Custom

Property which came to a person under custom at once became subject to Muslim Law on passing of Muslim Personal Law (Shariat) Application Act, 1948, which introduced distribution of property on Muslim heirs in accordance with Muslim Law.

Properties of deceased/predecessor in interest of parties was mutated only in favour of "A1" son of "A" (1st son of predecessor) as per custom

After death of "A1", the same was inherited by his mother "A2"

After her death, properties were inherited by "B1", "B2", "B3" and "B4" being legal heirs of "B" (2nd son of predecessor); and by "C1" being legal heir of "C" (3rd son of predecessor)

After death of "C1", his property was inherited by his widow "C1a" and his daughter "C1b"

Suit for declaration, challenging all mutations, was instituted by legal heirs of "E" (5th son of predecessor) against legal heirs "B1", "B2", "B3", "B4", "C1a" and "C1b" claiming inheritance from the legacy of "A" contending that "A2" was limited owner and they had right to inherit her property; that had right to inherit from the legacy of "C1"; and had right in the property of tamleek whereby "B4" gifted his property to his daughter

Trial Court had cancelled mutation of "C1" and delivered 1/3 share to "B4" being uterine brother of "C1"

Appellate Court decided that after distribution of due shares of "C1a" and "C1b", shares may be distributed among other heirs of "C1" but "B1" should inherit nothing

Both parties filed their separate revision petitions

Validity

Held, that in accordance with S. 3 of Muslim Personal Law (Shariat) Application Act, 1948, on termination of limited owner of female ("A2") inheritance was opened at the time of death of last male owner (A1) and successors of propositus were entitled to inherit

Plaintiffs not being legal heirs of "B4", had no locus standi to challenge tamlik/gift made by "B4"

Property held by the lady by operation of law reverted/return to last full owner "A" and his legal heirs were entitled to receive their respective shares

Property was to be distributed amongst his legal heirs according to the following shares: "A2" (widow) = 4/32; "A3" (daughter) = 7/32; "A4" (daughter) = 7/32; A1 = 14/32

On death of "A1", his property was to be shared by the following: "A2" (mother) = 1/3; "A3" and "A4" = 2/3

No property was left for distribution amongst lineal defendants

Plaintiffs had neither legal heirs of "C1" any of the said shares nor had any right to challenge the validity of mutations

"C1" had a child (daughter), therefore, his uterine brothers had no right of inheritance from his legacy

Perusal of mutation showed that "C1a" and "C1b" were given 1/8 and 7/8 shares from legacy of "C1" which was incorrect

Instead, "C1a" would get 1/8; "C1b" would get 1/2 (3/8); and rest of 3/8 share would go to paternal uncle's sons of "C1"; and mutation was ordered to be liable to be corrected

Plaintiffs failed to bring on record death certificates of such persons, hence entitlement of paternal uncle's sons could not be decided at present stage

Judgments/decrees of Courts below were modified

Divergent revision petitions of both parties were disposed of accordingly.

Law would respect all the traditions/customs of the individual caste if those were not contrary to the law of land.

Section 3(2) clearly indicated that notwithstanding any custom that was in force prior to the 1935 Act coming into force, whenever a question of succession upon the death of a Muslim arose in any Court, the Muslim Personal Law would be applicable with effect from the time of such death

Word 'whenever' contained in S. 3(2) was significant; it meant that whenever a question relating to succession of a Muslim was raised in any Court, the Muslim Personal Law had to be applied with effect from the time when the death had taken place irrespective of the fact that at that time some custom was in force.

Where a female recorded in special Jamabandi as a limited owner under custom migrated to Pakistan and filed a claim for allotment on basis of her ownership in India, the property allotted to her in lieu of the limited estate abandoned in India would on her death devolve on the heirs of the last male owner of the property left in India and not on her own heirs

Mutation entries, in the present case, clearly showed that the widow did not acquire the subject property in India as full owner, and her status throughout had been of limited owner under custom

When the widow filed the claim in Pakistan in lieu of the property of her deceased husband, the last male owner, the property allotted to her conferred on her a right as a limited owner and in case of her death or termination of the limited ownership, the property was to devolve on the heirs of the last male owner namely her deceased-husband and not on her heirs as full owner

Appeal was dismissed accordingly.

Claimants' predecessor-in-interest having been deprived of his share from the legacy of father on the ground that he had been adopted by his maternal grandfather and had inherited from him

Effect

Plea of plaintiff was that she was entitled to inherit from the estate of her propositus whereas defendants contended that predecessor-in-interest of plaintiff was deprived of inheritance in accordance with the custom

Suit was dismissed by the Trial Court but Appellate Court decreed the same

Validity

Customary appointment of an heir did not involve the transplantation of a person from one family to another

Tie of kinship with the natural family would not dissolve and the fiction of blood relationship with the members of new family had no application to the appointed one

Relationship created among the appointer and appointee was personal by choice and did not extend beyond the contracting parties on their sides

Decisions with regard to succession must take place as per custom applicable to the parties concerned otherwise Muslims were to be administered by Islamic Law for succession among them

Defendants were bound to prove that custom prevailed for years and years without any interruption among their tribe as per their common will and unanimous intention

Heir ordained by Islamic law in absence of custom could not be deprived of his legal share from inheritance which would vest in him automatically upon the death of his propositus

Benefit of S. 5 of Muslim Personal Law (Shariat) Application Act, 1948 could only be extended if it was proved that parties were governed by the practice otherwise Islamic Law was to be applied

Nothing was on record that family of the parties was governed by custom that an heir could be deprived of his shari share from the legacy of his father

Impugned inheritance mutation could neither be supported nor perpetuated in circumstances

Fraud would vitiate every solemn transaction and Court should not endorse and perpetuate a fraud once it was proved to have been committed

Any transaction found to be result of misrepresentation could not be protected on the sole score of limitation

Limitation did not apply in case of inheritance; no limitation would run for a co-sharer and barrier of limitation would not be any hurdle in the enforcement of rights of inheritance

Entries in the revenue record would afford fresh cause of action to the plaintiff and adverse entries if allowed to remain unchallenged did not extinguish right of a party against whom such entry had been made

Every fresh entry in the revenue record would give fresh cause of action to the plaintiff to challenge the same

Revision was dismissed in circumstances.

Trial Court dismissed the suit holding that same was barred by time, bad for mis-joinder and non-joinder of necessary parties but Appellate Court decreed the same

Validity

Plaintiffs could not succeeded on the revenue side for their claim

Revenue officials as well as province of the Punjab having not been impleaded as defendants in the suit, order of consolidation officer could not be challenged without impleading Province of Punjab in the suit as party

Evidence of earlier suit which was with drawn as well as pleadings and judgment and decree passed could not be used in subsequent suit unless produced in evidence and proved in accordance with law

Certified copies of said record had been produced without their formal proof

Certified copy could not be read in favour of plaintiffs of subsequent suit when earlier suit was withdrawn by the plaintiffs of said suit

Allotment of land was made in the year 1951 and first suit was filed on 14-10-1980

Suit for declaration of title could be filed within a period of six years

When plaintiffs of the present suit joined the proceedings of earlier suit then filing of subsequent suit on 04-09-2002 was barred by time

Persons who were unable to challenge alienation of suit land for variety of reasons and legal objections including the one that suit was barred by limitation were given opportunity to file fresh suit within a period of one year

Present suit was barred by time

Suit even in the matter of inheritance must be filed within prescribed period of limitation

Question of limitation could not be considered a technicality in the matter of inheritance

Neither Provincial Government nor its officials had been impleaded as defendants in the present case

Act done by the said officials in their official capacity could not be set aside when Province of the Punjab had not been impleaded as party

Some portion of suit property was transferred through mutation of exchange and property received in exchange was further mutated through gift mutation and rest of the land was transferred through sale deed but sale deed had not been challenged in the present suit

Findings recorded by the Appellate Court were against record which were result of mis-reading and non-reading of evidence

Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored

Revision was allowed in circumstances.

What one could not obtain legally, the same could not be obtained indirectly even in the name of a custom or an old practice.

Whenever dispute had come before the court of law with regard to succession to the estate of deceased Muslim he would be deemed to have died under the domain of Muslim Law even if death had taken place before coming into force of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935

Daughters of deceased could not be deprived on the basis of custom rather they would be entitled to their shari share as provided in Islamic Law

Plaintiffs being daughters of deceased were entitled to their shari legal share under the divine law which could not be extinguished by any instrument of mutation

Plaintiffs became co-sharers in the property on the death of propositus

Possession of one co-heir/co-sharer would be deemed to be held on behalf of all co-heirs/co-sharers

Limitation would not run against co-sharer

Every successive adverse entry in the revenue record would give a fresh cause of action

Suit of plaintiffs being a matter of inheritance was within time

No illegal act or wrong entry could be legitimized with efflux of time howsoever long it might be

Appellate Court had committed illegality while setting aside the judgment and decree of Trial Court

Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored

Suit filed by the plaintiffs was decreed

Revision was allowed in circumstances.

Male member who had inherited from a Muslim under custom was to be deemed to have become an absolute owner upon such acquisition

Present suit was not competent in circumstances

Revision petition, in circumstances, was defective and was dismissed.

Defendant produced copy of Register Rewaj-e-Aam according to which in case of death of a person the female heirs i.e. widow, daughter or sister did not inherit rather the sons would inherit the deceased

If deceased had no son then ancestors would inherit and in that eventuality female would take property for her subsistence as limited owner

Interpretation of evidence by both the courts below was wrong and not sustainable under the law

Matter of inheritance with regard to agricultural property was to be governed in accordance with Shariat after enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948

Previous transaction and attestation of mutation and devolving of property in accordance with custom had become past and closed transactions

Predecessor of plaintiffs died in the year 1998 and she never disputed the attestation of impugned mutation in her lifetime

Plaintiffs filed the present suit even two year after the death of their predecessor

Present suit was barred by time

Question of limitation could not be considered as technicality

Even in the matter of inheritance suit must be filed within the prescribed period of limitation

Appellate Court had not decided the matter in accordance with the procedure and findings had not been given issue wise

No question for determination was formulated by the Appellate Court

Findings recorded by the Appellate Court were defective

Appellate Court was bound to decide the matter independently issue-wise

Backing upon the findings of Trial Court was not correct procedure adopted by the Appellate Court

Appellate Court was bound to look into the question of limitation itself

Findings recorded by the Courts below were not sustainable under the law

Impugned judgments and decrees passed by both the courts below were set aside

Suit filed by the plaintiffs was dismissed

Revision was allowed in circumstances.

Present suit was filed after 32 years of the death of legal heir of propositus which was beyond the period of limitation

Propositus of the parties was governed by custom and inheritance mutations had rightly been sanctioned

Plaintiffs had no locus standi to challenge the impugned mutations

Suit of the plaintiffs had rightly been dismissed by the courts below on merits as well as on limitation

Propositus of the parties died prior to the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948 when custom was still applicable and rule of inheritance was custom

If a person had acquired property under custom from a Muslim, he should be deemed to have become an absolute owner of such land as if the land had been devolved on him under the Muslim Shariat Law provided such acquisition has been acquired prior to the enforcement of Muslim Personal Law (Shariat) Application Act, 1948

Impugned judgments passed by the courts below were based on valid reasons

No mis-reading, non-reading, infirmity or perversity was pointed out in the impugned judgments and decrees passed by the courts below

Revision was dismissed, in circumstances.

Woman could not be declared as "Kari" and no one could decide the fate of a lady while awarding her death penalty on pretext of "Kari"

Woman could not be married with Quran to escape her right in property

No one could give a lady as compensation for sin if any of others and maltreat her

No custom could be in conflict with law of the land

'Jirga' could not be backed by any law and only courts would be competent to pass a decree and enforce it

Law enforcing agencies were bound to prohibit happening of offences and ensure sense of security to each single individual

Every participant of "Jirga" must be dealt with in accordance with law

Police officer failing to stop the "Jirga" should be prosecuted in the list of accused

State should establish 'Dar-ul-Amman' and safe-house(s) at each District/Taluka level where a victim family could safely reside/stay till she was able to send to her demanded place or she agreed to go with the person of her choice

Such safe-house should be managed and controlled by women only

Provincial Chief Secretary was directed by High Court to establish safe-house(s) at Taluka level and make necessary arrangements for the said houses and victims

Commissioners were directed to supervise the issue with regard to women in their respective divisions

District and Sessions Judges were directed to dispose of cases with regard to violence against women within a specified period

Constitutional petitions were disposed of accordingly.

Contention of plaintiffs was that decree passed under custom in favour of defendants had become redundant and had no legal effect

Suit was decreed concurrently

Validity

Suit land was in possession of plaintiffs being vendee from defendants

Right of defendants in the impugned judgment and decree was declared to be that of reversioner under custom and only declaration was granted that right of inheritance should not be affected by the transaction as under custom plaintiffs could claim right of inheritance in the ancestral property

Minor son of the deceased had no right of inheritance in himself at the time when he filed the suit

Suit in which decree was passed in favour of defendants was illegal and incompetent

Revision was dismissed in circumstances.

Predecessor-in-interest of plaintiff died in the year 1910 and his legacy devolved upon his daughter according to custom but she was deprived from the same on her marriage

Said property was transferred in favour of defendants in toto which was against the mandate of Shariah as same had to be devolved on the plaintiff and defendants as per their shares in accordance with Shariah

Appellate Court had not considered such aspect of the case and its judgment and decree were nullity in the eye of law

No limitation would run against a person in possession of property as a legal heir

Plaintiff being legal heir of deceased had become co-owner of the property and she would be considered in possession along with defendants as mutation attested under custom had no legal effect on promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 which had been given retrospective effect

Plaintiff would be deemed to have inherited the suit property in the year 1910 at the time of death of male muslim owner and since then she would be presumed in possession of property

Bar of limitation would not be applicable in case of inheritance

Plaintiff was given her due share and she had no knowledge of transfer of property on the promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 and her entitlement to inheritance stood established right from the year 1910

Plaintiff could not be said to have estopped by her own conduct

Principle of acquisance would not be applicable in the present case

Succession would open on the death of a muslim and his property would automatically vest in the legal heirs and no intervention of State agencies or revenue authorities would require for the same

Efflux of time did not extinguish any right of inheritance of legal heir as on the death of owner of property he would become co-owner in the same

Limitation would run not from the date of death or attestation of mutation but when the right of successor was denied

No limitation would arise in the matter of inheritance

Suit was within time as same was with regard to matter of inheritance

Revision was accepted and judgment and decree of Appellate Court were set aside and those of Trial Court were restored.

Real brother of plaintiff died issueless on 10-12-1935 and his estate was mutated only in favour of plaintiff's consanguine brother as per custom at that time

Plea of plaintiff that Governor-General assented to the Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935, on 5-12-1935, i.e. prior to death of real brother, therefore, custom had been abolished because of which she was one of the legal heirs of her real brother, and was entitled to inherit his estate to the extent of 1/3rd share

Plea of consanguine brother that Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 had not been published in the official gazette when real brother died, therefore said law had not come into force and resultantly consanguine brother under the prevailing custom was the only person entitled to inherit the suit land

Validity

Section 5 of General Clauses Act, 1897 provided that where any Act was not expressed to come into operation on a particular day, then it shall come into operation on the day on which it received assent of the Governor-General

Admittedly, Governor-General assented to Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 on 5-12-1935, therefore said Act became operative immediately, thereupon real brother of plaintiff died on 10-12-1935, which was an event subsequent to the coming into operation of the said Act

By virtue of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935, inheritance on the basis of custom was abolished and inheritance of a Muslim was to be governed and settled according to Muslim personal law

Plaintiff in such circumstances was duly entitled to inherit the estate of her real brother, according to her share under the Shariah

Appeal was disposed of accordingly.

Real brother of plaintiff died issueless and his entire estate was mutated only in favour of the consanguine brother, in violation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935

Subsequently consanguine brother and his successors sold/transferred part of such estate to third parties

Plaintiff filed a declaratory suit contending that under Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 she was entitled to inherit in her real brother's estate to the extent of 1/3rd share, therefore, sales/transfers of part of such estate made by her consanguine brother or his successors in favour of third parties were void and ineffective

Validity

Held, that plaintiff was entitled to 1/3rd share from the estate of her real brother, and all transactions which had been made by the consanguine brother and his successors should be taken to have been made by them from their own share, having no bearing or effect upon the rights/entitlement of plaintiff to the extent of her 1/3rd share

Appeal was dispose of accordingly.

Female according to custom of Kalash would not be entitled to get share out of inheritance of ancestors.

When legal heirs of deceased sister approached the brother of their mother for their mother's share in land, he told them that no land had devolved upon their mother

Legal heirs of deceased sister filed suit for declaration, which suit was concurrently dismissed by the Trial Court and Appellate Court below

Validity

After death of owner predecessor-in-interest of the original owner of land, mutation of inheritance was sanctioned in favour of his son, excluding his daughter

Claim of the plaintiffs was that their mother was entitled to inherit 1/3rd of the property of deceased original owner being his daughter according to the law of inheritance

Applicable Custom was at the time of sanctioning of impugned mutation, whereby in presence of male, the females were excluded to inherit the property of deceased

Mutation was sanctioned in the year 1935 and whole property was inherited by defendant/son of deceased original owner and daughter/mother of the plaintiffs was excluded to inherit the same due to the application of custom at the relevant time and Shariat was not applicable in the case of inheritance

Mother of the plaintiffs never challenged said mutation in favour of her brother/defendant during her life time

Mutation was rightly sanctioned in favour of the defendant being sole male member

Concurrent findings of the courts below could not be interfered with in revisional jurisdiction of High Court, as courts below while passing orders and decrees had taken into consideration all material aspects of the case; and findings were based on proper appreciation of oral as well as documentary evidence led in the suit.

Pre-emptors filed suit with regard' to residential house situated in urban area on the basis of custom prevailing in that locality

Suit decreed in favour of pre-emptors. by Trial Court was concurrently dismissed by Lower Appellate Court and High Court

Validity

Lower Appellate Court while passing its judgment against pre-emptors examined all relevant documents on record in prudent and careful manner and came to the conclusion that pre-emptor had failed to prove existence of custom of pre-emption in the locality (Niya Mohallah, Jhelum City) at the time of promulgation of Punjab Pre-emption Act, 1913 and on that account non-suited the pre-emptors

High Court, in exercise of appellate jurisdiction had given due consideration to all submissions of parties and carefully perused documents produced before him by both parties in respect of their respective claim/ defence

High Court rightly dislodged claim of pre-emptors about prevalence of custom of pre-emption in locality in question at the time of introduction of Punjab Pre-emption Act, 1913

Supreme Court declined to interfere in judgment and decree passed by High Court

Leave to appeal was refused.

Party claiming under Custom was obliged to establish valid Custom by showing that it was ancient, invariable, uniform and continuous which must be proved through clear and unambiguous evidence

Quantum of evidence necessary to prove existence of Custom was greater than that required to negate, otherwise the personal law of inheritance would be presumed to prevail in the area, if the area was Muslim populated.

Once it is settled that rule of inheritance at certain time was custom and some person acquired the property under custom from a Muslim, he shall be deemed to have become an absolute owner of such land as if such land had devolved on him under the Muslim Personal Law (Shariat) provided such acquisition had occurred prior to the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948 and such devolution had been declared absolute by S.2-A, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.

In absence of any instrument in the nature of Riwaj-e-Aam Wajib-ul-Arz and Judicial decisions on the subject, court cannot come to the conclusion that parties are governed by custom.

Principles.

Usage and custom is well-recognized spice of law under the jurisprudence besides laws made by legislature and the precedents.

Valima is only Mubah and is not obligatory.

Such entry in Wajib-ul-Arz cannot be received with same legal value as is associated with Riwaj-i-Aam.

History and concept.

High Court in second appeal granted declaration in favour of heirs of deceased that they would be entitled to inheritance under Muslim Law when succession opened on termination of limited interest of widow to the extent of their share which they would inherit on termination of limited interest and that sale-deed in favour of vendees would be ineffective against their rights

Plaintiffs on termination of limited interest, being heirs of deceased male owner and on basis of said decree were found entitled to 7/8th share of property left by deceased while defendants were entitled to 1/8th share of estate which was share of widow of last male owner and which, as per decision of Court, would go to defendants as alienees from her

Possession of entire property was, however, handed over to plaintiffs

Remedy

Supreme Court by exercising inherent powers under O.XLIII, Rr.3 & 4, Azad Jammu and Kashmir Supreme Court Rules, 1978 passed decree of joint possession of 1/8th share to which limited owner was entitled as widow of deceased last male owner in favour of defendants and decree for joint possession of 7/8th share of estate left by last male owner in favour of plaintiffs.

Leave to appeal was granted to consider whether on opening of inheritance of last male owner on the death of limited owner, property in question, was to revert back to last male owner and devolve on the heirs then alive at the time of death of last male owner in accordance with West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 which entitled plaintiffs to inherit share of predeceased son of last hale owner.

On termination of limited estate by West Pakistan Muslim Personal Law (Shariat). Application Act, 1962, succession to property of last full owner opened and same was legally to be divided among Shari heirs of last full owner living at the time of his death

Widow being alive at the time of last full owner's death who died issueless was entitled to inherit 1/4th Share

High court had rightly modified judgments of Courts below by decreeing plaintiff's suit to the extent of 3/4th share (excluding widow's 1/4th share)

Leave to appeal was refused in circumstances.

Under custom, in absence of male lineal descendant, widows and unmarried daughters succeeded to estate as limited owners only to enjoy usufruct of property till life, marriage or re-marriage and ownership used to vest in reversioners of last full owner

Defendant/donor having succeeded to property as life estate owner, was not competent to alienate such property in favour of any body

Gift made by limited owner of property in question; in favour of plaintiff/donee was, thus, invalid.

Entry in Revenue Record being the same with regard to nature of possession by all the females it would not be safe to single out one of them to claim that she alone was a `guzarakhaur' and not a limited owner.

Deductive process of appreciation of evidence by Appellate Court on question of Custom relating to life estate of issueless widow in a particular district was not approved, while inductive method of approach to the proposition by Trial Court was unexceptionable

Ultimate findings of both Courts below, however, being the same and concurrent, were affirmed by High Court in revision.

Custom must be ancient, continuing, unaltered, uninterrupted and constant.

In the absence of male lineal descendant of deceased, females, however, acquired life estate till their death, remarriage or marriage

Last male owner of property having decided during the time when Custom was the rule of inheritance, and he having no male lineal descendant, attestation of mutation in the names of his widow and daughter, per se established that they possessed the land as limited owners and that on termination of life estate, property was to revert back to collaterals of deceased.

Party raising plea of Custom had to allege it in specific terms, in the pleadings and prove it as such in the State of Jammu and Kashmir, before independence

Estate of deceased, the last owner, unless Custom was pleaded expressly and proved in like manner; was to devolve on the heirs in the manner prescribed in personal law

Fact that the property exclusively devolved on the widow and that a mutation was sanctioned to that effect, by itself was not sufficient to raise presumption in favour of any special Custom prevailing in the family of deceased

In absence of proof of Custom, parties were deemed to be governed by the personal law of inheritance.

Plaintiff being daughter of deceased was, therefore, rightly declared entitled to inherit half of the estate of such deceased including built up property.

Last male holder of agricultural land dying issueless and his inheritance mutation attested in favour of his mother and sanctioned on 8-9-1939 i.e. before enforcement of Punjab Tenancy (Amendment) Act, 1939 though under the law standing at that time she could not succeed to rights of occupancy left by her deceased son

Custom being the first rule of decision in matters relating to inheritance, apparently revenue authorities by inadvertence sanctioned mutation in favour of deceased's mother

Nothing on record or in pleadings to show that deceased's mother remained in possession of suit land in her own rights in contravention of rights of reversioners of last male holder or that she asserted a right adverse to legal heirs to her deceased son and in absence

Relinquishment deed executed by such female intended to operate as a relinquishment of rights she and her two daughters would have in future to inherit the property at the time of termination of limited interest of said female owners under custom

Validity of transaction.-[ Custom(Punjab) ] .

Widow of predeceased son of owner is entitled to succeed to property to which her husband, if alive, would have succeeded-Widow in. such case succeeds to the estate of her father-in-law, as a maintenance holder till life or remarriage

Adverse possession

Property having been held by widow as maintenance holder, plea of adverse possession set up for full ownership in the property having no substance could not be accepted on demise of such widow succession would open and property would become available for distribution amongst heirs in accordance with S. 3, West Punjab Muslim Personal Law (Shariat) Application Act, 1948.

[Muhammadan Law

Adverse possession

Leave to appeal sought on ground that impugned judgment was based on special custom which was not pleaded by defendant in written statement and decision in favour of party could not be made to rest on ground which had not been pleaded by it

Plea, though correct, held, not relevant in context of case

Issue merely being as to who were valid heirs of deceased on his death and it having been established in evidence that special custom being claimed by respondent was being adhered to amongst parties

No attempt made to show that impugned finding was erroneous or not based on evidence on record

Attempt made to induce Supreme Court to ignore it, because no specific issue to that effect had been framed

Approach besides being highly technical and artificial, did not take into account full amplitude and breadth of issue which was actually framed

Leave to appeal .refused.

[Custom (Punjab)].

Plea raised that mutation entry did not mention about maintenance and her share being equal to that of her two sons, she should be treated as limited estate holder

General custom among agricultural tribes in Province being that in presence of a male descendant of deceased, his widow was ordinarily only entitled to suitable maintenance, whether such descendant was issue of surviving widow or of another wife

If a departure from general custom was pleaded, it had to be proved

Courts having concurrently held that special custom remained unproved, mere sharing of property equally with sons, held, was not sufficient to prove a special custom such as to displace general custom

Leave to appeal refused.

Custom cannot be extended by logical process or analogy, but must be established inductively and not deductively-Custom has to be specifically proved and onus lies on those alleging same.

Person alleging custom, held, was burdened with a heavy onus to prove custom qua personal law.

Art. 203-F read with Arts. 203-B, 203-D and Chap. 3-A, Part VII-Custom-Essentials of enforcible custom-Words "immemorial" and "usage" meaning of-Practice of presenting Guard of Honour by contingents of armed forces at Mazar of Quaid-i-Azam-Held, does not amount to custom or usage having force of law liable to be adjudicated upon under Chap. 3-A, Part VII of Constitution.[Words and phrases].

Mere statement in affidavit-in-evidence of Secretary of Dhorajl Association that no engagement in Memon Community could take place without registration and issue of receipt by Jamaat to that effect, held, not sufficient to establish such custom in entire Memon Community.

Art. 185(3j-Pre-emption-Custom-Custom of pre-emption established in locality where suit property situate-Issue of fact having been concurrently decided by Courts below in favour of respondent High Court, held, justified in not interfering with same in regular second appeal-Petition for leave to appeal dismissed. [Pre-emption]:

Customary law or riwaj amongst Baluch tribes in Baluchistan-Not very clear-Frontier policy laid down by Sir Robert Sandeman-Instructions or Circulars (contained in Green Book) for guidance of Political Agents in the matter-Do not have the force of law

Such instructions or Circulars, Courts would be reluctant to apply whenever they are found violative of rules of natural justice.

Custom -Customary right-Pre-supposes existence on assertion of that right by person enjoying it as of right and not dependent on consent of anyone else-Villagers claiming customary right of pasturage on adjoining land-Evidence on record, however, indicating that claimant villagers were in possession of such land with consent of landlord-Claimant, in circumstances, held, failed to prove their customary right.