SHAFI-UR-RAHMAN, J.-Leave to appeal was granted in order to examine whether in upsetting the concurrent findings of the two Courts below the High court had failed to consider the material questions in dispute, namely, whether he property was ancestral or not and whether there was any customary law applicable to the property.
2. Waris, a Jat Arar, of Mauza Fatiana, Tehsil Dipalpur District Sahiwal, died some time in or before 1931, leaving behind a widow Mst. Muradan, a married daughter, Mst. Hakan and an unmarried daughter Mst. Ghulam Fatima. He left behind land measuring 1257 kanals 10 marlas in village Fatiana, District Sahiwal. The land was at first mutated in the name of the widow Mst. Muradan and on he death in 1935 in the name of Mst. Ghulam Fatima, an unmarried daughter. A mutation was entered in 1944 on the report that Mst. Ghulam Fatima had married. The fact of her marriage was enquired into by the Revenue Officer and on being not satisfied that such a marriage had taken place the mutation was cancelled on 27-2-1944. An appeal was taken by the collaterals on the revenue side to the Collector where the parties entered into compromise whereby the land was mutated on review in favour of collaterals terminating the interest of Mst. Ghulam Fatima. On 7-8- 1958 the two married daughters of Waris instituted a civil suit in forma pauperis against his third degree collaterals seeking possession of the entire suit property left by Waris on the ground that the property was non-ancestral, that under the custom the daughters were entitled to inherit it in equal shares excluding thereby the collaterals and in the alternative their claim was that they were entitled to their Muslim Personal law shares i.e. 2/3rd of the property left by Waris. The suit was contested by the collaterals who were said to be the recorded owners of the entire property following the compromise in appeal said to have been entered into between them and one of the plaintiffs Mst. Ghulam Fatima. The following issues were framed by the trial Court .
(1) Whether the land in suit was ancestral in the hands of Waris, deceased qua the defendants ?
(2) If Issue No. 1 is found in the negative, whether under the Customary Law the plaintiffs were not entitled to succeed to the land left by their father as against the defendants ?
(3) If Issue No. 1 is found in the affirmative, were the plaintiffs entitled to succeed as against the defendants?
(4) Had the plaintiffs lawfully waived or relinquished their rights of inheritance or were they estopped by their word or conduct from bringing the present suit?
(5) Whether the suit was collusive. If so, what is its effect?
(6) Whether the suit was time-barred?
(7) Relief.
The trial Court held that the suit land was not proved to be ancestral, that under the Customary Law the daughters were entitled to inherit the non ancestral land excluding the collaterals, that the plaintiffs had not waived their right of inheritance nor were they estopped that the suit was not collusive and it was not barred by time, and accordingly the suit was decreed.
3. On appeal by the collaterals only Issues Nos. 1, 2 and 6 were con--tested and the learned District Judge armed the finding on the trial Court on these issues.
4. On a regular second appeal filed by the collaterals the learned Judges in the High Court took note of the contentions of both the sides on the question whether the property was ancestral or non-ancestral but did not record a specific finding on the ground that it was a secondary ground and the order passed on appeal and review of mutation being held valid it was of no consequence.
As regards the custom prevalent the answer to questions Nos. 43 and 67 contained in the Riwaj-i- Am of Dipalpur Tehsil was taken to cover both ancestral and non-ancestral property and to exclude the daughters from inheritance. It was further observed that "no special custom has been pleaded by the daughters against the general custom of the Province that daughters ordinarily do no succeed as absolute owners and they succeed to the father merely as a conduit pipe for onward transmission of the property to the rightful heirs either in the case of death or marriage. In the absence of any such special custom having been pleaded or proved, the daughters are not entitled to take benefit of the precedent case."
5. The learned counsel for the appellants has contended before us that the learned Judges in the High Court have not decided very material issues in context between the parties and have instead concerned themselves with an issue, which was not at all pressed by the defendants before the first appellate authority. This was done without taking note of the fact that the defendants had not contested it before the District Judge and no finding bad been recorded by him. In amplifying the submissions it is stated that the general custom of the Province as contained in Rattigan's Digest of Customary Law and accepted in Karim Dad and another v. Mst. Sharifan and S others (PLD 1955 FC 155) was that the daughters excluded the collaterals in respect of non-ancestral land. Such being the general custom it was not for the daughters to plead any special custom but for the collaterals to prove that the daughters were excluded in the case of non-ancestral land as was the character of the property left by Waris as held by the two Courts. As regards the entries of the Riwaj-i-Am, tile learned counsel for the appellants has referred us to the preface of the Customary Law of Pakpattan and Dipalpur Tehsil prepared in 1925 which has been made the basis for decision by the High Court. The Author of the Customary Law has himself made the following reservation with regard to the efficacy and generality of the answers recorded in the Riwaj-i-Am: "A Riwaj-i-Am, as full as possible, has now been drawn up dealing with all the important questions of custom. One hundred and forty-- four questions were prepared, and all the tribes concerned have given their answers thereto. This is naturally the only way of finding out custom, because no written books or works of history exist on the subject. This method of investigation by means of oral testimony has its defects also, The answers have naturally been recorded as given by the various tribes. Much weight is not to be attached to these answers unless they are also supported by instances. In a good many cases the answers do not at all convey a correct idea of the past usage.
But they merely express the wish of the tribe concerned in the matter under question and have been prepared by the tribes concerned withthe set object of moulding their customary law in a particular manner for the purpose of all existing or future litigation. In other words some of the answers have been prepared to suit the convenience of the various tribes or at least the convenience of their influential members".
According to the learned counsel the instances do not at all support the answers recorded. The two instances reported from Dipalpur Tehsil and relating to Jat Muslmans are to be found at page 163 of the same Book and both show that the daughters inherited the land and it was not till marriage or with any other restriction. As regards the appeal against cancellation of the mutation on the marriage of Mst. Ghulam Fatima, it is contended that the finding of this issue was not disputed before the District Judge and though a grievance was made by the defendants before the High Court that arguments were beard but no decision had been given, the learned Judges of the High Court proceeded to consider those proceedings as sacrosanct in spite of the fact that Mst. Hakan was not a party to the proceedings and had not partici--pated at any stage. Besides, the learned counsel also contends that the decision in mutation proceedings could not be decisive of 'the title to the property as was claimed by the daughters under the law applicable to them.
6. We find that the question whether the property was ancestral or non-- ancestral was fundamental to the dispute between the parties. For, if the land was held to be ancestral the general custom governing it was different than if the land were held to be non-ancestral, A decision of this question would have also determined as to who was required to prove the special custom in derogation of the general custom relatable to the nature of the property in dispute. This matter could not be left undecided. The answers to questions 43 and 67 as reproduced in the judgment of the High Court required examination and scrutiny in the light of the instances noted in the Schedule and the reservation made in the preface with regard to their effectiveness and applicability. Before permitting the defendants collaterals to raise the question of the finality of the review mutation it should have been noted that this was not the issue on which arguments were addressed before the District Judge nor had the District Judge an opportunity to record, a finding on it. We consider that these fundamental questions required decision, and we cannot decide them without having before us the considered views of the High Court. We, therefore, accept the appeal, set aside the; judgment and decree of the High Court. The result is that the second appeal before the High Court will require decision afresh. No order as to costs.