' This appeal is directed against the judgment and decree dated 7th of March, 1963, passed by the learned Additional District Judge, Lahore, whereby the appeal of the appellant against the judgment and decree passed by the learned trial Court against her, has been dismissed.
2. It has been held that Mst. Jantey who gifted way the property in question to the appellant under the custom as widow of the predeceased sonless son of the last male holder being not absolute owner was not competent to gift away the property. It has been observed in both the judgments that it was contended on behalf of the appellant that Mst. Jantey acquired the property under Special Custom but it has been further observed that it was up to the appellant to prove that Mst.
Jantey was absolute owner of the land irrespective of the fact whether she acquired the property under Special Custom.
3. The main question to be considered in this case is as to whether Mst. Jantey who gifted away the property in favour of the appellant acquired the property as absolute owner or as limited owner or as iimited under under the Custom. Both the Courts below have referred to Exh, P/ 8. Judgment of Sardar Gian Singh, Sub-Judge IV Class, Chunian, Distt. Lahore dated 31st of August, 1925, given in the case filed by Mst. Jantey against the respondents. It was a case for possession of the land on the ground that after the death of last male holder, Farida, she had been excluded from the inheritance of his estate on the ground that she was a widow of his predeceased sonless son. It was pleaded before the learned Court below that under the Special Custom prevailing in the District, she was entitled to inherit the share of her husband in the property in question. The operative part of the judgment reads as follows :- "Reading the two customary laws together the general inference is that in this district the right of succession of a predeceased sonless son's widow has been recognised in all agricultural tribes of the district, and this recognition of the right appears to have been still observed as is proved from the instances quoted above in the very chak."
' It was further observed in the subsequent paragraph of the judgment that the respondents who were defendants in that case had failed to rebut by proving the custom contrary to that prevailing in the locality. The learned counsel has argued that the judgment in question does not show that Mst. Jantey, the predecessor-in-interest of the appellant, acquired the property as absolute owner under the Special Custom. I am afraid this contention has no force in the circumstance of the case.
Her suit was to the effect that she was wrongly excluded from the inheritance of the property of the last male-holder namely Farida. Her suit was decreed and she was found entitled to succeed to the there of her deceased husband. The question with regard to succession so the estate left by the last male holder was very much in question, and since Mst. Jantey was found entitled to succeed to the said estate, therefore, it cannot be said that she succeeded only as a limited owner.
Her succession as limited owner may have been there if she had succeeded A under the General Custom. Since it was a case with regard to special Custom prevailing in the locality, therefore after the same having been proved it was held that she could not be excluded from the inheritance of the last male holder. Both the Courts below after deciding issues Nos. 1 and 2 have not decided issue No, 3 as they found that Mst. Jantey being a limited owner could not gift away the property.
Issue No, 3 is that whether Mst. Jantey was competent to gift away the property according to Special Custom. Since it has been found that the property was inherited by Mst. Jantey under Special Custom, therefore, issue No, 3 remains to be decided. Both the Courts below have not touched this issue, as mentioned above. The case will, therefore, go back to the learned trial Court for the purpose of deciding issue No, 3, in accordance with law. The appeal is accepted and the impugned judgments and decrees are hereby set aside. The case is remanded to the learned trial Court, as mentioned above. There will however, be no order as to costs.