M.B.K. JEHANGIRI, J- Najaf Ali and two others, successors-in-interest of Amirullah plaintiff, since dead, have called in question the judgment and decree dated 9th July, 1988, passed by the leamed Additional District Judge, Dera Ismail Khan, in affirmance of the judgment and decree dated 10th November, 1985, for the learned Senior Civil Judge, D.I.Khan, for possession by inheritance of certain land described in the heading of the plaint.
2. The facts leading to this case are that one Pir Bakhsh died I useless in village Bad-Shahpur, Tehsil Balabgulh, District Gurgaon, India, leaving him surviving Mst. Khairun, and a brother Amirullah since dead and represented by Najaf Ali and .Two others, petitioners herein. Mst. Khairun, in the wake of the partition of the Sub-Continent,-migrated to Pakistan and filed a claim which was verified in her name as "Mst. Khairun widow:of Pir Bakhsh", on the basis of the entries in the special Jumabandi received from India. She was allotted 100 kanals and 8 marlas of land in village Paharpur, in Dera Ismail Khan District, in lieu of her verified claim. By means of Mutation No.7309 dated 20th January, 1963, Mst. Khairan gifted away her entire holding aforesaid in favour of her nephew, Surat Ali, in lieu of services rendered by him. Amirullah, plaintiff, claiming to be the only brother of Pir Bakhsh, instituted suit on 5th April, 1968, wherein besides attacking the alienation made by Msl. Khairan in favour of Surat Ali defendant being fictitious, forged and collusive claimed a decree for possession of 75 kanals and 6 marlas representing his 3/4 shares under the Muslim Personal Law on the ground that the land left by Pir Bakhsh in India devolved upon Msl. Khairan as a limited owner under the Customary Law.
3. The defendant holly contested the suit by filing written statement. He categorically denied that Mst. Kairan had succeeded to the estate of Pir Bakhsh as a limited owner under the custom and averred that she being the full owner of the estate left bv her in India was, as such, allotted the disputed land in lieu of her verified claim. A number of legal objections were also raised. On the pleadings of the parties, as many as 12 issues inclusive of the relief were concluded by the trial Judge. For the purposes of this revision, however, the following issues are relevant:-
1. Whether Mst. Khairun was the limited owner of the land left by her in village Badshah Pur Tehsil Belgarh, District CJoraun and here in Pakistan also she was limited owner of the suit land because it was allotted to her in lieu of land left by her in India?
2. In case issue No. 1 is proved in affirmative, whether Mst. Khairan could not gift the suit land to defendant No. 1 and mutation No.7309 dated 6-6-1962 is fictitious, collusive, illegal, void and is nothing on the plaintiff's right?
3. Whether the plaintiff is entitled to inherit 3/4th in the suit land being the Shari heir of Pir Bakhsh the original owner and as such entitled to the decree prayed for ?
4. Holding that no evidence has been led by the plaintiff to prove that in village Badshah Pur there was any custom conferring limited interest on the widows of Muslims dying issueless and further that she had succeeded to the estate of her husband as a limited owner, and that in consequence she was full owner of her estate in India and had been alloted the suit land in lieu thereof, the learned trial Judge found issue No. 1 against the plaintiff. On issue No.2, he held that since she was full-fledged owner of the suit land, she was quite competent to alienate it to the defendant by way of gift. Similarly, the plaintiff was not held entitled to any share in the land and also decided issue No.3 against him. As a cumulative effect of these findings and .Other issues on legal place, the suit was dismissed.
5. The plaintiff felt aggrieved of the said judgment and decree by filing an appeal but without any success as the same was dismissed by the learned Additional District Judge, Dera Ismail Khan, on 9th July, 1988. The learned Appellate Court affirmed the findings of the learned trial Judge on all the three crucial issues, particularly issue No. 1 albict on different grounds. Relying on the statement of Local Commissioner who went to record the evidence of Mukhtar Ahmad Qanungo, Central Record Office Lahore, and the pedegrectable, the learned appellate Court came to the conclusion that the property in India which Mst. Khairan inherited originally belonged to Pir Bakhsh and on his death it devolved on her as inheritance; that in India, parties were governed by Muhammadan Law in the matters of inheritance; that she was inherited the property from her husband in lieu whereof the disputed land was allotted to her and finally that "documentary evidence was morcthan sufficient to hold that the suit property was never allotted to her as a limited owner, but it was allotted to her as a full owner." On the question as to whether inheritance of Pir Bakhsh was rightly mutated in the name of Mst. Khairan according to her Shari share, the learned appellate Court readily answered it in the negative, nonetheless, it held that the plaintiffs appellants had neither specifically raised the plea, nor since 1950 they had come forward with any such grievance, therefore, they were estopped to agitate it in 1968. Her conduct in dealing the property during all the years was also noticed by the appellate Court to be one of full owner and thus dismissed the appeal.
6. The unsuccessful plaintiffs-petitioners have come up in revision to this Court.
7. Mr. Matiullah Khan Baluch, the learned counsel appearing in support of the petition in revision contended that the Courts below were wrong in taking the view that Mst. Khairan was not a limited owner in that such a presumption should not have been drawn as she had been clearly described as a "widow of Pir Bakhsh". In support of this contention, reliance is placed on the observations of the august Supreme Court in the case of Additional Settlement Commissioner (Land) Sargodha V.
Muhammad Shall (PLD 1971 Supreme Court 791). Relying on the evidence of Mukhtar Ahmad Qanungo, Central Record Office, Lahore, recorded by the Local Commissioner, it is next contended that devolution of half of the property in Badshahpur in India on Mst. Khairan as widow of Pir Bakhsh and the remaining half on Amirullah was determinative of the nature of the rights therein to be limited under the custom which inference had also been rightly drawn by the learned Additional District Judge, therefore, the findings of the two Courts below being based on mis-reading of evidence are not sustainable. In this context, reference was made to: (1) Sharfo V. Ghulam Abbas (PLD 1970 Lahore 730), (2) Aslam V. Mst. Kamal/ai (PLD 1974 Supreme Court 207); (3) Mst. Sardaro V.
Mst. Nazran (PLD 1985 Supreme Court 274) and; (4) Iqbal V. Mushtaq Ahmad (1985 CLC 89).
8. As against this, Sardar Allah Nawaz Khan, learned counsel appearing on behalf of the defendants-respondents, on the authority of Wali Muhammad V. Muhammad Bakhsh (AIR 1924 Lahore 444), has contended that although a presumption of correctness attached to the pedigree- table, but it does not extend to an entry made therein with respect to an extraneous matter entirely unconnected with the question of relationship, as for instance, devolution of lands in a village and that if such entries appear, prima facie, to be erroneous, the Court would be justified in not accepting them. According to the learned counsel for the respondents, as a general rule the onus was on the plaintiff to prove that the parties to the dispute were governed hv Customary Law and that the land in village Badshah Pur left by Mst. Khairun devolved upon her as a limited owner and; lastly, that the land allotted to the plaintiff in lieu thereof remained in its nature as her limited ownership, which has not at all been discharged by the plaintiff and. Therefore, the Courts below have rightly found the same against the plaintiff. In support of the proposition that custom must be pleaded in specific terms and proved as such, the cases of Fatima Bibi V. Allah Ditta (NLR 1983 SC .1 276) and Mst. Sardaro V. Mst. Nazran Begum (1985 P SC (Civil Cases) 983) were cited, lt was lastly contended on the authority of Mst. Faroshia V. Mst. Zarina (PLD 1984 Peshawar 134) that when in the revenue record neither the respondent is recorded as a limited owner nor a copy of inheritance mutation was placed on record by petitioner to indicate nature of transfer, the respondent can be presumed to have become full owner of land in the light of entries made in Jumabandi.
9. The rule laid down in the case of Msl. Sharfo. Relied upon by the learned counsel for the petitioners, was that when the life estate of a widow' terminates by death, then her notional share is to go to her heirs and cannot be utilized for the purpose of invoking the principle of "feeding the grant by estoppel." Again in Aslam V. Mst. Kamal/ai. The intention of section 4 of the N.W.F.P. Muslim Personal Law (Shariat) Application Act VI of 1935) was held to provide for distribution erf such properties only which were notionally still the properties of the last male owner and could have otherwise gone to his reversioners on the termination of the life estate. In the precedent case of Mst. Sardaro. a widow', who succeeds partly or wholly to the estate of her deceased husband under custom was ruled to succeed as a representative of her husband and on her death succession is to be traced to him. In Iqbal's case, lastly cited on behalf of the petitioner, it was held as under:- "that the property allotted to a female in lieu of the limited estate abandoned by her in India would, on her death, devolve on the heirs of the last male ow per of the property left in India and not on her own heirs".
10. The ratio in these precedents, it would be noticed, is based on the initial assumption that there was admittedly life estate of a widow on termination whereof, by operation of law or otherwise, the consequences thereof were enumerated, ln the instant case, the two pivotal points calling for determination are; (i) Whether issueless widow in Badshahpur succeeded under custom to the estates of her husband as a limited owner? (ii) Whether Msl. Khairan had inherited the estate of her husband. Pir Bakhsh, as her life estate? These two crucial points were rightly answered in the negative by the learned trial Judge by noticing lack of evidence thereon , because it is well recognised law that custom must be pleaded in specific terms and proved as such. In the instant case, the custom aforesaid was no doubt pleaded but the petitioners were rightly held to have not been able to substantiate, by any credible evidence, the said assertion. The petitioners plea, that since Msl. Khairan having been described as" widow of Pir Bakhsh" and the learned appellate Court's observation that looking to the shares in the estate in Badshahpur inherited by Mst. Khairan and Amirullah, the predecessors-in-interest of the parlies herein, can be traced back to the Pir Bakhsh, has been made by logical process which has not been approved in Msl. Sardaro's case cited at the bar. Custom has to be specifically proved inductively by the person who pleads it. The evidence of Mukhtar Ahmad, Qanungo of Central Record Office, Lahore, cannot be deductively construed as a proof of the property being life estate. There is thus no material to show that an issueless widow. In the Indian District of Gurgaon succeeded to the estate of her husband as a limited owner, or that she could not inherit it in its entirety even if it is assumed to be the estate of Pir Bakhsh. The deductive process of appreciation of evidence by the learned approved Court on the point in issue is, therefore, not approved. The inductive method of approach to the proposition on the part of the learned trial Judge is, therefore, unexceptional. Nonetheless, the ultimate findings of both the Courts below being the same and concurrent are affirmed.
11. The last submission of the learned counsel for the petitioners that the respondent has miserably failed to establish that Mst. Khairan was full-fledged owner of the property is equally fallacious. It is settled law that petitioners could only succeed on the strength of their own case both oral and documentary and could not avail of the weakness of the respondents case amnif there was any.
Mst. Khairan was thus rightly held to be the full-fledged owner of the suit land by the two Courts below by repudiating the plea of the petitioners that she was holding the disputed properly as a limited owner.
12. For all these reasons, this petition in revision having no merits is hereby dismissed. The parlies arc, however, left to bear their own costs.