1. HAMOODUR RAHMAN, C. J.--This appeal arises out of a judgment of the High Court of Baghdad-ul- Jadid delivered on the 9th of April 1949. The appeal was filed originally before the Judicial Committee of the Amir of Bahawalpur on the 25th of June 1949, with a court-fee of Rs, 50 along with an application under section 149 of the Code of Civil Procedure of that State for extension of time for putting in the balance court-fee of Rs, 1,045. The memorandum of appeal also had a note appended to it to the following effect :- "The valuation of the suit and this appeal is above Rs, 10,000. Hence no certificate of fitness from the High Court is necessary."
2. This appeal, which was pending before the Judicial Committee of Bahawalpur State, was ultimately transferred in 1959 to this Court under section 9 of the Federal Court (Enlargement of Jurisdiction) Act, 1949 (Act I of 1950). This section, it appears, was introduced into the above- mentioned Act in the year 1597 by the Federal Court (Enlargement of Jurisdiction) (Amendment)
3. Act, 1957 (Act No, X of 1957) and was made to take effect retrospectively from the 14th of October 1955, which was the date on which the High Court of West Pakistan came into being as the new High Court for the integrated Province of West Pakistan and the High Court of Baghdadul-Jadid ceased to exist.
4. After the transference of the case and the transmission of the record to the Supreme Court of Pakistan by the Commissioner of Bahawaipur Division, notices were issued by the Court on the 31st of March 1954, to the parties to enter appearance and take steps to prosecute this appeal.
5. The appeal before the Judicial Committee of Bahawalpur State arose out of a suit filed in 1937 by three ladies; namely, Mst. Wahadul Khatoon, Mst. Qaiser Khatoon and Mst. Jawahar Khatoon, and one, Amiruddin, against Maulvi Abdul Khaliq and one, Waziruddin, for possession after declaration of their respective shares as the heirs of one, Maulvi Abdul Aziz who had died in 1926 or 1927. After his death his properties had, it appears, been recorded in the sole name of the respondent, Maulvi Abdul Khaliq, who was his brother's son. Hence the suit.
6. Maulvi Abdul Aziz had also left him surviving at the time of his death two widows, Mst. Wahadul Khatoon and Mst. Sabhai, a sister Mst. Jawahar Khatoon, and a daughter Qaiser Khatoon. Mst.
7. Sabhai died two months before the institution of the suit. Hence one of her sons from a previous husband, called Amiruddin, also joined as a plaintiff. Another son, Waziruddin, from the same husband who did not join as a plaintiff, was made a defendant. Subsequently, Waziruddin was also transferred to the category, of plaintiffs.
8. The plaintiffs alleged that the said MaulviAbdul Aziz, who was the original recorded owner of all the prorties in dispute, was governed by Muhammadan Law and, therefore, his widows, sister and daughter were entitled to inherit from him. The suit was contested by Abdul Khaliq alone who set up the following defences :-- (1)That Mauivi Abdul Aziz was only the owner of a half share in the said properties. The other half belonged to his father Abdul Hamid and had descended to him after his father's death; (2)That the family of Maulvi Abdul Aziz was governed by custom and that according to custom he alone was the sole heir of Maulvi Abdul Aziz; (3)That, in any event, Maulvi Abdul Aziz had, by a will executed on the 4th of June 1912, gifted away all his properties to him and had given only a_, maintenance allowance to Mst. Wahadul Khatoon; (4)That Mst. Sabhai was not the lawfully wedded wife of Maulvi Abdul Aziz ; and (5)That Mst. Qaiser Khatoon was not the legitimate daughter of Maulvi Abdul Aziz.
9. On these pleadings the trial Court framed six issues:-- (1)Did Maulvi Abdul Majid, the father of the defendant Abdul Khaliq, own a half share in the properties in dispute?
10. (2)Was Mst. Sabhai the lawfully wedded wife of Maulvi Abdul Aziz and was Mst. Qaisar Khatoon his legitimate daughter?
11. (3)Was Amiruddin a legitimate son of Mst. Sabhai and was he entitled to inherit from her?
12. (4)Was the family of the parties in the suit governed in the matter of succession by the custom relating to agricultural tribes under which the daughters, the widows and sisters got no share and only the widows got maintenance?
13. (5)If issue No, 4 is decided against the defendant, then to what shares are the parties entitled ? and (6)Did Maulvi Abdul Aziz leave any will in favour of the defendant Abdul Khaliq?
14. The trial Court found issues Nos, 1, 2, 3 and 6 in favour of the plaintiffs and issue No, 4 in favour of the defendant. Issue No, 5 was left undecided. The suit was, however, dismissed on the 13th of August 1940, on the ground that the parties were governed by custom.
15. The plaintiffs went up in appeal to the High Court of Baghdad-ul-Jadid but the defendant Abdul Khaliq did not file any cross-objection challenging the findings of the trial Court on the issues that were decided against him. The High Court took the view that the onus of proving issue No, 4 was wrongly placed on the plaintiffs. It also held that the evidence, adduced, which consisted of copies of several mutations and of two Wajib-ul-Arz for the years 1904 and 1927-28 and the oral testimony of the witnesses, was not sufficient enough to establish a special family custom by which the widows and daughters of a male sonless owner are deprived of inheritance. In the absence of proof of such special family custom, therefore, the parties should have been held to be governed by the Shariat Law. The appeal was, accordingly, allowed, the shares of the plaintiffs declared and a decree for possession passed.
16. This judgment was challenged by the defendant in appeal before the Judicial Committee of Baghdad-ul-Jadid where it was argued that the High Court should have discussed all the issues and given its findings thereon, even though the defendant had filed no cross-objections in the High Court. It was not necessary for him to do so, since the suit had been dismissed by the trial Court.
17. The question of abatement of the suit was also raised before the Judicial Committee which on the 10th of February 1942, remanded the case back to the High Court with a direction "that it should hear arguments on all the other issues which had not been previously discussed in its judgment and should also consider the question of abatement of the suit on account of the death of Jawahar Khatoon and give a fresh decision keeping in view the above directions".
18. This advice of the Privy Council was accepted by His Highness the Amir of Bahawalpur on the 23rd of April 1942 and the case was remanded back to the High Court. The latter on this occasion set aside the decree of the trial Court and remanded the case for further enquiry to the trial Court on the 9th April 1944 for considering the question of setting aside the abatement and for admission of certain documents according to law. The trial Court, on remand, held that there had been no abatement of the suit as a result of the death of Mst. Jawahar Khatoon but on merits again came to the conclusion that the parties were governed by custom and, accordingly, dismissed the suit.
19. Again, the plaintiffs went up in appeal to the High Court, but the appeal was dismissed on the 9th of April 1949, and the judgment of the trial Court was affirmed.
20. Before we go into the merits of this appeal there is a preliminary objection which has been taken on behalf of the respondents as to the competency of this appeal. It is contended that since this was a judgment of affirmance, the appellants to the Judicial Committee of the State should also have obtained a certificate of fitness under section 110 of the Code of Civil Procedure from the High Court. Since this was not done, the appeal before the Judicial Committee of the State was not competent and this Court has now no power to grant special leave to appeal, as the High Court of Baghdad-ul-Jadid is not and never was one of the High Courts against judgments and orders of which an appeal could lie to this Court. After the merger of the State into the Province of West Pakistan that High Court ceased to exist and cannot now be deemed to exist even notionally.
21. It is true that where there is a judgment of affirmance it is necessary under section 110 of the Code of Civil Procedure that the appeal must also involve "some substantial question of law" and a certificate to that effect must be granted by the High Court and that in the present case all that has been stated in the memorandum of appeal is that the value of the subject-matter in dispute is above Rs, 10,000. But even if there is no certificate or the certificate has not been granted in proper form, this Court is not powerless. It can, if substantial questions of law are involved and the facts and circumstances of the case otherwise justify it, grant special leave in the same manner as the Judicial Committee of the Privy Council itself could do, because, the jurisdiction given to this Court by section 9 of the Act of 1949 is to hear and decide the case transferred to it "as if it were a case or an appeal pending before that Court" from which it has been transferred. The rules of the Judicial Committee of the State of Bahawalpur have not been placed before us, but from an order of the Minister of Law, Bahawalpur Government, admitting the first appeal that was taken to the Privy Council in this very case in 1941, it would appear that the Judicial Committee of the Bahawalpur State had the jurisdiction to grant special leave to appeal.
22. The Judicial Committee of the Privy Council in Great Britain had undoubtedly this jurisdiction and it had often exercised it. Thus in the case of Gujadhur Porshad v. The Two Widows of Emam Ali Beg , where the leave to appeal granted by the Judicial Commissioner of Oudh was clearly without jurisdiction, it was pointed out that :- "the right practice is to take objections of this kind at the earliest moment, for the obvious reason that the great expense of preparing for the hearing is thereby saved, which is uselessly incurred if, when the objection is ultimately taken, their Lordships feel obliged to yield to it. But although their1 Lordships think that the objection should be taken at an early period, it is clearly competent to them to hear it at any stage of the appeal; and it has not been unusual to entertain it when the appeal is called on, and before the argument upon the merits has been commenced. Mr. Doyne has taken it at that time, and their Lordships think his objection ought to prevail. Mr. Leith then suggested that he desired to apply to this board for special leave to appeal; and no doubt there have been cases where, upon the appeal being called on and the objection discussed, their Lordships have given special leave to appeal, nurse pro tune, directing that the petition to appeal should go to Her Majesty with the report upon the appeal itself. An appellant, however, cannot be in a better position with regard to the application than that in which he would have stood if he had made it at an earlier period, and their Lordships have had to consider whether or not this is a case in which they ought to grant special leave to appeal; and they have come very clearly to the conclusion that it is not."
23. Again, in the case of Radha Krishn Das v. Rai Krishn Chand , the Privy Council, after holding that the leave to appeal granted by the High Court without any certificate under section 596 of the Code of Civil Procedure as to the value of the subject-matter or without any decision under section 595(c)
24. (now sections 110 and 109 respectively) as to its fitness for appeal was granted without jurisdiction, added that if "Mr. Mayne (the learned counsel of the appellant) had been in a position, which he very fairly admitted he was not, to say that he could with any hope of success ask for special leave to appeal, their Lordships would not have shut out the appellant from stating his case to the Board".
25. Similary, in the case of Radhakrishna Ayyar and another v. Swaminatha Ayyar , where the certificate granted by the High Court under sections 109 and 110 of the Code of Civil Procedure did not show clearly whether the certificate was granted merely on the ground that the case fell within clauses (a) and (b) of section 109 or that it also fell within clause (c) of the said section the Judicial Committee allowed an objection to be raised and held that the appeal could not be maintained,' as the value of the subject-matter was under Rs, 10,000 and there was nothing in the certificate to show that the discretion conferred upon the High Court by clause (c) of section 109 had been exercised. The counsel for the appellants then asked for special leave, even though the value of the subject-matter of the suit and the appeal was beneath the proper appealable amount, upon the ground that an important question of law was involved. The Judicial Committee refused to advise His Majesty to grant special leave not because it could not do so but because they did not think that there were grounds "to justify granting special leave to appeal".
26. So far as this Court is concerned, it too has exercised this power of granting special leave where the certificate was not proper. Thus in the case of Ghulam Hasan v. Sarfaraz Khan , where the certificate granted by the High Court had omitted to mention, in a case of a judgment of affirmance, that in addition to the valuation test the appeal also involved substantial questions of law, this Court observed that "however now that the matter is before us we propose to go into ,the appeals and dispose of them on their merits" and, in fact, did so.
27. A similar procedure was adopted by this Court in the case of Mst. Shohrat Bano v. Ismail Dada Adam Soomar , where it was held that neither Article 58 of the Constitution of 1962 nor Articles 158 and 160 of the Constitution of 1956 restricted the right of appeal to this Court within the four corners of those Articles but still, "in order to resolve any doubts that may arise in this behalf", special leave to appeal was granted and the appeal was heard on merits.
28. The contention of the learned counsel for the respondents that whatever might have been the position then now this Court does not possess this power is untenable. Article 60 of the Constitution of 1962 gives to this Court, in addition to the jurisdictions conferred upon it by Articles 57 to 59, "such other' jurisdiction as may be conferred on it by law." The Federal Court (Enlargement of Jurisdiction) Act, 1949, is still an existing law and it does confer a jurisdiction upon this Court which has not been taken away by any other statute or Act. The argument that since the High Court of2 3 4 5 Baghdad-ul-Jadid has now ceased to exist, after the integration of Bahawalpur State with the Province of West Pakistan, this Court has lost its jurisdiction under the Federal Court (Enlargement of Jurisdiction) Act, 1949, is clearly devoid of force, because, with regard to pending matters this Court's jurisdiction has not been affected in any way. Vide Sutlej Cotton Mills Ltd. v. Industrial Court, West Pakistan . It is clear, therefore, that this Court still has, in this case, the jurisdiction to grant special leave, particularly, since there are substantial questions of law arising for decision in this case. We, accordingly, overrule the preliminary objection and in order to remove all doubt grant special leave to appeal and proceed to deal with the appeal on merits.
29. With regard to the merits of the case the first question of law raised on behalf of the appellants is that the Hip Court of Baghdad-ul-Jadid erred in holding that the onus was on the plaintiffs to prove "that the rule of inheritance in their family is their personal law and not the customary law." Learned counsel points out that under section 5 of the Punjab Laws Act, 1872, which was applicable to Bahawalpur, the position was the reverse. Section 5 provides as follows:-- "5. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies gifts, partitions, or any religious usage or institution, the rule of decision shall be-- (a)any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority ; (b)the Muhammadan law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to."
30. This section was interpreted by a Full Bench of the Lahore Chief Court in the case of Daya Ram v.
31. Sohel Singh and others , where Robertson, J. (at page 410) observed:-- "It has sometimes apparently been assumed that because in section 5 of the Punjab Laws Act, clause (a) which deals with custom comes first, and clause (b), which treats of personal law, comes second, that some peculiar preference for custom as opposed to personal law is indicated.
32. This appears to me to be quite fallacious. In all cases it appears to me under this Act, it lies upon the person asserting that he is ruled, in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove that the particular custom is. There is no presumption created by the clause in favour of custom; on the contrary, it is only when the custom is established that it is to be the rule of decision. The Legislature did not show itself enamoured of custom rather than law nor does it show any tendency to extend the 'principles' of custom to any matter to which a rule of custom is not clearly proved to apply. It is not the spirit of Customary Law, nor any theory of custom or deductions from other customs which is to be a rule o decision, but only 'any custom applicable to the parties concerned which is not and it, therefore, appears to me clear that hen either party to a suit sets up 'custom' as a rule of decision, it lies upon him to prove the custom which he seeks to apply; if he fails to do so clause (b) of section 5 of the Laws Act applies, and the rule of decision must be the personal law of the parties subject to the other provisions of the clause. It is not sufficient to show that in regard to certain other matters the parties are governed by custom".
33. The principle propounded by Robertson, J., in the above-mentioned case was quoted with approval by the Judicial Committee in the case of Abdul Hussain Khan v. Mst. Bibi Sona Dero and another .
34. This principle has not since been departed from. The High Court was, therefore, in our view clearly wrong in placing the onus on the plaintiffs, for, the plaintiffs in this case did not allege custom.
35. Custom was alleged by the defendant, Abdul Khaliq. The onus, therefore, was on him under section6 7 8 5 of the Punjab Laws Act, 1872, to prove not only that the family was governed by custom but also to prove the particular kind of custom alleged by him.
36. That the Punjab Laws Act, 1872, applied to the State of Bahawalpur is evident from the earlier decision of the same High Court itself in this very case (vide page 164 of the paper book), where it was rightly held that according to this section if the custom alleged is not proved the personal law must be followed.
37. In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Manaka v. Madha Rao) . The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion--(Vide PLD 1948 P C 171). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not the case here, for, the evidence is, by no means, evenly balanced.
38. This brings us to the consideration of the evidence adduced in this case, which is both oral as well as documentary. The documentary evidence consists of records of mutations from 1911 onwards.
39. The first is Exh. D/13 which shows that on the death of one, Mazhar Amanullah, the name of his son Qamaruddin was mutated as heir on the 8th of July 1911. Zakir Muhammad (D. W. 2) stated that Amanullah died leaving one son, Qamaruddin, and two daughters, but the daughters were not given any share. This statement of the witness was not challenged in cross-examination. In the same year ten days later another mutation by inheritance was attested on the death of Abdul Majid, the father of the defendant, Abdul Khaliq. Mutation (Exh. D/16) of inheritance was attested only in the name of Abdul Khaliq. Abdul Majid, according to Shahbaz (D. W. 6), also left him surviving a widow and at that time Abdul Khaliq was a minor. Again, there was no cross- examination directed to challenge the correctness of this statement.
40. On the 21st of July 1920, another mutation (Exh. D/10) was attested on the death of one, Billah son of Muhammad Azam, in the name of his son, Nizam Din and on the 22nd July 1920, on the death of Allah Bachaya mutation (Exh. D/14) was attested in the name of his son Muhammad Nawaz.
41. According to Zakir Muhammad (D. W. 2) Allah Bachaya had also left him surviving a widow and a married daughter, but they were not given any share. The correctness of this statement was also not challenged in cross-examination.
42. Muhammad Nawaz son of Allah Bachaya himself gave evidence in this case on behalf of the plaintiff as P. W.
1. He claimed that he belonged to the same family as that of the deceased Abdul Aziz and also worked as the latter's Mukhtar for 6/7 years. He denied that Abdul Aziz and Abdul Majid were joint either in estate or in family. According to him they possessed their properties separately and lived separately. The defendant Abdul Khaliq also never lived with his uncle Abdul Aziz. He, of course, maintained that the family was not governed by custom, but in cross- examination he had to admit that when his grandfather Rahim Bakhsh died leaving one son and one daughter; the daughter was not given a share but that, he said, was because she herself did not want a share. He admitted that he had a sister but she too, he maintained, had voluntarily gifted to him her share in the inheritance.
43. Again we find that on the 13th of January 1932, on the death of one,. Balawal Din son of Muhammad Azim, the name of his only son Jan Muhammad was mutated as his heir (vide Exh. D/15). This Balawal Din, according to Allah Ditta (D. W. 9) and Nasiruddin (D. W. 13) had also left a daughter who was not given any share. The daughter, according to Nasiruddin, neither demanded any share nor was given any share.
44. There is, however, another mutation (Exh. D/19) which was entered on the 20th of July 1919, and this shows that on the death of one, Qadir Bakhsh, without any issue the name of his widow Mst. Aizan was recorded as his heir. All these persons belonged to the same tribe as the deceased Maulvi Abdul Aziz.9 The defendants had, in addition, also relied on a Shafrae-Nasab (genealogical table) of the family (Exh. D/4) and copies of two Wafibul Arz with regard to Mauza Mianwali Qureshian, Tehsil and District Rahimyar Khan (Bahawalpur). The first (Exh. 0/17) was prepared in the year 1904. It recites as follows :-- {{URDU TEXT}} The next (Exh. D/18) was prepared in the year 1927-28. It reads as follows:- {{URDU TEXT}} It will be noticed that the only difference between these two is that in the , Wajibul Arz for the year 1927-28 the last sentence, namely," {{URDU TEXT}} is not to be found in the Wajibul Arz for 1904.
45. The above evidence clearly establishes that in this Mauza "Mianwali Qureshian" the agriculturists were governed by custom of the type mentioned in the Wajibul Arz.
46. The documentary evidence adduced by the plaintiffs to rebut this evidence consists only of one correction mutation (Exh. P/5) in respect of the inheritance of one, Qadir Bakhsh. It appears that on the death of Qadir Bakhsh originally the names only of his two sons, Nazar Muhammad and Fateh Muhammad, were recorded but in 1932 they applied to have the mutation corrected and a corrected mutation was attested on the 3rd of September 1932, on the basis of their statement that their family was governed by Shariat and, therefore, the widow also should be given a 1/8th share.
47. Reliance is also placed by the appellants on the reply (Exh. P/4), dated the 1st April 1937, which was given by the respondent Abdul Khaleq to the notice served on him before the institution of the suit to show that in this he had not set up any custom, but had only set up a gift under the will of 4th of June 1913. He had, it is said, admitted that Mst. Wahadul Khatoon, though entitled under the Shariat to a share in the inheritance, had lost the same because of the will made by Maulvi Abdul Aziz in his life-time. This does not, however, appear to be an unequivocal admission, for, towards the end he also sets up his right to inherit the properties of Maulvi Abdul Aziz by saying that he is the lawful sole heir of Maulvi Abdul Aziz, which could only be under custom. The reply must be read as a whole and reading it as a whole we are unable to agree that it contains any clear or categorical admission that the family was governed by Shariat.
48. The evidence is thus overwhelmingly in favour of the defendant's claim that the family of Maulvi Abdul Aziz was governed by custom. The mutations proved clearly show that in this Mauza of Mianwali Qureshian the agriculturists were governed by custom, under which the females did not get any share in the presence of male lineal descendants. Even amongst the male lineal descendants the custom was to inherit per capita (pagwand), and not per stripes (Chundawand).
49. There is no material contradiction between the two Wajibul Arz of 1904 (Exh. D/17) and of 1927-28 (Exh. D/18). The latter merely states that in some families the succession is governed by Shariat, There is, however, no evidence in this case that in this family succession was governed by Shariat.
50. The solitary instance cited by the appellant is of a correction mutation entered in 1932 with respect to the estate of Qadir Bakhsh. This, however, only shows that the correction was made by consent of all the heirs, although originally in this case to the names of only the two sons had been recorded. This solitary instance does not, therefore, negative the fact that the family of Maulvi Abdul Aziz was governed by Custom.
51. Learned counsel's contention that where there are contrdictions between two Riwaj-e-Aams the latter must prevail, is not relevant in the present case, for, we do not find any material contradiction.
52. It now remains to consider the last argument advance by the learned counsel for the appellants; namely, that even if the evidence is accepted that the family was governed by custom then the custom established by the Wajibul Arz (Exhs. D/17 and D/18) applies only to ancestral properties and not to non-ancestral properties because it is not so specified in the Wajibul Arz. In support of this contention learned counsel has relied on subparagraph (2) of paragraph 23 of Rattigan's Digest of Customary Law, 1953 Edition, page 350. This reads as follows :- "but in regard to the acquired property of her father the daughter is preferred to collaterals."
53. This would seem to indicate that according to custom generally followed in the Province of Punjab the daughter excludes E collaterals in succession to self-acquired property of her father in preference to collaterals.
54. This was also accepted by the Judicial Committee in the case of Mst. Subhani and others v. Nawab and others where it was held that amongst Mohammadan tribes a daughter is preferred to collaterals in regard to the acquired property of her father, relying on paragraph 23 of Rattigan's Digest of Customary Law. Once it is established that the property is self-acquired, the initial onus, according to the Judicial Committee, is "on the collaterals to show that the general custom in favour of the daughter's succession to the self-acquired property of her father has been varied by a special custom excluding the daughters".
55. The contention of the learned counsel that the Wajibul Arz applies only to ancestral properties unless its application to non-ancestral property is also specifically mentioned therein, finds support from two decisions of the Lahore High Court as well; namely, in the cases of Abdur Rahman v. Mst. Mathu and Rani Sunder Devi v. Tej Singh . These were both cases which dealt with customs recorded in the Riwaj-e-Aam. In both it was held that unless there is a clear statement to the contrary the Riwaj-e-Aam refers only to ancestral land. There is, in G principle, no difference between a Riwaj-e-Aam and a Wajibul Arz, except this that a Wajibul Arz is applicable to a particular village while a Riwaj-e-Aam is applicable to the whole district.
56. Since this question, namely, as to whether the properties left by Maulvi Abdul Aziz were all ancestral properties or not, had not been raised in the Courts below, it was in the interest of justice considered necessary, when this appeal first came up for hearing before this Court on the 15th of August 1970 to direct the District judge of Rahimyar Khan to record evidence on this question and to certify that evidence to this Court. The District Judge gave notice to both parties and recorded the statements of the parties. The appellants filed documentary evidence of certain Jamabandis but no evidence was produced on behalf of the respondents who are now the heirs of Maulvi Abdul Khaliq who died during the pendency of the appeal. (His heirs were substituted by an order of this Court, dated the 26th of September 1963). The Attorney of his widow Mst. Chanan Bibi and of one of his daughters Mst. Amir Khatoon made a statement before the District Judge that documentary evidence has already been tendered on behalf of the respondents in this case and he has not any more documents to place on evidence. The evidence on behalf of the respondents may, therefore, be considered as closed.
57. The evidence that has been so certified to this Court shows that in the Jamabandi of 1879 only an area of 39 bighas, 2 kanals and 12 marlas was recorded in the joint names of Maulvi Abdul Aziz and Abdul Majid sons of Wahid Bakhsh who had died in or about 1869. Thereafter between 1889 and 1922 Maulvi Abdul Aziz purchased and sold large areas of land. It is not clear if they never divided these lands but Abdul Majid too must have acquired other lands, for, on the death of Abdul Majid his lands were mutated in the name of his son, the respondent Abdul Khaliq (vide Exh. D/16) on the 18th of July 1911. Thus the contention that all the lands left by Abdul Aziz were in the joint names of the parties is not borne out by this evidence. This evidence, on the other hand, would seem to indicate that apart from the lands mentioned in the Jamabandi of 1879 (Exh. A/1) all other lands where the self-acquired property of Maulvi Abdul Aziz.
58. Learned counsel for the respondents, at this stage, has firstly contended that this question should not be allowed to be raised at all, because, it was not pleaded nor was any issue raised with regard to it. Our attention in this connection is drawn to the plaint which is based on a personal right of10 11 12 inheritance under the Shariat law. There is no mention of custom there at all. In the written statement, however, the defendant Abdul Khaliq did set up the case that the family of Maulvi Abdul Aziz deceased was governed by custom and a specific issue was raised with regard to this question. It is true that there was no allegation in the plaint that the properties were self-acquired properties of Maulvi Abdul Aziz but in view of the case set up there it was not necessary to plead this fact. The defendant, since he pleaded custom, should have known that ordinarily the devolution of ancestral property only is governed by custom. It was for the defendant, therefore, to also allege that the properties left by Maulvi Abdul Aziz were all ancestral properties. He cannot now be allowed to object to this question being raised, because, this is a pertinent question which arises out of the plea raised by the defendant himself. It is he who filed the Wajibul Arz and he should have known that it is a well recognised rule that entries in the Riwaj-e-Am or Wajibul Arz which do not specifically mention non-ancestral properties, must be taken to refer to a rule of succesion relating to ancestral property only (vide Rattigan's Digest of Customary Law page 202).
59. In the present case, the Wajibul Arz (Exhs. D/17 and D/18) relied upon by the defendant do not mention that the custom therein referred to applied to non-ancestral property as well. Thus even though, as contended on behalf of the respondents, the entries in the Wajibul Arz are entitled to an initial presumption in favour of their correctness, they do not establish that the custom set up applied to non-ancestral property as well. There is nothing in either of the two Wajibul Arz filed to give any indication that they applied to non-ancestral property.
60. Learned counsel for the respondents contends that the Wajibul Arz should be read together with the oral evidence adduced on behalf of the defendants which was almost one-sided. He has relied in this connection on the evidence of the defendant Abdul Khaliq himself but Abdul Khaliq nowhere stated that all the properties, whether ancestral or non-ancestral, devolved according to custom in his family. In fact, the case that he set up would rather seem to indicate that according to him the properties were ancestral, for, he claimed that his father had a half share in the properties also. It is, however, interesting to note that the next witness D. W. 2, Zakir Muhammad, in his cross- examination admitted that Abdul Aziz and Abdul Majid had separated in their life-time. This appears to receive confirmation also from the mutation record (Exh. D/16) which shows that on the death of Abdul Majid, his son, the defendant Khaliq, was alone recorded as his heir. But even this witness does not say, as contended by the learned counsel for the respondents, that the "entire properties", whether ancestral or non-ancestral, devolved according to custom. The oral evidence does not, therefore, support the learned counsel's contention that all properties devolved according to custom. We are unable, therefore, to agree that either the Wajibul Arz or the oral evidence shows that non-ancestral properties also devolved according to custom. The fact that the Wajibul Arz sets out a custom without saying anything more or making any reference to any ancestral or self-acquired property does not make it applicable to both. The rule to be applied is that, in such cases, It governs only succession to ancestral property. This is in accord also with the general custom set out at page 358 of the Rattigan's Digest of Customary Law that "daughters are entitled to inherit non-ancestral property in preference to collaterals." It is not necessary, however, for us to rely on any such a general custom, for, in the absence of the proof of custom set up by the defendant the rule of succession must be governed by the personal law under section 5 of the Punjab Laws Act, 1872.
61. Notwithstanding the statement made by the Attorney for the respondents before the District Judge, Rahimyar Khan, learned counsel now appearing for the respondents, towards the close of the hearing, made a complaint that he had not had sufficient opportunity of producing rebutting evidence on this point. Two weeks' time was, accordingly, given to him to file any document that he wished to rely upon and the judgment was kept reserved for this period. On the 20th of March 1971, the respondents have filed a copy of a Jamabandi for the year 1939-40 along with an application praying that either this document may be taken into consideration or the case may be remanded for further evidence on this point. No question of remand can arise at this stage. The respondents had enough opportunity, when the case was before the District Judge, Rahimyar Khan, for adducing evidence on this point. They not only did not do so but through their Attorney declared that they had no documents to file. They cannot now complain of any lack of opportunity. Even before us their learned counsel conceded that the properties left by Abdul Aziz, apart from those mentioned in the Jamabandi of 1878, were his self-acquired properties. They must have known that this was the position. It was for them, therefore, to lead evidence to show that the custom set up also applied to non-ancestral property. Nevertheless, the Jamabandi which has now been filed along with this application has been taken into account by us. It shows that on the death of one, Abdul Rahim, without any issue, his brother's son, Shamsuddin, was recorded as his heir by inheritance. This document has on its reverse a pedigree table which shows that the deceased Abdur Rahim and his brother Abdul Hakim were both descended from one, Sher Muhammad. There is nothing therein, however, to indicate as to how the Khatas mentioned in this Jamabandi were acquired by Abdur Rahim. Nor is there anything to show that by this mutation female heirs, if any, of Abdur Rahim were excluded. The Jamabandi, as pointed out in the reply of the appellant, relates to another village in another Tehsil. This document does not, in our opinion, advance the respondent's case or support his contention that even non-ancestral properties devolved according to custom.
62. The result, therefore, is that this appeal succeeds to the extent of all the properties left by Abdul Aziz except those mentioned in the Jamabandi of 1878. The plaintiffs or their successors-in-interest will get the shares as declared in the judgment of the High Court delivered on the 10th of May 1941.
63. The residue which would have gone to Khaliq, a brothers's son, will now go to his heirs.
64. The judgments and decrees of the Courts below are, accor-dingly, set aside and the suit for possession is decreed in preliminary form to the extent of the respective shares of the parties as mentioned above. A Commissioner of partition should now be appointed by the trial Court to make the partition and after considering his report a final decree for possession will have to be drawn up.
65. Since success is divided, each party will bear his own costs. 2 I A 205 28 I A 182 48 I A 31 PLD 1956 SC (Pak.) 309 1968 SCM R 574 PLD 1966 SC 472 1906 P R 390 AIR 1917 P C 181 AIR 1950 P C 25 AIR 1941 P C 21 I L R 13 Lah. 458 I L R 17 Lah. 346 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.