1. HAMOODUR RAHMAN, C. J.-This is a certificated appeal from the judgment and decree of the former High Court of West Pakistan, Lahore Seat, whereby the judgment of the lower Appellate Court was set aside being contrary to more than one Full Bench decision of the said High Court and a judgment of this Court in the case of Khair Din v. Muhammad Husain (PLD 1961 SC 468).
2. The said second appeal arose out of a suit for a declaration, filed by the respondents herein claiming to be reversionary heirs, that a gift made by one Majhi on the 15th April 1954, of his entire lands in favour of Mst. Khatun, his brother's daughter, by a registered deed, was void accord--ing to custom and ineffectual against the reversioners.
3. It was alleged that Majhi had inherited this land from his father Nikka sometime before the coming into force of the Shariat Act of 1948. Hence the land was ancestral qua Majhi who was governed by the agricultural custom of the Province both in matters of succession and alienation, and according to this custom, ancestral property could not be gifted away.
4. Mst. Khatun, the donee, alone contested this suit. She admitted that the land in dispute was ancestral and that before the enforcement of the Shariat Act the parties were governed by custom, but she denied the rest of the allegations. According to her, the donor Majhi had, even according to the custom governing the parties, unrestricted powers of alienation and could gift away even his ancestral lands in lieu of services. The gift made for services rendered to Majhi in his old age was, therefore, valid and binding upon the plaintiffs.
5. On these pleadings, the following issues were framed :-
(1) Is the property in suit ancestral qua the plaintiffs and Majhi?
(2) If so, was Majhi competent to alienate the land in dispute without any restriction?
(3) In case the above issues are found for the plaintiffs, is gift in dispute valid according to custom?
(4) What is the effect of the consent to the gift by defendant No. 3?
(5) Relief.
6. The first issue was decided on the admission of the parties in favour of the plaintiff and it was held that the suit lands were ancestral qua the plaintiffs and Majhi.
7. The onus of proving issue No. 2 was placed on the defendants, and it was said that since no evidence had been adduced to show that a person governed by agricultural custom of the province like Majhi had unrestricted powers of alienation over his ancestral properties, the issue has to be found in favour of the plaintiffs.
8. On issue No. 3, however, the evidence relating to the custom under which an ancestral property could be gifted away in lieu of services without any restriction, was discussed, the Riwaj-i-Am was also referred to, and it was held that according to the answer given to question No. 116 of the Riwaj- i---Am, a gift could only be made in lieu of service by a sonless proprietor of a portion of his immovable ancestral property by way of reward for the services rendered.
9. As against this, the plaintiffs' side produced a copy of the judgment, Exh. P. 1, to show that among the Galotar Jats of village Galotranwala of Tehsil Chiniot, a gift by a sonless proprietor of ancestral property to one of his collaterals, as in the present case, was invalid. The plaintiffs and their witnesses also orally asserted that, amongst them, there was no instance of a gift in lieu of service.
10. The trial Court preferred the evidence of the plaintiffs and came to the conclusion that the defendants had not been "able to prove that a sonless proprietor among them can make a gift of his entire ancestral property in favour of his niece."
11. The contention that the gift in question would be governed by Muhammadan Law was also repelled on the ground that admittedly since Majhi had succeeded to the lands in dispute under custom before the enforcement of the Shariat Act of 1948, his powers of alienation were to be governed by agricultural custom and not by Muhammadan Law. In the result, a decree was granted in favour of the plaintiffs declaring that the gift of Majhi in favour of Mst. Khatun dated the 15th of April 1954, was void according to custom and would not affect their reversionary rights on the death of Majhi.
12. On appeal, however, the learned Additional District Judge, Jhang, set aside the decree of the learned Senior Civil Judge and dismissed the suit mainly on the ground that by section 2 of Punjab Act XI of 1951 the position now was that :- "Notwithstanding any rule of custom or usage, in all questions regard--ing gifts the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."
13. The learned Additional District Judge took the view that, by this provision introduced by Punjab Act X1 of 1951, custom was no longer applicable and, therefore, the learned trial Judge had erred in law in applying custom as a rule of decision in this case.
14. Learned counsel appearing in support of this appeal has contended that the decision in Khair Din's case has no application whatsoever in the facts of this case, as there is no question here of any retrospective operation, because, the impugned gift was made in April 1954, long after Punjab Act XI of 1951 came into force.
15. Learned counsel himself appeared for the appellants in Khair Din's case also, and there too he had attempted to support the dissenting view of Kaikaus, J. (as he then was) in the Full Bench case of Bashir Ahmad v. Muhammad (PLD 1956 Lab. 934), but this Court at page 477 of the report held as follows :- "Prima facie it seems to us that unless the conclusion follows inevitably from the language of new enactment, there would be no reason why a person who inherited certain property under one system of law should not remain bound by the rules of that law. The Act of 1948 as amended in 1951 does not effect a cataclysmic change in the law. Clearly an interregnum is envisaged by the Act during which, those who succeeded to property under custom, would be allowed to con--tinue their old jural relations with that property which would devolve according to Muslim law, only on the death of the present male holder or on the termination of the limited estate of a female as the case may be . . . . . . . . . . . . . .
16. The difficulty envisaged, in view of the fact that by the amendment of 1951, gifts by Muslims would also be regulated by Muslim Law, can be set in the interim period by the consideration that the possessor of the property for the time being can gift no more than what he owns. If his own rights of property are limited in the sense that they are subject to certain restrictions, his alienee should not be in a better position. He could only retain the property during the lifetime of the donor."
17. The decision in the case of Khair Din, therefore, is a clear authority for the view that the Punjab Muslim Personal Law (Shariat) Application Act 1948 as amended in 1951 has not, either by express words or by necessary implication, "clothed the male holder under custom with all the powers of a Muslim Law owner and removed the disabilities that were incidental to the law which was the source of his rights."
18. The conclusion that was reached by this Court in the case of Khair Din was that the status quo ante continued to be retained in respect of properties in the hands of a customary holder and the nature of the estate held by him did not undergo a change, merely because henceforth matters like succession, gifts, etc. Were to be governed by Muslim Law.
19. Learned counsel next sought to argue that the customary law had been made applicable to Muslims in Punjab by section 5 of the Punjab Laws Act I V of 1872 ; but when the provisions of that section were repealed by section 4 of the Punjab Muslims Personal Law (Shariat) Application Act IX of 1948, it ceased to have any application in cases where the parties were Muslims. Since gifts were also included in this by the amendment of 1951, the abrogation of customary law becomes complete and, therefore, in respect of gifts made after the coming into force of the amendment of 1951, in March 1951, the customary restrictions on alienations inter viros disappeared, so far as Muslims were concerned.
20. This view also the learned counsel himself canvassed before this Court in Khair Din's case, but the Court repelled the same and pointed out that the Acts of 1948 and 1951 clearly envisaged an interregnum during which those who had succeeded to the property under custom would be allowed to continue their old jural relationship with that property and that the same would devolve according to Muslim Law, only on the death of the male holder succeeding to the property under custom or on the termination of the limited estate of a female, as the case may be. In the present case, therefore, Majhi, having inherited from his father Nikka sometime before the coming into force of the Shariat Act of 1948, took the property as ancestral property under agricultural custom and it continued to be governed by custom during his lifetime notwithstanding the coming into force of the Shariat Acts of 1948 and 1951. His power of alienation, therefore, even by gift; inter vivos, was restricted by custom.
21. The view taken by this Court in Khair Din's case has been consistently followed in the cases of Mst.
22. Rahmat BIN v. Ibrahim (PLD 1966 SC 349) and Ihsan Illahi v. Hukam Jan (PLD 1967 SC 200). It was reiterated in both these cases that despite the general application of succession under the Shariat, by the West Punjab Shariat Acts of 19.18 and 1951, these rules are still applicable for the resolu-- petition of questions to succession of an estate inherited under custom" ; that the Statutes had "neither enhanced nor diminished the powers of alienation possessed by a holder under custom" ; and that the restrictions imposable on the powers of alienation possessed by a holder under custom must still be found within the scope of custom under which he inherited the property. We see no reason to now depart from this view.
23. Learned counsel lastly argued that, in any event, since the trial Court had placed the burden on the defendants, it had disregarded the well-- established rule that the onus is upon the person alleging custom to prove the same. In the present case, it is the plaintiffs who alleged custom and it is they who should have been called upon to prove the custom and the precise restrictions imposed under that custom on a male holder. The findings of fact arrived at by this wrong process are, therefore, not binding on this Court and it should send back the case for a proper decision.
24. It is true that in the discussion in respect of issue No. 2 the trial Court purports to place the onus wrongly on the defendants ; but when we take into account the discussion under issue No. 3, we find that evidence as regards custom was in fact led by both sides and the trial Court, after fully considering the same, preferred the evidence led on behalf of the plaintiff's and came to the conclusion that no custom permitting the alienation of the entice property by a sonless male holder in lieu of services had been established.
25. It is now well-settled that where evidence has been led by both sides and considered, the question of onus loses its importance. Where the whole of the evidence is before the Court and it has no difficulty in arriving at a conclusion, it becomes unnecessary to enter upon a discussion of the question of onus vide Muhammad Aslam Khan v. Feroze Shah (AIR 1932 P C 228) and Nand Kishwar Bux v. Gopal Bux R.I (AIR 1940 P C 93).
26. This appeal is accordingly dismissed but we leave the parties to bear their own costs.