P L D 1954 Lahore 167 (PLP)

KAIKAUS, J.‑Occupancy rights in eight squares of land in Chak No. 122/7‑E.R., District Montgomery, belonged to Khan Bahadur Subedar Major Qurban Ali Khan. He died in 1922 leaving behind three sons. His fourth son Muhammad Aslam Khan had predeceased him. Mst. Zarda Begum and Mst. Khurshid Begum were the daughters of Muhammad Aslam Khan who had also left a widow but no son. At the time when the mutation on the death of Qurban Ali Khan was sanctioned Muhammad Azeem Khan, one of the sons, appeared and stated that the one‑fourth share of Muhammad Aslam Khan who bad predeceased his father should be entered in the name of his daughters Mst. Khurshid Begum and Mst. Zarda Begum. He stated that under custom applicable to them the widow of Muhammad Aslam Khan was not entitled to any share and that Muhammad Aslam Khan's share should go only to his daughters. The widow did not object and the mutation officer was inclined to sanction the mutation. It was pointed out, however, by the Assistant Colony Officer that the inheritance was governed by section 20 of the Colonization of Government Lands Act, and therefore, there could be no mutation in favour of the daughters without the sanction of the Collector under section 19 of the Colonization of Government Lands Act. At this report the Collector granted sanction and as a result the property was mutated to the extent of one‑fourth in the name of Mst. Khurshid Begum and Mst. Zarda Begum on Mst August 1922. It may be pointed out that, at the same time, the property of Khan Bahadur Qurban Ali Khan in the home district, i.e., Rawalpindi was also mutated to the extent of one‑fourth in the names of Mst. Khurshid Begum and Mst. Zarda Begum. Mst. Zarda Begum married some time in 1945 and on her death the property in the home district was mutated in favour of her other sister Mst. Khurshid Begum who was as yet a virgin. The squares in Chak No.] 22/7‑E, R. were, however, not mutated in favour of Mst. Khurshid Begum or the collaterals and there is a separate case relating to that property which is not before me. Mst. Khurshid Begum died on the 13th of January 1948 without issue. On her death mutation in respect of the land standing in her name was sanctioned by the revenue authorities in favour of the collaterals of her father. The present suit was brought by her husband claiming that as Mst. Khurshid Begum was the absolute owner of the property in dispute, be was as her husband, entitled to succeed to the property. The case was contested on the ground that there was no transfer of any absolute interest to Mst. Khurshid Begum by the mutation which was sanctioned on the 31st of August 1922. It was alleged that the land bad been given to the two virgin daughters only as maintenance. The learned Sub‑Judge who tried the suit came to the conclusion that Mst. Khurshid Begum had become an absolute owner of the property in dispute and, therefore, this property was to go to her husband on her death. The learned District judge on appeal agreed with this conclusion and the collaterals have filed this second appeal. The only question that has to be decided is whether Mst. Khurshid Begum got a full estate. From the statement of Muhammad Azeem Khan in the mutation it al‑pears that be regarded the two daughters as entitled to the share of their father Muhammad Aslam Khan as heirs. The reference to the fact that under custom the widow was not entitled also supports the inference that he regarded the daughters as succeeding under custom. The fact that the property in the home district had been similarly mutated also shows that the sons of Qurban Ali Khan accepted their right of inheritance. As stated above* the mutation officer was inclined to enter the property in dispute in the names of Mst. Khurshid Begum and Mst. Zarda Begum. Afterwards it had been pointed out that this could not be done without the sanction of the Collector but neither Muhammad Azeem Khan nor anybody else on behalf of the sons of Qurban Ali Khan appeared before the mutation officer at this stage. The title claimed for Mst. Khurshid Begum depends on a transfer by the sons of Qurban Ali Khan. She had admittedly no title by inheritance which was governed by, section 20 of the Punjab Colonization of Government Lands Act. Whether a life estate or full estate was transferred would depend only upon the intention of the person making the transfer. In the first place there is no transfer in this case at all. Muhammad Azeem who appeared at the mutation regarded the daughters as in fact entitled to succeed. Out of the sons of Qurban Ali Khan only he appeared at the mutation and even he appeared only at a stage when the question of regarding this mutation as subject to sanction under 19 had not arisen. All that has happened in this case is that Muhammad Azeem Khan expressly, and the other sons by the conduct accepted the two daughters as heirs. Apart from adverse possession which is not pleaded in this case, or from any estoppel which may arise in a proper case, a mere acceptance of a non‑heir as heir would have no legal effect but in any case it could not have greater effect then if the person concerned were in fact an heir. In the present case it is obvious that the sons of Qurban Ali Khan could not be accepting Mst. Khurshid Begum as entitled to larger estate than she would have inherited from her father if he had not predeceased Qurban Ali Khan. They could not be giving the grand‑daughters a higher status than the daughter has. In case Mst. Khurshid Begum had inherited an estate from her father under custom the present plaintiff would not be entitled to the property. His case is, according to the argument put forward on his behalf improved by the fact that Muhammad Aslam Khan father of Mst. Khurshid Begum predeceased his father. Assuming, however, that there had been a gift by the three brothers to Mst. Khurshid Begum let us consider what estate would be transferred. It is to be remembered that we are dealing with the case of agriculturists. So far as the Hindus are concerned, their Lordships of the Privy Council have in Maulvi Mahomed Shumsool Hooda v. Shewukram ((1874)

2. I. A 7.) and Radha Prasad Mullick v. Ranee Maid Dassee ((1908) 35 Cal. 986.) held that when a Hindu transfers ancestral property to a female there is no presumption that he intends the gift to be absolute. Similar considerations apply to the case of agriculturists who generally allow females only a life estate. The property is admittedly ancestral. If we look at the Riwaj‑i‑Am of the Rawalpindi District of 1910 we find in the Answer to Question No 28 that even in respect of property which has been granted in dowry to a daughter, Sattis, the tribe to which the parties belong, were not prepared to concede the right of the husband to inherit. There are a number of authorities holding that the mere fact of a transfer to a female would not imply a transfer of an absolute estate. Of course it may be that words are used in a deed of transfer which show an intention to confer an absolute estate. However, from the mere fact that a transfer has been made which does not contain any words of limitation we cannot say that the transfer is one of full ownership. In this case the circumstances, as already stated, are that Muhammad Azeem Khan or the three sons of Qurban Ali Khan believed that the daughters would be entitled to a share in the estate of Qurban Ali Khan as representing their father. They regarded them as heirs under Customary Law. That female heirs under Customary law do not in the absence of a special custom inherit an absolute estate is well‑established. Therefore, if the sons of Qurban Ali Khan regarded them as heirs, they were considering them as entitled to life estates and they could not have intended that the daughters should have a full estate. There is nothing in the circumstances of this case to show that the three brothers wanted to confer a special estate on the daughters. On the other hand, their conduct in the matter also supports the inference that they were only granting them either maintenance or a life estate. When Mst. Zarda Begum married, the property was mutated in favour of Mst. Khurshid Begum. That shows that even in the case of a marriage of the daughters they intended to claim that the estate had terminated. I hold that Mst. Khurshid Begum did not hold a full estate. That finding concludes the matter for it is not the plaintiff's case that even if Mst. Khurshid Begum did not hold a full estate he is entitled to inherit. I accept this appeal and dismiss the suit but the parties are under the circumstances, left to bear their own costs throughout. A. H. Appeal accepted.