K. E. CHAUHAN, J.-The following pedigree-table will be helpful in understanding the facts of the present case.
ADHMUN Ghulam HussainJaha Khan Died in1938 and left Mehar Khan widow Mst. Gullan(plaintiff)
Mst. ZohranMst. B kht Bibi (daughter)(daughter)
2. The land which is the subject-matter of the present case belonged to Ghulam Hussain who died in the year 1938. On his death, the land was mutated in the name of his widow Mst. Gullan, defendant No. 3. She contracted a second marriage with the plaintiff-respondent Mehr Khan, and her right to remain in possession of the land in dispute having come to an end under custom, the land was mutated in favour of Mst. Zohran/or Zohra, defendant No. 2, who at that time was unmarried daughter of Ghulam Husain. The other daughter of Ghulam Husain, namely, Mst. Bakht Bibi, who is defendant No. 1 in this case, having already married, was not given any share. Mst.
Zohra, defendant No. 2, married, according to the plaintiff before Shariat Act of 1948, but according to the defendants after that period. She then sold a part of that land to her other sister defendant No. 1. The present suit was brought by Mehr Khan on 24-4-57 on the allegation that as Mst. Zohra contracted marriage before the promulgation of Provincial Shariat Act, 1948, the succession to the land in dispute was to be governed by custom whereunder the plaintiff was the sole heir. He averred that the sale of part of the land 'made by Mst. Zohra in favour of defendant No. 1 was without any title, right or authority. On these allegations he claimed possession of the whole of the said land. On the pleading of the parties the trial Court framed various issues, but we are not concerned with all of them and suffice it to say that the main controversy between the parties was as to whether Mst. Zohra had contracted marriage before the promulgation of the Provincial Muslim Shariat Act, 1948 or not. The learned trial Judge finding that Mst. Zohra had contracted the marriage before the promulgation of Provincial Shariat Act, 1948, held that the succession to the land in dispute was to be regulated by custom whereunder the plaintiff was the sole heir. This finding of fact regarding the date of marriage of Mst. Zohra was maintained by the learned District Judge, in appeal. On a second appeal to this Court by Mst. Bakht Bibi, defendant No. 1 (the other already married daughter of Ghulam Husain), a learned Single Judge of this Court dismissed the appeal in limine on the ground that it was concluded by a finding of fact regarding date of marriage of Mst. Zohra. An application for certificate, for filing a Letters Patent Appeal under Clause
(10) of the Letters Patent (Lahore) was filed by Mst. Bakht Bibi before the learned Single Judge on the ground that even if Mst. Zohra be held to have married before the promulgation of Provincial Shariat Act, 1948, and even if the devolution of the property was to be governed by custom, still the appellant being daughter of the propositus namely Ghulam Hussain and the property being self- acquired, the daughters were preferential heirs under custom as compared to the plaintiff Mehr Khan, who was a collateral of Ghulam Husain in the third degree. The learned Single Judge, finding force in this submission granted a certificate for the Letters Patent Appeal which has now come up for final hearing before us.
3. The first point urged by the learned counsel for the appellant was that the land in dispute was not ancestral property. He drew our attention to the plaint and said that therein the plaintiff had nowhere alleged that the land was ancestral qua him. He read paragraph No. 1 of the plaint, to show that the case of the plaintiff as made therein was that the real owner of the land in dispute was Ghulam Hussain, who died in the year 1938. The learned counsel for the appellant submits that the burden of proving that the property in any given case is ancestral is always on the person who may allege it to be so. In this case, he says that since this is not the allegation A of the plaintiff that the property was ancestral, it shall, have to be held and presumed as self-acquired property of Ghulam Husain. We see considerable force in this submission of the learned counsel for the appellant. It was held ,in Jhanju and another v. Ram Dial and others (3 1 C 668that there is no legal presump--petition that the land is ancestral and not self-acquired. In Muhammad Husain v. Sheru and another (272 P L R 1913it was held that where there was nothing to show whether the property in question was ancestral or self-acquired it must be assumed to be of the later character.
Proceeding on the above-noted principles and concepts and on the allegation as contained in paragraph 1 of the plaint that the real owner of the property in dispute was Ghulam Hussain, we will have to consider it as self-acquired property of Ghulam Hussain.
4. Mr. D. M. Awan, learned counsel for the appellant then contended that according to custom, daughters were preferential heirs to the self-acquired property of their father. On this basis, he submitted that the plaintiff-respondents would have no right to the suit land. For this purpose, he relied upon Mst. Subhani v. Nawab (AIR 1941 P C 210which was case of this very district and wherein it was held as follows:----- "For the reasons indicated in this judgment, their Lordships are of opinion that the true legal position was that, the property being non---ancestral, the initial onus lay on the plaintiffs to prove that the general custom in favour of the daughters' succession had been varied by a special custom enabling the plaintiffs to exclude the daughters and that the plaintiffs have not discharged this onus."
Respectfully following the above dictum of their Lordships of the Privy Council, it shall have to be presumed, that the general custom is in favour of the daughters and from that point of view, the burden would be on the plaintiff to prove any custom contrary to that apart from this principle - even otherwise issue No. I-A in this case reads as follows:------- "I-A. Whether the plaintiff is exclusive heir under custom applicable to the parties of Ghulam Hussain deceased in respect of the suit land?"
It is significant to mention that not an iota of evidence has been led by the plaintiff on this point. We have gone through the entire record of this case to find in vain, as to whether the plaintiff has discharged this onus or not. The plaintiff produced five witnesses besides himself and none of them said anything on this point. P. W. 1 is Maulvi Murtaza, P. W. 2 is Ahmad Khan, P. W. 3 is Fateh Khan, P.
W. 4 is Alam Khan, P. W. 5 is Mst. Zohra and P. W. 6 is Mehar Khan plaintiff himself. None of them has said anything about the custom applicable in this case. The plaintiff also produced five documents in the form of Exhs. P. 1 to P. 5, but none of them is relevant for this purpose. Exhibit P. 1, is a copy of Jamabandi for the year 1955-56, Exh. P. 2 is a copy of Mutation No. 4434, about the sale of land by Mst. Zohra in favour of her sister Mst. Bakht Bibi. Exhibit P. 3 is a copy of Mutation No. 4339 which was entered on the marriage of Mst. Zohra. Exhibit P. 4 is a copy of pedigree-table and Exh. P. 5 is a copy of the order of the Assistant Collector in a revision which crop up from Mutation No. 4434 aforesaid.
In the face of this total absence of any type of evidence, the plaintiff, it is obvious, cannot succeed.
His suit, therefore must fail for want of proof. The result is that this appeal must succeed and the suit of the plaintiff is liable to be dismissed. We order accordingly. There will be no order as to costs.