P L D 1966 (W (PLP)

The learned counsel further relied on the Customary Law of the Rawalpindi District prepared by Mr. Kitchin. In answer to question No. 20 he also reiterated the above custom. He further stated that "in, the presence of male issue the widow has different rights in different tribes." ' At page 34 he has further stated as under:‑ "Gakhars in Kahutta and Gujar Khan are agreed that a widow in the presence of male issue will take the share of a son. In Rawalpindi the reply is that she will receive only maintenance. The general custom, however, appears to be that in all tahsils a widow succeeds along with her sons, but it is not the practice to have her name entered in the revenue papers. In Rawalpindi Tahsil Rajputs state that, although in one or two cases the widow leas taken a share with sons, by custom she takes only maintenance; Gujars, Hindus and Khattars allow the widow only maintenance. In all other tahsils replies by Manhas, Pakhral, Bhatti and Rupial Rajputs, Moghals, Jasgams, Gujars and Brahmans is that the widow succeeds to a share in the presence of male issue. Apparently the custom of all tribes, with the exception of Awans, and to some extent Dhunds in Murree, Gujar Khan and Kahuta Tahsils is to allow a widow a share in presence of male issue. In Rawalpindi Tahsil the custom is doubtful in the case of all tribes, the widow being in many, if not the majority of, cases allowed only maintenance." In the light of the above custom the learned counsel contended that Mst. Karam Noor inherited the property of deceased Shadman Khan for life equally with her grandson; and therefore under the Shariat Act of 1948 the appellant was entitled to share the property according to the Shariat Law. 1n the alternative the learned counsel contended that even if it is found that Mst. Karam Noor only inherited the property in lieu of maintenance then also a person holding the property in that capacity will be considered to be a limited owner under section 3 of the Shariat Act, 1948. He contended that in the said enactment the term "Muslim female as a limited owner" has not been defined and it would be wrong to deduce from this terminology that it was used in the customary sense as against one holding in lieu of maintenance. On the other hand, Mr. Sirajuddin, the learned counsel for the respondent, contended that this plea had not been taken in the Subordinate Courts nor in the grounds of appeal and, therefore, it was not open for the appellant to raise it for the first time at the stage of the second appeal.

7. On the view that I have taken of the matter under consideration it is unnecessary for me to decide the question whether a Muslim female holding the property in lieu of maintenance can be considered to be the Muslim female referred to in section 3 of the Shariat Act, 1948. In my opinion, the, learned subordinate Courts have fallen into an error in holding that Karam Noor, widow of Shadman Khan, inherited his property in lieu of maintenance and not as a limited owner. It must have been noticed that under the general custom prevalent in Rawalpindi District a widow in the presence of a male issue shares for life equally with her sons and other male issues. Both the learned Subordinate Courts have decided the case of the parties on consideration of the fact whether Mst. Karam Noor was a barren widow and therefore have fallen into an error.

8. Mr. Sirajuddin, the learned counsel for the respondent, has contended that under the general custom of the Punjab referred to in para. 16 of Rattigan's Digest of Customary Law. "In presence of male descendants of the deceased his widow is ordinarily only. entitled to suitable maintenance, where such descendant is the issue of the surviving widow or of another wife." The learned counsel contended that in view of this general custom it was necessary for the appellant to displace it by very reliable special custom. The learned counsel referred me to the case of Mst. Channi Bibi v. Ahmad Khan and others (A I R 1924 Lah. 265) in which a Division Bench of the Lahore High Court held that a widow holding portion of husband's land in her name during lifetime of her stepson who holds the other portion should be considered as holding in lieu of maintenance." Raja Said Akber Khan contended that this decision has been overruled in the case of Ahmad Khan and others v. Mst. Channi Bibi (A I R 1925 P C 267) but a perusal of this case would show that the Judicial Committee did not upset the view of the High Court on this .point and dismissed the appeal filed against it.

9. Assuming that there is a general custom of agnatic or collateral succession in default of male issue to the exclusion of female heirs among the agricultural tribes of the Punjab, the rule is admittedly subject to a considerable number of exceptions which are enumerated in Mr. Rattigan's Digest of Customary Law for the Punjab. Much stress on the value of the Riwaj‑i‑am as a record of tribal custom is laid by the learned author. In the case of Beg v. Allahditta and others (AIR 1916 P C 129) the Judicial Committee observed at page 131: "In their Lordships' opinion, the statements contained in the Riwaj‑i‑am form a strong piece of evidence in support of the custom, which it lay upon the plaintiffs to rebut, and this, according to the findings of the Divisional Judges, they failed to do." In the case of Buta and others v. Mst. Farzand Begum (P L D 1952 Lah. 451) Munir, C. J. observed that "The correct position in law as to contents of a Riwaj‑i‑am is that the answer given by the tribes to the questions put by the compiler are merely relevant under section 48 of the Evidence Act as being the opinion, as to the existence of the custom, of persons who would be likely to know of its existence if it existed." His Lordship further observed as under:‑ "Therefore, where section 35 is sought to be made applicable to statements of custom in a Riwaj‑i‑ant so that the custom stated therein may be presumed to exist, the first question that the Court has to determine is what the exact purport of that entry is. If the entry is merely in the form of a reply to a question asked without any comment by the compiler, the presumption is that the compiler whose duty it was to prepare a record of the custom in force, agreed with the answer given; but if the compiler, taking into consideration the reply given and the result of any other investigation made by him, states that the reply does not represent the existing custom and that the prevalent custom is different, the entry must be taken to mean that the custom recorded was as stated by the compiler and not by the persons who were consulted." The value that should be attached to the Riwaj‑i‑am was further considered by the Federal Court of Pakistan in the case of Rustam Ali and others v. Ismail and others (P L D 1956 F C 37). It was held by their Lordships that the general custom prevalent in the province can be rebutted by the Riwaj‑i‑am in a particular district. If in the Riwaj‑i‑am a general custom is accepted that would prevail unless it was rebutted by the persons contesting it.

10. It is in this light that the matter should have been considered by the Courts below. Unfortunately, they have missed the point altogether. It was urged by Mr. Sirajuddin that there is oral evidence produced by the parties and that supports the view that a widow in the presence of male issues or of his sons is not entitled to inherit the property equally with them but only in lieu of maintenance. The oral evidence on this point is very meagre. No instances have been cited by any of the witnesses produced on behalf of the respondent. Therefore no importance can be attached to their statement.

11. It is quite true that a widow ordinarily does not take the share of the inheritance with sons of the deceased, but if there is an unrebutted general custom established by Riwaj‑i‑am in a district that would prevail. Moreover, the fact that Mst. Karam Noor alienated the property not only in the presence of Bashir Ahmad, but to Bashir Ahmad himself clearly shows that she was holding the property not in lieu of maintenance, but as a limited owner. In this connection the observation of Rehman, J. in the, case of Ghulam Akbar and others v. Irshad Begum and others (P L D 1963 S C 543) supports this view. In that case the Letters Patent Bench of the High Court rejected the contention on behalf of the collaterals that Hayat Bibi had obtained 1/2 of the property on Piran Ditta's death. in lieu of maintenance and again, the other half on the death of Nawab Khan in similar capacity, on the ground that Hayat Bibi had been alienating the property in the presence of Hussain Khan and Nawab Khan, without any objection and this was inconsistent with her holding the property merely by way of maintenance. In this connection His Lordship observed at page 546 as under:‑‑ It appears that she effected several mortgages over the property in her possession and in one instance, even Hussain Khan joined with her in creating a mortgage. This lends considerable support to the finding of the learned Judges that she did not obtain the property at either stage, in lieu of maintenance. It is unlikely that she could have got the second half of the property by way of maintenance, if she was already in possession of the first‑half for that purpose. The property seems to be considerable in area and there is nothing to indicate that the first‑half of the property was insufficient for her maintenance, even if it be assumed that she got that half for maintenance purposes only. The mutation that was entered on Piran Ditta's death, contains he indication that she was being given this property in order to maintain her. On the contrary, she was being described as an heir. It is true that normally under the general custom of the old Punjab, a widow does not take a share of the inheritance with the sons of the deceased. See in this connection pp. 322‑323 of Rattigan's Digest of Customary Law 13th Edition by Om Parkash Aggarwalla. To the same effect is the answer to Question 33 of the "Riwaj‑i‑am" of Gujranwala District. But the general custom does not rule out entirely the, possibility of her being allowed a share in the property as is evidenced by instance collected in Rattigan's Digest. . This is what appears to have happened in the present case. This inference is consistent with the conduct of Hayat Bibi in creating mortgages over the land in her possession without any objection by those who were in a position to restrain her." Mr. Sirajuddin contended that this case was distinguishable because the transfer in it was in favour of a stranger. But this contention has no substance because the law would be the same whether the transfer is in favour of a stranger or a claimant as an heir‑

12. The learned counsel further referred me to a decision of the Punjab Chief Court in the case of Amir v. Mst. Sharif Shur (49 P R 1910). That was a case of a barren widow. It has also been referred by the learned Courts below but it has no bearing on the facts of the present case.

13. It seems to me that the fact that on the death of Shadman Khan, Mst. Karam Noor inherited equally with respondent Bashir Ahmad and the further fact that she alienated the portion of this property by way of sale to Bashir Ahmad himself clearly supports the Riwaj‑i‑am established in the Rawalpindi District that a widow in the presence of male issue shares equally for life with him. In these circumstances the learned trial Judge and the first appellate Court fell into an error by holding that Mst. Karam Noor inherited the property in lieu of maintenance,

14. On this view of the matter, I would set aside the judgment and decree of the trial Judge and dismiss the suit.

15. In the result, the appeal is allowed with costs throughout. K. M. A. Appeal accepted.