' M. S. H. QURESHI, J.-This is a writ petition brought by the widow and the two daughters of Rehmat Masih, deceased, a Christian, to challenge the decision of the Assistant Collector to apply custom to the inheritance to the intestate property of the deceased.
2. Rehmat Masih had two sons from his first wife Mst. Reshman, namely, Issac Nazir Ullah and Edward Shamsher Ullah. After the death of Mst. Reshman, he married Mst. Inayat Bibi (petitioner No 1) from whom he got the two daughters, namely, Loreeta Nasreen (petitioner No, 2) and Abigal Safora (petitioner No, 3). Upon the death of Rehmat Masih on 29-3-1977, the mutation of the property was recorded in favour of the male issues, namely, Issac Nazir Ullah and Edward Shamsher Ullah excluding the petitioners, by the Assistant Collector II, vide Mutation No, 1061 dated 15-11-1977. The petitioners preferred an appeal before the Assistant Commissioner/Collector who held that "in all questions regarding succession of agricultural land belonging to non-Muslims, the rule of decision is generally the custom applicable to such non-Muslims and where there is no such custom the intestate succession shall be governed by the provisions of the Succession Act, 1925". However, finding that the question of applicability of custom had not been decided after due inquiry, he remanded the case by his order dated 7-3-1978, for a fresh decision with the direction that the question should be first duly inquired into. The Assistant Collector II, accordingly, passed a fresh order on 27-9-1978 holding that the customary law was applicable to the case. The petitioners again filed an appeal but did not pursue it as the same is stated to have been dismissed for non-prosecution and instead, moved the present constitutional petition challenging the aforesaid order of the Assistant Collector II, dated 27-9-1978.
3. In deciding the matter, the Assistant Collector held that the case was governed not by the Succession Act, 1925, but by section 5 of the Punjab Laws Act, 1872. This section lays down that in questions regarding succession, etc., the rule of decision shall be-
(a) Any custom applicable to the parties concerned, which is not contrary to justice, equity, 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.
4. Mr. Rashid Murtaza Qureshi, Advocate, who appeared for the petitioners, raised the following contentions :-
(i) After the Succession Act, 1865, the Christian Community was bound by the provisions of that Act in matters of succession and not by any custom and that in any case section 5 of the Punjab Laws Act, 1872 was impliedly repealed by the Succession Act, 1925 ;
(ii) even under the Punjab Laws Act, a custom cannot be made applicable if it was contrary to justice, equity and good conscience and that the exclusion of the females was, according to the Christian Community, opposed to equity, justice and good conscience; and
(iii) the only way to create an exception from the operation of the Succession Act, was by a notification to be issued by the Provincial Government under section 3 of that Act and no such notification having issued, the Succession Act was fully applicable.
5. It will not be correct to say that the Succession Act, 1865 had overruled custom. In fact, that Act did provide by its section 2 for an exception in the words, "Except as provided by this Act or by any other law for the time being in force, the rules herein contained shall constitute the law of British India applicable to all cases of Intestate or Testamentary Succession". Then, by its section 332, it empowered the Governor-General of India-in-Council to exempt by order, from the operation of the whole or any part of this Act, the members of any race, sect or tribe, in British India or any part of such race, sect or tribe, to whom he may consider it impossible or inexpedient to apply the provisions of this Act, or of the part of this Act mentioned in the order. It, therefore, cannot be said that there was no room for operation of the Punjab Laws Act, which was promulgated subsequently in the year 1872. This law would apply by virtue of the exception created by section 2 of the Succession Act, 1865. The position did not alter on the enactment of the Succession Act, 1925, for, the aforesaid relevant provisions of the Act of 1865 were incorporated in the latter Act. Part V of the Act of 1925 deals with intestate succession. By virtue of subsection (1) of section 29, this Part is not to apply to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina. This would mean that the Act would apply to the property of other communities but an exception is provided in subsection (2) of section 29 of this Act which reads :-
(2) Save as provided in subsection (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of (Pakistan) in all cases of intestacy."
' The Punjab Laws Act, 1872 would, therefore, continue to operate by virtue of this subsection even after coming into force of the Succession Act, 1925. In fact, we have not come across any case in which it had been held that the Succession Act had directly or indirectly repealed or rendered ineffective the provisions of the Punjab Laws Act, 1872. Learned counsel referred us to Kamawati v.
Digbijai Singh (1), in which it was held that a person who ceases to be a Hindu in religion and becomes a Christian cannot elect to be bound by the Hindu Law in the matter of succession, after the passing of the Indian Succession Act as the convert was governed solely by that Act. This ruling has no applicability to the case in hand; first because the matter before the Privy Council related to a province other than the Punjab, where the Punjab Laws Act was not operative and secondly because the exception in terms of sections 2 and 332 of the Succession Act, 1865 had not been established.
6. The effect of this judgment of the Privy Council on the Punjab had come up for discussion in Sohan Lal v. A. Z. Makuin (2), where Jai Lal, J. Had distinguished the ruling and had held: "The Privy Council case referred to above does not, in my opinion, prevent the Courts in this province from investigating the existence of a custom applicable to the parties in question regarding succession and other matters mentioned in section 5, Punjab Laws Act. Their Lordships in that case were dealing with a case relating to Indian Christians who resided in the United Provinces and the dispute was with regard to property apparently situated in the same province. But a reference to S. 2, Succession Act, shows that the rules contained in that Act have been made to constitute the law in British India applicable to all cases of intestate or testamentary succession: "except as provided by this Act or by any other law for the time being in force."
' This clearly makes an exception in the case of the local laws, and, as I have stated above, so far as this province is concerned section 5, Punjab Laws Act, does provide an exception."
7. The occasion for discussing the Privy Council ruling had been on account of a question which had come up before Jai Lal, J. i,e, whether an Indian Christian in the Punjab could make a valid adoption so as to change the rule of succession laid down in the Succession Act. The learned Judge held that it was open to a party to prove that according to the custom applicable to the parties, it could do so. In fact there are numerous decisions by no less than the Privy Council itself that in the province of the Punjab, custom, if established would apply to succession, etc. To the exclusion of the respective personal law. The question had been generally examined by the Privy Council in Vishno Ditti v. Rameshri (3), and it had been observed: "It has been laid down by Robertson, J., in Daya Ram v. Sohel Singh 100 P R 1906, in a passage approved by this Board in Abdul Hussain Khan v. Bibi Sona Dero, 45 Cal. 450 (P C) under the corresponding section 5 of the Punjab Laws Act, 1872, that that section raises no presumption that parties are to be governed by custom rather than by their personal law, and that the personal law of the parties must be applied unless the custom is proved. It may seem at first sight that this view of the section gives no effect {{FOOT NOTE}}
(1) AIR 1922 P C 14 3) (1928) 10 Lah. 86 (P (2) AIR 1929 Lah. 230 {{FOOT NOTE}} ' to clause (a) which requires the succession to be governed by any custom applicable to the parties concerned, and that the law would be the same if this clause had been omitted. In a sense, this may be so, but their Lordships are of opinion that in putting custom in the forefront, as the rule of succession whilst leaving the particular custom to be established as it necessarily must be, the Legislature intended to recognize the fact that in this part of India inheritance and other matters mentioned in this section are largely regulated by variety of customs which depart from the ordinary rules of Hindu and Muhammadan Law. In these circumstances it has been rightly held in the Lahore Court in the case above-mentioned (110 P R 1906) that, where a custom is alleged, a duty is imposed on the Courts to endeavour to ascertain the existence and nature of that custom, and the Local Government has come to their assistance by establishing a riwaj-i-am or record of custom in the different parts of the Punjab including the North-West Frontier Province, which was formerly included in it."
8. It is thus clear that where custom is established, the same will be the rule of decision to the exclusion of personal law and that notwithstanding the Succession Act, section 5 of the Punjab Laws Act, 1872, had been given effect to as the rule of decision in matter of succession upon proof that custom governed the matter. This was so even in respect of Muslims and Hindus for whom Personal Law existed. In case of Muslims the situation continued to be so until the promulgation of the Muslim Personal Law (Shariat) Application Acts. The first contention, therefore, fails.
9. The second contention is based on the requirement of section 5 of the Punjab Laws Act, 1872, that for a custom applicable to be made the rule of decision, it must not be contrary to justice, equity and good conscience. It is to be noted that Sir George Campbell, the then Lieutenant Governor of Bengal, who had served in the Punjab in early part of his career, and who had been instrumental to the incorporation of section 5 in the Punjab Laws Act, 1872, had expressed that if the Council would accept the amendment proposed by him, it was his impression that a great part of the objections to the Bill would be removed and that in his opinion not one out of ten-perhaps not one out of a hundred persons in the Punjab was governed by the strict provisions of the Hindu and Muhammadan Law. The object of this amendment was to provide in simple words, in such a way that the officers of the Punjab in administering the law might not mistake, that custom came first, and that the Personal Law only came when It failed. The reason for the prevalence of custom which allowed succession for the male heirs to the exclusion of the female, according to Sita Ram v. Raja Ram (1), was recognition of the fact that the property descended from the common ancestor and that it did not belong absolutely to' the individual_ holder for the time being. On the question of a daughter's right to the succession it is commented in Roe's Tribal Law in the Punjab, p. 62 that :- "It is clear that under the general rule of agnatic succession a daughter can never inherit. Whatever favour custom may allow to be shown her under the form of a gift, the daughter is not, and cannot be one of the warisan yak jaddi, or group of agnates, amongst whom the {{FOOT NOTE}}
(1) 12 P R 1892 {{FOOT NOTE}} ' estate of a sonless man is divided on his death, and who controls j his action during his life. This is the general principle laid down ' in all the Riwaj-i-ams, and the Settlement Officers of Ambala and Bannu say that even if there are no agnates at all, the estate would not pass to or through females but, would pass to the tribe or village community."
' Lal Chand, J., in Abdul Karim v. Sahib Jan (1), at page 40 endorsed the above in the words: "It is true as observed by the learned author of the Tribal Law that a daughter has no place in the line of succession. A daughter is not and cannot be one of the warisan yak jaddi."
The inheritance by male heirs to the exclusion of female has been a rule of custom widely practised in this province by the communities and religious groups irrespective of the existence of their personal laws. In any case a the reasonableness of a custom is primarily a question of fact and cannot be decided except after a proper inquiry which cannot be done by us in the present jurisdiction.
10. The third objection that in the absence of a notification under section 3 of the Succession Act, 1925, the provisions of the Act must prevail, C is also not tenable. This section incorporates a provision similar to that of section 332 of the Act of 1865 already referred to in para. 5 above, and empowers the provincial Government to exempt by notification in the official Gazette, from the operation of certain provisions of the Act including those relating to succession, members of any race, sect or tribe in the province or any part of such race, sect or tribe to whom the Provincial Government considers it impossible or inexpedient to apply such provisions. Since the Succession Act was a central legislation applicable to all the provinces, it was necessary to provide for the power of the Provincial Governments to create an exemption from the operation of the Act as envisaged in subsection (2) of section 29. But a notification would not be necessary when a law was already in existence creating an exemption. The Punjab Laws Act is such law and obviates the necessity of issuing a notification under section 3 in his province.
11. For the reasons above, the writ petition is dismissed with costs.