1. SALAHUDDIN AHMED, J.-Shera, husband of petitioner No. 1 died in the year 1946 without leaving any male issue. His property was, accordingly, mutated in the names of his two widows, namely petitioner No. 1 Mst. Begum Bibi and Mst. Rasul Bibi in equal shares as a life estate. Later, Mst. Rasul Bibi remarried and the land of her share was also mutated in the name of Mst. Begum Bibi.
2. The land is dispute was gifted by Mst. Begum Bibi in favour of their eldest daughter, Mst. Nek Bibi to the exclusion of their two other daughters in the years 1954/1957.
3. Respondents Nos. 1 and 2, the said two daughters of Shera, therefore, filed a suit against the petitioners on the 7th of January 1959, for a declaration that Mst. Begum Bibi having inherited under custom as a widow of Shera was not competent to alienate by gift the property in suit and that the disputed alienation did not affect the revisionary rights of the plaintiffs.
4. The defendants contested the suit and claimed, inter alia, that the gifts in question were made in lieu of services rendered to petitioner No. 1, and that the husband of petitioner No. 2 Mst. Nek Bibi was a Khana Damad (resident son-in-law of Shera deceased.
5. The suit was decreed by the Administrative Civil Judge, Gujrat, and the decree was affirmed on appeal by the defendants by the Additional District Judge, Gujrat. On a second appeal by the defendants a Division Bench of the Lahore High Court maintained the decree granted in favour of the respondents.
6. It has been contended before us that petitioner No.1 Mst. Begum Bibi was competent under the Customary Law to make the gifts in question. In support of this contention the case of Mst. Inayat Bibi v. Rehmat and others (231 I C 61) was cited. In the case underreport reliance was placed on an abstract of Rawaj of the Gujrat District Volume IX compiled by Captain H. Davies. The relevant extract reads as follows: "Question 1.-If a land-owner dies sonless what are the rights of his widow or widows to succeed to the property?
7. Answer 1. By all tribes.
8. The widow or widows succeed to the whole property in which they retain a life interest till death provided they do not re marry.
9. Question 2. Has a widow who has succeed to such property any right to transfer such property?
10. Answer 2. By all Muhammadens.
11. The widow cannot, as a rule, alienate by deed of gift or by will the estate of her husband, unless she is advanced in years and there is no likelihood of re-marriage. Under the latter circumstances she can transfer by gift to any male member of her husband's family or to a descendant of her daughter under whose care she lives. The transferee will be answerable for her maintenance.
12. The widow has power to sell or mortgage the property under two circumstances:
(I) in order to pay arrears of revenue or a fine.
(2) on account of necessary expenses, such as payment of debts contracted by her husband during his lifetime or for the marriage of a daughter, but in such cases the law of pre-emption will operate."
13. It is, thus evident that the widow succeeds to a life-interest till her death provided she does not remary, and that as a rule she cannot alienate by deed of gift the estate of her husband unless she is advanced in years, and there is no likelihood of remarriage. Furthermore, that she can transfer by gift only to a male member of her husband's family or to a descendant of her daughter under whose care she lives. The widow can also sell or mortgage the property on account of necessary expenses such as payment of debts contracted by her husband during his lifetime or for the marriage of a daughter. The last named provision does not apply in the present case inasmuch as the present case is a case of gift and not of a sale or mortgage.
14. There is nothing on record to show that petitioner Mst. Begum Bibi is advanced in years and that she had no likelihood of remarriage. Furthermore, the gift has been made to a person other than that mentioned in the aforesaid custom.
15. We, therefore, see no reason to interfere with the order of the High Court. The petition is, accordingly, dismissed.