P L D 1995 Supreme Court 686 (PLP)

SAIDUZZAMAN SIDDIQUII, J.--Leave was granted in the above appeal to consider the following legal questions:-- "In view of our decision in Imam Bibi v. Allah Ditta (PLD 1989 SC 384) the following two questions in particular require examination: (i) Whether sections 20 to 22 the Colonization of Government Lands Act stricto senso governed the succession or on their strength section 21(b) General Law of Succession to agricultural property governed the succession (ii) If General Law governed succession what that General Law was in Bahawalpur at the relevant time. Leave to appeal is therefore granted ." The admitted facts of the case are that Muhammad Ibrahim, the predecessor-in-interest of the parties was granted tenancy rights in respect of land measuring 400 Kanals in Chak No.116/DB, Tehsil Yazman, District Bahawalpur. The said Ibrahim died before the year 1948 and inheritance mutation was sanctioned in favour of his 3 sons namely, Muhammad Ismail., Ali Muhammad and Ufnar Din. Subsequently Muhammad Ismail also died leaving behind Mst. Sughra daughter and Mst. Sharifan widow. The tenancy rights of Muhammad Ismail were accordingly, mutated in favour of Mst. Sharifan widow as tha limited owner. Mst. Sharifan remarried after the death of Muhammad Ismail and in consequence thereof, mutation in her favour was cancelled and the land was entered in favour of the legal heirs of Muhammad Ismail namely, daughter Sughra and her two uncles Ali Muhaminad and Umar Din in equal shares. Ali Muhammad and Umar Din feeling aggrieved with the mutation filed a declaratory suit against Sughra and Mst. Sharifan claiming that the suit land being ancestoral in nature, the inheritance was governed by the custom under which daughters were excluded from inheritance. The trial Court dismissed the suit but on appeal the District Judge, Bahawalpur, reversed the judgment of the trial Court holding that under the general custom daughters were excluded from inheritance and accordingly the suit was decreed in favour of Ali Muhammad and Umar Din. From the judgment of the first Appellate Court, R.SA. No.66 of 1968 was filed by Mst. Sharifan and her daughter Sughra which was accepted with the result the judgment and decree passed by the District Judge in appeal was set aside and the judgment and decree of the Trial Court dated 12-11-1966 was restored. Against the order passed by the learned Judge in Chambers leave to appeal was granted as aforesaid. In support of the appeal, the learned counsel for the appellants contended that Muhammad Ismail having inherited the tenancy rights from the original tenant Muhammad Ibrahim, on his death, under section 20 of the, Colonization of Government Lands Act, 1912 (hereinafter to be referred as `the act' only), the tenancy rights of Muhammad Ismail on his death devolved on his heirs in accordance withrthe provisions of section 21(b) of the Act. According to learned counsel for the appellants, in terms of section 21(b) ibid, the tenancy rights of Muhammad Ismail, in the absence of his male heir, on his death reverted to the surviving male heirs of the,original tenant Muhammad Ibrahim, namely, the appellants as provided in section 20 ibid. In support of his contention, the learned counsel for the appellants has relied on the case Imam Bibi v. Allah Ditta PLD 1989 SC

384. The learned counsel for the respondents on the other hand contended that after the death of Muhammad Ismail the succession to the tenancy rights was governed under the Muslim Personal Law which was applicable to Bahawalpur, before the death of Muhammad Ismail and as such the mutation effected by the revenue auhorities on the remarriage of Mst. Sharifan in equal share in favour of Mst. Sughra daughter of the deceased and his 2 brothers, Muhammad Ali and Umar Din was in accordance with the law. The learned counsel in support of his contention referred the cases of Jiwana v. Mst. Shabi PLD 1954 Lahore 253 and Ata Muhammad and others v. Mst. Kharshid Begum pLD 1964 (W.P.) Lahore

224. We have heard the learned counsel for the parties at length and our conclusions are as follows. Since the contentions of the learned counsel for the appellants are based mainly on the decision of this Court in the case of Imam Bibi v. Allah Ditta, supra, it would be appropriate to examine in some detail the facts of Imam Bibi's case. In the Imam Bibi v. Allah Ditta, supra, one Nizam Din had purchased land from the Government of Bahawalpur, and before he could pay the full price of the land and acquire proprietary rights therein he died. Under the terms and conditions of sale, until such time Nizam Din paid the full price of the land, he was to be considered a tenant of the Government on the purchased land. At the time of his death Nizam Din left behind a widow, two daughters and a son. In the mutation of inheritance which was attested on 7-11-1954 on the death of Nizam Din, the tenancy rights in the land were entered in favour of Allhh Ditta respondent No.l in that case. On 25-10-1968, Imam Bibi the appellant in that case, who was one of the sisters of Allah Ditta, filed a suit claiming that Nizam Din died in 1952 leaving behind a widow, 2 daughters and a son. According to her, the question of inheritance of Nizam Din had to be decided under section 19-A of the Act. The trial Court after recording evidence of the parties held that Nizam Din had died on 28-2-1951 while section 19-A of the Act, which was introduced in Punjab Act No.lIl of 1951, was not made applicable to Bahawalpur on the date of the death of Nizam Din, therefore, inheritance could not be governed under that section. It was further found by the trial Court in that case that sections 20 to 23 of the Act which were made applicable to the Bahawalpur, governed the inheritance of Nizam Din. On these findings, the suit filed by Imam Bibi was dismissed. On appeal the Additional District Judge held that Nizam Din died on 28-3-1951 and as the Shariat Act was enforced in Bahawatpur on 5-3-1951, the plaintiff/appelianl was entitled try inheritance as an heir of the deceased under Islamic Law. The decree of the trial Court wav, accordingly, reversed. On second appeal, the High Court affirmed the findings as.to the date of death of hffizam Din recorded by the 1st Appellate Court but taking into consideration the provisions of the Government Grants Act and the Ad concluded that the special law can the subject of Government' Tenancy and Grants, was applicable to the exclusion of the Shariat Act in Bahawalpur which was enforced on 4-3-1951. On these; findings the judgment and decree of the trial Court w;as restored. This Cool-t after granting leave to appeal dismissed the appeal with these observations:-- "It follows, therefore, that the promulgation of the Shariat Law in Bahawalpur on 4th of March, 1951 and the repealing of section 5 of the Punjab Laws Act had not the effect of derogating from the terms of the Act under which the grant was made.

12. Section 15 of the Act provides in express word that `A purchaser from Government of-land who has been placed in possession of the land by order of the Collector shall be deemed to be a tenant of such land 'until the full amount of the purchase money with any interest, due thereon has been paid and the other condition set forth in the statement of the conditions of sale issued by the Collector have been fulfilled'. On the strength of this statutory provision Nizam Din was a tenant of the Government land and admittedly price had yet to be paid by him. The compulsive effect of such a condition in view of the provisions of Government Grants Act of 1985 was considered in the case of Province of the Punjab through Collector, Sheikhupura v. Anjuman Talim-ul-Islam and others PLD 1987 SC

123. The effect of the statutory provision referred to would clearly be that section 19-A of the Act would not be available for determining the heirs of Nizam Din who died on 28-2-1951 and that the 'mutation of inheritance challenged by the plaintiff-appellant was in accordance with law governing the inheritance as provided in section 20 of the Act:' It is quite clear from the above-quoted passage that the main question for determination before this Court in Imam Bibi's case, supra, was whether the provisions of newly added section 19-A of the Act were applicable to Bahawalpur on the date Nizam Din died. This Court held that section 19-A the death the facts, as stated in the report of Imam Bibi's case, supra, that Nizam Din was the original tenant of the land and, on his death, his tenancy rights devolved on his heir in accordance with the provisions of section 20 of the Act which reads as follows:-- "Section20 Succession to tenants acquiring otherwise than by succession.-- Subject to the proviso to section 14, when, after the commencement of this Act, any original tenant dies the succession to the tenancy shall devolve in the following order upon-- (a) the male lineal descendants of the tenant in the male line of descent. (The term lineal descendant' shall include an adopted son whose adoption has been rectified by a registered deed); (b) the widow of the tenant until she dies, or remarries, or loses her rights under the provisions of this Act; (c) the unmarried daughters of that tenant until they die or marry, lose their rights under the provisions of this Act; (d) the successor or successors nominated by the tenant by registered deed from among the following persons, that is to say, his mother, his predeceased son's wife, his predeceased grandson's widow, his married daughter, his daughter's son, his sister, his sister's son, and the male agnate members of his family; _ (e) the successor or successors nominated by the Collector from among the persons enumerated in clause (b) of this section:' Section 20 of the Act governs the succession to the tenancy rights of the original tenant on his death. Section 21 of the Act on the other hand contains the rule of succession to the rights of tenancy of the deceased tenant who inherited the same from the original tenant. Sections 20 and 21 of the Act, therefore, embody two different rules of succession to the tenancy of the deceased tenant, applicable in different situations. There is nothing in the language of section 21 ibid to support the contention of appellants that succession to tenancy in cases falling within the scope of section 21(b) of the Act, will be governed under section 20 ibid. If the intention of the legislature was that on the death of a tenant, the succession would continue to be regulated in accordance with section 20 ibid, it could have been so provided under clause (b) of section 21 of the Act. The fact that under section 21 (b) ibid, the tenancy rights were to be treated as agricultural land acquired by the original tenant would show that after the death of the person who inherited from the original tenant, the tenancy was to be governed as acquired agricultural land of the original tenant. Imam Bibi's case relied by the learned counsel for the appellants is therefore, distinguishable and does not apply to the facts of the present case. In the case before us we are concerned with the succession of the tenancy of Muhammad Ismail, who was not the original tenant of the land but had inherited the tenancy rights from the original tenant under section 20 of the Act. On the death of Muhammad Ismail his tenancy rights were first entered in favour of his widow and when the widow remarried, mutation was effected in favour of his daughter Mst. Sughra and his two brothers Ali Muhammad and Umar Din. It is common ground between the parties that the inheritance in respect of share of Muhammad Ismail (deceased) in the tenancy governed under section 21 of the Act which reads as follows:-- "Section

21. Successsion to tenants acquiring by succession.--When after the commencement of this Act any male tenant, who is not an original tenant, dies, or any female tenant dies, marries, or remarries, the succession to the tenancy shall devolve-- (a) in the case of a female, to whom the tenancy has been first allotted, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her; (b) in all other cases, on the person or persons who would succeed if the tenancy were agricultural land acduired by the original tenant." (The underlining is by us). It is not disputed that clause (a) to section 21 ibid was not applicable in the present case and that the question of inheritance was to be governed in accordance with section 21(b) of the Act. Section 21(b) of the Act clearly provides that while considering the question of succession to the tenancy of the deceased tenant, the tenancy is to be considered as the agricultural land acquired by the original tenant. It is true that under section 15 of the Act a tenant does not acquire the proprietary rights in the land until he pays the full , amount of purchase money but it is equally clear from reading of section 12(b) of the Act that while determining the question of succession to the tenancy right of the deceased tenant under this provision of law, the tenancy of the deceased tenant, by fiction of law, is treated as the agricultural land acquired by the original tenant. We are, therefore, of the view that the rule of inheritance contained in section 20 of the Act, which deals with the succession of the tenancy rights of the original tenant, would not be applicable to the case governed by section 21(b) ibid. The expression "agricultural land acquired by B the original tenant" used in section 21(b) is very significant. By using this expression in section 21(b) ibid, the legislature made it clear that the rule of succession relating to tenancy would no more be applicable. In the case Jiwana v. Mst. Shabi, supra, one Sahta was granted tenancy rights in respect of 109 Kanals and 11 Marlas of Government land under the Act in Chak No.238-R.B., Tehsil and District Lyallpur. Sahta died on 28-8-1913 leaving no male issue and the land was mutated in the name of his widow Mst. Sattan on 29-6-1914. On 28-12-1945 Mst. Sattan, the widow of Sahta, executed a deed by which she relinquished her tenancy rights in the land in favour of her daughter Mst. Shabi without obtaining the sanction required under section 19 of the Act. Mst. Sattan died on 2~-7-1949 and on 1-12-1950 Collector, Lyallnur, in exercise of his power under/ section 19 of the Act sanctioned transfer by Mst. Sattan in favour of hc;i daughnea which bad been evidenced by the steed dated 28-12-1945. On 31-1-1951, Jiwana, the son of a brother of salhta, the original tenant, brought a suit against Mst. Sahbi for possession of 3/8th of the land which Sahta had left claiming to be entitled to that part of the land under the Muslim Law which he asserted was applicable because of the West Punjab Muslim Personal law (Shariat) Application Act, 1948. The defendant in the suit while not denying that her father was the original tenant and her mother had come into possession of the land after the death of her father pleaded that the deed of relinquishment executed by her mother made her the full owner of the property and therefore, the plaintiff had no right to get any part of the property. The trial Court decreed the suit but on appeal the District Judge, Lyallpur reversed the findings on issue No.l in the suit. From the order of District Judge, an appeal was filed before the then High Court of West Pakistan which was accepted. The learned Judges in the course of discussion at page 261 of the report of that case held after the death of the original tenant, the right of inheritance of the person who inherited from original owner would be governed by Muslim Personal Law as is evident from section 21(b) of the Act. These were the observations of the learned Judges:-- "The language of the section makes it clear that, in order to decide whether the personal law or custom was to apply to succession falling under clause (b), one had to assume, as was held in Allah Dad v. Mst. Noor Bibi 1950 Pak. LR 735 PLD 1950 Lah. 356 by a Division Bench of which I was a member, that the tenancy was agricultural land acquired by the original tenant. As the tenancy was to be treated as the property of the original tenant, it is clear that for the purpose of deciding who was to succeed it had to be assumed that the original tenant had died on the date on which succession opened out under clause (b) of the section. Before the passing of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, succession to agricultural land was governed by section 5 of the Punjab Laws Act, 1872, and if it could be proved that the original tenant was governed by custom, the succession had to be according to custom. Section 2 of Punjab Act IX of 1948, however, made the Muslim Personal Law applicable even to agricultural land. Now if Sahta, who was the original tenant, had died on the 23rd of July 1949, which is the date of the death of his widow as he is to be assumed to have done and had left any agricultural land, succession would, because of section 2 of Punjab Act IX of 1948, be governed by Muslim Personal Law and it is, therefore, manifest that succession to the tenancy left by Mst. Sattan must be governed by that law and not by custom." In Jiwana's case, supra, the learned Judges of the Division Bench finally concluded as follows:- "No doubt, the newly inserted section 19-A of Act V of 1912 purports to apply the Muslim Personal Law to all cases formerly governed by sections 20 to 23 of the Act, but that is no ground for inferring that the Muslim Personal Law was not applicable before that to any of the cases falling under those sections. Before the insertion of section 19-A succession under section 20 and clause (a) of section 21 could not be according to the Muslim Personal Law, nor could that law apply to cases governed by sections 22 and 23, the former of which enacts that if an original tenant had amounted heirs under clause (d) of section 20 to his' tenancy rights in the land but subsequently acquired ownership in that land the nomination held good unless it was expressly provided to the contrary in the deed of nomination and the later enacts that a nomination of heir under clause (d) of section 20 could be revoked only by a registered deed. Such, however, was not the case with regard to tenancies governed by clause (b) of section

21. For the purposes of cases falling under clause (b) of section 21 of the Act, the tenancy was to be treated as agricultural land acquired by the original tenant and Muslim Personal Law would have been applicable even before the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, to succession to some tenancies held by Muslims, because some such tenancies must have been allotted to persons who followed their personal law and not custom. The enactment of West . Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), section 2 of which abrogates usage and custom even with regard to cases of succession to agricultural land, brought about this change that all cases of succession to tenancies held by Muslims which fell under clause (b) of section 21 were to be governed by the Muslim Personal Law. The newly inserted section 19-A, the provisos to which are couched in practically the same language as section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, has also brought a few minor changes in the course of succession in cases formerly governed by clause (b) of section 21 of Act V of 1912. One of these changes is that whereas formerly if succession opened out on the termination of the interests of a female tenant, the. tenancy rights were to be deemed to be agricultural land acquired by the original tenant, after the insertion of section 19-A such tenancy rights are to be deemed to be the property of the last male owner who may or may not have been the original tenant. It is clear that the Provincial Legislative Assembly which enacted section 19-A of Act V of 1912 cannot be said to have interpreted the law as it stood at the time of the enactment of section 19-A to mean that no case of succession to a tenancy under the Act was governed by the Muslim Personal Law and it is, therefore, not necessary to decide whether or not the interpretation placed by a legislative body on the laws passed by its predecessors enjoys the same sanctity as its legislation within the limits of its legislative sphere. As the argument that it was only after the enactment of section 19-A in y Act V of 1912, that the Muslim Personal Law became applicable to cases of succession to tenancies under that Act cannot be accepted, the conclusion which was sought to be drawn from the enactment of that section is not deducible at all." Similarly, in Ata Muhammad and others v. Mst. Khurshid Begum, supra, the question of inheritance was examined with reference to customary law of Gujrat but it was clearly stated that while considering the question of inheritance of tenancy rights under section 21(b) of the Act, it is to be determined on the assumption that it was self-acquired property of the original tenant. The observations in Ata Muhammad's case, supra, were as follows:-- "

8. We may now take up the third point raised by the learned counsel for the appellants, namely, that the relevant custom has been wrongly interpreted by the trial Court. It. is conceded by Raja Said Akbar Khan that the case is governed by clause (b) of- section 21 of the Colonization of Government Lands (Punjab) Act. For facility of reference, the whole section may be reproduced here: "When, after the commencement of this Act, any male tenant, who is not an original tenant, dies, or any female tenant dies, marries or re marries, the succession to the tenancy shall-devolve-- (a) in the case of a female, to whom the tenancy has been first allotted, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her; (b) in all other cases, on the person or persons, who would succeed if the tenancy were agricultural land acquired by the original tenant. It will be seen that according to clause (b) above, the question of inheritance is to be determined on the assumption that the tenancy was the self-acquired property of the original tenant Ahmad Khan, the father of Mal and grandfather of the plaintiff-respondent. It is not disputed that the mode of custom applicable in the case is contained in the answer to question 60 of the Customary Law of Gujrat District by H.S. Williamson Settlement Officer (1922 Edition). This rule is in the following terms:-- ,As regards ancestral immovable property, daughters inherit in the absence of male lineal descendants through males, the widow and the collaterals of the 5th degree. As regards acquired property they exclude collaterals however near'. From the above discussion it follows that the succession to the tenancy of the original tenant of agricultural land is governed in accordance with the provisions of section 20 of the Act on the death of the original tenant. However, when a tenant who had succeeded the tenancy from; the original tenant dies, his tenancy is to be treated as the agricultural land acquired by the original tenant for the purpose of determining the rights of succession of his heirs. It is, therefore, quite clear that the rule of succession to the `tenancy' contained in the Act would not be applicable to the cases of succession failing under section 21(b) of the Act which governs the succession to the land acquired by a tenant under the provisions of the Act. The only provision which in our view, is applicable after the land has been acquired by the tenant, is section 30 of the Act which reads as follows:-- "Acquisition of proprietary rights.--(I) Notwithstanding anything entered in any statement of conditions under the Government Tenants (Punjab) Act, 1893, a tenant who, either in pursuance of any condition or otherwise by agreements with, or under rules issued by the Provincial Government has acquired proprietary rights in any land included in his tenancy shall in respect of such land cease to be subject to any statement of conditions issued under the abovementioned Act; provided always that he shall in respect of such land be bound by the conditions set out in Schedule 11 of this Act and be bound by the other provisions of this Act applicable to proprietors of land. (2) If at any time, the Board of Revenue is satisfied that any person had acquired under this Act tenancy rights in respect of any land by means of fraud or misrepresentation or' was not eligible to have such right for any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty which such person may be liable under any law for the time being force, the Board of Revenue may, after giving such person reasonable opportunity of showing cause, pass an order resuming land in respect of which proprietary rights have been acquired reduce the area of such land or pass such order as it may deem fit." It is quite char from reading of section 30 reproduced above that aft a tenant acquires proprietary rights in the land under his tenancy he holds t) same subject only to the provisions of subsection (2) of section 30 ibid and conditions mentioned in Schedule 11 of the Act. Such land, thereafter, ceases be subject to the statement of conditions issued under the Act. Therefore, any restriction on the right of succession of the legal heirs of such holder of the agricultural land, must be found, either in section 30 ibid or in the II Schedule to the Act. There is neither anything in section 30 ibid of in the condition mentioned in Schedule 11 which restricted the right of inheritance of the leg heirs of the person who had acquired land under the Act, in any manner. 'VS are, therefore, of the view that after the death of a tenant who inherit tenancy rights from the original tenant, the right of succession to his tenant would be governed in accordance with the general law of inheritance. This brings us to the second part of the Leave Granting Order namely, `If General law governed succession what that General law was in Bahawalpur at the relevant time?" In deer to determine this question it is necessary to find o whether all laws a pliable to the Province of Punjab, were extended to the State of Bahawalpur? State of Bahawalpur did not become part of the Province of Punjab and it continued to enjoy special status in spite of its accession to the territory of Pakistan, at the time of partition. Therefore, the laws enacted at applied to Punjab were not automatically extended to the State of Bahawalpur Some of the laws enacted in pre-partition days were adopted by the State Bahawalpur, and therefore, they were at applicable by virtue of such adoption. the Gazetteer of Bahawalpur State 1904 at page 287 of the Gazetteer a list Civil and Revenue Acts of the Government of India adopted by the State Bahawalpur is given. According to this list, Punjab Laws Act, 1872 came in effect in the territory of Bahawalpur on 11-1-1881. This Act remained in for until 5-3-1951 when under Notification No.20LD dated 4-3-191 (hereinafter to be called `Act of 1951') w promulgated m the State of Bahawalpur. Section 3 of Act of 1951 provided under:-- Section 3 ibid, provided that section 5 of the Punjab Laws Act, 1872 in so far was in conflict with the provisions of the Act of 1951, shall be deemed to have been superseded. Section 5 of the Punjab Laws Act, 1872 which was applicable to the State of Bahawalpur until it was superseded by section 3 of the Act of 1951, reads as follows: "

5. In question regarding succession, special property of females, betrothal, marriage, divorce, dower adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision Shall be. (a) any custom, applicable to the parties concerned, which is not contrary, to Justice, or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority; (b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act ,or has been modified by any such custom as is above referred to. It is quite clear from clause (b) ibid that the question regarding succession in the case where the parties were Muhammadans, is to be governed under Muhammadan Law except in so far Muhammadan Law has been altered or abolished by any legislative enactment or is opposed to the provisions of the Punjab Laws Act, 1872 or it has been modified by any such custom as referred in clause (a) of section 5 ibid. In the Gazetteer of Bahawalpur State 1904, while commenting on the customary law of inheritance prevalent in the State of Bahawalpur following observations have been made:- Customs and usage s regarding matters of inheritance and-enjoyment of landed property, and c., were recorded in the Settlement Wajib-ul-Arz according to the statements of the representatives of the various village communities in the Ubha and Lamma. The law in force in the State directs the Courts to follow local custom as given in the Wajib-ul-Arz and, failing that, the Muhammadan or Hindu Law, except in cases where these have been superseded by other laws adopted in the State. As a general rule all sons succeed equally, and succession is regulated per capita (Pagwand) and not per stripes (Chundawand). Widows among both the Hindus and Muhammadans succeed on 'a life tenure if they have no sons and receive maintenance only if they have sons. In practice the widow of a brother or agnate is never permitted to inherit her husband's share but is only allowed maintenance, and that only in case of her not marrying another husband (Haqq-wich baithan). The Chundawand rule of succession exists only in certain Sayyed families and in the Gadhoka Sept of the Wattus. A widow of any tribe enjoying a life tenure of the property of her husband is entitled to alienate a part thereof for reasonable needs and is not fettered closely by the claims of the agnates. Among a majority of the Muhammadan landholders the daughters, in the absence of sons, either inherit the whole property of the father or divide a fair proportion of the deceased. This proportion varies in different localities." . , From the above-quoted observations in the Gazetteer, it is quite clear that the Courts in Bahawalpur while determining the right of inheritance of parties followed the local custom as entered in Wajib-ul-arz and failing that rules of Muhammadan Law or Hindu Law, as the case may be, was to apply except to the extent rule of Mohammedan Law and the Hindu Law was displaced by any legislative enactment. From the preceding discussion, it appears that prior to 1872 the Courts in Bahawalpur used to determine the question of inheritance and enjoyment of landed property in accordance with the custom which was entered in the Wajib-ul-Arz and in case no such custom was established, the inheritance of landed property was to be determined in accordance with the personal laws of the parties. It is also quite clear from the statement made in respect of the customary law of inheritance that the custom of inheritance varied from localities to localities. However, after adoption, of the Punjab Act, 1872, the question of succession amongst other was governed in accordance with section 5 of this Act which provided that the rule of decision in such cases would be the custom applicable to the parties concerned which was not contrary to the justice, equity or good conscience and which had not been by the Punjab Laws Act, 1872 or by any other enactment altered, abolished and also had not been declared to be void by any competent authority. However, in cases where no such custom was proved to be applicable to the parties, then the rule of decision was to be in accordance with the Muhammadan Law if the parties were Muhammadans and according to, Hindu Law if the parties were Hindus except in so far Muhammadan Law has been altered, abolished or declared to be void or the provisions of Muhammadan Law were altered on account of any custom prevalent among the parties. This rule of succession embodied in section 5 of Punjab Laws Act, 1872 was superseded by the Act of 1951 which was promulgated in the State of Bahawalpur on 4-3-1951 and therefore, from that date onward the law of inheritance is to be governed in accordance with the law of Shariah. We are, therefore, in no doubt that from 11-1-1881, when Punjab Laws Act, 1872 was applied to the territory of Behawalpur until 3-3-1951, the date of premulgation of the Act of 1951 the predominant rule of decision in the cases of succession prevalent in the State of Bahawalpur, was the rule of Muslim Law if the parties were Muslims. Our above conclusions are supported by the following observations in Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul naliq and another (PLD 1971 SC 334) on the scope of section 5 of Punjab Laws Act, 1872:- "This section was interpreted by a Full Bench of the Lahore Chief Court in the case of Daya Ram v. Sohel Singh and others 1906 PR 390, where Robertson, J. (at page 410) observed:- `It has sometimes apparently been assumed that because in section 5 of the Punjab Laws Act, clause (a ) which deals with custom comes first, and clauses (b), which treats of personal law, comes second, that Some peculiar preference for custom as opposed to personal law is indicated. This appears to me to be quite fallacious. In all cases it appears to me under this Act, it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so. governed, and not by personal law, and further to prove what the particular custom is. There is no presumption created by the clause in favour of custom on the contrary, it is only when the custom is established that it is to be the rule of decision. The Legislature did not show itself enamoured of custom rather than law nor does it show any tendency to extend the `principles' of custom to any matter to which a rule of custom is not clearly proved to apply. It is not the spirit of Customary Law, nor any theory of custom or deductions from other customs which is to be a rule of decision, but only `any custom applicable to the parties concerned which is not ....' and it, therefore,: appears to me clear that when either party to a suit sets up `custom' as a rule of decision, it lies upon him to prove the custom which he seeks f to apply; if he fails to do so clause (b) of section 5 of the Laws Act ' applies, and the rule of decisions must be the personal law of the parties subject to the other provisions of the clause. It is not sufficient to show that in regard to certain other matters the parties are governed by custom.' The principle propounded by Robertson, J., in the above mentioned case was quoted with approval by the Judicial Committee in the case of Abdul Hussain Khan v. Mst. Bibi Sona Dero and another AIR 1917 PC

181. This principle has not since been departed from. The High Court was, therefore, in our view clearly wrong in placing the onus on the plaintiffs, for, the plaintiffs in this case did not allege custom. Custom was alleged by the defendant, Abdul Khaliq. The onus, therefore, was on him under section 5 of the Punjab Laws Act, 1872, to prove not only that the family was governed by custom but also to prove the particular kind of custom alleged by him. That the Punjab Laws Act, 1872, applied to the State of Bahawalpur is evident from the earlier decision of the same High Court itself in this very case (vide page 164 of the paper book), where it was rightly held that according to this section if the custom alleged is not proved the personal law must be followed " In the case before us, the trial Court as well as the 1st Appellate Coin came to the conclusion that the parties failed to prove any special custom. governing the right of inheritance. However, the lst Appellate Court observe, ;that under the general custom, the families were not disentitled to inheritance in respect of agricultural land. There is no evidence on record to support this conclusion of the lst Appellate Court. In the absence of the evidence of any special custom governing the right of inheritance, the rule of Muhammadan "Law applied to the case. We, accordingly, find no ground to interfere with the judgment of the High Court, The appeal is without any merit and h accordingly, dismissed. We will, however, make no order at to costs in the circumstances of the case. A .A / U-65/ S Appeal dismissed