P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

By this appeal under clause 10 of the Letters Patent of this Court against the judgment of my learned brother Ortcheson, J. in Regular Second Appeal No. 182 of 1954 reversal is sought of his decision, which concurred with that of the two Courts below in dismissing the suit of the appellants.

2. Some of the material facts are these. Qaim Din, an Arain of Salamatpura, a village in the vicinity of Lahore, who had no male issue but a daughter, appointed Mehr Din as his heir. On the death of Qaim Din, the property passed to Mehr Din under the customary law of succession. Mehr Din died leaving a widow but no issue and the property, which had come to Mehr Din from Qaim Din, was mutated in the name of Mst. Aisha, the widow of Mehr Din, as a life estate Mst. Aisha died issueless in 19.14, whereupon the property was mutated in the names of the sons of the daughter of Qaim Din. Some collaterals of Qaim Din brought a suit for possession of the property on the ground that as collaterals of Qaim Din they were entitled to the property in suit. The suit was dismissed by the learned trial Judge, whose decision was upheld on the 6th of March 1954 by Mr. Riaz A. Qureshi, the then Additional District Judge, Lahore whose decision was in turn armed by my learned brother Ortcheson, J.

3. It is clear that the reason why the property reverted to the relatives of Qaim Din was that the rule of custom mentioned in paragraphs 54 and 55 of Rattigan's Digest of Customary Law had application. These paragraphs read as follows:‑-- "

54. On the death of the appointed heir his male issue succeeds, and in default of such issue his widow takes his estate on the usual life interest.". "

55. In the event of his dying childless, and leaving no widow, the estate which he inherited from the person who appointed or affiliated him passes (1) to his own natural heirs if the estate consists of property over which the appointer had an absolute power of, disposal, and (2) to the male collaterals of the appointer's family if the' estate consists of property over which the appointer had only a restricted power".

4. The case for the appellants was that because the land which passed to Mehr Din on the death of Qaim Din, was ancestral property in the hands of Qaim Din, it had to revert to the relatives of Qaim Din and those relatives were to be collaterals of Qaim Din and not his female issue or their issue. Their reliance was on the words used in paragraph 55 of Rattigan's Digest of Customary Law reproduced above. It is clear that if this paragraph correctly represents the custom, the plaintiffs' suit was unassailable and the decision dismissing it would be unsustainable.

5. As mentioned already Qaim Din was an Arain of village Salamatpura. According to the answer to question 64 of the Customary Law of the Lahore District, attested during the first Regular Settlement of 1935‑39 and printed in a book form in 1942; the Arains of villages in the vicinity of Lahore follow the very uncommon custom that daughters were preferential heirs to the collaterals of their father even with regard to his ancestral property. It was not denied by the learned counsel for the appellants that if Qaim Din had not appointed Mehr Din as his heir and succession to the property of Qaim Din had opened on his death, his daughter would have got the whole, of the property to the exclusion of his collaterals in however near a degree they might have been and that if at the time of his death no daughter of Qaim Din was alive but sons of his daughter were, then his grandsons would have excluded the collaterals. He urged, however, that the doctrine of collateral succession recognized by the general custom of the Punjab was only for the benefit of the collaterals of the persons who had appointed an heir and could not be availed of by a daughter or her issue in spite of the fact that she and her issue would exclude the collaterals if the question of succession arose on the death of the person who had made the appointment of an heir or to put it in the form in which it is commonly put, had adopted a person. This contention receives support from paragraph 55 of Rattigan's Digest of Customary Law on which it was founded and the question for consideration, consequently, is to, what weight paragraph 55 is entitled.

6. If paragraph 55 of Rattigan's Digest of Customary Law were part of a statute, it is obvious that every one of its words would have had to beheld to have binding force and because all that is mentioned therein was that collaterals would get the property; the suit of the appellants could not be thrown out. But paragraph 55 of Rattigan's Digest of Customary Law is not a statute or part of one and need not, therefore, be construed as strictly according to the language used therein as it would have had been necessary to construe it if it were a legislative measure. I cannot bring myself to believe that the general custom mentioned in paragraph 55 of Rattigan's Digest of Customary Law was applicable even to the cases in which collaterals could not have excluded a daughter or her issue if succession had opened to the ancestral property of her father on his death. It. is clear that if the collaterals had brought a suit to question the validity of the appointment of Mehr Din as an heir by Qaim Din and a daughter of Qaim Din or her son had been in existence at the time of the suit, it would have been thrown out on the ground that the collaterals' interest in the property was too remote and for that reason they could not be allowed to sue.' It is true that even a daughter of Qaim Din, if she were alive, would not have been competent to question by a suit the appointment of Mehr Din as an heir by Qaim Din, because she was not one of the persons mentioned in the Punjab Custom (Power .to Contest) Act, 1920, (Punjab Act 11 of 1920) as competent to question such an appointment, but that lack of power to contest the appointment is no ground for holding that when the property reverted to the family of Qaim Din, she would be excluded by collaterals, who could not have excluded her if the property had not gone out of the hands of Qaim Din. I am clear in my mind that paragraph 55 of the Rattigan's Digest of Customary Law means that when that paragraph applies and property reverts to the family of the adoptive father, the person who would have got the property if the succession had opened on the death of the adoptive father would get the property. It is, no doubt, true that the compiler of the digest, whose industry and learning will be doubted only by those who have no knowledge themselves, has not worded paragraph 55 in such a manner as to make the property pass to anyone but the collaterals of the adoptive father, but the reason for that evidently is that the custom that a daughter succeeds in preference to collaterals even to his ancestral property is so extremely uncommon that a case of that type could be easily overlooked. It will be hardly in one case out of about a hundred thousand that under custom a daughter will succeed to the ancestral property of her father in preference to his collaterals and if such a case escapes notice in the compilation of a book dealing with customs of general application in a vast area and to many a tribe, the omission cannot be held to be significant, as an omission of that type would be held to be if one were dealing with a legislative measure.

7. I am clearly of the view that what was intended to be said by paragraph 55 of Rattigan's Digest of Customary Law was that in the event of the failure of the line of the adopted son the ancestral property of the adoptive father will revert to his family A and go to the persons who would have succeeded to it if the adoptive father had died without making an adoption. Conse?quently I would dismiss the appeal with costs. KAIKAUS, J.‑

I agree that this appeal be dismissed though for different reasons. I do not accept that the daughters succeed to this property but I am also of the opinion that the collaterals, who are the plaintiffs in the suit, are not entitled to succeed to it. The persons entitled to succeed are the heirs of the adopted son.

2. The property is being claimed by the parties in accord?ance with the doctrine of reversion of gift. A reversion can only be to a reversioner. A daughter is not a reversioner. No property can ever come to a daughter as a reversioner. She is entitled to succeed only to property which was left by her father, that is, which he had not alienated during his life‑time.

3. The situation before us is similar to a case where ancestral property has been alienated by the male holder and the alienation is not in accordance with custom. In such a case even though the alienation is invalid qua the collateral it is valid and binding qua those heirs who are not reversioners. Suppose a male holder of ancestral land makes an alienation and a fifth degree collateral files a suit and obtains a decree that the aliena?tion will not affect his reversionary rights. Suppose now that when the male holder dies he has no son but a widow, a daughter and the fifth degree collateral alive and assume further that the daughter is, in accordance with the riwaj‑i‑am of the district, entitled to succeed even to ancestral property in preference to a fifth degree collateral. On the death of the male‑holder the widow who is the next shall not succeed to the property that was alienated, nor will the daughter succeed to it on the death of the widow. This is because only those who have a reversionary interest are entitled to succeed to alienated property. The aliena?tion binds all heirs except those who have a reversionary interest. The declaratory decree is only to this effect that the alienation will not "affect the reversionary right". In all other respects, the alienation is complete. The reversioner takes in spite of the alienation because he succeeds not to the alienor but to his own ancestor from whom the property descended, though he succeeds through the last male‑holder. The last male?holder could not, by his alienation, destroy the interest which the reversioner had. But so far as the females are concerned they have no reversionary interest. They do succeed to the last male?holder, (and not to any common ancester), and they are only his representatives. Whatever rights the last male‑holder himself had, pass to the female heirs (and to all heirs who have no reversionary interest). A right which did not belong to the last male‑holder can never pass to the female heir. If the alienor himself could not get back the property from the alienee the female heir also cannot do so. Qua the female heir the alienated property passes out of the family for ever. The same is the situation in respect of those collaterals qua whom the property is not ancestral. If in respect of an alienation a declaratory decree is obtained by a reversioner but when the male‑holder dies the collateral in existence is remoter in degree than the one who obtained the decree and qua this collateral the property is no ancestral he will not succeed to it and the property will remain with the alienee.

4. Till the passing of the Punjab Custom (Power to Contest) Act, 1920, (Punjab Act Il of 1920) all the collaterals qua whom the property was ancestral were entitled to challenge an alienation or to get the benefit of a declaratory decree. With the passing of that Act, the right to challenge an alienation was limited to collaterals descended from the great great‑grandfather of the alienor. The result was that henceforward if a decree was obtained by a collateral but at the time of the death of the alienor the collateral alive was not within the fifth degree, the property would remain with the alienee and would not be inherited by the collateral even though the property was ancestral qua him. If even a male collateral cannot succeed to alienated property unless the property is ancestral qua him and he is within five degrees a daughter cannot have any right of succession on it.

5. The difference between an alienation which is not valid at all qua the reversioner and an alienation in favour of an adopted son is that in the latter case the alienation is binding on the reversioner but only to a limited extent. That extent is that till the descendants of the adopted son exist the alienation remains binding. The situation in such a case is the same as if a declara?tory decree had been obtained by the reversioner to the effect that the alienation will not bind the reversionary interest except for the lives of the adopted son and his descendants. When the line of descendants dies out the reversionary interest which is no longer affected asserts itself and the reversioner succeeds. But his succession is only on account of this reversionary interest, which he derives from the common ancestor. He succeeds to the common ancestor and not to the alienor. In the present case the gift in favour of the adopted son was fully binding on the daughter and the property never reverts to her. If, even property which was transferred by the male holder by an alienation which is invalid against the reversioners, does not revert to the daughter, how can property gifted to an adopted son revert to her? One may ask the question: If on the death of the adopted son with?out descendants there was no reversioner alive at all would the property revert? The reply must be in the negative, for the doctrine of reversion applies only to ancestral property and if there be no person alive qua whom it is ancestral, the question of reversion will not arise. If in the absence of collaterals, the, daughter could not get the property how can she say that because of the collaterals she is entitled to succeed to it ?.

6. The rule stated in para. 55 of Rattigan's Digest of Customary Law according to which ancestral property reverts to the male collaterals only, is a correct rule. Property over which the alienor has an unrestricted power of disposition does not revert and property over which his power of disposition was restricted reverts to those only qua whom there was a restricted power of disposition. The restriction on the power of alienation is relative. It is restricted only as against those qua whom the property is ancestral. As against all others the alienation is perfect.

7. This is how I find against the right of the daughter in the present case. But I do not, at the same time, concede the collateral's right and the reason is this. An invalid alienation never enhances right of a reversioner. It is simply, regarded as non‑existent qua him. If he was to succeed had there been no alienation then he would succeed in spite of the alienation. But if he were not to succeed even if there was no alienation then surely he cannot succeed just because there was an alienation. The alienation is not to stand in his way. That is all. It is admitted that had this property not been alienated the collaterals would not have succeeded for the daughter is preferential heir to this even in respect of ancestral property in accordance with the riwaj‑1‑am. In the presence of the daughter, therefore, the collaterals who would not otherwise have succeeded to this property, cannot succeed to it because the property was alienated to the adopted son. The present case is similar to that in which the collaterals secured a declaratory decree but when the male?holder died and a suit for possession was filed the suit was dismissed as a daughter who was a preferential heir was alive. The daughter too filed a suit and the suit was dismissed vide A I R 1934 Lah.

725. The case of a widow is a common example. When a male‑holder alienates property and the alienation is held not binding on the collateral, the collateral cannot sues for possession on the death of the alienor if his widow is alive. There is really not much difference between a widow and a daughter from this point of view. The daughter too has only a life estate.

8. As I have found that the collaterals are not entitled to succeed their suit for possession has to be dismissed. The person entitled to succeed to this property was the personal heir of the adopted son. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly