P L D 1956 Lahore 145 (PLP)

(defendant No. 2) (defendant No. 1) No. 2 ALLAH BAKHSH _________________________|________________ | | | Mst. Mehtab Bibi Mst. Mehr Bibi Mst. Karam Bhari = Nizam Din | | | | | | Mst. Amir-un-Nisa Hassan Din ____|__________ (Defendant No. 4) (died during this appeal | | Her sons too have And is represented Hussain Bakhsh Mst. Fazal- been impleaded. by Mst. Mehr-un-Nisa etc.) un-Nisa (died on 3rd April 1947) The property in dispute in the suit, out of which the three appeals which are to be disposed of by this judgment arise, was in the possession of Mst. Fazl‑un‑Nisa who died on the 3rd of April 1947. This property she received partly from her brother, Hussain Bakhsh who in his turn had inherited the same from Nizam Din, and partly from her mother Ma. Karam Bhari who had inherited from her father Allah Bakhsh mentioned in the second pedigree‑table. The property which came from Nizam Din will be described as property and the property which came from Mst. Karam Bhari will be described as property 'B'. The suit out of which these appeals arise was filed by Rahim Bakhsh son of Imam Din. He claimed that as a collateral of Mst. Fazl‑un‑Nisa and Hussain Bakhsh, he was entitled to succeed to the property, the parties being admittedly governed by agricultural custom. The defendants in the suit are the sons of Mst. Mehran, the sister of Nizam Din and the descendants of Allah Bakhsh, mentioned in the second pedigree‑table. The trial Court decreed the whole suit. Two appeals were filed against the decree, one by defendants Nos. 1 and 2, Mebraj Din and Taj Din sons of Mst. Mehran, and the other by Hassan Din and others, defendants Nos. 3 to 8, the descendants of Allah Bakhsh. In both the appeals the appellants claimed the whole of the property in dispute. The learned District judge accepted the appeal filed by the descendants of Allah Bakhsh with respect to the property 'B' and dismissed the appeal filed by defendants Nos. 1 and

2. The result of his decree was that property 'A' went to the plaintiff and property 'B' to the descendants of Allah Bakhsh. Against this decree of the learned District judge three appeals have been filed. The first is R. S. A. No. 215 of 1952, filed by defendants Nos. 3 to 8, claiming that they were entitled even to property 'A' qua which their appeal had been dismissed. The second appeal is R. S. A. No. 244 of 1952, by Rahim Bakhsh plaintiff claiming property 'B'. The third is R. S. A. No. 288 of 1952 filed by defendants Nos. 1 and 2 claiming the whole of the property. This judgment will dispose of all the three appeals. I will take up first property which has come from Allah Bakhsh. The plaintiff's case with respect to it is that as this property was owned by Mst. Fazl‑un‑Nisa and as he is a collateral of Mst. Fazl‑un‑Nisa, he is entitled to it accord ing to general custom of the Province as also under Question and Answer No. 69 of Riwaj‑i‑am of the Lahore District (1935‑39) in preference to the descendants who are either the sons of a paternal aunt or of maternal aunts. I may say that so far as the sons of Mst. Mehran are concerned, they obviously have got no right to the property. This property never belonged to Nizam Din or even to Hussain Bakhsh. The only argument put forward on behalf of defendants Nos. 1 and 2 is that as the property belonged at one time to Mst. Karam Bhari, it became the property of Nizam Din on account of the custom embodied in paragraph 268 of Rattigan's Customary Law which provides that wife's property is merged in husband's. That paragraph runs :‑ "

268. The customary law prevailing amongst agricul tural tribes usually regards the wife's personal property as merged in that of the husband, who is also deemed entitled to all the wife's earnings". I can hardly regard this as a serious argument. It is not laid down in any Riwaj‑i‑am that all property of a wife merge in the husband's and there is no decided case on the point. The proposition is so opposed to the principles of justice and public, policy and even to the recognized principles which apply to cases of succession governed by custom that on cannot accept it in the absence of clear proof. I have no hesitation in rejecting this contention. The real point to be decided is whether it is the descen dants of Allah Bakhsh from whom the property originally came or the collaterals of Mst. Fazl‑un‑Nisa or her father, who are entitled to succeed. This property came to Mst. Karam Bhari from her father. Ordinarily a daughter when she succeeds to her father, and not only a daughter but all the females who succeed to properties of males under B agricultural custom have only a life estate in the property which they inherit. This proposition is too well‑established to be challenged, I may refer to Rana v. Muhammad Afzal Khan and others (P L D 1949 Lab. 435), where in it was held that there is a strong presumption that a female inheriting property under custom has a restricted power of alienation. I may also refer to Ahmad Din and others v. Mst. Fatima Bibi and others (A I R 1928 Lab. 290), where it was held that a female inheriting the land from a male holds the property on a life tenure whether she be a widow, daughter or a mother. ‑According to Paragraph 64 of the Rattigan's Customary Law, a female holding inherited property from a father, brother or husband, cannot alienate it except for necessity. In cases governed by custom, a female inheriting property. does not herself form a fresh stock of descent and on her death inheritance is to be reckoned from the last holder. This general proposition is not contested by learned counsel for the plaintiff. It is, however, urged that in cases of. Arains of Lahore District a daughter has got special powers of alienation and that the estate which she inherits is an absolute one. Reliance is placed in this con nection on paragraphs 67 and 68 of the Riwaj‑i‑am of Lahore District of 1935, which run as under :‑ "Question 67.‑What is the nature of the interest taken by a daughter in the property which she inherits ? Define her rights of alienation, if any, by sale, gift, mort gage or bequest? Answer 67.‑All tribes.‑Where daughters inherit by the Islamic Law or exclude agnates as explained under answer 64, they have full right of alienation by sale, gift mortgage or bequest. The interest of unmarried daughters where they inherit till marriage are akin to those of widows and their right to alienate is subject to the same restrictions. Question 68.‑ Who succeeds to the private property of a woman ? Does the general custom of inheritance apply ? Answer 68.‑Yes". Paragraph 67 would, in its apparent sense, lay down that the daughter can alienate the property without restriction. This and similar paragraphs have, however, been the subject of comment in more than one case and it has never been held that the daughter has a free power of alienation. This very paragraph or rather the corresponding paragraph of the earlier Riwaj‑i‑am of this District for the year 1916 came up for consideration before a Bench of this Court in Mst. Chiragh Bibi v. Umar Din and others (A I R 1936 Lab. 594). The learned judges pointed out in that case that although in the English version of the Riwaj‑i‑am these words were missing, in the Urdu version there were at the end of the answer the words "like the male issue". This meant, the learned judge pointed out, that a daughter had only the same power of alienation as a male proprietor, i.e., she could only alienate for necessity. It need hardly be stated that the entries in the Riwaj‑i‑am always relate to ancestral property unless self‑acquired property is specifically mentioned, as was held in Full Bench decision in Mst. Hurmate and another v. Hoshiaru and another (A I R (31) 1944 Lab. 21 (F B) and the power of male to alienate refers' to ancestral property. Although the Urdu Riwaj‑i‑am of the present settlement is not before me, paragraphs 67 and 68 are merely the reproduction of the earlier Riwaj‑i‑am and there is no reason to assume that a change in custom has taken place after the settlement of 1916. The Riwaj‑i‑am of 1916 can be of help in interpreting the present Riwaj‑i‑am and can also be regarded as a check on the latter one as, the learned Judges have pointed out in Subedar Kesar Singh v. Achhar Singh (A I R 1936 Lah.68) similar paragraph in the Riwaj‑i‑am of the Jullundur District came up for discussion before another Bench of this Court in Mst. Santi v. Dharam Singh and others (A I R 1935 Lab. 834). The answer in 'that case said: "A daughter who succeeds by inheritance has a free right to alienate it by mortgage or sale but is not entitled to alienate it by will or gift to any one but to her male issue." I quote below a paragraph from the judgment, which deals with the interpretation of this answer. It runs :‑ "If the words free right to, alienate mean the power to mortgage or sell without necessity the reply is obviously incorrect. It is not only in direct conflict with numerous decided cases, but is destructive of the rights of daughter's issue as also those of the reversionary of the father to whom the property would revert on the extinction of the line of the daughter. It is noteworthy that according to the Answers to Questions 45 (a) and (b), a daughter succeeds to the ancestral property of a sonless proprietor in preference to collaterals beyond the 5th degree in certain tribes and beyond the 7th degree in some other tribes. This read with Answer to Question 47, would lead to the startling result that while the father himself (or his son, if he had succeeded him) was incompetent to sell or mortgage such ancestral property without valid necessity, his daughter, who had succeeded him on his dying sonless, possesses 'a free right to mortgage or sell it." The learned judges rejected the plea that the daughter was a full owner. In another case Sunder Devi and another v. Mian Tegh Singh and another (A I R 1935 Lah. 830), a corresponding paragraph in the Riwaj‑i‑am of the Ambala District was also relied upon for the proposition that daughters had full powers of alienation. The words used in the Riwaj‑i‑am were "all tribes agree that in the rare cases of daughter's inheritance she has an absolute right of disposal." The learned judges refused to accept that daughter had a free power to alienate. As will be apparent from the discussion in the case reported as A I R 1935 Lab. 834 the proposition that a daughter has full power of alienation leads to an apparent absurdity. Can it possibly be that custom would allow to a daughter greater powers of alienation than it allows to the Son? Such an idea is so diametrically opposed to the concepts on which agricultural custom in the Punjab is based that it cannot be accepted in the absence of very strict proof. There is another reason why the Answer to Question 67 cannot be accepted in its apparent sense. This question and a similar answer would be found in the Riwaj‑i‑am of almost every District in the Punjab. Now either we hold that according to the general custom of the Province daughters get a full estate or we hold that this paragraph does not mean what it apparently conveys. I have already quoted the recent Full Bench decisions in P L D 1949 Lah 435, A I R 1928 Lah. 290 and Rattigan's Digest for the proposition that a daughter when she inherits takes only a life estate. A large number of other authorities beginning with 32 P R 1895 (F B) can be quoted for the same proposition. In an earlier Full Bench case Mst. Desi v. Lehna Singh and others (46 P R 1891), it had been explained that females are not regarded as a part of the family and their right is only one of maintenance. It is only the right of maintenance which has gradually ripened into a life estate. A daughter when she inherits is only intended to act as a conduit for passing on the property to her children. The proposition, which we would have to agree to if we accept the relevant answers in all these Riwaj‑i‑ams in their apparent sense, is that according to the general custom of this Province daughters take an absolute estate. This proposition obviously cannot be accepted. The only other alternatives are either to reject the answer as absurd or to interpret it in the way it has been interpreted in Mst. Chiragh Bibi v. Umar Din and others (A I R 1936 Lah,594). Let me state that I would rather reject this answer on the general ground that it is irreconcilable with fundamental concepts of agricultural custom rather than on the ground mentioned in A I R 1936 Lah. 594 for that ground would relate only to the Riwaj‑i‑am of the Lahore District and the answer exists in. the Riwaj‑i‑ams of all districts. In any case that judgment is binding on me with respect to its interpretation of the Riwaj‑i‑am of 1916. In the present Riwaj‑i‑am no doubt there are a number of instances cited where daughters have been making alienations but all the circumstances of those alienations are not known and it cannot be said that they are instances in support of the proposition that daughters take an absolute estate. In the earliest Riwaj‑i‑am of the Lahore District, I find that the daughters were given no rights of inheritance at all. There is no justification for assuming such a change in the attitude of the agriculturists of the Lahore District as to grant to the daughters, who were not heirs at all in the early part of this century, absolute rights of disposal even far exceeding those of the males. The Urdu Riwaj‑i‑am of 1916 has clarified the position and there is no evidence of a change since 1916. I hold therefore, that so far as the property 'B' which came from Allah Bakhsh is concerned, the plaintiff is not an heir at all‑at least not an heir superior to the descendants of Allah Bakhsh. So far as the property 'A' is concerned, the matter does not seem liable to any serious contest. Mst. Fazl‑un‑Nisa had inherited the property from Hussain Bakhsh as a sister. Mst. Fazl‑un‑Nisa would be holding only a life estate and the property would go to the heirs of Hussain Bakhsh after her death. The plaintiff is a collateral of Hussain Bakhsh. On the other side there are only the father's sister's sons. The plaintiff has obviously a preferential right. In accordance with paragraph No. 69 of the Riwaj‑i‑am of the Lahore District, in the absence of the widow, parents, or descendants; collaterals have a right to inherit the property. Similar provision is to be found in the Rattigan's Customary Law. Even if inheritance were to be reckoned from Mst. Fazl‑un‑Nisa the result in the case of this property would be the same, for the plaintiff is her collateral too. As a result all these appeals are dismissed with costs. A. H. Appeals dismissed.