P L D 1963 Supreme Court 543 (PLP)

S. A. RAHMAN, J.‑The facts giving rise to this appeal by special leave are as follows :‑ The property in dispute belonged originally to one, Piran Ditta, a Chatha Jat of Wazirabad Tehsil, in the Gujranwala District. He died in 191 8 being survived by a son Hussain Khan from one wife, his second wife, Mst. Hayat Bibi, and the latter's daughter, Mst. Talea Bibi. On the death of Piran Ditta, the Revenue Authorities mutated half his land in favour of his son, Hussain Khan, and the other half in favour of Mst. Hayat Bibi. Hussain Khan died on the 29th October 1918, and was succeeded by his son, Nawab Khan. The last‑named too died unmarried and issueless, in 1922 and the remaining half of the property of Piran Ditta which had devolved on Nawab Khan, was also mutated in the name of Mst. Hayat Bibi. She continued to hold the whole property till her death in 1946. Her daughter, Talea Bibi, had pre‑deceased her in 1938, leaving behind a daughter, Irshad Begum. Disputes arose on the death of Hayat Bibi, between Irshad Begum and some of the seventh degree collaterals of Piran Ditta, over the question of succession to Hayat Bibi. Some of the collaterals lodged a suit against Irshad Begum for possession of the property left by Piran Ditta and impleaded therein the other seventh degree collaterals of Piran Ditta, who had refused to join them as plaintiffs. The suit was decreed by the trial Judge and Irshad Begum's appeal was dismissed by the District Judge. A second appeal was then taken by her to the High Court of West Pakistan, which was allowed by a learned Single Judge of that Court. His decision was armed in appeal by a Letters Patent Bench. Leave was granted by this Court to consider: (1) Whether Mst. Hayat Bibi in the presence of a step‑son was only entitled to maintenance or was an heir inheriting a share, and (2) Whether under the customary law governing the parties, the claim of a daughter's daughter would prevail against that of collaterals of the seventh degree. The property in dispute has been found to be non‑ancestral qua Piran Ditta and this finding is not contested before us on behalf of either party. The collaterals' case before the learned Single Judge was that one‑half of the property which was given to Hayat Bibi on the death of Piran Ditta, was in lieu of her maintenance as she could not be given a share in the property in the presence of her step son, Hussain Khan. With regard to the remaining half of the property, which came to Hayat Bibi on the death of Nawab Khan, it was urged that Hayat Bibi took that property as an heir of Nawab Khan or of Hussain Khan. If the propositus be Nawab Khan, the last male‑holder, Mst. Irshad Begum would occupy the position of a paternal aunt and if Hussain Khan be regarded as the propositus, she was in the position of a step‑sister. In neither case it was contended she could be preferred to collaterals. On the other hand, the case attempted to be made out on behalf of Irshad Begum before the learned Single Judge was that one‑half share of the property which was mutated in Hayat Bibi's name on the death of Piran Ditta, should go to the heirs of the latter and as the property was non‑ancestral, the daughter's daughter should be a preferential heir as against the collaterals. It was denied that she took this portion merely by way of main tenance. In respect of the remaining half of the property, the suggestion was made that Hayat Bibi had acquired the property, without any right, as she was only a step‑grand‑mother of Nawab Khan and therefore her possession of the property was adverse and had ripened into ownership after 12 years. However, as she was in adverse possession as a widow of Piran Ditta, the property would become an accretion to the estate of Piran Ditta. In the alternative, even if she took that property by way of collaterals succession, as the widow of Piran Ditta, on her death, the property would pass to the heirs of Piran Ditta. This part of the property too, therefore, it was maintained, should go to the daughter's daughter in preference to the collaterals. The learned Single Judge held that it was immaterial whether the first‑half of the property had been inherited by Hayat Bibi from her husband or she took it in lieu of maintenance only. In either case, he thought that the heirs of Piran Ditta would have to be found to resolve the dispute. He observed at the same time that a custom of inheritance by the widow in the presence of a son by another wife, was a rare custom and required very strong proof. Mere mutation of land in the name of the widow, he considered to be scant evidence of such a custom, unless it was shown that the land was not mutated in lieu of maintenance. In respect of the second‑half of the property he was of the view that a mother when she succeeds to her son, does so as the widow of the father and that a step‑mother is as much an heir to the step‑son as the real mother may be to the son. He referred to the fact that even a mother would forfeit her right on re marriage and therefore concluded that the mother succeeds as the widow of the father and the right of succession attaches to her status as such widow. It was further found by the learned Judge that on the death of Nawab Khan, Mst. Hayat Bibi was entitled to succeed as the widow of her own husband and she could not be said to be in adverse possession of the estate. In the alternative, even if she did acquire a title by adverse possession, the land would become an accretion to the estate of Piran Ditta. In the course of the discussion, the learned Single Judge thought it fit to cast doubt on the authority of a Full Bench decision of the Punjab Chief Court reported as Hamira v. Ram Singh (134 P R 1907), in which it was held that the sister of the last male- holder cannot be assimilated to the position of the daughter of the penultimate owner, even though the principle may be admitted that when a line has died out it is deemed never to have existed and the last person who left descendants is regarded as the pro positus. The learned Judge omitted to notice that this view had been endorsed in several subsequent judgments of the Lahore High Court and has received express approval in two Full Bench judgments of that Court, published as Noor Muhammad v. Muhammad Yar (P L D 1951 Lah. 132) and Fatima Bibi v. Nur Muhammad Shah (P L D 1951 Lah. 147). The attempt to show that the view propounded in Hamira's case was logically inconsistent with the other principles of customary law evolved by the Courts, was therefore not called for. However on the main point as to who the heirs of Piran Ditta would be, in a case of this kind, the learned Judge confined himself to the observation that there could be "no doubt that the daughter's daughter would be preferable to the collateral. For the proposi tion, however, no authority was cited. The Letters Patent Bench of the High Court rejected the contention raised on behalf of the collaterals to the effect that Hayat Bibi had obtained one‑half of the property on Piran Ditta's death, in lieu of maintenance and again, the other half on the death of Nawab Khan, in similar capacity. They pointed out that Hayat Bibi had been alienating the property in the presence of Hussain Khan and Nawab Khan, without any objection and this was inconsistent with her holding the property merely by way of maintenance. It appears that she effected several mortgages over the property in her possession and in one instance, even Hussain Khan joined with her in creating a mortgage. This lends con siderable support to the finding of the learned Judges that she did not obtain the property, at either stage, in lieu of maintenance. It is unlikely that she could have got the second half of the property by way of maintenance, if she was already in possession of the first‑half for that purpose. The property seems to be considerable in area and there is nothing to indicate that the first- half of the property was insufficient for her maintenance, even if it be assumed that she got that half for maintenance purposes only. The mutation that was entered on Piran Ditta's death, contains no indication that she was being given this property in order to maintain her. On the contrary, she was being described as an heir. It is true that normally under the general custom of the old Punjab, a widow does not take a share of the inheritance, with the sons of the deceased. See in this connection pp. 322‑323 of Rattigan's Digest of Customary Law 13th Edition, by 6m Parkash Aggarwalla. To the same effect is the Answer to Question 33 of the "Riwaj‑i‑Am" of Gujranwala District. But the general custom does not rule out entirely the possibility of her being allowed a share in the property as is evidenced by instance collected in Rattigan's Digest. This is what appears to have happened in the present case. This inference is consistent with the conduct of Hayat Bibi in creating mortgages over the land in her possession without any objection by those who were in a position to restrain her. When Nawab Khan died, Hayat Bibi survived him but she was only the step‑grand‑mother. It is not shown that in that capacity she was entitled under custom, to be maintained out of the estate of Nawab Khan. She must therefore either have taken the second‑half of the property in assertion of her own right as heir, though she was not such heir or have succeeded collaterally as the widow of Piran Ditta. In either case, as has been found by the Letters Patent Bench, the property would become an accretion to the estate of Piran Ditta. The learned counsel for both parties have now agreed before us that both halves of the property, on the death of Hayat Bibi, should be regarded as falling in the estate of Piran Ditta whose heirs have to be found in the present case. The learned Letters Patent Bench in agreement with the learned Single Judge have set it down as their opinion that the daughter's daughter is a preferential heir in competition with collaterals of the seventh degree, in respect of the non‑ancestral property of Piran Ditta. The question is whether this view for which no authority has been cited by the High Court is sound. For the appellants Mr. Bashir Ahmad has invited our attention to paragraph (44) of Rattigan's Digest of Customary Law, 13th Edition (by Om Prakash Aggarwalla) at page 418. This is headed "Daughter's daughter v. collaterals". The learned auther says: ‑ "As has already been noted above, generally speaking, a daughter, when she succeeds to the property of her father, has merely a limited interest therein, i.e., as a life‑tenant, and is not an absolute owner. In that case, daughter's daughter will have no claim to succeed. But where a daughter is allowed to succeed as full‑owner to her father's property, a daughter's daughter will succeed. In the case of non‑ancestral property, daughter's daughters are to be preferred to collaterals (Mst. Harnam Kaur v. Ratna A I R 1949 E P 267 is cited in the footnote as the foundation for this proposition). In Mahindra Kaur v. Hira Singh (A I R 1943 Lah. 308) it has been held that although a life‑estate holder cannot ordinarily form a fresh stock of descent and a daughter's daughter is not as such, an heir to her maternal grandfather and cannot succeed to him either under the Customary Law or the Hindu Law, when a daughter has once succeeded to the estate of her father, after excluding his collaterals, her daughters should as her lineal descendants, be held entitled to succeed for their lives in preference to such collaterals after her death." Then follow instances of cases from several districts but no instance is cited from the Gujranwala district with which we have to deal in the present case. In paragraph 45, the learned author expresses the opinion that "according to the general agricultural custom, a grand‑daughter and her sons are more or less on the same footing as a daughter and her sons, as against distant collaterals." The authority mentioned in support of this view is Inayat v. Mst. Baharai (A I R 1928 Lah. 291=9 Lah 180). In the instant case, it is emphasized that the daughter of Piran Ditta, namely, the mother of Irshad Begum, had pre‑deceased Hayat Bibi and had never possessed the property in dispute. In accordance with the general custom, therefore, it is urged by Mr. Bashir Ahmad that the daughter's daughter in these circumstances should not be preferred to the collaterals. The Answer to Question 53 in the "Riwaj‑i‑Am" of Gujranwala district prepared by S. Dalip Singh also indicates that the descendants (sons) of the daughter are entitled to succeed their mother, when she herself has been allowed to succeed. To this argument Mr. Said Akbar replies that there is authority for holding that where a daughter is entitled to succeed, the mere fact that she pre‑deceased her father, should not deprive her heirs of their right of inheritance. He invited reference to Mst. Kaman v. Ghafoor Ali (A I R 1928 Lah. 280). The facts of this case were that the plaintiffs were the descendants of one, Hassan Ali, and the defendant, Mst. Kaman, was the daughter's daughter of Mir Khan, a brother of Hassan Ali. Ghulam Hussain, the father of Hassan Ali and Mir Khan had three sons: Hassan Ali, Nur Khan who married and died without issue and Mir Khan. It was common ground in the case that the property in dispute was acquired originally by Ghulam Hussain, the common ancestor of the plaintiffs and of the defendant. Ghulam Hussain, in his life time, had gifted the property acquired by him, to his various sons and Mir Khan got the property m suit from Ghulam Hussain, by way of gift and not as a result of succession. The property was therefore found to be the self‑acquired property of Mir Khan. After investigation, the learned Judges found that in the tribe of the parties, daughters succeed to their father's self‑acquired property, in contest with his collaterals. On the death of Mir Khan, his widow Mst. Tajo had succeeded to the property. Mst. Tajo gifted the land to her daughter, Mst. Umdan, with the consent of all the collaterals who were parties to the suit, or of their predecessors‑in‑interest. The dispute arose on Mst. Umdan's death while Mst. Tajo was still alive and it was contended on behalf of the collaterals that Mst. Kaman, her daughter, could only arrogate to herself the position of a daughter's daughter but as such, she could not exclude collaterals. It was in this context that the observation was made that where a daughter is herself entitled to succeed, the mere fact that she pre‑deceased the widow of her father, would not deprive her heirs to the succession of the property left by her father and that there was no logic in holding that whereas a daughter could succeed as full heir to her father's self‑acquired property, a daughter's daughter would not so succeed, in case her mother had pre‑deceased the father's widow. Umdan, it seems, had died in the life‑time of Tajo in that case. On the facts therefore that case appears to be distinguishable from the present one, on the ground that the mother of Kaman had herself got the property in dispute in her life‑time. This case cannot be pressed into service as an authority for the proposi tion that even where the grand‑daughter's mother never came into the property, the grand‑daughter would be entitled to claim it. Reliance was then placed on Inayat v. Bharai (A I R 1928 Lah. 291). In that case a Division Bench of the High Court at Lahore held that the mere fact that a person belongs to the same got as the last male owner, gives him no right to control his widow's dealings, with regard to the property that has descended to her from her husband. The parties were Dinga Sials of Jhang district and it was found that a son's daughter's sons, under custom, had a superior claim to succeed to the deceased's property than an agnate of a very remote degree. The property originally belonged to one, Bakka, on whose death his widow Mst. Bharai, got the property. She made a gift of it in favour of her pre‑deceased son's daughter's son. The contestant was one, Inayat, who claimed to be a collateral of Bakka, in the fourth degree, a claim which he was unable to establish. The case therefore appears to have been decided on its own peculiar facts and the remark on which reliance is placed by Mr. Said Akbar, was based on a specific entry in its support, in the Riwaj‑i‑Am of the Jhang District. The case was not one of daughter's daughter and the ruling is there fore not apt. Mr. said Akbar Khan then referred us to Sanata v. Sahib Bibi (A I R 1941 Lab. 94). It was held in that case that according to the custom prevailing among kharals of the Montgomery District in the Punjab, daughters are preferred to collaterals, in the matter of succession to non‑ancestral properties and therefore the collaterals cannot contest a gift by the daughter. That was a case of a gift by the widow of one, Qaim, of certain lands, to her daughter, Sahib Bibi. The gift was challenged by a declaratory suit instituted by Sanata and Muhammad who claimed to be the reversioners of the widow's husband. The land was found to be non‑ancestral qua the plaintiffs. It was observed in that case that there was no evidence documentary or otherwise, which could lend support to the reversioner's case whereas the evidence led on behalf of the donor and donee, had established that collaterals were not entitled to oust the daughter, under the Customary Law prevailing in the tribe. There was some question whether Sahib Bibi should be regarded as a grand‑daughter of Baghela rather than the daughter of Qaim on the ground that some of the witnesses had stated that Qaim had succeeded Baghela. In this context it was observed that counsel for the plaintiffs had admitted that "daughters and grand‑daughters stood on the same footing, as was decided in 9 Lab. 496 (equivalent to A I R 1928 Lab. 280) and consequently the matter was immaterial whether the case was disposed of on the basis of Mst. Sahib Bibi being a doughter of Qaim or on that of Sahib Bibi being the grand‑daughter of Baghela. The case was really decided on the failure of the plaintiffs to discharge the onus that lay on them of proving that under the Customary rules governing the parties they were entitled to oust the daughter even in the case of non‑ancestral property. A distinguishing feature of the case, which must be noted is that the mother of the donee had actually succeeded to the property in dispute. Learned counsel also cited before us Mohindar Kaur v. Hira Singh (A I R 1943 Lab. 308) in which it was laid down by a Division Bench of the Lahore High Court that where a daughter has succeeded to the estate of her father, after excluding his collaterals in the eighth degree, her daughter should, as her lineal descendants, be held entitled to succeed for their lives, in preference to such collaterals after her death. The case affords no parallel to the instant case. The learned Judges incidentally observed in the course of their judgment in that case that a daughter's daughter is not, as such, an heir to her maternal grand‑father and cannot succeed to him either under the Customary Law or the Hindu Law. These observations appear to militate against the contention raised on behalf of Irshad Begum. The case related to Jats of District Lodhiana Mr. Said Akbar also adopted as part of his argument certain observations made by Teja Singh J. in a Division Bench judgment of the Punjab (India? High Court in Mst. Harnam Kaur v. Ratna (A I R 1949 E P 267). This was the decision to which reference was made by Mr. Om Prakash Aggarwalla in his Edition of Rattigan's Digest of Customary Law in support of the dictum that a daughter's daughter supersedes collaterals in respect o f non‑ancestral property. The learned Judge expressed the opinion that this dictum accords with the general custom of the Province but this is unsupported by any principle or authority. The case pertained to Jats of Ludhiana District. The land to suit was originally owned by Karam Singh and Dipa sons of Amir Singh and on Dipa's death, his share devolved on his son, Chanda, who died somewhere in 1908. His land was then mutated in favour of his mother, Mst. Attri. Karam Singh absented himself from the village and in course of time, Mst. Attri took posses sion of his share of the land also. Mst. Attri died in 1942 and in 1944, Ratna, claiming to be Dipa's collateral, sought possession of the entire land, from Mst. Harnam Kaur, the daughter's daughter of Dipa, by a suit. He asserted that Karam Singh had not been heard of for about 27 years and should be presumed to be dead, that he, the plaintiff, was entitled to succeed to the land left by Karam Singh and Dipa and that on Mst. Attri's death, he should be preferred as heir in respect of the whole of the land, to Harnam Kaur and others. It was found that the grand father of Ratna and that of Dipa and Karam Singh were brothers. It was urged in that case that Dipa's son, Chanda, had died without leaving any descendants and as Mst. Attri had succeeded to him not as his mother but as the widow of his father, Dipa, the latter should be regarded as the propositus and Mst. Harnam Kaur, the daughter's daughter of Dipa was entitled to succeed in preference to the plaintiff. Teja Singh, J. agreed with the contention of counsel in that case that according to the general custom of the Province, a daughter or daughter's daughter had a better right to succeed than the collaterals of the propositus. This dictum was however not supported by reference to any authority and the remark appears to be obiter. It was actually held that as Dipa had died, leaving him surviving, his son, Chanda, who was the last male‑holder, consequently, Harnam Kaur's mother, Mst. Chandi, who was Chanda's sister, could not be assimilated to the position of a daughter of Dipa. The decision in Hamira and others v. Ram Singh and others was referred to with approval in this connection. At the same time the pro position was accepted, as a general rule that in the case of collateral succession by a widow, on the last male‑holder dying issueless, it must be presumed that the latter never existed and that the propositus would be the male‑holder who had left descendants. The actual position in the case was that Mst. Harnam Kaur, being the sister's daughter of Chanda, was not one of the heirs and was bound to concede superiority to his collaterals. With regard to Karam Singh's land it was held that there was no presumption as to when Karam Singh died. Mst. Attri was held to have succeeded to Karam Singh's share by way of collateral succession, as representative of her own husband and consequently, on her death, property devolved on her husband's heirs and not on the heirs of the person to whom she had succeeded. Succession respecting that part of the property was therefore referred to Dipa, husband of Attri and Mst. Harnam Kaur, Dipa's daughter's daughter was preferred to Ratna who was a collateral in the fourth degree. To this extent Mr. Said Akbar's position receives support from this decision. The present case is one of a daughter's daughter as against collaterals with the added fact that the mother of the grand‑daughter had never been in possession of the property. The question therefore arises whether the daughter's daughter has the right of representing her own mother under custom in matters of inheritance. After a review of the case law on the subject, the opinion was expressed by the Full Bench of the Lahore High Court in Mst. Fatima Bibi v. Noor Muhammad Shah that a female cannot invoke the principle of representation, as of right, in every case. Such a general principle, it was pointed out would cut at the root of the agnatic theory which is the foundation of all customary rules in the Punjab. A rule of this character would place daughters in the same position as collaterals and would lead to most astounding results. The observations of their Lordships of the Privy Council in Hashmat Ali v. Mst. Nasib‑ul‑Nissa (1925 P C 99) were explained in that judgment as being based on the special facts of that case. Unless therefore a specific rule is actually proved by which a female can claim to represent a pre‑deceased female, it is difficult to hold that, by invoking the right of representation, the grand‑daughter in this case could get the property in the right of her own mother who had pre‑deceased the grand‑mother. The Riwaj‑i‑Am of the Gujranwala District prepared by S. Dalip Singh, contemplates Apparently that a daughter's descendents would only succeed f the daughter has herself been allowed to inherit, vide answer to question 50 of that compilation. No such general rule is mentioned in Rattigan's Digest either. The evidence in the case is totally bereft of instances one way or the other and the oral testimony of witnesses examined by the parties, consisting as it does of opinions only, has been rejected in the Courts below as inconclusive and unsatisfactory. It cannot be postulated therefore that the instant case is governed by a supposed general right of representation inhering in females. The dicta on which Mr. Said Akbar relies in the East Punjab case and some of the other cases cited, have apparently lose sight of the principle that a right of representation of a female by another female has to be specifically proved, Custom being a collection of empirical rules, connot be extended by logical or analogical reasoning. I am, therefore, unable to subscribe to the view that under custom a daughter's daughter must be preferred to collaterals even though her own mother had never succeeded to the property. Mr. Said Akbar has also called our attention to a decision of the Federal Court of Pakistan published as Ali v. Shahu (P L D 1956 F C 92). That was a case pertaining to non‑ancestral property of a Gondal Jat of Gujrat District and the contest with regard to succession was between the collaterals of the last male‑holder who died issueless and his sister's son who was in possession of the suit property. It was held by the Federal Court that the burden of proving custom set up by collaterals that they succeeded in preference to the sister's son was on them and had not been discharged. In the last paragraph of the judgment while dealing with the contention that even if a sister was an heir to self -acquired property under custom, her son had no such right to succeed, the Court remarked that it was implicit in Q. 84 of the Riwaj‑i‑Am of the district that the sister and her descendant were placed by custom on the same footing and where one succeeded, the other also did so. This was followed by the dictum that "in a large number of cases, the right of representation which is one of the cardinal principles of customary law, was allowed to females whenever they were found to be the next heirs and while some difference of opinion might exist as to the scope of the extension of that right in cases of collateral succession, there appears to be none in the case of lineal succession". This dictum has to be read in the light of the particular facts of that case and a general right of representation in favour of females in all cases cannot be inferred there from. The right was there conceded to a male descendant of a female. The question, however, is whether the collaterals who were the plaintiffs in this suit, had discharged the onus of establishing their superior right as compared with the daughter's daughter, who was in possession of the property. It is conceded on their behalf that no positive rule of custom can be pointed out favouring them as against the daughter's daughter though, at the same time, it is clear that the reverse rule is also conspicuous by its absence. It means therefore that custom is silent on the point and fails to provide guidance for decision in this case. 1n these circumstances it would be permissible to have recourse to the personal law of the parties, for resolution of the dispute, vide the Full Bench decision of the Punjab Chief Court in Daya Ram v. Sohel Singh (110 P R 1906). If the inheritance is to be regulated by Muslim Law, the heirs of Piran Ditta at the time of his death have to be determined and then, after the process of devolution on subsequent heirs has taken effect, the shares of the parties have to be found out in the property in suit. The case did not receive consideration of the Courts below from this aspect and we are not sure that all the relevant facts or the names of all heirs, are on the file, to enable us to ascertain the specific shares that shall go to the parties. This task must therefore be left to be performed by the trial D Court, if necessary after calling for further evidence from the parties, so that the case of all possible heirs of Piran Ditta receives due consideration. I may only observe that the 1948 Shariat Law and the Family Laws Ordinance being enactments o dates subsequent to the death of Hayat Bibi when succession opened out, would not be attracted to the case. I would, therefore, allow the appeal and setting aside the judgment and decree the High Court would substitute there for a declaration that the case has to be decided in accordance with the principles If Muslim Law as it stood in 1946 and the shares of the parties fall to be determined on the assumption that succession is to be traced to Piran Ditta at the time of his death. The parties will ~'left to bear their own costs in this Court. FAZLE‑AKBAR, J: ‑I agree. HAMOODUR RAHMAN, J.‑I agree. A.H Appeal allowed