P (PLP)

Answer 78 of the Riwaj‑i‑am of 1901, after stating the relevant custom among Gakkhars and Janjuas, goes on to state the custom prevailing among Khokhars, Jalaps, Mughals, Gujars and Miscellaneous. With regard to these tribes it is stated that no custom of making wills exists. The relevant answer in Riwaj‑i‑am of 1946 is answer

102. Under Pind Dadan Khan Tehsil it is stated :‑

" Rajputs (Chohan), Sayyeds, Qureshis, Kahut Quresh, Mughal (Phaphras), Lillas, Baloch and Khokhars (Pind Dadan Khan family)‑He can bequeath the property as stated in case of self‑acquired property. All other tribes, including Mughals (Kak and Barlas) and Khokhars (except Pind Dadan Khan family)‑No custom of making wills." To rebut the initial presumption arising from these entries, the plaintiff relies on copies of mutations Nos. P. 8 and P. 9 and the instances in which wills by sonless proprietors were upheld in the Tehsil of Pind Dadan Khan which are given under Answer 102 of the latest Riwaj‑i‑am of the Jhelum District. We have examined P. 8 and P. 9 and we are of opinion that these docu ments do not help the plaintiff. P. 8 relates to the will of one Pir Bakhsh Awan of village Jhamra, Tehsil Pind Dadan Khan. He bequeathed his property to his wife and his daughter‑in‑law whose husband had not been heard of for the last eight or nine years, and after the death of these ladies the property was to go to his three daughters. Before the Attesting Officer the widow of Pir Bakhsh objected to her daughter‑in‑law being included in the mutation. Her objection was upheld and the land was mutated exclusively in her favour. But on appeal 'by the daughter‑in‑law, the Collector ordered that half of the land should be mutated in her favour. There is nothing to show on the record whether the land was ever mutated in the names of the daughters of Pir Bakhsh or whether there were any collaterals of Pir Bakhsh in existence to contest the mutation in their favour. P. 9 relates to the will of Muhammad Ashraf, dated the 13th July 1895 by which he bequeathed his entire estate to certain persons. There is, however, nothing to indicate whether the property was self. acquired or ancestral and whether there were any collaterals of Muhammad Ashraf in existence to challenge the will. The instances given under Answer 102 of the latest Riwaj‑i -am of Jhelum District, however, furnish very valuable evidence in favour of the custom permitting sonless proprietors to dispose of their ancestral property by wills. The instances are to be found at pages 87 and 88 of the book. Instance No. 17 relates to village Pira Ghaib (Jhelum)‑Badlu willed away some of his ancestral land to his daughter. Rever sioners objected, but were not successful. (Mutation No. 98, dated 20th June 1903). Instance No. 18 relates to village Bhobar (Jhelum)‑Ahmad, an Awan willed away the whole of his ancestral property to his daughter, and his daughter's son. Reversioners did not object. (Mutation No. 205, dated 6th June 1924). Instance No. 19 relates to village Thanil Fatuhi (Chakwal) one Tora, Awan willed away whole of his ancestral property to his daughter. Reversioners objected but were not successful. (Mutation No. 1745, dated 29th May 1937). Instance No. 20 relates to village Dulmial (Pind Dadan Khan) Mirza, an Awan willed away 65 kanals 19 marlas of his ancestral land to his daughter. Reversioners in the second 2nd degree objected but were not successful. (Mutation No. 1290, dated 18th June 1949). Instance No. 21 relates to village Kandwal (Pind Dadan Khan) ‑Sultan Ahmad an Awan willed away whole of his ancestral property to his daughter and daughter's son. Reversioners did not object. (Mutation No. 2511, dated 15th February 1937)". There are also some instances relating to Gujars and Jats of Pind Dadan Khan who must be included among " all other tribes " as they are not specifically mentioned in the first paragraph under Pind Dadan Khan. Tehsil. It is, therefore, clear that Awans, Gujars and Jats are governed by the same custom in matters of Wills. There are four instances of Gujars and one of Jats, all relating to Pind Dadan Khan Tehsil, in which sonless proprietors willed away the whole of their ancestral property to their daughters or daughter's son or other near relatives. Except in one case the reversioners objected but were not successful. It would thus appear that Awans of Jhelum, Chakwal and Pind Dadan Khan Tehsils and Gujars and Jats of Pind Dadan Khan and some other Tehsils recognise the custom which permits a sonless proprietor to will away the whole of his ancestral estate. In view of the instances mentioned above the custom of Pind Dadan Khan with regard to wills and legacies, as recorded in Answer 102, does not appear to be correctly stated. At any rate, the presumption arising from the answer is rebutted by the instances cited under it. Even in the earlier Riwaj‑i‑am prepared by Mr. Talbot some instances of wills are given in Appendix II. Seven of these relate to wills by sonless Awans in favour of daughter or son's son or daughter's son. Two of these were upheld and two others were set aside on the ground that they were made by the testator on his death‑bed. The remaining three were held to be invalid under custom. This shows that even in 1901 the custom observed in matters of wills was not uniform, and, therefore, it could not be said with any degree of certainty that there was no custom permitting a sonless proprietor to dispose of his ancestral property by will. In any case, the Riwaj‑i‑am prepared by Mr. Talbot has been characterised as an unsatisfactory document in several rulings of this Court. In Pahalwan Khan v. Bagga and others (A. I. R. 1929 Lab. 192) the answer to question 78 was adversely commented upon. In the course of arguments a reference was also made to the Riwaj‑i-am prepared in 1880 (Exhibit D. 8). Under the heading " Gifts and wills " it is stated that a proprietor could give away whole or part of his property in his lifetime provided he made over possession, and this he could even do in the presence of sons, though in such cases it was not usually done. As regards wills, it is stated that a proprietor could dispose of his property by will but in practice he did not do so as the power of gift subsisted and was sufficient. In Fattu v. Muhammad Sher and another (A. I. R. 1931 Lab. 481) Addison J., observed that this answer was given by all tribes except Awans who stated that as regards wills they followed Muhammadan Law. We have carefully gone through the document but we have not come across the statement which is attributed to Awans. The custom was intended to apply to all the tribes without any exception. It would, therefore, appear that at no time the right of a sonless proprietor to dispose of his ancestral property by will was absolutely denied. The defendants have produced no instances in support of their case that a sonless proprietor is incompetent to dispose of his property by will but they relied on two reported cases of this Court. The first of these is a Letters Patent Appeal reported as Mst. Rakhi v. Baza (79 I. C. 743). The other case is the one which has already been referred to, namely, A. I. R. 1931 Lab.

481. In both these cases no evidence was produced to rebut the presump tion arising from the answer to question 78 of the Riwaj‑i‑am of 1901 and the five instances relating to Awans, which are given in the latest Riwaj‑i am of the Jhelum District, were not before the learned judges who decided those cases. It also appears that the two cases of wills in favour of daughters given in Appendix II of Riwaj‑i‑am of 1901 were also not placed before the learned judges. Those case, therefore, are clearly distinguishable. It is not denied that Awans of the Jhelum District have unrestricted powers to dispose of their entire ancestral property by gift and it is now well settled that the distinction under the Punjab Customary Law between the power of gift inter vivos and the power of testation is a matter of degree and form only and where the power of gift is shown to exist the initial presumption arises that there is a co‑extensive power of testation. Although this presumption may be said to have been rebutted by the entries of the Riwaj‑i‑am, but these entries, as already observed, in this case are of no great weight and have been sufficiently rebutted by the instances relating to Awans of Pind Dadan Khan Tehsil cited under Answer 102 of the Riwaj‑i‑am of' 1946. It was observed by Addison, J., in Fazal Khan v. Anwar (110 I. C. 550) Although the initial presumption throughout the Punjab is against the power of alienation in respect of ancestral land and the burden of proof at the outset rests on the person asserting such power, yet in cases of Muhammadan tribes of the Jhelum District, the presumption against the validity of a will by a sonless proprietor to a daughter or daughter's son is not of great weight and may be easily shifted," On the material placed on the record we are satisfied that the plaintiff has succeeded in proving that Sardar, her father, was competent to make a will of his ancestral property in her favour. We accordingly dismiss this appeal with costs. K.M.A Appeal dismissed.