This second appeal arises out of a suit brought by Nazar Hussain, respondent against Shah Sawar, appellant for possession of one-half share out of 10 kanals 17 marlas of land described in the plaint on the averments that his father Qashim belonged to Rajput tribe which was a notified and predominently agricultural tribe and in matter of succession and alienation was governed by the Customary Law and that the land in question being ancestral qua Qashim, he could not have legally alienated the suit land by way of gift in favour of the defendant/appellant and that the said gift was null and void and ineffective as against his rights. The appellant/ defendant contested the suit by pleading that the gift in his favour was for religious purpose inasmuch as his family gave education to the children of the donor. The parties, however, admitted in their better statements that the land in dispute was ancestral and that Qashim was governed by agricultural custom.
2. The learned trial Court after framing the necessary issues and recording the evidence adduced by the parties decreed the suit vide judgment and decree dated 15-11-1965. The first appeal filed by the appellant was dismissed by the learned Additional District Judge, Rawalpindi on 2-6-1966.
Hence this second appeal.
3. The learned trial Court was of the view that the matter in controversy between the parties in the case was covered by answer to Question No. 47 of the "Rawaj-i-Am", 1910 of Rawalpindi District prepared by Mr. Kitchen. The first appellate Court, however, held that this view of the trial Court was erroneous as in the instant case Qashim had left behind a son Nazar Hussain, plaintiff/respondent and as such the relevant question in the case was Question No. 39 as the answer to the same was applicable in the facts of the case. After so holding, it was observed by the learned Additional District Judge that "no doubt Qashim according to law applicable to him could gift reasonable portion of his property but in the instant case there is no evidence on record to suggest that at the time of impugned gift Qashim was possessed of any other property. That being the case, it cannot be said that in so far as the present gift was concerned it was of a reasonable portion of the property. There is nothing on the file to suggest that Qashim was left with the ownership of any other property at the time of impugned gift and so it cannot be held that the impugned gift related to reasonable portion of the property of the donor. In these circumstances, I feel no hesitation in holding that the gift in question was against custom and as such void and ineffective as against the plaintiff's rights".
4. Learned counsel for the appellant contended, firstly the finding of the first appellate Court that there is no evidence on record to suggest that at the time of impugned gift Qashim was not possessed of any other property, is contrary to record and is fact the said finding has been recorded ignoring the inaterial available on record. Elaborating the submission, it was asserted that the donor was possessed of 64 kanals of ancestral land out of which only 5 kanals 9 marlas was gifted and as the said gift was of reasonable portion of the land the said gift even according to the reasoning of the learned first appellate Court was perfectly valid and binding on the plaintiff/respondent. The reference was made to Questions Nos. 39 and 40 of the Rawaj-i-Am of 1910 of Rawalpindi District. In support of the contention that Rajput Bhattis of Gujar Khan Tehsil, had the power of alienation and as such the gift in any case was valid under custom. Secondly, it was contended that judgment dated 24-2-1962 Exh. D. 1 barred the present suit on the principle of res judicata.
5. Learned counsel for the respondent/plaintiff in reply contended that the appellant failed to prove that the gift was made for religious purposes and as such the alienation in the garb of gift so obtained cannot be set up to defeat the rights of the plaintiff/respondent in the ancestral land. It was contended that as per answers to Questions Nos. 39, 40, 41 and 47, no power vested in a holder of ancestral property to make gift of the ancestral property whether in whole or in part. Lastly, it was contended that the judgment dated 24-2-1962 does not operate as res judicata as the judgment was appealed against and in appeal the permission to file a fresh suit was allowed and that the averment made in the written statement regarding the grant of permission was not specifically denied. However, the order granting the permission was not brought on record. It was asserted that this suit was filed after depositing the cost awarded as a condition for institution of the present suit and hence the judgment Exh. D. 1 cannot be set up so as to invoke the provisions of section 11, C. P. C.
6. Before dealing with the respective submissions of the parties, it is appropriate to quote the questions and answers referred to by the parties in their submissions Q. No. 39.-Can a father make a gift during life of a part of the inheritance in case he has sons ; if so, is their consent essential to such gifts or not ?
A.-In Gujar Khan Tehsil, Gujars reply that in the presence of sons only reasonable portion of the ancestral property can be gifted away. Bhatti Rajput make the same reply.
Q. No. 40.-Can a proprietor, having no male issue, make a gift or not ?
Answer.-Gakhars, Rajputs, Awans, Gujars and Khattars say that in the absence of male issue a gift even of the whole ancestral property would be good by custom. Bhatti, Rathial and Pakhral Rajputs and Mughals reply that no gift can be made even if there be no sons.
Note.-Under this, certain cases have been cited in which gift made were cancelled.
Q. No. 41.-When a gift can b made, is it essential that the gift be made to one of the near Rindred, or can it be made to any person without any regard to caste or tribe ?
Answer.-At last settlement, all tribes, with the exception of Awans and Bhabras, agreed that a gift, when lawful, could be made to anyone without distinction of family or caste.
Note.-Under this answer a gift made by Rajput of his property to a Gujar has been cited. More over under question No. 42, example of Rajput, having made a gift of his property to his sister's son has been cited and no distinction in that case was made between ancestral and acquired property.
Even under question No. 47 it has been noted that most of the tribes stipulate that only reasonable portion of such property can be given in gift for charitable or religious purposes with--out sanction of the heirs.
7. Learned counsel for the respondent relied heavily on the judgment Exh. P. 2 delivered in L. P. A. 81 of 1946 and judgment Exh. P. 3 delivered in R. S. A. 152 of 1951. The latter judgment is based on the judgment delivered in L. P. A. 81 of 1946 and I would, therefore, deal with the L. P. A. Judgment.
The point which came up for determination in the L. P. A. Was whether under custom a power of bequest of ancestral property vests in a sonless proprietor belonging to Bhatti Rajput tribe in Guar Khan Tehsil. The parties in the instant appeal are also Bhatti Rajput. The learned Judges observed that the reply to question No. 40 conflicts seriously with the answer given to the question No. 38. It was further observed that it is difficult to presume that the power of alienation inter vivos by means of gift did not exist while a power of disposition by bequest exists amongst the members of this tribe. In my opinion the reply given by the Bhatti Rajput tribe under question No. 40 completely negatives the effect of the conflicting replies given by these people under question No. 37 and question No. 38 and under this Rawaj-i-Am it cannot be held that a sonless Bhatti proprietor residing in Gujar Khan Tehsil of the Rawalpindi District has an unrestricted power of making gratuitous alienations either by way of gift or by way of bequest.
The learned Judges with respect to the gift in dispute in the said case observed that a gift to a dear relation like a daughter is generally supported under custom provided there is some material in support of that custom. The Rawaj-i-Am does not say that gifts can be made in favour of near relations like daughters. General custom no doubt favours gifts of small portions of ancestral property in favour of such relations but unfortunately in the present case Ilam Din has given away the whole of his ancestral property to his daughter. Such a gift cannot be supported even under general custom. The gift impugned in the said case was, therefore, held to be ineffective as against the reversionary rights. The custom prevailing amongst the Rajputs of Gujar Khan Tehsil of Rawalpindi District came up for consideration in the case of Fazal Bibi and another v. Khan Muhammad and another (1). After considering the entries of Rawaj-i-Am of 1887 and 1910, the learned Judges observed that Rawaj-i-Am of 1887 uphold the power of gift amongst the Rajputs. It was further observed as under;-- "It is no longer disputed before us that Pakhrals and Bhakrals are the same. Another circumstance, which would make the onus placed on the daughter easy to displace, is that in both Riwaj-i-Ams the power of testamentary disposition, even among Pakhral Rajputs, is mentioned as existing.
Reference may be made to the answers to questions 37 and 38 of the 1910 Riwaj-i-Am which make it clear that among Pakhral Rajputs a proprietor can make a testamentary disposition of his property without the consent of the heirs. The answers recorded in the older Riwaj-i-Am of 1887 under questions 37 and 38, are in similar terms. There is ample authority for the proposition that the power of testation is a later development generally than the power of gift inter vivos among tribes governed by custom. Reference may be made in this connection to the decision of this Court in Mirza Khan v. Muhammad Benaras P L R 1951 Lah. 27 and to the judgment of Chatterjee, J. In Mst.
Bano v. Fateh Khan 48 P R 1903. That the two powers are generally co-extensive was also laid down in Wali Dad v. Mst. Imam Khatun AIR 1938 Lah. 527 and Mst. Nadran v. Muhammad Hussain AIR 1931 Lah. 450. In these circumstances, we are of the opinion that in the present case the onus can be shifted by the daughters with the proof of a few instances in their favour."
In the reported case the gift was ultimately upheld in view of the fact that the older Riwaj-i-Am unequivocally upheld the power of gift amongst Rajputs and as the proof of four instances on behalf of the daughters contained in the mutation of goods referred to in the judgment was considered to be sufficient proof to shift the onus to the other side and to prove the custom. This question also came up for consideration in an unreported judgment (R S A 294 of 1964) decided on 30-8-1974 by Mr. Justice Muhammad Akram as his Lordship then was. The learned Judge followed the view expressed in Mst. Fazal Bibi and another v. Khan Muhammad and another as against the view expressed in the unpublished judgment in L. P. A. No. 81 of 1946 to the effect that Rajput Bhattis of Gujar Khan Tehsil had no unres--tricted powers of gratuitous alienation either by way of gift or bequest. The learned Judge also referred to Mst. Thakri v. Tulsi Ram (2) as it was held in this case that the Courts was not prepared to assent to the proposition that under the general custom gift in lieu of services was allowed only in favour of thecollaterals. Hidayat and another v. Alaf Din (3) and Ali and another v. Fazla (4) were referred to as in these cases, it was held that alienation in favour of relations between whom and the alienor there is some tie as by their having been brought up by him or by their being associated with him etc. Were generally recognized by custom. In Umra and others v. Mst. Raji and another (5) the Court again relied on the general agricultural custom of Punjab allowing gift in favour of relations who rendered services to the donor.
(1) PLD 1951 Lah. 314 (2) AIR 1931 Lah. 239
(3) AIR 1929 Lah. 639(4) 144 1 C 646
(5) AIR 1922 Lah. 222
8. From the perusal of the case law and the entries of Riwaj-i-Am it cannot be denied that in Rajput Bhatti tribe power to alienate by way of gift a reasonable portion of the ancestral property was recognized by custom. This was so held even by the first appellate Court but the appeal was dismissed as it was observed that there was no evidence on the record to suggest that at the time of impugned gift Qashim was possessed of any other property. A reference to the pleadings of the parties would show that in para. 3 of the written statement, Shah Sawar specifically pleaded that Qashim was possessed of 04 kanals of land out of which he gifted the land in question for religious purposes and that he had the power under custom to make such a gift. In the replication the fact that Qashim was possessed of 64 kanals of land was not specifically controverted. As besides making a general denial what was added was that the gift even for religious purposes could not have been made by Qashim. Shah Sawar in his statement at trial deposed that Qashim had 8/9 acres with him besides the land in question. This statement was not challenged in cross- examination by the respondent and as such it does not now lie in the mouth of the respondent to assert that Qashim was not possessed of any land at the time when he made the gift. No doubt the remaining other land was also sold away by Qashim and respondent bad to file a suit to recover the said land by chall,-nging the alienation made but neither the said judgment so obtained was brought on record nor it was got clarified on record that the said sale preceded the impugned gift.
If the sale had preceded the gift, the respondent would have got it clarified from the witnesses produced by the parties. Learned counsel for the parties relied on the following reply given by Hukam Dad in cross-examination;-- Learned counsel for the appellant reads the word placed in the above--quoted portion as "baad" whereas learned counsel for the respondent reads it as ---rose". Even if it is read as ` jjj" it does not follow that the sale of 58 kanals preceded the gift. In this view of the matter the learned Additional District Judge was palpably wrong in holding that at the time of impugned gift Qashim was not possessed of any other property. The gift was thus made out of 64 kanals of land held by Qashim and it is also in the evidence on record that the same was made in favour of Shah Sawar on account of his being the teacher. The gift made was, therefore, valid.
9. The finding of the two Courts below being patently contrary to record is liable to be set aside and reversing the said finding it is held that the impugned gift was valid and binding and operative as against the rights of the plaintiff. In this view of the matter, the appeal is allowed and consequently the suit shall stand dismissed. There will be no order as to costs.