1980 PLP 631 (CLC)

(2) Whether the plaintiffs are the collaterals of Allah Ditta last male owner ? O. P. P. (3) If so, to what share of the suit land the plaintiffs are entitled ? O. P. P. (4) Whether defendant No. 1, is not a necessary party to the suit ? O. P. P. (Onus objected to). (5) Relief.

4. The learned Civil Judge decided issues Nos. 1, 2 and 3 in favour of the respondents. On issue No. 3 it was held by him that leaving aside 116th share of the land left by Allah Ditta to be inherited by Mst. Aisha Bibi the rest of it (5/6th share) shall be inherited by the respondents. He, therefore, decreed the suit brought by the respondents.

5. Feeling aggrieved by the decision of the trial Court, the petitioner went in appeal before the learned Additional District Judge but without success. He has, therefore. come up in revision to this Court.

6. Learned counsel for the petitioner contended that the respondents had failed to establish that Mst. Aisha Bibi had got the land in dispute as life estate and, therefore, the two Courts below were not justified in striking down the gift in question. He maintained that there was no evidence showing that she succeeded Allah Ditta as a limited owner. On the other hand, learned counsel for the respondents contended that there was oral and documentary evidence to the effect that Mst. Aisha Bibi got the suit land as a limited owner and, therefore, she could not make a gift thereof.

7. It is true that on the record there is no document containing an express mention of the fact that M5t. Aisha Bibi got the land in dispute on a life tenure. Copy of mutation Exh. P. 1, however, shows that the entire land left by Allah Ditta devolved upon her. In the pedigree-table Exh. P. 4 too it is stated that she inherited the land of Allah Ditta as his heir, It was also deposed by one of the respondents, namely, Muhammad Sharif that she got the suit land as a limited owner. It was denied by him (Muhammad Sharif) that Mst. Aisha Bibi obtained the suit land from her father. There is no evidence in rebuttal except the statement of the petitioner, Ibrahim to the effect that Mst. Aisha Bibi inherited the suit land from her father and that she was its full owner. He, however, admitted that her father had no land in Dhairianwala where the land in dispute is located. It was conceded by him that the respondents were collaterals of Allah Ditta.

8. It will, therefore, be seen that the oral evidence of the respondent to the effect that Mst. Aisha Bibi inherited the suit land under custom and as a limited owner is supported by the copy of the mutation Exh. P. I inasmuch as the said document coupled with entries in copy of pedigree table Exh. P. 4 demonstrates that the entire land left by Allah Data had devolved upon her. If she had not inherited the said land under custom and had done so under Muslim Law she could not have the whole of the land to the exclusion of the respondents. who are, admittedly, the collaterals of Allah Ditta. It is not the case of the petitioner that Allah Ditta was governed by Muslim Law and not by custom at the time of his death. There is no evidence, oral or documentary, to the effect that she inherited the land left by Allah Ditta (suit land) as a full owner. What the petitioner endeavoured to show, while appearing as his own witness, was that she got the suit land from her father. This plea of the petitioner is an afterthought inasmuch as it does not find mention in the written statement. There is no documentary or other evidence to support the said version. It was also not put forth before the appellate Court while filing the grounds of appeal or otherwise. The revision petition before me too is silent in the matter. It would, therefore, follow that the respondents evidence on the point that Mst. Aisha Bibi inherited the suit land left by Allah Ditta as a limited owner stands unrebutted while there is no substance in the belated and half-hearted plea or the petitioner that she got the suit land from her father. In the circumstances, 1 see no good reason to disturb the concurrent finding of the lower Courts that, Mst. A.isha Bibi was a limited owner of the land in dispute.

9. Learned counsel for the petitioner argued that they was no law where under the grandmother succeeding her grandson would do so as a limited owner, In reply, learned counsel for the respondents maintained bat under custom when a mother succeeded her son as a limited owner she, in fact, .did so not as his mother but as the widow of his father and similarly a grandmother succeeding his grandson, as a limited owner, did so in the capacity of the widow of his grandfather. In support of his contention, he relied on the following passages appearing at pages 84 and 86 of the Customary Law by Aggarawala (1944 Edition) :- "A mother as a rule in the Punjab, w here custom is the rule of decision, only succeeds when there are no sons and she succeeds not as the mother of the sons but as the widow of deceased husband , In .171 P R .18K a man was succeeded by his minor son who subsequently died while still a minor without issue. It was held that are his grandmother who would have seeded her husband if he had died without issue, was entitled to succeed in preference to the boy's grand uncle. This decision was based on the general principle governing succession to an estate amongst agriculturists, that where the male line of descendants dies out it is treated as never having existed, so that succession is then reckoned with reference, date the last male owner who died leaving descendants," In Gaman v. Mst. Aman (171 P R 1888) which was decided by a Division Bench of the Punjab Chief Court, the grandmother, Mst. Aman was widow of one Samma. She succeeded her grandson, Mubarak who died without any issue. It was ruled that she succeeded her grandson as a limited owner. The relevant observations in this behalf read thus :- I think that Mst. Aman's right to succeed to the estate which once belonged to her husband Samma, is not a right arising or accruing to her as grandmother under either Hindu or Muhammadan law. It appears to me that the general principle governing the succession to an estate amongst agriculturists is that where a line dies out it is treated as if it had never existed. ' On Samma's death his widow would have succeeded had there been no children, and now that there are no longer any, her right stands just as it would have done at first. As such she is entitled by general custom to succeed on a life tenure to his estate in preference to his brother." Similar view was also expressed in Gujjar Singh v. Mrt. Chandn and others (157 1 C 950,). Learned counsel for the petitioner did not cite any authority to the contrary. It is also a matter of common knowledge that, under custom, the females generally succeeded as limited owners and not as full owners. No special custom to the contrary 'has been alleged by the petitioner. 1, therefore, agree with the learned counsel for the respondents that Mst. Bibi inherited the suit land, under custom; as a limited owner.

10. It was also argued by the learned counsel for the petitioner that the respondents were not collaterals of Allah Ditta and the land was no ancestral qua, them. These pleas, which involve questions of fact, were not raised by the respondents in their written statement and, therefore, no issues were framed- in this behalf. They were not raised even before the appellant Court. Therefore, the said pleas cannot be allowed to be taken at this stage. Even if they are allowed to be urged, it would not advance the case of the petitioner because, in his statement as his own witness, it was admitted by/ the petitioner that the respondents were collaterals of Allah Ditto. Also, he did not produce any evidence to the effect that the suit land was not ancestral. There is, thus no force in the said contention of the learned counsel for the petitioner in regard to the status of the respondents and the character of the land in dispute.

11. At the time of the admission of this revision. learned counsel for the petitioner disputed ;he identity of the suit land but at the time of arguments he did not press his objection in this regard. He also did not canvass any other point in addition to those discussed above.

12. I am, therefore: of the view that the judgments and decrees of the two lower Courts do not call for any interference. The civil revision is accordingly dismissed wit]; costs. K. M. A. Appeal dismissed.