P (PLP)

S. A. RAHMAN, J.‑The facts giving rise to this appeal are as follows. Mst. Nur Jahan, or Nur Jan, Ghakhar by tribe, and a resident of Pira Gheb, a suburb of Jhelum town, made a will in favour of Ghulam Ghaus Shah, the 5th defendant in this case, and got it registered on the 15th of October 1945. The testatrix died on the 10 December 1945. Mst. Sajjada Begam, mother of Mst. Nur Jan, brought the suit out of which this appeal has arisen for recovery of 1/6th share of the house devised by will by the deceased in favour of Ghulam Ghaus Shah. She claimed to be entitled to this share under Muslim Law. It may be mentioned that Mst. Nur Jan was the divorced wife of one, Sayyed Fateh Shah, and Ghulam Ghaus Shah defendant is the son of a daughter of that Fateh Shah, from his previous wife. Among the defendants were impleaded, Mst. Sardar Begum, a sister of Mst. Nur Jan ; Sardar Khan and Khan Muhammad sons of another sister of Mst. Nur Jan, and Muhammad Sabir son of Sardar Khan. While the suit was pending, Mst. Sardar Begum defendant died and her 'husband, Abdul Karim, was substituted in her place. Some movable property was also alleged to have been left by the deceased Mst. Nur Jan of which a share was claimed by Mst. Sajjada Begum. That is no longer in dispute. The suit was resisted on the grounds inter alia that the deceased was governed by custom and had ample power to make a will in respect of her entire property. The trial Court as well as the Court of first appeal held that the parties were governed by Muslim Law under which the will, in so far as it related to more than one‑third of the property, was invalid. The first Court granted the plaintiff a preliminary decree to the effect that the plaintiff was entitled to one‑sixth share in the house. A Commissioner was appointed to partition the property between the various co‑sharers. On appeal, the learned District judge only varied the shares of the parties in the property and declared that the, plaintiff was entitled to 7/5th share. In other respects he upheld the judgment of the trial Court. In second appeal, Cornelius J., came to the conclusion' that the parties were governed by custom and not by their personal law. He, therefore, allowed the appeal and, setting aside the decrees of the Courts below, dismissed the plaintiff's suit with costs. The order of Cornelius J. has been challenged on behalf of the defendants other than Ghulam Ghaus Shah, by the present appeal under clause 10 of the Latters Patent. The main question that falls for determination is whether the family of Mst. Nur Jan was governed by custom or by personal law in matters of alienation. A testamentary disposition of property would obviously be held included within the term " alienation ". The grounds on which the judgment of the trial Court and the Court of first appeal proceeded were that lust. Nur Jan had married a Syyed who would be presumed to be governed by Muslim Law ; that she lived not in a village but in a suburb of Jhelum Town which was within the Municipal limits ; that she was not proved to belong to any compact village community or to have subsisted on agriculture or to possess a share in any shamilat and that according to the Muslim Personal Law (Shariat) Application Act, 1937 `(Act XXVI of 1937), succession to house and mov?able property was to be determined by Muslim Law in relation to Muslims. The learned judge in Chambers thought that the Courts below had approached the case from a wrong angle. He took the view that Pira Gheb, though within the Municipal limits of Jhelum, was yet no part of Jhelum Town but was a village on the outskirts of the town. Secondly, he thought that enough weight had not been given to the circumstance that Mst Nur Jan was a daughter of Ghakhar parents and belonged to a Ghakhar family as established by the fact that both her sisters and married Ghakhars. He further pointed out that her marriage with a Sayyed would not by itself operate to change the law by which she owns herself governed, particularly as in the Jhelum District Sayyeds are themselves governed by custom. Thirdly, he held that the reference to the Muslim Personal Law (Shariat) Applica?tion Act, 1937, was misconceived as section 2 of that Act was clearly confined in its operation to intestate succession. The suit property, it was pointed out, was not shown to be ancestral in Mst. Nur Jan's case. On the contrary, it was shown to have been acquired by her on the 11th May 1932, by means of an exchange from her husband, Fateh Shah, the transaction being evidenced by the deed, Exhibit P. 2. There was no indication that the property which she had given in exchange had come to her from her father. According to the Riwaj‑i‑am of Jhelum District, Ghakhars have full powers to bequeath the whole of their non‑ancestral property even in the presence of their male issue. The learned judge further referred to the fact that Jahandad lambardar of Pira Gheb, who had appeared as D. NV. 5 in the case, was himself a Ghakhar by tribe, thus showing that the Ghakhar community had a powerful position among the land?owning tribes of the District. The main consideration which seems to have influenced the learned Judge in arriving at the conclusion that he did was that Ghakhar was one of the dominant agricul?tural tribes of the Jhelum District and the fact that it had not been shown that Mst. Nur Jan's family had altogether drifted away from agriculture as its main occupation. We have been taken through the record of evidence in this case by learned counsel. The point seems to have been missed in the Courts below that Nathe Khan, the father of Mst. Nur Jan, was not the original resident of Jhelum District at all. The state?ment of Sardar Khan appellant as his own witness in the trial Court is to the effect that Nathe Khan belonged to Gujar Khan Tahsil of the Rawalpindi District. He seems to have shifted some 20 or 25 years ago to Pira Gheb in Jhelum, where he worked as an ordinary labourer. Ghulam Ghaus, the legatee when questioned on the point, professed ignorance as to the place from which Nathe Khan had originally come. There is no doubt that he was a Ghakhar by tribe, but there is not an iota of evidence on the record to suggest that he or his family had anything to do with agriculture at any time, or that the family was‑ residing in any village of Gujar Khan Tahsil. It is clear that, if the family migrated from Rawalpindi District and was governed by custom, they would carry the _Rawalpindi custom with them and' the Jhelum customary rules would not apply to them. One of the brothers‑in?-law of Mst. Nur Jan was described as a mistri and the other as a fruit merchant. There is no indication that any member of her family had ever pursued agriculture. In these circumstances, it is difficult to hold merely on the basis of the fact that Mst. Nur Jan was a Ghakhar by tribe, which is a notified agricultural tribe in the Rawalpindi District, that her family was governed by custom rather than by Muslim Law in matters of alienation. It is well‑settled that under the provisions of section 5 of the Punjab Laws Act, the onus lies upon the person asserting that custom should be the rule of decision in regard to a particular matter, to prove that this is so and further to establish what that particular custom is. There is no presumption created by this section in favour of custom, The leading decision on this point is that of Robertson, J. in Daya Rain v. Sohel Singh, (110 P. R. 1906 F. B.). The dictum of Robertson, J. was approved of, in Abdul Hussain Khan v. Bibi Sona Dero, ( (1918) I. L. R. 45 Cal. 450) by their Lordships of the Privy Council and again in Muhammad Jan v. Raft‑ud‑Din, (Pak. L. R. (1949) Lah. 821). Mr. Yaqub Ali Khan on behalf of the respondents referred as to Mst. Vaishno Ditti v. Mst. Rameshri, (A. I. R. 1928 P. C. 294) and tried to argue that the observations made by their Lordships at pages 298 and 299 of this authority, should lead to the inference that there was an initial presumption in favour of the application of custom by virtue of the provisions of section 5 of the Punjab Laws Act. The passage relied upon by learned‑ counsel may be reproduced in extenso:‑ " Now it has been laid down by Robertson, J. in Daya Ram v. Sohel Singh, in a passage approved by this Board in‑Abdul Hussain Khan v. Bibi Sona Dero, under the corresponding section 5, Punjab Laws Apt, 1872, that that section raised no presumption that parties are to be governed by custom rather than by their personal law, and that the personal law of the parties must be applied unless the custom is proved. It may seem at first sight that this view of the section gives no effect to clause (a) which requires the succession to be governed by any custom applicable to the parties concerned and that the law would be the same if this clause had been omitted. In a sense, this may be so, but their Lordship are of opinion that in putting custom in the fore front as the rule of succession, whilst leaving the particular custom to be established as it necessarily must be, the Legislature intended to recognise the fact that in this part of India inheritance and the other matters mentioned in the section are largely regulated by a variety of customs which depart from the ordinary rules of Hindu and Muhammadan Law." In our opinion, this passage is not susceptible of the interpretation sought to be placed on it by Mr. Yaqub Ali Khan. Their Lord?ships appear to have been merely stressing the fact that in this part of the country, generally speaking, matters of inheritance and other matters mentioned in section 5, were largely regulated by custom. The latest authority of the Privy Council reported in Pak. L. R. (1949) Lab. 821, which re‑affirms the previous interpre?tation of section 5, as set out in Abdul Hussain Khan v. Bibi Sona Dero, should set the matter at rest. The position then is that it was for the respondent to establish that the rule of decision was custom in the present case and we find that he has placed very meagre material on the file in support of that allegation which therefore, remains unsubstantiated. In Mst. Bashiran v. Muhammad Zahur (I. L. R. 13 Lah. 119), it was laid down that the mere fact that the deceased, a Sub‑Inspector of Police, residing in Ambala Cantonment, was an Arain, in the absence of proof that the family ever formed part of a village community or that the members of the family ever followed agriculture as a profession, was insufficient to estab?lish that they followed custom and not Muhammadan Law. A similar view was taken by another Division Bench of this Court in Mst. Sharifa Begam v. Court of Wards (A. I. R. 1940 Lah. 475). Reference may also be made to Barkat Ullah v. Zulfiqar Ali Shah (Pak. L. R. (1949) Lah. 679) wherein Cornelius and Kayani, JJ. held that, though Bukhari Sayyads in the Lahore District were a notified agricultural tribe and had been consulted at the time of the compilation of the latest Riwaj‑i‑am, yet they were not governed by custom but by their personal law because they did not form a compact community and made their liveli?hood by trade and service. A presumption in favour of restricted power of alienation of ancestral immovable property was not raised in Feroze Din v. Hassan Din (A. I. R. 1938 Lah. 107'), although the parties belonged to an agricultural tribe, on the grounds that they were not members of a village community, had drifted away from agriculture as their main occupation and had settled down for good to urban life: Our attention was invited by Mr. Yaqub Ali Khan to Kunwar Dharu Indar Pal Singh v. Firm Badri Das Sohan Lal (A. I. R. 1943 Lah. 281). Learned counsel particularly relied on headnote (e) of that ruling, which reads as follows:‑-- ?Where then alienor is a member of a recognized agricultural tribe, his power of disposition is generally restricted. The initial presumption of restriction continues even if the subject of sale is urban immovable property. The general presumption of the continuance of restriction comes in irrespective of the nature of the property inherited by him. The presumption may be light and the onus may be easily discharged, but, the initial presumption will always remain in favour of the restricted power of alienation whatever the property may be and wherever it is situated. The initial onus would therefore lie on the alienee." But a reference to the body of the judgment would make it clear that the facts were different in that case. It was not con?tested in that case that the property owned by the alienor in the ancestral village was to be governed in matters of alienation by custom. The question was whether property owned by the alienor in an urban area and not acquired from the proceeds of the agricultural property, would be governed by similar customary rules or not and whether the initial presumption in favour of its being so governed could be raised or not That case is, therefore, easily distinguishable on the facts from the present case and lends no assistance to the argument of Mr. Yaqub Ali Khan that an initial presumption should be raised in favour of custom, on the basis of the person concerned belonging to a recognized agricultural tribe alone. In Partab Singh v. Mothu (96 I. C. 998), Campbell, J. formulated some twelve questions for determining whether a tribe followed custom or personal law. None of the tests laid down in that authority appears to have been fulfilled in the pre?sent case, apart from the fact that Mst. Nur Jan belonged to a predominantly agricultural tribe with all respect to the opinion of the learned judge in Chambers, we consider that the facts established in the present case did not warrant the raising of a presumption that the family of Mst. Nur Jan was governed by custom in matters of alienation. At no time was it proved that her family ever lived in a village community or was connected with agriculture in their home district of Rawalpindi. Members of her family, on the contrary, are said to have been following urban pursuits. There was no evidence on the file even to suggest that the residents of Pira Gheb constituted a compact village community. The 'only statement made with regard to Mst. Nur Jan following custom, occurs in the statement of Muhammad Nazir (D.W.5), who asserted that she was a Ghakhar following custom in matters of succession. Even if this were assumed to be a fact, on the basis of this solitary statement, apart from the interested testimony of Ghulam Ghaus respondent, it would not prove that custom was to be the rule of decision in matters of alienation also. As has been said, custom cannot be extended by logical process. The result is that in matters of alienation, which would include testamentary disposition of property, Mst. Nur Jan must be held to be governed by Muslim Law. The will, she made, therefore, would be ineffective, except to the extent of one third of her property. No other point was argued in this appeal which must be allowed in 'consequence of the above discussion. We, therefore, set aside' the order passed by the learned Single judge and restore that of the trial Court. It is agreed before us that Mst. Sajjada Begum was entitled only to one‑sixth share in the property she claimed. In view of the circumstances of the case, we would leave the parties to bear their own costs in this Court and the Courts below. K. M. A. ???????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.