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Petitioner: MST. BHAG BHARI VS Respondent: FATEH KHAN
P L D 1960 (W
P L D 1960 (W. P.) Lahore 1216
Before‑A. R. Changez, J
Mst. BHAG BHARI and another‑Plaintiff‑Appellants
versus
FATEH KHAN AND OTHERS‑Defendants‑Respondents
Regular Second Appeal No. 272 of 1949, decided on 31st October 1960.
(a) Custom (Punjab)‑Khanadamadi‑Gift enures for benefit of daughter and her male and female descendants.
A khanadamadi gift enures for the benefit of the daughters and for her male and female descendants. It is a recognised custom which is designed to benefit the daughter and her issues.
(b) Custom (Punjab)‑Khanadamadi‑Gift made originally to daughter‑Extinction of daughter's line‑Property may be inherited by khanadamad for life‑[Raja v. Mst. Jannat Bibi and others 40 P R 1912 ref.]
(c) Custom (Punjab)‑Khanadamadi‑Gift to daughter -Extinction of daughter's line‑ Property reverts to donor's heirs and in absence of such heirs then to heirs by virtue of principle of representation‑[Met. Zainab Bibi v. Nur Begum P L D 1956 S C (Pak.) 438 ; Ghulam Muhammad v. Muhammad Bakhsh 4 P R 1891 ; Sita Ram v. Raja Ram 12 P R 1892 and Ali v. Shahu P L D 1956 F C 92 rel.]
(d) Custom (Punjab)‑Succession‑Principle of represen tation‑Applies also to females.
The principle of representation envisages the succession of a person to the share, which his immediate ancestor, if alive, would have succeeded to this principle applies to females also, and that sex is not a bar to representation. The burden lies on the party denying such a right to prove that this principle is not applicable.
(e) Advocate‑Client‑Advocate taking different line in presenting case, from that taken by client in plaint as foundation of her case‑Client not bound by Advocate's action.
Mian Muhammad Shaft for Appellants.
Hakim Muhammad Sardar Khan for Karam Elahi Chauhan on 6th and 18th October 1960, Karam Elahi Chauhan on 11th and 12th October 1960 for Respondents.
Dates of hearing : 6th, 11th, 12th and 18th October 1960.
JUDGMENT
This second appeal arises out of a suit brought by Mst. Bhag Bhari and Mst. Raj Bhari, daughters of Muhammad, against Nur Dad and others for possession of 46 kanals and 10 marlas of land situate in village Bahanian, Tahsil and District Gujrat, the details of which are given in the plaint, The suit was dismissed by the trial Court and on appeal the decision was armed by the Senior Civil Judge, Gujrat. The plaintiff then came up in second appeal before this Court. It came up for hearing in the first instance on the 4th of May 1953 before Mr. Justice S. A. Rahman, (as he then was), and was dismissed on the ground that the appeal had abated in its entirety because the legal representatives of Muhammad Hayat respondent had not been brought on record within the time allowed by law. Against this judgment, the appellants filed an appeal under clause 10 of the Letters Patent which was allowed on the 2nd of February 1960, and it was held that as the share of Muhammad Hayat respondent was ascertain able, the appeal had abated only with respect to his share. The case was accordingly remanded for a decision of the appeal on merits in Single Bench. This appeal has now been heard by me.
2. The facts giving rise to this appeal are these. The parties are Gujjars of the Gujrat District. One Allah Ditta, grandson of Allah Yar. was the owner of the property in dispute. He had made a gift of the whole of his property in favour of his two daughters, Mst. Fazlan and Mst. Ladhi. The plaintiffs are the daughters of Muhammad son of Mst. Fazlan. The defendants are the collaterals of Allah Di tta, being the descendants of four brothers of Allah Ditta's father. Mst. Ladhi had two sons, Fazal Ahmad and Sultan Ahmad. After the death of Mst. Ladhi, her sons succeeded to the land gifted to their mother. They died childless and then the land was mutated in the name of Karam Din, their father, and husband of Mst. Ladhi. The defendants filed a suit against Karam Din on the 27th of January 1922 for possession of the land mutated in his name on the ground that the land was ancestral and that it reverted to the collaterals of the donor on the death of the donee and her sons. This suit was decreed by the trial Court, but on appeal was dismissed by the District Judge on the 3rd of July 1923 and Karam Din continued in possession of the land. He died on the 26th of November 1944 and the land was mutated in favour of the appellants on the 29th of September 1945, vide copy of mutation Exh. P. 1. In the meantime, the defendants took possession of the land. The plaintiffs then instituted this suit on the 2nd of November 1946. It was alleged in the plaint that the land in suit was the self‑acquired property of Allah Ditta who had gifted the property to his two daughters, Mst. Ladhi and Mst. Fazlan and his brother‑in‑law. It was further alleged that the daughters were living with their father on account of khanadamadi. Then the history of the land in suit was given and it was claimed that they were the preferential heirs to inherit the property left by Mst. Ladhi as the line of the donee, Mst. Ladhi, had become extinct. The defendants contested the suit and pleaded that the land was ancestral qua them and that Mst. Ladhi and Mst. Fazlan were not the khanadamad of their father and that they were the only rightful owners of the land in suit. On the pleadings of the parties the following issues were framed by the trial Court :‑---
(1) Is the land ancestral qua the defendants and Mst. Fazlan ?
(2) Whether Mst. Ladhi and Mst. Fazlan were the khanada mads of their father ?
(3) Whether the plaintiffs are the rightful owners of the land in suit as compared with the defendants ?
(4) Whether the decision in previous suit between defendants and Karam Din operates as res judicata between the parties ?
(5) Are the defendants reversioners of Allah Ditta ?
(6) Relief.
Issue No. 1 was decided against the defendants and issue No. 2 was decided in favour of the plaintiffs, Issues Nos. 3 and 4 were decided against the plaintiffs and issue No. 5 was decided in favour of the defendants. In view of the findings on the issues, the suit was dismissed with costs. On appeal by the plaintiffs, the Senior Civil Judge, Gujrat, affirmed the findings of the Court below and dismissed the appeal. The plaintiffs then filed this appeal before this Court.
3. Mian Muhammad Shafi, learned counsel for the appellants, argued that the decision of the Courts below on issues Nos. 3 and 4 was erroneous and that the plaintiffs are the rightful owners of the land in suit. Mr. Karam Elahi Chauhan, learned counsel for the defendants, supported these findings of the Courts below and further challenged the findings which had been given against his clients. Under the circumstances, it seems desirable to consider all the issues seriatim.
4. Issue No. 1‑On thi3 issue the learned counsel for the respondents argued that the land was ancestral qua the defendants. He, however, could not draw my attention to any evidence on the record to show that Allah Yar, the common ancestor of Allah Ditta, and the defendants had ever held the land in suit. Abdul Ghani, Moharrir Patwari (D. W. 1) produced 'the fard intikhab (Exh. D. W. 1/1), which had been correctly prepared from the revenue records. This document, however, does not help the defendants at all inasmuch as the land in suit is shown to be owned by Allah Ditta and does not go further. I have, there fore, no hesitation in holding that issue No. 1 had been rightly decided by the Courts below against the defendants and, in the circumstances of the case, the property in suit would be deemed to be the self‑acquired property of Allah Ditta.
5. Issue No. 2.‑On this issue the learned counsel for the respondents contended that there was no proof on the record to show that the land had been gifted to Mst. Fazlan and Mst. Ladhi on account of khanadamadi. He further argued that the relevant mutation had not been produced by the plaintiffs before the Court. He also invited my attention to the fard intikhab (Exh. D. W. 1/1), in which the following entry finds place :‑--
"Jamabandi for the year 1918-19. Mutation by virtue of gift under an oral agreement dated the 6th November 1889 made by Allah Ditta son of Fateh Din in favour of Mst. Ladhi, wife of Karam Din (residents of village) and Mst. Fazlan, wife of Ilman, caste Gujjar Gorsi, and Muhammad Hayat, son of Dadu, caste Gujjar, resident of village, in five shares, viz., Muhammad Hayat : two shares, Mst. Ladhi and Mst. Fazlan three shares, in equal shares, was sanctioned under order on the 4th December 1888 (1889 ?) as per mutation entry No. 22."
He argued that there is no mention of khanadamadi gift in this entry. He accordingly maintained that the nature of the gift, its terms and incidents have not been proved. On the other hand, the learned counsel for the appellants drew my attention to the statements of Ali Muhammad (P. W. 1), Jahan Khan (P. W. 2) and Bagga (D. W. 2), who is one of the respondents. Ali Muhammad P. W. has stated that Allah Ditta had gifted the land in dispute to Mst. Ladhi and Mst. Fazlan, his daughters, and that both these daughters were his khanadamads. Jahan Khan P. W. has also stated to the same effect. Bagga D. W. admitted in his cross examination that Allah Ditta had made gift of the land in dispute in favour of Asst. Fazlan and Mst. Ladhi and that Mst. Fazlan and Mst. Ladhi were the khanadamad daughters of Allah Ditta. The entry in the fard intikhab, referred to above, corroborates the statements of the P. Ws. to this extent that when Allah Ditta had gifted the land to his daughters, they had already been married. There is no evidence to the contrary. I accordingly hold that issue No. 2 was rightly decided by the Courts below, that Mst. Ladhi and Mst. Fazlan were the khanadamads of their father Allah Ditta.
6. Issue No. 3.‑This is the main issue which was hotly contested by the learned counsel for the parties before me. The trial Court had assumed that Karam Din, husband of Mst. Ladhi, was the absolute owner of the land. The Senior Civil Judge had also come to the same conclusion. It is now well settled that the khanadamadi gift enures for the benefit of the daughters and for her male and female descendants. It is a recognised custom which is designed to benefit the daughter and her issues. In the Customary Law of the Gujrat District compiled by Williamson in 1922, Question No. 65 reads as follows :‑
"Does the custom of khanadamadi prevail in the tribe ?"
The answer to this question is given as follows :‑
The custom of khanadamadi prevails in every principal tribe of the district."
Question No. 72 reads as under :‑
"On extinction of the khanadamad's line, male or female, does the property revert to the relatives of the original owner (the appointer of the khanadamad) or to the collaterals of the khanadamad ?
The answer to this question is that the property reverts to the donor's family.
7. On the death of Mst. Ladhi and her sons, Karam Din, husband of Mst. Ladhi, had succeeded to the land incidentally for his life. He had not become absolute owner of the property. It was held in Raja v. Mst. Jannat Bibi and others (40 P R 1912), which is also a case relating to Gujars of Gujrat District, that the resident son‑in‑law succeeds only for his life. The question, therefore, is whether on the death of Karam Din the property had reverted to the donor's family. The entry in the riwaj‑i‑am, referred to above, is in favour of this proposition. In Mst. Zainab Bibi v. Nur Begum (P L D 1956 S C (Pak.) 438), it was argued on behalf of the appellants in that case that the property being self‑acquired, the doctrine of reversion was inapplicable because in the case of a gift of self‑acquired property the giving is absolute and is not subject to the incident of reversion if the donee had left no issue or having left such an issue, his line had become extinct. While dealing with this argument, their Lordships observed as follows :‑---
"This proposition is correct and is in accordance with the general custom which `governs gifts by sonless proprietors. But in the present case what is of importance is that the trans action was not an ordinary gift but a khanadamadi gift. In the case of such gifts it is well settled that they are intended for the benefit of the daughter's issue and that if the daughter dies issueless or the line of her issue becomes extinct the property reverts to the heirs of the original donor, irrespective of whether the property is ancestral or self‑acquired."
Applying this principle to the facts of the present case, I hold that on the death of Karam Din the property had reverted to Allah Ditta donor.
8. Now, it is necessary to discover the heirs of Allah Ditta, who shall be deemed to have died on the day when Karam Din had died. In Ghulam Muhammad v. Muhammad Bakhsh (4 P R 1891), a Full Bench of the Punjab Chief Court, while dealing with the question of succession had laid down the following rule :‑---
"The ordinary rule as has been seen is to find the nearest ancestor of the deceased who has left male lineal descendants, and the portion of the deceased will then devolve upon these descendants of the ‑common ancestor as if he had just died leaving the estate of the deceased."
This rule was approved by another Full Bench of the same Court in Sita Ram v. Raja Ram (12 P R 1892). In the light of the rule laid down in these rulings, Allah Ditta, the donor, shall be deemed to have died on the'26th of November 1944, when Karam Din, the holder of the life estate had died. It is apparent from the copy of the mutation Exh. P. 3, that Mst. Fazlan, daughter of Allah Ditta and her son Muhammad had died before the 26th November 1944. If Mst. Fazlan and her son had been alive, then they would have excluded the collaterals however near, the property being self- acquired property of Allah Ditta. In answer to Question No. 60 of the Customary Law of the Gujrat District which deals with the succession of daughters, the answer is given as below :‑
"As regards ancestral immovable property daughters inherit in the absence of male lineal descendants through males, the widow, and the collaterals of the 5th degree.
"As regards acquired property they exclude collaterals how ever near.
"They inherit like sons if they are khanadamad."
In answer to Question No. 64, the answer of all tribes is given as follows :‑
"After daughters their sons usually succeed, and the sons of several daughters inherit the property of their mothers respectively "
From these answers it can be safely concluded that Mst. Fazlan and her son Muhammad would have certainly inherited the property in dispute in preference to the collaterals of Allah Ditta. The plaintiffs, however, are the grand‑daughters of Mst. Fazlan, being the daughters of her son Muhammad. The question is whether they are entitled to inherit the property in preference to the collaterals of Allah Ditta ? The learned counsel for the respondents vehemently argued that there was no entry in the riwaj‑i‑am of Gujrat District in support of the proposition that the grand‑daughters of Mst. Fazlan were entitled to inherit the property. The learned counsel for the appellants, however, con tended that as their father and grand‑mother were entitled to inherit the property, therefore, applying the principle of represen tation they were entitled to inherit this property. In support of his contention the learned counsel relied on Ali v. Shahu (P L D 1956 F C 92), where it was held as follows :‑---
"In a large number of cases the right of representation, which is one of the cardinal principles of customary law, was allowed to females wherever they were found to be the next heir, and while same difference of opinion might exist as to the scope of the extension of that right in cases of collateral succession, there appears to be none in the case of lineal succession. It was again for the plaintiffs to prove that there was a special custom, according to which, the sister's son was excluded from inheri tance where his mother was entitled to it. On this too, there is no evidence."
The principle of representation envisages the succession of a person to the share, which his immediate ancestor, if alive, would have succeeded to. It is now well recognised that this principle applies to females also, and that sex is not a bar to representation. The burden lies on the party denying such a right to prove that this principle is not applicable. In view of the rule laid down by their 'Lordships of the Federal Court of Pakistan in the above ruling, I see no reason why the plaintiffs in the present case should be deprived of the right of representation. The defendants did not lead any evidence to prove that there was a special custom according to which the plaintiff's were excluded from inheritance, even though their father and grand‑mother were entitled to it.
9. The learned counsel for the respondents, however, maintained that the plaintiffs had based their claim on account of survivorship as the heirs of a co‑donee, and could not be allowed to shift their ground. From the judgment of the Courts below it appears that this was the line which had been taken up by the learned counsel appearing on behalf of the appellants. Even in the memorandum of appeal submitted in this Court this was the line adapted by the learned counsel who filed the memorandum of appeal, but a careful perusal of the plaint shows that the plaintiffs had not founded their claim on this basis. They had merely claimed that they were the preferential heirs, and the only issue framed by the trial Court was whether they were preferential heirs as compared with the defendants. If they are legally entitled to inherit this property and are preferential heirs, their claim cannot be rejected merely on the ground that their counsel in the Courts below had taken a different line which was in fact not the foundation of their case as set out in the plaint. After giving the matter my anxious consideration, I have arrived at the conclusion that the plaintiffs are preferential heirs and are the rightful owners of the land in suit as compared with the defendants. I accordingly decide this issue in favour of the plaintiffs.
10. Issue No. 4.‑In the view which I have taken in respect of issue No. 3, it is not necessary to decide this issue. In the previous litigation between the defendants and Karam Din, it was held vide copy of judgment (Exh. P. 8), that the land was non -ancestral, that Karam Din held the land as a life estate and that Mst. Fazlan and his son had a preferential right to the land. I have also arrived at the same conclusion independently of this judgment, and it is, therefore, not necessary to deal with this question.
11. Issue No. 5.‑--So far as this issue is concerned, the defendants have produced the copies of the pedigree‑tables Exhs. D. 1 and D. 2, which show that the defendants are the reversioners of Allah Ditta. I, therefore, agree with the findings of the Courts below on this issue.
12. The result is that the plaintiffs are entitled to a decree for possession of the land in suit, but as Muhammad Hayat, one of the respondents, had died during the pendency of this appeal and the appeal had abated with respect to his share, that share shall have to be excluded. As pointed out earlier, Allah Ditta had four other brothers, and the defendants‑respondents are their descendants. They are in joint possession of the land. From the pedigree‑table Exh. P. 3, it is quite clear that Muhammad Hayat was the grandson of Nura, one of the four brothers of Fateh Din, father of Allah Ditta, donor, Nura therefore would have been entitled to one‑fourth share in the land. Nura left two sons, Lalu and Phaila, who would have been entitled to 1/8th share each. Lalu left two sons, Bhalu and Muhammad Hayat. Muhammad Hayat, therefore, would have been entitled to 1/16th share in the land which comes to about 2 killas and 18 marlas. The plaintiffs have sued for possession of 46 kanals and 10 marlas 9f land. After excluding the share of Muhammad Hayat, they are entitled to the possession of 43 kanals and 12 marlas of land out of the land in suit.
13. For the reasons stated above, I accept this appeal and setting aside the judgments and decrees of the Courts below, decree the plaintiffs' suit to the extent of 43 kanals 12 marlas of land out of the land in suit with costs throughout.
A. H. Order accordingly.