1969 PLP 296 (SCMR)

SAJJAD AHMAD, J.‑This petition for special leave to appeal arises out of a suit filed by the petitioner, Mst. Satto, to establish her claim for collateral succession to the land in dispute which belonged to Waryam deceased, an uncle of her father Dalail. The suit was dismissed by the trial Court and the appeal preferred to the Additional District Judge, Multan, and the Second Appeal filed in the High Court at Lahore have also been dismissed. Waryam, aforesaid, had died issueless and his inheritance devolved on his widow, Mst. Bakhan under custom. She also died on the 11th of March 1922, and on her death Mst. Saban, the mother of the petitioner and one Allah Yar an illegitimate son of Mst. Saban, who was born after the death of her husband, laid a claim to the estate of Waryam on the basis of collateral succession. A mutation was attested in their favour, which on appeal to the Collector by the respondents, who claimed to be the collaterals of Waryam, was set aside and it was held that among the Aujla Jats of Kabirwala Tehsil, which was the tribe of Waryam, widows and daughters do not have any right of collateral succession. Mst. Saban and Allah Yar did not pursue the matter any further. The petitioner, filed her suit on the 10th of November 1959, claiming that she was the nearest collateral of Waryam. Her locus standi was the main issue in the case, as the respondents denied her right of collateral succession to the estate of Waryam. Her claim was mainly based on the plea that the principle of representation in collateral succession applied to females also and that "sex was no bar to representation". The observation in Rattigan's Digest, Customary Law, 13th Edn. page 441 was relied upon for this contention. As remarked in the judgment of the High Court, this observation has been the subject of a Full Bench decision in the Lahore High Court reported as Mst. Fatima v. Nur Muhammad Shah (P L D 1951 Lab. 147) wherein it was held that females cannot invoke the principle of representation as of 'a right in every case. `Sex is no bar to representation' only means that where such custom is proved to exist, sex would be no bar. It was also held that the principle that there exists a general q right of representation in favour of females would cut at the very root of the agnatic theory which is the foundation of all customary rules in the Punjab. In the present case the Courts below have held that no such custom in favour of females for collateral succession has been proved to exist in the tribe of Aujla Jats of Kabirwala Tehsil (District Multan) to which the parties belong. In the Riwaj‑e‑Aam of Multan District prepared by Mr. W. H. Emerson in answer to question No. 50 Aujla Jats are not shown to be amongst the tribes which recognised the right of collateral R succession in favour of females. In an annotated note to this question Ellis has stated (see Ellis Notes on Punjab Customary Law, page 58) that in the Punjab generally the right of the widow c to succeed collaterally is an exceptional one and the onus probandi is on the widow to prove that the right does exist. The learned counsel for the petitioner also submitted by reference to the pedigree‑table on record that the respondents being removed from Waryam beyond 4 degrees, were not entitled to succeed to his estate as his collaterals. We find that the petitioner has not averred this fact in her plaint and did not challenge the respondents' right on that basis at any stage. in the Courts below. The point cannot be allowed to be urged at this stage. In the circumstances explained above no exception can be taken to the judgment of the High Court passed in Second Appeal agreeing with the lower Courts that the plaintiff's case failed for lack of locus standi. In view of this it is not necessary to go into the question of limitation on which the High Court has also held that the petitioner's suit was time barred. This petition is dismissed. Leave refused.