SHAFT-UR-REHMAN, J.-Leave I to appeal was granted to the plaintiff - appellant to examine whether on the concurrent findings of the Courts that the property was non-ancestral the, appellant, a daughter, took the estate absolutely in 1936.
2. Ghulam Rasool, a Rajput by caste, owner of non-ancestral property measuring 256 kanals, 1 marla situated in village Mundir in Gujranwala District, died in the year 1934.. He was survived by a widow who remarried, an unmarried daughter, end by a collateral in the fifth degree. The entire land was at first entered in the name of widow and on her remarriage in 1936 in the name of t e appellant as the unmarried daughter. On her marriage in 1952 another mutation was entered whereby half of the land was given to Barkat Ali, f1he collateral. The successors-in-interest of Mst.
Allah Bi, the sister of Ghulam Rasool, instituted a civil suit claiming exclusion of Barkat Ali and their., substitution along with the widow of Ghulam Rasool. The appellant was impleaded in that suit as a pro forma defendant. The suit succeeded and the decree was maintained upto the second appeal in the High Court. The result of it was that the widow Mst. Zainab Bibi was held entitled to 1/8th share and the heirs of Allah Bi to 3/8th. The remaining half share of the appellant was then left out of contest.
3. Mst. Sughran Bibi instituted a civil suit on 5-2-1958 claiming that she was entitled to the entire 256 kanals 1 marla of agricultural land for the reason that Ghulam Rasool was Shia and that it being the self-acquired property of Ghulam Rasool she had under the custom applicable to her tribe in that distinct the sole right to inherit the entire land to the exclusion of every one else. The suit was contested and the following issues were framed; "(1) Whether the decision in the previous suit between the parties operated as res judicata and the plaintiff was now debarred from suing ?
(2) Whether the land in dispute was ancestral in Ghulam Rascal's hands ?
(3) If the land is not found to be ancestral, was the plaintiff its full owner under the customary law and the question of succession was not to be determined in accordance with the Shariat on her marriage ?
(4) Was Ghulam Rasool a Shia and was the plaintiff entitled to the whole of his land under the Shariat ?
(5) Was the suit time-barred ?
(6) Relief."
4. The trial Court held that the previous decision did not operate as res judicata, that the land was non-ancestral in Ghulam Rasool's hand, and that Ghulam Rasool was not proved to be a Shia and the suit was held not barred. While discussing the main controversial issue in the suit, i.e. Issue No. 3, the decision of the trial Court was in the following words; "In view of my finding on Issue No. 2 above, the plaintiff was entitled to hold the land under the customary law, even after her marriage whether she be considered to be a full owner or only a limited owner and her estate could not terminate owing to her marriage. The question whether on her death, the land will go to her personal heirs or to the heirs of her father, does not arise now and hence need not be gone into. As the plaintiff was entitled to hold the land during her lifetime as against the collaterals of her father, so the succession had not opened on her marriage and consequently the land could not be distributed in accordance with the Shariat."
On these findings the trial Court granted the declaration that "the plaintiff was the owner of the whole of the land left by her father".
5. An appeal was fled by the contesting defendants, the heirs of Allah Bi. The District Judge took the judgment of the trial Court as deciding that "Sughra Bibi at once became the full owner of the lands as soon as her father died in 1934" and "the entire area of 256 kanals, 1 marls was declared to be the property of Sughra Bibi and her suit was decreed". The previous decision was held to be not a bar to the suit. The District Judge upheld these findings and dismissed the appeal.
6. The High Court while deciding the second appeal, affirmed the concurrent findings of the Courts that the property was non-ancestral and that the suit was not barred by res judicata. As regards the controversial question viz. The nature and extent of Mst. Sughran's interest as heir the following observations were made; "Coming now to the last contention, which in fact goes to the root of the matter, we regret to observe that none of the Courts below has considered the case in a proper perspective. In the first instance a positive finding should have been given on the character of the plaintiff's estate as to whether she was limited or a full owner in--asmuch as on the determination of this crucial point depended the final outcome of the suit. If, however, it had been found that she was entitled to inherit the entire property only as a life estate then certainly section 3 of the Shariat Application (Amendment) Act of 1962 would come into operation terminating her life estate under Custom with the consequent devolution of the property on all the legal heirs of Ghulam Rasool, under Shariat. If, on the contrary, it had been found that she inherited as a full owner no question of application of the aforesaid provision would arise in that event. We, therefore, ourselves proceed to find an answer to the question."
Thereafter, the learned Judges in the High Court proceeded to examine the custom and following the principle that in village community where a daughter succeeded either in preference to or in default of male heir she simply acted as a conduit to pass on the property, it was held that she was holding a limited estate. On finding that the appellant held a limited estate the findings of the two Courts were reversed and her suit was dismissed.
7. The learned counsel for the appellant has contended that the general custom of the Province of Punjab as found recorded in sub-paragraph (2) of paragraph 23 of Rattigan's Digest of Customary Law clearly showed that the daughter succeeded to the self-acquired property of ~ her father in preference to the collaterals. This much having been proved by the appellant, it was for the other party to prove any special custom whereunder the daughter in spite of such preferential succession got only a limited estate and not an absolute one. For this proposition he has relied on Mst. Subhani and others v. Nawab and others (1), which rule of decision has been accepted in Muhammad Sharif v. Ibrahim (2) and Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul Khaliq and another (3). It has also been contended by the learned counsel for the appellant that reference to questions Nos. 62, 64 and 65 was out of place because question No. 62 deals with alienation for necessity, 64 with widow's power to make a gift of her deceased husband's estate and question No. 65 also deals with power of widow to alienate for legal necessity. It could not control or indicate the nature and extent of interest where daughter succeeded to the self-acquired estate of her father in preference to the colltterals. Besides, it is contended that where no specific mention is made either in these questions and answers or in the entries of Wajibul Araz and Riwaj-i-Aam the reference has to be taken to be confined to ancestral property as held in the case of Mst. Qaisar Khatoon and others. There was, according to the learned counsel, abundant authority for the proposition that where a daughter succeeded as an heir to the self-acquired property of her father she had full power over its disposal and was competent to pass it on after her death to her lineal descendants male or female. In this background of law it could not be held that what the appellant inherited was a limited estate terminable either on her marriage or on her death and for that very reason it could not be held terminated under section 3 of the Shariat Application (Amendment)
(1) AIR 1941 PC21(2) PLD 1955 FC 102
(3) P L .D 1971 SC 334 Act, 1962. It is further contended by the learned counsel for the appellant that in interpreting and applying the entries of Riwaj-i-Aam of Gujranwala District compiled in the year 1914 the distinction between self-acquired property and the ancestral property and where daughter succeeded to the estate as an heir and one where she got only a life estate or maintenance alone were not kept in view. The two governing principles of law stand out clearly in the case. The first is that in the Punjab Manual of Customary Law and Rawaj-i-Aam entries should be taken to relate to ancestral property only unless there is clear indication in them to show that they do contemplate self-acquired property as well. In support the following decisions out of numerous may be cited; "(i) Mst. Hurmate and another v. Hoshiaru and another AIR 1944 Lah. 21.
(ii) Hassan Din and others v. Allah Bux and others PLD 1966 Lah. 622.
(iii) Mst. Qaisar Khatoon and others v. Abdul Khalig and others PLD 1971 SC 334."
Secondly, one who pleads a custom or a special custom has to prove it failing which the rule of decision is Shariat as held in Mst. Qaisar Khatoon and others.
9. The appellant, a daughter, proved the General Custom of the Province (paragraph 23(2) of Rattigan's Digest) that "in regard to the acquired property of her father the daughter is preferred to collaterals". She further proved the nature and extent of her interest in such inherited property from a categorical, unequivocal answer to a direct question (question No. 49) recorded in Riwaj-i-Aam of Gujranwala District in the following words :- "Question No. 49.-What is the nature of the 'interest taken by a daughter in the property if any by sale, gift, mortgage or bequest."
Answer 49 "Among all tribes admitting succession of daughters, when daughters inherit their fathers' property, they have full proprietary rights over it and can alienate by sale, gift, mortgage or bequest."
An illustration is thereafter recorded.
10. The conclusion drawn by the learned Judges in the High Court that "under paragraphs 62, 64 and 65 of Rattigan's Customary Law the general custom prevalent is that in the absence of a male issue the daughters succeed to the property only as a life estate" is violative of the first governing principle of law. The nature of the property not having been specified in an ` of these paragraphs, they would be deemed to relate only to ancestral property and not to non-ancestral property which is the subject-wetter of the present litigation. The relevant paragraphs are reproduced hereunder verbatim Paragraph 62.-"Every person having an interest in property, whether absolute or as a life tenant (e. g. a widow, a daughter or a mother) can sell or mortgage such property for necessary purpose."
Paragraphs 64.-"Except as provided in paragraph 39 or paragraph 62, 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."
Paragraph 65.-"A person dealing with a female proprietor-
(a) is presumed to know that her estate is merely a limited one ; and
(b) is bound to enquire into the necessity for alienation, and to satisfy himself as a reasonable man that it is of such a character as would justify the act, but he is not required to see to the application of money."
If the ambit of these paragraphs is limited to ancestral property they will not be decisive, not even relevant in a dispute concerning non-ancestrall' property.
11. The various decided cases referred to by the learned Judges for drawing strength for their conclusion based on paragraphs 62, 64, 65 of Customary Law are all distinguishable on at least two grounds. Firstly, in none of those cases there was a categorical unequivocal answer, as is found in case of Riwaj-i-Aam of Gujranwala District in reply to Question No. 49. Secondly, there is at least one instance cited in support of answer to question No. 49. In the case of Sunder Devi and another v. Mian Trgh Singh and another (1), the decision proceeded on the fact that "it is conceded that not a single case is known in which the daughter, who has succeeded to the property of her father has exercised an absolute power of disposal over inherited property uncontrolled by her sons, or in them absence by the collaterals of the deceased".
12. In Nur Ahmed an.i another v. Rahim Bux and others (2) no custom, general or special was found to exist which favoured daughters and their sons. Besides, in that case effect of a gift by maternal- grandmother in favour of grandson was in issue and the contest was between collaterals of such an issueless grandson and the collaterals of his maternal-grandfather.
13. In the case of Bahadur and others v. Abdullah and others () a specific factual enquiry on remand had taken place and the decision is based on the following finding on fact; "The report is against the defendants, and on the evidence recorded I am unable to see how it could have been otherwise. Though instances, even indirectly in point, are rare on the record, the weight of opinion is against unrestricted powers of daughters even when the property is non- ancestral."
14. The Full Bench decision in Lehna and another v. Mst. Thakri and another (4), dealt with ancestral property and laid down the law that "it seems to me that in a village community where a daughter succeeded either in preference to, or in default of heirs male, she simply acts as a conduit to pass on the property as ancestral property to her sons and their descendants, and does not alter the character of the property, because she happens to be a female".
15. The learned Judges in the High Court whittled down the meaning and effect of answer to Question No. 49 in Riwaj-i-Aam by reference to 84 instances cited on pages 33 to 38 of Riwaj-i- Aam of Gujranwala District. These instances are to fact illustration to answer to question No. 48.
That
(1) AIR 1935 Lab. 830 (2) 52 P R 1912
(3) 111 P R 1908(4) 32 P R 1895 question had an altogether different content and scope. It reads as follows :- "Question No. 48.-(1) under what circumstances are daughters entitled to be maintained out of the estate of their deceased father ?
(2) What is the effect of (a) marriage, (b) residence in a strange village upon the right of daughter to inherit or to be maintained ?
(3) If a married daughter with her husband lives with the father upto his disease, can the daughter inherit or her son.
(4) Can daughters who a -e married and barren or widowed without male issue, or mothers of daughters only, inherit the fathers estate."
All the illustrations relied upon have been grouped under the heading "The following mutations show that married daughters have succeeded their fathers estates (in case they died sonless, or their mothers in cases they died or remarried) till their marriages for their maintenance". These illustrations being restricted to ancestral property, and to right of maintenance till marriage, could not control rights in property inherited by daughters which is the subject-matter of question No. 49.
16. Apart from the general customary law applicable to non-ancestral properties and answer to question No. 49 there are a number of decided cases in support of the claim of the appellant. In the case of Ilahi Bakhsh and others v. Mst. Budhi and others (1), the general exclusion of females was negatived in the following words :- "We think it quite clear that though the parties were agriculturists, they were understood to be not free from the influence of ideas pertaining to their personal law, and we see no reason to doubt that the decision was to the effect that the daughters, who were married to their own relatives, took a full estate, and not a mere life rent such as is sometimes under Customary Law allowed to unmarried daughters until death or marriage. We are quite unable to accede to the proposition put forward by Rai Sukh Dial that females never in any tribe, whether Hindu or Muhammadan exogamous or endogamous, succeed to anything more than a life-rent, much more limited and restricted than that of a male succeeding under the same circumstances. This a theory which, in our opinion, is not based upon a sufficiently solid substratum of fact."
17. In another case Shah Muhammad and another v. Fazal Rahi and others (2), a Division Bench of the Lahore High Court held that "except in the case of a daughter who succeeds to her father's property only as an unmarried daughter entitled to hold it until her marriage, we are unaware of any custom whereby a daughter who is entitled to succeed, is not also entitled to pass succession to her sons".
18. H. A. Rose in his Compendium of the Punjab Customary Law (page 77) remarks "daughters' sons only succeed where the mother would have been entitled to succeed absolutely, and not merely to a life-interest".
19. It follows that the appellant had succeeded in proving that being non-ancestral property of her father she inherited it under custom to the C exclusion of the collaterals and in that capacity according to the recorded custom 6f Gujranwala District she had an absolute power of disposition over
(1) 5PR1910(2) (1920)561 C913 the property. Her interest was not limited but absolute. The appeal I therefore, accepted and the judgment of the High Court is set aside and to decree of the first two Courts is restored. In view of the nature c controversy, the parties are left to their own costs.