P L D 1960 (W (PLP)

KAIKAUS, J.‑

This is a letters patent appeal against the judgment of Yaqub Ali, J. holding a transfer of ancestral land in lieu of dower to be not binding on the reversioners on the ground that it was not for necessity.

2. Suleman deceased, a Rajput of the Rawalpindi District, who was the husband of Mst. Zainab Bibi, the appellant before us, had transferred to her on the 30th of November 1946, by means of a registered deed, 42 kanals 6 marlas of land, along with a house for a consideration of Rs. 4,000 which was stated to be the amount of dower of the appellant. Suleman died in the year 1947. The appellant remarried in 1950. After her remarriage, Kamal Khan respondent, a collateral of Suleman in the third degree, filed the suit out of which this appeal has arisen for possession of the land which had been transferred by the registered deed mentioned above, alleging that the deceased was governed by agricultural custom in accordance with which he could only alienate property for consideration and necessity and that the alienation was not for consideration and necessity. He alleged too that the dower of the appellant was only Rs. 200 and that the alienation was intended to destroy the interest of the reversioners. He prayed for possession of the land only and excluded the house probably on the ground that it could not be proved to be ancestral. The defendants to the suit were Mst. Zainab Bibi and her daughter, Nasim Akhtar.

3. The defendants, who are now the appellants before us, denied that the land in dispute was ancestral. They contended that the dower had been fixed at the time of marriage at Rs. 4,000 and that the alienation was for consideration and necessity. They pleaded at the same time that in the presence of Mst. Nasim Akhtar and the widow of the brother of Suleman, the plaintiff had no right to sue.

4. Although the plea with respect to dower as originally taken was that Rs. 4,000 had been fixed at the time of marriage, in the witness‑box Mst. Zainab Bibi appellant stated that the dower had originally been fixed at Rs. 200 and that some years before his death (at the time of the execution of the registered deed) it had been raised to Rs. 4,

000. The trial Court held that the deceased was entitled to increase the amount of dower at any time and had increased it to Rs. 4,000 and the alienation was for consideration and necessity: The District Judge on appeal agreed with the finding of the trial Court. On second appeal to this Court it was urged before Yaqub Ali, J. that although a person had a right to increase his dower at any time, still the question to consider in such a case was whether the dower debt constituted a just antecedent debt on account of which a valid alienation of ancestral property‑ could be made by a person bound by‑ordinary agricultural custom. With this proposition, Yaqub Ali, J. agreed and holding that the alienation was not for necessity accepted the appeal and decreed the suit for a share of the land in dispute.

5. In this appeal learned counsel for Mst. Zainab Bibi appellant, has relied upon a judgment of the Lahore High Court in Nawab Din and others v. Maula Bakhsh and others (A I R 1938 Lah. 431) for the proposition that an alienation in lieu of dower is valid under custom. In that case dower had been fixed 'at Rs. .4,000 at the time of marriage and at the same time an agreement was entered into that in lieu of dower land measuring 119 kanals was given by the husband to the wife. Subsequently there was a mutation in respect of these 119 kanals and a suit was brought by rever sioners to challenge the mutation. The trial Court dismissed the suit, but on appeal the District Judge was of the opinion that the amount of dower was unreasonably high and, therefore, the alienation was not justified. Accepting the appeal, the District Judge decreed the suit. On appeal to the High Court it was held that the question as to whether an alienation in lieu of dower was valid under custom was to be decided on a considera tion of whether the dower constituted a just antecedent debt. The learned Judge held that the amount of dower in this case was not unreasonable and constituted a just antecedent debt. We reproduce below an extract from the judgment which contains the reasons for the learned Judge's decision :‑- "The marriage between Mst. Nawab Bibi and Nawab Din took place on 22nd June 1924. Under Muhammadan Law dower is to be regarded as a debt due from the husband to the wife. This debt is payable on demand. It must therefore be held that on 10th May 1934 a sum of Rs. 4,000 was due from Nawab Din to Mst. Nawab Bibi. This debt was a just antecedent debt arising out of the contract of marriage that took place in 1924. Nawab Din was therefore fully entitled to alienate the land in favour of his wife in lieu of the debt due from him. It was held by a Full Bench of the Punjab Chief Court in 65 P R 1900 that just debts are debts which are actually due and are not immoral, illegal or opposed to public policy and have not been contracted as acts of reckless extravagance or of wanton waste or with the intention of destroying the interests of reversioners. This view was approved by their Lordships of the Privy Council in 26 P R 1913, "The learned District Judge has relied on a Single Bench ruling of the Punjab Chief Court reported in 71 P W R 1910. The facts of that case were however very different from the facts of the present case. In that case an Arain had alienated the entire ancestral property possessed by him in favour of his wife in lieu of a dower of Rs.

300. It was held that the amount of dower, in the circumstances of that case, was unreasonably high and that in any case the transaction fixing the dower at a very high amount was of a suspicious character. There was no finding in the reported case that the dower had been genuinely fixed at the sum of Rs.

200. In the present case, the District Judge has observed in his judgment that Nawab Din defendant 1, is admittedly a man of property and that he must arrange to satisfy the dower with other property against which the reversioners will not be liable to object. There is no finding in the present case that in view of the property possessed by Nawab Din the amount of dower is unreasonably high."

6. This judgment hardly helps learned counsel for the appellant when we have regard to the facts of the present case. We are in entire agreement with the learned Judge when he lays down that the question whether an alienation in lieu of dower is valid is to be decided on a consideration of whether the dower constituted a just antecedent debt. The learned Judge has found) that considering the amount of the property possessed by Nawab Din the debt was not unreasonable. Further in the judgment it has been stated (we have not reproduced that part) that no plea had been taken by the defendants as to the amount of dower being unreasonable.

7. In the present case it is conceded that the deceased had transferred by the alienation in dispute the whole of his land to Mst. Zainab Bibi appellant. Originally the dower was only Rs. 200 and he raised it to Rs. 4,

000. This debt of Rs. 4,000 cannot be regarded as a just antecedent debt. It was not a just debt at all, for the intention was to transfer the whole of the property in lieu of dower and so to destroy the interests of the reversioners. If holders of ancestral land were allowed to part with their land like this in favour of their wives the reversionary rights could be destroyed with impunity. It is only a dower of a reasonable amount as can be consideration for the transfer of ancestral land. It is no doubt true that every Muslim can raise his dower at any time. As between the husband and the wife an increase of dower would be binding, just as any extravagant debt may be binding between the debtor and the creditor, but just as an ordinary debt in spite of being binding between the creditor and the debtor does not enable the debtor to effect an alienation of property in lieu of the debt, a dower debt too, though binding between the husband and the wife, does not necessarily justify an alienation. If it is unreasonable, it will be extravagant and will not be a just debt.

8. There is one point which we want to clarify here. We have said that we shall have regard to the reasonableness of the amount fixed. The learned Single Judge has said that in deter mining whether the amount is reasonable we are not to have regard to custom. With this observation we are not inclined to agree. When we have to determine what is reasonable dower in respect of a particular locality or for a particular tribe we can very properly look to the custom of the tribe. It may be that in a tribe it is customary to fix a high dower. In such a case we could not regard the customary dower as unreasonable. c While the fact that very low dowers are being fixed would not make those dowers reasonable, we cannot altogether exclude the consideration of the custom of the parties while determining the amount of reasonable dower.

9. It is urged before us by learned counsel for the appellants that there was no plea as to the dower being unreasonable in the plaint, and in the absence of the plea the respondent should not be allowed to contend that the dower was unreasonable. Learned counsel relied upon observations in Nawab Din and others v. Maula Bakhsh and others wherein the learned Judge has remarked that no plea as to the dower being fixed in a reckless manner was taken in the plaint. We must with all respect express our dissent if the learned Judge meant that the plaintiffs were bound to have made an allegation as to the unreasonableness of the dower in the plaint. When an alienation is challenged on the' ground of custom, what the plaintiff has to allege is that there is a custom restricting the power of alienation and that the circumstances which justify an alienation do not exist. In the present case the allegation was that accordance to custom the alienor could not alienate except for considered and necessity and that consideration and necessity did not exist. These were the only allegations which were needed in order that the plaintiff may have a cause of action for a declaratory suit. It was for the defendant, the alienee, to prove consideration and necessity. It was for the alienee to show that the debt was a just antecedent debt. The question of unreasonableness of dower is a matter relating to evidence and proof and not a matter which should have been distinctly alleged in the plaint.

10. We do not regard the amount of Rs. 4,000 as a reason able dower in the present case, particularly when we have regard to the fact that the whole of the property was transferred in lieu of this dower. It may be, and in fact it is not denied now before us, that the value of the property was more than Rs. 4,

000. In that case the alienation would be unjustified for want of proper consideration too. While we have held Rs: 4,000 to be unreason able, we have also to determine what would be a reasonable dower in the present case because we are of the opinion that such amount as we regard reasonable dower should be allowed to be a charge on the property transferred just as in any other case that part of the consideration which is regarded for necessity is made a charge on the ancestral property that is the subject of the alienation. But after questioning the parties we have reached the conclusion that it will not be necessary in the present case to declare any amount as a charge on the property, because already Mst. Zainab Bibi appellant has, on account of this alienation, received a house whose value admittedly exceeds Rs. 2,000 and at the same time this suit is going to be dismissed with respect to two khasra numbers which were found by the trial Court and the District Judge to be non‑ancestral, but with respect to which the suit was decreed, as Yaqub Ali, J. has himself said in his order granting leave to appeal, by an oversight.

11. Learned counsel for the appellants also wanted to argue before us that the powers of alienation of Suleman were un limited, for he was a sonless proprietor and according to the riwaj‑i‑am of Rawalpindi District he was entitled to make a gift of his ancestral property to any person he liked. Some questions and answers in the riwaj‑i‑am were referred to by him. Yaqub Ali, J. had not allowed him to argue this point on the ground that this would amount to setting up a special custom and there was no plea of special custom in the written statement. We have gone through the pleadings of the parties. We do not regard this as a plea of a special custom, for if the plaintiff comes to Court on the allegation that the alienor had restricted powers of custom it is open to the defendant to show that the alienor had unrestricted powers. This is just a rebuttal of a custom which is being set up by 'the plaintiff: Bt we find in the present case that the allegation in the plaint as to the deceased being governed by agricultural custom and as to his power of aliena tion being restricted was not denied in the written statement at all. The plea taken in the written statement was that the alienation was for consideration and necessity and, therefore, justified. In the circumstances we cannot allow the appellant to take a plea which is not consistent with her written statement.

12. On these findings, the appeal would have been dismisses but there are two corrections to be made in the decree which was passed by the learned Single Judge. The first correction relates to that part of the property which has not been held to be ancestral. That property is khasra Nos. 573 and

574. The suit shall be dismissed with respect to these two khasra numbers. The second correction needed is in respect of the share which has been decreed. The learned Single Judge has decreed the suit to the extent of 7/16th share. He calculated the shares on the basis that the widow is entitled to 1/&th, and after deducting this 1/8th, the rest is to be divided between the daughter Mst. Nasim Akhtar and the collateral. This is not correct. Mst. Nasim Akhtar is a sharer and is entitled to one‑half of the whole property. So Mst. Zainab Bibi is entitled to 1/8th and Mst. Nasim Akhtar to one‑half, leaving 3/8th to the plaintiff. The suit shall, therefore, be decreed only to the extent of 7/16ths of the land in dispute, excepting khasra Nos. 573 and

574. Parties will bear their own costs throughout. K. M.A. Appeal dismissed.