P L D 1956 Federal Court 37 (PLP)

MUHAMMAD SHARIF, J.‑

This is an appeal by the defendants against the judgment and decree of the High Court of Judicature at Lahore, dated the 2nd May 1945, affirming, on appeal, the decision of the Senior Subordinate Judge, Gurdaspur, dated the 19th November 1942, decreeing the plaintiffs' suit for posses sion. The simple question for determination is Whether the whole‑blood excludes the half‑blood in the family of the parties ? This 'has arisen in the following manner One Mustaqim, a Gujar of village Gumtala Tehsil Shakar garh in the Gurdaspur District (now after partition of the sub continent attached to the District of Sialkot, Pakistan) was the owner of extensive areas of land in the villages of Gumtala and Jhangi. He had six sons from two wives from Mst. Nanki, the first wife, he had two sons, Muhammad Bakhsh and Mansabdar, and from the other wife, Mst. Jiari, he had four sons, Bulanda, Sharaf Din, Fazal Din and Suba. Suba died during infancy in the life‑time of his father. On the death of Mustaqim on 10th of April 1856, the surviving five sons were to succeed. It appears that Fazal Din too died a few years later without leaving any issue. It is not known whether the mutation to the estate of Mustaqim took place in the name of the five sons in equal shares or in accordance with the number of the wives. Muhammad Bakhsh had a son Maula Bakhsh by name, who died in 1894, leaving behind only his widow, Mst. Hayato, who succeeded on the usual life‑estate. She died on 1st of March 1939. The revenue authorities effected the mutation of her share in the name of the descendants of Mansabdar on the ground that the whole‑blood was entitled to succeed in preference to the descendants of the other branch. This led to the suit by the plaintiffs out of which this appeal arisen. It was alleged that the parties were governed by the of pagwand, according to which all the sons from different wives were to succeed in equal shares and that on the death Mst. Hayato, her property was to be shared between the two branches equally, i.e., to other words, the sons of Mst. Jiari were get two‑thirds while one‑third was to remain with the progeny of Mansabdar. This suit was decreed by the trial Court and the plaintiffs were granted decree to the extent of two‑third share in the property left by Mst. Hayato. An appeal against the same, as stated earlier, was dismissed by the High Court. The defendants have now come up in appeal to this Court. It is not disputed that in the Punjab, the general rule of distribution of property is Pagwand, that is, according to the number of the sons irrespective of the number of wives, and any person setting up a custom to the contrary must prove it The true approach to the allocation of onus to cases arising under custom, was laid down by their Lordships of the Privy Council in Mst. Subhani v. Nawab (I L R 22 Lah, 154). The initial presumption arises in favour of the general rule of custom as contained in Rattigan's Digest of the Punjab Customs. The quantum of proof necessary to rebut this presumption must vary with the facts and circumstances of each case. If the custom relied on is in accord ance with the general custom its force shall be very great and strict proof will be necessary to rebut it. If, on the other hand, a different custom is stated in the Riwaj‑i‑am of the District relating to the tribe to which the parties belong, the initial presumption may be rebutted by the production of the relevant entry. The evidence, to weaken or destroy the effect of the entry in the Riwaj‑i‑am, must again depend upon the cir cumstances. If the special custom pleaded is of exceptional nature and is opposed to the general custom, a few well‑ascertained instances may suffice to rebut it. The greater the divergence from the general custom the stricter the proof of the special custom which is insisted upon. This is still more so in the case of chundawand, which is considered to be an extremely inequitable custom and perhaps a relic of the archaic institution of polyandry. Sir Louis Tupper in his statement of Customary Law of different districts, Volume 11, at page 96 writes :‑ "But a question in the Punjab which seems to the to specially deserve the Attention in this connection is the rule of chunda wand, by which the sons, however few, of one wife, take a share equal to that of the sons, however many, of another. This rule is, I think, characteristically a survival. It is plainly unjust now, and seems to serve no useful purpose whatever. It does not prevail, so far as I can judge, on any fixed principle or amongst any definitely ascertainable set of clans . . . . It is a temptingly suggestive circumstance that uterine apportionment is the general rule in Kangra proper, a part of the country so near the region where polyandry still exists. One might easily leap to the conclusion that chundawand is directly descended from the ruder form of polyandry by which, the husbands being of different stocks, the only rule of kinship and succession was through the mother . . . . It thus seem. to me possible that chundawand may be a relic of a state of society, which had begun to be polygamous without having entirely disused polyandry." To the above might be added the extra‑heavy weight of the presumption arising from the statements of the custom in the successive Riwaj‑i‑am of the District of Gurdaspur. The extract of the Riwaj‑i‑ant of the Shakargarh Tehsil compiled in 1865 records that the Gujars at that time followed the chundawand rule of succession. The same custom was said to be followed by the other tribes in the same Tahsil. It was followed by the preparation of another Riwaj‑i‑am in 1892. This mentions that with the exception of a few tribes, the inheritance was divided according to the pagwand rule of succession. It was noted that this rule generally prevailed except among the Gujars of a few villages. The names of these villages where chundawand rule prevailed are not given. The latest Riwaj‑i‑am was compiled in the year 1912. As to the rule of succession it recited: "The Gujars of the Shakargarh Tehsil stated that the pagwand rule which they for the first time accepted at the last settlement has now come to be generally followed". The other remaining tribes admitted that the pagwand rule had been followed among them and should continue to be so: From the above statements of custom in the various Riwaj -i‑ams of the district, it would be clear that the custom of chundawand was slowly giving way to that of pagwand between the years 1865 and 1892 and by 1912 there was a complete change over to the rule of pagwand. As against these heavy odds regarding the existence of the custom of pagwand since 1912, the defendants could only offer a very few instances where the custom of chundawand was still followed. The other instances referred related to the period between 1865 and 1892, when, as has already been mentioned, the custom was in a state of transformation. On the other hand, the plaintiffs too produced on the record several instances Where the pagwand rule had been acted upon. The material produced by the defendants was, under the circumstances, wholly insufficient to rebut the very strong presumption in favour of the prevalence of the rule of pagwand, and the learned counsel for the appellants could not assert that at the time of the death of Mst. Hayato the custom of chundawand was still recognised. It may be added here that the rule of pagwand had come to be so firmly established by the year 1912, that on the death of Mst. Fazal Bibi, a wife of Mensabdar, Rahim Bakhsh Zaildar, the father of some of the contesting defendants, had to request the revenue authorities that her estate be mutated in equal shares‑among the unequal number of sons from the other two wives of Mansabdar. The learned counsel for the appellants, however, contended that the state of custom of pagwand in the year 1939 should not have been allowed to affect the decision of the case which should have been decided in accordance with the rule of custom which prevailed at the time of the original distribution of the estate of Mustaqim. His argument is that about the year 1856, when Mustaqim died, the chundawand rule of division held the field and it should be presumed that his lands were so divided among his sons from different wives and for that reason the presumption of the exclusion of half‑blood by the full‑blood may be raised. Reference in this connection was made to paragraph 26 of Rattigan's Digest. This is as follows :‑ "In the case of collateral succession, in a contest between relations of the whole‑blood and those of the half‑blood the Court may presume, until the contrary is proved, that‑ (a) when the property of the common‑ancestor was dis tributed according to the rule of chundawand (per stirpes), the whole‑blood excludes the half‑blood ; and (b) where the property of the common‑ancestor was dis tributed according to rule of pagwand (per capita), the whole blood and half‑blood succeed together". This statement of custom in the Digest is taken verbatim from the judgment of the Full Beach in Ghulam Muhammad v. Muhammad Bakhsh (4 P R 1891) where at page 12 the expression collateral succession" was explained. It was used in opposition to "lineal succession", which means, ordinarily, succession of a descendant to an ancestor more or less remote, though it may include succession by an ancestor to a descendant. Collateral succession was meant to convey succession to a male descendant, who had died without leaving issue surviving him, "issue" being employed to denote "sons and other male descendants through males". At page 16, it was pointed out "the important feature of the chuhdawand distribution, whether upon a partition or a succession, is this, that it splits up the family into groups and the family property into portions. In the pagwand distribution no such severance of the family or its property occurs". At page 20, it was observed : "On a chundawand distribution, the estate is distributed into portions, primarily, according to groups and not to individuals, the portions of the groups being then redistributed 'among its members as members of ,a single family. That the portion allotted to a group should belong as an entirety to the members who, for the time being form or represent the group until the group is extinct, is no departure from the ordinary rule as to the devolution of shares. As to the redistribution of the portion, and devolution of the shares into .which the portion is redistributed among the members of a group, that is a matter which concerns them alone, until the group is extinct, exactly as in the case of the share of an individual and his descen dants qua other sharers and their descendants. On this view, there is not really, at any time, a competition between half‑blood and whole‑blood, for the sons have been separated once for all, at the original distribution, into several groups, such that all the members of each are related inter se by the whole‑blood, and so far, each group resembles a single family." A case of collateral succession came up before their Lordships of the Privy Council in Nabi Bakhsh v. Ahmad Khan (I L R 5 Lah. 278). The principles enunciated in Ghulam Muhammad v. Muhammad Bakhsh (4 P R 1891) were approved. In this case, the father in his life time in 1858 had by a deed of partition divided his property in equal shares among his sons from different wives. From that time, and for a long period of about sixty years, between the two families there was complete separation of the possession and ownership of the properties thus partitioned. It was held that "in the dis tribution of 1858, it was intended that thence forward each group of sons should hold its own portion of the whole estate indepen dently of the other". Where this has happened, the whole‑blood would exclude the half‑blood and the redistribution would be confined to the members of that group so long as it is in exist ence. A careful study of the Full Bench judgment in Ghulam Muhammad v. Muhammad Bakhsh and the Privy Council case in Nabi Bakhsh 'v. Ahmad Khan would show that in a case of9contest between the whole‑blood and half blood, it is necessary to ascertain whether the original division among the sons of different wives, constituted the members of the family into separate groups as represented by their mothers or not. If it did, the devolution inside the group would be regulated by the rules followed by it so long as the group lasts and the other members of the branch shall have no claim to any share to it. The above acid‑test may now be applied to the present case. As mentioned earlier, there is no material on the record to prove that on the death of Mustaqim, one‑half share was given to the three sons of one wife and other half to the two sons of the other wife. Nor is there anything to suggest that on the death of Fazal Din, his share was exclusively appropriated by his remaining two brothers from the same mother. The absence of any proof of this fact cannot operate to the benefit of the appellants and it cannot be presumed that this must have been so, as at the it the rule of chundawand was in vogue among the Gujars of village C9umtala. There was nothing to prevent a family, may be to preserve internal concord or from other equally valuable con siderations, to adopt one rule rather than the other, though it might be against the usual one. The earliest document on the file describing the shares held by the descendants of Mustaqim, is the extract from the settlement record of le65 of village Gumtala (Exh. P. 9). This records the sons from both the wives in equal shares (with the slight mistake that Bulanda is shown as the brother of Muhammad Bakhsh and Mansabdar from the first wife). This is not chundawand dis tribution. It further appears that the entire property inherited from the father was jointly owned and possessed by all the brothers. As a matter of fact, as would be evident from Exh. D. 59, dated the 14th of December 1878, that Mansabdar, the eldest brother, managed the house‑hold affairs as the head of the family and let out lands to tenants for cultivation on behalf of himself and his other brothers. As late as 1911‑12, the descen dants of Mustaqim jointly owned and possessed 1898 kanals and 11 marlas invillage Jhangi and the partition came about in the year 1922 not through their own will but as a result of con solidation of holdings in the village. Similarly, the lands in village Gumtala are still joint. The result of the foregoing discussion is that the appellants have failed to prove that the estate of Mustaqim was ever divided according to chundawand or that at any time subsequently, there came into existence separate groups with no relation or concern with each other. The conditions required for the raising of presumption in paragraph 26 of Rattigan's Digest have not been fulfilled. The appeal, consequently, fails and is hereby dismissed with costs: A. H. Appeal dismissed.