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Petitioner: NUR MUHAMMAD VS Respondent: MUHAMMAD YAR (PLAINTIFF), HAYAT
P
P. L. D. 1951 Lahore 132
FULL BENCH
Before Muhammad Munir, C. J., S. A. Rahman and Shabir Ahmad, JJ.
NUR MUHAMMAD and another‑Defendants‑Appellants
versus
MUHAMMAD YAR (Plaintiff), HAYAT and others Defendants‑Respondents
Regular Second Appeal No. 111 (W) of 1947, decided on 19th December 1950 from the decree of District Judge, Gujranwala, dated the 19th July 1947.
This case was referred to the above noted Full Bench by Cornelius, J., vide His Lordship's Order, dated the 1st April 1949.
(a) Custom (Punjab)‑Inheritance‑A died and his son B succeeded A‑B did not marry and died‑B's mother C succeeded B‑C succeeded as mother of B and not as widow' of A.
134 P. R. 1907 followed.
(b) Custom (Punjab)‑Inheritance-Position of sister cannot be assimilated to that of daughter.
Under custom the position of a sister cannot be assimilated .to that of a daughter.
For about fifty years now that principle has been allowed to regulate the devolution of interests in property under custom, and it would be extremely unwise to upset that view after such a lapse of time.
134 P. F. 1907 followed.
A. I. R. 1921 Lah. 180, A. I. R. 1934 Lah. 1, A. I. R. 1934 Lah. 205, A. I. R. 1934 Lah. 781, 30 P. R. 1890, L. R. 4 1. A. 1, I. L. R. 8 All. 319, A. I. R. 1927 Lah. 329, I. L. R. 4 Lah. 392; Civil Appeal No. 733 of 1899, Civil Case No. 599 of 1904.4 P. R. 1891,12 P. R. 1892, 103 P. R. 1900, 110 P. R. 1906, 143 P. R. 1888, 46 P. R. 1914, A. I. R. 1937 Lah. 468, A. I. R. 1938 Lah. 111, A. I. R. 1946 Lah. 16, A. I. R. 1924 P. C. 121, 156 I. C. 447, A. I. R. 1937 Lah. 471, A. I. R. 1944 Lah. 369, A. I. R. 1931 Lah. 677, ref.
(c) Custom‑Not necessarily always logical.
Custom is not necessarily always logical and the Courts have to make an objective enquiry to ascertain the custom on any parti cular point in each case.
(d) Custom (Punjab)‑Inheritance‑Sister versus Collaterals ‑Burden is on sister to prove her preferential right‑Gujranwala District‑Self ‑acquired property.
The burden rests on the sister to prove her preferential right in comparison with collaterals even in respect of non‑ancestral property.
The burden of proving a superior claim, therefore, rested in this case on N. who was regarded as the sister's son of the last male holder.
In the riwaj‑i‑am of the Gujranwala District, question 55 re lates to rights of sister or sister's sons. The recorded answer is that sisters and their sons are in no case entitled to inherit. It was noted further that among the tribes of tahsil Wazirabad and Arains of tahsil Sharakpur, in default of the collaterals of the fourth degree, the inheritance devolves upon daughters and in their default upon sisters and their sons. It was further added that among Cheema Jats, a childless proprietor was not competent to make a gift in favour of a sister's son in the presence of collaterals related to the donor in the sixth degree.
B. Z. Kailmus and Tassadduque Hussain, for Appellant.
Outab‑ud‑Din and Zafar Hussain, for Respondents.
ORDER OF REFERENCE.‑This second appeal by the defend ant Nur Muhammad raises an important question of custom. The litigation relates to the estate of one Khanu, a Bhatti Rajput of village Kharak in the Hafizabad tahsil of the Gujranwala district. Khanu was survived by a widow Mst. Bhage, a son Murad and a daughter whose son is the appellant Nur Muhammad. Murad succeeded to the estate but he died childless and unmarried and was succeeded by his mother Mst. Bhage, who died in 1945. The property is admittedly self‑acquired. The plaintiff Muhammad Yar who is a fifth‑degree collateral of the deceased Khanu sited for possession of 1/24th share in the estate, that being hip separate share on the assumption that succession passed on the death of Mst. Bhage to the collaterals then surviving. A number of questions arose as a result of the pleas taken by the various defendants, and these were embodied in eight separate issue of these questions only two require consideration and decision in this appeal. The first is whether the estate in the hands of Mst. Bhage passes upon her death to the heirs of her husband Khanu or of her son Murad ? If the former alternative by the correct one, then Nur Muhammad as a daughter's son would appear to have a claim in preference to that of the collatenils. If the latter alternative be correct, then Nur Muhammad's status is that of a son of a sister of the last male holder and in that capacity his claim is certainly weaker than as a daughter's son. The second question has reference to the latter of the alternatives mentioned above, namely, whether, even regarded as a son of a sister of the last male holder, Nur Muhammad's claim is not superior to that of fifth‑degree collaterals, in respect of sell- acquired property. The trial Court awarded a decree to Muhammad Yar as claimed. The learned Sub‑Judge held that the plaintiff and the other collaterals who were arrayed as defendants were heirs of Murad the last male holder, and that in searching for the rightful successors to the estate after the death of Mst. Bhage, it was not the heirs of Khanu who had to be found, but the heirs of Murad. This finding was upheld by the District judge on appeal. The learned District judge relied upon the answer to question 55 in the Customary Law of the Gujran wala district, compiled in 1914 by S. Dalip Singh, as well as on the statement of general custom contained in paragraph 24 of Rattigan's Digest of the Customary Law which are to the effect that sisters as well as their issue are usually excluded. The learned District Judge did not go into the question whether the heirs of Khanu or the heirs of Murad had to be found in order to determine who should succeed to the estate, and appears to have accepted the finding of the trial Court that succession should go to the heirs of Murad. The appeal having been dismissed, Nur Muhammad has now come up to this Court in second appeal.
Mr. B. Z. Kaikaus for the appellant has presented a closely reasoned argument in support of the contention that the heirs to be looked for after the death of Mst. Bhage are the heirs of Khanu and further that even regarded as sister, in relation to non‑ancestral land, the right of a sister's son is superior to that of collaterals. On the latter question, his reliance has been mainly on a Division Bench decision of this Court in Fatima Bibi v. Shah Nawaz (A. I. R. 1921 Lahore 180). In that case, which was from the Jhelum district, the dispute was between sisters of the last male holder and his collaterals in the ninth degree. The riwaj‑i‑am of the Jhelum district was to the effect that a sister or her sons can never inherit, but the learned Judges did not feel themselves bound by this statement; upon the consideration that as a general rule, the statements of custom in such compilations referred to ancestral and not to acquired property. The general rule contained in paragraph 24 of Rattigan's Digest of Customary Law was also cited before the Division Bench, but the learned judges declined,", to draw any principle applicable to the case before them from these two compilations of custom .and preferred to fall back upon the personal law of the parties, according to which the sisters had the superior right. In the present case also, the answer to question 55 in S. Dalip Singh's riwaj‑i‑am, which asks whether the property ever devolves upon sisters or their sons, is in completely uncompromising terms, viz., sisters and their sons are in no case entitled to inherit. Two exceptions are mentioned in the body of the answer. All tribes in Wazirabad tahsil and Arains in Sharakpur tahsil had stated that in default of collaterals upto fourth degree, the inheritance devolves upon daughters, and in default of daughters, upon sisters and their sons. Reference was also made to a decided case relating to Cheema Jats where a childless proprietor was held not to be competent to make a gift to his sister's son in the presence of 'sixth degree collaterals. There is appended to the answer a list of seven instances in which in tahsils Gujranwala and Hafizabad, sisters and their sons had been allowed to succeed but it bears no list of instances in which sisters and their sons had been excluded. It may well be that the custom as stated in the body of the question was so well established that it was though sufficient to enumerate only instances of departure from that rule. The general custom in the Gujranwala district excluding Wazirabad tahsil, would thus appear to go strongly against Nur Muhammad's case, and that custom is supported by the prevailing custom in the province generally as stated in paragraph 24 of Rattigan's Digest of Customary Law: Learned counsel for the appellant asked that as =in the 1921 case, the Court should fall back upon the personal law but it seems to me that the conditions necessary for avoiding recorded custom on this point, as was done in precedent case, do not exist in this case. On the material placed before me, the claim for application of the personal law is distinctly weak. There is; however, much greater force in the contention that the successors to the estate after the death of Mt. Bhage are the heirs of Khanu. The argument put forward by Mr. Kaikaus was to this effect. He contended that it was very well settled that when a childless male proprietor who dies leaving no widow is succeeded by his mother, the latter takes the estate not as the mother of the last male' holder but as the widow of, the father of the last male holder. The case was cited of a woman succeeding in these circumstances who is only the ‑ step‑mother of the last male holder. It was urged on this basis that the mother should be deemed to be holding in continuation of her own husband, and when her interest is terminated by death or remarriage; the heirs to be looked for are the heirs to her husband. Mr. Kaikaus referred to the commentary under paragraph 22 of Rattigarl's Digest; where a case is cited of loss of a life‑estate by such a woman upon her remarriage or unchastity, which is explained by the consideration that she succeeds not to her son's estate, but to her husband's estate: Similarly, it is well settled that a mother who remarries before the death of the son, in the relevant circumstances, cannot succeed to the estate. Among the large number of authorities cited by Mr. Kaikaus in support of the proposition that a mother‑ succeeding after the death of her son does so as the widow of his father, I may cite three which appear in All India Reporter 1934 Lahore at page 1 (S. G. P: C. v. Harcharan Singh) at page 205 (Sunder Singh v. Mst. Jawala Devi) and at page 781 (Kanshi Ram v. Situ). The proposition seems in fact to be settled beyond all possibility of doubt. Yet, to the contention that after the mother, the heirs of the last male holder's father should be looked for, the answer might be made that there is no warrant in the theory or practice of custom for ignoring altogether a male holder in whom the estate has vested, and therefore, it is logical to suppose that the mother succeeds in this special case as an accident of custom or for the purposes of maintenance only, and her enjoyment of the estate is not to be allowed to operate so as to divert the course of succession, which under custom has reference mainly to male holders. On this point, Mr. Kaikaus was able to produce an authority to the effect that under custom, a mother who succeeds to her son in the circumstances relevant to this case is even entitled to adopt a son to her deceased husband. This was held in Mst. Ganga v. Lekh Ram (30 P. R. 1890). There, the original proprietor Nathu had died leaving him surviving an adopted son Ganeshi and a widow Mst. Ganga Ganeshi died leaving him survi ving a widow Mst. Hiran and a daughter's son Net Ram. Later; Net Ram died; and Ganeshi's widow then adopted one Lekh Ram. Later she remarried, when a‑ question arose whether she (Ganeshi's widow) had power to adopt Lekh Ram, after the interposition of Net Ram between the death of Ganeshi and her own succession' to Ganeshi. It was held that the adoption was valid by custom and that its validity was not affected by the fact that the widow did not succeed directly to Ganeshi but after a period during which the estate vested in the adopted son Net Ram. In arriving at this decision, the learned judges of the Division Bench of the Punjab Chief Court relied for some extent on two cases decided under Hindu Law, viz., Krishna Row v. Lakshmi Narsayya (L. R. 4 I. A. 1) and Lakhmi Chand v. Gatto Bai (I. L. R: 8 All. .319). In the first case, the facts were that natural‑born son had succeeded to the estate of the original zemiadar and upon his death as an infant and unmarried, the original zemindar's widow took the estate as heiress to her son, and thereafter she made an adoption to her husband. It was held that ‑if the adoption was otherwise valid, it did not become invalid merely because the widow did not succeed immediately after the death of her husband, but after a period in which the estate vested in the husband's natural son. The second case was one of the same widow making two successive adoptions to her husband who was a Jain governed by Hindu Law. It was found that the widow had power to adopt a son to her husband and that the second adoption was valid and was an adoption to her husband notwithstanding that the estate had vested previously in another son adopted by herself, who died as an infant and unmarried. Although it can be urged that these cases arose under the Hindu Law, and that even the case in the 1890 Punjab Record relates to Hindus from the Delhi side, where the influence of Hindu Law is presumably predominant, it nevertheless appears to me difficult to avoid the impression that they lend support to the view that a mother succeeding to her son under custom, in the circumstances here envisaged, is competent by her acts to continue the succession to her own deceased husband and thus altogether to efface the effect of the succession of the male owner after whose death she herself succeeded. This conclusion lends great strength to the argument that if a woman so situated dies, the successors to the estate are the successors to her husband, who was the last male owner who left issue. On this point, Mr. Kaikaus referred me to the Introduction to the Second Chapter on " Succession and Maintenance " in Rattigan's Digest of Customary Law, where the learned commentator lays down four leading canons governing succession to an estate amongst agriculturists, the second of which reads as follows:--
" When the male line of descendants has died out, it is treated as never having existed, the last male who left descendants being regarded as the propositus."
In support of this doctrine, reference was made to a Division Bench judgment of this Court published as Mamun v. Mst. Jowai (A. I. R. 1927 Lahore 329) where it was laid down by Broadway, J., with whom Zafar Ali, J. agreed, as follows :
" The general principle governing succession to an estate among agriculturists seems to be that where the male line of descendants dies out, it is treated as never having existed, so that succession is then reckoned with reference to the last male owner who dies leaving descendants ".
This proposition clearly supports the case set up by the appellant Nur Muhammad.
On the other side, Mr. Zafar Hussain for the contesting respondents has referred to the commentary under paragraph 24 of Rattigan s Digest of Customary Law. The commentary cites a considerable number of authorities, most of which incline to the view that a sister of the last male holder claiming to succeed in preference to collaterals has to establish her right, even in the case of non‑ancestral property, and it is not open to such a claimant to seek to assimilate her position to that of a daughter. Among the authorities cited by Mr. Zafar Hussain, I select for mention Mst. Ssnt Kaur v. Sher Singh (I. L. R. 4 Lah. 392), where it was held that even in relation to non‑ancestral property, the burden is upon a sister of the last male holder claiming such property to establish that her right is superior to that of her collaterals. This judgment relies on the well known Full Bench case Hamira v. Ram Singh (134 P. R. 1907) on which also Mr. Zafar Hussain relies. The question there posed for the Full Bench to decide was directly addressed to the status of a sister claiming to succeed on the death of her brother, in the right of daughter of her father, and the Full Bench observing that they were not aware of any system of law under which the claims of a daughter and a sister had been placed on au equal footing, and that in the case before them, no ground had been made out for departing from the ordinary order of succes sion of sisters, decided that the claim, if any, could only be made in the status of sister. The Full Bench also expressed their full agreement with the reasoning of the judgments pronounced by two Darned judges of the Punjab Chief Court in an earlier civil case No. 599 of 1904 and those judgments were printed as an appendix to the judgment of the Full Bench. The principle judgment in the earlier case is by Jhonstone, J., but to this a short judgment is appended by Mr. Justice Chatterji, the authority of whose pro nouncements on questions relating to Punjab Custom is undoubted, and in his judgment, Mr. Justice Chatterji has observed as follows :‑---
"But there can be no doubt that customary law does make a distinction in practice between a sister and a daughter which cannot be got over by any theory that succession has to be traced to the last male holder who left issue."
That is precisely the effort of Mr. Kaikaus in this case, contending on behalf of the sister's son, namely, that the succession should be traced back to the', last male holder who left issue, and he has in his favour an additional circumstance which was not present in the 1907 and 1904 cases, viz. that the last male holder who left no issue was succeeded by his mother, as to whose position in respect of the estate that she had thus acquired, there can be no doubt that it was in the right of widow of her husband. Yes, it may be possible to give too much weight to this circumstance so as to violate the principle laid down by Mr. Justice Chatterji, namely, that the theory of tracing back succession to the last male holder who left issue is not to be resorted to for the purpose of effacing the distinction which exists in custom between a daughter and a sister.
The considerations which apply to the decision of this case, as they appear from the authorities cited and in the light of the arguments addressed by the opposing counsel before me appear to me to be so nearly balanced, and the point is clearly one of such great general importance, that it is most desirable that the case should be authoritatively decided by a larger Bench. Since the matter has previously been before Division Benches, although not precisely in the form which it has been given in the present case, it would probably be best that the case should go before a Full Bench. I accordingly‑ direct that the papers be laid before my Lord the Chief‑ Justice for reference to a larger Bench as suggested above.
JUDGMENT OF FULL BENCH
S. A. RAHMAN, J.‑This second appeal came up for hearing before Cornelius, J , in Chambers. In view of the important question of law involved, the learned Judge has referred it for decision to a larger Bench.
The property involved in this case originally belonged to one, Khanu, a Bhatti Rajput of village Kharak in tahsil Hafizabad, District Gujranwala. When Khanu died, he left behind a widow, Mst. Bhage, a son Murad, and a daughter, Murad Bibi. The appellant, Nur Muhammad, is the son of this Murad Bibi who predeceased her mother, Mst. Bhage. Murad succeeded to the estate of his father but died unmarried and issueless. On his death, the estate devolved on Mst. Bhage. She too died in 1945. The suit, out of which the present appeal has arisen, was instituted by Muhammad Yar, a collateral of Khanu deceased in the fifth degree, for possession of his 1/24th share in the land left by Khanu Nur Muhammad appellant had taken possession of the whole of Khanu's land. Muhammad Yar claimed to be one of the collaterals entitled to succeed and sued for his own share alone.
The trial Court held that, after the death of Mst. Bhage, inheritance should De reckoned from the last male owner, Murad, and not from Khanu. On this view, Nur Muhammad was regarded as sister's son of the last male holder of the property and as such the plaintiff Muhammad Yar was regarded as a preferential heir. The suit was consequently decreed and the decision was affirmed on appeal by the learned District Judge, Gujranwala.
The property, in suit is admittedly non‑ancestral qua the plaintiff‑respondent: Mr. B. Z. Kaikaus on behalf of the appellant, Nur Muhammad, has contended that the Courts below had Mrs. directed themselves in law in reckoning the inheritance after Mgt. Bhage's death from Murad instead of Khanu. The true prin ciple, according to the learned counsel is, that when the male line of descendants dies out, it is treated as never having existed, so that succession is then reckoned with reference to the last male owner who died leaving descendants. In particular, he maintained that when a mother succeeds, as she did in the present case, she takes the property as the widow of her own husband and not as the mother of the last male holder. Alternatively, it was urged by him that, even if Murad, the last male holder, has to be regarded as the propositus, the property 'being self‑acquired, a sister's son should be regarded as a nearer heir than a collateral in the position of Muhammad Yar.
Mr. Kaikaus has drawn our attention to page 84 of Rattigan's `Digest of Customary Law where the learned author in his intro duction to Chapter II has laid down four leading canons governing succession to an estate amongst agriculturists. The second of these canons is in the following terms:‑
When the male line of descendants had died out it is treated as never having existed, the last male who left descendants being regarded as the propositus"
A number of authorities have also been cited in support of the other propositions contended for, on behalf of the appellant.
The basic authority, on which reliance was placed by Mr.
Kaikaus, is the decision of a Full Bench of the Punjab Chief Court in Ghulam Muhammad v. Muhammad Bakhsh (4 P. R. 1891). The actual question dealt within that case related to the effect of the application of the chundawand or the Pagwand rule of succession among agriculturists, but Plowden, J., in his judgment at pages 17,19 made certain observations of a general character which appear to have formed the foundation of several subsequent authorities. At page 1 7 the learned Judge observed as follows:‑--
"This principle of cummunity of descent applies equally to cases of collaterals succession, the rule here being that the portion of a descendant who dirs without issue, devolves upon the male lineal descendants of the nearest ancestor of the deceased, having such descendants, as if it were the estate of the common ancestor, and he had died at the moment when the deceased died. Thus, if a son dies without issue, leaving bro thers only, they take the share, inasmuch as they are the male lineal descendants of the father of the deceased".
In the next paragraph of his judgment occur the following remarks :‑
"If we bear in mind, that the absolute right of sons to a share in the estate of the father is (properly) based upon his having received it from (or through) his father, and that the portion o' a descendant deceased without issue is regarded as reverting to the deceased's ancestor, and then descending from him to his male lineal descendants then living, we have, I think, as explanation of the claims of ekjaddian, and of the expression 'warisan ekjaddi'. According to the view, that the property of a man who dies without issue, first reverts to the ancestor, and then descends, it will be seen that the ancestral property devolves upon the male lineal descendants of a common ancestor of the deceased and his heirs, in cases of what is called collateral succession, as well as in cases of what is called lineal succession".
Similar remarks were repeated by the learned judge at Para. 19 of his judgment.
In Sita Ram v. Raja Ram (12 P. R. 1892, F. B) the princi ple laid down by Plowden, J., was referred to with approval at page 62 of the judgment. The learned Judges, in that case, enunciated the rule that a brother succeeds a sonsless brother, not as a brother, but because the estate reverts to the father and descends again to his sons. So, too, it was observed, a mother succeeds, not as a mother; but as the widow of the father to whom the estate has ascended. The view was further expressed that this…
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