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Petitioner: NIAZ AHMAD AND OTHERS VS Respondent: MST. RASHIDA KHANAM AND OTHERS
P L D 1959 (W
P L D 1959 (W. P.) Lahore 551
Before Shabir Ahmad and B. Z. Kaikaus, JJ
NIAZ AHMAD and others‑Plaintiffs‑--Appellants
versus
Mst. RASHIDA KHANAM and others Defendants‑--Respondents
First Appeal No. 13 of 1949, decided on 5th May 1959.
(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 41 (2)‑Interest of evacuee involved in civil suit‑Decree to be passed .fn suit should be in accordance with decision of Custodian.
(b) Custom (Punjab)‑Abrogation in favour of personal Law, when to be supposed‑Kambohs of Garhi Shahu (Lahore)‑Family drifting from agriculture.
H was a Kamboh of Garhi Shahu. Kambohs were the founders of the village, and originally formed a compact village community, they furnished Lambardars, their original occupa tion was agriculture and they were consulted at the preparation of the Riwaj‑i‑am.
It was, however contended that the family of H had drifted from custom in view of following circumstances :‑
(i) H was an M. A. of Aligarh University, had taken to service, being a hotel manager for some time then a private tutor and after that the Superintendent of an orphanage.
(ii) One R whose property was the subject‑matter of a number of judgments re ; question of abrogation of custom was a son or a step‑son of a sister of H's father.
(iii) The brother of H was a broker by profession, while the reversioner contesting alienation was himself a clerk.
(iv) The whole of the land that the family possessed had been alienated.
Held, that it was not established that the family of the alienor H had altogether drifted away from agriculture and was no longer bound by custom. The sale by the alienor could, therefore, have been made only for consideration and necessity.
The carrying on of other occupations, which may be only a means of adding to the income from agriculture, does not by itself show that the family had completely adopted urban pursuits and given up agriculture. The ancestral holding was in this case small, and naturally the alienor and his brother had to look for other sources of income. The fact that whatever land remained with alienor was mortgaged, also, cannot have the effect of abrogating custom. In a case where some members of the village community, and particularly where the majority of them, retain their occupation as well as their custom, it becomes all the more difficult to hold that their own relatives descended from the same common ancestor and having social connections with them have abrogated custom, unless there be exceptional circumstances.
The power of alienation of a person is to be judged by the law in force at the time when he inherited the estate.
If, under the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, the Muslim Personal Law cannot have retrospective effect so as to make the male holder of the ancestral land an owner with full powers of disposition, it cannot be said that the mere adoption of urban pursuits will cure the defect that exists in his ownership.
Bashir Ahmed and five others v. Muhammad and eight others P L D 1956 Lah. 934 rel.
Muhammad Yusuf v. Muhammad Abdullah and others A I R 1944 Lah. 117 ; Sardar Balwant Singh v. Mst. Sardarni Kesar Kaur and others A I R 1934 Lah. 81 ; Muzaffar Muhammad v. Imam Din and another I L R 9 Lah. 120 and Ala Muhammad v. Muhammad Shafi and others A t R 1944 Lah. 121 ref.
(c) Custom (Punjab)‑Alienation‑Assent by nearest rever sioner, of loose moral character‑Not to be given much weight--- Assent only a piece of evidence not a bar to usual declaratory suit.
A brother of the alienor had signed the agreement of sale executed by the alienor in favour of the vendee, and he had acted as a broker in the transaction of sale realising Rs. 236 as brokerage.
Held, that the conduct of such a person did not altogether prevent a suit by his sons though his consent may have some evidentiary value.
The rule that an assent by the father, unless proved mala fide, would stand in the way of a suit by the sons, is really a rule of evidence which allows a presumption of the validity of the alienation to be raised on account of conduct of the fattier of the plaintiffs on the ground that he would not' assent to an alienation which would prejudice his sons, unless he considered the alienation to be for necessity. This rule of evidence has now been elevated to the status of a bar to suits, but it cannot operate as a bar because every reversioner has an independent right of suit and remains unaffected by anything that another reversioner does even though he be his father and in its essence the rule remains a rule of evidence. The presumption that this rule allows should be attached only to acts of persons from whom we expect, at least, ordinary prudence.
(d) Custom (Punjab)‑Alienation‑Necessity‑Sale of land for paying of previous mortgage in favour of person who later became an evacuee‑Mortgage money left in deposit with vendee Custodian of Evacuee Property holding only part of mortgage money to be valid‑Sale proved to be for necessity‑Reversioner contesting sale held to be entitled to invalid part of mortgage money.
Mahbub Elahi for Appellants.
Ghias Muhammad and Ali Hasan Sabzwari for Respondent No. 1.
Dates of hearing: 11th, 12th, 23rd and 24th April 1957.
JUDGMENT
KAIKAUS, J.---‑This is an appeal by the plaintiffs in a usual declaratory suit under custom challenging two alienations of ancestral property on the ground that the alienations were without consideration and necessity.
The alienor in this case is Soofi Ghulam Nabi, a Kamboh of Garhi Shahu, a suburb of Lahore. He effected on the 6th of January 1938 a mortgage of the suit property (which is 6 kanals and 4 marlas of land in Mauza Garhi Shahu, in favour of Partap Singh defendant for a sum of Rs. 5,100. On the 30th of March 1943, he sold the same land to Mst. Rashida Khanum defendant‑respondent for a sum of Rs. 11,805, which included Rs. 6,500 due in respect of the mortgage. The present suit was filed on the 14th of October 1943, by the brothers' sons of Soofi Ghulam Nabi. The allegations in the plaint were the usual ones . . . . . the alienor was bound by agri cultural custom, the land alienated was ancestral and the aliena tions were not for consideration and necessity. Defendants to the suit were the vendee, the mortgagee and Soofi Ghulam Nabi. The contesting defendants, i.e., the mortgagee and the vendee, denied that the alienor was governed by custom or that the land was ancestral, and alleged also that the aliena tions were for consideration and necessity and were valid as acts of good management. ,They pleaded too that Muhammad Shafi, the father of the plaintiffs, had consented to the alienatious which fact debarred the plaintiffs from suing. There was at the same time a plea that the suit was collusive.
The learned Sub‑Judge, who tried the suit, found the land to be ancestral and necessity established in the case of the mortgage to the extent of Rs. 2,805 and in respect of the sale to the extent of Rs. 4,455. On the question of custom he decided against the plaintiffs, holding that the family of the alienor though originally bound by agricultural custom, had abrogated such custom. He found further that the father of the plaintiffs bad consented to the sale and that there being no evidence to prove that he had given that consent male fide, the plaintiffs were estopped, from suing. On the question of collusion, he decided against the defendants, holding that there was no material on record to justify a finding of collusion. In view of his findings as to custom and consent of the father of the plaintiffs, he dismissed the suit.
In this appeal learned counsel for the plaintiffs has challenged the findings of the trial Court on the questions of custom and consent. On behalf of the respondents, all the pleas put forward in the trial Court, except that relating to the ancestral nature of the property, have been pressed.
Partap Singh respondent is an evacuee. A decision with respect to his interest in the property could, therefore, be given only by the Custodian. The question as to his interest was referred to the Custodian, and his finding is that the evacuee has no interest in the property except to the extent of Rs. 330, this being the amount for which the mortgage in his favour is found to be for necessity. Needless to say the learned Deputy Custodian has considered the questions, of custom and consent and found in favour of the plaintiffs. So far as the rights of the evacuee are concerned, the decree to be passed in this appeal A has to be in accordance with the decision of the Custodian. We proceed to determine this appeal in so far as it relates to the vendee.
We will take up first the question whether Soofi Ghulam Nabi, alienor, was governed by agricultural custom. On behalf of the appellants, reliance has been. placed on the following facts :‑
(1) Kambohs are, a predominent agricultural tribe in the Lahore district and, many other districts.
(2) They were consulted at the time of the preparation of the Riwaj‑i‑Am of the Lahore district.
(3) They are the founders of the village Garhi Shahu, where the land in dispute is situate.
(4) They constituted, at least originally, a compact village community.
(5) They furnish Lambardars
(6) Their occupation, at least originally, was agriculture and even now they depend upon the same to a great extent, though some of them have also adopted other occupations.
(7) The land in dispute is Nahri land which, was being culti vated even after the alienations.
Reliance has, at the same time, been placed on a number of instances in which the Kambohs of Garhi Shahu were found to be governed by agricultural custom. The first instance is con tained in Exh. P. Y. This is a judgment by His Lordship the Chief Justice as Additional District Judge, Lahore, in a suit relating to the Kambohs of Garhi Shahu. The suit was for a declaration that an alienation by a widow was without con sideration and necessity. The defendant had objected that the alienor was not governed by custom. A number of documents were produced in this case and the judgment deals with this question at some length. It was held that the Kambohs of Garhi Shahu were governed by agricultural custom. The judgment is dated the 20th of August 1937.
The second instance relied upon is that contained in Exh. P. X., a judgment in a suit impeaching a sale by this very alienor and his brother. The suit had been filed by the present plaintiffs and had been decreed ex parte.
The next document relied upon is Exh. P. 6, a judgment of the Additional Munsif, 1st Class, Lahore, dated the 21st of March 1921, in a case relating to the Kambohs, not of Garhi Shahu, but of Ichhra which is another suburb of Lahore. The suit was one relating to an alienation by a male and it was held that the parties were governed by agricul tural custom.
Reliance is next placed on Muhammad Yusuf v. Muhammad Abdullah and others (A I R 1944 Lah. 117), wherein a Division Bench of the Lahore High Court held after full discussion that Kambohs of Garhi Shahu follow agricultural custom.
On behalf of the defendants a number of instances were produced. The first is Exh. D. 12, a case decided by the Sub‑Judge, 4th Class, Lahore, on the Ilth of January 1937 relating to the Kambohs of Garhi Shahu. In that case one Ahmad Ali had been declared insolvent and a certain house belonging to the insolvent was sold by the official receiver. Ahmad Ali's son filed a suit for a declaration that the sale would not affect his reversionary rights. No documentary evidence had been produced in this case as will appear from the following observation of the learned Sub‑Judge who decided the case.
"There is no Riwaj‑i‑Am, no Wajib‑ul‑Arz, no mutation, no judicial decision, no concrete instances."
Sardar Balwant Singh v. Mst. Sardarni Kesar Kaur and others (A I R 1934 Lah, 81), in which it has been held that custom applied to agricultural land only, was relied upon by the learned Sub‑Judge and it was held that sales of houses were not governed by agricultural custom. The learned Sub‑Judge also found that neither the plaintiff nor his father possessed any land.
Next are relied upon two judgments Exh. D. 13 and D. 14, relating to Kambohs of Lahore City. There was a mortgage by one Haji Ali Muhammad and a consequent sale. Two suits were filed, one by the mother of the mortgagor and the other by his step‑maternal uncle, on the ground that the house belonged to his father and that the wives of his father had a share in it under Muslim law. The contesting party was the Punjab and Sind Bank which pleaded that the parties were governed by custom and, therefore, the mothers of the mortgagor had no share in the property. Parties were butchers by profession, they owned no land and did not depend upon agriculture.
Exhibits D. 25 and D. 23 are judgments of the Sub‑Judge and the District Judge in a case relating to the Kambohs of Garhi Shahu. The suit was one for a declaration that the sale by the father of ancestral property would not affect the reversionary rights of the plaintiffs. The learned Sub‑Judge held that the land sold, though ancestral was urban and, therefore, its alienation was not subject to the restrictions imposed by customary law. It was also pointed out that the "village autonomy had been broken" and the plaintiffs had, there fore, no locus standi to file the suit. A number of judgments had been produced before the learned Sub‑Judge, but he refused to consider them as they related to agricultural land and, therefore, according to him, had no bearing on the case. On appeal the learned Additional District Judge, Mr. Rangi Lal, following Fazil v. Sadah and others (51 P R 1910) held that where the common village bond had been broken, the rule that ancestral land was inalienable except for necessity did not apply.
Exhibits. D. 26 and D. 27 are two judgments in declaratory suits under custom filed by the same plaintiffs in respect of two alienations by two brothers, Abdur Rahman and Abdur Rahim, Kambohs of Garhi Shahu. They are by the same Sub‑Judge and are in almost identical terms. It was held in these cases that the family of the alienors had drifted away altogether from agriculture, having adopted the profession of tailor master. The family was said to have settled permanently in Ceylon. The grandfather or the great‑grandfather had become an army contractor as tailor master as long ago as 1868 and since then the family had been carrying on this profession. There was also an admission by one of the vendors that he followed Muhammadan law.
The next case relied upon is a judgment of the Senior Sub‑Judge, Lahore, Exh. D. 29, relating to the same family. Asuit had been brought on the basis of a mortgage for the sale of the mortgaged property by Bulaqi Mal, a well‑known money‑lender of Lahore, against Abdur Rahman and Abdur Rahim. It bad been pleaded in this case that Abdur Rahman and Abdur Rahim were governed by agricultural custom, but no evidence had been led and the learned Sub‑Judge relied upon a letter addressed by the mortgagor, Abdur Rahim, admitting that his ancestors depended upon trade and not upon agriculture and that he had got full powers of aliena tion. The learned Senior Sub‑Judge also held that the restrictions on powers of alienation applied to agricultural land and not to house property.
Exhibit D. 28 relate to a suit filed by the widow of Abdur Rahim against the official receiver, claiming a lien on account of her dower and also her share on the basis of Muhammadan law. The official receiver, pleaded custom, but no evidence was led at all and the parties were held to be governed by Muhammadan law.
Exhibit D. 24 is a judgment of the Commercial Sub‑Judge in a suit filed by the Punjab Co‑operative Bank against the heirs of Abdur Rahim on the basis of a mortgage of a house effected by Abdur Rahim. It was held that the family had been following the profession of tailor master for a long time and was riot bound by custom.
Exhibit D. 17 is a judgment of the High Court relating, to the non‑agriculturist Kambohs of Lahore City. It may be mentioned here that in Muzaffar Muhammad v. Imam Din and another (I L R 9 Lah, 120) it had been held that the non‑agriculturist Kambohs of the city of Lahore are governed by Muhammadan Law. Exhibit D. 17 relates to the same family.
In view of the fact that admittedly Kambohs of Garhi Shahu are founders of Garhi Shahu, they originally formed a compact village community, they furnish Lambardars, their original occupation is agriculture and they were consulted at the prepara tion of the Riwaj‑i‑Am, it could not be denied that originally they were bound by custom. That in fact is the finding of the trial Court and this is conceded too by the learned counsel for the vendee respondent. The only question is whether they have altogether drifted away from agriculture and have adopted urban pursuits of life so as to have abrogated custom. On this point two positions were open to learned counsel for the res pondent. He could either say that the particular family with which we are dealing had abrogated custom or that the Kambohs of Garhi Shahu as a whole had done so. The position taken up by learned counsel for the respondent is that the Kambohs of Garhi Shahu can now be divided into two categories‑those who still retain a connection with agriculture and, therefore, are governed by custom, and those who have altogether drifted away from agriculture and are now bound by Muhammadan law. His contention is that the present family is one falling under the second category. We have asked him as to what is the time when this family may be said to have abrogated custom and he puts it at about the year 1924. At least, he says, this abrogation was complete in the year 1938 when a mortgage was created by Soofi Ghulam Nabi in respect of tine whole of the property that remained with him. Learned‑ counsel has been unable to contend that all the Kambohs of Garhi Shahu are now governed by Muhammadan law in view of the judgments referred to above relating to the Kambohs of Garhi Shahu and holding that they were still governed by custom. We want to distinguish those cases on the ground that the parties in those cases still retained a connection with agriculture which element is wanting in the present case.
The materials on which learned counsel asks us to hold that there is a complete drift in the case of this family are :‑
(1) The alienor, who is an M. A. of Aligarh University, had taken to service, being a hotel manager for some time at Mussorie, then a private tutor and after that the Superintendent of an orphanage of the Anjuman Himayat‑i‑Islam.
(2) Abdur Rahim whose property was the subject‑matter of a number of judgments mentioned above was a son or a step son of a sister of Maula Bakhsh, father of the alienor.
(3) The brother of the alienor, Muhammad Shafi, is a broker by profession, while Niaz Muhammad plaintiff is a clerk.
(4) The whole of the land that this family possessed has now been alienated and when the mortgage of the land in dispute was effected in favour of Partap Singh in the year 1938, no land remained in the possession of the alienor.
Learned counsel wants these matters to be considered along with the fact that there is no longer a compact village community in existence in Garhi Shahu, Garhi Shahu is now inhabited by a large number of persons of other castes and tribes in favour of whom not only residential sites but even agricultural land has been alienated. Learned counsel points out also that, according to the statement of Muhammad Husain (D. W. 5), no declaratory suits had been filed challenging alienations by Kambohs. This witness, however, is himself a purchaser from Kombohs and is interested in a decision as to the inapplicability of custom.
On the basis of the facts mentioned above, we are unable to come to the conclusion that this family had, on the 30th of March 1943, the date of the sale, altogether drifted away from agriculture so as to have abrogated custom and that it falls in the second of the two categories into which learned counsel for the respondent divides the Kambohs of Garhi Shahu. It may be observed that, according to the excerpt of the Muharrir Patwari, some land was under the personal cultivation of the alienor and his brother even in the year 1923‑24. Even up to the year 1937‑38, the alienor had some land, although it is not alleged that it was under his personal cultivation. All that had happened up to March 1943 was that the alienor had been for some time, probably very short, a hotel manager at Mussorie and after that a ‑private tutor and a superintendent of an orphanage, that he mortgaged whatever land remained with him in 1938, and that his brother, Muhammad Shafi, had probably alienated the whole of his share of ancestral land and had adopted the profession' of a property broker. Even considered along with the fact that there is no compact village community now in existence, the carrying on of other occupations, which may be only a means of adding to the income from agriculture, does not by itself show that this family has completely adopted urban pursuits and given up agriculture. The ancestral holding was in this case small, consisting only of 42 kanals and naturally the alienor and his brother had to look for other sources of income. The fact that whatever land remained with alienor was mortgaged, also, cannot have the effect of abrogating custom. It is to be kept in mind that in a case where some members o the village community, and particularly where the majority o them, retain their occupation as well as their custom, it become all the more difficult to hold that their own relatives descended from the same common ancestor and having social connections with them have abrogated custom, unless there be exceptional circumstances, like those existing in respect of the family of Abdur Rahim. In the case of that family, as already stated, adoption of another pursuit began as long ago as the year 1868. The grand‑father of the alienor was a tailor master of 23 Batallions in India and Ceylon. The family had almost taken up permanent residence in Ceylon. They had made declarations that they had given up their occupation of agriculture and that they were following Muhammadan law. They had given shares in inheritance to their daughter along with sons. In the present case, this family remains an agricultural family up to the year 1924 and even after that it is not clear when they ceased keeping land under personal cultivation. The only persons, who belonged to this family and are shown to be carrying on other occupations, are the alienor and his brother. There is nothing to show that the father's brothers or father's first cousins are also following other pursuits. The interval between 1924 and 1943 is not long. Custom cannot be cast off in a day. It takes a family that originally followed custom a pretty long time to become so settled in urban pursuits as to sever all connections with agriculture and custom. Custom takes time to be abrogated just as it takes time to develop.
Muhammad Yusuf v. Muhammad Abdullah and others, which relates to the Kambohs of Garhi Shahu, is a case very similar to the present and the present may perhaps be stronger. In that case the alienor had become an army contractor in the year 1880. It was pointed out, however, that he had not entirely cut himself away from agriculture. In the present case too the alienor possessed land till 1938 and owned it till 1943. When it was urged before the learned Judges in that case that the family of the alienor had adopted other pursuits, the learned Judges said :‑
"The mere fact that a person belonging to a tribe, which is a predominantly agricultural tribe and was consulted at the time of the preparation of the Riwaj‑i‑Am, migrates to a town or temporarily ceases to cultivate land, would not be enough to justify the conclusion that he has abrogated customary law altogether. Custom, unlike a cloak, cannot be cast off at one's mere volition. If this were so, any person residing in a rural area would be in a position to free himself from the shackles of custom by merely shifting his residence to an urban area and abandoning his ancestral pursuits for the time being. In my view this could not have been the intention of those who propounded the customary law and who did not choose to be governed by their personal law in matters relating to their private and public life. Custom was to be the ordinary rule of decision in their case unless it was established indisput ably and unequivocally that the party concerned had for ever abandoned its rural proclivities and drifted away from its hereditary occupation for all times to come. This is the gist of the authorities which have laid down in the cases covered by them that the parties concerned were governed by…
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