P (PLP)

Ex parte, Respondents. Sir John Beaumont.--‑These are consolidated appeals from two judgments and decrees of the High Court of ..Judicature, Lahore, dated respectively 4th November 19‑13, which set aside two judgments and decrees of the Court of the District Judge, Attock District, at Campbellpur, dated 28th April 1911, affirming two judgments and decrees of the Court of the Subordinate judge, 1st Class at Campbellpur, dated 12th December 1940. The case raises the question whether the Qureshis, a Muhammadan tribe in the Punjab, of the village Paur Miana, are precluded by custom from alienating' ancestral property except for necessity or with requisite consents. The property was owned by two brothers, Abdulla and Ghias‑ud‑Din, and it is conceded that in their hands the property in suit was ancestral property. On 26th August 1924, Abdulla and Ghias‑ud‑Din sold part of the lands in suit to the appellants, Mohammad Jan and Shera, for Rs. 1,800 by a registered sale deed, and on 29th May 1938, they sold the remainder of the lands in suit to the appellant Mohammad Jan for Rs.

60. Sub sequently Abdulla, died. On 1st March 1940, the respondent Mumtaz Hussain who was a son of Ghias‑ud‑Din, commenced the first suit from which these appeals arise in the Court of the Senior Subordinate judge at Campbellpur, claiming declaratory decree that the sale of the lands on 26th August 1924, was without consideration and valid necessity and was ineffectual null and void. On 30th March 1940, the respondents, Rafi-ud‑Din and Manzur Hussain, who were the sons of Abdulla, commenced the second suit from which these appeals arise in the same Court claiming a decree for possession of half of the lands so sold as aforesaid, representing their father's share. The learned Subordinate Judge held that it bad not been proved that the parties were governed by custom and dismissed the suit. On appeal the, District judge took the same view In a second appeal to the High Court the learned judges held that it was proved that the parties were governed by custom which restricted the free alienation of ancestral property, and they passed a decree in favour of the plaintiffs subject to repayment to the purchasers of so much of the consideration as they held to have been justified by necessity. From this decision special leave to appeal to His Majesty in Council was granted by the Board. It was at one tune held by the Courts in the Punjab that the effect of S. 5, Punjab Laws Act 1872, was to make custom the primary law of the Punjab in relation to matters specified in that section and to cast upon anyone alleging that he was governed by personal law the burden of so proving. But in a Full Bench decision of the Punjab Chief Court, reported in the Punjab Records vol. 41, p. 390, this view was dissented from and in the judgment of Robertson J., it was laid down that it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is, and that there is no presumption created by the section of the Act in question in favour of custom. The principle of this decision was expressly approved by this Board in Abdul Hussain Khan v. Bibi Sona Dero, 45 I. A., p. 10 where the material passage of the judgment of Robertson J , was quoted in extenso. It must, therefore, be accepted that in the Punjab the burden lies upon those who assert that they are governed by custom to prove the fact, and, to establish the particular custom, and if such evidence is not available the parties are governed by their personal law, which: in the present, case is the Muhammadan Law. The respondents did not appear upon this appeal and their Lordships have; therefore, not had the advantage of any argument in support of the judgment appealed from. Counsel for the appellants challenged the judgment on the ground that the learned. Judges had ignored the rule above‑mentioned, arid had held that the presumption was in favour of the parties being governed by custom, relying for this conclusion upon Para. 59 of Rattigan's Digest of Customary Law in the Punjab, which lays down that ancestral immoveable property is ordinarily inalienable except for necessity or with the consent of male descendants, or in the case of a sonless proprietor, of his male collatera's. It is said that, whilst Rattigan's Digest of Customary Law is a recognized authority upon the character of customs in the Punjab, it has no ap plication until the parties are proved to be governed by custom in relation to the matter in suit, and a question then arises as to the scope of the particular custom, and that the High Court misapplied Para.

59. It must be confessed that there are passages in the judg ment of the High Court which lend support to this criticism, but their Lordships are disposed to think that this is not the true basis of the judgment. The learned judges must have been very familiar with the rule established in Abdul Hussain Khan v. Bibi Sona Dero (45 I. A. 10); and they probably took its existence for granted. Their Lordships think that the view the learned judges took was that entries in the Riwaj‑i-am established that Qureshis of the district in question were governed by custom, and that in that situation Para. 59 of. Rattigan's Digest was sufficient to establish that the custom precluded unrestricted alienation of ancestral land. Entries in Riwaj‑i‑am are always regarded, as of great importance in establishing custom, and it is important to notice the entries on which the High Court relied in the present case. The entries are Exhibits P. 20, P 21 and P. 22, which contain extracts from the Riwaj‑i‑am of Rawalpindi District at the time of the second settlement in 1884. In Exhibit P. 20 the question put was " can a proprietor of the Qureshis was " A proprietor having no male issue is not competent to make a gift,"' Exhibit P. 21 dealt with the interest which daughters took in their fathers estate. In Exhibit P. 22 the question was is there any distinction between ancestral and, acquired property as regards the power of making gift?" and the answer of the Qureshis was a proprietor can make a gift of his self‑acquired property. He cannot Make a gift of ancestral property, without the; consent, of his sons." These entries do establish that the Qureshis of Rawallpindi District (which formerly included the Attock District) were to some extent governed by custom 1884. If this had not been so. it would have been simple to answer all the questions by saying that Qureshis were not governed by custom. Further, the subject matter of the questions in P. 20 and P. 22 was g‑ft, which is a form of alienation. There is, however, a big jump from a custom which restricts gifts to one which restricts alienatiors for value. Unlike the common law, customs do not grow and develop to meet the changing needs of society. As was well pointed out by Tek Chand J. in the case of Muharram Ali v. Barkat Ali, 12 Lan. 286, custom cannot be extended by logical process, it can only, be established by evidence. If the contention be that a custom existing in 1834 against a proprietor making a gift of ancestral property, without the consent of his male issue. had developed by 1940 into custom extending such restriction to alienations for value the extension should have been proved by evidence. There is no such evidence. There are no instances on the record of any alienations for value by members, of this community having been challenged. As the learned Subordinate Judge noted, evidence was given of many such alienations which had not been challenged though, as he justly observed, it is possible, if improbable that all those emotions wire supported by necessity. However that may be, in the absence of any evidence to, prove the existence of a custom against alienating; an extra property for value their Lordships are not prepared to hold that such a custom exists. For these reasons their Lordships will humbly advise His Majesty that this appeal allowed, that the two decrees of the High Court of Lahore, dated 4th November 1943; be set aside, that the two decrees of the District Judge, dated 28th April 1941, be restored, and that the Costs of the High Court be paid by those of the parties who were appellants in those appeals. The respondents must pay the costs of this appeal. A. H. Appeal allowed. Solicitors for Appellants‑

Hy. S. G. Polak and Co.