' SARDAR MUHAMMAD RAZA KHAN, J.--- Bashir Ahmed has filed this appeal from the judgment, dated 1-3-2005 of a learned Judge in Chambers of Lahore High Court, Multan Bench, whereby, the concurrent findings dated 17-9-1998 of Senior Civil Judge, Muzaffargarh and dated 27-9-2001 of Additional District Judge, Muzaffargarh, decreeing the appellant's suit, were set aside and he was non-suited on acceptance of revision petition filed by the respondents.
2. Brief facts of the case are that 146 Kanals, 19 Marlas of land belonged jointly to one Mehmood son of Karim Bakhsh and his wife Mst. Hayat Khatoon. They were Baloch by Caste. Mehmood died in 1934 whose inheritance; vide Mutation No,135 of 9-6-1934, devolved upon his son Abdul Aziz. About 10 years later Mst. Hayat Khatoon also died in the year 1945 whose inheritance devolved again on her son Abdul Aziz vide Mutation No,237, dated 19-5-1944. The peculiarity to be noted is that the legacy of Mehmood did not devolve upon either his wife Mst. Hayat Khatoon or his daughter Mst.
Ghulam Zohran, the latter having died in the year 1945. So is the case of the inheritance of Mst.
Hayat Khatoon in whose inheritance mutation, the daughter Mst. Ghulam Zohran again stood excluded.
3. Present appellant Bashir Ahmed is the son of Mst. Ghulam Zohran. In the year 1992 Bashir Ahmed brought a civil suit, challenging mutations aforementioned and claiming 1/3rd share of her mother which she ought to have inherited from her parents. The suit was decreed by the learned trial Court on 17-9-1998, against which, the appeal before the learned Additional District Judge also failed on 27-9-2001. The learned High Court, while exercising revisional jurisdiction observed that the learned two Courts below had fallen into error of misreading and non-reading of evidence that led to mis appreciation of law and miscarriage of justice. The concurrent findings were set aside. The appellant Bashir Ahmed was non-suited through judgment, dated 1-3-2005. Hence this appeal.
4. The appellant claims inheritance on the basis of "Sharia" which is denied by the defendant on the basis of custom, where daughters were deprived of inheritance in the presence of sons. We would proceed to appreciate the evidence as well as the law on the subject with settled principle in mind that whenever a Muslim claims inheritance, the rule of law shall be the Muslim Personal Law (Sharia) and the party placing reliance upon custom shall have no prove the existence thereof.
5. Keeping in view this basic principle of law and the onus to prove custom, we would now advert to the evidence on record. The disputed mutations of inheritance were attested on the verification of one Ghulam Rasool who admittedly was the grandfather of Bashir Ahmed plaintiff. The question of collusion of Abdul Aziz with any other person cannot be accepted at all because at the time of such attestation he was only a minor, six years old. The strong inference would, therefore, go in favour of the defendant who was a minor at the time of inheritance and in whose favour the mutation was attested on the verification of plaintiff's real grandfather named Ghulam Rasool.
6. At the first instance, one gets impression that "Sharia" prevailed at the relevant time because Mst. Hayat Khatoon, being a lady was owner of the property. This presumption is shattered by the plaintiff himself when he says in the cross-examination that his grandmother (Mst. Hayat Khatoon) had inherited the property from her father because her father had no male issue. The plaintiff admits that right from 1934 upto the institution of the present suit, neither his mother Mst. Ghulam Zohran nor his father claimed any share of inheritance.
7. His witness Ghulam Nabi (P.W.2) who is aged 95 has categorically alleged that previously they used to follow custom but now "Sharia" is applicable. He explained that during British regime his mother and maternal-aunt had no doubt received share of inheritance but it was only because they had no brother. The plaintiff's own witness admits the existence of custom. The evidence of defendants is also on the same line where Allah Wasaya (D.W.1) reiterates the prevalence of custom at the time of the opening of disputed inheritance. Ghulam Qadir (D.W.2) not only proved the alleged existence of custom but gave numerous examples where the females were disinherited in the presence of males and that this custom prevailed among Baloch Tribe. Abdul Aziz defendant (D.W.3) reiterated the same claim regarding the existence of custom. He alleged that at the time of attestation of disputed mutations he was a minor of about six years and that the mutations were attested on the verification of one Ghulam Rasool, the real grandfather of the plaintiff/appellant. He further explained that no doubt his mother Mst. Hayat Khatoon inherited the property but it so happened only because the two sisters had no brother.
8: From the evidence on record, it clearly transpires that at the time of devolution. The rule of inheritance that prevailed among Baloch Tribe was custom and not (Sharia). This is fortified by Riwaj-e-Aam, Exh.D.9 and Exh.D.10 (pp.117 to 122) on record which categorically lays down that in the presence of male children, the female were excluded from inheritance. The learned High Court, with reference to oral evidence on record as well as the aforesaid Riwaj-e-Aam, has very rightly observed that the learned Courts below had fallen into error of misreading and non-reading of evidence.
9. 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. Such devolution has been declared absolute by section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the relevant portion of which is reproduced as under:- "2-A. Succession prior to Act (IX of 1948).--- Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land, under custom from the person who at the time of such acquisition was a Muslim:--
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat);
(b) .........................................................................................
(c) ............................................................
10. In the instant case it has sufficiently been proved through oral as well as documentary evidence that the rule of inheritance at the relevant time was custom. Once inheritance had devolved under such custom and prior to 1948, the person acquiring such agricultural land becomes absolute owner thereof. The learned High Court has rightly appreciated the evidence as well as the law, in favor of Abdul Aziz, the defendant. The provisional jurisdiction has rightly been exercised by setting aside the concurrent findings of the Courts below. There being no force in the appeal, it is hereby dismissed with no order as to costs.