1981 PLP 439 (SCMR)

NASIM HASAN SHAH, J.-The question which fell for decision before the Courts below was whether a sonless Batti Raiput of Gujar Khan Tehsil, District Rawalpindi, was competent, under the Customary Law, to make a gift of his ancestral land to his daughter's son. All the three Courts below, namely, the Civil Judge First Class, Gujar Khan, the District Judge, Rawalpindi and the Lahore High Court, have unanimously answered the question in the affirmative.

2. Sh. Abdur Rashid, learned counsel for the petitioner, appearing in support of this petition for, leave to appeal, has attempted to negative this finding by inviting our attention to Fazal Bibi v. Khan. Muhammad (P L D 1951 Lab. 314), Fazal Dad v. Noor Nishan (1969 S C M R 607), Sarfraz v. Muhammad Khan (P L D 1970 S C 19) and Safdar Ali Malik v. Khadim Hussain (P L D 1970 Lab. 629).

3. We find that the learned Judge, in the High Court Mr. Justice Muhammad Akram (as he then was) in answering the above question in the affirmative also relied upon on one of the judgments cited above, namely, Fazal Bib! v. Khan Muhammad, and rightly so because it supports the view taken by him rather than that canvassed by Mr. Abdur Rashid, Advocate, before us. The learned Judge also relied upon Riwaj-i-Aam of Rawalpindi District of 1887 wherein it is mentioned that a Rajput of Tehsil Gujar Khan had the power to make a gift in preference to the later Riwaj-i-Aam of 1910. Besides reliance was placed upon a number of instances wherein the Courts upheld a gift by a donor in favour of his daughter's son under the Customary Law (Exhs. D/2 and D/10 refers). A reference was also made to three mutations which were consistent with the view taken above.

4. As against this, the learned Judge in the High Court was aware that in an unreported judgment of the Lahore High Court delivered on 2-7-1947, in L. P. A. No. 81 of 1946, which was followed by a learned Single Judge in R. S. A. No. 152 of 1951, it was held that a sonless Bhatti proprietor resident of Gujar Khan Tehsil had no unrestricted powers of gratuitous alienation either by way of gift or bequest. He was, however, not inclined to follow this judgment because in a later judgment of another Division Bench, namely, Fazal Bibi v. Khan Muhammad a contrary view was expressed, namely :- "Rawalpindi is one of the Western districts of the Punjab, and it is well known that these western districts have been more influenced by Muhammadan Law than, the Central districts of the Punjab. The daughter's rights are therefore regarded with more consideration in these Districts as compared with those where the agnatic theory o custom is applied in all its rigour. Considering that the order Riwaj-I-Am is in favour of the competency of the gift and that there are five instances of Bhakrals and one of Dhanial Rajputs the two against them the onus, which lay on the daughters to disprove the correctness of the entry in the 1.910 Riwaj-i-Aam, had been successful discharged. The earliest Riwaj-I-Am serves a very careful check on subsequent Riwaj-i Am and may even be regarded as the most important document in which custom has been recorded." We are inclined to agree with the learned Judge in the High Court on this point and are inclined to prefer the rule laid down in the last mentioned judgment to that laid down in Letters Patent Appeal No. 81 of 1946,

5. So far as the other judgments relied upon by Sh. Abdur Rashid are concerned, namely, Fazal Dad v. Noor Nishan, Sarfaraz v. Muhammad Khan, and Safdar Ali Malik v. Khadim Hussain, they proceed on their own facts and are distinguishable. The net result is that no ground for interference with judgment of the learned Judge in the High Court exists. Accordingly, this petition must fail and is dismissed hereby. Petition dismissed,