P (PLP)

M. KURSHID ZAMAN, J.‑The appellant instituted a suit to challenge certain alienations made by his father Gul Sher and his uncle Fateh Sher. Some of these alienations were made by his father, some by his uncle and some by both jointly. The following 4 alienations are material for the purposes of this appeal :‑ (1) Sale of 50 Kanals 3 Marals of land by Gul Sher and Fateh Sher in favour of Jamadar Muhammad Bakhsh son of Zabardast (defendant No. 3) for Rs. 2,

400. The sale took place on the 7th July 1937 and the mutation was sanctioned on the 9th January 1938. (2) Sale of 12 Kanals and 15 Marlas of land by Gul Sher alone in favour of Khuda Bakhsh (defendant No. 4) by means of a registered sale‑deed dated the 1st July 1944 for Rs. 1,000. (3) Oral sale of one‑half of 7 Kanals and 12 Marals of land by Fateh Sher alone in favour of Malak Khan (defendant No. 5) for Rs.

200. The date of this sale has not been brought on the record‑ (4) Oral sale of 9 Kanals and 17 Marlas of land by Gul Sher in favour of Muhammad Bakhsh and Allah Bakhsh (defendant 6 and 7) for Rs.

600. The sale took place on the 24th October 1936 and mutation was sanctioned on the 17th November 1936. The plaintiff alleged that the property in suit was ancestral qua him, that his father Gul Sher and his uncle Fateh Sher were governed by custom, that under custom they were not competent to alienate their ancestral property without necessity and that the sales in question were effected without consideration and necessity. The vendees resisted the suit on various grounds. They denied that the property sold to them was ancestral qua the plaintiff. They further asserted that the plaintiff had no locus standi to sue, that under custom the alienors had unrestricted powers of alienation of their ancestral property and that the alienations sought to be impugned were effected for consideration and valid necessity. They also raised the plea of limitation. The learned trial Court framed the following issues : (1) Whether the property in suit was ancestral with Gul Sher and hatch Sher qua the plaintiff? (2) Whether the suit is within time? (3) Whether the plaintiff has the locus standi to sue? (4) Whether the alienors, under custom, had unrestricted powers of alienation of ancestral property? (5) Whether the alienations were for valid considerations and legal necessity? The first three issues were decided in favour of the plaintiff. On Issue No. 4, the finding of the learned trial Court was that under custom Gul Sher, father of the plaintiff, was not competent to alienate his ancestral property without legal necessity, but Fateh Sher being a sonless proprietor had unrestricted powers of alienation. On the question of necessity, the learned trial Court held that the sale in favour of Jamadar Muhammad Bakhsh son of Zabardast (Sale No. 1) was for valid necessity only to the extent of Rs. 452 and, as it had already held that Fateh Sher was, competent to alienate his half share in the property without legal necessity, it dismissed the plaintiff's suit' with regard to that half and converted the sale by Gul Sher of the other half into a mortgage for Rs.

226. As regards Sale No. .2 by Gul Sher in favour of Khuda Bakhsh (defendant No. 4), it held that the necessity was established to the extent of the entire consideration money, and the sale was accordingly upheld. On similar grounds the sale by Fateh Sher in favour of Malak Khan for Rs. 200 (Sale No. 3) was also upheld. The suit of the plaintiff was dismissed with regard to these two sales. As regards the sale by Gul Sher in favour of Muhammad Bakhsh and Allah Bakhsh (Sale‑ No. 4), the learned trial Court held that the sale was not supported by any necessity. It, accordingly, declared that the sale shall not affect the plaintiff's reversionary rights after the death of Gul Sher. Against the decree of the learned trial Court, the plaintiff and some of the defendants preferred two appeals to the Court of the District Judge, Jhelum. The defendants, who appealed were Jamadar Muhammad Bakhsh son of Zabardast, and Muhammad Bakhsh and Allah Bakhsh .sons of Sher Baz. Jamadar Muhammad Bakhsh urged that necessity for the sale in his favour (Sale No. 1) had been established to the extent of the entire consideration money and that the trial Court was wrong in holding that the necessity was proved to the extent of Rs. 452 only. Muhammad Bakhsh and Allah Bakhsh sons of Sher Baz challenged the finding. of the learned trial Court that the sale in their favour (Sale No. 4) was not effected for any valid necessity. The plaintiff in his appeal challenged the findings of the learned trial Court on the question of custom as well as on the question of necessity. He urged that the learned trial Court was wrong in holding that Fateh Sher had unrestricted powers of alienation of his ancestral property. On the question of necessity, his case was that the sales in favour of defendants 4 and 5 (Sales Nos. 2 and 3) were not supported by any necessity. The learned District Judge accepted the appeal of the vendees and dismissed the plaintiff's appeal. Against the decision of the learned District judge, the plaintiff filed two separate appeals in this Court, namely, Regular Second Appeal No. 31 of 1950 and Regular Second Appeal No. 32 of .1950. Both these appeals will be disposed of by this judgment. Learned counsel for the appellant addressed me on the questions of necessity and custom. Taking first the question of neces sity, I can see no sufficient reason for departing from the general rule in cases of this kind that necessity is a question of fact unless it is shown that the finding of the lower appellate Court is not based on any evidence. In the present case, the learned District Judge has arrived at his conclusions on the question of necessity after careful consideration of the entire evidence led by the parties on the issue relating to that question, and the learned counsel for the appellant has not been able to convince me that in coming to those conclusions, the learned District Judge committed any error of law. I am, therefore, of opinion that the appeals, so far as they relate to the question of necessity, are concluded by findings of fact. The only question that remains to be decided is whether under custom Fateh Sher an Awan of Tehsil Pind Dadan Khan in the Jhehim District had unrestricted powers of alienation of his an cestral property. The custom of the Awans of Pind Dadan Khan Tehsil, as stated in Answer 120 of the latest Customary Law of the Jhelum District, compiled by Mr. Thapar, is to the effect that they can only alienate a part of the ancestral property for a legal necessity, provided the self‑acquired property is insufficient for that purpose. In view of this Answer, the onus of proving 'that Fateh Sher had unrestricted powers of alienation was placed on the defendants. In coming to the conclusion that Fateh Sher enjoyed such powers, the learned District judge relied on a ruling of this Court reported as Fazal Din v. Chaudhri and others (A. I. R. 1928 Lah. 523).. He also referred to Question l 05 of the Customary Law of the Jhelum District prepared by Mr. Talbot in 1901 and certain instances given under Answer 120 of the Custo mary Law prepared by Mr. Thapar in which alienations made by sonless Awans of Jhelum and Pind Dadan Khan Tehsils without any necessity were upheld. Addison, J. who decided Fazal Din v. Chaudhri and others (A.'I. R. 1928 Lab. 523), after reviewing almost all the cases in point, came to the conclusion that a sonless Awan proprietor of the Jhelum District could sell ancestral property in the presence of his near collaterals to a stranger. Learned counsel for the appellant contended that the cases referred to by Addison, J. in his judgment, while conceding extensive powers of alienation of sonless Awans of Jhelum and other neighbouring districts in the matter of making gifts and wills in favour of their near relatives, did not go to the length of laying down that they enjoyed unrestricted powers of alienation of an cestral property in favour of strangers without legal necessity. This contention does not appear to be correct. In Devi Das v. Bhakra (53 P. R. 1899), an Awau of Mianwali Tehsil, in Bannu District, sold hi3 ancestral land in favour of a money‑lender. The sale was held to be without necessity but it was upheld on the ground that the Awans of Mainwali dike those of Shahpur Dis trict enjoyed unrestricted powers of alienation. In Khuda Bakhsh v. Waham Ali and another (88 P. R. 1911) ancestral property was sold by an Awan of Talagang Tehsil, in the Jhelum District. The sale was challenged by the son of the alienor. It was held to be without necessity but the suit was dismissed on the ground that the plaintiff had failed to establish that his father was incompetent to alienate his ancestral property without necessity. In Nur Ahmad v. Ghulam Hussain (56 P. R. 1.915), a sonless Awan of the Rawalpindi District sold a Khola to a stranger. A first cousin of the alienor instituted a suit for a declaration to the effect that his reversionary rights should not be affected by this sale alleging that the property sold was ancestral qua him, that the, alienor was not competent under custom to alienate his ancestral property without legal necessity and that‑ the sale was not effected for any necessity. Although, it was found that no necessity existed for the sale yet it was held to be valid on the ground that sonless Awans of Rawalpindi District bad unrestricted powers of alienation. On a similar ground, a sale by a sonless Awan of Talagang Tehsil, in the District of Jhelum, in favour of a first cousin was upheld in Nur Khan and others v. Sarfraz and others (100 P. R. 1912). In Bakhsh v. Muhammad Khan (A. I. R. 1931 Lab. 266) it was held that Awans of Shahpur, Mainwali and Rawalpindi Districts possess wide powers of alienation. Obviously, the Awans of the Jhelum District are also governed by the same custom which prevails among the Awans of the neighbouring districts, as custom is ordinarily tribal and not local, see Nanhar v. Harnam and others (A. I. R.. 1929 Lab. 769) and Waras and others v. Musammat Fatima and others (A. I. R. 1935 Lab. 532). Fazal Din v. Chaudhri and others (A. I. R. 1928 Lah. 523) is prehaps the last case in which the unrestricted powers of alienations enjoyed by sonless Awans of the Jhelum District are rcognized. Apart from the reported cases referred to above, three judicial instances are given under Question 120 of Mr. Thapar's Customary Law in which the alienations of ancestral property made by childless Awans of the Jhelum District without necessity were upheld. Two of these cases relate to Jhelum Tehsil. In the third instance, which relates to Pind Dadan Khan Tehsil, the alienation was upheld by the High Court in Fazal Din v. Chaudhri and others (A. I. R. 1928 Lah. 523). These instances considerably weaken the presumption arising from Answer to Question

120. In the earlier Riwaj‑i‑am prepared by Mr. Talbot, the unlimited powers of the Awans of Jhelum District in matters of alienation were recognized in answer to Question 105, although it was stated that there were a good many dissentients who said that it was not lawful for them to alienate without necessity. The mere fact that some of the Awan proprietors did not approve of the un restricted powers of alienation does not show that the custom, as stated in answer to Question 105, did not exist. Learned counsel for the appellant pointed out that the Riwaj i‑dm prepared by Mr. Talbot had been adversely criticised in several reported cases of this Court. The only case in which answer to Question 105 was found to be defective is reported as Lal Khan and others v. Nura and others (72 P. R.. 1914). In that case an alienation made by an Awan of Talagang Tahsil; Dis trict Jhelum, was challenged by his son. It was pointed out by the learned judges that Answer 105 did not make a distinction between the powers of alienation of a sonless proprietor and those of a proprietor who had sons. The only case cited by the learned counsel for the appellant in support of his contention that the Awans of Jhelum District do not possess unrestricted powers of alienation is Sher Muhammad and others v. Ali Muhammad and others (25 I. C. 715). It was held by a learned judge in Chambers that the Awans of Tahsil Talagang enjoyed limited powers of alienation of ancestral property to strangers, but they enjoyed unrestricted powers in matters of alienation in favour of near relatives. It appears from the judgment that the learned judge was not on sure grounds on the question of custom and came to the conclusion referred to above with consider able reluctance. After considering all the relevant authorities, the judicial instances given under Answer 120 of the Customary Law prepared by Mr. Thapar and answer to Question 105 of the earlier Riwaj‑i- am prepared by Mr. Talbot, I have come to the conclusion that the defendants have succeeded, in proving that Fateh Sher enjoyed unrestricted powers in the matter of alienation of his ancestral property, even without necessity, and that the presumption arising from Answer 120 of the latest Customary Law has been sufficiently rebutted. I am, therefore, of opinion that the question of custom was rightly decided by the learned Courts below. I, accordingly, dismiss both these appears with costs. A.H Appeals dismissed.