1. ANWARUL HAQ, 1.-This petition for special leave to appeal is directed against the judgment and decree of a Division Bench of the High Court at Peshawar, whereby an appeal filed by the present petitioner, Aminul Haq, under Clause 10 of the Letters Patent, against the order of a learned Single Judge of that Court was dismissed.
2. The litigation between the parties concerned 1/6 share in the property of Saifullah the paternal grand-father of the petitioner. By a will made on the 26th of January 1919, the late Saifullah bequeathed his property among his children, including the respondent Mst. Muntaha, who was a widow of his pre-deceased son IlAtiaaullah. He died in 1922 and on 11-3-1922 mutation of his inheritance a bearing No. 7941 was 19237Mst. Muntaha got 1./6 share in the entire property. On the 28th of March 1953, she gifted her entire share is favour of her brother Sher A.I. The validity of the gift was challenged by the present petitioner, Aminul Haq, on the ground that Mst. Muntaha was only entitled to maintenance for life and, therefore, the alienation made by her by way of gift was ineffective as against the rights of the plaintiff in the property of his grand--father. In the alternative he prayed for a declaration to the effect that if Mst. Muntaha was found to be a limited owner, then the gift would not affect his reversionary rights after the death or marriage of Mst.
3. Muntaha.
4. A large number of issues were framed by the learned Civil Judge who tried the suit. He held that the suit was time-- barred; that the plaintiff was estopped from suing ; that the mutation of inheritance was not arrested on the basis of custom but on the basis of the will of Saifullah ; and that according to the will Msr. Muntaha got the property as a limited owner. Strangely enough however, the learned trial Judge did not record any finding as to the validity of the gift and dismissed the suit.
5. It was now the turn of Mst. Muntaha and the legal representatives of the donee Sher A.I who had died, in the meantime, to come up in second appeal to the High Court. A learned Single Judge reversed the findings recorded by the learned Additional District Judge regarding the nature of the interest acquired by Mst. Muntaha, observing that the property had gone to her as a full owner under the will, as Saifullah could validly will away 1/6 of his property under the Muhammadan Law in favour of Mst. Muntaha who was not his Muhammadan Law heir. On this view of the matter, the learned Judge found that Mst. Muntaha was competent to make the gift in favour of her brother.
6. He, therefore, accepted the appeal, set aside the judgment and decree of the first appellate Court and dismissed the plaintiff's suit.
7. The plaintiff, Aminul Haq, thereupon filed as appeal under clause 10 of the Letters Patent which, as already stated, has been dismissed by the Division Bench. The learned Judges have agreed with the conclusions recorded by the learned Single Judge regarding the title and interest acquired by Mo. Muntaha under the will, and her competence to make the gift in question.
8. Special leave to appeal is sought mainly on the ground that at the time Saifullah made the will in 1919 and whet, he died in 1922, he was governed by custom, and accordingly he was not competent to make the will in favour of Mst. Muntaha and others, and that in any case as a female Mst.
9. Muntaha could get only a limited life estate in the property and not full ownership. In support of his submission the learned counsel has referred us to Akbar Khan and others v. Mst. Amir Jan and others (AIR 1935 Pesh. 11).
10. It may be stated straightaway that the authority referred to by Mr. Peer Bakhsh Khan is of no assistance to him as it deals with the validity of a will under the custom in favour of a widow of the last male-owner of the property. The case undoubtedly related to a Pathan proprietor of the Razzar tract, which is a sub-division of the Yousafzai tribe, and the answer given by the learned Judicial Commissioner was based on the relevant custom having a direct bearing on the point, namely, the interest which a widow might acquire under will. It was observed that :- "It has now been proved that amongst "the Razzar Khans" father can by will vary the customary shares of his sons in succession to his ancestral property, and that he can bequeath a small portion of his property, preferably his self acquired property, to a widow. The bequest however will not confer on that widow the rights of absolute ownership, but merely a limited interest for her life or until remarriage."
11. It is clear to us that these observations have reference to the widow of the last male-owner, and not to any other female.
12. The subject of the custom pertaining to wills and legacies among the Pathan tribes is dealt with in section VIII of Customary Law of the Peshawar District by J. G. Lorimer. Sections 92 and 93 read together provide the answer that among the Yousafzais of which Razzars are a sub-division, there are no restrictions on the power of bequest although in the case of some other tribes there was a limitation that bequest could only be made in favour of persons who were not heirs. It seems to us that in the light of these answers, the High Court was right in observing that Saifullah could make a valid will under custom in favour of the widow of his predeceased son, and that she would take the bequeathed property as a full owner and not as a limited owner.
13. This being the only point raised before us, the petition fails and is hereby dismissed. 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.