P L D 1949 Lahore 490 (PLP)

Dr. Qutab‑ud‑Din Ahmad, for Appellant. Muhammad Amin Khan for Respondents. Cornelius, J.‑-- This is a plaintiff's appeal. by one Tai Muhammad a Varaich Jat of village Pupnakha in tahsil and district Gujranwala, whose suit to pre‑empt a sale of land by six Varaich Jats of his village, namely defendants Nos. 1 to 6 who are Sikhs by religion, to certain persons belonging to another village named Hardopur, has been dismissed by the Senior Subordinate Judge of Gujranwala. The sale took place on the 21st February 1942, for an ostensible consideration of Rs. 6,

500. The plaintiff based his claim for pre‑emption on the ground that he was a collateral of the vendors, and this had a preferential right qua the vendees who were residents of a different village and not related to the vendors. Out of the sale price, only Rs. 70 was alleged to be fictitious, but at a later stage it was admitted that the whole of the consideration was genuine. The vendors did not contest the suit. The vendees were Lai, Hayat Muhammad, Nawab Khan, Muhammad Hassan, Muhammad Akbar de fendants and one Jalal who was dead at the time of the suit and was represented by five sons namely Hakim, Sardara, Sharif, Bahawal and Ibrahim, in the plaint as originally instituted. The pleas taken by these persons were that the plaintiff has acquiesced in the sale to them, and in fact had himself brought about the sale transaction, that besides the purchase money appearing from the deed they had been required to bear other appreciable expenses, and that some of the land shown in the sale deed was not in fact sold as regards the plaintiff's claim for pre‑emption, they did not admit his right, and pleaded ignorance regarding his relation ship with the vendors. When the trial was almost over, a petition was filed on behalf of a minor girl Mst. Nazir Begum, daughter of a deceased son of Jalal named Khushi Muhammad, in whose favour mutation of some of Jalal's land had been sanctioned, to be impleaded as a defendant, and this was allowed, whereupon an additional written statement was filed on her behalf, in which for the first time it was categorically stated that the plaintiff was not a collateral of the vendors. Even at this stage, however, no mention was made of the ground which ultimately led to the dismissal of the suit, namely that the collateral relationship was denied because the plaintiff was a Muslim while the vendors were Sikhs. This statement was first made by a witness Nawab appearing for the defendants after the written statement of Mst. Nazir Begum had been filed in cross‑examination, this witness said that the plaintiff was a Muhammadan while the vendors were Sikhs and thus he was not their collateral. Prior to this however statements had been made by two witnesses for the vendees defendants namely Jagat Singh (D W 2) and Jowand Singh (D W 3) both Jats of their village Hadopur, which clearly conceded the existence of collateral relationship, between the vendors and the plaintiff. Jagat Singh said quite clearly. "Tai Muhammad is a collateral of Deva Singh etc., vendors". Jowand Singh said "Tai Muhammad is their eldest brother," meaning eldest brother of the vendors. These statements were made in support of evidence to the effect that the plaintiff had actively participated in the transaction in favour of the vendees and had practically encouraged them to by it, but coming from the mouths of Sikh witnesses, belonging to the same tribe, viz., Jats as the other parties, these admissions must be presumed to have significant. Eventually, the point of waiver was not pressed at the trial and similarly the plea that the land actually sold was less than that specified in the saledeed was abandoned. The vendees' claim to a sum of Rs.126‑6‑0 by way of registration expenses was conceded by the plaintiff. It was found that Mst. Nazir Begum had no claim to any share in the estate of Jalal, in the presence of male lineal descendants of Jalal, and it seems clear enough that this defendant was introduced into the suit merely in order to bring in the plea that owing to the difference of religion Tai Muhammad was not a collateral of the vendors. As regards the right of pre‑emption it was proved by production of a pedigree‑table relating to village Pupnakha that the vendors and Taj Muhammad were descended from a common ancestor Dau, each being a descendant in the twelfth degree of this person. It was argued on behalf of the plaintiff that under custom conversion or change of religion does not operate as a bar to succession, but this argument did not find favour with the learned Senior Subordinate Judge. The Caste Disabilities Removal Act, 1850, was referred to in arguments, and had been relied upon by the plaintiff, but it was held that this statute could not assist the plaintiff as he himself had not changed his religion. After citing and briefly examining a number of authorities the learned Senior Sub‑Judge dismissed the suit. From this order the plaintiff has appealed to this Court. It is not necessary to examine in detail all the authorities cited by the learned Senior Sub‑Judge. The Caste Disabilities Removal Act renders void any such law or usage "as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste". In the case relied upon by the learned Senior Sub‑Judge, Mitar Sen Singh v. Maqbul Hassan Khan, (57 Indian Appeals p.313) a family which was originally Hindu had divided into two branches, though the conversion to Islam of one member. In the fourth generation the survivors of the Muhammadan branch were descendants through a daughter. A member of the uncovered branch used to succeed to the property or the converted branch on then footing that a custom prevailed in the family which excluded females from inheritance. The plaintiff founded his claim upon the Caste Disabilities Removal Act and the well known case Bhagat Singh v. Kallu (I L R 11 All. p. 100.) was cited before their Lordships in support of the plaintiff's claim, that the right of inheritance of the Hindu branch was not affected by reason of the conversion of the founder of the Muslim branch. Against this was cited the narrower view accepted by the Madras High Court, in exemplification of which a single case namely Vaithilinga Odayar v. Ayyathorai Odayar (I L R 40 Mad.1118.) was mentioned by their Lordships as laying down correctly that this section in terms only applies to protect the actual person who, in the relevant circumstances, renounces his religion. Their Lordships proceeded to observe that upon a true construction of the Caste Disabilities Removal Act, it must be held that when once a person has changed his religion and changed his personal law, that law will govern the rights of succession of his children. The circumstances of the present case afford in one respect a parallel to those of Mitar Sen Singh's case (1), inasmuch as the family of the plaintiff and the vendors appear originally to have been exclusively Muslim. An ancestor in the 7th degree of the vendors appears to have been converted to Hinduism, and the religion of this branch was apparently unchanged until the vendors themselves embraced Sikhism. This will appear from the names of the parties as given in the pedigree table Exh. P.

1. Thus, here as in Mitar Sen Singh's case (1), it is a member of the unconverted branch who claims to have a right of collateral succession in respect of the property belonging to the con verted branch. But there is an essential difference between the two cases inasmuch as the condition laid down by their Lordships of the Judicial Committee for the application of the proposition that the law governing succession in the converted branch is different from that applicable to the unconverted branch is absent and that condition is that upon change of religion there should also be change in the personal law applicable to the convert. Here, it is clear that the family belongs to a dominant statutory agricultural tribe, namely the Jats and there is a presumption that these persons follow the ordinary Zamindara custom. As has been pointed out above. Jats of the Sikh persuasion belonging to the village of the vendees, have expressly admitted that Taj Muhammad was a collateral of the vendors, and indeed was regarded as there "eldest brother". The Customary Law of the Gujranwala district and so far as I am aware of every district in the Punjab‑makes no provision for alteration in rights of succession upon conversion among statutory agricultural tribes. I have examined the Customary Law of the Gujranwala district as codified in the last Settlement of 1914, and find that in relation to succession, there is no reference whatsoever to change of religion. In the preface to this volume, the Settlement Officer Sardar Dalip Singh has enumerated 37 tribes by name, who were consulted at the Settlement in relation to their tribal customs and in no single case is there any reference to the religion followed by the tribe, although a great number of them e.g., the Wirkas, the Chimas, the Chatthas, the Gurayas, the Varaichs etc. included both Muslims as well as Hindus and Sikhs. Question 39 relating to succession where there is no son, Ques tion 40 relating to a cognate matter and finally Question 51 relating to the succession of collaterals are all expressed in general terms without differentiation in respect of religion, and in each case, the answers are expressed in similar terms. It would appear to follow that in this respect custom does not draw any distinction between the converted and the un, converted branch of an agnatic family, for it is inconceivable that, if such a distinction were recognised, no enquiry with respect to this matter and no provision relevant thereto should be found in any of the codes of custom which have been formulated for all the districts in the, entire province throughout the long period of British rule, when enquiries in. regard to these matters were held under law at regular intervals. The appellant relied on a judgment of the Punjab Chief Court published as Mahna v. Chand (104 P R 1902.). There the question arose between two branches of a family governed by custom, one being Muslim and the other Hindu, in relation to the property belonging to a third branch which was also Hindu. It was contended that the conversion of the founder of the Muslim branch entailed forfeiture of all rights in the ancestral property ; which his descendants might otherwise have possessed. In favour of the Muslim branch, the benefit of the Caste Disabilities Removal Act was claimed, and the Division Bench expressed the view now overruled by the Privy Council in Mitar Sen Singh's case (1) that there was no reason why the heirs of the apostate who were in no way responsible for his conversion, should ipso facto lose rights which they would otherwise have possessed. A question was also raised before the Division Bench as to the existence of a custom whereby the convert and his heirs lost all their rights to acquire ancestral property and opportunity to adduce evidence in support was sought. On this point, their Lordships stated that it was "perfectly clear from the facts on the record and the conduct of the plaintiffs themselves that no such custom exists" and referred to certain facts proved on the record, namely that earlier the representative of the Muslim branch had sued certain of his Hindu collaterals successfully for a share in the estate of another Hindu collateral, that the lands of the Muslim branch had continued to remain joint with those of their nearest Hindu collaterals, and finally that the plaintiffs, who were Hindus had joined with a member of the Muslim branch in an earlier litigation, to dispute a gift of ancestral property by a remote collateral of theirs. In this case also, a request was made for an opportunity to produce evidence to show that by the custom of the tribe, a convert and his heirs lose all their rights in ancestral property except such as the convert himself held at the time of his conversion: Two opportunities were allowed to the vendees‑respondents for production of such evidence, but they were unable to produce any instance or other evidence in support of such a custom. Another Division Bench decision of the Punjab Chief Court published as Badar Bakhsh v. Mussammat Sahib clan (75 P R 1912.) relates to Muhammadan Rajputs of the Jullundur district, who were governed by Zamindara custom, and is to the effect that the power of a collateral to challenge an alienation is not affected or destroyed simply by the conversion of the alienor to Christianity. In delivering the judgment of the Division Bench, Mr. Justice Rattigan observed that the right of the reversioners was derived from the common ancestor, and not through the alienor, and no unilateral act on the part of the alienor could possibly destroy such a right. On the other side, reliance was placed upon an earlier Division Bench decision of the Punjab Chief Court published as Desu v. Jowala (13 P R 1885.). That decision was given in a suit for pre‑emption, like the present case, and there also the vendor was a Sikh while the plaintiff was a Muslim, his ancestors having been converted from Hinduism several generations earlier. The present plaintiff claims to pre‑empt on the ground of being a collateral under section 15 (b) (thirdly), Punjab Pre emption Act, 1913 ; in that case the claim was based on the ground of relationship. The Bench decided the point as under :‑ "It is impossible to hold that in this case where the families have separated so widely and long ago the plaintiff can with reference to the Wajib‑ul‑arz be rightly called the "ek jaddi" of the vendor". The impression is gained from this observation that if the conversion had taken place only a few generations earlier, the claim of relationship would have been upheld. The expression "ek daddi" can only have reference to a person descended from a common ancestor, and if that condition be satisfied, and if there be no provision in the Customary Law applying to the case which operates to exclude from the agnatic family a branch which ceases to follow the religion of the common ancestor, there would appear to be no valid ground upon which the existence of collateral relationship could be denied. Those conditions are satisfied in the present case, and disagreeing with the view expressed in Desu v. e7owala, (6). I would hold in conformity with the view expressed in the two later decisions of the Punjab Chief Court cited above, that the plaintiff Tai Muhammad has established in this case that he is entitled as a collateral, under the custom applicable to himself and the vendors, to inherit to them, in default of nearer heirs. In this view, the claim for pre‑emption of the sale in suit should have been allowed, and I would accordingly set aside the order of the learned Senior Subordinate judge, and in its place would decree the plaintiff's suit, for possession of the land in suit on payment of the sum of Rs. 6,500 plus Rs. 126‑6‑0 i.e., Rs. 6,626‑6‑

0. This sum shall be deposited in the trial Court within two months of the date of this judgment, failing which the plaintiff's suit shall stand dismissed. In view of the difficulty of the question involved I would leave the parties to bear their own costs throughout. Sir Abdul Rashid, C. J.‑I agree. K.M.A. Appeal accepted.