P L D 1955 Baghdad﷓ul﷓Jadid 17 (PLP)

FAIZ MUHAMMAD C. J.

This first appeal is directed against a judgment and decree of District Judge Rahimyarkhan in a suit for possession of landed property described in the plaint and measuring 1000 acres (forty squares) situated in different villages. The litigation which has led up to it started in the following circumstances :- One Punnun Shah a big Zamindar of Rahimyarkhan died issueless on the 6th of February, 1941 leaving behind two widows Mst. Allah Rakhi defendant-appellant and Mst. Gul Khatoon and a collateral Noor Ali Shah father of Murid Hussain Shah plaintiff-respondent. Property in dispute is only a part (approximately th) of the entire estate of Punnun Shah on whose death Noor Ali Shah claimed 6/8 shares of it allowing 2/8 shares to the two widows, one of whom Mst. Gul Khatoon was his sister. It is obvious that Noor Ali Shah 'claimed 6/8 shares in the estate on the assumption that the family of the deceased was governed by Muhammadan Law in matters of succession. In the beginning and even at the time of putting in her written statement in the present suit Mst. Allah Rakhi also averred that the family of her late husband followed Muhammadan Law and therefore she claimed her share according to that law, of property left by him. Being a woman however she feared that difficulties will be put in her way to take possession of her share of the property and therefore moved the Court of Wards to assume its possession and superintendence which the Court of Wards did. An apprehension of breach of peace arose between contestants to the succession of Punnun Shah's estate and there tore Maulvi Akhtar Ali D. W. and Ch. Abdus Salam D. W. then Assistant Commissioner and Tehsildar respectively of Rahimyarkhan proceeded to Daulatpur the home village of the parties. While these two officers were at Daulatpur it is said to have been represented to them that a family settlement had been arrived at between the parties whereby property now in dispute measuring about 1.000 acres had been given to Mst. Allah Rakhi in full ownership while the rest of Punnun Shah's estate was allotted to Mst. Gul Khatoon and Noor Ali Shah in 1/3 and 2/3 shares respectively. also in full ownership. Thus the entire estate of Punnun Shah consisting of 160 shares was divided half and half between Noor Ali Shah and the two widows of Punun Shah the former getting eighty squares and the widows forty squares each. On 16th of March, 1941 Mst. Allah Rakhi, Mst. Gul Khatoon and Noor Ali Shah are said to have made statements before the Tehsildar Abdus Salam D. W. to this effect and mutations relating to Punnun Shah's estate were sanctioned in accordance with the settlement arrived at. Exhibits D. W. 3/A D. W. 3/B and D.'W. 3/C are copies of statements made by Mst. Allah Rakhi, Mst. Gul Khatoon and Noor Ali Shah respectively. On the release of the property from the superintendence of the Court of Wards which followed the attestation of mutations, the three claimants took possession of their respective shares of it. Mst. Gul Khatoon died before the present litigation and her share passed to her brother Noor Ali Shah as her only heir and successor. Mst. Allah Rakhi who also took possession of her share of the estate remained in possession of it till June, 1954 when she was ousted from it in execution of decree based on judgment now under appeal. She was however allowed by the judgment to retain possession of eight squares of land for her life for maintenance. Murid Hussain Shah plaintiff-respondent son of Noor Ali Shah did not feel satisfied with the settlement arrived at between his father and the. two widows of Punun Shah deceased and challenge its validity by a declaratory suit which he instituted in the Court of Senior Sub-Judge Rahimyarkhan on 8th of March, 1947. During the pendency of the suit however Noor Ali Shah who had been impleaded as a defendant also died and Murid Hussain Shah was permitted by the trial Court to amend his plaint by adding prayer for the possession of the property in dispute. Widows and daughter of Noor Ali Shah deceased were also impleaded as defendants but they do not seem to have taken any interest in the litigation. In his original as well as amended plaint Murid Hussain Shah averred that family of Punun Shah deceased followed custom in matters of succession according to which the estate of a deceased issueless owner devolved upon his collaterals, that the widows of such an owner were entitled to maintenance only and that Noor All Shah and his son the plaintiff himself were the only collaterals of Punun Shah. Murid Hussain Shah also challenged the validity of settlement arrived at between his father and the widows of Punun Shah on the ground that it was either the outcome of undue influence exercised upon Noor Ali Shah or was collusive between him and the two widows. He also urged that Exhibits D. W. 3/A, D. W. 3/B, and D. W. 3/C were void and of no legal effect as far as succession to property left by Punun Shah was concerned for their not being stamped and registered. In her written statement Mst. Allah Rakhi controverted plaintiff's contentions by saying that family of Punun Shah followed Muhammadan Law in matters of succession. But she also said that if the family was held to follow custom then the entire estate left by Punun Shah devolved upon her and her co-widow Mst. Gul Khatoon for their life. She further stated that the agreement whereby she, Mst. Gul Khatoon and Noor Ali Shah succeeded to Punun Shah's estate in shares specified above in full ownership, was in the nature of a family settlement and that Exhibits D. W. 3/A, D. W. 3/C aid D. W. 3/C Were mere statements which she Mst. Gul Khatoon and Noor Ali Shah made before the Revenue-Officer in persuance of the settlement for the purpose of attestation of mutations relating to Punun Shah's estate. On these pleadings seven issues were framed by Mr. Noor Muhammad Alvi Sub-Judge who first took up the case. Seven more issues were later added by Mr. Dilshad Ali Kureishy who succeeded Mr. Noor Muhammad Alvi. Mir Taffazul Hussain District Judge Rahimyarkhan to whom the case was eventually transferred for trial and who finally decided it has observed in his judgment that some of these issues are overlapping. This is so. But multiplicity of issues in the case has not been without its advantage. It has given the parties an opportunity to lead evidence on every aspect of the case. Although this appeal can be disposed of on only three issues, on two of which lengthy arguments were addressed to us, I consider it necessary to deal with all the important issues framed in the case so as to prevent further prolongation of this litigation which has dragged on for over eight years now. Issues No. 1 and 2.-These two issues were framed on preliminary objections raised by the defendant-appellant. Issue No. 1 related to insufficiency of Court-fee stamp on the plaint as originally presented and issue No. 2 to the locus standi of the plaintiff-respondent to institute this suit. The trial Court decided both these issues in favour of the plaintiff. On the matter coming before High Court in revision my learned predecessor upheld the trial Court's decision on issue No.

1. As regards issue No. 2 however he observed that its decision will have to depend upon the decision of issue No.

3. No more need therefore be said at present on these issues except that in his judgment the trial Court purports to have dealt with them together. I may however have to revert to issue No. 2 at a later stage in this judgment. Issue No. 3.-This is by far the most important issue in the case. It runs as follows :-- Does the family of the porties follow custom in matters of succession and according to that. custom widow or widows of a deceased owner of property are entitled to maintenance only ? It will be observed that this issue consists of two parts. In the first part it is claimed that family of Punun Shah deceased followed custom in matters of succession and in the sc1cond the custom applicable is stated. The trial Court has found both parts of this issue in favour of the plaintiff on whom the burden of proving it had been rightly laid. We have therefore to see whether or not the finding of the trial Court on this issue is supported by evidence on record. The plaintiff produced both documentary and oral evidence in support of his contention to the effect that in matters of succession the parties followed, custom according to which widows of an issueless owner of property were entitled to maintenance only and not to life-interest in the entire estate. Before scrutinising the evidence it is necessary to point out that issue No. 3 which is the most crucial issue in the case, is not happily worded in as much as it does not specifically mention that- the deceased owner, succession to whose property is in dispute, had died without leaving behind any male lineal descendant. According to Customary rule of succession it is the absence of a male lineal descendant of a deceased owner of property which brings into prominence the right of his mother or his widow or widows to succeed to a life interest in the entire estate. This defect in the issue has not however in any manner prejudiced the parties in the prosecution of the case. Both knew how matters stood i.e., they knew that Punun Shah had died without leaving behind any male or female issue. Murid Hussain Shah plaintiff-respondent based his claim of succession to the entire estate of Punun Shah allowing only maintenance to widows, on this fact. Similarly Mst. Allah Rakhi while claiming her share in Punun Shah's estate according to Muhammadan Law stated in her Jawab Dawa that if the family was held to be governed by custom then she and her co-widow Mst. Gul Khatoon would be entitled to a life-interest in the entire estate because Punun Shah had died issueless It is further worthy of note that during the seven years that this litigation had been pending in the trial Court neither party raised the point that issue No. 3 was in any way defective and that it did not cover the pleadings. Nor in the appeal before us where parties were represented by eminent lawyer like Mr. Hamzai of Multan and Mr. (now Mr. Justice) Yaqoob Ali Khan of Lahore was the point raised. From all this it is fair to conclude that the parties were fully conscious of the position and led all the evidence they could in support of their contentions. For this reason I do not think that it i necessary to amend the issue at this stage and send the case back to the trial Court for a fresh decision on it. The documentary evidence produced by plaintiff-respondent and relied upon by the trial Court for his decision on this issue consists mainly of Exhibits P. 1 to P. 10 (documentary Exhibits in this case have been marked with numericals and not with letters). The very first document Exhibit P. which is a certified copy of the Wajib-ul-Arz of Daulatpt village to which the parties belong far from helping the plaintiff-respondent actually goes against him. For a prop appreciation of the position it is necessary to have the who of this document before us. The entry in Wajib-ul-Arz i which Exhibit P. 1 is a true copy is shown to have be made during settlement operations in 1904 and relates in Daulatpur village. It runs as follows :- If the parties were to be held to follow custom then there could not be anything more clear and to the point for deciding issue No. 3 than this entry in Wajib-ul-Arz. The parties are residents of Daulatpur village, therefore unless anything to the contrary is established by cogent and convincing evidence, custom laid down in this entry must govern succession to Punun Shah's estate. (hide 102 P R 1902). By resorting however to reasoning which I can only describe as the outcome of confused thinking the learned District judge has held that although this entry does prove that Punun Shah's family followed custom in matters of succession it does not prove that according to that custom widow or widows of an issueless owner are entitled to a life-interest in the whole of such owner's property because it is not supported by instances. In putting forward this argument the District judge conveniently overlooked the fact that part of the said entry which provides for the applicability of custom is also not supported by any instances. It is there fore altogether beyond me to know how he could accept one part of this entry which favoured the plaintiff-respondent and reject the other part which went against him. Anyhow Mst. Allah Rakhi defendant met this evidence by producing another certified copy of entry in the Wajib-ul-arz of Daulatpur village also relating to (TAQSEEM TARKAH). This entry was made in the Wajib-ul-Arz of the village during the regular settlement operations of 1927-28 i.e., after quarter of a century later than the entry, copy of which was produced by the plaintiff-respondent. It is surprising that this important document which is on file has not been given any exhibit number. To facilitate reference I have marked it as Exh. D. A. In the entry made in 1927-28 of which Exh. D. A is a certified copy it is categorically stated that in village Daulatpur succession to property among the Muslims is governed by Muhammedan Law. Mst. Allah Rakhi also produced certified copies of Wajib-ul-Arz of Jinduwali, Hakimabad, Abadpur, Ihsanpur, Shahpur, Shahbeg and Sardargarh villages. These are Exhs. D. 80, D. 81, D. 82, D. 83, D. 84, D. 85 and D.

86. All these entries were made during the settlement operations of 1927-28 and are to the effect that in all the villages to which they relate Muslims are governed by Muhammadan Law in the matters of succession. There is thus a conflict between earlier and later entries in the Wajib-ul-Arz of the same villages touching upon the same matter. This naturally gives rise to the question as to which of the two entries, earlier or later, are to be preferred for determining whether the family of the parties is governed by custom or Muhammadan Law in matters of succession. The question is not easy to answer. Judicial pronouncements on the point are not unanimous or uniform. Not only learned judges of different High Courts but in some cases judges of the same High Court also have expressed conflicting opinions and given good reasons for their .view. In such a conflict of opinion it is difficult to act upon the opinion of any one Court or Judge to the exclusion of others. The only alter native therefore is to decide the case on its own merits. For this purpose it is necessary that we should be clear in our mind about the importance of document known as Wajib-ul Arz and the true character and strength of custom as a rule of succession. There can be no two opinions that Wajib-ul-Arz of a village is a very important document. It embodies among other things a statement about customs obtaining at the time of its preparation in the village to which it relates. It forms part of Record of Rights prepared during settlement operations. Therefore it has been repeatedly held that a presumption of correctness attaches to entries appearing in it even when such entries are not supported by instances. But presumption so created is rebuttably. It would however be anamolous to say that presumption of correctness attaches only to earlier entries in the Wajib-ul Arz and not to later ones. If this were so there would be no need to prepare a fresh Record of Rights and therefore Wajib-ul-Arz at every settlement. The only inference there fore is that like other entries in the Record of Rights, entries in the Wajib-ul-Arz also are open to periodical Revisision in the light of changes that may have taken place, in the outlook and conduct of the residents of the village concerned in respect of customs obtaining among them. Therefore it is neither correct to say that entries in Wajib-ul-Arz are unalterable nor that they enure for the duration of a settlement only. The true position appears to be that entries in a later Wajib-ul-Arz opposed to the earlier furnish some proof of change of custom which if neither static nor immutable. This position is tersely expressed by Robertson J. of Punjab Chief Court in 110 P R 1906 as follows:- "We must also recognise that Customary Law like other law is a branch of sociology and must be in a fluid state and take cognizance of progress of ethical and legal notions in the community in which it is in force". In its true essence a custom is an expression of the will of a very large majority of people who agree to be governed by it and are governed by it. Just as unanimous or almost unanimous will of a community can establish a custom it can also change or abrogate it. The question whether or not a' community has changed or abrogated an existing custom is one of fact and must be proved like any other question of fact. One of the ways of proving it is by producing certified copies of entries in the Wajib-ul-Arz which is a public document prepared by public officers in the discharge of their official functions. (Vide section 35-D of the Indian Evidence Act). Presumption of correctness will therefore attach both to earlier and later entries in the sense that it will be presumed that earlier entry embodied custom which existed when such entry was made and that the later entry. is a proof of a change having taken place in custom since the earlier entry had been made. In order to satisfy itself about the strength of presumption of correctness attaching to later entries in Wajib-ul-Arz the Court can take into consideration other surrounding circumstances. One such circumstance in the present case is that by 1927-28 not only the residents of Daulatpur village but also of many other villages in the District and Tehsil of Rahimyarkhan are shown to have reverted to their personal law in matters of succession. This is evidenced by entries appearing in the Wajib-ul-Arz of 1927-28 relating not only to Daulatpur village but also to so many other villages. (Vide D. 80, D. 81, D, 82, D. 83, D. 84, D. 85 and D. 86). This is not all. So universal and pressing had been the demand for reversion to personal law in matters of succession throughout the State that the first representative Govern ment of a sort in the State was forced in 1951 to give legislative sanction to it by passing law on the subject. It could be argued, although it was not done before us, that a custom derives its binding force from its having been continuously followed for a long time and therefore when it is averred that an old custom has been abrogated by a new one the latter should be shown to have been acted upon for a considerable length of time. Principle so enunciated may hold good as far as abrogation of one custom by another in regard to the same matter is concerned. The question however which requires serious consideration is whether it holds good if a community unanimously or almost unani mously decides to abrogate a custom which it had been following and to revert to its personal law. The point was considered by a Full Bench of Lahore High Court in Mst. Sardar Bibi v. Haq Nawaz Khan and another (A I R 1934 Lah. 371). Originally appeal in that case carne up for hearing before Coldstream and Jai Lal JJ. and on a difference of opinion arising between them it was referred to a Full Bench. In his judgment Mr. Justice Jai Lal expressed the view that unanimous decision of a community was sufficient to abrogate a custom in favour of personal Law. He also maintained that distinc tion must be made between abrogation of one custom by another and abrogation of custom by personal law. In the opinion of the learned judge in the former case it is necessary to show that new custom has been established by long and continuous usage, but in the latter the same test should not be insisted upon. I am in respectful agreement with the view so expressed by Mr. Justice Jai Lal. However on the matter coming up before the Full Bench majority of learned judges comprising it decided the case by holding that it was not established that Gishkori Balochis of Jampur Tahsil in Deraghazikhan District had after mature deliberation and with genuine determination decided to follow their personal law in preference to custom which they had followed till the settlement of 1920. Their Lordships also held that it was not open to an individual whose family or tribe had for generations followed custom to suddenly give it up by merely making a declaration to that effect. From the majority judgment it would appear that their Lordships responsible for it preferred to decide the case on questions of fact without committing themselves on the point of law raised by Mr. Justice Jai Lal. The distinction drawn by Mr. Justice Jai Lal is important and merits serious consideration. The reason for insisting that a custom in order to be binding must be of a sufficiently long standing is that a custom had to be ascer tained before it is applied. It can be ascertained by its being shown to have been followed for a long time. This can not be said of Muhammadan Law which lays down clearly defines rules relating to succession and inheritance. When a community decides to revert to its personal law it knows what it is about. It is sometimes erroneously said that section 5 of the Punjab Laws Act creates an initial presumption in favour of applicability of custom in matters set out in it. This is not the correct view of the position. What the said section lays down is that if a custom is asserted and established by evidence in each case it will have preference over personal law. Therefore as long as a custom is not asserted and established the normal and natural presumption is that parties to a litigation follow their personal law and the party which asserts to the contrary must prove it by unequivo cal evidence. The position in the present case however is that not only the residents of Daulatpur village are shown to have declared in favour of personal law in the course of settlement opera tions of 1927-28 but the residents of many other villages also did the same. Thus it is not a question of an individual) or a small group of persons making a declaration butt that of almost a whole community taking a decision with due L deliberation and determination. This being so in my opinion the Court should not take upon itself to disregard the wishes of a whole community to revert to their personal law in matters relating to succession. Other documentary evidence in the case relied upon by the learned District Judge consists of Exhs. P. 2 to P.

9. All these documents are copies of mutations. It is significant that all the mutations covered by these documents relate to cases which took place before the settlement of 1927-28 although two of them are shown to have been attested after 1927-28. In other words succession in cases to which these mutations relate opened before 1928. Apart from this these documents are of little value for establishing a custom to the effect that when an owner of property dies without leaving behind any male lineal descendant his widows do not take a life-interest in the entire property left by him as laid down in Exh. P. 1 (Wajib-ul-Arz of 1904) In none of the cases dealt within Exhs. P. 2 to P. 9 the contest is shown to have been between the widow or widows of the deceased concerned and his collaterals and this makes all the difference. According to Customary Law the mother and widow of a deceased owner of property who has not left any male lineal descendant stand on a different footing from other female relatives such as his daughters and sisters. So well is this principle now recognised that in some cases widows are allowed to represent their husbands and succeed collaterally i.e., succeed in cases in which their husbands would have succeeded had they been alive. (Vide 39 P R 1915 and A I R 1937 Lah. 237). The proof of a special custom to the contrary lies on the party alleging it. (Vide 8 P R 1916). It appears to me that the learned District judge was conscious of this distinction but in order to give effect to his option to the contrary he went out of his way to interpret the expression "male lineal descendant" as, including collaterals of the deceased owner whose estate is in dispute. By no straining of language can the collateral of a man be regarded as his male lineal descendant also. Anyhow wrongly assuming that Customary Law recognizes no distinction between the right of mother or widow of a deceased owner of property who has left no male lineal descendant behind and that of his daughter or sister, the learned District judge has in support of his finding on this issue, cited a number of rulings which I am constrained to say have no bearing on the present case it which contest for succession is between a collateral of Punun Shah deceased on the one side and his widow on the other. Para. 11 of Rattigon's Digest of Customary Law in the Punjab leaves no manner of doubt as to a widow's right to succeed to a life-estate in the property of her deceased husband if he has left no male lineal descendant behind. Paras. 12 and 13 of the same book make the position further clear by laying down that if the deceased has left two or more widows they succeed jointly with right of survivorship between them. There is no evidence worth the name on record to show that before 1927-28 the family of Punun Shah followed a custom different from the one summarised in Rattigan's book and as laid down in the Wajib ul-Arz of 1904. I have however already, pointed out that entries in the Wajib-ul-Arz of 1904 and 1927-28 contradict each other, and further that in none of the cases covered by Exhs. P. 2 to P. 9 the contest for succession was between the collateral of an owner of property who had left no male lineal descendant behind and his widow or widows. The oral evidence led by the plaintiff-respondent on this issue is also vague. The witnesses who appeared for him could not cite a single instance of collaterals succeeding in preference to the widow or widows of a deceased owner of property who had left no male lineal descendant behind. The learned District judge has tried to get over this difficulty by saying that Punun Shah deceased occupied a very important position in society and owned considerable property the District judge has therefore opened that the family of Punun Shah must be held to be governed by a special custom according to which presence of collaterals deprives the widow or widows of an issueless owner of property of their life interest in the entire estate. In support of this proposition he has relied upon certain rulings of the Punjab Chief Court and Lahore High Court. While doing so he overlooked the fact that rulings relied upon by him relate to exceptional cases in which special custom was alleged and proved by evidence. I am not aware of any principle of Customary Law which empowers a Court to hold that the social position of the deceased or the extent of property which he owned is to be taken into consideration for determining whether a general or special custom governs his family in matters of succession. As a matter of fact applicability or non-applica bility of a custom itself to a case is a question of fact which must be proved as such. It has been held in number of rulings that it is not permissible to extend the applicability of a custom by logical process or by anology. A custom whether it is general or special cannot be guessed or theorised about. It must be proved by legal evidence. (Vide 107 P R 1915, 39 P R 1915, 45 P R 1915 and 33 P R 1919). According to my reading of evidence on issue No. 3 the position in the present case is firstly that the only documentary evidence placed on record which has a bearing on the case is inconclusive and contradictory. I refer to entries in Wajib- ul-Arz of 1904 and 1927-28. If the earlier entry is to be followed then Mst. Allah Rakhi the surviving widow of Punun Shah is entitled to a life-estate in the entire property left by her husband. If on the other hand the later entry is to be relied upon then the distribution of property left by Punun Shah must be made in accordance with shares specified in Muhammadan Law. In the peculiar circum stances of the case it is difficult to say with any degree of certainty whether the parties follow custom or Muhammadan Law in matters of succession. In such a state of uncertainty the personal law of the parties must have preference. In other words where there is a gap which cannot be filled otherwise or it cannot be definitely said what the custom in regard to a matter in a particular case is then resort can be had to personal law of the parties. This seems to be the view taken in 110 P R 1906 and A I R 1944 Lah. 442 with which I am in agreement. For all these reasons I must decide issue No. 3 against plaintiff-respondent on whom the burden of proving it had been rightly laid. In coming to this decision I have also taken into consideration the attitude both of Noor Ali Shah father of plaintiff-respondent and Mst. Allah Rakhi defendant-appellant immediately after Punun Shah's death. I have already observed that on the death of Punun Shah Noor Ali Shah claimed 6/8 shares of property by alleging that the family followed Muhammadan Law. (Vide Exhs. D. 89 and D. 90 which are copies respectively of an application made by him to the then Prime Minister of the State and of a Fatwa touching upon the subject). Similarly Mst. Allah Rakhi also claimed her share in the property according to that law so much so that in her written statement in Court she in insisted that her husband had been a Pir and followed Muhammadan Law in matters of succession. Thus it would be clear that there was no real difference between the parties on the point in the beginning. Had they been left alone most probably there would have been no litigation between them and each party would have been content with her share in the estate according to Muhammadan Law. But unfortunately some busy-bodies posing as friends of the parties started taking interest in the matter on the plea of threatened breach of peace and brought about a settlement which was neither according to Muhammadan Law nor according to custom. I think it was this aspect of the so called settlement which compelled Murid Hussain Shah to come to Court. Having found issue No. 3 against the plaintiff-respondent by holding that the family of Punun Shah deceased followed Muhammadan Law in matters of succession I consider it necessary to revert to issue No. 2 and along with it take up issue No.

9. Both these issues relate to the locus standi of Murid Hussain Shah plaintiff-respondent to challenge in a Court of law the validity of settlement said to have been arrived at between his father Noor Ali Shah and the widows of Punun Shah deceased. On the matter coming up in revision before my learned predecessor lie had ordered that decision of issue No. 2 must rest on the decision of issue No. 3 i.e., if issue No. 3 were found in favour ' of plaintiff-res pondent then he will have a right to sue otherwise not. This order of my learned predecessor seems to be based on the assumption that plaintiff-respondent challenged the validity of alleged settlement between Noor Ali Shah and Punun Shah's widows only on the ground that it had been opposed to custom which governed the family in matters of succession. But on going through the record I find that the plaintiff-respondent challenged the settlement not only on the ground that it was opposed 'to custom' but also on the ground that it was either the outcome of undue influence practised upon Noor Ali Shah or the result of collusion between him and the widows of Punun Shah. He also challenged it on .the further ground that the documents embodying it were neither duly stamped nor registered as they should have been. This being the position I am of the view that the plaintiff-respondent had the locus standi to insti tute the present suit in any case. I would therefore find issues No. 2 and 9 in his favour. Issue No. 4.-In view of my finding on issue No. 3 it is not necessary for me to go into the question whether the property in dispute was the self-acquired property of Punun Shah deceased or ancestral one qua him and the plaintiff respondent. Muhammadan Law does not recognise any distinction in the two kinds of property for purposes of succession. I may however observe that having found issue No. 3 in favour of the plaintiff-respondent it was the duty of the learned District judge to go deeper into the matter and give a clear finding as to which part of the property in dispute was self-acquired and which of it ancestral. It was not enough for him to say that because the family of Punun Shah had been shown to have held some property in 1879, therefore the entire estate left by him must be presumed to be ancestral. However the necessity of going into the matter is now obviated by my finding on issue No.

3. Issue No. 5.

This issue does not require any discussion because it was admitted before us by the parties that Punun Shah deceased and Noor Ali Shah father of plaintiff-respondent were collaterals having descended from their common ancestor Willayat Ali Shah. Issue No. 6, 8, 13 and 14.-The learned District Judge has dealt with issues No. 6, 8; 9, 13 and 14 together on the ground that they are overlapping. That they are so to some extent is correct. All these issues relate to different aspects of the settlement said to have been arrived at between Noor Ali Shah and the widows of Punun Shah deceased. I have given my serious consideration to these issues and have come to the conclusion that their overlapping character is in some measure responsible for refusing the points involved. The main thing to, decide is the true character of the settlement i.e., whether it was a mere family settlement as claimed by the defendant-appellant or involved transfer of some property from one party to the other as alleged by the plaintiff respondent. In view of my finding on issue No. 3 to the effect that family of Punun Shah deceased was governed by Muhammadan Law in matters of succession it will have to be held that on the death of Punun Shah property left by him devolved upon his successors in shares specified by that law. As Punun Shah died issueless these shares will be as follows :- Widows ... ... ... 2/8 Shares Noor Ali Shah ... ... ... 6/8 As against these shares the settlement gave the widows 4/8 shares and Noor Ali Shah also 4/8 shares. It is there fore obvious that the settlement involved transfer of 2/8 shares by Noor Ali Shah to the two widows of whom Mst. Allah Rakhi defendant-Appellant is one. In other words Mst. Allah Rakhi got 1/8 share in excess of what she was entitled to get under Muhammadan Law. The value of this 1/8 share is considerably more than Rs.

100. Therefore document transferring this 1/8 share of property left by Punun Shah from Noor Ali Shah to Mst. Allah Rakhi must have been on a duly stamped paper and registered. As Exhs. D. W. 3/A, D. W. 3/B and D. W. 3/C which embody this transfer are neither stamped nor registered, they are in my opinion void and of no effect as far as the property in dispute is con cerned. I am afraid I cannot subscribe to the proposition that these documents were mere statements made .by Noor -Ali Shah and the widows of Punun Shah before the Revenue Officer in pursuance of oral family settlement said to have been arrived at between them for the purpose of attestation of mutations. As already observed Murid Hussain Shah also challenged the validity of the settlement on the ground that it had been brought about as a result of undue influence exercised upon his father Noor Ali Shah. Although there is no direct evidence on record to substantiate this allegation, there are indications which lend support to it. It is in evidence that on the death of Punun Shah his only collateral Noor Ali Shah insisted that the family follow Muhammadan Law in matters of succession. It is also proved that contestants to Punun Shah's succession, particularly Noor Ali Shah and Mst. Allah Rakhi so violently differed on the question of possession of property that an apprehension of breach of peace arose. This being so sudden consent on the part of Noor Ali Shah to let Mst. Allah Rakhi have twenty squares of land more than she was entitled to have under Muhammadan Law makes it doubtful that he willingly and voluntarily agreed to the arrangement. This doubt is greatly strengthened by Noor Ali Shah's subsequent attitude towards the so-called settlement. It is in evidence that he continued challenging its validity till his death by filing appeal and revision against the order sanction ing the mutations based on settlement. In fact it is shown that he definitely alleged that Ch. Abdus Salam D. W. who wrote down his statement Exh. D. W. 3/C did not allow him to read it and assured him that it was in accordance with Muhammadan Law. (Vide Exh. D. 88). This clearly shows that Noor Ali Shah was not a willing party to the settlement and that it had been brought about by some sort of undue influence exercised upon him. There is no evidence at all on record to show that Noor Ali Shah colluded with Mst. Allah Rakhi and Mst. Gut Khatoon in arriving at the so-called settlement. In fact it is difficult for me to believe that co-ersion and collusion can go hand in hand. Therefore as far as issues 6, 8, 13 and 14 are concerned I hold firstly that the settlement embodied in Exhs. D. W. 3/A, D. W. 3/B and D. W. 3/C was void and ineffective for the documents not being properly stamped and also for want of registration, secondly that it had not been arrived at voluntarily and with free will of Noor Ali Shah and thirdly that there was no collusion between him and the widows of Punun Shah deceased. Other issues in the case do not call for any discussion. In the light of above discussion of evidence led by the parties I would accept this appeal and setting aside the' judgment of the trial Court vary the decree passed by it by ordering that Murid Hussain Shah will get back twenty squares of land out of forty squares which Mst. Allah Rakhi got on the basis of the alleged family settlement. This means that Mst. Allah Rakhi is entitled to possession in full ownership of twenty squares of land out of a total 160 squares left by Punun Shah. Before concluding I may point out that the present suit related only to property transferred to Mst. Allah Rakhi by virtue of the alleged settlement. This judgment will therefore be restricted to that property. In view of the fact that both sides have partially suc ceeded in appeal I would order them to bear their own costs throughout. This judgment will also dispose of miscellaneous appeal No. 4 filed by Mst. Allah Rakhi against order upholding warrant of possession and her applications for stay of execution proceedings in the case and for appointment of receiver of property in dispute. Decree drawn up in accordance with this judgment will be now executed. A. H. Appeal accepted.