' A. R. SHAIKH, J.-The following pedigree-table will help in appre;fitting the facts of this appeal :- {{TABLE}} Salim Hamoon Jamal ________________________________|_________________________ HemanHabib Rehman(Died before Settlement)
Mst. Muradan WarisKhuda Bakhsh ______|__________ Mst. Hakan Mst. Fatima (Plttf. 1)(Pltff.2) _______________________________ | ____________________________ LashcarJiwan Jalal (Deft. 14) ______________| ________ WalluBaghaLadha (Deft, 8)(Deft. 13)(Deft. 11) ________________________________________________|______ Noor.DinMohd,BakhshFateh DinJamil (Deft. 8)
Khan Mohd.Jamat AliQaim (Deft, 10)(Deft. 9)(Deft. 7) ______________________________________________________|____ LakhaJani __________|____________________________________|_____________ SadiqSikandarGhulamJamoon Qadir Bux Jamoon (Deft. 6)(Deft. 5)(Deft. 4)(Deft. 3)(Deft. 2)(Deft. 1) {{TABLE}}
2. Waris, a Jat Arar, of Mauza Fatiana, Tehsil Dipalpur, District Sahiwal, died sometimes in 1931 leaving him surviving Mst. Murdan (widow), Mst. Hakan (a married daughter) plaintiff No, and Mst.
Fatima (an unmarried daughter) Plaintiff No,
2. The land ieft by him was mutated in the. Name of Mst, Murdan, the widow, and on the death in 1935, Mst. Fatima, the unmarried daughter, succeeded under custom. On the 28th of October, 1944, Mst. Fatima was married but in the mutation attested on the 27th of February, 1945, the estate was left in her hands. On appeal by the defendants, collaterals, the parties entered into a compromise and as a consequence, the said mutation dated the 27th of February, 1945 was reviewed and the land was mutated in the names of the defendants, by order dated the 28th of July, 1945, Musamat Hakan and Mst. Fatima brought the present suit on the 7th of August, 1954 for possession. The claim rested on the ground that the review order dated the 28th of July 1945 of the earlier order of mutation dated the 27th of February, 1945, was illegal and inoperative for the reason that Mst. Fatima did not appear before any Court after the 27th of February, 1945, nor did she receive any notice, nor did she enter into any compromise, nor had she contracted marriage and the revenue officers being in league with the defendants had dismissed the mutation entered in favour of Mst. Fatima, in review proceedings and that thereafter the defendants had got their names entered in the revenue papers. It was further averred that Mst.
Fatima married sometimes in January 1949 and the plaintiffs were now entitled to get the property of their father in equal shares to the exclusion of the defendants under custom because the land was not ancestral qua the defendants. It was also stated that according to the Shariat Act, the plaintiffs are entitled to 19/24th share while under custom they are entitled to the entire inheritance and hence this suit. The defendants resisted the suit pleading therein that the land was ancestral qua them and they were better heirs under custom as compared with Mst. Hakan and Mst. Fatima, who had relinquished their rights to inheritance and were estopped to claim it back. It was further pleaded that the suit was barred by time. The trial Court held that the land was not ancestral and the daughters were not estopped. The suit was accordingly held within time and was decreed. The defendants have remained unsuccessful before the District Judge, who has with reference to the pedigree-table (Exh. D. 4), produced by the parties before him, come to the conclusion that the property is not ancestral because it is not proved that the land held by Heman and Habib as per Settlement of 1872, after correction having been made in the revenue record by order of review of 14th of September, 1872, so as to include the name of Habib along with Heman, had devolved on Heman and Habib, from Jamal, their father.
3. On behalf of the defendants it has been argued that as per para 7.66 of the Land Records Manual and Appendix. VIII of the Settlement Manual of the Punjab, names of all persons who have held land are to be mentioned in the pedigree-table prepared for the first time during the Settlement operations, the mention of the name of Rehman (who had died issueless before the Settlement of 1872) in the pedigree-table Exh. D. 4, is indicative of the fact that at the relevant time the land had been held by the three sons of Jamal, namely HeMan, Habib and Rehman. It has further been pointed out that Mst. Fatima admitted in her statement; recorded before framing of issues, under Order X, rule 1, C.P.C., that the property devolved on. Waris from Jamal, although she has resiled from that position in the next sentence. The third factor refdrred to in this connection is the compromise which was entered int9' between Mst. Fatima and the collaterals before the Court of appeal on the Revenue side. On the basis of this documentary evidence, learned counsel for the defendants maintains that the presumption that if the land is held in equal shares by the heirs of a particular person at the relevant time, it will be considered to have devolved from their father, can be pressed into service and the findings of the learned District Judge to the contrary are faulty in this regard. Learned counsel for the plaintiffs has contended, on the other hand, that the 1857 Jamabandi merely showed the name of Heman son of Jamal to be the owner of the land in question. It was subsequently, at the time of preparation of 1872 Jamabandi that on Heman's application the name of Habib, his brother, was included as per document Exh. D. 5, and although the name of Rehman is mentioned in the pedigree-table, this is not sufficient to show that all the three brothers held the land in equal shares and, therefore, the presumption that it had devolved on them from Jamal cannot be raised in the case. He further referred to the Jamabandi of 1872, wherein one Mahmood is shown to be in possession of some land. Learned counsel tried to build up some argument that not only these three brothers held the land but the said Mahmood also was in possession and, therefore, no such presumption of land from Jamal to his sons can be raised. However, when it was pointed out to him that Mahmood did not hold any portion of the land in question and it was some other land, with which we are not concerned, learned counsel did not press the argument further. He next contended that anything given in the pedigree-table other than the mere relationship of the various persons mentioned in the pedigree-table is no evidence and no presumption of correctness attaches to the said remarks or entry and the same is of no avail.
4. The other objection raised by learned counsel for the defendants is that according to the Riwaj- i-Am of the Sahiwal District, Tehsil Dipalpur, daughter of Jat Musalman does not inherit immovable property, whether ancestral or non-ancestral, The questions and answers of the Customary Law of the Pakpattan and Dipalpur Tehsils of the Montgomery District relied on by learned counsel for the defendants are reproduced below for ready reference :- Question No,
67. Do the rights of daughters to succeed depend on the nature of the property ?
What is the distinction, if any, between the rights to succeed to ancestral and self-acquired property, movable and immovable property ?
Answer.-(l) Chishtis, Jat Musalmans, Hans Rajput, Joyas of Pakpattan Tehsil state that movable or immovable property which is ancestral cannot be given, but self-acquired property of all kinds can be given to daughters.
(2)Jat Musalmans of Tehsil Dipalpur.-Can inherit movable but not immovable property.
(3)Rajput Wattus, Mogals, Pathans, Qureshis, Rajput Musalmans of Tehsil Dipalpur.
She can take a share out of the movable property. She can inherit immovable property till marriage. If there is much property then she is only to take a share which will suffice for her maintenance,"
Question No, 43.-If a man dies leaving (i) a widow and (ii) a daughter or daughters, (iii) brothers or their descendants or (iv) uncles or their descendants or (v) grand uncles or their descendants, but no male lineal descendants, upon whom will the inheritance devolve ?
Answer. -(A) All tribes of Tehsil Pakpattan.-
(1) Widow till remarriage or death.
(2) Brothers or their descendants.
(3) Uncles or their descendants.
(4) Grandfather's brothers or their descendants. If out of the above no claimant is to be found then,
(5) Daughter or daughters inherit.
(B) All tribes of Tehsil Dipalpur.-
(1) Widow.
(2) Daughter or daughters till marriage.
(3) Brothers or their descendants.
(4) Father's brothers or their descendants.
(5) Brothers of father's father or their descendants.
' Exceptions.-Only in the Kamboh tribe the daughters do not get anything. After the widow's death the reversioners inherit."
' On the basis of these replies learned counsel for the defendants argues that Mst. Hakan was not at all entitled to the property because she was already a married daughter at the time of the death of Waris and when Mst. Fatima succeeded as an unmarried daughter on the death of the widow, she could hold the land only till such time she married and as such both the plaintiffs are not entitled to the property in question as heirs of Waris in preference to the collaterals. Learned counsel for the plaintiffs, however, has relied on Sikandar v. Mst. Karam Nihsan and others and Sanata and another v. Mst. Sahib Bibi and another for the proposition that daughters excluded collaterals according to the Customary Law of Sahiwal District, Tehsil Dipalpur. We, however, find that Sikandar v. Mst. Karam Nihsan and others is a case belonging to the clan of Khokhars, who are not Jat Musalmans and their custom is of no avail to the daughters. Similarly, Sonata and another v. Mst. Sahib Bibi and another a case of Kharals of Dipalpur Tehsil, does not advance the case of the daughters as the same has been decided on its peculiar facts and the Riwaj of Jat Musalmans of Dipalpur Tehsil as contained in Question No, 43 read With Question No, 67 has not been alluded to.
In the case before us, no special custom has been pleaded by the daughters against the general custom of Province that daughters ordinarily do not succeed as absolute owners and they succeed A 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 Sanata and another v. Mst. Sahib Bibi and another.
5. Learned counsel for the defendants also raised the question of limitation and argued that in case the property is held to be ancestral, the daughters stand excluded. It is argued that in any case the suit of Mst. Hakan as filed on the 7th of August, 1954 is barred by time because she should have, if at all, claimed her right of inheritance within twelve years from the death of Mst. Murdan in 1935 under Article 141 of the Limitation Act. He has referred to Lehna and others v. Nur Ahmad in this respect. He further argues that her suit being barred by time, her right is also extinguished under section 28 of the Limitation Act.
6. We, however, find that the case as placed before the trial Court on behalf of the plaintiffs has not been properly appreciated by the Courts below, otherwise all this idle litigation could have been avoided. The plaintiffs' suit is not the usual action under Customary Law. According to the averments in the plaint, already detailed above, the plaintiffs came to the Court claiming possession on the ground that the dismissal of mutation by way of review on the 28th July, 1945 excluding Mst. Fatima from the estate was void and inoperative against the rights of the daughters because Mst. Fatima was neither served with any notice nor did she appear before any Court nor did she enter into any alleged compromise and even she had not married at the relevant time.
Further, in para. 8 of the plaint it has been averred that under the Shariat the plaintiffs are entitled to 19/24th share and under custom as the property is non-ancestral qua the collaterals, they were entitled to the entire land. There is no proof on the record that Mst. Fatima had not been served in the Court of appeal on the Revenue side when she is said to have entered into a compromise and1 2 3 to have been excluded as a consequence in the review order dated the 28th of July, 1945. There is not a scintilla of evidence to show that the appeal proceedings or compromise therein were ex parte or without notice to Mst. Fatima. Therefore, the very basis of challenging the order of review passed on the 28th of July, 1945 disappears and the plaintiffs stand non-suited. The further contention that the property was non-ancestral qua the defendants was raised in the plaint as a secondary ground and once if it is held that the order in review had been passed on the basis of a compromise validly entered into by Mst. Fatima before the revenue authorities, the question of the property in the hands of Waris being ancestral or self-acquired qua the collaterals and other allied matters will not fall for determination.
7. For the reasons above, we set aside the judgments and decrees of the Courts below and allow this appeal. The defendants will get their costs from the plaintiffs in this Court. AIR 1938 Lah. 842 AIR 1941 Lab. 94 A I It 1930 Lab. 111