1. MUHAMMAD YAQUB ALI, J.-The facts giving rise to this appeal by special leave of the Court may first be stated thus.
2. On 19th December 1955, Ali Ahmad, an issueless Jat made a gift to has sister, Mst. Shah Begum, of 39 kanals and 5 marlas situated in village Korla, Tehsil and District Jhelum. A suit was thereupon, filed by his brothers Fazal Ahmad and Sher Muhammad challenging the validity of tire gift on the; ground that the land being ancestral qua them, the gift was under custom, which governed by family of the donor and the plaintiffs in matters of succession and alienation, void and ineffective against their reversionary rights. Nek Alam, the fourth brother of the donor did not challenge the validity of the gift and was impleaded as pro forma defendant in the suit.
3. The trial Judge decreed the suit but on appeal by the donor and the donee, the District Judge dismissed the suit can the finding that according to custom which prevailed among Jata of District Jhelum, a gift made to a sister by an issueless male owner was valid.
4. Aggrieved by the dismissal of the suit, the plaintiffs filed a second appeal in the High Court which too was dismissed by a Division Bench concurring in the view that the gift in favour of Shah Begum was valid under custom. Reliance was placed both by the District Judge and the High Court on the answer to question No. 107 of the Riwaj-e-Am of District Jhelum compiled by Mr. P. N. Thapar in the year 1946 and the instances cited in support of the answer.
5. Leave to appeal was obtained by the plaintiffs on the plea that the High Court and the District Judge had not correctly construed the answer to question No. 107 of the Riwaj-e-Am. It was contended that the learned Judges in the Courts below had failed to notice that no instance was cited of a gift in favour of a sister or her daughter being held valid and that there was no specific illustration regarding the Jat tribe of District Jhelum.
6. At our instance, the learned counsel for the plaintiffs placed on record a copy of the answer to question No. 107 in vernacular. A number of instances of gifts made to sisters and their children by members of Jat tribes ace enumerated in it. In view of these entries the learned counsel for the appellants conceded that the ground on which leave to appeal was obtained did not hold good.
7. However, as interpretation of an entry in the Riwaj-e-Am is involved and there are some seemingly conflicting instances, we consider it necessary to examine the reasons on which the High Court's decision is based notwithstanding the concession made by the learned counsel.
8. In support of their conclusions, the learned Judges of the High Court have relied on the instances mentioned in the answer to question No. 107 and the decided cases : Muhammad Khan v. Mst.
9. Kosran (I L R 2 Lah. 170), Khuda Bux v. Shamas (63 P R 1910), Nura v. Tora (56 P R 1900) and Fatta and another v. Bakhra and another (15 P R 1895). After noticing these cases, the learned Judges proceeded to observe : "The cases on which reliance is placed on behalf on the Respondents show that among the tribes of Jhelum District there is a power under custom to make alienation of their property. On behalf of the appellants reliance was placed on the answer to question No. 107 of the General Code of Tribal Custom to make the gift. I may, however, refer to the note which was appended to the said question. It was stated in note (3) : "As in base of wills many tribes do not admit the custom of making gifts of ancestral property. But from the numerous instances, judicial decisions and mutations, quoted below the custom appears to be well established that amongst almost all Mussalman tribes of the District, ancestral property can be gifted. The gifts are generally made by sonless proprietors in favour of daughters or their issue to the exclusion of even near collaterals such as first cousins and nephews. Gifts in favour of sisters and their issues are also sometimes made but they are not favoured to the same extent as daughters and their issue, see instances, 3, 4 and 7 under 'Decisions in which gifts were held invalid'. The instances also (show that as much as one-half or even whole of the ancestral property can be gifted to daughters and their issue. Gifts in favour of sons-in-law (particularly Khanadamads), wives and mothers are also made." The instance quoted at No. (3) was that Chiragh, a sonless proprietor, gifted half of his ancestral property to Ghulam Mohy-ud-Din, etc. His daughter's sons. Collaterals of the donor in the 5th degree brought a suit challenging the gift. The Chief Court held that power of gift in favour of daughter's son is very commonly exercised among the Mussalman tribes of the Jhelum District and rarely successfully contested." In instance No. (4), it was stated that "Haji, a sonless proprietor, gifted the whole of his ancestral land in favour of his two daughters, one of whom was married.
10. Collaterals of the donor, in the 4th degree, brought a suit challenging the donor's power to make a gift. The District Judge held that the gift was valid according to the custom of parties." Similar was the instance quoted at serial No. (7)."
11. The instances cited above mostly related to gifts made in favour of daughters and their issues which could be distinguished but the learned Judges refer--red to six more instances Nos. 15, 16, 17, 19, 20 and 21 cited in the answer to question No. 107 in which sonless proprietors had made gifts of ancestral land in favour of their sisters' daughters. The gifts were challenged by the collaterals of the donors but their contention was repelled and the gifts were held to be valid. Reference was also made to the case of Fazal and another v. Hayat Ali and others (29 P R 1907). This was a case of gift made in favour of sister's son. The son of the donor had no objection to the gift which was held to be valid.
12. The attention of the learned Judges was next drawn to two instances of wills of ancestral property by Jat proprietors of District 1belum in favour of sister's sons. In instance No.' 28, a Jat of Tehsil Chakwal bad willed away his entire ancestral property to his sister's sons. The collaterals of the donor objected to it but the gift was held valid. The judgment in this case is reported in Fazal Khan v. Anwar (110 I C 557). In assessing the weight of these two instances the learned Judges relied on Sarsa v. Sat Bharai (PLD 951 Lah. 47) in which it is held that the distinctions under the Punjab Customary Law between the power of the gift inter vivos and the power of testation is a matter of degree and form only and where the power of gift is shown to exist, the initial presumption arises that there is a co-extensive power of testation.
13. The judgment of the High Court is thus fully supported by the weight of instances and decided cases quoted in the reply to question No. 107 of the Riwaj-e-Am of District Jhelum and decided cases referred to above.
14. In support of their contention, the plaintiffs relied on: Fateh v. Allah Yar (I L R 6 Lah. 352), Balanda v.
15. Mst. Suban (AIR 1936 Lah. 418), Hayat v. Hidayat (34 P R 1905), Bakhshi and others v. Rahim Dad (107 P R 1893) and Chaughatta v. Ditta and others (93 P R 1895). Though the dictum in these cases supported their contention that a Jat of District Jhelum cannot gift away his ancestral land to the sister's son or husband of a daughter who was not Khanadamad, the learned Judges confined the decision in these cases to the evidence produced in them. We think, a broader view of these cases is that all of them were decided before the Riwaj-e-Am of 1946 was compiled. The instances quoted to the answer to question No. 107 clearly showed that in course of time a departure had been made and members of Jat tribe of District Jhelum had, like other indigenous tribe of the Western Punjab, exercised larger power of gift and testation in favour of female relatives. In the instant case even one of the brothers of the appellants did not challenge the validity of gift in favour of Mst. Shah begum which, by itself, strongly supports the donee---s claim.
16. In conclusion, we find ourselves in accord with the judgment delivered by the High Court and dismiss the appeal though in view of the near relationship of the parties, we do not burden the appellants with the costs, of their adversaries.