P L D 1956 Supreme Court (Pak (PLP)

MUHAMMAD SHARIL, J.‑This is an appeal by certifi cation from the judgments and decrees of tae High Court of Judicature at Lahore (now High Court of West Pakistan, Lahore), dated the 17th of February 1953, reversing on second appeal the decisions of the Subordinate Courts and granting decrees for declaration in suits to contest alienations under custom. The property in dispute, very extensive in area was owned by one Sayyed Riaz Hussain Shah who died somewhere about 1933. He left behind this widow, Mat. Khurahid Bono, and her daughter Mst. Shahzadan Bibi, as also another daughter Ust. Hakim Zadi from his predeceased wife. On his death, a mutation was effected in the names of Mst, Khurshid Bono, the widow, and Mst. Hakim Zadi the daughter in equal shares. On Mat. Khurahid Bibi's death, her half share descended to her unmarried daughter, ,Mst. Shahzadan Bibl. Similarly, on the marriage of Mst. Hakim Zadi, her share was also mutated in the name of Mst. Shahzadan Bibi. In this way, Mst. Sbahzadan BlbI came to be in possession of the entire estate of her father. Rlaz Hussain Shah. By mutations Nos. 489 and 490, Mst Shahzadan . Bibi trade a gift of 5192 kanals 4 marlas of land to Hakim Zadi, her step‑sister, and her husband Manzur Hussain and by mutation No. 491, 1828 kanals 8 marlas were also gifted away to the above donees in the same shares. These three mutations were sanctioned on 10th of April 1949. Amir Hussain Shah, the respondent in this appeal, instituted two suits for a declaration that the alienations by way of gift by Mst. Shahzadan Bibi in favour of Mst. Hakim Zadi and her husband Manzur Hussain, defendants 2 and 3, were opposed to law and custom and as such should not affect his reversionary right to succeed on the termination of the interest of Mst. Shahzadan Bibi. It was alleged that the donor was in possession of the property under custom and in the presence of the plaintiff, her father s reversioner in the third degree, she could not deal with the property in any manner she liked. The defendants controverted the allegations and maintained that the plaintiff had no locus standi to sue : that the parties were not governed by custom but by Muhammadan Law relating to asna ashri Shia sect, according to which the plaintiff had no right to bring the suits. It was further asserted that under the Shariat Act of 1948 the plaintiff was not in the line of succession of Riaz Hussain Shah and was not, therefore, entitled to institute the suit. The trial Court held that the plaintiff was not able "to cite: an Instance of restricted rights of alienation by the last holder of the land". It was also held "that the general trend of, the agriculturists of this district in matters of alienation was that the last holder had unrestricted rights to alienate the property held by him". Further, that " "the plaintiff was not an heir to Riaz Hussain Shah under the Asna Ashri Shia Law of inheritance" and could not, therefore, contest the alienations as he would not be entitled to any benefit on the opening of the succession to Riaz Hussain Shah on the marriage or death of Mst. Shahzadan Bibi, the donor. For these reasons, it suits were dismissed. The learned District Judge on appeal agreed with these findings. In second appeal, the learned Judges of the High Court were of the view that the real question in the case was whether Mst. Shahzadan Bibi inherited the full or the limited estate. On this, their finding was that the parties were governed by agricultural custom. They also upset the findings of the lower Courts that the suits were of speculative character, with the result that the appeals of the plaintiff were accepted. The defendants have now come up in appeal. The parties are Sayyed Hashimi, resident of Tibba Gaman Shah, Tehsil and District Mianwali, and the lands covered by the alienations are also situated at that place. From the course of succession followed on the death of Riaz Hussain Shah, it would transpire that the property was not divided according to Muhammadan Law but according to the agricultsral customs as prevailing in the Mianwali District. A reference to the Customary Law of the Mianwali District compiled in 1908 by Pt. Hari Kishen Kaul reveals that Sayyeds were one of the principal tribes consulted at the time of the preparation of the Riwaj‑i‑Am. In section 5, dealing with "Succession", Question 11 deals with "Nature of Widow's Interest" and is as follows :‑ "Question 11.‑If the estate devolves upon the widow, define her interest therein. What rights has the widow to alienate by sale, gift, mortgage or bequest? (i) Are there any special circumstances or expenses under or on account of which alienation is permissible ? If so, what are these ? (ii) Is there any distinction in respect of movable or immovable, ancestral, or acquired property or in respect of alienation to the kindred of the deceased husband ? (iii) Supposing alienation to be permissible whose consent is necessary to make it valid ? Answer 11.‑All Musalmans‑ If the estate devolves upon the widow she is sole owner of it for the time being, but she holds it only for life or till re‑marriage. She can alienate by mortgage or sale any movable or immovable property, whether ancestral or acquired by her husband (1) for the payment of Govern ment revenue or fine, (2) for discharging her husband's debt or debts contracted by herself in good faith for necessity, (3) for expenses on the marriage of an unmarried daughter, and (4) for ,agricultural improvements, etc., pro vided that she shall first give notice of her necessity to the agnates of her deceased husband and shall ‑not alienate to others unless .the agnates refuse to provide for the necessity or to take the land. In respect of movable property a widow has full power of alienation. The note appended to the Answer says: "The widow is supposed to have a life tenure without power of alienation. The Sayyeds appear to have maintained the custom more rigidly than any other tribe: Cases of transfer of movable property by widows without sufficient necessity have been quoted by other tribes," The answer to Question 11 leaves no room for doubt that among the Sayyeds of Mianwali,, the widow has no more interest in the property than a life‑estate without power of alienation and the alienation can only be made strictly in accordance with the conditions laid down in this answer. Answer to Question 15 says that "A widow loses all rights to her husband's property if she is proved unchaste, or re‑marries, even though she marries her late husband's brother". This is a corollary to the nature of the estate held by widow. The rights of daughter or daughter's daughter under custom are enumerated in Questions 16 and 17. "Question 16.‑Under what circumstances are daughters entitled to inherit ? Are they excluded by the sons or by the widow, or by the near male kindred, of the deceased ? If they are excluded by the near male kindred, is there any fixed limit of relationship within which such near kindred must stand towards the deceased in order to exclude his daughters ? If so, how is the limit ascertained ? If it depends on descent from a common ancestor, state within how many generations relatively to the deceased such common ancestor must come ? Answer 16‑All tribes‑‑ In the presence of sons or their male descendants through males or of a widow or widow's daughters do not inherit any share. Collateral`s up to 6 (among Pathans and Awans), 4 (among Jats and Biloches) and 5 (among Sayyeds and Hindus) generations upwards exclude daughters, except from tenure tilt marriage. In the absence of collaterals within the above. mentioned degrees, the daughters and their. descendants inherit the property absolutely. Question 17.‑‑Is there any distinction as to the rights of daughters to inherit (1) the immovable or ancestral, (2) the movable or acquired, property of their father? Answer 17.‑‑All tribes‑‑ As regards the rights of the daughters to inherit, no distinction is made between the movable and immovable, ancestral and acquired property of the father. If she inherits she takes the whole property.' From the perusal of questions 16 and 17 and their answers." it follows that a daughter does not inherit any property, self acquired or ancestral etc., in the presence of a son a widow or the fifth degree collaterals among the Sayyeds In the absence of these, relations, the daughters get the property absolutely.) Where a daughter succeeds, the nature of the interest taken by her is defined in Answer to Question 19, which says that "when a daughter inherits her father's property she has full powers of alienation over it". The daughter acquires a right to deal with property in any manner she likes only when she has inherited it in the absence of the fifth degree collateral& among the Sayyeds and the character of the property does not make any difference. The devolution of the estate of Riaz Hussain Shah has been in accordance with the rules of custom described above. Mst. Hakim Zadi, the daughter, was allowed one‑half share i.e., the share which her mother would have got If she had been alive. Mst. Khurshid Bano, the widow, retained the progeny tail her death only and then her daughter succeeded to her share. Since Mst. Hakim Zadi was under the custom allowed to remain in possession of the property till her Marriage, she lost it when she married Manzur Hussain Shah and her share went over to Mst. Shahzadan Bibi (the daughter of Riaz Hussain Shah), who is still unmarried and on her marriage, the property would revert to the collateral i.e. Amir Hussain Shah under custom. Where a tribe was consulted at the time of the prepara tion of the Riwaj-i-Am, an initial presumption arises that a member of that tribe is governed by custom and not by his personal law, and the onus to show that he has ceased to be governed by custom lies on those alleging the same. This is the ratio decidendi of a long string of authorities e.g. Mat. Parvin Kumart v. Gokal Chand Bala Ram (A I R 1949 11 P 25), Muhammad Yusuf v. Muhammad Abdullah (A I R 1944 Lah. 117) and Ata Muhammad ,v. Muhammad Shafi (A I R 1944 Lah. 121). The value that has to be attached to the entries in the Riwaj-i‑Am is now no longer in doubt. In Beg v. Allah Ditta (45 P R 1917), it was held that statements in a Riwaj-I-Am, which is a public record prepared by a public officer In the discharge of his duties and under Government rules are a strong piece of evidence I even without instances, that their contents are true and must be accepted unless rebutted. Here again, to start with, a resumption would arise that the custom of a tribe is what is described In the Riwaj‑i‑Am. This dictum was re‑affirmed in Vaishno Ditti v. Rameshri (I L R 10 rah. 86 (P C)). In view of the above propositions of law, it was up to the defendants to establish that the Initial presumptions were as a matter of fact not correct and there was considerable amount of evidence to the contrary. No such evidence was ever led. The presumption becomes stronger where the custom recorded is in accordance with the general custom of the Province Mst. Subhani v, Nawab (I L R 22 Lah. 154 (P C)). Section 5 of the Punjab Laws Act, 1872, provided that "in questions regarding succession, etc. 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 trot 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 cities 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." This section does not prescribe that custom usually applies, but it does lay down that where the existence of a custom is proved that shall be the first, rule of decision and in its absence, personal law would continue to apply. The following remarks of Robertson, J. in Daya Ram v. Sohel Singh (110 P R 1906 (F B)) were approved by their Lordships of the Privy Council in Abdul Hussain Khan v. Mst. Sona Daro (I L R 45 Cal. 450 (P C)). "In all cases it appears to me under the Act, it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is. There is no presumption created by the clause (clause (a) of section 5) in favour of custom; on the contrary, it is only when the custom is established that it is to be the rule of decision. The Legislature did not show itself enamoured of custom rather than law nor does it show any tendency to extend the `principles' of custom to any matter to which a rule of custom is not clearly proved to apply. It is not the spirit of Customary Law, nor any theory of custom or deductions from other customs which is to be a rule of decision, but only any custom applicable to the parties concerned which is not * * * * *, and it therefore appears to me clear that when either party to a suit, sets up `custom' as a rule of decision, it lies upon him to prove the custom which he seeks to apply: if he fails to do so, clause (b) of section 5 of the Laws Act applies, and the rule of decision must be the personal law of the parties subject to the other provisions of this clause." The onus of proving that custom applied to the parties was upon the plaintiff and he discharged it by referring to the entries in the Riwaj‑i‑Am which was prepared in consultation with the tribes of whom the plaintiff's was one and further strengthened it by showing that succession in the family of Riaz Hussain Shah had actually been in the manner as required by the custom of the Mianwali District. Against this, the defendants could not show or say anything. The conclusion by the High Court that the parties are governed by agricultural custom must, therefore, be held to be correct. The trial Court and the first Appellate Court were at a loss to discover any relationship between "succession" and "alienation" under custom even where a female was in enjoy ment of limited rights, and the absence of a separate chapter dealing with "alienation" in the Customary Law of the Mianwali District was considered sufficient to warrant the conclusion that the last holder had unrestricted rights to alienate the property held by him". This was assumed to apply to a female with a "limited estate" equally well. It seems to have been forgotten that there is between the estate of a male and that of a female with a life tenure, a fundamental distinction which runs through out the Riwaj‑i‑Am in this as the other districts of the old Province of the Punjab. In most of the old Rtwaj‑i‑Ams no separate chapter is devoted to "alienation" and the standard questions drawn up at the time of the older settlements were regarded sufficient for purposes of the enquiry into the customs of the tribes. Wills, legacies and gifts were separately treated and this was also done in the Mianwali Riwaj‑i‑Am. In none of these was a female with a limited right ever given the power to make an alienation as she could not be by reason of the nature of the estate held by her. It is significant that the word "alienation" is not to be found in section 5 of the Punjab Laws Act, 1872. But that does not mean that there are no customary rules governing "alienation". In actual practice, a large volume of customary rules, as ascertained and applied by Courts, has had to deal with the power of "alienation" and the usual type of cases under custom has been the usual declaratory suits brought to impeach alienations on the ground of absence of powers to alienate or being devoid of legal necessity and consideration. "Alienation" is nothing more than an attempt to divert the normal course of succession and to defeat the natural expectations of those entitled to succeed. In order to hold that it was validly done it has to be established that the person making the alienation had the power to do so under law or custom. This would in its turn depend upon the incidents attaching to the property the subject‑matter of alienation. According to the Riwaj‑i‑Am of the Mianwali District, a daughter among Sayyed cannot inherit the property of her father in the presence of fifth degree collateral, but she can only enjoy it till marriage. . This would imply that Mst. Shahzadan Bibi at the time of the alienations in question was in possession of her father's estate till marriage only and as such it was not open to her to act contrary to the conditions under which she had inherited it and any infringement was liable to be rectified at the instance of the collaterals for whose benefit a limited nature of right was created under custom. Such was the state of affairs under the Riwaj‑i‑Am and the contention of the learned counsel for the appellants, that the passage of the West Punjab .Muslim Personal Law (Shariat) Application Act (IX of 1948) has radically changed the scene and taken away the right to control alienation at least from persons who were not likely to succeed under personal law on the opening out of the succession on the termination of limited interest possessed by a female, may now be examined. The West Punjab Muslim Personal Law (Shariat) Appli cation Act, 1948, became law on 16th of March 1948. It was prospective in its operation, with the exception of section 3 which was expressly given a retrospective effect. Section 2 says :‑ "Notwithstanding any custom or usage to the contrary in all questions regarding succession (including succession to agricultural land) and in all questions regarding charities and charitable institutions and charitable and religious endow ments the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." This clearly lays down that in matters specified in the section, the law of decision shall hence forward be the Muslim Personal Law, even where these were before the Act came into force governed by custom which was not in consonance with the provisions of the personal law. This relates to the future. As the Legislature was aware, that there was a large number of females with limited interests, in possession of property, at the time of the enforcement of the. Shariat Act, it had to make a provision to meet this situation. It could either abolish "limited interest" forthwith or allow it to exhaust itself and the Legislature adopted the latter course, more in the interests of the females. Section 3 may now be quoted :‑ "In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the fine of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above; succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as ,if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat): Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) If her limited interest terminates because of death." A careful analysis of the above section gives rise to the following propositions :‑‑ (1) The property should be immovable. (2) It should be hold by a Muslim female as a limited owner under the Customary Law. (3) Her limited interest under Customary Low shall trot immediately come to an end, but shall be allowed to run oat its course. (4) On the termination of her limited interest, the property shall for the purposes of distribution according to Shariat be considered to be that of the last full owner. In other words, it shall be dealt with in the same manner as if the last full owner died on the date the female's limited interest came to an end, (5) The heirs under personal law of the last full owner have to be determined. (6) Some may be in existence at the time of this devolution and some may have died in the interval. (7) The persons in existence shall get their shares and the shares of those who were in existence at the time of the death of the last full owner and were entitled to some share but have died during the interval between the death of the last full owner and the termination of the limited interest of the female, shall descend to their own heirs according to the Shariat Law. (8) The female whose limited interest has terminated may herself have been eligible to A share under the Muslim Personal Law at the time of the death of the last full owner, but was allowed to succeed to a limited estate under the rules of custom then prevailing, shall. also get her share which she would have got under personal law at the time of the death of the last full owner. This share, she will get herself if the limited interest was destroyed by her marriage or remarriage. (9) And it will pass on to her own heir under personal law if her limited estate came to an end by her own death. It will readily appear from the above that the West Punjab Muslim Personal Law (Shariat) Application. Act, 1948, does not at all allude to as to what is to happen if the female in possession of her limited interest during her life‑time chooses to transfer the property or creates for consideration or otherwise interest in some third persons which, if not challenged within the prescribed period of limitation, might become unassailable. Surely it was not and could not be the intention of the Act that the property itself might be allowed to be frittered away without any let or hindrance and by the time the limited interest terminates by the marriage or death of the female in enjoyment of the limited interest, no property whatsoever may be left for distribution among the heirs of the last full owner. The "limited! interest" came into existence by the application of the provisions of the‑‑ customary law and so long as the "interest" has not come to an end, the same body of law should continue to exercise a check over its disposal. The West Punjab Muslim Personal Law (Shariat) Application Act is not opposed to this control and its purpose and scope were defined is Muhammad Asghar Shah v. Muhammad Gulsher Khan (P L D 1949 Lah. 116 (F B)), in the following words "Customary Law which has so long hold the field to the detriment of females, is to yield place to the Shariat which recognises their rights in the property. The Act lays down the made in which the property is to be divided after its operation ; it says nothing as to the source from which and the manner in which the property .comes. Declaratory decrees rake available the property and the Act does not want to reduce or diminish this profitable source. To hold otherwise would give the alienee an undue advantage at the cost of the heirs of the alienor and nothing could be further from the intention of the legislature." The conclusion is, therefore, obvious that the Act of 1948 has not in any way or in any degree enlarged the rights of a, "limited owner" and any alienation by her would be liable to? control in the same manner and to the same extent as before the 16th of March 1948, i.e., the date on which the West Punjab Muslim Personal Law (Shariat) Act came into force. It might be that a person entitled to challenge under custom the alienation by a female with "limited rights", might himself cease to be the immediate heir under personal law. This should not make any difference. His action to preserve the property or to clear away the cobwebs sought to be created by unauthorised alienation would be for the advantage of all those who would take a share on the termination of the "limited interest". It is needless to point out that a suit for a declaration is of a representative character and the decre granted in the suit simply ensures that on the termination o the interests of the alienor, the reversionary interests shall not suffer at all or only to such extent as the decree directs. The peculiar nature of the "limited ownership" of a female under custom, carries with it its own inhibitions. So long as there is a body of persons to succeed on the termination of the "limited interest", the estate of the female must continue to suffer from its inherent weakness. That body of person was, before the Act of 1948, determined by the rules o custom applicable to the parties and after the Act of 1948, shall be ascertained in accordance with the Personal Law (Shariat). The change in the personnel of the heirs, intro duced by the Act of 1948, has produced no change in the nature of the estate of the female with "limited rights", and nothing would be easier for the female concerned than to transform her "limited estate". into a full‑fledged one permitted to her under the Shariat, by surrendering the "limited estate" and taking her lawful share in the property. The Act of 1948 would be reduced to a frace and worked in a manner never intended or contemplated by its authors, if the female with "limited rights" were to be suddenly, freed from her shackles imposed at the time of her succession to the estate and allowed to behave as if she were a full owner of the entire estate in her possession under custom, of which she was not in fact. For the above reasons there is no ground for interference with the conclusions of the High Court and this appeal is hereby dismissed. Since the respondent did not put in appearance at the hearing, there shail be no order as to costs. A. H. Appeal dismissed.