P L D 1966 (W (PLP)

S. Faqir Hussain for Respondents. Date of hearing : 22nd February 1966. This is a second appeal against the judgment and decree passed by the Additional District Judge, Lahore at Sheikhupura dismissing the plaintiff's appeal from the decree passed by the Senior Civil Judge, Sheikhupura by which decree the plaintiffs claim for declaration that the gale of the property in favour of defendants 2 and 3 by Mst. Begum Bibi did not confer any right on them as Mst. Begum Bibi had merely a life interest and the sale was not proved to have been for necessity. 2. The land in dispute was inherited by Mst. Begum Bibi from her father Waris and it was admitted by the plaintiffs that the said land was a self‑acquired property of Waris. Before the learned Additional District Judge it was conceded on behalf of the vendees that the plaintiffs Allahbux, Barkat and Shadi were the collaterals of Mst. Begum Bibi being four degrees removed. The only question which was argued in appeal before the learned District Judge by the appellant was that Mst. Begum Bibi was the full owner of the land in question and did not have merely a life estate in it. The argument was that in inheriting the said land from her father which was his self‑acquired property Mst. Begum Bibi had excluded the collaterals and the latter did not possess any reversionary right in the said land. The parties belong to the Afain tribe and the land is situated in Faizpur in Tehsil Shahadra and was stated to be at a distance of about 10 or 11 miles from Lahore. The learned Additional District Judge after examining three decisions came to the conclusion that Mst. Begum Bibi on inheriting the land from her father merely held a life tenure in it and she was not competent to alienate it except for necessity. He further pointed out that the question of necessity was not pressed before him by the appellants and, therefore, on the view taken by him that the lady had merely acquired a life estate the respondent‑plaintiffs were 'entitled to challenge the alienation and get the declaration which they have claimed. 3. The learned Additional District Judge first relied upon a judgment of Munir, J., as he then was, in the case of Mst. Hussain Bibi and others v. Hasan Din (A I R 1943 Lah. 154) for the purpose of showing that the answer to question No. 47 in the Customary Law of Gujranwala District compiled by S. Dalip Singh did not give the correct Custom of succession. It is not shown as to how the relevancy of the answer to question No. 47 relating to Gujranwala District was relevant for the purposes of the appeal before him On the contrary, it would appear that the said judgment of the High Court favoured the appellants inasmuch as it was held that amongst Arains in the proximity of Lahore the established custom is that the agnates are excluded by daughters in a succession to ancestral and self‑acquired property. The second case relied upon by the learned A. D. J. is of a Division Bench of the Lahore High Court in the case of Mst. Chiragh Bibi v. Ahmad Din (A I R 1936 Lah. 594). But all that this case decided was that amongst Arains of village Mozang daughters have the same power of alienation of their father's property as a male proprietor and hence they cannot alienate it except for necessity. Obviously, this decision relates to ancestral property and the restriction on alienation by the daughters of such property is recognised to be of the same kind as operates against male proprietor, namely that it must be for necessity. However, this case is not a case of ancestral property because admittedly the property, which is the subject‑matter of this appeal, was the self‑acquired property of Waris, the father of Begum Bibi. This decision, therefore, is of no assistance to the respondents. 4. The third decision relied upon is a judgment of a Division Bench of the Lahore High Court in the case of Ahmad Din v. Mst. Fatima Bibi (107 I C 489) and this no doubt supports the respondents. The relevant passage in the judgment relied upon by the respondents runs as follows :‑ "a female is not competent to alienate property inherited by her except for necessity and to reversionary heirs of the last male holder are entitled to contest an alienation made by her even if the property is not proved to be ancestral." Mr. Faqir Muhammad, the learned counsel for the respondents, before me in addition relied upon a judgment of Kaikaus J. in the case of Hasan Din v. Rahim Bux (P L D 1956 Lah, 145). In that case the learned Judge referring to paragraph 67 of the Riwaj‑e‑aam of Lahore District (1935) observed that apparently it lays down that the daughter can alienate the property without restriction and pointed out that such proposition leads to an apparent absurdity. 5. It seems to me that the fact that the property in this case was a self‑acquired property of the father of Mst. Begum Bibi was not given due consideration by the Court below. That fact, it seems to me, makes a considerable difference with regard to the power of alienation. Even in the judgment of Kaikaus J. in the case of Hasan Din it was made clear by the learned Judge, while he was referring to paragraph 67, that the entries in the Riwaj‑e‑aam always relate to ancestral properties unless self‑ acquired property is specifically mentioned. The learned Judge was, therefore, clearly making a distinction between the ancestral and self‑acquired property which might be inherited by a daughter and as to her power of alienation in respect of them. Therefore, when he was criticising the answer in para. 67 of the Riwaj‑e‑aam that criticism was directed with regard to the power of alienation of a daughter in respect of ancestral property. A Full Bench of the Lahore High Court in the case of Mst. Hurmati v. Hoshiaro (A I R 1944 Lah. 21) after examining a mass of case‑law held that in the Punjab, Manuals of Customary Law should be taken to relate to ancestral property only unless there is a clear indication in them to show that they do contemplate self‑acquired property as well. It was further observed that question 43 of Riwaj‑e‑aam of Ludhiana district relates to ancestral property only and can in no circumstances be so interpreted as to cover self‑acquired property as well. The conclusion then reached was that the Riwaj‑e‑aam of Ludhiana district cannot affect the right of married daughter of a Muhammedan Rajput in matters of succession to his self‑acquired property. On this conclusion a number of Lahore decisions to the contrary were overruled. 6. Now, in the present case, the answer to question No. 64 in the Customary Law of tae Lahore District, 5th Regular Settlement 1935 to 1939 it is first stated that according to the general customs and except in, the family where inheritance is governed by Islamic Law daughters are excluded by the male lineal descendants and widows. In the absence of such heirs, their right of succession is recognised differently by the various tribes. Then after dealing with several other tribes it is stated as follows:‑ "Amongst the Arains living in the proximity of Lahore and Kasur states, the daughters of sonless proprietor exclude agnates in self‑acquired property." To the same effect is para. 23 (2) of the Rattigan's Digest on Customary Law which reads:‑ "But in regard to the acquired property of her father the daughter is preferred to collaterals." This proposition was accepted by a Division Bench of this Court in the case of Abdul Rahman and others v. Abdul Rahman and others (P L D 1961 Lah. 1046). True, that was a case relating to property in Gujrat district but the Division Bench made a general observation that in the case of non‑ancestral property, daughters generally exclude collaterals. The Privy Council in the case of Mst. Subhani and others v. Nawab (A I R 1941 P C 21) which was an appeal from a judgment of the Lahore High Court, held that among the Tullas of Tahsil and District Shahpur, the married daughters are not excluded by the collaterals in matters of succession to the none‑ancestral property; and the onus lies on the collaterals to prove that this general custom in favour of the daughters is varied by a special custom. 7. In view of the decisions to which I have just referred I am not able to see, and this I say with great respect to the learned Judges in the cases reported in 107 I C 489 (relied upon by the Additional District Judge) how it could be laid down as a general proposition that the rule of Customary Law is firmly established that a female inheriting landed estate from a male holds the property on a life tenure and she is not competent to alienate it except for necessity even if the property is not proved to be ancestral. With great respect I venture to point out that the distinction in the matter of inheritance in the two kinds of property is well recognised and to that extent I do not agree with the learned Judges who decided that case. 8. In the present case, the parties are Arains and the property is in Shahdara Tehsil within a short distance of Lahore and it was a self‑acquired property of Waris. Having regard, therefore, to the Customary Law represented in answer to question No. 64, referred to above, and para. 23 (2) of the Rattigan's Digest and also in agreement with the two decisions, one by Munir, J. and the other by a Division Bench reported in P L D 1961 Lah. 1046 quoted above, I am of the view that the genera.; custom amongst the parties with respect to the self‑acquired property of the last male‑holder was that the daughter inherits the property as a full owner. Now, if a special custom to the contrary existed which excluded the daughter in respect of self‑acquired property, such a special custom would have to be proved by the plaintiffs who claimed as reversioners. This has not been done in this case. That being so, it follows that Mst. Begum Bibi was entitled to alienate the property in dispute as a full owner and the plaintiffs claiming as reversioners were no' entitled to the declaration Sought for by them. In view of this conclusion I do not find it necessary to consider a further argument by Mr. Rashid Advocate appearing for the appellants that even the necessity had been established in this case. 9. In view of my conclusion I allow the appeal and set aside the judgment of the Courts below, the result of which would be that the plaintiffs' suit would stand dismissed. I would, however, leave the parties to bear their own costs. K. B. A. Appeal accepted.