1980 PLP 1863 (CLC)

(a)

(b) when the sale is of a share out of a joint property and is not made by all the co-sharers jointly :- firstly-in the lineal descendants of the vendor in order of succession secondly--in the co-sharers, if any. who are agnates in order of suc cession ; thirdly-in the persons, not included under firstly and secondly above, in order of succession, who but for such sales, would b; on the death of the vendor entitled to inherit land or property sold ; fourthly-in the co-sharers. (c)

3. It was contended by Kh. Muhammad Manzoor Ahmed, Advocate for the appellant, that the word 'agnate' has been borrowed from the Customary Law of Punjab and it must be given the same meaning as it bears under the Customary Law of Punjab. Under the Customary Law of Punjab the word 'agnate' means 'male agnate related through male ascendants'. The learned Advocate has placed reliance on 53 P R 1912. But there is no justification for assigning special meaning, in Azad Kashmir, to the word `agnate' ; apart from the plain dictionary meaning, firstly because Pre emption Act of Punjab has not been adopted here and the Right of Prior Purchase Act which was in force before liberation still continues in force here. Therefore interpretation placed by the Court in Punjab would not hold good here. Secondly, in Punjab, the word 'agnate' had special meaning under Punjab Laws Act under which law these rulings have been given. In Jammu & Kashmir the rule of decision in case where parties are Muslims was and is Muslim Shariah as it would appear from clause (d), subsection (1) section 4 of Jammu & Kashmir Laws Consolidation Act, 1977 which reads "4. (1) The Laws administered and to be administered by the Civil and Criminal Courts of the State of Jammu & Kashmir are and shall be as follows :- (a)

(b)

(c)

(d) in questions regarding succession, inheritance, special property of females, betrothels, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, waqf, partitions, castes or any religious usage or institution the rule of decision is and shall be-- the Mohammedan Law in cases where the parties are Mohammedans and the Hindu Law in cases where the parties are Hindus, except in so far as such law has been, by this or any other enactment, altered or abolished or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority ; In these circumstances for proper appreciation of the meaning of the word 'agnate' we have to consider the plain meaning in the light of judicial interpretation placed on the word by superior Courts in the State of Jammu & Kashmir.

4. The plain dictionary meaning of the word 'agnate' according to the Readers' Digest English Dictionary, III Vol : means 'relative through the father'. The opposite of word 'agnate' is the word 'cognate' which means `relative through the mother'. It cannot be denied that the true sisters are related to each other through father. They are agnates as well as cognates The children of one sister may not be agnates of the children of the other/ sister but as for the sisters it cannot be said that they are not related to other through father,

5. Agantic theory is of cause based on the principle that females do not transmit agnatic relationship and they should not be deemed agnatic for that purpose. But after Application of Shariat Act on 1948 custom was abrogated completely. An interpretation given to certain words by Courts under a law that has been repealed would not provide a safe guidance for interpreting the same words under the changed law. We will have to consider the meaning of the word agnate independent of interpretation placed on the word by some authorities under Punjab Laws Act which law was not applicable in Jammu and Kashmir where rule of decision had always been Personal Law of couse customary Law used to prevail but only in case where it was alleged and proved and not otherwise.

6. Relying On definition of the word agnate as given by Ellis in his book. The Law of pre-emption in the Punjab 5th Edition the learned counsel for the appellant contended that Mst. Bibi and Mst. Daulat Bibi pre-emptor s are not agnates of Mst. Sajjada Begum. The definition is a person in an agnate of another when he is related to him by descent from a common ancestor entirely and exclusively in the male line. No female can be an agnate, or transmit agnatic relationship. The learned author has on page 40, observed that in applying these authorities care should be taken to note that they are under the Punjab Law Act. They are merely illustrative of the present statutory rule. They illustrate that no woman or one descended through a woman can be an agnate, but the rulings should not be extended beyond that it is therefore clear from the above commentary that agnate under the pre-emption Act of Punjab has been specifically defined and the woman are excluded from the category of agnates which is not the rule of decision in the State. In this behalf a reference to the ruling of the High Court of Occupied Kashmir in Ahmed Dar v. Mst Mukhtl (1) may not be out of place. The point involved in that case whether Mst. Khurshi was agnate of Mst. Ashmi for being related to there male line with out intervention. It was observed in para 6, page 20 of the judgment as follows: From the definition given by Tyabji in his Mohammadan Law is supported by Sani Ram Dogra in his Customary Law it is that agnate means a person whose relation to the deceased can be traced without the intervention of female links. Ms. Khurshi is an agnate of the father of Mst. Ashmi inasmuch as she is related to Qadir through male line without the intervention of any female link."

7. After the application of Shariat Act clause secondly and firstly have also been amended in Punjab. But no such amendment so far has been made in Azad Kashmir, in the Right of Prior Purchase .Act. In Muhammadan Law of Tyabji, 3rd Edition, agnate is defined in section 605, on page 834, as meaning 'a person whose relation to the deceased can traced without the intervention of female links'. The dictionary meaning as given else where is `relative through the father'. Sant Ram Dogra question number 69 defines `agnate' as meaning `grandfather's descendant in the male line'. From what has been staled ,above it is dear that `agnate means 'a person whose relation to the vendor can be traced without the intervention of female links'. Both pre-emptors are directly related to the vendor through father without intervention of any female link. They are co-sharers as well. They would, therefore, fall under clause secondly (b) B section 14 of the Right of Prior Purchase Act while the husband falls under thirdly of clause (b) and being on a higher pedestal they have prior right) of purchase. For the foregoing reasons both the appeals fail and are hereby dismissed. The judgments and decrees of the High Court are maintained. Parties are left to bear their own costs. M, Y. M. Appeals dismissed.