P L D 1968 Karachi 665 (PLP)

(4) In case the lands belong to Government, can any inheri tance rights be derived and granted to anyone? (5) Is it a fact that after the death of Jangoo, his heirs got the lands in dispute transferred in their names according to law ? (6) Whether the Government lands are in possession of the defendants or any other Government tenants on any technical terms such as rights to purchase, to sell, to gift, to hand over in. lieu of blood money. Can these occupation rights be considered as ownership rights. (7) Is it a fact that the heirs of any deceased have been given any right that if they are in possession, they could usurp the claim of other heirs who are not in physical possession of the properties in dispute, and that the former should not allow the later to get any mesne profits thereof ? (8) Does the transferable property remain as abandoned property of the deceased person ? (9) Whether in the absence of the original owner or without his directions any person has the 'right to disallow any person to take possession of the properties left by the deceased ? The decision on all these issues was against the appellants and therefore Mst. Hawa's suit was decreed by the Kazi. On appeal by the appellants, the Majlise‑Shura formulated the appellants' objections to the decision of the Kazi as follows :‑-- (1) That the disputed agricultural lands are not the property of the late father of the defendant, but of the State. (2) That Jangoo has died about 50 years ago and therefore under the law this suit is barred by limitation. (3) That in accordance with the custom prevailing in Lasbella State, only male members can become the heirs of the deceased. As the defendant is the daughter of Jangoo, and in accordance with the custom prevailing in Lasbella State, the female folks are not entitled to any right of inheritance." These objections were, however, rejected by the impugned judgment and hence this second appeal has been preferred by the appellants.

2. The only question argued before me by the appellants learned Advocate is with regard to an alleged custom in Lasbella, according to which the females are excluded from succession in favour of the male descendants of a deceased person. The plea of custom was not raised by the appellants in their written a statement or defence, which appears on page 20 of the trial Court's record. As a matter of fact, the defence, contained a statement that the appellants have no objection to the claim of Mst. Hawa if she is entitled by Shar'a to be included in the succession to the estate of her deceased father. There is no reference to the alleged custom in the statement of the witnesses examined on the appellants' behalf in the Kazi's Court. The plea of custom was set ‑up for the first time in first appeal before the Majlise Shura; and reliance in this connection was placed on a decision given in 1903 by the Ruler of Lasbella, sitting in Darbar, on an application by some Zamindars of the State with regard to rights of "lathbandi" and succession to rights of cultivation in State lands.

3. The main question, therefore, is whether it was open to the appellants to set up the plea of custom for the first time in their first appeal before the Majlise Shura, without having raised this plea in their pleadings before the trial Court of getting any issue framed thereon. In my opinion, a custom which modifies the ordinary law of succession can be recognised as a rule of law only if it is ancient and invariable, and is so pleaded in the pleadings before the Court of first instance, and an issue is framed thereon and clear and unambiguous evidence is given in support of its existence. I would in this connection refer to the Privy Council decision in Ramlakhshmi Ammal v. Sevanatha Perumal Sethurayar ((1872) 14 M I A 570) in which it was observed that "it is of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable : and it is further essential that they should be estab lished to be so by clearand unambiguous evidence" and that "it is only by means of such evidence that the Courts can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends". This view was reiterated by the Judicial Committee in Abdul Hussain Khan v. Mat. Bibi Sona (A I R 1917 P C 181). The High Court of Allababad held in Badruddin and others v. Tej Ram and others (A I R 1929 All. 233) that "a mere statement in pleadings as to the existence of a custom would not be enough, but all the incidents of the custom must be pleaded and be proved." In Bai Sarkar and another v. Ismail Ghafoor (A I R 1937 Bom. 65), it was held that a person asserting a particular custom must plead it specifically and with certainty and prove it by clear and unambiguous evidence. Tyabji, J. took the view in this case that when it is alleged that a custom is binding upon a particular body of persons, the evidence appropriate for this purpose must include proof of the fact that the parties before the Court have adopted it as a rule of conduct, have consciously accepted it as having the force of law and have been governing their, conduct in accordance therewith, and that if a party who relies on a custom is unable to define it, and leaves it to be deduced from evidence called to proof something different, the Court may well be suspicious as to whether there is such a degree of certainty about the custom that it deserves recog nition by the Courts. The learned Judge further observed that proof of custom may consist of adducing previous instances in which the particular parties themselves have followed the rule, or of instances concerning other persons belonging to the same community or group, in which case, the link must necessarily be established that the particular parties and the third parties whose conduct is actually proved belonged to the same community or group. In Nawab Din and others v. Maula Bakhsh and others (A I R 1938 Lah. 431). Abdul Rashid, J. held that a custom must be pleaded and proved and an issue should be framed thereon and that if it is not so done, the point of custom should not be allowed to be raised in appeal for the first time. The High Court of Madras held in Brahadeeswara Mudaliar v. Rajagopal Pillai (A I R 1947 Mad. 71) that where a custom modifying the ordinary law of succession has not been pleaded specifically, the evidence in proof of the existence of custom should not be admitted at all.

4. In the instant case, the appellants did not plead any custom in Lasbella by which females are excluded from succession in their pleadings in the Court of First instance. On the other hand, they stated, as noted above, that Mst. Hawa may be given her share in her father's property if she is entitled thereto by the rules of Shar'a. Nor did the trial Court frame any issue on the point of custom. The defence of customary rules of succession was raised for the first time by the 'appellants in appeal before the Majlise‑Shura. Even the evidence, on which the appellants have placed reliance in proof of the existence of the alleged custom does not show that there was, or is, any ancient and invariable usage in Lasbella by which the ordinary rules of succession under Shar'a are superseded and females are excluded from succession to their, fathers' properties. The only document which was put forth as proof of the existence of custom is the decision given in 1903 by the Ruler of Lasbella, on an application by some Zamindars of the State with regard to the rights of "lathbandi" and succession to rights of cultivation in State lands. But this decision does not satisfy the requirements which are necessary to infer the existence of custom. No evidence has been given of the practice followed in the family or the group to which the parties belong. The decision of the Ruler itself is not specific with regard to the exclusion of females from succession to the estate of their fathers. The Majlise‑Shura acted correctly in rejecting the appellants' plea of custom since, for the reason given above, my own view is that the appellants can neither be allowed to be heard in support of the existence of the alleged custom for the first time in their first appeal, nor have they succeeded in establishing any ancient and invariable usage in Lasbella, which would supersede the Shar'a rules of succession and exclude Mst. Hawa from succession to the lands left by her father.

5. In this view of the matter, the appeal fails and is dismissed with costs. A.E./S.A.H. Appeal dismissed.