P L D 1969 Lahore 374 (PLP)

MUHAMMAD AKRAM, J.‑This is the plaintiff's appeal against the decree dated the 16th of December 1957, passed by the Senior Civil Judge, Lyallpur at Toba Tek Singh, dismissing his suit against the defendants‑respondents.

2. Briefly, the facts are that the parties in this case are related to each other as shown below :‑ Mst. Nawab Bibi Ghulam Muhammad Mst. Karam Bibi | | | | Said Muhammad | _____________ | _________ | | Mubarak Ali | (Deft. 5) | ____________________________________________________________| | | | | | | | | Inayat Ullah Walayat Hussain Nazir Hussain Talib Hussar (Dft. 4) (Dft. 3) (Dft. 2) (Dft. 1) On the 5th of March 1953, Mubarik Ali, defendant‑respondent No. 5, made a gift of the land measuring 258 kanals belonging to him, situated in Chak No. 366/G. B., Tehsil Toba Tek Singh, District Lyallpur, by a registered deed in favour of defendants respondents Nos. 1 to

4. The mutation for this transfer was sanctioned in choir favour on the 16th of September 1953. After this, on the 20th of October 1956 the plaintiff‑appellant filed the suit, out of which this appeal has arisen, against the defendants‑respondents in the Court of the Senior Civil Judge, Toba Tek Singh for the usual declaration under custom that the alienation shall not bind his reversionary rights. He has alleged that the donor was of unsound mind, incompetent to make the alienation. Moreover, the land in suit was ancestral. The parties were governed by customary law and the gift was in effective against his reversionary rights. Defendant‑respondent No. 1 alone contested the suit and in the written-statement filed by him he has denied these allegations, giving rise to the following issues framed by the trial Court:- (1) Was Mubarik Ali defendant No. 5 of unsound mind at the time when he effected the gift? (2) Is the land in suit ancestral qua the plaintiff? (3) Is the family of the donor governed by Custom in the matter of alienation of ancestral land? (4) In case issues 1 to 3 are found in favour of plaintiff, is the gift valid? (5) Cannot the suit be maintained in the present form? (6) Relief.

3. After the evidence, the learned Senior Civil Judge, on the 16th of December 1957, dismissed the suit of the plaintiff' holding that the donor was not of unsound mind at the time of the alienation, that the land in dispute was not proved to be ancestral qua the plaintiff, that the family of the parties was governed by custom in matters of alienation and that the donor was fully competent to make the gift of the land which was his self-acquired property. Issue No. 5 was not pressed before the trial Court and in the result the suit of the plaintiff had to be dismissed, Hence this regular first appeal by the unsuccessful plaintiff:

4. We have heard the learned counsel for the parties appearing before us in this appeal. The finding by the trial Court on issue No. 1 was not seriously challenged before us. To prove this issue the plaintiff had produced P. W. 2, Sardar Bibi and P. W. 3, Resham Bibi, the two real sisters of Mubarik Ali donor to depose that he was of unsound mind. The plaintiff has also appeared as his own witness (P. W. 4) to state that the donor was of unsound mind unable to form any opinion about his own welfare. .But in this he was belied by the.testimony of his own witness P. W. 1, Fazal Din who has admitted in his cross-examination that Mubarik Ali is not of unsound mind although he was simple (Sadah). In rebuttal. the defendants have produced Mubarik Ali (D. W. 1) as a witness in the case. He was cross-examined at length and his answers go to establish that he was capable of forming his own opinion on the questions asked from. him. From this evidence the learned trial Court was fully satisfied that Mubarik Ali was a man of sound mind and we have no hesitation in upholding this finding on issue No. 1.

5. The most crucial issue between the parties is issue No.

2. From the evidence led by the parties it transpires that the land in suit was owned by Ghulam Muhammad, the father of the parties. He died on the 23rd of September 1933, before his death he had made an unregistered will on the 13th of September 1933 which was produced by Karam Dad at the time of the attestation of the mutation. Ghulam Muhammad in all had left 41 squares of land belonging to him. In this will he made an unequal distribution of the land among his three sons. Karam Toad got 1 z squares, Mubarik Ali 1 square and 5 killas and Said Muhammad 1 square of the land. It appears that the parties had acted upon thus arrangement and gave consent to it. Accordingly the revenue officer had attested the mutation No. 270 (Exh. P. 2) on the basis of this will in favour of his three sons.

6. The learned Senior Civil Judge has found that the land in suit which hart devolved upon Mubarik Ali under the will must be treated as the self-acquired property in his hands. The learned counsel for the parties have been unable to cite any direct authority bearing on this point in support of their respective contentions under this issue. There is, however, no dispute before us that in this respect uncles the customary law, that had prevailed in this part of the country there was no difference between a will and a gift. In Hayat Shah and others v. Fazal Begum and others (70 P R 1908). It was observed that the gift and the will stand on much the same footing under the customary law. Similarly in Fazal Khan v. Anwar (A I R 1928 Lah. 489) it was held that it is a well-recognized principle of law that the power of alienation inter vivos and the power of alienation by way of gift go together. It is firmly established that the property in the hands of the owner acquired otherwise two by descent or by reasons merely of his connection with tire common ancestor, is treated as his self-acquired property. In Saif-ul-Rehman v. Muhammad All Khan (A I R 1928 Lah. 285) it was observed that :- "There is no doubt if Wazir Khan had obtained this land by succession it would have been ancestral. But here the ordinary course of inheritance was diverted by the gift by Qutab-ud-Din to Wazir Khan, who was not his heir at the time. He was one of his distant collaterals and the gift by Qutab-ud-Din to him was admittedly not made by way of surrender of his estate or acceleration of succession but was a gift pure and simple. In my opinion the mere fact that the donee was one of the large number of collaterals makes no difference whatever " In Mst. Kaman v. Ghafoor Ali (A I R 1928 Lah. 280) the donor in his lifetime gifted the property acquired by him in various shares to his sons and other relatives. It was held that donee acquired the property in dispute from the donor under the gift and not by way of succession and was one of acquired property in leis hands.

7. In Imam Dan v. Ram Rattan (62 I C 855) a Division Bench of the Lahore High Court has held that the property which is ancestral does not cease to be so merely because the owner acquired it not by descent but by gift from a collateral, where the reason of the gift was the dunces connection with the common ancestor of himself and the donor. In this case the donor was sonless and the donee was his brother who could have succeeded in the ordinary course on his death and the case in reality was one for the acceleration of succession. Similarly in Khizar Hayat and another v. Allah Yar Shah (A I R 1926 Lah. 17) it was held that where the gift is to a person who will succeed to it by inheritance apart from the gift, the property originally ancestral does not become the self -acquired property of a donee.

8. In this respect the position under the somewhat similar provisions of the Hindu Law is not uniform and there is a great divergence of opinion among the different High Courts in India. This was noticed by the Privy Council in Lal Ram Singh and others v. The Deputy Commissioner of Paratap Garh (A I R 1923 P C 160). But their Lordships deemed it unnecessary to pronounce any judgment in this respect with the observation that "it may be that some day this Board will have to decide between the conflicting decisions of the Indian High Courts, and it may be that when this time comes, this Board will prefer to go back to the original text of the Mitakshara and put its own construction upon that text. It is not necessary to do so in this case."

9. Under the customary law, in this respect in our opinion the true test is laid down in Balwant Singh v. Gurbachan (A I R 1939 Lah. 286) :‑ "A gift or sale of ancestral property by its owner in favour of a relation, the effect of which is direct acceleration of succession, does not render the property gifted or sold non -ancestral. There is no distinction between a gift and a sale, in such cases. The real test is whether the alienation, whatever from it takes is or is not an acceleration of succession. If it is acceleration of succession, it does not derive the property transferred of its ancestral character."

10. In the instant case before us under the will made by Ghulam Muhammad he had divided the estate held by him in unequal shares, so that under the will his three sons came to hold the land in severalty and not jointly with each other, in unsequal shares. This was by no means an arrangement made by the testator by way of acceleration of succession: Indeed, thereby the normal course of succession of the land to the three sons in equal shares was altered. This being the case, we have no hesitation in holding that the land in dispute cannot be deemed to be ancestral in the hands of the donor. He had, therefore; the full power of disposition over this land acquired by him.

11. For the foregoing reasons, we find no force in this appeal which dismissed with costs. A. E. Appeal dismissed.