P L D 1953 Peshawar 8 (PLP)

Dr. Abdur Rahim assisted by Fida Muhammad, for Respondents Nos. 1‑

4. MUHAMMAD SHAFI, J.‑The dispute in this case is with regard to the property of one Sardar Muhammad Ataullah Khan, who died in Isa Khel, in Mianwali District, in the year 1942. He left behind eight issues from three different wives. From the first wife, he had a son Muhammad Ahsanullah (Plaintiff No. 1). and a daughter Mst. Faiz Bibi (defendant No. 5). From the second wife, he had three sons. Muhammad Khabibullah, Muhammad Obaiduilah and Muhammad Ismatullah (Plaintiffs Nos. 2‑4), and from the third and the last wife, who was Mst. Mumlikat Begum (defendant No. 3), he had two sons, Muhammad Khalilullah Khan and Muhammad Nasrullah Khan (defendants Nos. i‑2j, and a daughter Mst. Suraya Begum (defendant No. 4). His first two wives like himself were Pathans, while Ast. Mumlikat Begum was a Sayed girl. He left property both in Bannu and Mianwali Districts. It may be noted here that previously there was no Province now known as North‑West Frontier Province. The territory, which is called by this name now and consists of six Districts, including Banau, was part and parcel of Greater Punjab. In 1901, however, a separate Political Unit was created by the Government then in power, anti it was given the name of North West Frontier Province. Isa Khel, which originally formed a part of the Bannu District in Punjab, after 1901, was separated from that District and included in that of Mianwali, which continued to remain in Punjab Province. Up to 1935,both in Punjab and North‑West Frontier Province the primary rule of decision in matters of inheritance was Custom. Section 5 of the Punjab Laws Act of 187?, and section 27 of the North‑West Frontier Province Law and Justice Regulation VII of 1901 were exactly to the same effect. The portions relevant to the case in question of the two sections quoted above were as under :‑ "In questions regarding succession . . . . . 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 case where the parties are Muhammadans ........except in so far as such law has been altered or abolished by legislative enactment, and is opposed to the provisions of this regulation, or has been modified by any such custom as is above referred to." There is no denial of the fact that up to that period Sardar Muhammad Ataullah Khan's family was governed by custom, which was generally speaking, to the effect that the sons excluded the daughters from inheritance. The daughters, however, so long as they did not marry were entitled to be maintained from their father's property. Similarly a widow was not .entitled to any share in the property, but had a right to be maintained therefrom. An additional custom has been advanced in this case by the plaintiffs, which we must say, is, if it at all exists, peculiar to this family. This custom is sought to be proved by the production of a copy of the riwaj‑i‑am of Isa Khel Parganna, which was prepared to appear at the time when the tract of land known by this name formed part of Bannu District. According) to this riwaj‑i‑am, the issues of a Pathan, which Sardar Muhammad Ataullah Khan admittedly was, from a Pathan or an Awan wife were entitled to succeed to the entire property, except the 1/3rd which alone was to be shared by all his issues from the other wife, not belonging to the above two clans. The riwaj‑t‑am, if translated into English will be to the following effect :‑ "In the case where one wife belongs to Pathan or Awani clan and the other wife belongs to Jami, or prostitute or Mirasi o or any other clan, and there are issues from both the wives,) then the issues of the latter wife get only one‑third and no morel or no less." This custom was not included in the Customary Law of the Mianwali District, which was later on compiled in 1908, by Pandit Hari Kishan Kaul, the then Settlement Collector of that District. This fact in itself would make the existence of the above custom extremely doubtful. Even if, however, such a custom is found to exist, still we do not think the words "belonging to other clan" according in the riwaj‑i‑am refer to a Sayed wife married to a Pathan husband. These words, in our view, should be read ejusdem generis with the words Janti or Kanjari or Mirasi woman immediately preceding them, meaning thereby a woman belonging to a low caste. It is an elementary principle of the interpretation of Statutes as well as of documents, that the general words, which follow specific words of the same nature, must be construed as taking their meaning from the specific words, which precede them and must be restricted to the same genus. Amongst the Muslim: the Sayeds are looked upon with highest respect, because they are supposed to be the descendants of Imam Hussain and Imam Hassan, the two illustrious grandsons; of the Holy Prophet. It will be against the sentiments of a Muslim to class the Sayeds with Kanjurs or Mirasis. We are consequently unable to interpret this riwaj‑i‑am to mean that the issues of a Sayed woman married to a Pathan persons should be treated differently from the issues of that person from a Pathan or an Awan wife. Be that as it may, so far as North‑West Frontier Province is concerned, the custom which was the rule of decision prior to 1335 was abrogated, by the passing of the North‑West Frontier Province Personal Law (Shariat) Application Act VI of 1935, which repealed section 27 of the North‑West Frontier Province Law and Justice Regulation of 1901, Hence forth in all those cases where the parties were Muslims the Muslim Personal Law (Shariat) was made the rule of decision. If Sardar Muhammad Ataullah Khan had belonged to the North‑West Frontier Province, there would not have been any difficulty in deciding the question of succession to his property. He having died in 1942,the property had to be inherited according d to the Muslim Personal Law (Shariat), according to which Mst. Mumlikat Begum would take 1/8th of the property, and the rest would be divided amongst the sons and the daughters in the ratio of two and one i e. according to it the plaintiffs would be entitled to half of the property and the remainder would go to the defendants. The difficulty, however, arose because in Punjab even after 1935, the rule of decision continued to be custom in the matters of succession, and Sardar Muhammad Ataullah Khan at the time of his death not only resided in Punjab permanently, but had some of his immovable property also situated in that Province. Even there Shariat has now been substituated for custom as the rule of decision. But it was done in 1948 i.e., about six years after the death of Sardar Muhammad Ataullah Khan. It has been held in Civil Revision Petition No. 25 of 1948 (Sheikh Mahboob Alam v. Mst. Razia Begum and others) reported in A I R 1950 Lah. page 12=P L D 1949 Lah. 263 that the introduction of the Islamic Law in place of custom in Punjab will take effect from the date when the law to that effect was passed i.e., from 1948 onwards. Sardar Muhammad Ataullah Khan having died in 1942, and at the time of his death the family being governed by custom, it would continue to be so governed at least so far as Punjab is concerned. Muhammad Ahsanullah Khan, Muhammad Khabibullah Khan, Muhammad Obaidullah Khan and Muhammad Ismatullah Khan, the sons from Pathan wives of Sardar Muhammad Ataullah Khan, brought the suit out of which this first appeal has arisen, against the widow and the other children of Sardar Muhammad Ataullah Khan, for a declaration that they alone were entitled to the entire property left by Sardar Muhammad Ataullah Khan. In any case, they claimed that if defendants Nos. 1 and 2 viz., Muhammad Khalilullah Khan and Muhammad Nasrullah Khan had any right in the property at all, they were entitled to 1/9th share only. The rest of the defendants according to the plaintiffs were not entitled to any share in the property. The learned trial Court, deciding the case according to the Muslim Personal Law, has declared the plaintiffs to be entitled to half of the property in dispute, defendants Nos. 1 and 2to 1/4th jointly, defendant No. 3 to 1/8th, and defendants Nos. 4 and 5 jointly to 1/8th share in the suit property. In view of the fact that the plaintiffs had failed to establish their full claim, the parties were left to bear their own costs. The plaintiffs have come up on appeal to this Court, and it is urged on their behalf that in spit of the fact that at the time of Sardar Muhammad Ataullah Khan's death the rule of decision in regard to succession was Muslim Personal Law, yet in this particular family it should be held to be custom, because that is the law of succession in their home town. The learned counsel has quoted several authorities in which a family following a particular custom in a certain tract, having migrated to another tract, where a different custom was followed by the people generally, was held to continue to follow his original custom. In this part of the country it is a very strong habit of the people to adhere to their family usages. Keeping in view the greatness of the tenacity with which the people of this Illaqa follow their ancient usages, traditions and custom, the Courts in pre‑partitioned India were, no doubt, compelled to hold repeatedly that the people carried their custom and usages wherever they went, even if they permanently left their original place of domicile and started living in a place where different costom and usages were in vogue. This case, however, will have no resemblance with the case where a person has gone and started living in a place where there is a Statute Law governing succession. In that case, the law of succession as defined by the Statute would govern the family. It will not be right to say that the customs which that family carried along with it had an automatic effect of repealing the Statute Law. In the case before us, although Sardar Muhammad Ataullah Khan did not actually migrate to North‑West Frontier Province, yet applying the same principle as enunciated above, so far as the suit about his immovable property in the North West Frontier Province is concerned, it has to be decided according to the Statute Law. The Statute in this Province, which governs the questions regarding Muslim succession is the North‑West Frontier Province Personal Law (Shariat) Application Act VI of 1935, and is to the following effect :‑ "In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, guardianship, minority, bastardy, family relations, wills, legacies, gifts or any religious usage or institution including waqf (trust and trust property), the rule of decision shall be the Muslim Personal Law (Shariat) in cases, where the parties are Muslims." It came into force on the 6th December 1935. In the case before us, the parties admittedly were Muslims, and, therefore, the rule of decision had to be nothing else but Shariat. The plaintiffs in the case before us instituted this suit on 13th June, 1949. By choosing the North‑West Frontier Province for the institution of the suit, they subjected themselves to the law prevalent here. They cannot now come forward and say that although they instituted the suit here, yet the Courts in this Province should apply the law obtaining in Punjab. If they wanted that law to decide the question of their inheritance, there was nothing to prevent them to file a suit in Punjab and not in this Province. We consequently hold that this suit was rightly decided by the learned trial Judge, according to the tenets of Islamic Law. The result is that we see no justification to interfere in this appeal, which is hereby dismissed with costs throughout. Pleader's fee Rs.

50. Orders announced. A. H. Appeal dismissed.