P L D 1954 Lahore 671 (PLP)

Milkha Singh v. Ram Kishen A I R 1934 Lab. 725 and Mst. Basso v. Harnam Singh A I R 1937 Lah. 636 ref. Muhammad Amin Khan and Ghias Muhammad, for Appellants. Kh. Abdur Rahim, for Respondents. KAIKAUS, J.‑The last male owner of the property in dispute was one Amira, who made a will of his property on the 7th of December 1936 in favour of his two sons‑in- law, Mamoon and Thiraja. Amira died on the 22nd of January 1945. After his death, Noor Muhammad, Sardara and Satin‑, three of his collaterals, filed a suit for a declara tion that the will in favour of the sons‑in‑law did not affect their reversionary rights and that they had succeeded to their share of the property left by Amira. This suit was decreed. Amira had neither son nor widow and had left behind only Mst. Niamat Bibi a daughter who is the plain tiff in this case. He had another daughter, Mst. Tharri, who was married to Thiraja, but she pre‑deceased her father. The present suit was filed on the 10th of May 1950 by Mst. Niamat Bibi for possession of the land left by Amira. The claim is based on the ground that she is the daughter of the last male owner. There is a reference in the plaint to the will and to the suit that had beets brought to impeach the will. The relief claimed is possession after a declaration that the decree passed in the previous suit does not in any way affect tile rights of the plaintiff. The plaintiff had said in her plaint that she was entitled under Muhammadan law and custom to the property in dispute. So far as the case under Muhammadan Law is concerned, it was not pressed either in the lower Court or before us. It also finds no place in the grounds of appeal and no further notice need to be taken of it. The reversioners contested the suit on the ground that the property in dispute being ancestral, they were entitled to it in preference to the plaintiff. The learned trial judge found the property to be ancestral and dismissed the plaintiff's suit. The plaintiff has appealed. The point urged in appeal is that the property in dispute has been wrongly found by the lower Court to be ancestral. There was a plea put forward of a special custom by which the plaintiff would be entitled to succeed even to ancestral property on the ground that she is married to a collateral but that plea too has not been pressed before us. Before I come to the question whether the property is ancestral and the plaintiff is entitled to it, as she would ordinarily .be as if the property is ancestral, I have to consider a serious obstacle in the way of the plaintiff's claim. She lead admitted in paragraph No. 3 of the plaint that Amira had transferred his property by means of a will and that the legatees had entered into possession. Now, if there be a will by the deceased, whether the property he ancestral or non -ancestral, the daughter would have no right to it. If the property be non‑ancestral, as she says, Amira had a full power of disposal and even in the case of a will of ancestral land, it can be impeached only by the reversioners and not by a daughter. If there was a will, therefore, by Amira, it is quite obvious that either the reversioners or the legatees are entitled to the property and not the plaintiff. We have asked the learned counsel for the appellant as to how he meets the situation. He puts forward two arguments. The first is that Mst. Niamat Bibi can take advantage of the declaratory decree passed in favour of the reversioners. He can cite no authority for this proposition, nor can he refer to any such rule of custom. The right of a reversioner to impeach an alienation is based on the agnatic theory according to which male descendants of an ancestor have a kind of residuary interest in his property. They inherit not from the last male owner but from the common ancestor though through the last owner and their right of inheritance from the common ancestor remains unaffected by an aliena tion which custom does not accept as valid against the reversionary right. Under agricultural custom female heirs were entitled originally to maintenance alone. In course of time the right of maintenance developed in some cases to a life estate. But they succeed only from the last male holder and not from any common ancestor. They are bound by the alienation of the last male holder. They can neither challenge such alienation nor can they take advantage of a decree obtained by the reversioners. As provided in section 8 of Punjab Act I of 1920, a declaratory decree of this nature enures only for the benefit of the persons who are entitled to impeach the alienation. As held in Milkha Singh v. Ram Kishen (A I R 1934 Lah. 725.) and Mst. Basso v. Harnam Singh (A I R 1937 Lah. 636.) a daughter has no right to impeach an alienation by her father. In fact no female has a right to impeach an alienation by a male. The second reply of learned counsel for the plaintiff‑appellant is that although the plaintiff may have no right of suit as against the legatees, she is a better heir than the rever sioners and, therefore, would be entitled to succeed as against them. This argument too is entirely without force. The plaintiff has to succeed on the strength of her title and not on the weakness of the defendant's title. It is only if Mst. Niamat Bibi be in fact entitled to the property that she can be granted a decree for possession. Assuming that the property in dispute is, as the plaintiff says, non‑ancestral, the true position would be that the property belongs to the two legatees but the defendants have got a decree as to their ownership in a suit against the true owner. We do not see how the position of the plaintiff who is not the owner of the property would improve by the decree if otherwise she was not entitled to this land. If the decree did not exist she would admittedly have no right to the land. It is obvious that if a will by Amira exists, as has been admitted by Mst. Niamat Bibi, this suit ought to fail. Under the circumstances we would have dismissed the appeal had it not been for the fact that not only had the defendants taken no objection that in the presence of a will Mst. Niamat Bibi has no right of suit, but they went so far as to say in their written statement that the will was not valid. Of course, that might means that so far as their own reversionary rights are concerned, it could not affect them, but in any case they did not urge that a valid will was a bar to the plaintiff's suit, and it is possible that if this had been urged, the plaintiff might have raised some objec tion as to the validity of the will in spite of what she had stated in paragraph No. 3 of the plaint. We would, there fore, instead of dismissing this appeal, give Mst. Niamat Bibi an opportunity of taking any objection to the will. This case will go back to the trial Court which would allow the plaintiff an opportunity to put in a replication raising pleas of undue influence, disposing mind or such other pleas as she may choose. The Court will then frame an issue as to whether the will was not valid casting onus of invalidity on the plaintiff. We have not gone to the question of ancestral nature of the property. Learned counsel for the defendants urge that he had asked for an opportunity for filing some documents in order to supplement the excerpt prepared b y the Patwari, but was not given an opportunity to do so. It does appear from the excerpt that it does not fully explain how in one part of the property the descendants of Cliakar came to have the share that they possessed at the death of Amira. We will, therefore, allow both the parties to produce any document for the purpose of proof or disproof of the ancestral nature of the property. We would also point out that the present excerpt prepared by the Moharrir Patwari is defective. It does not give the Khasra numbers and strictly‑ speaking there is no proof that the property is the same. The function of the Moharrir Patwari is to give true copies of records. His report is not admissible in evidence. The parties will, therefore, be allowed to get proper excerpts prepared. At the same time we are not debarring the Court from trying the issue as to the validity of the will as a preliminary issue without going into the question of the ancestral nature of the property. As a result this appeal is accepted and the case is remanded for a decision in accordance with the direction given above. The parties are left to bear their own costs of this appeal. A. H. Case remanded.