P L D 1955 Federal Court 102 (PLP)

The questions that really arise in this appeal are : (a) whether according to the custom of the tribe to which the parties belong, the daughters were or were not heirs of their father as to the non‑ancestral property and (b) whether the consent of Ibrahim and Shams Din, reversioners, to the succession of Mst. Sardar Bibi and Mst. Hakim Bibi in 1927 gave only a life estate to them and no more. The parties are Jats, residents of Kot Nathu, Tahsil Wazirabad in Gujranwaia District. Question 47 of the riwaj‑i am of Gujranwala District compiled in the year 1914, relaxes to the succession of daughters. The question and the, answer are as follows :‑ "Question 47.‑Under what circumstances are daughters entitled to inherit- (1) the immovable or ancestral, (2) the movable or acquired, property of their father? Do they inherit in the presence of sons or widow, 'or near male kindred of the deceased? 1f so, then to what extent and for how many generations is the right of near male kindred superior to that of daughter? Answer.‑In no case can daughters inherit. Among , agri cultural (Tahsil Wazirabad) tribes and Arains (Tahsil Sharakpur) if there be neither male lineal descedants nor collaterals up to fourth degree, either in the descending or ascending line, nor widow, then 'daughters inherit. Up to fourth degree male descendants and' collateral have preferential rights." According to the above entry in the riwaj‑i‑am, the daughters are excluded both from the ancestral as well as non‑ancestral property. The initial presumption would, therefore, arise against the daughters and in favour of the agnates of their father. In Mst. Subhani and others v. Nawal and others A I R 1941 P C 21 it was laid down by their Lordships that: "Though the entries in the riwaj‑i‑am are entitled to an initial presumption in favour of their correctness, irrespective of the question whether or not the custom as recorded is in accord with the general custom, the quantum of evidence necessary. to rebut this presumption would, however, vary with the facts and circumstances of each case ; where, for instance, the riwaj‑i‑am lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace this presumption, but where, on the other hand, this is not the case and the custom as recorded in the riwaj‑i‑am is opposed to the rules generally prevalent, the presumption would be considerably weakened. Likewise, where the riwaj‑i‑am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weaker still, and only a few instances would suffice to rebut it."` Their Lordships of the Privy Council; in ascertaining the customary rights of daughters against collaterals with reference to ancestral and non‑ancestral property, found it useful to refer to Sir W. H. Rattigan's Digest of Civil Law for the Punjab. (chiefly based on the Customary Law), which was declared to be a "book of unquestioned authority in the Punjab". Paragraph 23 of Rattigan's Digest recites :‑ "23(1) A daughter only succeeds to the ancestral landed property of her father, if an agriculturist, in default‑ (1) of the heirs mentioned in the ‑ preceding paragraph ; and (2) of near male collateral of her father, provided that a married daughter sometimes excludes near male collaterals, especially amongst , Muhammadan tribes :‑ (a) where she has married a near collateral descended from the same common ancestor as her father ; or (b) where she has, with her husband continuously lived with her father since her marriage, looking father his domestic wants and assisting him in the management of his estate ; or (c) where, being married to a collateral of the father's family, she has been appointed by her father as his heir. (2) But in regard to the acquired property of her father the daughter, is preferred to collaterals." , This would show that the general custom of the Province is in favour of the succession of the daughters against the, collaterals, to self‑acquired property of their father. In the case of conflict between the riwaj‑i‑am of the district and the general custom of the Province, on the rights of the daughters versus collaterals, regarding succession to self acquired property, the correct approach was explained in Qamar‑ud‑Din v. Mst, Fateh Bano A I R 1944 Lah.72., It was pointed out. "The correct method of 'approach for the decision of contests .between daughters and collaterals where self acquired property is involved is that the initial onus is on the collaterals to prove that they have a right to inherit the non‑ancestral land as against the daughters. If the riawj‑i‑am produced by the collaterals is a reliable and trustworthy document, has been carefully prepared, does not contain within its four corners contradictory statements of custom, and in the opinion of the settlement officer is not a record of the wishes of the persons appearing before him as to what the custom should be, in those circumstances the riwaj‑i‑am would be a presumptive piece of evidence in proof of the special custom set up which, if left unrebutted by the daughters, would lead to a result favourable to the collaterals. If, on the other hand, the riwaj‑i‑am is not a document of the kind indicated above, then such a riwaj‑i‑am would have no value at all as a presumptive piece of evidence. A reliable and trustworthy riwaj‑i‑am reciting a special custom against the rights of daughters would, however, only furnish a weak presumptive evidence to the collaterals. A few clear instances of the custom against the statement recorded in the riwaj‑i‑am would be sufficient to rebut that pre sumption, and to shift back the onus to the place where it was originally laid. After the initial onus stage, the Court should Judge the case by taking into consideration the riwaj‑i‑am, and all other materials placed on the record in proof of the custom alleged or against it, and giving the riwaj‑i‑am its full value considering the circum stances of each case, the Court should come to the conclusion whether the initial onus has really been discharged." The correctness or otherwise of Question 47 of the riwaj‑i‑am of Gujranwala District came up for consideration in Ilahi Bakhsh v. Ghulam Nabi I L R 14 Lah.

404. The question and the answer were considered at great length on the earlier occasion by a Division Bench of the Chief Court in Wazira v. Mst. Maryan 84 P R 1917 pp. 332 and 333 where after a careful consideration of the various entries in the riwaj‑i‑am and the manner in which it was prepared, it was clearly demonstrated that it was an imperfectly compiled document and did not correctly record the customs prevailing in the district in several important particulars. The learned .Judges held that it had been established that by custom among the Jats of Gujranwala District, collaterals of a sonless proprietor have no right to succeed to his self‑acquired property in preference to his daughter or pre‑deceased daughter's son.. Thus the presumption arising in favour of the collateral under Question 47 of riwaj‑i‑am of Gujranwala District, has been fully rebutted and the custom as judicially determined is to the effect that among fats‑the tribe of the parties daughters are the heirs of their father to the self‑acquired property in preference to the near collaterals. It would follow, therefore, that on the death of Mst. Bhag Bhari, the widow of Muhammad Bakhsh, his daughters, of, whom Mst. Sardar Bibi, the donor, is one and the mother of the donees is another, would succeed and the plaintiffs would come in only after the daughters or their line is exhausted. The nature of a daughter's estate. when she succeeds is not in doubt under custom. Paragraph 64 of Rattigan s Digest says: "

64. Except as provided in paragraph 39, (Adoption by a widow on the express authorisation by her husband or with the consent of her husband's kindred) or paragraph 62 (Alienation for necessity), no female in possession of immovable property acquired from her husband, father, grandfather son or grandson otherwise than as a free and absolute gift can permanently alienate such property." It would be clear from this paragraph that a daughter in the absence of a free and absolute gift, which should be affirmatively established, .could not alienate the property of which she was in possession, regardless of the fact whether it was ancestral or self‑acquired property Mst. Sardar Bibi could not, therefore, according to custom prevailing in the province, make a gift of her property in favour of others. This, however, does not dispose of the case. The donees as mentioned above, are none others than the sons of another sister, a daughter of Muhammad Bakhsh. The general principle which regulates succession to ancestral land in a Punjab village community is fully explained in the Full Bench case No. 4 P. R. 1891. It is there shown that the property of a man, who dies without issue, first reverts to the ancestor and then descends to the male lineal decendants of that ancestor. Thus, a brother succeeds a sonless brother, not as a brother, but because the estate reverts to the father and descends again to his sons. So too a mother succeeds not as a mother but as the widow of the father to whom the estate has ascended. This also explains what is called "the principle of representation ". The same principle holds good in the case of a female holding a life‑estate. ‑On her death, the property would revert back to the last male owner from whom she got it and then his heirs have to be discovered. Applying it to the present case, on the death of Mst. Sardar Bibi‑she has no issue of her own‑the property would revert to her father, Muhammad Bakhsh and it shall then have to be seen who would succeed him : whether his male agnates or any other person. It has been shown above, that according to custom of the tribe, the daughter is a better heir than a collateral in regard to non‑ancestral property. Consequently, on the death of Mst. Sardar Bibi, the property would first go to the other daughters of Muhammad Bakhsh and, on the extinction of their line, to the collaterals, that is, the plaintiff's, etc. The above situation, when it was presented to the learned judges of the High Court, was tried to be met with by saying that "the estate was held by Mst. Sardar Bibi as a khanadamad's wife and in that capacity, upon her death, she would be succeeded by .her husband, Bahawal Bakhsh, plaintiff". The present suit was not brought by Bahawal Bakhsh in that capacity, but in the company of his brother, Muhammad Hayat, and his father, Ibrahim, as reversioner s, entitled to 'succeed on the death of Mst. Sardar Bibi. Muhammad Hayat; plaintiff, himself as P. W. 1, stoutly ,denied that the husbands of Mst. Sardar Bibi and Hakim Bibi were ever made khanadamads. Both of them continued to live in village Kot Nathu after their marriages. The property .in the names of the daughters was mutated, as they were married in the family. In cross‑examination, it was further stated that "she (Mst. Bhag Bhari) never appointed husband of her these two daughters as khanadamads". To the same effect is the statement of Ali Muhammad (P. VV. 2) that Muhammad Bakhsh had not appointed any one as a khanadamad. A reference to the previous litigation in the year 1913 might now be made here. It appears that Mst. Bhag ,Bhari the widow of Muhammad Bakhsh, made a gift of some land to her daughters, Hakim Bibi and Sardar. Bibi. A suit for a declaration was instituted by Ghulam Rasul, son of Fazal Din (another brother of Muhammad Bakhsh) that the gift should not affect his reversionary rights ; Shams Din, and Bahawal Bakhsh, the husbands of the donees, were impleaded as defendants in the. case. The defence was that Muhammad Bakash, the last male owner had betrothed his daughters in. his lifetime to Shams Din and Bahawal Bakhsh and kept them in his house with the intention of appointing them " khanadamads ". Reliance was also placed upon a will made by Muhammad Bakhsh with a direction h s wife to make the appointment. The plaintiff, in to his ireplication, controverted the alleged betrothal of the girls in the lifetime of Muhammad Baklish and the will was said to be a forgery. The trial Court decreed the suit and found that the will was not a genuine affair and would not be given effect to. On appeal, the Divisional Judge, Jhelum (Mr. P. L. Barker), reversed the Judgment of the trial Court and dismissed the plaintiffs suit on the 27th of March 1914. It was held that "'the execution of the document has beets satisfactorily proved ; that it authorised the widows to appoint two khanadamads, that the appointment of. two kahnadamads was perfectly valid by custom ; and that the gift to the wives of those khanadamads was consequently a good one, which the present plaintiff cannot challenge". It is from this judgment that the status of Bahawal Bakhsh or Shams Din as a khanadamad of Muhammad Bakhsh was claimed to be established. The question of the rights of a khanadamad of his privi leged position arises only where the daughter is not herself entitled to succeed under custom which is usually in the case of ancestral property. It has no importance, or significance in cases of self acquired property to which the daughter ordinarily succeeds. Paragraph 27 of Rattigan's Digest lays down :‑ "

27. A resident son‑in‑law, or khanadamad, was under some of the older. decisions, recognised as ad heir to the father‑in‑law's estate in default of male issue. But according to the snore recent decisions, it is his wife, as a daughter, and her issue, as grand‑children, who, by reason of her continued residence with the father after her marriage, are alone intended to be benefited by custom. ‑ Hence the onus lies on the khanadamad to prove that he is entitled to exclude the ordinary heirs in his own right. Before the year 1892, some of the decided cases of the Punjab Chief Court held that the 'estate of a khanadamad, on his. death without, sons, .passed to his own heirs and not to those of his fathr‑in-law. Sita Ram and others v. Raja Ram 12 P R 1892, a Full Bench judgment, examined and reviewed the. earlier cases and laid down that there was no general custom among Jats in the Punjab in favour of the succession of the collateral of a person who had been adopted by an informal customary adoption, or who had received a gift as a daughter's husband or a daughtor's son to succeed, in default of the lineal heirs of the adopted son, or donee, to the exclu sion of, the collaterals of the person from whom the adopted son or donee derived his title. In no case has it been found that their right has been proved affirmatively by an examina tion of numerous instances of actual succession. On the contrary, where custom has been most fully inquired into, the findings of the lower Court's have been against the supposed right." (vide page 59). The fact is that it is for the benefit of the daughter and her descendants, that custom sometimes permits either the alienation of ancestral property to her or her succession to that property. There is nothing on the present record to suggest that the rule among the tribe of the parties was different and there is no evidence to discharge the onus which rested on the khanadamad himself to prove that on the death of his wife, Mst. Sardar Bibi, he would succeed her. It might be mentioned here in passing that paragraph 270 of Rattigan's. Digest which allows the husband to succeed to the property of his wife on her death, applies only to the wife's stridhana, that is the property of which she was the sole owner. The nature and the effect of the consent to the succession of Mst. Hakim Bibi and Mst. Sardar Bibi, on the death of their mother, Mat. Bhag Bhari, by Ibrahim and Shams Din the reversionary heirs, remains to be considered. It has already been noticed that both of them had appeared before the Revenue Officer at the time of the mutation on the 25th of April, 1927, and stated that "with all our rest wishes"' they desired the mutation in respect ‑of ownership to be entered in the names of the daughters. If the daughters under custom had then no right to get the inheritance after Mst Bhag Bhari, the assent to the substitution of their names in the revenue ‑records, would amount to a relinquish ment in their favour of their rights by the reversioners in a part of the property to which they themselves had become the heirs. There is nothing in their statements to indicate that the transfer to the daughters was being made subject, to any condition or for any length of time. All that is mentioned in the mutation order is that at the express request of the reversioners, the names of the daughters were entered 1 in the revenue records. The learned Judges of the High Court, dealing with this aspect of the case, contended themselves with the remark: "It cannot, therefore, be argued that the consent of Shams Din and Ibrahim on the death of Mst. Bhag Bhari implied a consent to the absolute ownership of Mst. Sardar Bibi and Mst. Hakim Bibi. All. that they intended saying was that although they were reversioners of Muhammad Bakhsh, they had no objection to the property being inherited by the two daughters, apparently because they were the wives of two khanadamads". This speculation‑not sustainable on the plaintiffs' own evidence quoted above‑fails to furnish a satisfactory answer and the `intention' has to be gathered from the words used which do not contain any qualifying phrase. Wherever a reversioner assents to the transfer of property of which he has become the owner, it does not necessarily mean or follow that the transfer was not of an absolute nature. The burden of establishing that Ibrahim and Shams Din, having agreed to the mutation of ownership in the names of the to daughters of Mst. Bhag Bhari, had acted with some mental reservation, was upon them, and, beyond a mere denial that they had any such intention, nothing further was brought on the record to discharge it. Looking to the circumstances of the case, it does not appear that the daughters were permit ted possession and enjoyment of a portion of the property during their lifetime only. They were married, one to the son of Ibrahim and the other to Shams Din himself, and, therefore, there could be no idea on their part that the daughter‑in‑law of one or the wife of the other, should simply enjoy the produce of a part of the land which had once belonged to their father. The succession to the estate of Mst. Bhag Bhari .had opened out, and Ibrahim and Shams Din were in a position to forego a part of their inheritance in favour of any person and more so where the property was self‑acquired in their hands and the alienation of which could not be subject to the control of any other person. Ibrahim and Shams Din having one given their consent could not turn round and claim that g the property still belonged to them. Whatever might be said by some other heir of Muhammad Bakhsh, it is not open to Shams Din, or Ibrahim, or persons claiming through him, to say that Mst. Sardar Bibi and Mst. Hakim Bibi had not acquired full rights in the property which was mutated in their names on the 25th of April, 1927. The foregoing discussion would make it evident that the two questions arising in the appeal must be answered against the reversioners whose rights to succeed, could not, in any case, precede those of the daughters and their issues who are the immediate heirs. In the result this appeal is accepted and the plaintiffs' suit for declaration dismissed with costs throughout. K. M. A. Appeal accepted.