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Petitioner: MST. AZIZAN VS Respondent: UMRA
P L D 1949 Lahore 427
P L D 1949 Lahore 427
Before Cornelius and Kayani, JJ
Mst. AZIZAN and others‑Defendants‑Appellants
versus
UMRA and another‑(Plaintiff) Defendant‑Respondents
Second Appeal No. 1938 of 1946, decided on 14th July 1949, from the decree of Additional District Judge, Lahore, at Kasur, dated the 18th April 1949.
Custom (Punjab) ‑Succession‑--
---Arains of Chak No. 2 (Abbot tabad) (Tahsil Chunian, District Lahore Daughters have a preferential right to succeed to ancestral land as against collaterals.
It is satisfactorily established on the basis of instances recorded in the Riwai‑i‑am as well as by judicial instances of published cases as well as other judgments which have been led in evidence by the defendants, that in Chak No. 2 Abbottabad as well, the daughters of a deceased Arain have a preferential right to succeed to his ancestral land as against his collaterals.
174 P R 1889 ; A I R 1928 Lah. 870 ; A I R 1935 Lah. 532 ; I L R 14 Lah. 651 ; A I R 1941 P C 21 ; A I R 1943 Lah. 154 referred to.
A I R 1936 Lah. 418 disapproved,
B. Z. Kaikaus and A. R. Niazi for Appellants.
Iftikhar‑ul‑Haq Khan for Respondents.
JUDGMENT
CORNELIUS J.‑The suit out of which this appeal arises related to about 89 kanals of land situated in Chak No. 2 also known as "Abbot tabad" and "Nizampura" in the Chunian Tahsil of the Lahore district which was part of the estate left by one Chaughatta, an Arain Chaughatta died leaving him surviving his mother Mst. Fatto, his widow, Mst. Sultan Bibi and three minor daughters, Mst. Azizan, Mst. Shadan and Mst. Sughran, Chaughatta on the 1st August 1939, made a will leaving the suit property to his wife Mst. Sultan Bibi. After his death the property was mutated in Mst. Sultan Bibi's name. On the 15th November 1941, Mst. Sultan Bibi, who has since remarried, purported to make on oral gift of the entire property in favour of her three daughters. Umra plaintiff, who is brother to Nathu, father of Chaughatta, thereupon brought a suit for certain declarations in respect of the suit property, viz. firstly, that the oral gift of 1941 in favour of Chaughatta's daughters would not affect the reversionary interests of the plaintiff after the deal of Mst. Fatto and secondly, that the will made by Chaughatta, was opposed to custom and was without effect as against the plaintiff's reversionery interests. It is alleged that the suit property was ancestral qua the plaintiff and both the Courts below have found to this effect. Mst. Sultan Bibi contended that under special custom applying to Arain, Chaughatta was competent to make a will of his ancestral estate. The Courts below have found that Arains of Lahore district by special custom have power to bequeath one‑third of their ancestral estate. For this finding they have placed reliance on the Answer to Question 106 in the Riwaj‑i‑am prepared at the 1916 Settlement and the Answer to Question 112 in the Riwaj‑i‑am of the 1939 Settlement. Accordingly, as to one‑third of the suit land the plaintiff's suit was dismissed by the trial Court and this order was upheld in appeal by the learned Additional District Judge of Lahore. The remaining question related to the rights inter se of the daughters of Chaughatta and of Omra. Chaughatta's uncle, to succeed to the balance of the suit property, namely, two‑third. The Courts below have held that in respect of ancestral property, among Arains, daughters are not preferential heirs and therefore the plaintiff was entitled to succeed to the suit property after the death of Mst. Fatto. This finding was also upheld by the learned Additional District Judge in appeal. The daughters have now come up to this Court in second appeal.
Prima facie the Riwaj‑i‑am recorded at the latest Settlement goes in favour of Umra. In the Answer to Question 58, it is recorded that if a male proprietor be survived by a widow and unmarried daughters, but no male lineal descendant, then after the expiry of life‑interests vested in widow and the unmarried daughters, the persons entitled to succeed will be "the brothers and brothers' male descendants, paternal uncles and paternal uncles' male descendants * * * in the order mentioned" However, there is an exception stated in the Answer to Question 64, which relates to succession of daughters. The principal answer is that according to the general custom, daughters are excluded by the male lineal descendants and widows, but where there are no male lineal descendants or widows, "their right of succession is recognised differ ently by various tribes," and it is recorded that "Arains living in the," proximity of Lahore and Kasur, state that daughters of sonless proprietors exclude agnates in self‑acquired property". No rule is stated as to ancestral property, but that would be governed by the general rule contained in the Answer to Question 58, so that reading these two Answers together, there is no difficulty in reaching the conclusion that with respect to ancestral property, daughters are excluded by agnates, subject to a life interest so long as they remain unmarried. But in the same answer, the Settlement Officer has embodied a note with respect to Arains to the effect the it instances of succession of daughters to their sonless fathers are, found in 29, villages in the Lahore Tahsil, 6 villages in Chunian Tahsil and 8 villages in the Kasur Tashil. These instances necessarily provide a marked departure from the rule set out in the earlier part of the Answer. Quite a good number of the villages mentioned in the Lahore and the Kasure Tahsils are situated at consi derable distance from the towns' of Lahore and Kasur, and none of the villages mentioned in Tahsil Chunian is anywhere near either Lahore town or Kasur town. Moreover, in the large number of instances enumerated in the Appendix at pages cxxvii to cxxix, a very large proportion relating to Arains and most of them from the villages cited on page 52, expressly relate to succession to ancestral property. Thus, two results are manifest ; the limitation in respect of self‑acquired property has in practice not been observed within a considerable area of the Lahore district among Arains, and secondly, the limitation as to the area where the custom favouring daughter is practised among Arains namely, the vicinity of the towns of Lahore and Kasur, has also been obliterated in practice.
By way of illustration, to show the extent to which daughters have among Arains of the Lahore district succeeded in gaining preference over collaterals in respect of the ancestral estates of theirs, fathers it may be pointed out, that in the list of instances under Question 64 in the latest Riwaj on page cxxxii and cxxxiii out of the seven instances of succession by daughters, three relate to ancestral estate, on pages cxxxxiv and cxxxv there are nine instances of ancestral estate, out of ten altogether, and on pages cxxxvi and cxxxvii out of five instances three relate to ancestral estate. The reason for this anomally between the answer recorded by the Settlement Officer under Question 64 and the practice found by him as embodied in the instances is not far to seek. It is that in the earlier Riwaj of 1916 a similar custom was recorded among Arains living "in the proximity of Lahore," eighteen separate villages being mentioned, but there was no distinction drawn between rights in respect of ancestral property and rights to non‑ancestral property. It was simply stated that among such Arains "daughters of sonless proprietors exclude agnates," in the Answer to Question 61 and the answer to the following question made it clear that no distinction was made as to the rights of daughters between property which was either immovable or ancestral or movable or acquired. It is natural that the practice should have followed the custom so recorded, although this is not to say that daughters did not enjoy any right of succession to ancestral estate prior to 1916. In the latest Riwaj there is a particular list of instances dating prior succession of daughter of Arains in preference to collaterals on pages cxx to cxxv of the appendix and although it has not been specified in each of these cases whether‑ the estate was ancestral or otherwise, the number of instances tabulated is so large that it is inconceivable that the estate should have been self‑acquired in each case. In fact, there are only two instances in which it is specifically mentioned that the property was self‑acquired of the last male owner.
The tendency thus apparent from the recorded custom and instances as stated in the Riwaj‑i‑am of 1943, has been noticed and given effect to in certain published judgments of this Court, which may be briefly referred to. The earliest judgment is Mst. Zainab v. Amir (174 P R 1889.) relating to Ghelan Arains of village Babu Sabu in the Lahore district. It was held that there after local enquiry into custom, that among these Arains, the sister of a deceased proprietor excludes his cousins in respect of his property ; the judgment does not show whether the estate was ancestral or self‑acquired. Mst. Jandi v. Chiragh Din (A I R 1928 Lah. 870) is a Division Bench judgment of this Court laying down that among Arians of village Sande Kalan, which is a few miles outside Lahore city, a sister excludes the uncle in succession to the ancestral property left by her brother. These cases relate to sisters, but they are not entirely without value on that account, for the simple reason that in the Riwaj‑i‑am of 1916 as well as in that of 1944 it has been clearly stated in answer to the Question. Does property ever devolve upon sisters * * * * ?", that all tribes declare that the rights of sisters and their descendants ate similar to those of daughters as defined in the Answers to Questions relating to daughters. Waras v. Fatima (A I R 1935 Lah. 532.) is another Division Bench decision of this Court relating to Arains of Chunian Tahsil which is the farthest removed from Lahore of the three Tahsils of the district. 3t was held that sisters of the last male holder are preferential heirs as against collaterals of the third degree. This judgment was delivered in a Letters Patent Appeal from a decision of Mr. Justice Jai Lal, of which a copy is Exh. D. W. 1 on this record. Reference to Mr. Justice Jai Lal's judgment will show that the property in question was ancesteral. It was contended before the learned judges of the Division Bench that the exception in favour of daughters (and equally sisters) was expressed in the Riwaji‑i‑am to apply only to villages in the proximity of Lahore, but the objection was overruled on the grounds that "custom is ordinarily tribal and not local" and that there were previous judicial decisions which had considered cases throughout the Lahore district and that there was in this very village, a previous instance relating to self‑acquired property, the custom being clear in regard to the rights of daughters and sisters that they were the same as to both ancestral and self‑acquired property. It should be noted in particular, that the case of Waras v. Mst. Fatima (A I R 1935 Lah. 532.) relates to the particular village with which we are at present con cerned, namely, Abbottabad Chak No. 2 in the Chunian Tahsil, and although it relates to the rights of a sister, for the reason already given, it must be regarded as evidence of very great‑ value for setting the custom with regard to daughters as will. Then, there is the case of Ghulam Muhammad v. Mst. Zainab Bibi (I L R 14 Lah. 651), relating to Arains of village Karol, now in the Sheikhupura district but originally included in the Lahore district. Karol is six miles from Lahore city. This distance was regarded by a Division Bench, composed of Harrison and Addison, JJ, (the judgment having been delivered by the latter learned judge) as not placing Karol outside the category of "villages in the proximity of Lahore." Certain instances were discussed in which daughters had excluded agnates when there were no sons in respect to both ancesteral and non‑ancestral property, and no proof had ever been given that agnates had ever excluded daughters in the same circumstances. In Balanda v. Mst. Subhan (A I R 1936 Lah. 418.) difference of opinion having arisen between Coldstream and Jai Lal, JJ. the case was referred to Addison, J. It related to the very village with which we are at present concerned, namely, Chak No. 2 Abbottabad, and pointedly raised the question of the right of a daughter to succeed as against nephews and more distant collaterals. Coldstream. J. had held against the rights of the daughters while Jai Lal, J. found in the daugh ters' favour. Addison, J. found himself in full agreement with Colds tream, J. It should be mentioned that the property in that case was self acquired. Jai Lal, J, had pointed that the general custom of the Punjab favoured the rights of the daughters in respect of self‑acquired property but Addison, J. repelled the argument holding that there was "no such thing as general custom in the Punjab and it is necessary in every case to prove that the parties are governed by custom and what the custom is." This point of view was at one time accepted as correct in the Court, but is of doubtful authority since the decision of the Privy Council in the well‑known case of Mst. Subhan v. Nawab (A I R 1941 P C 21) That was a case relating to the rights of daughters in Shahpur district, and settling, the onus, their Lordships of the Judicial Committee referred to Rattigan's Digest of Customary Law, where the general custom is laid down in paragraph 23, stating expressly that under the general custom "a daughter excludes collaterals in succession to self‑acquired property of her father. Relying on this statement, their Lordships expressed the opinion that the question arose "whether the property being non‑ancestral, the plaintiffs have discharged the onus by proving the existence of a special custom excluding daughters. In other words, general custom is followed at any rate for placing the onus of proof upon persons denying the rights of daughters, as expressed in Rattigan's Digest. (The point is of importance in the present case as there is no proof of daughters having been excluded by collaterals otherwise than as afforded by the judgment of Addison, J. in Balanda v. Mst. Sablian (A I R 1936 Lah. 418.). Addison, J. next referred to the distance of Chunian Tahsil from Lahore City and came to the conclusion that it was too great to bring Chak No. 2 within the category of villages "in the proximity of Lahore." The learned judge did not place any reliance on instances relating to sisters. Reference was then made to a number of instances relating to Chaks in the proximity of Chak No. 2 which went against daughters, and on these grounds it was finally held that even in respect of self‑acquired property, collaterals in Chak No. 2 Abbottabad excluded the daughters of a deceased Arain.
On the basis of the latest Riwaj‑i‑am which expressly saves the rights of daughters in respect of self‑acquired property it must at once be held that Balanda v. Mst. Subhan (A I R 1936 Lah. 418.) is no, longer good law. Further, in reaching the conclusion, Addison, J. did not have the advantage of having before him the great number of instances cited in the latest Riwaj‑i‑am where Arain daughters have succeeded in preference to collaterals in respect of their father's estate, a very large number of which are expressly stated to be ancestral. In the present case, the collaterals have not relied upon any of the instances from neighbouring Chak which influenced the decision in Balanda v. Mst. Subhan (A I R 1936 Lah. 418.). Therefore, speaking with great respect, it seems to us that the decision in Balanda v. Mst. Subhan (A I R 1936 Lah. 418.) is not one which can be followed .in the present circumstances. There is on the record another judicial instance relating to Chak No. 2 (also known as Nizampura) and this is a decision of the District Judge of Lahore, dated 6th December 1921 in the case of Mst. Fatima v. Pahalwan (Exh. D. 3). The property there was self acquired, and the contesting collaterals where a brother and a nephew of the last male holder, whose daughter Mst. Fatima was in possession of the estate which was the subject‑matter of the suit. It was held by the learned District Judge that the daughter was entitled to succeed in preference to the collaterals. In reaching this conclusion, the learned District judge took into account the fact that the custom favouring daughters among Arains was expressed to be limited to village in "in the proximity of Lahore," but he expressed the view that it was very improbable that this favourable view was confined to Arains residing only in the villages named, and he thought that it could be assumed that on the whole, Arains were more favourably inclined to daughters than certain other gibes. He also relied upon the general custom favouring daughters, in respect of non‑ancestral property as stated in Rattigan's Digest. Thus, with respect to this very village there are three clear judicial instances. That in Exh. D. 3 Mst. Fatima v. Pahalwan favours daughters as against collaterals in respect of self‑acquired pro perty. The 1936 case of Balanda v. Mst. Subhan (AIR 1936 Lah. 418) favours collaterals as against daughters in respect of non‑ancestral property, but Waras v. Mst. Fatima (AIR 1928 Lah. 870) which relates to as ancestral property, favours sisters against collaterals.
We have also been referred to a Single Bench decision, reported as Mst. Hussain Bibi v. Hassan Din (A I R 1943 Lah. 154.) by Muhammad Munir, J. (as he then was) relating to Arains of a village in Tahsil Shahdara, which village originally was included in the Lahore district. The question related to the rights of the daughters of the deceased to succeed in preference to' his brother's sons. Applying the Riwaj‑i‑am of Lahore district the learned judge held that the daughters had the better right. In reaching this conclusion, he relied upon the following circumstances. Firstly, the Arains are endogamous tribe among whom daughters occupy an exceptionally favourable position. Reference was made to the 1916 Riwaj‑i‑am and then to the 1943 Riwaj‑i‑am in each of which the rights of daughters among Arains to succeed to their father's property in the presence of collaterals were enlarged beyond the previous expression and conclusion was reached "that the custom favour daughters which was originally local is tending to become more and more tribal in the district of Lahore." Reliance was placed upon the instances contained in the latest Riwaj as well as upon judicial cases to show that the custom favouring daughters was now to be found in places which could not be described as "in the proximity of Lahore." These factors which have been held to favour the rights of daughters in other cases are also present in full measure in the present case. In our opinion, it is satisfactorily established on the basis of instances recorded in the Riwaj‑i‑am as well as lay judicial instances of published cases as well as other judgments which have been led in evidence by the defendants, that in Chak No. 2 Abbott abad as well, the daughters of a deceased Arain have a preferential right to succeed to his ancestral land as against his collaterlas. In this view of the matter the will made by Chaughatta in favour of Mst. Sultan Bibi in 1939 is without effect on the result of the case, since it has been supplemented by a deed of gift by the legatee, Mst. Sultan Bibi, in favour of her daughters. We accordingly allow the appeal, and setting aside the decrees awarded by the Courts below, dismiss the plaintiff's suit. Having regard to the circumstances, we leave the parties to bear their own costs throughout.
A. H. Appeal accepted.