P L D 1949 Lahore 202 (PLP)

"The Tarkhelis say that in some cases uterine brothers only succeed to a deceased brother's property." If the Urdu version which was prepared by the Extra Assistant Settlement Officer Pandit Pars Ram, the statement of custom does not suffer from vagueness but is clearly to the effect (Question 66 which, as appearing from Exh. D. 1, relates to the question of preference to uterine and associated brothers) that among Takhelis, a uterine brother is entitled to succeed to his uterine brother, and three instances are given in which succession to a deceased male proprietor who died sonless, went exclusively to his full brothers, the step brothers being excluded. That preference should be given to the vernacular Riwaj is clear from the following paragraph contained in the introduction by the Settlement Officer Mr. Watson to the English "General Code of the Tribal Custom in the Hazara District" :‑ "The answers were taken down in the vernacular by Pandit Pars Ram, the Extra Assistant Settlement Officer, and were subse quently attested by the Settlement Officer in the presence of representatives of the tribes concerned. The new vernacular Riwaj‑i‑Am is an elaborate document which contains not only the questions and answers aforesaid but also a note of the prece dents, whether supported by legal decisions or otherwise, adduced by the tribes in support of their statements or admitted by them to be exceptions to the general rule. The present volume contains (with some re‑arrangement) the gist of the replies made by the tribes and a few notes thereon, but for the precedents aforesaid and for more minute details the vernacular code should be consulted." If the detailed expression of custom applying in this particular to Tarkhelis be that contained in the vernacular Riwaj‑i‑Am, then the statement in the English version relating to the same matter cannot correctly be regarded as the gist of the reply made by this tribe; Accuracy would, however, be achieved if in place of the word 'some underlined in the extract from the English Riwaj above, the word 'such' were substituted, and it seems to me that the discrepancy is due to an error in this particular. In any case, it is quite clear that the correct statement of the replies given by the Tarkhelis in the relevant respect is as set out in the vernacular Riwaj, of which Exh. D.1 is a copy. The statement in the Gazetteer appears to be based on the incorrect English version. There is ample evidence on the record in the shape of mutations of names following upon the deaths of male owners leaving no sons, but brothers, some of the half‑blood and some of the whole blood, which places it beyond doubt that it is an invariable rule among Tarkhelis in the Hazara district that step brothers are excluded from the inheritance to a deceased male owner who leaves full brothers, the latter being alone entitled to succeed. Dilbar Khan (D. W. 5) of village Bafiad in Attock district owns land in both Attock and Hazara districts and he cites an instance from the family of one Isap Khan of Khalo, who died leaving land in Khalo as well as in village Am‑Cah, both in the Hazara district. The mutation in respect of the Khalo‑land is Exh. D. 7 and is supported by a pedigree table. Ayub Khan, son of Isap Khan, having died sonless, the inheritance went to his true brothers Sher Muhammad Khan, Khawaja Muhammad Khan, Hemun Khan and Yaqub Khan. There was also a step brother named Yusaf Khan, who actually appeared before the Revenue Officer and stated that he had no share in the property, and accordingly the land was mutated in the names of the full brothers. As regards the Am‑Cah land, however, no such distinction was made, the patwari reporting that Yusaf Khan, Sher Muhammad Khan, Khawaja Khan, Hemun Khan and Yaqub Khan were all true brothers of AYLil; Khan, and mutation was made in the names of all these perso.is. The Revenue Officer did not apparently exercise much care in relation to this mutation, for his order sets out that Khawaja Khan, (i. e., Khawaja Muhammad Khan, son of Isap Khan), had appeared and stated that Ayub Khans sons, namely, himself and his four brothers were the heirs in equal shares ; the correct description was brothers. However, ‑the fact that in the family of Isap Khan the rule of grouping of the whole blood as distinguished from the half‑blood in collateral succession prevails, is placed entirely beyond doubt by another mutation Exh. 14, which is supported by a full pedigree table and relates to the succession to Mst. Akbar Nishan, the widow of one ,Abdulla Khan, son of Zarif Khan, a brother of Isap Khan. Zarif Khan and Isap Khan were sons of Habib Khan, and they had three other brothers, namely, Latif Khan, Ghulam Said and Qaim Khan. Like Isap Khan, Latif Khan had to wives and descendants though both were in existence when Mst. Akbar Nishan, who had succeeded as widow to the estate of Abdulla Khan, who was the only son of Zarif Khan, died issueless. The estate was divided into eighty shares, and among these shares were five allotted separately to Khanzada Khan, Farid Khan and Aslam Khan, descendants of Latif Khan, by one son from his first wife, and ten to Adam Khan, Sher Ahmad and Sher Rehmam, descendants of two sons of Latif Khan by another wife. Again, the question of differentiation of the lines through the different wives came up in relation to Isap Khan's progeny and the distinction was clearly made, By one wife Isap Khan had one son Muhammad Yusaf Khan, whose sons Muhammad Amin, Muhammad Sadiq and Sher Afzal, were in existence and five shares were allotted to these persons. By his other wife, Isap Khan had five sons, and of these Sher Muhammad Khan, Huma yun Khan and Yaqub Khan were in existence Muhammad Ayub Khan having died sonless and the fifth Khawaja Muhammad Khan having left two sons; fifteen shares were separately allowed to these persons. The land was mutated according to the shares entered up by the patwari, and these shares were obviously based on grouping of collaterals, according to their descent through different mothers. Another clear instance of the application of the rule that step‑brothers were excluded in succession to a sonless male is afforded by Sher Bahadur (D. W. 6) of village Gunga Pind, who furnished the example of his own family. His father had four wives and by them eight sons. He himself had two full brothers, Sher Muhammad and Sher Ahmad, and on the extinction of their lines he succeeded to their properties to the exclusion of his step brothers. His father had made a will, but the details of this will were not stated. nor are they necessary for the purpose of this case ; it is sufficient that this Tarkheli Pathan who owns land in both Attock and Hazara districts furnishes an instance of exclusion of step brothers in a case of the present kind. Then, there is Kalandar Khan (D. W. 7) a Tarkheli of village Jallu in the Hazara district, who fursnishes the instance of his own step brother Suba Khan, upon whose death sonless, his full brothers succeeded, but not Kalandar Khan or his brothers ; the document in supported is Exh. D. 17, the mutation which took place upon the death of Mst. Amir Jan, widow of Suba Khan. The order of the Assistant Collector sanctioning the mutation shows that in the public assembly a lambardar had stated that according to custom among Tarkhelis only full brothers would succeeded to a male who died sonless. Sher Ahmad (D. W. 9) of village Jammu in the Hazara district, gave an instance from his own family viz., that when his full brother Sher Rehman died, he himself succeeded to the exclusion of his half brother Sultan Muhammad ; the document in support is the mutation Exh. D.

6. Finally, mention may be made of Abdullah Jan (D. W. 10), a Tarkheli of Qazipur in Hazara district, who mentioned an instance from the family of Hamid Khan of Qazipur ; the reievant document is Exh. D. 15, and .this shows that, when Mst. Bibi, the widow of one Umar Khan, had died leaving no son, the patwari entered up a mutation in the names of all the four brothers of Umar Khan, two of whom were full brothers and the other two half brothers. When the came up before the Revenue Officer, the full brothers raised a protest, contending that they were solely entitled to succeed to Umar Khan ; one of the half brothers Khan Bahadur Khan did not admit that this was correct, and the matter was postponed until the next tour, when the case came up in the presence of one of the full brothers and the other half brother Ali Bahadur Khan. Ali Bahadur Khan then declared that only the full brothers were entitled to inherit and the land might be mutated in their names and an order was made accord ingly. Instances of this kind could be multiplied from the very voluminous documentary evidence which has been placed upon the record but this is unnecessary, for it seems to me to be clear beyond doubt that among Tarkhelis in the Hazara district, succession to a collateral goes to the full blood in preference to the half‑blood. The ins tances I have cited above are only intended to clear up any doubt which might remain concerning the accuracy of the‑ statement of custom in Pandit Paras Ram's vernacular Riwaj‑i‑am, which may arise on account of the discrepant version in the English Code of Tribal Custom. It being clear that the Tarkhelis hail from the Utmanzai territory in the North‑West Frontier Province, that the bulk of the tribe is in the Hazara district and that they only have a few villages in the Attock Tehsil, the presumption is strongly in favour of the tribe as a whole following the custom which the defehdants contend for in respect of all their property wherever it may be. A number of authorities was cited at the Bar to show that the custom followed by a tribe does not vary according to the locality where the property affected is situated. Of these I select for special mention the two following cases. "Ralia v. Wariam Singh" (94 P R 1913) is a case relating to a Hindu Jat of the Jullundur district, who had been granted land in the Hoshiarpur district, but had continued to reside in the Jullundur district. On a question arising as to the validity of an adoption made by this person, it was held that the custom which governed the matter was that of the jullundur district and not the different custom of the Hoshiarpur district. Rattigan J: in dealing with the question observed as follows :‑ "The ancestral home‑of the parties was in that (Jullundur) district and it was in that district that the adoptive father, Wazir Singh, lived and died. The land originally owned by him was in that district and when that land was compulsorily acquired by Govern ment and an equivalent given to him in the Hoshiarpur district, he was a young man of about 20‑25 years of age. It is not denied and is found as a fact by the lower Courts, that there are no Hindu Jars of the Rai got apart from the parties in Hoshiarpur district. In these circumstances why should we assume that the custom of the tribes of a different district must regulate the succession to this property ? The case might possibly have been different if Wazir Singh's father had migrated to Hoshiarpur district, or even if Wazir Singh had himself taken up his home in that district and lived and died there, In such a case it might have been argued, with more or less plausibility, that he had given up the customs prevailing in his tribe in the jullundur district and had adopted those of the tribes living round him in his new home. But he did nothing of the sort. He continued to live in his Jullundur home and merely paid intermittent visits to his property in the Hoshiarpur district. Custom is primarily trial, though the custom of a parti cular tribe may, and often does, differ in particular localities, But upon the facts of the case before us. We can find no ground for assuming that Wazir Singh adopted the customs of the tribes of a district in which he did not live, and with the people of which he was not, therefore: brought into daily contact." Mst. Zenab Bibi v. Nasur Ullah Khan (A I R 1935 Lah. 370) is a Division Bench decision in a case relating to a family of Hundal Jats of the Sialkot district, who had shifted to Lyallpur. The Hundal Jats came originally from the United Provinces, and it was proved that they had re sided in the Amritsar district for only a generation, some four hundered years before the suit, after which they had moved to the Sialkot district and had lived there for about four hundered years before the family in question migrated to Lyallpur. It was contented that the Customary Law of the Amritsar district should be applied to them, but this con tention was overruled, by the Devision Bench, in view of the extreme shortness of this tribe's stay in that district, compared with the great length of their residence in the Sialkot district, and it was laid down .that the Sialkot custom must apply. .As regards the effect of the migration to L yallpur, it was observed :‑ "If a tribe migrates from their ancestral home to a new colony, the members of that tribe must be presumed to be governed by the Customary Law prevailing in‑the district of their origin." Applying the principles of these two judgments, the case in respect f the Tarkheli Pathans who owned land in the Attock district but .themselves resided‑ in the Hazara district, would require to be decided on the basis of Hazara custom, unless it could be shown that the family in question was resident in the Attock district and in the course of time its customs had been altered so as to bring them into conformity with the customs of the other tribes inhabiting the Attock district. That Muhammad Khan whose estate is the subject‑matter of the present suit, lived and died at Kharbara in the Hazara district, is shown by the death certificate relating to him, vie, Exh. P. 4 ; this is extracted from the death register of Thana Ghazi and mentions that the residence of the deceased was Kharbara village where he died. That the founder of the family Najim Khan lived 'and died at Kharbara is proved by numerous statements e.g., the evidence of Mansur Khan (P. W. 8), Muhammad Akbar (P. W. 10) and the plaintiff Dilbar Khan (P. W. 13) himself. In fact, there is ample evidence on the record to show that the descendants of Najim Khan through Amir Khan and Hussain Khan, have through out lived in Kharbara village, and it is only the descendants through Ali Akbar Khan, who have property in the Attock district in a village named Mohri, who reside there. The history of the family appears with great clearness from three documents produced by them . defendants. These are Eah. D. 47, D. 48 and D. 49: Exh. D. 47 is a judgement of an Extra Assistant Commissioner, dated 7th December 1858 in a suit‑brought by Ali Akbar Khan for a one‑fourth share in the family lands situated in a villages Kharbara and Pipliala. The defendants were Mahandu Khan, son of Amir Khan and Aman Ullah Khan and Sher Khan, sons of Hussain Khan. Even at that early date, Hassan Khan was already dead. It is important to note that Ali Akbar Khan, who, as will presently appear, had been excluded altogether from the Pipliala and Kharbara properties as a result of a partition made by his father Najim Khan. whereby he himself received the entire, property in village Mohri in the Attock district, claimed not one‑third but one‑fourth of the proper ties in Pipliala and Kharbara. It being clear from the judgment, Ex. D. 47 that Hassan Khan was dead at the time and had left no sons. there were only three lines of descendants of Najim Khan in existence and All Akbar Khan as representative of one of these lines should have been entitled to a one‑third share. The case for the defendants is that when Hassan Khan died, they themselves, that is to say the lines of Amir Khan and Hussain Khan, inherited his share to the exclusion of Ali Akbar Khan, and it seems quite clear that by confining his claim to one‑fourth, Ali Akbar Khan was deliberately refraining from challenging this appropriation of Hassan Khan's share which was clearly to his detriment. It is as if he should have said, "As my father's son I am entitled to one‑fourth of the Kharbara and Pipliala properties and that is what I claim : I do not claim any share in the inheritence of Hassan Khan", and the only conclusion to be drawn from the renunciation of any claim to share in Hassan Khan's. estate is that Ali Akbar Khan recognised that the rule of the family was that in succession to a sonless male, his full brothers have preference as against his half brothers. As will be seen, in the document, Ex. D. 49, which is a statement made by Ali Akbar Khan in a suit brought by himself, he categorically admitted that he was the only son of his father Najim Khan by a second wife, there being three sons by the first wife. Now, as regards the case in which Ex. D. 47 was the judgment, it finally. ended in compromise, but the order incorporates statements. made by the defendants Mahandu Khan, Aman Ullah Khan and Sher Khan, which were believed by the Court, and these were to the effect that Ali Akbar Khan was descended from Najim Khan through a different wife from themselves, and that Najim Khan had during his life‑time partitioned his estate and made over village Mohri to Ali Akbar Khan, and had given Kharbara and Pipliala to Aniir Khan Hussain Khan and Hassan Khan, of whom Amir Khan and Hussain Khan had been in possession thereof. It was added that Mohri was "now included in Rawalpindi district", and this.suggests that Mohri was also included in the Hazara district at one time and serves further to weaken the argument that the Attock Riwaj should prevail, for if the only change which has taken place is in regard to the administrative boundaries, then the argument that through long residence among a different people, the Tarkhelis in Attock and in particular the family with which we are dealing, had adopted the different customs of their neighbours, would not be available. The defendents in the suit of 1858 went on to say that Ali Akbar Khan had never had anything to do with the Pipliala and Kharbara land, except that, being their uncle, they had ex‑gratia allowed hick to cultivate thirty or forty kanals of their land. They re‑affirmed that Ali Akbar Khan's share out of Najim Khan's estate was the village of Mohri. When the plaintiff put in a deed of compromise stating that he gave up his claim because the Government could not restore the land to him, he asserted that as before, he would "continue in possession of Mauza Mohri which is in my possession", and the Court in concluding the case held that the partition by Najim Khan was established and that Mohri was the plaintiff's patrimony while the property he was seeking to obtain‑ a share in, was the patrimony of the sons by another wife, and that the plaintiff's suit was motivated by greed and had only been withdrawn when he saw that it was impossible for him to disturb the long and ancient possession of the defendants. Next in order of the date is the document, Ex. D. 49, a statement made by Ali Akbar Khan to the Settlement Superintendent of Attock on the 17th July 1863 ;the claim was that Ali Akbar Khan was entitled to the ownership of the entire village of Mohri. In the course of a lengthy statement he was asked whether he possessed any land or had any connection with any village in Ilaqa Gandgar (this is the locality to which the Tarkhelis originally belong and where village Kharbara is situated). To this he replied as under :‑ "I have no concern with any village in Raqa Gandgar or Garbi (western). Of course, I live in Mauza Kharbara, Raqa Gandgar. The reason for this is given hereinafter. I had three elder brothers from one wife of my father while I was from the second wife. When my father died, I might have been about four or five years old. At that time, Mauza Kharbara and Piphaia situate in Ilaqa Gandgar formed the estate of my father, also Mauza Mohri situate in Ilaqa Harwan. All the three villages were taker possession of by the three elder sons of my father. My mother fearing lest my elder brothers should kill me, went over to Sher Zaman Khan Tarkeli taking me along with her, After four or five years when I had grown up a little, Sher Zaman Khan got it (i.e., Mohri) back for me after fighting it out with my brothers, it is still in my possession, while the income from Kharbara and Pipliala is still enjoyed by them (i.e., his brothers)." This establishes beyond doubt that Najim Khan made a division of his property and that in accordance with this division, Ali Akbar Khan became sole owner of village Mohri, while his half brothers Amir Khan, Hussain Khan and Hassan Khan became sole owners of Kharbara and Pipliala. It also establishes that Ali Akbar Khan remained throughout a resident of the Ilaqa Gandgar, and further that the descendants of his three half brothers always resided and owned property in this Ilaqa and this serves very greatly to weaken the claim that the custom of the Attock district which undoubtedly favours the Pagwand rule, should be applied in respect of the succession to Muhammad Khan, the grandson of Amir Khan. The last document Ex. D. 48 is dated 1884, and is the judgment to a suit brought by the descendants of Hussain Khan ; half brothers of Ali Akbar Khan, against Chanan Khan and Lal Khan, grandsons of Ali Akbar Khan, for a declaration of a right to ownership of one‑half of the entire revenue estare of Mohri. This was in a way retaliation for the attempt made by Ali Akbar Khan in 1858 to get a share in Kharbara and Pipliala, and ended in the same way, i.e., that the suit was dismissed. The plaintiffs in that case were somewhat assisted by the fact that they had been granted a c7agir out of the land revenue of Mohr; but it was held by the Extra Assistant Settlement Commissioner that this did not entitle them to be regarded as owners of the estate, for their own father Sher Khan in 1863 clearly admitted that in respect of village Mohri. Ali Akbar Khan alone was the owner, his own interest being a half share in the Jagir. The facts which appear clearly from these documents render it un necessary to examine the Customary Law applying to Tarkheli Pathans in the Attock district, for it is plain that the person whose estate is in question lived throughout and died in the Haxara District. Another fact appearing clearly from these documents is that the village of Kauhlia is nowhere mentioned as having been included in the partition effected by Najim Khan. It is clear that if in fact the Kauhlia land was never owned by Najim Khan, the claim to a share in it on behalf of the plaintiffs could not succeed unless it were shown that it was received in exchange for other land left by Najim Khan, and of this there is no indication on the record. There can be no question but that the claim of the plaintiffs to share in Muhammad Khans estate must be confined to the ancestral land, i. e., the land in Muhammad Khans possession at the time of his death which came to him directly from the common ancestor, i.e., Najim Khan. The record is completely silent as to the manner in which the Kauhlia land came into the possession of Muhammad Khan or his ancestors, and there is no indication that this land was included in the estate of Najim Khan at any time. This is by itself a sufficient reason for dismissing the suit of the plaintiffs in respect of the Kauhlia land, and as to the land in the Hazara District, it will be clear from what has been stated above that the custom appli cable to it must be the custom of the Hazara district which is collateral succession favours the full blood as against the half‑blood. Thus, it appears that the suit of the plaintiffs should have been dismissed in toto. In the course of the argument reference was made to paragraph 26 of Rattigan's Digest of the Oustomary Lam, and in particular to the proviso. This paragraph lays down that in matters of collateral succession where there is a contest between the whole blood and the half‑blood. the rule of decision shall vary according as the property of the common ancestor was distributed according to the rule of chundawand in which case the whole blood shall succeed, or the rule of pagwand in which case the whole blood and the half‑blood should succeed equally : the proviso lays down that the whole blood would, however, be still entitled to exclude the half‑blood, despite the distribution of the common ancestor's property by pagwand, if it were shown that full brothers had formed separate groups and confined succession among themselves thereafter, excluding the half‑blood. Now, in this case, grouping among the direct descendants of Najim Khan is apparent from the start. The three sons by the elder wife were given the home villages of Kharbara and Pipliala and the other son was given a village situated in a different district, or at any rate at a considerable distance. Then, before 1858 when one of the sons by the first wife, namely, Hassan Khan died, his full brothers Amir Khan and Hussain Khan took his estate and as seen above Ali Akbar Khan, acquiesced in it. Learned counsel for the plaintiff‑appellants attempted to argue that in order to justify application of the proviso to paragraph 26 cited above a high degree of unity should prevail among brothers of the whole blood, i.e., that they should hold their hands in a joint khata without separation of any kind, and should even live jointly with a common mess, etc. These contentions are devoid of force. What the brothers of the whole blood do with their property among themselves cannot be a matter of any concern to the half brothers, and it is inconceivable that the group comprising the whole blood should by custom be restricted in their enjoyment of their property in the manner and to the extent suggested by learned counsel for the plaintiffs appellants. With the growth of families living together in a single house might become totally impossible, and it is easily conceivable that for proper development and exploitation of the landed estate, partition should be absolutely essential ; a custom which prevented either of these natural courses, namely, separation of residence and partition of lands, upon pain of material loss of rights would be void as being contrary to public policy, but in fact no such custom exists, and the fault lies with the restricted meaning which is sought to be placed upon the expression "group" in paragraph 26 aforesaid, by learned counsel for the plaintiffs‑appellants. This is a case in which evidence is not available as to whether the distribution by Najim Khan was equally among his sons or equally between the sons from his two wives, but, however, that may be, there is clear evidence that he made a distinct separation of his estate between his sons by his first wife and' his sons by his second wife, and it is also clear and is exemplified by the direct instance of the devolution of Hassan Khan's estate, that the sons by the first wife formed a separate group to the exclusion of Ali Akbar Khan, and consequenently following paragraph 26, it must be held that in the present case the whole blood excludes the half blood. I would accordingly dismiss the appeal of the plaintiffs‑appellants; No. 175 of 1939, and would allow the appeal of the defendants‑appellants No. 188 of 1939, arid setting aside the decree awarded by the lower Court would dismiss the plaintiff's suit. I would allow the defendants their costs in the trial Court, but in view of the difficulty of the questions involved would leave the parties to bear their own costs in this Court. Muhammad Sharif, J.‑I agree. A. H. Appeal dismissed,