P (PLP)

SIR ABDUL RASHID, C. J.‑This is a first appeal, preferred by the defendants, from a decision of Mr. Behari Lal, Subordinate Judge Mianwali, decreeing the plaintiffs' claim. The parties to this litigation are fats of the Mianwali district. Their relationship appears from the pedigree‑table printed at page 20 of the paper‑book. Kaura had four wives. He left a number of sons from each 61 the wives. One of his wives named Mst. Pathani II had six sons, Nur Muhammad being one of them. Nur Muhammad died about ten years before the institution of the present suit. Thereupon his five real brothers took possession of his entire estate. The descendants of the other three wives of Kaura applied to the revenue authorities for partition of the property lift by Nur Muhammad, on the ground that they were governed by pagwand rule of succession and 'that in their family the, full‑blood and the half‑blood inherited the estate equally. Nur Muhammad's estate was, therefore, divisible amongst all the descendants of Kaura. In order to prevent the defendants from claming any portion of the estate of Nur Muhammad, the plaintiffs instituted the present suit, on the 22nd of December, 1943, for a declaration to the effect that they were entitled exclusively to the estate of Nur Muhammad deceased in preference to the defendants on the ground that in their family the full‑blood brothers include the half‑blood brothers. It is admitted that amongst the Jats of the Mianwali district the rule of succession is pagwand and not chundawand. This is clear from the Riwaj‑i‑Am of the district complied in the year 1878, where it is stated by the Sayyed, Jat, Baloch and Qureshi tribes that chundawand rule of succession dues not exist amongst them. The case of the plaintiffs, however, is that though the pagwand rule of succession originally obtain, once the estate has been inherited by all the brothers, the full‑blood exclude the half -blood when one of the brothers dies. The onus of proving that on the death of one of the brothers the full‑blood brothers exclude the halt‑blood lay heavily on the plaintiffs, and, in my opinion they have failed to discharge it. The general custom of the Province has been stated in the following terms is para 26 of Rattigan's Digest of Customary law:‑ "In the case of collateral succession in a contest between relations of the whole me blood and those of the half‑blood the Court may presume, until the contrary is proved, that (a) when the property of the common ancestor was distributed according to the rule of chundawand, the whole‑blood excludes the half‑blood; and (b) where the property of the common ancestor was distri buted according to the rule of fiagwand, the whole‑blood and half‑blood succeed together. But where the brothers of the whole blood subsequently from separate groups and so regulate succession amongst themselves as to alter the original rule of distribution, the presumption arising from the original rule of distribution will cease to operate". The proviso to para 26 Rattigan's Digest of Customary Law did not come into operation in this case. Even in the plaint the plaintiffs did not state that the estate of Kaura had been divided amongst the various groups of his sons, and that these groups had held separate possession of the land that had fallen to the share of each group. On behalf of the plaintiffs reliance was placed on the Riwaj‑I- Am of Tehsil Bhakkar, District Dera Ismril Khan, prepared at the first Regular Settlement of 1878. This Riwaj‑i‑Am states that the custom of chundawand rule does not exist. According to pagwand rule all sons take equal shares. If afterwards one of them dies sonless, his share goes to his uterine brother regardless of the fact that their property was divided during the life of their father or after his death. If the estate of the deceased Person is not partitioned, all the brothers are entitled to take equal shares irrespective of the fact that they are real or step‑brothers. Properly appreciated, the Riwaj‑i‑Am of 1878 goes against the case set up by the plaintiffs. In the present case there is no reliable evidence to the effect that the estate of Kaura was ever divided. If the estate was not partitioned, then according to this Riwaj‑i‑Am when one of the brothers died, all the brothers are entitled to take equal shares irrespective of the fact whether they are real or step‑brothers. This Riwaj‑i‑Am is, therefore, practically on the same lines as para 26 of Rattigan's Digest of Customary Law. The Riwaj‑i‑Am of the Mianwali district prepared at the second Regular Settlement of 1908 states the custom in the following terms:‑ "After the death of a father his estate is partitioned according to pagwand system and all the sons take equal shares. If afterwards any son dies sonless his share goes to all the brothers in equal shares regardless of the fact that the pro perty was divided during the life time of his father or was partitioned mutually after his death. If the estate of the deceased is not partitioned all the brothers are entitled to equal shares irrespective of the fact that they are real or step brothers. It is further stated that the practice is also that under all circumstances, all the brothers take equal shares in every way at the outset or afterwards." The Riwaj‑i‑Am contains fourteen instances of the pagwand rule of succession. In five instances out of these fourteen it is further brought out that when later on one of the brothers died, his estate was divided equally between his real brothers and step‑brothers. These five instances strongly support the case of the defendants. Three instances to the contrary are also mentioned in this Riwaj‑i‑Am. In these instances the step‑brothers were excluded by the real brothers. The net result of the entries in the Riwaj‑i‑Am of 1908 is that the custom as embodied in the reply of the Jats is supported by five instances while there are three instances to the contrary. The custom as embodied in the Riwaj i‑Am must, therefore, beheld to have been established, particularly as this custom is in accordance with the general custom of this Province. The plaintiffs also rely on three judicial instances. The first instance consists of a judgment of Mr. Kennaway, District Judge, Mianwali, dated the 28th of January 1916. In this judgment he held that amongst Muhammadan Jats of the Mianwali Tehsil full-brothers excluded half‑brothers. He pointed out, however, that the custom in the Bhakkar Tehsil was two the contrary. The parties to the present litigation belong to Bhakkar Tehsil and not to Mianwali Tehsil. The next instance relied upon by the plaintiffs consists of the judgment of Mr. May, District Judge, Mianwali, dated the 23rd of January 1933. This again referred to the Jats of the Mianwali Tahsil as distinguished from the Jats of the Bhakkar. The same is to be said of the third instance relied upon by the plaintiffs. After a careful consideration of the entire evidence on the record, I am of the opinion that the plaintiffs have not established that the estate of Kaura was ever partitioned amongst the various groups who had descended from the different wives of Kaura. In these circumstances the general custom of the Province, the Riwaj‑i‑Am of 1878 and the Riwaj‑i‑Am of 1908 all go against the case set up by the plaintiffs. The three instances relating to Jats of the Mianwali Tehsil are not sufficient to rebut the presump tion of correctness attaching to the Riwaj‑I-Am. I would, there fore, accept this appeal, set aside the judgment and the decree of the trial Court and dismiss the plaintiff's suit. Having regard to all, the circumstances, I would leave the parties to bear their own cots throughout. MUHAMMAD KHURSHID ZAMAN, J.‑

I agree. A. H. Appeal accepted.