KARRAR HUSSAIN ZAIDI, J.-This is a Letter Patent Appeal 'against the judgment of the learned Single Judge passed in R. S. A. No. 28/63 maintaining the judgment and decree of the learned District Judge Attock at Campbellpur dated 30-12-1963.
2. The dispute between the parties is about the inheritance of one Hayat Muhammad who was an owner of 67 kanals of land situated in village Akwal and Chokera, Tehsil Talagang, District Attock and had died long before the creation of Pakistan leaving a sonless widow Mst. Malkban and a brother Lal, predecessor-in-interest of the present appellants. After the death of Hayat Muhammad, his land was mutated in the name of Mst. Malkhan widow to the utter exclusion of Lal, brother of the deceased. Mst. Malkhan issueless widow also died on 2-12-1950 after the promulgation of West Punjab Muslim Personal Law (Shariat) Application Act, 1948 and on her death 3/4 of the Land was mutated in the name of Lal brother of Hayat Muhammad and predecessor-in- interest of the appellants, and the remaining 1/4th was allotted to respondents as the legal heirs of Mst. Malkhan, deceased widow according to Shariat Act.
3. The plaintiff-appellants being dissatisfied, brought a suit for posses--sion regarding the 1/4th of the land mutated in favour of the respondents, the legal heirs of Mst. Malkhan, complaining that Mst: Malkhan being a sonless widow was entitled to maintenance only and not widow's life estate under Customary Law and as such respondents were not entitled to suit lan3 on the basis of section 3 of West Punjab Muslim Personal Law (Shariat) Application Act, 1948. The suit was resisted by the defendants. Out of the pleadings of the parties the following issues were framed :-
(i) Was the suit land Hayat Muhammad's ancestral property qua the plaintiffs? O. P.
(ii) Was Mst. Malkhan a mere Guzaradar and what was its effect? O.P.
(i.e) Is the suit barred by time? O. D.
(iv) Are the plaintiffs barred by acquiescence from suing for the suit land? O. D.
(v) Are the defendants entitled to any special costs? If so, how much? O. D.
(vi) Relief.
4. The learned trial Court decreed the suit leaving the parties to bear their own costs vide its judgment and decree on 27-9-1961. An appeal against that judgment and decree was preferred and same was accepted by the learned Additional District Judge, holding that Mst. Malkhan, sonless widow of tehsil Talagang had succeeded to life estate under the Customary Law and after her death succession would be governed by the provisions of the West Punjab Muslim Personal Law (Shariat) Application Act of 1948. Having felt aggrieved by the finding of the appellate decree, the plaintiffs went in second appeal. The learned Single Judge, maintaining the impugned judgment and decree of the first appellate Court, dismissed the second appeal on 3-7-1968.
5. The main question in this case which came up for consideration of the Courts was that whether Mst. Malkhan, issueless widow of Talagang tehsil, was holding a widow's life estate or for maintenance only. The learned District Judge in this connection referred to Customary Law of Jhelum District, Volume XIX by W. S. Talbot, Customary Law of the Attock District, Volume XXIV by A.
J. W. Kitchin, I. C. S. And Customary Law of the Attock District, Volume XIV compiled by K. S. Sardar Khan Chaudhri, P. C. S. And was of the view that the entry in Riwaj-i-Am revised by Sardar Khan Chaudhry being misplaced was wrongly given in answer to Question No. 20-A and the same could not be utilized as evidence in support of the custom alleged by the plaintiff-appellants that Mst.
Malkhan was only a maintenance holder. The learned Single Judge-in-Chamber also made a specific reference to Question No. 20-A and its answer compiled by Sardar Khan Chaudhry and concluded that Question No. 20-A only visualizes the situation where there is competition between the two or more widows and where one or more of them have male issues and one or more are without male issues. He further viewed that nothing was borne out from the Customary Law compiled by the said Sardar Khan Chaudhry to infer that the elders of Talagang tehsil at the time of the Land Settlement had ever agreed to abrogate the general custom as envisaged by para. 11 of the Rattigan's Digest of Customary Law and agreed that in future even a widow having no male issue would be entitled to a mere maintenance.
6. After hearing the learned counsel for the parties we are of the view that answer to Question No. 20-A compiled by Sardar Khan Chaudhri neither offends the well-established principle of general custom as envisaged by paragraph 11 of Rattigan's Digest of Customary Law nor is misplaced and wrongly given as discussed by the learned District Judge. In order to solve this controversial point it will be advantageous to refer to Question 20-A and its answer as under :- "Question 20-A.-Does a widow of the same tribe as of her deceased husband inherit for life, or is she merely entitled to maintenance ; and if there be male issue, what share shall she take ?
Answer 20-A.-It would appear to be a well-established custom among all tribes, that a widow, of whatever caste, in the absence of male issue, inherits the property of her husband for life or till re- marriage ; having consequently no power to alienate except in the special circumstances considered under Question 49.
Custom, however, becomes more complex and less certain in the presence of male issue, and it is doubtful if any really well-established custom exists, so varied are the opinions of the tribes. As a .General rule the question scarcely arises, the widowed mother living as a matter of course with her sons. The property in such cases may be entered jointly in the name of mother and sons or only in the name of sons, but the practical result is the same.
When the question does arise, the majority of tribes agreed at last settlement that the widow will share for life equally with her sons but without power of alienation. The majority of tribes is now in favour of allowing her maintenance only, a portion of the property being specially set apart for this purpose. Examples are quoted in favour of both practices, and courts will have to consider the circumstances of each case in the absence of any well-established custom on this point.
7. A careful perusal of the answer to question No. 20-A mentioned above reveals that actually the answer consists of two parts. The first part of the answer deals with such cases of inheritance where a male holder having no male issue died leaving behind a widow. In such a case, the mode of inheri--tance is quite simple and a widow inherits the property of her deceased husband for usual life tenure till death or re-marriage as a conduit pipe to pass it on to the nearest agnates of her deceased husband. While the latter part of the answer deals with complicated cases where a deceased male holder is survived by widow with sons, or issueless widow and male lineal descendants, or childless widow and child of another widow. According to this part of the answer custom becomes more complex and less certain regarding the rights of the widows in the presence of male issues of the last male holder. According to it, in certain cases, widows with sons were held eligible for share in property alongwith their sons jointly while the majority of tribes subsequently opposed that proposition and favoured the allowance of maintenance for widows in the presence of male issues. In the last, the author says that in Talagang Tehsil a sonless widow is entitled to maintenance only. This last sub-para cannot be read in isolation and without reference to the context. 1f this sub-para be read with reference to its main para it clearly leads to this only proposition that in Talagang tehsil sonless widow in the presence of male issues or male descendants would not inherit jointly with them but would only be entitled to maintenance. The earlier part of answer to Question No. 20-A stated without any reservation that succession of a widow of whatever caste as a limited owner in the absence of male issue would appear to be a well-established custom among all tribes of Attock district. Had a sonless widow in the absence of lineal descendants not entitled to life estate in the Talagang Tehsil it would have specifically been mentioned in the earlier part of the answer as an exception to the general rule prevalent in the entire district of Attock.
8. The above interpretation put-forth to Answer 20-A further gets support from the answer made to Question No. 20 in Customary Law of the Attock District, Volume XIV. Compiled by A. J. W. Kitchin 1. C.
S.,.Which may be referred for advantage as under : ;- "Question 20.-Does a widow of the same tribe with her deceased husband inherit for life, or is she merely entitled to maintenance, and if there be male issue, what share shall she take?
Answer 20.-It would appear to be a generally established custom among all tribes that a widow of whatever caste in the absence of male issue inherits the property of her husband for life or till marriage, having therefore no power to alienate except in the special circumstances considered under Question 49.
Custom however becomes more complex and less certain in the presence of male issue and it is doubtful if any really well-established custom exists, so varied are the opinions of the tribes. As a general rule the question scarcely arises, the widowed mother living as a matter of course with her sons; the property in such cases may be entered jointly in the name of mother and sons or only in the name of sons, but the practical effect is the same.
When the question does arise, the majority of tribes agreed at last settlement that the widow will share for life equally with her sons but without power of alienation. The majority is now in favour of allowing her maintenance only, a portion of the property being specially set apart for this purpose.
Examples are quoted in favour of both theories, and Courts will have to consider the circumstances of each case in the absence of any well-established custom on this point."
9. Admittedly Attock district was formed in 1902 out of the portions of Rawalpindi and Jhelum districts. Talagang tehsil which formerly formed part of Jhelum district became part of Attock district. The tribal custom of the Jhelum district was compiled by Mr. W. S. Talbot in 1901 wherein according to answer to Question No. 48, in all tribes of district Jhelum widow was allowed to succeed for life or till re-marriage, in the absence of male lineal descendants of a deceaaed male holder. Question No. 48 and its answer may be referred as under :- "Question 48.-If a man dies leaving a widow or widows, and either a daughter or daughters. Or brothers or their descendants, or uncles or their descendants, or great-meles or their descendants, but no male lineal descendants. Upon whom will the inheritance devolve?
Answer All tribes- The widow succeeds for life or until remarriage. Some of the Mairs and Kassars say that the widow is only entitled to maintenance ; but in fact there is no instance of a brother or uncle excluding a widow." We are not in agreement with the finding of the learned Single Judge-in --Chamber that Question 20-A compiled and answered by Sardar Khan Chaudhri visualizes the situation where there is competition between two or more widows one with issue and the other without issues as Question 21 of the same book . Specifically postulates this proposition and answers it accordingly as follows :- "Question 21.-If there be two widows, one with issue and the other barren, is the latter entitled to take a share in the inheritance?
Answer 21.-The replies of all tribes in this district are to the effect that a barren widow is entitled to maintenance only, but the numerous examples collected show, that among all tribes barren widows not infrequently get a share in the property of their husbands.
They have, of course, no power of alienation over such land, and it is not of great importance to determine the doubtful question of custom, for it would seem to be generally admitted that barren widows have a claim to maintenance for life or till re-marriage, out of their husband's property. It is immaterial, therefore, whether a share be entered in their names or a portion of the land be set apart for their mainte--nance."
10. From the above discussion, it can safely be concluded that as a general rule in the presence of sons or other male lineal descendants, a widow gets nothing but maintenance. Even a childless widow in the presence o C child of another widow ordinarily gets only maintenance though in certain cases she may be allowed her share. Therefore the last sub-para. Of the answer) to Question No. 20-A compiled by Sardar Khan Chaudhry visualizes that a sonless widow in the presence of male child shall not be allowed any share but only maintenance in Talagang Tehsil.
This part of the answer does not cover the instant case and as such is not relevant for its adjudication. The earlier part of the answer is quite relevant and self-explanatory. We are firmly of the view that first part of the answer to Question No. 20-A deals with the cases of inheritance succeeded by widows in the absence of male lineal descendants while the second part deals with the cases of widows in the presence of male lineal descendants. The plaintiffs-appellants have brought no iota of evidence to substantiate their alleged special custom, contrary to general custom of Attock District as well as the Punjab Province.
11. In view of what has been discussed above, we hold that Mst. Malkhan was holding her usual widow's life estate under Customer Law and the plaintiffs-appellants had no right to claim the suit land inherited by respondents as legal heirs of Mst. Malkhan deceased under Shariat Act of 1948.
We maintain the judgment of the learned Single Judge and find no merit in this appeal. Resultantly it fails and is dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.