1976 PLP 149 (SCMR)

ANWARUL HAQ, J.‑This petition seeks leave to appeal against the judgment sad decree of tire Lahore High Court dates the 27th of June, 1975, whereby two cross appeals filed by the parties against the appellate judgment of the learned Additional District Judge, Campbellpur, were disposed of. The petitioners' appeal was dismissed, whereas that of the respondent Durab Khan was allowed, restoring the decree of the trial Court, with certain modifications. The plaintiff‑respondent has accepted the judgment of the High Court, but the petitioners are dissatisfied with the same. The dispute in this case relates to the estate of one Noor Khan The plaintiff, Durab Khan, is the son of Muhammad Nawaz, a. predeceases son of Noor Khan. The defendants in the suit were Noor Khan's son Hayat Khan; Noor Khan's daughters Mat. Shah Jehan and Mst. Shahzada Begum, as well as the two sons of Hayat Khan, and one gift. Bhag Bhari, who is the sister and heir of Noor Khan's widow Mst. Sabiana. Noor Jahan owned 28470 kanals 6 marlas of land in several villages of tehsil Fateh Jang In. the Campbellpur district. He died on the 28th of December 1947. During his lifetime he made two gifts in favour of his son Hayat Khan of lands situated in villages Qualial and Dhurnol; and a third gift of 'land situate in Dhurnol in favour of his wife Mst. Sabiana in lieu of her d ewer. Mst. Sabiana further gifted this area to Muhammad Iqbal and Muhammad Amin sons of Hayat Khan. The plaintiff‑respondent challenged the validity of these gifts by filing the present suit on 29‑2‑56, claiming that the property was ancestral property qua him, that Noor Khan was governed by custom and had accordingly no power to make these gifts. The respondent also contended that the gifts in favour of Hayat Khan were only for maintenance, and could not, therefore, enure after the death of the donor. As regards the gift In favour of the widow Mst. Sablani, he asserted that her dower was only Rs. 500 whereas the value of the property gifted to her exceeded Re. 10,

000. The learned trial Judge found that Noor Khan was governed by customs, that only half of the land gifted in village Dhurnol to Hayat Khan and Mst. Sabiani was ancestral qua the plaintiff; that the entire area gifted to Hayat Khan in village Qualial was ancestral, that the dower debt due to Mst. Sabiani was only Rs. 500 while the property gifted to her was valued at more than Rs. 20,000 and for this reason the gift was not in. lieu of dower; and that of the property mutated in the name of Mst. Sabiani is widow of Noor Khan ,was given to her by way of maintaining and nor as a limited owner. As a result of these findings, the plaintiff's suit was decreed for share of all the land in suit except the land forming the subject‑matter of gifts in village Dhurnol. In this land the suit was decreed to the extent of share only. Both the parties filed appeals against the judgment and decree of the trial Court. The learned Additional District Judge upheld the findings of the trial Court regarding the applicability of custom, as well as the ancestral nature of the property and the invalidity of the gifts under custom. He further held that the plaintiff was entitled to share in the land gifted to Hayat Khan in village Dhurnol for the reason that the gift eras operative only during the life time of Noor Khan, irrespective of the nature of the property. The gift in favour of Mst. Sabiani was also set aside as being far in excess of the dower amount, which was found to be Rs. 5,

000. The plaintiff was, however, made responsible for the payment of the amount of dower in proportion to the land falling to his share. As regards portion of the land mutated in her name on the death of Noor Khan, the learned Additional District Judge held that Mst. Sabiani eras a limited owner, and on her death this 'and would devolve on the heirs of Noor Khan according to Shariat. The trial Court's decree was modified in accordance with these findings. In the High Court it was conceded that the parties were governed by custom in matters of alienation and succession. The learned Judge also upheld the findings of the District Court regarding the ancestral nature of the property forming the subject matter of the gifts to Hayat Khan and Mst. Sabiani. He also upheld the finding of the learned Additional District Judge to the effect that the amount of dower was Rs. 5,

000. He further came to the conclusion that the two gifts in favour of Hayat Khan were for maintenance only, and could not enure beyond the life time of Noor Khan, particularly in view of answer to question 39 of the custom applicable to the parties who are Gheba Mughals. He agreed with the lower Courts that the gift in favour of Mst. Sabiani was also invalid as the value of the property gifted was far in excess of the amount of dower. On these findings, he dismissed the petitioners' appeal. As regards the respondent's appeal, he rejected his contention that Mst. Sabiani's dower was only Rs. 500 and not Rs. 5000 observing that this matter was concluded by a finding of fact recorded by the learned Additional District Judge. However, he accepted the plaintiff's second contention that of the estate of Noor Khan mutated in the name of his widow was given to her by way of maintenance only, with the result that she had no power to alienate it, and after her death half of this property would revert to Durab Khan plaintiff. It other words, he restored the finding of the trial Court in this behalf. For the purpose of seeking leave to appeal, the learned counsel for o:m petitioners has urged the following points :‑

(i) That the High Court has misinterpreted the answer to question 39 of the relevant custom in regard to the power of Noor Khan to make gifts to favour of his son Hayat Khan; (ii) That similarly the High Court has also erred in striking down the gift made by Noor Khan in favour of Mst. Sabiani in lieu of her dower; and (iii) That the finding that Mst. Sabiani got of Noor Khan's estate on his death only as maintenance and not as a limited owner is also not correct. After hearing the learned counsel at some length we are of the view that there is no merit in these submissions. As regards the gifts in favour of Hayat Khan, we find that answer to question 39 of the Customary Law of the Attock district permits only small gifts to favourite sons or other relatives, In the present case, Noor Khan lead gifted to Hayat Khan an are& of 7538 kanals in village Qualial and of 1687 kanals in village Dhurnol. These gifts clearly fell outside the purview of the concession made in the relevant answer. The High Court has further rightly taken note of the statement made by Hayat Khan before the Patwari at the time of the attestation of mutation No. 616 regarding the gift in village Dhurnol. In this statement, with which Hayat Khan was duly confronted at the trial of the suit, he had stated that the gift was being made in his favour for maintenance. On this material, the finding recorded by the Courts below that the gifts could not enure beyond the life time o1 the donor seems to be in accord with the custom applicable to the parties. We were referred to Nawab Khan v. Durab Khan (125 P R 1893) in which it was held that Ghebns of teshsil Fateh Jang, which teas at that time in the Rawalpindi district, were competent to make a gift to one son in excess of his share without consent of the other sons. A perusal of the judgment shows that the reliance was placed on answer to question No. 54 of the Riwaj‑i‑Aam concerned, which governed a distribution made in the proprietor's life time among his sons, but this is not the case here. The contest between the parties has throughout been with reference to the answer to question No. 39 of the Riwaj‑i‑Aam. We consider, therefore that this case is of no direct assistance to the petitioners. Coming now to the validity of the gift made by Noor Khan in favour of his widow Mst. Sabiani, we find that the finding of fact recorded by the first appellate Court, and accepted by the learned Judge in the High Court is that the dower amount was Rs. 5000 whereas the value of the property gifted to the wife was far in excess of this amount: There is ample authority for the view that in such a case the gift cannot be regarded a being one in lieu of dower. We may refer to Nawab Din v. Maulah Bakhsh (A I R 1938 Lah. 431) Chan Pir v. Fakar Shah (A I R 1940 Lah. 104) and Zainab Bibi v. Bamal Khan (P L D 1960 Lah. 561). Mr. Bashir Ahmed Ansari referred us to Fateh Ali Shah v. Muhammad Bakhsh (A I R 1928 Lah. 516) in support of the proposition that in the case of Hiba‑bil‑iwaz which partakes of the incidents relating to sale, devolution of the estate after the death of the donee must be regulated according to the law which is applic able to the donee and not to the donor. This proposition is, however irrele vant in the present case, as the gift in favour of Mst. Sabiani has been rightly struck down as being in excess of the power given by custom to Noor Khan to make a valid gift in lieu of dower. The question of succession to the gifted estate does not arise. As regards the last contention on that Mst. Sabiani inherited of the estate of Noor Khan, en the latter's death on 28‑12‑1947, as a limited owner, the High Court has placed reliance on the answers to questions 20 and 21 of the custom of the district. The view taken by the High Court that an issueless widow only gets maintenance out of estate of the male proprietor having male descendants, finds support from Mst. Channi Bibi v. Ahmed Khan (A I R 1924 Lah. 265) ands Nawab v. Muhammad Fazil (P L D 1964 Lah. 334). Mr. Ansari referred us to Fazal Nur v. Mst. Mulkh Bano (P L D1956 Lah 140) for the purpose of contending that Mst. Sabiani had in fact become a full owner of the estate of her husband's death, but we find that the case in question does not support any such argument. The remarks appearing on page 143 of the report have relation only to, a decision given in the suit between the parties and have no general application. Even otherwise, the decision in that case related to the right bf an unmarried daughter to succeed, to the estate of her father. Mr. Ansari then referred us to Ghulam Akbar v. Irshad Begum (P L D 196 S G 543) in which it was observed "it is true that normally under the general custom of the old Punjab, a widow does not take share of the inheritance with the sons of the deceased. See in this connection pages 322‑323 of Rattigan's Digest on Customary Law, 13th Edition by Om Parkash Agarwala. . To the same effect is the answer to question 33 of the Riwaj‑i‑Aam on Gujranwala district. But the general custom does not rule out entirely the possibility of 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." It will be seen that even the observations relied upon by the learned counsel reiterate that under the general custom of the old Punjab a widow doses not take a share of the inheritance with the sons of the deceased. The observations that follow this statement are directed towards the peculiar facts of the case before the Court. In the instant case, no such particular circumstances were brought on the record, and we do not see how we can interfere with a proper conclusion reached by the High Court on a consideration of the relevant paragraphs of the applicable custom. For the foregoing reasons we do not see any justification to interfere with the 'view taken by the High Court on‑ all the three points raised before us by Mr. Ansari. As a result, the petition fails and is hereby dismissed. Petition dismissed.