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Petitioner: FAZAL DAD KHAN VS Respondent: GASHTASAB KHAN
P
P. L. D. 1951 Lahore 400
Before A. R. Cornelius, Acting C. ,J. and M. R. Kayani, ,J.
FAZAL DAD KHAN and other‑Defendants‑Appellants
versus
GASHTASAB KHAN and another‑‑Plaintiffs‑Respondents
First Appeal No. 402 of 1945, decided on 25th June, 1951 from the decree of Sub‑Judge, 1st Class Lyallpur, dated the 12th day of May, 1945.
Custom (Punjab)‑‑Succession‑Chundawand or Pagwand ---Gakhars of Jhelum tahsil of Jhelum District‑Prevailing rule is pagwand:
The prevailing rule of custom among the Gakhars of Jhelum tahsil is pagward.
There, has been a growing tendency since the previous Riwaj -i‑am of 101 (Talbot) to abide by the rule of pagwand.
Dr. Tasadduque Hussain and Muhammad Siddiq, for Appellant. Iftikhar‑ul‑Haq Khan and S. H.Jafri, for Respondents.
JUDGMENT
M. R. KAYANI, J.‑This is a first appeal by the defendants against a decision according to the rule of chundawand.
The estate belonged to Muhammad Khan,, a Gakhar Bagial of village Bheth in Jhelum District, who had two wives, Mst. Fazal Begum and Mst. Said Nur Begum. The plaintiffs, who are two in number; are sons of Mst. Fazal Begum. The defen dants, who are seven in number, are sons of Mst. Said Nur Begum. Muhammad Khan had land both in Jhelum District and in Chak No. 89 of. Lyallpur District, the latter being of greater value. The mutation, of the Jhelum land was attested according to the rule of chundawand and of that in Lyallpur District according to the rule of pagwand. In respect of the mutation relating to Lyallpur, the plaintiffs preferred an appeal, which having been rejected, they brought a suit for a declaration that their family was governed by the rule of chundawand.
The trial Court, relying on the statement of custom in Talbot's Customary Law of Jhelum District, decreed the suit and the defendants appealed. A Bench of this Court remanded the case for the recording of further evidence by reason of the fact that although another Riwaj‑i‑am of Jhelum District had been com piled by Mr. Thapar in 1941, it had not been printed until the judgment of the trial Court had been delivered, and when it was printed in 1946, it was found to contain a statement that members of the Gakhar tribe unanimously desired that their custom in future should, be pagwand. The trial Court was, therefore, required to take evidence of the instances within fifteen years of the death of Muhammad Khan so as to ascertain whether the custom of chundawand had been abandoned or abrogated and had been replaced by pagwand.
The trial Court has submitted its report and is of opinion that the defendants have not succeeded in rebutting the entry in Talbot's Riwaj‑i‑am because the fresh instances which they have brought on the file did not relate to the village Bheth.
In Talbot's Riwaj‑i‑am the answer to question 40 lays down the rule in respect of succession by uterine descent. The answer is;---
"All tribes, except as noted below‑----
No regard is paid to uterine descent. The custom is pagwand, and all sons share equally." ' The exception is to the following effect:‑‑
"Gakhars of Badagran, Bakrala, Basawa, Bhangala, Bheth, Chukiam, Domeli, Kafri, Karunta, Iskandral, Khariot, Kutiam, Lahri, Mutial, Padhri, Pandori, Rasila Kalan, Rasila Khurd, Salihal, Sarula, Umral‑---
The rule is chundawand, the inheritance being distributed according to the number of the mothers."
There is a note, however, that the question how far the custom of chundawand really prevails in these villages could not be satis factorily cleared up by a summary inquiry and that the Record of Rights of the First Regular Settlement. asserted the rule of chunda wand only in the following village : Bhangala, Badagran, Bakrala Domoli Kalri, Karunta, Khariot, Mutial, Padhri, Salihal, Umral.
It will be noticed that the number of villages given in the first instance was twenty and in the note only eleven.
In Thaper's Riwaj‑i‑am the question relating to this rule is No. 28. The answer is:‑
"All tribes, except Gakhars'say‑‑
The custom is pagwand and all sons by different mothers share equally.
Gakhars‑--The general custom is pagwand though in some villages chundawand is also prevalent. The former, however, is predominant. They unanimously desire that in future the custom ought to be pagwand."
Then there is a note that both bagwand and chundawand prevail and that pagwand does not predominate, though the present trend is in that direction. Then follow fourteen instances of succession according to the chundawand rule and seven instances according to the pagwand rule.
The instances which the plaintiffs have given during the trial ate the following :‑
Serial No.
Exhibit No.
Village
Date
1.
P. 9
Salihal
17‑3‑1924
2.
P. 3
Domeli
1.3‑9‑1927
3.
P. 4
Pothi
13‑9‑1925
4.
P. 8
Salihal
21‑8‑1929
5
P. 10
Bheth
20‑2‑1942
6.
P. 5
Pothi
17‑10‑1943
7.
P. 11
Bhogi
1‑2‑1944
8.
P. 13
Ex. P. 11)
(Judgment of Collector, Jhelum, re:
9.
P. 20 ,
Bheth
22‑12‑1886
Of these Exs. P. 10, P. 1 l and P. 13 relate to the present dispute and should not, therefore, be considered. Ex. P.20 relates to the great grandfather of the parties, Khuda ‑ Bakhsh Khan, who died in 1886. Ex. P. 4 relates to the village Pothi, which is not one of the twenty villages to which the custom of chundawand is shown to be applicable according to' the Riwaj‑i‑am of Talbot. This leaves us with four instances, one relating to the plaintiff's own family. Then there are two judgments, Exs. P. 2 and P. 16, one relating to the village Chiniot, the other to Baragawah, both being villages which generally follow the rule of Pagwand.
After the remand the plaintiffs cited three more instances, Exs. P. W. 8/l, P. W. 9/i and P. W. 10/1. The first two are instances of maintenance for the life of the second widow who was without children. The third is an instance of succession in favour of reversioners on the death of the widow. 'These instances ate, therefore, irrelevant.
The result is that altogether there are four instances in favour of the plaintiffs, relating to the years 1886, 1924, 1925 and 1929.
The defendants in the first instance relied upon the following six cases of succession according to the Pagwand rule :‑
Serial No.
Exhibit No.
Village
Date
1.
D. 3
Baragran
24‑11‑1903
2.
D. 4
Pandori
27‑12‑1906
3.
D. 1
Landala
4‑12-1921
4.
D. 2
Baragran
4‑12‑1921
5
D. 6
Ram Dyal
24‑11‑1937
6.
D. 5
Pandori
14‑6‑1939
Of these Exs. D. 1 and D. 6 relate to the villages Landala and Ram Dyal, which do not belong to the twenty villages to which the chundawand rule applies. After the remand they produced the following twenty‑one more instances :‑
Serial No.
Exhibit No.
Village
Date
1.
D. 15
Lahri
27‑8‑1897
2.
D. 12
Lahri
2‑4‑1891
3.
D. 16
Bakrala
28‑6‑1913
4.
D. 10
Badlote
27‑12‑1918
5.
D. 27
Jorala
23‑11‑1921
6.
D. 21
Pandori
18‑12‑1922
7.
D. 17
8/11‑L
13‑6‑1926
8.
D. 22
Khumba
7‑7‑1926
9.
D. 18
Domeli
13‑12‑1926
10.
D. 20
Umral
23‑2‑1927
11.
D. 13
Lahri
30‑9‑1927
12.
D. 23
Rasila
23‑1‑1928
13.
D. 8 '
Baragran
4‑12‑1928
14.
D. 9
Chukiam
4‑12‑1928
15.
D. 14
Lahri
2‑5‑1929
16.
D. 11
Badlote
13‑4‑1934
17.
D. 7
Ram Dyal
27‑5‑1937
18.
D. 19
Umral
5‑5‑1939
19.
D. 16
Kawi
5‑2‑1942
20.
D. 24
Bakrala
30‑6‑1942
21.
D. 25
Batmast
11‑6‑1942
Of these Nos. 4 and 16 belong to Badlote, No. 5 to Jorala, No. .8 to Khumba, No. 17 to Ram Dyal, No. 19 to Kawi and No. 21 to Batmast, villages which do not belong to the group of twenty afore‑mentioned. This leaves us with fourteen instances which, taken with the four earlier instances, take up the number to eighteen.
It is unnecessary to rely on the oral evidence produced on both sides, for it generally refers to the instances, which have been cited above.
We have noticed that the general rule relating to Gakhars of Jhelum tehsil is pagwand and that in the Riwai‑i‑am of 1901 an exception of a limited character was observed in the case of a group of twenty villages. Now, since even in those twenty villages there have been eighteen cases of succession according to the Pagwand rule and only four according to the chundawand rule, it must be held with the statement in Thapar's Riwai‑i‑am that there has been a growing tendency since the previous Riwaj‑i‑am to abide by the rule of pagwand. It is remarkable that in 'the present family there has been no case of succession according to the chundawand rule since 1886. If this is due to the fact that there have been no cases of children from a plurality of wives, it might also mean that the fashion of marrying more wives than one is also going out, in, which case the rule of chundawand has died a natural death.
The learned trial judge relied on a previous statement of Muhammad Khan, father of the parties, in or about 1916 which he made in the course of another suit in favour of a party that profited by the rule of chundawand. This is not decisive, and it might be that he made the statement because he himself was in favour of the custom. In any case, the instances cited show that since 4886 there have been only four cases of succession according to the chundawand rule among Gakhars throughout the Jhelum tehsil.
Some of the instances cited by defendants were criticised as not laying down a rule of succession. These are Exs. D. 8, D. 18 and, D. 21. The objection against Ex. D. 8 was that it did not show that the sons were from two mothers. On this point, however, reference may be made to .the evidence of D. W. 7 at pages 3 and 4 of the new paper book and D. W. 2 at. page 14 of old paper book, statements .which show that there were two mothers.
In Ex. D. 18 which belongs to, Domeli, it .was stated in the mutation that although the custom of the village was chundawand, the father had left a will in favour of the rule of fiagwand. The very circumstance that the will was accepted without any but formal resistance would show that the rule of pagwand was regard ed as acceptable even in a cahundaw and stronghold.
In Ex. D. 21 there were two sons, from one mother and four sons from another, and the five youngest gave some extra land to the eldest as the chief's share. For the rest the shares were equal. The fact that the eldest son was recognized as sardar does not alter the rule of succession.
I hold that the prevailing rule of custom among the Gakhars of Jhelum tehsil is Pagwand, and as the plaintiffs have not cited though instances to rebut that rule the appeal must he accepted and the suit dismissed with costs throughout.
A. R. CORNELIUS, A. C. J.‑I. agree.
A. H Appeal accepted.