendants 5 to 7 had admitted that they had no right in the property left by Mien Mehr Bakhsh. It was also alleged by him that he bad been spending money from his own pocket on repairs and on the marriage of his sister, defendant No. 4, and that he had advanced a sum of about Rs. 3,000 to his father on various occasions. He also put in a list of the debts due from Mian Mehr Bakhsh which he alleged had been paid by him. The mother and the sisters supported the plaintiff's case that they were governed by Muhammadan Law and that they were entitled to a share. Mst. Fazal‑un‑Nisa pleaded that 141st. Wazir Begam, defendant No. 3, was entitled to get in addition to her share Rs. 9,000 out of the property of Mian Mehr Bakhsh on account of certain ornaments kept in trust by her with her father. The plaintiff in his replication stated that the agricultural lands had not been included in the suit as that matter could only be agitated in a Revenue Court. It was also said by him that the house in Kucha Muqim Bakhsli was absolutely owned by has mother and that the ornaments which defendant No. 1 claimed were the property of Mst. Wazir Begam. As many as 15 material issues were struck in the case and represent fully the controversy that arose between the parties. They are as follows:‑ 1.Whether the parties are governed by custom in matter of inheritance and if so, what is that Custom ?

2. Have plaintiff and defendants 2 to 4, and Amir‑ul- Nisa, mother of defendants 5 to 7, admitted that they are not entitled to share in the estate? If so, what is the effect ?

3. Whether the house situated in Kucha Haji Muqim Bakhsh and referred to in the preliminary objection No. 2 of the written statement of defendant No. 1 forms part of the estate of Mehr Bakhsh ?

4. If Issue No. 3 is proved, whether the house should not be included in the partition ?

5. Whether the ornaments pawned by Mehr Bakhsh with Bhagat Ram Amir Chand are the exclusive property of defendant No. 3, and should not be included in the partition ?

6. Whether the land mentioned in clause H. E. of the plaint is not agricultural land ?

7. If Issue No. 6 is decided in favour of plaintiff, whether a suit does not lie in this Court in respect of this land ?

8. Whether defendant No. 1 has made any improvements on the property in suit out of his own pocket. If so to what compensa tion, if any is he entitled ?

9. Whether defendant No. 1 paid any debts of Mehr Bakhsh deceased from his own pocket ? 1f so, to what compensation, if any, is he entitled ?

10. Has defendant No. 1 spent anything on the marriage of defendant No. 4 from his own pocket ? If so, what amount and is this a charge on the family property'?

11. Whether defendant No. 1 advanced Rs. 2,927‑10‑0 to Mehr Bakhsh from time to time for the construction of houses, etc. ? If so, is this realisable from the estate ?

12. Whether defendant No. 1 incurred any expenses on litigation on behalf of the estate out of his own pocket. If so, to what compensation, if any, is he entitled ? ,

13. To what share of the estate are the parties entitled?

14. Whether ornaments worth Rs. 6,000 and cash Rs. 3,000 were deposited by defendant No. 3 with Me hr Bakhsh and where ? If so, to. what compensation or relief, if any, is she entitled ?

15. Whether the other parties have admitted this claim of defendant No. 3. and are estopped from denying it ? The trial judge held on Issue No. 1 that the parties were governed by their personal law rather than by Custom. As regards Exhibit D. 54, the learned judge held that the document was prepared with the set object of putting off the Punjab and Sind Bank as far as possible and that defendant Nos. 2 to 4 and the mother of defendants 5 to 7 never intended to give up their share by executing that document in the property of Mehr Bakhsh. Under Issue No. 3 it was held that Exhibit P. 4 was not a sham document in spite of the fact that Karim Bakhsh subsequently gifted away this house to Muqim Bakhsh in the year 1900 and then Muqim Bakhsh sold it to Mehr Bakhsh. It was held that Mst. Fazal‑un- Nisa was not aware of these transactions and those documents did not adversely affect her interests. The learned judge also found that defendant No.1 himself treated these documents as worthless as appears from his statement Exhibit P. 1 made in the year 1929. In the result it was held that the house covered by Issue No. 3 belonged to defendant No. 2 and that excepting defendant No. 1 each and every party had admitted this, house as the properly of defendant No.

2. In view of the finding on Issue No. 3 it was held that the house situate in Kucha Muqim Bakhsh need not be included in the suit. As regards the ornaments pawned by Mehr Bakhsh to Bhagat Ram Amir Chand, the learned judge found that these exclusively belonged to defendant No.

3. On Issues 6 and 7 it was held that the land was revenue paying and therefore its partition could only be effected by Revenue authorities. The claim of defendant No. 1 under Issue No. 8 to the extent of Rs. 1,093 was negatived. It was held that he had failed to prove that he had made any improvements to the property. On Issues 9 and 12 it was held that certain payments had been made by defendant No. 1 to the creditors of Mehr Bakhsh but that these payments were made out of the income of tile property. The learned judge found that admittedly the rent realized by the defendant amounted to Rs. 6,562‑9‑0, but that be must have realized at least Rs. 11,000 and the payments made by defendant No. 1 should be Debited as against this income. The learned judge found on Issue No. 10 that it has not been proved that defendant No. 1 spent any thing on the‑marriage of defendant No.

4. Issue No. 11 was decided against the defendant. It was held that defendant No. 1 had not advanced Rs. 2,937‑10‑0 to his father. In the result the plaintiff's share in the property was declared to be one‑fourth, of defendant No. 2 one‑eighth, of defendant No. 1 one‑fourth, of defendant No. 3 one‑eighth, of defendant No. 4 one‑eighth and of .defendant Nos. 5 to 8 one‑eighth and a preliminary decree with costs was granted to the plaintiff for partition of the suit property. This decision was given on the 5th of March, 1942. The plaintiff had valued the suit for purposes of Court‑fee and jurisdiction at Rs. 110 under section 7 (iv) (b) of the Court Fees Act. Defendant No. 1 raised an objection that the value for purposes of jurisdiction and Court‑fee should be the value of half share of the property namely Rs. 18,000: On the 20th of January, 1941, the trial judge disposed‑ of this issue and held that the suit was properly valued both for, purposes of Court‑fee and jurisdiction. The value of the suit for purposes of jurisdiction being Rs. 110, defendant No. 1 preferred an appeal against the decision of the trial judge dated the 5th of March, 1942, to the Court of the Additional District Judge, Lahore. This appeal was decided by the Additional District judge ‑on the 17th of November, 1942. He held that the proper Court‑fee on the plaint was Rs. 10 under Article 17 (vi) of the II. Schedule. In view of a decision of a Full Bench of this Court in

1. L. R. 22 Lah: 308, the counsel for both the parties agreed that the Court‑fee payable was Rs. 10 and that for purposes of jurisdiction the value of the suit was the value of the plaintiff's share in the property, i.e., Rs. 18,

000. The learned judge, therefore, remanded the case under O. XLI, rule 23, for getting the plaint amended for the purpose of correcting the values given in it both for purposes of Court‑fee and jurisdiction. Against the decision of the learned Additional District Judge an appeal was filed in this Court (F: A. O. 169 1942). This was decided by a learned Single judge‑on the 8th of April, 1943, and it was ordered that the case be returned to the District judge for being re‑admitted under its original number and that the District judge should return the memorandum of appeal for presentation to the proper Court. The memorandum of appeal was actually returned by the Additional District judge on the 5th of May 1943 and the appeal was presented to this Court on the 6th of May, 1943. At the hearing of ‑the appeal a preliminary objection was raised to the effect that it was barred by limitation. In my opinion this preliminary objection is void of force. In view of the decision of the trial judge dated 20th of January, 1941, that the suit was properly valued both for purposes of Court‑fee and jurisdiction, the appellant had no option but to prefer the appeal to the Court of the District judge in the first instance. When before the District judge the parties agreed that the correct value of the suit for purposes of jurisdiction wax Rs. 18,000, the District judge bad no option but to return the appeal for presentation to the proper Court. No Sooner the appeal was returned by the District judge, it was presented to this Court. The memorandum of appeal was, therefore, presented bona fide to the Court of the District judge and in these circumstances the delay in preferring the appeal to this Court must be condoned. We accordingly; condone it and over rule the preliminary objection. The appellant Muhammad Latif in the first instance argued the question of Court‑fee and contended that the respondent had not made good the Court‑fee on his plaint. He also argued that all proceedings taken in the Court of Mr. Ayub were without jurisdiction and the case should be sent back for trial de novo. In my opinion, there is no force in, either of these contentions and the points raised do not require any discussion whatsoever. The real issue which requires determination in this appeal is whether the parties are governed by Custom or Muhammadan Law. The trial Judge held that the parties were residents of Lahore proper and so were their ancestors and that none of them ever resided in any village, that there was no compact village community of the Arains of Lahore and that neither the plaintiff nor defendant No. 1 nor their father or uncles ever tilled land with their own hands. It was further pointed out that their main source of livelihood could not be land as the income of the land owned by them never exceeded Rs. 60 per annum, and that in these circum stances it was idle to contend that the principal source of livelihood of the parties or their ancestors could have been agriculture. On the other hand, on the evidence of D. W. 3 and D. W. 4 it was abundantly clear that the plaintiff's father and uncles were fairly big traders and contractors. In the result the learned trial judge came to the conclusion that the ancestors of the parties were gulf arosh Arains and in view of a decision of the Chief Court in 25 P. R. 1882; it should be held that the family was governed by personal law rather than by Custom. In my view, the decision of the trial judge on this question cannot be successfully challenged. As pointed out above, it cannot but be held that Mehr Mali was an original resident of the ancient town of Lahore. He must have resided in one of the oldest; mohallas of Lahore in. the pre‑British period or soon after the British occupied this city. It appears that he was a popular and well‑known resident of the town so much so that a kucha was, named after him. From the year 1892 from the entries in the revenue papers it appears that the descendants of Mali have been described as residents of Lahore. The evidence on the point is unanimous that the ancestral house of this family is in Mohalla Sathan, Kucha Mali Gulfarosh. There is no evidence whatsoever connecting the family of Mehr Mali with any village or with agri culture. The appellant conceded that Shishmahal is a village bechiragh and therefore there was no abadi in that village where the ancestors of the parties could have lived. It was also conceded that the family never resided in Mauza Katarband. On the other hand, during the course of the arguments the appellant admitted that his ancestors‑came from Arabia and settled in this town. In these circumstances, there can be no matter of doubt that neither an ancestor of the parties nor any member of this family ever resided in a village or was associated with the agriculturists resid ing in this Province. The family has been a family of towns people and town dwellers. The land in their possession was wholly insufficient for their subsistence and it seems their main occupation in life was the occupation of city dwellers, i.e. of flower sellers or fruit sellers etc. It seems to me that the lands which they had in Shishmahal were purchased by them for the purposes of their occupation as flower sellers. In Exhibit P. 1, which is an earlier statement of defendant No. 1 made in the year 1929, it was admitted by the defendant that there was a small garden or the Mohni Road land belonging to them and that there were 20 rose plants, five or six moth plants and a few sweet lime plants on that land. This statement supports the view which I have states above. The occupation of the descendants of Mehr Mal has not been agriculture, but most of them have been contractors or are in service. It was the contract business of Mehr Bakhsh and of Miiqu1 Bakhsh that brought prosperity to the members of this family, In view of the fact that the Arains of the town of Lahore or not form a compact village community, that the' main source of livelihood of the family of these Arains is not agri culture, that they are city dwellers since ancient times and never lived in any agricultural village, the trial judge was right in raising the initial presumption that they we're governed by Muhammadan, Law and not by Custom. The onus of Issue No. 1 was, therefore, rightly laid or the defendant. The question for consideration noun is whether the defendant has successfully discharged the burden that rested on his shoulders. He has produced some oral evidence in support of his case. D. W. 3 Ibrahim is son of Haji Muqim Bakhsh. He deposed that the parties follow Custom and that he did not give any share to his sister. He admitted in cross‑examination that his sister brought a suit for her snare it the inheritance of her father. The suit was compromises and the sister was given certain pro‑notes of the value of Rs. 3,

000. The witness asserted that this amount was given by way of litigation expenses. The next witness, D W. 4, Haji Muhammad Salim is the brother of D. W.

3. He gave evidence to the same effect, but stated that they gave Rs. 3,000 to their sister as bakhshish, It: was asserted by this witness that their grandfather used to cultivate land personally. In cross-examination it was conceded by him that his son had filed a declaratory suit to contest certain alienations made by him on the basis of Custom, The testimony of this witness is clearly of an interested person. Having sold some property he wishes to recover that by means of a declaratory suit filed by his son and he can only succeed if a finding is given in this case that the family is governed by Custom. D. W. 9 Manzur Ahmad is an Arain, aged 28 years. He is lambardar. He stated that the Arains follow Custom. The witness is son‑in‑law of defendant No. 1 and is certainly interested in given evidence in favour of his father' in‑law. He gave evidence that the sons of Haji Muqim Bakhsh alone inherited his property and not his daughters. D. W. 10 is, an ekka plyer of the town of Lahore. He asserted that among rains daughters are not entitled to inherit. Apparently the witness has not much information on the question of Custom. His bald statement is of no value. D. W. 11 Zahur Din is a shopkeeper of Lahore and he stated that he did not give any share to his sister. He conceded that the Arains of Lahore have two brotherhoods but he could not say which of the brotherhoods followed Custom and which Muhammadan Law. The last witness on this point was the defendant himself and he stated that they have been following Custom since ancient times, though he admitted that his father used to do contract business, used to sell fruits, used to give lands on lease and did building contracts. The plaintiff, Mst. Fazal‑un‑Nisa defendant No. 2, Mst. Wazir Begun defendant No. 3 and Mst. Iqbal Begum defen dant No. 4 gave evidence against the plea of Custom and asserted that they were governed by Muhammadan Law. Abdul Qadim. son of Mst. Wazir Begum also asserted that they were governed by Muhammadan Law and not by Custom. D. 2 and 3/W. 3, Mr. Muhammad Yusaf, who is an E. A. C. and was at one time an arbitrator appointed by the parties, also gave evidence that the parties were governed by Muhammadan Law. In my opinion, the oral evidence produced by the parties is not of much use. Most of this evidence is of interested parties or persons connected with them. There is really no independent evidence of the Arain resi dents of the town of Lahore in support of the case of either of the parties. There is no evidence in the way of instances which could prove the existence of Custom contrary to Muhammadan Law. It was asserted that lust. Imam Bibi, daughter of Karim Bakhsh did not get the inheritance of her father. One witness produced by the plain tiff stated that though she was given no share in the property of her father yet her brother purchased a house for her. Another witness stated that Mst. Imam Bibi had died during the life‑time of her father. Defendant" No. 1 himself stated that she was alive but she was given no share in the property. Karim Bakhsh left very little property and there was nothing worth fighting about. In the first place it is not established conclusively whether Mst. Imam Bibi was alive at the time when Karim Bakhsh died or had pre deceased him. But even if she was alive and did not share the inheritance of her father with her brothers, this circumstance does not show that the parties followed Custom because the property left by Karim Bakhsh was insignificant. Moreover, it is well‑known that amongst Muhammadan families it is in very rare cases that sisters and widows demand their shares from the male heirs. In this connection reference may be made to a decision of their Lord ships of the Privy Counsel in Sardar Nisar Ali Khan and others v. Mst. Fatima Sultan and others (A. I. R. 1941 P. C. 62), in which their Lordships made the following 'observations:‑ In very case of this kind the burden of proof lies heavily upon the plaintiff. Furthermore, their Lordships in the last mentioned case repeated with approval a, passage from the judgment in ,8 Mad. 464 at p. 465 which runs thus: But instances of this kind will be found to occur where there is no doubt that the family is governed by pure Muhammadan Law. Indeed in many parts of the country it is unusual for Muhammadan ladies to insist on their unquestioned rights. They will often prefer being maintained by their brothers to taking a separate share for themselves * * * Moreover Muhammadan females are so much under the influence of their male relatives that the mere partition of the property among the males without reference to them, cannot count for much." It has quite often been pointed out by this Court that the mere non‑assertion of their rights on the part of female Muhammadan heirs is not of any importance while determining the question as to existence of Custom. They seldom assert their sharai rights and are complacent enough to be satisfied with whatever little is given to them by their brothers or sons. The only other instance cited was of the daughter of Muqim Bakhsh. She, however, asserted her right and instituted a slit though that suit was eventually compromised and the question whether the parties were governed by Custom or Muhammadan Law was left open. But the fact remains that she did assert her right and eventually got a sum of Rs. 3,000 by a com promise. This instance certainly cannot help, the plea of defendant No.

1. In my opinion no occasion has really arisen for any daughter or sister or widow in this family to assert her rights and‑ to fight the matter to a knish, because except in the case of Muqim Bakhsh, no inheritance opened out which was worth fighting for. The result, therefore, is that there is no evidence of instances to establish the contention of the defendant that the family of the parties is governed by Custom. The initial presumption is against Custom and there is no sufficient evidence to shift the initial burden that rested on him. A number of authorities were cited for the proposition that migration of a person, who once followed Custom, to a town does not of itself lead to the conclusion that he has given up following the rules of Custom and has gone back to his personal law. It must further be shown that he has abandoned the rules of Custom that he originally followed and has adopted the rules of Muhammadan Law. These authorities are of no assistance in the present case for the simple reason' that at no period of time did this family adopt the rules of Custom. There is no evidence that they ever gave up their personal law which in the first instance must be assumed to govern them. Mehr Mali or his descendants had never any agricultural associations though they certainly belonged to the predominant agricultural tribe of Arains. But the mere fact that they axe members of an agricultural tribe is not sufficient to hold that they are subject; to Custom. The plaintiff's counsel drew our attention to two cases of Gulfarosh Arains of the town of Lahore in which it has been held that they were governed by Muhammadan Law. There were, however, two other cases reported in Punjab Record of 1915 of another section of the Gulfarosh Arains of Lahore to the effect that they followed Custom. In my opinion, each case has to be decided on the material that the parties place on the record of that case. No hard and fast rule can be laid down. There are Arains who follow Muhammadan Law ; there are other Arains who follow Custom and the question for decision here is whether this family of Arains is one of those who are subject to Custom or amongst those Arains who follow Muhammadan Law. In my opinion, the evidence on the present record is wholly insufficient to hold that they are subject to Custom and therefore they must be presumed to follow their personal law. It was also mooted at the Bar whether they were Gulfarosh or were Gil Arains. It is no doubt true that Mehr Mali was described as Gilan Arains. Defendant No. 1 asserted that they were Qawali Arains. On the materials placed on this record it is very difficult to say as to what tribe this family of Arains really belongs. The evidence is of an inconclusive nature and on its basis no definite finding can be given. Be that as it may, this question cannot affect the conclusion that defendant No. 1 has failed to establish that the family of Mehr Mali was governed by any rules of Custom con trary to the rules of Muhammadan Law. In my opinion, there fore, the trial judge rightly held that the inheritance of Mehr Bakhsh should be partitioned according to the rules of Muhammadan Law. Considerable stress was laid by the appellant on the admission of the defendants contained in Exh, D‑

54. This document written to the Bank and stating that they had no claim on the property of Mehr Bakhsh is typed in English while the widow and the daughters are illiterate and Purdahuashin. There is no satisfactory evidence that the contents of the letter were explained to them. Be that as it may, it is quite clear that in order to accommodate their brothers with the Bank they put their thumb impressions on this document. It was not present to their mind at that time that they were relinquishing their rights in the property of Mehr Bakhsh. In my opinion, on the basis of this admission the two brothers, the plaintiff and defendant No. 1, could not be declared to be the sole heirs to the property of Mehr Bakhsh. The appellant contested the finding of the trial judge that the house in Kucha Muqim Bakhsh belonged to defendant No. 2 because it has been gifted to her in the year 1885 by Karim Bakhsh. It was contended that the dower deed was a sham document and that Karim Bakhsh never acted upon it because four years later lie gifted it to Muqim Bakhsh, his son, and then later on Muqini Bakhsh sold it to Mehr Bakhsh. The action of Karim Bakhsh in resiling from the dower deed later on could not affect the title of defendant No. 2 to this house. In the year 1929 defendant No. 1 himself made a statement to the effect that this house has been given to defendant No. 2 by Karim Bakhsh. He did not state then that the dower deed was a sham document. It cannot but be noticed that each and every member of the family, with the exception of defendant No. 1 supports the claim of defendant No.

2. Their attitude is against their own interests and cannot be ignored from consideration. In my judgment, the learned trial Judge rightly held that this house was the property of defendant No. 2 and did not form part of the inheritance of Mehr Bakhsh. As regards the ornaments, the appellant contended that these ornaments did not belong to defendant No.

3. The other ladies of the family did not lay any claim to these ornaments. Their statements on this point are against their own interests and deserve considerable weight. There is evidence on the record, which the trial judge accepted, that these ornaments were de posited by defendant No. 3 with her father who subsequently pawned them. I have not been able to discover any material on the record for arriving at a different conclusion than the one at which the trial judge arrived on this point. In my view, it has been rightly held that these ornaments belonged to defendant No. 3 and are not a part of the inheritance of Mehr Bakhsh. As regards the defendant's claim for the sum of Rs. 1,093, there is no sufficient material to substantiate it and it has been rightly disallowed by the trial judge. I also concur in the conclusion of the trial judge on Issues 9 and 12 to the effect that whatever payments defendant No. 1 may have made to discharge the liabilities of Mehr Baksh his father, lie has sufficiently recouped himself for those payments out of the income of property which came into his hands. Defendant No. 1 failed to maintain regular accounts in respect of income of this estate and every presumption has to be drawn against him. The question of the marriage expenses of Mst. Iqbal Begum was not agitated seriously in appeal. The same remark applies to the claim of defendant No. 1 regarding advances made by him to Mehr Bakhsh. He should have claimed them from his father during his life‑time or taken some writing from him about them. In my judgment, none of the contentions of the appellant have any force whatsoever. For the reasons given above this appeal fails and is dismissed. In the circumstances, however, of this case I would leave the parties to bear their own costs throughout. A. RAHMAN, J.‑I agree. A. H. Appeal dismissed.