P L D 1962 (W (PLP)

MASUD AHMED, J.‑The following pedigree‑table, which has been taken from the amended plaint, dated the 2nd July 1954, and which shows the relationship of the parties to this litigation, will be helpful in understanding the nature of dispute between them :‑ Ahmadyar Khan = Mst. Bhagan alias Maryam (defendant No. 2). _________________________________|_______________________________ | | | | Mohd. Akram Mst. Shamim Mst. Asia Mst. Fazilat ┐ Khan Akhtar | (defendant (defendant (defendant (defendant | No. l). No. 5). No. 4). No. 3). | _____________________________________________________ ____________| | | | Abdul Ghafoor Abdul Qadir Muzaffar Khan (Plaintiff No.2), (Plaintiff No. 1), | ______________________________| __________________|__________ | | Nur‑ul‑Absar Muhammad Ishaq. Ahmadyar Khan deceased, a Lashari Baloch of village Bama Bala, Tehsil Okara, father of Abdul Qadir and Abdul Ghafoor respondents, and Muhammad Akram Khan deceased appellant, owned about 20 squares of land, about 9 squares in village Bama Bala and the rest in some other villages in the same Tehsil. He had four sons, Abdul Qadir and Muzaffar Khan deceased, father of Muhammad Ishaq and Nur‑ul‑Absar, from his first wife, Abdul Ghafoor alias Abdul AN, respondent frown his second wife, and Muhammad Akram Khan, deceased appellant, from his third wife, Mst. Bhagan alias Maryam, appellant. He also had three daughters Mst. Fazilat, Mst. Asia and Mst. Shamim Akhtar, from his third wife. In the year 1944, by means of two gift deeds, he transferred 998 kanals of land, in favour of his youngest son‑1 Muhammad Akram and two squares of land in favour of his third wife, Mst. Bhagan alias Maryam. Abdul Qadir and Abdul Ghafoor respondents filed suits to challenge the alienations and these cases were decided, finally, by a Division Bench of the High Court on the 9th June 1948. The gift made in favour of Muhammad Akram was held to be inoperative, while that made m favour of Mst. Bhagan was upheld.

2. After the decision of these cases, Ahmad Yar Khan executed another gift deed on the 7th May 1951, (Exh. D. 10) in favour of his youngest son, Muhammad Akram Khan, in respect of 407 kanals of agricultural land and some urban property. The greater part of the land so transferred, in favour of Muhammad Akram Khan, was the same land which was the subject‑matter of the previous suit, but some other land was also included in the second gift deed. Ahmadyar Khan died on the 19th March 1952, and about a year afterwards, namely, on the 21st July 1953, Abdul Qadir and Abdul Ghafoor respondents filed a suit to challenge the gift made in favour of Muhammad Akram Khan. The suit, as originally filed was for the grant of a declaration, but subsequently, the plaint was amended and these respondents prayed that a decree for possession, to the extent of 7/18th share of the land transferred to Muhammad Akram Khan be granted to them. The gift with regard to the house property was, however, not challenged by them. The main grounds of attack of these res pondents were that the land in dispute was ancestral property, that their father was governed by the rules of customary law and that under those rules he was not competent to make a gift of any property in favour of one of his sons. They also pleaded that the previous decision given by the High Court operated as res judicata and, in the presence of the finding given in that case, no fresh gift could be made by their father and that, in any case, he had no power to make a second gift with regard to the land which was included in the first gift deed. The defendants in this case were Muhammad Akram Khan donee, his mother Mst. Bhagan, his three sisters, Mst. Fazilat, Mst. Asia and Mst. Shamim Akhtar, and the two sons of Muzaffar Khan deceased, namely, Muhammad Ishaq and Nur‑ul‑Absar. In the amended plaint the names of the two sons of Muzaffar Khan were omitted from the list of defendants.

3. The suit was contested by all the defendants and it was contended by them that Ahmadyar Khan deceased was competent to make the gift in dispute and that the previous finding given by the High Court did not operate as res judicata. The ancestral nature of the land in dispute was not admitted. It was also pleaded that as the gift in question had been made after the Punjab Muslim Personal Law (Shariat) Application Act, 1948, had come into force, it was valid, that Ahmadyar Khan having given separate land to his other sons, for maintenance, and having provided them with houses for their residence, they could not object to the gift made in favour of Muhammad Akram Khan and that as they has not objected to a gift made in favour of the two sons of Muzaffar Khan, namely, Muhammad Ishaq and Nur‑ul‑Absar, they were estopped from challenging the validity of this gift. A number of preliminary objections were also raised by these defendants. The trial Court, after disposing of those preliminary objections, framed the following issues on the merits of the case :‑ (1) Whether the gift, dated 23rd June 1944, had become null and void as between the donor and the donee by virtue of the order of the High Court, dated the 9th June 1948, or whether the donor was competent to treat it as a nullity ? (2) If issue No. 1 is found in the negative, whether the donor was competent to make a fresh gift of the land included in the previous gift ? (3) If issues Nos. 1 and 2 are found in the negative, whether the order of the High Court, dated the 9th June 1948, did not amount to res judicata to the extent of the land which was included in the previous gift ? (4) Which of the land now included in the gift, dated the 7th May 1951, was not included in the previous gift, dated the 23rd June 1944, and whether the gift could be upheld to the extent of this land ? (5) Whether Ahmadyar Khan was competent under the custom to make the gift, dated the 7th May 1951 ? (6) Whether the said gift was valid owing to the coming into force of the Shariat Application Act of 1948 ? (7) Whether Ahmadyar Khan, the donor, bad given any separate land to the plaintiffs for maintenance or had provided them with houses or had conferred upon them any other benefit and the plaintiffs were, therefore, not entitled to object to the validity of the gift in dispute ? (8) Whether the plaintiffs had accepted the gift in favour of Muhammad Ishaq and Nur‑ul‑Absar as valid and were, there fore, not entitled to object to the gift in dispute ? (9) Whether Muhammad Ishaq and Nur‑ul‑Absar were neces sary parties to the suit ? (10) Whether the suit had not been correctly valued ? (11) Relief.

4. On the first two issues, the finding of the trial Court was that, after the decision of the previous suit, the land in question continued to remain the property of the donee and, therefore, Ahmadyar Khan was not competent to make a second gift with regard to the same property. On issue No. 3 it was held that the findings given in the previous case operated as res judicata, so far as the land included in the previous gift deed was concerned. On issue No. 4 it was found that the whole of the land which was the subject‑matter of the second gift deed, excepting khasra Nos. 2132, 2139, 2303/2140/1 and 2143, was included in the previous gift deed. On Issue No. 5, the Court found that in accordance with the riwja‑i‑am applicable to the parties Ahmadyar Khan was com petent to make a gift of a small portion of his property. The finding on the 6th issue was that the gift having been made after the coming into force of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, it was governed by the provisions of that Act, but in view of the finding given on issue No. 5, the matter was not discussed any further. On issue No. 7 the Court found that Ahmadyar Khan had given some land and other property to his other sons, but this did not estop the respondents from challenging the validity of the gift made in favour of Muhammad Akram. The finding on the 8th issue was that Ahmadyar Khan had made a gift of some property in favour of Muhammad Ishaq and Nur‑ul‑Absar, two of his grandsons, but that that gift did not stand in the way of the present suit. Issues Nos. 9 and 10, which were not seriously pressed, were found against the respondents. As a result of these findings, the suit with regard to 7/18th share of the land, except khasra Nos. 2132, 2139, 2303/2140/ 1 and 2143, was decreed by the trial Court. It is against this decree and judgment that the present appeal was filed by all the five defendants, namely, Muhammad Akram Khan, his mother Mst. Bhagan, and his sisters, Mst Fazilat, Mst. Asia and Mst. Shamim Akhtar. Muhammad Akram Khan was murdered after the filing of the appeal and, in his place, the names of his legal representatives were substituted.

5. The appellants, in their written statements, had not admitted the ancestral nature of the land in dispute, but no issue, on this point, was framed by the trial Court, nor was any finding given thereon. In the previous suit the ancestral nature of the land was admitted during arguments in the High Court and, probably, for' this reason the point was not raised before us also. The learned counsel for the appellants contested the findings of the trial Court only on issues Nos. 1 to 3, 5, 6 and 8 and therefore, only the following points need be discussed: ‑ (i) Had the previous gift made in favour of Muhammad Akram Khan by means of the gift deed, dated the 23rd June 1944, been revoked and could Ahmadyar Khan execute a fresh gift deed with regard to the property included in the first gift deed ? (ii) Did not the finding given in the previous case operate as res judicata ? (iii) Was Ahmadyar Khan deceased competent to make a gift of the land in dispute ? (iv) Were the respondents estopped from suing on account of failure on their part to challenge the gift made in favour of Muhammad Ishaq and Nur‑ul‑Absar, the two sons of their brother, Muzaffar Khan deceased ? 5‑A. With regard to the first point, the finding of the trial Court was that "the effect of the declaratory decrees under the Customary law is to safeguard the Interests of the reversioners and these decrees have never been interpreted to mean as annulling the transaction between the parties. The Court further held that there was no force in the argument that on account of the judgment of the High Court, dated the 9th June 1948, the gift had become null and void between the donor and the donee, No doubt, merely as a result of the decree passed by the High Court in the previous case, the gift made in favour of Muhammad Akram Khan could not be considered tea have been revoked and the effect of that decree only was that on the death of the donor the land, which had been gifted to Muhammad Akram Khan, would have become available for distribution amongst the reversioners. There was, how ever, nothing to prevent the donee from surrendering the gift to the donor and this is what appears to have been contemplated by the parties in the present case. Our attention was drawn to the pro visions of section 126 of the Transfer of Property Act, under which the donor and the donee can agree that, on the happening of any specified event, which does not depend on the will of the donor, a gift may be suspended or revoked. The same provision of lays down that a gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Our attention was also drawn to the provisions of section 62 of the Contract Act under which the parties to a contract can agree to substitute a new contract for it, or to rescind or alter the original contract which need not, there fore, he performed. At the time of the second gift Muhammad Akram Khan was a minor and as his father Ahmadyar Khan was his natural guardian, he could act on his behalf and agree to the B rescission or revocation of the gift. I am, therefore, of opinion that the first gift was revoked when the second gift deed was executed and, therefore, the finding of the trial Court on the first two issues is not correct.

6. So far as the second‑mentioned point is concerned, the learned counsel for the appellants contended, firstly, that as the respondents' second suit was based on their title as sons and as their first suit was based on their title as reversioners, the bar created by section 11 of the Civil Procedure Code, did not apply and, secondly, that the finding given in the previous case, being on a point of law and that finding being erroneous, it did not operate as res judicata. To support the first‑mentioned contention, the learned counsel referred to a case of the Lahore High Court, reported as Qasim All v. Puran Mal and others (1929 I C 117), to a case of the Allahabad High Court reported as Taj Singh and others v. Chaudhari Hannu Prasad and others (A I R 1940 All. 433.) and to Mahadevappa Bomappa Bhusaraddi v. Dharamppa Sanna Ningappa Bhusaraddi and others (1942 I C 203), decided by the Bombay High Court.

7. In the first‑mentioned case, which was decided by a Division Bench, it was held that before a judgment can be res judicata it is necessary that the parties to the two suits must have been litigating under the same title and that where the previous suit was brought by the plaintiffs as expectant rever sionary heirs and the subsequent as owners, the plaintiffs were not litigating under the same title. The facts of this case were that one Ala mortgaged his land, with possession, to the defendants' predecessors‑in‑interest, for a sum of Rs. 2,000, in the year 1892. Four years afterwards, he created another mortgage in favour of the prior mortgagees, for a sum of Rs.

800. The sons of Ala, two of whom were minors, brought a suit, in the year 1899, for seeking the usual declaration that the mortgages were without consideration and lawful necessity and, therefore, would not affect their reversionary rights after the death of their father. The case, ultimately, came to the Chief Court of the Punjab and that Court, by means of its judgment, dated the 3rd August 1903, held that the consideration of Rs. 2,000 was valid, but the conditions of the mortgage were onerous and had been extorted from Ala on account of his peculiar and difficult position. After the death of Ala, which took place in the year 1911, one of his sons, Qasim Ali, brought a suit for possession of that land by redemption. The trial Court granted a decree on payment of a sum of Rs. 9,506‑11‑0 but this amount was increased to Rs. 48,318 by the District Judge. When the matter came up before the Chief Court, it was argued on behalf of Qasim Ali that the decree and judgment of the Chief Court of the year 1903 operated as res judicata and, therefore, the case be remanded for preparing the accounts in accordance with the principles laid down in that judgment. The Court held that the previous suit was instituted by Qasim Ali and his brothers as reversioners of their father, Ala, while the second suit was filed by them as owners of that land, and, therefore, the title of the plaintiffs in the two suits being different, the previous decision did not operate as res judicata. The reasons given by the Court in coming to the conclusion that the plaintiffs, in the second suit, were litigating under a different title are not very convincing but even If it be held that the views expressed in this case are correct, as the circumstances of the case were somewhat unusual, that decision cannot, in my opinion, be used as a precedent for the decision of such cases.

8. The facts of the Allahabad case were entirely different and the views expressed in it are of no help to the appellants. In that case, a suit was brought during the lifetime of a Hindu female by a reversioner to have an alienation declared to be void and that suit was dismissed on the ground of limitation. After the death of the widow the reversioners brought a suit for pos session of that very property and as a fresh cause of action had accrued to the reversioners, it was held that the decision of the first suit did not bar the second suit. In the Bombay case, after the decision of the first suit and before the second suit was filed, there was a change of law and for this reason, it was held that the plaintiffs, in the second suit, did not litigate under the same title and, therefore, the decision of the previous suit did not operate as res judicata.

9. In the present case, the respondents' father was alive at the time when they brought the previous suit and that suit was filed In their capacity as sons of their father. The grounds, on which the gift was attacked, were the same as have been taken up In the present suit, namely, that the property in dispute was ancestral and under the customary law applicable to the parties, the respondents' father had no power to make a gift in favour of one of his sons. The only difference in the previous and the present suits Is that the respondents' father having died, they had now asked for a decree for possession of their share of the property. In all other respects the two suits are identical in nature and as they were filed In the same capacity, the bar created by section 11 of the Civil Procedure Code would, in our opinion, apply to this case, unless it can be held that the decision given in the previous case was on a point of law only and that that decision was erroneous.

10. To support the second‑mentioned contention the learned counsel for the appellants referred to Lala Moti Sagar v. Dhanna Mal and others (A I R 1922 Lah. 329), Ahmad Khan v. Jawahar Singh and others (A I R 1923 Lah. 16) and Taliamand and another v. Muhammad Din and others (A I R 1930 Lah. 907). In the last‑mentioned case, which was decided by a Division Bench, it was held that where a decision proceeds on a certain view of law and that view is found to be erroneous, it cannot have the force of res judicata, In a subsequent proceeding, for a different relief, on the principle that a decision cannot alter the law of the land. Almost similar views have been expressed in other two cases referred to above. The correctness of these propositions was not disputed by the learned counsel for the respondents, but he contended that the decision given in the previous suit was not on a pure question of law, nor was that decision erroneous and, hence, that would have the force of res judicata, so far as the present suit Is concerned. He referred, in this connection, to a case of the Allahabad High Court reported as Ganga v. Mahmud un‑Nissa Begum (A I R 1925 All. 761) and also to Muazam Shah v. Alam Khan and others (44 P R 1908). In the second‑mentioned case it was held that the judgment in the previous suit being a decision on a mixed question of law and facts , was no bar to the second suit. In the Allahabad case somewhat similar views have been expressed and it was held that a decision on a point of law does not operate as res judicata, if the cause of action in the subsequent suit was different from that in the former suit.

11. The questions, which require determination, are whether the decision in the previous suit was on a pure question of law, and whether that decision was erroneous, and, therefore, does not operate as res judicata, so far as the present suit is concerned. In my opinion, the findings on both these points should be given against the appellants. In deciding whether a certain custom exists, and whether that custom binds the parties and under it a certain alienation can be made, cannot be termed to be a pure question of law, because for deciding it the Court will have to go into many disputed questions of fact. If after going through those facts the Court comes to a certain decision, it cannot be successfully argued that in deciding that question the Court bad decided a pure question of law only.

12. As to question whether the decision of the previous suit was `erroneous', the contention of the learned counsel was that as the entries in the rewaj‑i‑am supported the existence of a custom under which a father could make a gift of ancestral property in favour of one of his sons, the burden of proving that no such custom existed, lay on the opposite side and as the evidence in support of the non‑existence of such a custom was not satisfactory, the High Court, in the previous suit, could not have come to a conclusion that such a custom did not exist and, hence, the finding of the Court was erroneous. A reference to the judgment of the High Court given in the previous case, which is printed at pages 1 to 6 of the paper book, would show that two entries with regard to the existence, or non‑existence, of such a custom were produced before that Court. The same entries have been produced in the present case, as Exhs. D. 12 and P. 5 and have been printed at pages 100 and 108, respectively, of the paper book. It would be useful to reproduce the questions and answers recorded in these two entries. The first entry (Exh. D. 12), which has been taken from the riwaj‑i‑am of the year 1872; reads as follows :‑ "Q. If a proprietor has a number of sons from the same lawfully‑wedded wife, will all of them share equally or whether their shares would be unequal ? ' A. The share of each one would be equal and no one will be able to get any larger or smaller share, but the father has a right to reduce or increase the share. If the wife of the pro prietor is alive, the sons will be responsible for maintaining her. If they do not do so, she will be entitled to a share equal to that of the sons. Instance.‑From the pedigree‑table of all the villages it appears that everyone has received an equal share and if there is any increase or decrease in the share that was due to some reason. Exemption.‑Zahid son of Akbar of village Bama Bala was given a smaller share." It may be pointed out that the question put was not with regard to sons of a proprietor from different wives. It may also be pointed out that according to the instance cited all the sons had been given equal shares, except in the case of one Zahid, who was given a smaller share, but the reason is not explained.

13. The second entry (Exh. P. 5) which was also taken from the riwaj‑i‑am, prepared in the year 1872, and a translation of which appears at page 4 of the paper book and also in the judgment of the previous case, reads as follows: ‑ "Q. Is a proprietor considered to have equal rights in matter of alienation of ancestral and self‑acquired property or is there any distinction ? Can a proprietor effect alienation in favour of a stranger regardless of collaterals or not ? Can he divide his property amongst his several heirs to the exclusion of any one of them or not ? A. He is considered to have equal rights in respect of ancestral and self‑acquired property. Partition shall be effected according to the rule of succession. But a proprietor is not competent to make unequal distribution of his estate, nor can he totally deprive an heir of inheritance. A proprietor is empowered to alienate property by sale or mortgage in favour of persons having right of pre‑emption in order of priority and if the co‑sharers and proprietors of the village make a refusal then he is competent to sell or mortgage to other persons. A proprietor can also give a part of his estate in charity." "Instance.‑Messrs Sardara and Tahir, sons of Nama, besides the land inherited by them in villages Majra and Wazirpur, acquired some other ancestral land, from which they gave a share to the descendants of Gohar and Shahdat, by their own free will. The rest of the land was inherited by the descendants of Sardara and Tahir equally according to the ancestral shares."

14. The instance cited In this case is not to the point, but according to the above‑mentioned answer a proprietor is not competent to make unequal distribution of his estate, whether the property be ancestral or self‑acquired. The point which requires to be noted is that, while the above‑mentioned answer refers to the powers of a "proprietor" the previous answer refers to the powers of a "father." In spite of this difference, the contradic tory nature of the two answers is quite obvious. At one place it is stated that all the sons of a "proprietor" are entitled to equal share in the estate, although the "father" can increase or decrease a share of one of the sons from the same wife, while the second answer negatives that power and records clearly that a "proprietor" is not competent to make unequal distribution of his estate in favour of his heirs. Moreover, the first‑mentioned question and answer relate to the father's power to distribute his estate amongst his sons from one wife, but nothing is stated about his right to distribute the estate unequally amongst his sons from different wives. Considering the unsatisfactory and contradictory nature of the two answers given, the Court in the previous suit, in my opinion, acted rightly in ignoring the entries in the riwaj‑i‑am and in deciding the case on the rest of the evidence. The evidence produced in that case, apart from these two entries, consisted of the oral statements of the witnesses who deposed to two instances where the alleged right was exercised. One of the instances of un challenged alienation of the ancestral property was of one Sarang, a Lashari Baloch of Okara Tehsil. He had made a gift of one third of his property in favour of his grandson, in the presence of his son who was given the remaining two‑third. The son did not object to the gift and it was admitted that the object of making that gift was to enable the grandson to acquire some land from the Government. After he had been able to achieve that object, the estate was divided equally between that grandson and his brother. The gift having been made with a particular object in view and not being a case of unequal distribution of the estate between sons of the same father, it was rightly held to be not an instance of unrestricted power of transfer of property. The second instance cited before the Court was of Ahmad Yar deceased, father of the respondents, who had purchased some land from one Muhammad Nawaz about 12 or 13 years earlier. As this instance was not of a gift, or transfer, in favour of one of the sons, to the exclusion of the others, and was of the purchase of property by a proprietor, it had no application to the case under consideration and, therefore, was rightly ignored for deciding the disputed question. As there was no satisfactory evidence before the Court about the existence of a custom under which a proprietor could make unequal distribution of his property in favour of his sons and as the entries in the riwaj‑i‑am were con tradictory, the finding of the Court to the effect that no such custom existed, cannot be termed to be erroneous. The two grounds on which the appellants could get out of the bar of res judicata not having been established the finding given in the previous case is binding on them and, in Its presence no other finding could be given by the trial Court, regarding the existence of this custom. I am, therefore, of opinion that the previous decision operated as res judicata.

15. Coming now to the third point, namely, as to whether Ahmadyar Khan deceased was competent to make a gift of the land in dispute, in view of the finding that the previous decision operated as res judicata, it is not necessary to discuss this point at great length. It may, however, be stated that an attempt was made by the appellants to establish that such a custom existed. The appellants besides relying on the two entries in the riwaj‑i‑am referred to above, produced a number of mutation orders to show that in the tribe, to which Ahmadyar Khan belonged, a custom did exist under which proprietor could make a gift of his property, in favour of one of his sons, or distribute his estate unequally between them. This evidence consisted of nine mutation orders, Exhs. D. 1 to D. 8 and D. 11, particulars of which are given below (particulars omitted). All these transactions are of gifts, but only two of them (Exhs. D. 1 and D. 5) are in favour of sons, the first by Ahmadyar Khan deceased in favour of all his four sons and the second by Sarang in favour of his son, Chiragh. The other seven transactions being not in favour of sons they were not relevant for the decision of the present case. So far as the gift made by Ahmadyar Khan (Exh. D. 1) is concerned, a reference to the relevant mutation order, which has been printed at page V of the paper book, would show that Ahmadyar Khan made a gift of the property in favour of all his four sons, who were in existence at that time, one of them, Abdur Rauf Khan, having died afterwards. The gift was made in the year 1927, when Muhammad Akram Khan, his son from the third wife, had not been born and as there was no one else to object to this alienation, this transaction is of no help to the appellants in establishing that a custom existed under which unequal distribu tion of an estate could be made by a father. With regard to the second transaction of gift (Exh. D. 5), it may be stated that the record does not indicate whether the donor, Sarang, had any other son, or not, and whether this gift was objected to by anyone or not. With regard to the remaining seven gifts it may also be pointed out that those gifts were of very small areas of a few acres and even the general custom of the Province permitted the making of such gifts. The instances cited by the appellants are, therefore, of no help to them in establishing the custom in question.

16. The general rule of Customary Law as recorded in paragraph 61 (20) of Rattigan's Digest of Customary Law (Thirteenth Edition) being against the existence of such a custom and the entries in the riwaj‑i‑am being of a contradictory nature it was for the appellants to prove that such a custom existed. As the instances relied upon by them, for reasons stated above, were not such on which a finding could be given in their favour, the trial Court was justified In holding that Ahmadyar Khan deceased could make a gift of a small portion of his property only, but otherwise his powers were limited. The gift in question was made after Punjab Muslim Personal Law (Shariat) Application Act, 1948, had been amended by the Act of 1951, but as the question whether such a gift could be made under that Act was not pressed before us during arguments, it is not necessary to give any determination on it.

17. With regard to the last of the four points mentioned In paragraph 4 of this judgment, namely, whether the respondents were estopped from suing on account of failure on their part to challenge the gift made in favour of Muhammad Ishaq and Nur‑ul‑Absar, it would be necessary to say a few words. Admittedly, that gift was of a small portion of Ahmadyar Khan's property and had been made in favour of the two grandsons, who would not have inherited any part of his estate. When Abdul Qadir respondent appeared as a witness, a question was put to him as to whether such a gift was made and his reply was that the gift, was in fact, made in the year 1950, by their father, but as the two grandsons would not have obtained any share in the estate of their grandfather, he considered the gift to be a valid one. On the basis of this statement of the respondent it was argued that as no objection was taken to the gift made in favour of Muhammad Ishaq and Nur‑ul‑Absar and as the respondents considered that gift to be a valid one, they were estopped from challenging the gift made in favour of Muhammad Akram Khan. The contention is without any force, because the failure on the part of these respondents to challenge another gift of a small part of the property made in favour of their nephews could not take away the right which they possessed of challenging the gift of ancestral property made by their father. The contention was, therefore, rightly overruled by the trial Court.

18. For reasons given above, I am of opinion that this appeal is without any force. I would, therefore, dismiss it with costs. K. M. A. Appeal dismissed.