P L D 1966 (W (PLP)

Bano (defendant Khan Khan Khan (defendant No. 4) (defendant (defendant (defendant No. 5) No. 3) No. 7) No. 6) Shah Wali died sometimes in 1939 and the agricultural land left by him was mutated partly in favour of his son Nur Muhammad and grandsons Sher Zaman and Muhammad Khan (the sons of his pre‑deceased son Fateh Muhammad) in equal shares and partly in the name of Mst. Nek Bakht, his surviving widow. This Mst. Nek Bakht is alleged to have died on the 31st of August 1948 when two mutations of inheritance (Nos. 266 and 269) with regard to the land situated in villages Karyala and Nohara Lasso, respectively, were attested on the 14th of September 1952 in favour of Nur Muhammad to the extent of one‑half, and. the other half jointly in the names of Muhammad Khan and Sher Zaman, on the ground that Mst. Nek Bakht did not die in 1948 and actually her death took place sometimes in August 1946 when the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) was not in force, therefore, the property reverted to Shah Wali,' the husband of Mst. Nek Bakht and then had to devolve on his lineal descendants out of his other wife Mst. Kamman. Aggrieved by these mutations, Mst. Khatoon, the daughter of Shah Wali out of Mst. Nek Bakht, brought a suit for possession of 5/12th share out of 160 kanals 2 marlas of agricultural land situated in the aforesaid two villages, as also a house in village Karyala. The trial Court rejected the version of the defendants with regard to the death of Mst. Nek Bakht and held that she had actually died on the 31st of August 1948 after the enforcement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, and, therefore, Mst. Khatoon, plaintiff respondent, was entitled to 5/12th share in the agricultural land. However, the plaintiff‑respondent's claim with regard to the house was rejected for the reason that the same has not been found to be the property of Shah Wali. The appellants (Sher Zaman, Muhammad Khan and Mst. Padshan) alone brought an appeal before the District Judge because the other defendants did not join them and were imp leaded as respondent to the appeal. The learned District Judge dismissed the appeal on the 29th of November 1955 affirming the conclusions of the trial Court. Hence, this second appeal.

2. Learned counsel for the appellants has urged that the finding of fact with regard to the date of death of Mst. Nek Bakht is erroneous and should be ignored in this second appeal because it is a case of misreading of evidence. On an application by the appellants under section 151, read with Order XLI, rule 27, C. P. C. the original register containing the death entries in the Thana pertaining to village Karyala, where Mst. Nek Bakht is stated to have died, was summoned and ‑I have perused the relevant entry itself. After a careful perusal of the said entry I find that no valid objection can be taken to the conclusions drawn by the learned District Judge with regard to numeral 8' appearing in column 2 of the said entry and the date of death is 31st of August 1938 and not the 31st of August 1946.

3. The learned counsel for the respondents has raised an objec tion against recording of additional evidence under Order XLI, rule 27, C. P. C. at the second appellate stage, but the objection is misconceived. No fresh evidence is being taken into consideration and the caption of the application made in this regard by the A appellants was as a matter of fact misleading. All that was prayed for was that the original register which was examined by the learned District Judge should also be made available before this Court at the time of hearing of the appeal and that does not amount to production of any additional evidence. This objection. is, therefore, overruled.

4. The other contention raised by the learned counsel for the appellant is that even if it be held that Mst. Nek Bakht had died in 1948 after the promulgation of the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), the respondent Mst. Khatoon is not entitled to any property left by her father, Shah Wali, for the reason that Mst. Nek Bakht has been wrongly assumed by the Courts below to be holding widow's life estate or to be a limited owner in the sense understood under Customary Law. She was, it is maintained, merely entitled to maintenance under the general custom of the defunct Province of the Punjab and the Customary Law of the Jhelum District itself, for the reason that Shah Wali did not die as a sonless proprietor and at the time of his death, his son Nur Muhammad and his two grandsons, Muhammad Khan and Sher Zaman, were alive. It is argued that in the words of para. 16 of the Rattigan's Digest of Customary Law, 13th Edition, compiled by Om Prakash Aggarwalla, Mst. Nek Bakht would ordinarily be entitled to suitable maintenance in the presence of male descendant, whether such descendant is the issue of the surviving widow or of another wife. He has further referred to Notes on Punjab Custom, Second Edition, by T. P. Ellis, page 57, item (i), which reads as under:

"In the presence of sons the widow gets nothing but maintenance." It is contended that the general custom enunciated above is also prevalent in the District of Jhelum and in support of this argument the learned counsel has referred to Question No. 44 and answer thereto appearing at pages 40 and 41 of the General Code of Tribal Custom in the Jhelum District Punjab by P. H. Thapar, 1946 Edition, which question and answer along with the note are reproduced for reference: --‑ "Question 44.‑Maintenance to a widow‑If a widow does not succeed whether due to the presence of lineal descendants of the deceased or otherwise, is she entitled to maintenance? If so, how much? All tribes, except Gakhars, say‑The widow neither succeeds along with the sons nor is she given any share of the property as maintenance. In future, however, she should succeed equally with the sons. Gakhars‑She succeeds equally with the sons, hence no question of maintenance. All Mussalman tribes (except Janjuas, who agree with their tribes in Pind Dadan Khan) Mohyal Brahmans and Gadhick Kanungos)‑The widow succeeds equally with her sons. No instance. Mohyal Brahmans and Gadhick Kanungos‑She gets maintenance. Rajputs Janjuas, say‑The widow shares equally with her sons. Rajputs Jalaps and Rajputs Minhas, say--The widow is given neither a share npr maintenance. Her sons should support her. All other tribes, say‑As stated by Rajputs Janjuas the widow shares equally with her sons. Note.‑Generally a widow with sons does not share the inheritance with them. She is given maintenance by the sons out of the produce of the land, if she does not live with them. In a few cases, she has been given land for her maintenance. With almost all tribes there is at present a very strong inclination to giving her an equal share with tier sons," The learned counsel has also relied on the following observations appearing at page 2 in the introduction of the said compilation: ‑ "Wherever the replies differ from the instances collected, the custom, as it actually prevails, has been stated in the form of a note." He has vehemently urged that as per note appearing under Question 44, the widow in presence of sons is only entitled to maintenance and even if some land had been given to her, this was by way of maintenance and, therefore, the claim of the respondent‑plaintiff that Mst. Nek Bakht was a limited estate holder stands negatived. In support of his argument that widow's life estate where she succeeds in the absence of male lineal descendants and a widow's right to maintenance where there are male lineal descendants of the deceased are essentially different, he has referred to Nawab v. Muhammad Fazil (P L D 1964 Lah. 334) He argues that there is similarity between the status of the two widows only to the extent that they are entitled to maintenance, but there ends the similarity and they differ in right. He maintains that a sonless widow in the presence of male lineal descendants of the last male-holder is entitled to maintenance only and not to a life estate while the widow in the absence 'of male lineal descendants gets a life estate. He further argues that according to paragraphs 16 and 11 of the Rattigan's Digest of Customary Law in the Punjab, though widow's life tenure, in the absence of male lineal descendants of the last male-holder, originated in her right to maintenance, it gradually, in the course of time became a right to the enjoyment of the whole estate, whether it exceeded her needs or not, and that such a widow is her husband's representative and that she represents him even in collateral succession. The further distinction pointed out by him was that while the widow of a sonless proprietor takes the whole land whatever be her needs for maintenance, the other widow, who survives her husband in the presence of male lineal descendants, takes only a part of it and she is further not entitled to, unlike the widow of a sonless proprietor, alienate the property even for valid necessity. On the basis of this hypothesis he argues that because Mst. Nek Bakht held the land in lieu of maintenance, she was not a limited owner within the meaning of section 3 of the Punjab Muslim Personal Law (Shariat) Application Act, 1948. She was a widow surviving her husband in the presence of the sons of her deceased husband from another wife and was entitled merely to maintenance because .the property had devolved on the sons of the last male-holder at the time of his death and, therefore, on the demise of Mst. Nek Bakht this property would revert to the sons of Shah Wali, namely, Fateh Muhammad and Nur Muhammad, and section 3 of the Act would have no application. He has also placed reliance on the following observations in Ghulam Akbar v. Irshad Begum (P L D 1963 S C 453 at p. 546):‑ "The Letters Patent Bench of the High Court rejected the contention raised on behalf of the collaterals to the effect that Hayat Bibi had obtained one‑half 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. They pointed out 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. 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 no 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." The argument is met by the learned counsel for the plaintiff‑respon dent by a preliminary objection to the effect that the case on the basis of custom or grant of maintenance or holding of land in lieu of maintenance and not being that of a limited estate holder under the usual sense of the word, has been raised in this second appeal for the first time and, therefore, should not be permitted to be raised. The learned counsel in this regard has referred to the pleadings of the parties and the issues framed and argues that the parties rather concentrated on the question of time of death of Mst. Nek Bakht and no issue was joined by the appellants as to whether Mst. Nek Bakht was a limited estate holder or she held the land merely in lieu of maintenance. It is further argued that in the absence of any pleadings or issues, the question of existence of a particular custom or application thereof should not be allowed to be agitated in second appeal. It has been further maintained that even the memorandum of appeal presented before the lower appellate Court is silent in this respect and, therefore, all that was being agitated was that Mst. Nek Bakht had as a matter of fact, died in 1946 and not in 1948 and, therefore, the Punjab Muslim Personal Law (Shariat) Application Act, 1948, could not be pressed into service for inheritance in the case. The learned counsel for the appellants in reply argues that because on the facts proved on the record it is clear that inheritance of Shah Wali was to be regulated by custom and the parties followed custom in matters of inheritance, etc. and that Shah Wali has not died a sonless proprietor, the appellants should be permitted to raise the question of application of Custom of the Chakwal Tahsil and the general custom in this regard, the same being a pure question of law. I am not persuaded to agree. In Lakehmidhar Misra v. Rangalal (P L D 1949 P C 198) their Lordships of the Judicial Committee, while dealing with the question of custom and customary rights with regard to use of land by inhabitants of a village as cremation ground, observed in paras. (3), (4) and 9: --‑ "(3) The important issue for the purposes of appeal therefore is that which was No. 5 of the issues framed by the trial Judge. It was expressed as follows: Is the disputed land a Sarbasadharan cremation ground T This question, which can hardly be regarded as other than a mixed question of law and, fact, received a diversity of answers in the Courts below. "(4) Issue No. 5 is essentially a mixed question of law and fact. There are findings of fact by the Subordinate Judge which must indeed be accepted as binding in any consideration of this matter on further appeal; but his actual conclusion that there had been a dedication or lost grant, is more properly regarded as a proposition of law derived from those facts than as a finding of fact itself. . It is enough to quote two passages from past decisions of this Board. The facts found need not be questioned. It is the soundness of the conclusions from them that is in question and this is a matter of law: see Ram Gopal v. Shamskhaton 19 I A 228 at p. 232. `The proper legal effect of a proved fact, is necessarily a question of law: see Nafar Chandra Pal v. Shukur (45 I A 183) . . . . . ." "(9) From these findings it would be seen reasonable to infer the existence of a village custom to which the law could attach legal sanction. It seems beyond dispute that it is a question of law whether such a custom is to be recognized or not, although the facts upon which the question is to be decided cannot be a matter of appeal beyond the first appellate Court . . . . ." Again in Narayana Laksar v. Saboora (A I R 1943 P C 111) their Lordships observed : ‑ "The appellants complain that the learned Judge of the High Court has transgressed the limits set to his jurisdiction by sections 100 and 101 of the Code in that he disregarded the findings of fact arrived at by the lower appellate Court when he treated the user of these two ghats as having begun before 1910 and as having been peaceful and without objection between 1925 and 1929. Their Lordships do not think it necessary or desirable however to decide the case upon grounds which though not unimportant relate to procedure rather than to merits. They are, moreover, prepared to assume‑without giving any decision upon the point‑that the existence of a custom may in this case be regarded as a question of the proper interpretation of the specific facts proved and thus a question of law which was open in second appeal." I follow with respect the dicta of their Lordships reproduced above and hold that since the appellants have neither pleaded nor proved any custom before the Courts below, they cannot be permitted to agitate this question at the second appellate Stage. In this regard I am also fortified by observations of their Lordships of the Judicial Committee in Savitri Devi v. Ram Ran Bijoy (A I R 1950 P C 1). (5) I am afraid the prayer for amendment in the circumstances is not justified. It was held in Kanda v. Waghu (P L D 1949 P C 270) while disposing of a prayer for amendment of the plaint, that the powers of amendment conferred by the Code are very wide, but they must be exercised in accordance with legal principles, and their Lordships cannot allow an amendment which would involve the setting up of a new case. The judgment of Lord Buck master in Na Shwo Mya v. Maung Mo Hnaung (AIR 1922 P C 249) is directly in point. It was held there that it was not open to a Court under section 153 and Order VI, rule 17 to allow an amendment which altered the real matter.in controversy between the parties ......" Applying these principles with respect, I hold that the appellants' prayer for amendment cannot be allowed at this stage and the same is rejected.

6. The result is that the appeal fails and is dismissed with costs. K. B. A. Appeal dismissed.