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Petitioner: DILBAR KHAN VS Respondent: HAMID-ULLAH KHAN
P L D 1949 Lahore 202
P L D 1949 Lahore 202
Before Muhammad Sharif and Cornelius, JJ
DILBAR KHAN and others‑Plaintiffs‑Appellants
versus
HAMID‑ULLAH KHAN and others‑‑Defendants‑Respondents
First Appeal No. 175 of 1939, decided on 8th February 1949, from the decree of .Senior Sub‑Judge, Attock at Campbellpur, dated the 3rd April 1939.
(a) Custom‑Succession‑Tarkhelis of Hazara District‑ Succea sion to a collateral goes to the full blood in preference to half‑blood.
It seems to be clear beyond doubt that among Tarkhelis in the Hazara District, succession to a collateral goes to the full blood in pre ference to the half‑blood.
It being clear that the Tarkhelis hail from the Utmanzai territory in the North‑West Frontier Province, that the bulk of the tribe is in the Hazara District and that they only have a few villages in the Attock Tehsil, the presumption is strongly in favour of the tribe as a whole following this custom in respect of all their property wherever it may be.
(b) Custom‑Tarkheli Pathans owning land in Attock District but residing in Hazara District‑Succession should be decided on basis of Hazara custom.
The case in respect of the Tarklleli Pathans who owned land in the Attock District but themselves resided in the Hazara District, would require to be decided on the basis of Hazara custom, unless it could be shown that the family in question was resident in the Attock District and in the course of time its customs had been altered so as to bring them into conformity with the customs of the other tribes inhabiting the Attock District. [p. 208] . 94 P R 1913 ; A I R 1935 Lah. 370 followed.
(c) Custom‑Preventing separation of residence or partition of land‑Void as being against public policy.
A custom which prevented either of the natural courses ; namely, separation of residence and partition of lands, upon pain of material loss of rights would be void as being contrary to public policy.
S. H. clafri and Sh. Muhammad Amin for Appellants.
Ghulam Mohy‑ud‑Din Khan, Nazeer Ahmad Mahmud and Shaukat Ali, for Respondents.
Cornelius, J.‑This judgment will dispose of two civil appeal, namely, Regular First Appeal 175 of 1939 "Dilbar Khan v. Hamid Ullah Khan", and Regular First Appeal 188 of 1939 "Hamid Ullah Khan v. Dilbar Khan". These are cross‑appeals from a . single judgment of Mr. Ram Rang, Senior Subordinate Judge, Attock district at Campbellpur, and relate to property left by one Muhammad‑Khan, a Tarkheli Pathan, who according to the evidence lived and died in Kharbara, a place in the Hazara district of the North‑West Frontier Province. A reference to the official Gazetteer of the Hazara district compiled in 1907 by the Settlement Officer Mr. H. D. Watson (Chatto and Windus, 1908) will show at pages 24/25 that the Tarkhelis are a branch of the Altazais, themselves the branch of the Utmanzai tribe of the Pathans, and that Kharbara was the seat of one of the best known families among the 'Tarkhelis Muhammad Khan died sonless, leaving him surviving two widows, Mst. Sakina Jan and Mst. Said Khanam, to each of whom upon his death 627 kanals of land in village Pipliala, which is appa rently adjacent to Kharabar, was allotted for purposes of maintenance in accordance with the custom of the tribe. The rest of the land left by Muhammad Khan, which was about 16,000 kanals in area, was mutated on the 13th February 1927 and the 16th September 1927 in favour of the defendants, who are the descendants of Hussain Khan, own brother to Amir Khan, the paternal grandfather of the deceased Muhammad Khan, The plaintiffs are the descendants of Ali Akbar Khan another brother of Hussain Khan and Amir Khan, and while they themselves allege that Ali Akbar Khan was true brother to Hussain Khan, and Amir Khan, the case for the defendants is that he was a son of the founder of the family Najim Khan or Najib Ullah Khan, by his second wife, the sons by the first being Amir Khan, Hussain Khan and Hassan Khan the third of whom died childless, his estate being inherited exclusively by his brothers Amir Khan and Hussain Khan. At the time of the suit Mst. Sakina Jan was also dead, and her lands were also mutated exclusively in the names of descendants of Hussain Khan. The plaintiffs claimed that according to custom, Muhammadan Law, justice and law of the land, mutation in respect of one‑half of the estate of Muhammad Khan having the land allotted to his widows and of Mst. Sakina Jan should have been effected in their favour. It should mentioned here that with the death of Muhammad Khan sonless the line of Amir Khan has become extinct and thus there are only two lines in existence of the direct descendants of Najim Khan, viz., the descend rots of his sons Hussain Khan and Ali Akbar Khan. The lands in suit are situated in three villages, namely, Kauhlic, in Attock district and Kliarbara and Pipliala in the Hazaru district, which adjoints the Attock Tehsil on the other side of the river Indus. The area situated in Kauhlia is 16,318 kanals 5 marlas of which the plaintiffs claim half, that in Kharbara measures 7,943 kanals 8 marlas and that in Pipliala 9473 kanals 4 ma?las and the share claimed by the plaintiffs in the aggregate is 16,867 kanals 8 marlas. No less than eleven issues were framed as a result of the points of contest raised by the defendants, but of these the only issue which arises for decision in the appeals is that concerning the custom governing the succession to the estate of Muhammad Khan. It has been held by the trial Court, after contest on the point, that the family is not governed by Muslim Law but by custom, and it is conceded by the learned counsel for the plaintiffs‑appellants that custom does apply. The finding given by the learned trial judge as to what custom applies is that in relation to the land in Attock district, the parties follow the rule of paglvand that is to say in matters of collateral succession, the whole blood and the half‑blood succeed equally, whereas in regard to the land in the Hazara district, the rule of chundawand prevails so that the whole blood excludes the half‑blood in collaterals succession. Accord ingly, the suit of the plaintiffs has been dismissed in relation to the land in Hazara district, but a decree has been awarded in relation to the lana in Attock district. The plaintiffs have appealed and on their behalf the grounds taken are that the Court below was in error in holding that Najim Khan left descendants by two different wives, and that in the Hazara district, the whole blood excludes the half blood. The defendant appellants have taken the grounds that the finding that the custom of Attock district applies to the land there is incorrect, that the parties originally belong to Kharbara in the Hazara district and the custom which applies to them in their native place, should prevail ii, regard to the succession to the estate of any member of the family wherever that estate may be situated ; as chundawand was the rule, in Hazara, it should also have been applied for the purpose of collateral succession to the land in Attock district. The two appeals have bees. heard together and are being disposed of by means of this judgement.
Reference has already been made to the Gazetteer of the Hazara District which was compiled at the Settlement of 1907. On page 25, the learned compiler, when dealing separately with the Tarkhelis, states that they inhabit certain tracts in Hazara and also own several villages in the Attock Tehsil. He goes on to say that although the Tarkhelis are Utmanzais, they possess different customs from the latter, and to illustrate this declaration, he states as under :‑
"Thus the sons inherit per capita (pagwand), whereas among other Utmanzais of the District the general rule of inheritance is per stiipes (chundawand)."
In the compilation of the Tribal Custom in the Hazara District, the question of succession to a male owner having sons by different wives is dealt within Question 65. The question is addressed to the distinction between the succession to a deceased male proprietor of his brothers according as they were either associated brothers or uterine brothers or both, and the answer set out in the English version oil behalf of the Tarkhelis, is as under :‑
"The Tarkhelis say that in some cases uterine brothers only succeed to a deceased brother's property."
If the Urdu version which was prepared by the Extra Assistant Settlement Officer Pandit Pars Ram, the statement of custom does not suffer from vagueness but is clearly to the effect (Question 66 which, as appearing from Exh. D. 1, relates to the question of preference to uterine and associated brothers) that among Takhelis, a uterine brother is entitled to succeed to his uterine brother, and three instances are given in which succession to a deceased male proprietor who died sonless, went exclusively to his full brothers, the step brothers being excluded. That preference should be given to the vernacular Riwaj is clear from the following paragraph contained in the introduction by the Settlement Officer Mr. Watson to the English "General Code of the Tribal Custom in the Hazara District" :‑
"The answers were taken down in the vernacular by Pandit Pars Ram, the Extra Assistant Settlement Officer, and were subse quently attested by the Settlement Officer in the presence of representatives of the tribes concerned. The new vernacular Riwaj‑i‑Am is an elaborate document which contains not only the questions and answers aforesaid but also a note of the prece dents, whether supported by legal decisions or otherwise, adduced by the tribes in support of their statements or admitted by them to be exceptions to the general rule. The present volume contains (with some re‑arrangement) the gist of the replies made by the tribes and a few notes thereon, but for the precedents aforesaid and for more minute details the vernacular code should be consulted."
If the detailed expression of custom applying in this particular to Tarkhelis be that contained in the vernacular Riwaj‑i‑Am, then the statement in the English version relating to the same matter cannot correctly be regarded as the gist of the reply made by this tribe; Accuracy would, however, be achieved if in place of the word 'some underlined in the extract from the English Riwaj above, the word 'such' were substituted, and it seems to me that the discrepancy is due to an error in this particular. In any case, it is quite clear that the correct statement of the replies given by the Tarkhelis in the relevant respect is as set out in the vernacular Riwaj, of which Exh. D.1 is a copy. The statement in the Gazetteer appears to be based on the incorrect English version.
There is ample evidence on the record in the shape of mutations of names following upon the deaths of male owners leaving no sons, but brothers, some of the half‑blood and some of the whole blood, which places it beyond doubt that it is an invariable rule among Tarkhelis in the Hazara district that step brothers are excluded from the inheritance to a deceased male owner who leaves full brothers, the latter being alone entitled to succeed. Dilbar Khan (D. W. 5) of village Bafiad in Attock district owns land in both Attock and Hazara districts and he cites an instance from the family of one Isap Khan of Khalo, who died leaving land in Khalo as well as in village Am‑Cah, both in the Hazara district. The mutation in respect of the Khalo‑land is Exh. D. 7 and is supported by a pedigree table. Ayub Khan, son of Isap Khan, having died sonless, the inheritance went to his true brothers Sher Muhammad Khan, Khawaja Muhammad Khan, Hemun Khan and Yaqub Khan. There was also a step brother named Yusaf Khan, who actually appeared before the Revenue Officer and stated that he had no share in the property, and accordingly the land was mutated in the names of the full brothers. As regards the Am‑Cah land, however, no such distinction was made, the patwari reporting that Yusaf Khan, Sher Muhammad Khan, Khawaja Khan, Hemun Khan and Yaqub Khan were all true brothers of AYLil; Khan, and mutation was made in the names of all these perso.is. The Revenue Officer did not apparently exercise much care in relation to this mutation, for his order sets out that Khawaja Khan, (i. e., Khawaja Muhammad Khan, son of Isap Khan), had appeared and stated that Ayub Khans sons, namely, himself and his four brothers were the heirs in equal shares ; the correct description was brothers. However, ‑the fact that in the family of Isap Khan the rule of grouping of the whole blood as distinguished from the half‑blood in collateral succession prevails, is placed entirely beyond doubt by another mutation Exh. 14, which is supported by a full pedigree table and relates to the succession to Mst. Akbar Nishan, the widow of one ,Abdulla Khan, son of Zarif Khan, a brother of Isap Khan. Zarif Khan and Isap Khan were sons of Habib Khan, and they had three other brothers, namely, Latif Khan, Ghulam Said and Qaim Khan. Like Isap Khan, Latif Khan had to wives and descendants though both were in existence when Mst. Akbar Nishan, who had succeeded as widow to the estate of Abdulla Khan, who was the only son of Zarif Khan, died issueless. The estate was divided into eighty shares, and among these shares were five allotted separately to Khanzada Khan, Farid Khan and Aslam Khan, descendants of Latif Khan, by one son from his first wife, and ten to Adam Khan, Sher Ahmad and Sher Rehmam, descendants of two sons of Latif Khan by another wife. Again, the question of differentiation of the lines through the different wives came up in relation to Isap Khan's progeny and the distinction was clearly made, By one wife Isap Khan had one son Muhammad Yusaf Khan, whose sons Muhammad Amin, Muhammad Sadiq and Sher Afzal, were in existence and five shares were allotted to these persons. By his other wife, Isap Khan had five sons, and of these Sher Muhammad Khan, Huma yun Khan and Yaqub Khan were in existence Muhammad Ayub Khan having died sonless and the fifth Khawaja Muhammad Khan having left two sons; fifteen shares were separately allowed to these persons. The land was mutated according to the shares entered up by the patwari, and these shares were obviously based on grouping of collaterals, according to their descent through different mothers. Another clear instance of the application of the rule that step‑brothers were excluded in succession to a sonless male is afforded by Sher Bahadur (D. W. 6) of village Gunga Pind, who furnished the example of his own family. His father had four wives and by them eight sons. He himself had two full brothers, Sher Muhammad and Sher Ahmad, and on the extinction of their lines he succeeded to their properties to the exclusion of his step brothers. His father had made a will, but the details of this will were not stated. nor are they necessary for the purpose of this case ; it is sufficient that this Tarkheli Pathan who owns land in both Attock and Hazara districts furnishes an instance of exclusion of step brothers in a case of the present kind. Then, there is Kalandar Khan (D. W. 7) a Tarkheli of village Jallu in the Hazara district, who fursnishes the instance of his own step brother Suba Khan, upon whose death sonless, his full brothers succeeded, but not Kalandar Khan or his brothers ; the document in supported is Exh. D. 17, the mutation which took place upon the death of Mst. Amir Jan, widow of Suba Khan. The order of the Assistant Collector sanctioning the mutation shows that in the public assembly a lambardar had stated that according to custom among Tarkhelis only full brothers would succeeded to a male who died sonless. Sher Ahmad (D. W. 9) of village Jammu in the Hazara district, gave an instance from his own family viz., that when his full brother Sher Rehman died, he himself succeeded to the exclusion of his half brother Sultan Muhammad ; the document in support is the mutation Exh. D. 6. Finally, mention may be made of Abdullah Jan (D. W. 10), a Tarkheli of Qazipur in Hazara district, who mentioned an instance from the family of Hamid Khan of Qazipur ; the reievant document is Exh. D. 15, and .this shows that, when Mst. Bibi, the widow of one Umar Khan, had died leaving no son, the patwari entered up a mutation in the names of all the four brothers of Umar Khan, two of whom were full brothers and the other two half brothers. When the came up before the Revenue Officer, the full brothers raised a protest, contending that they were solely entitled to succeed to Umar Khan ; one of the half brothers Khan Bahadur Khan did not admit that this was correct, and the matter was postponed until the next tour, when the case came up in the presence of one of the full brothers and the other half brother Ali Bahadur Khan. Ali Bahadur Khan then declared that only the full brothers were entitled to inherit and the land might be mutated in their names and an order was made accord ingly. Instances of this kind could be multiplied from the very voluminous documentary evidence which has been placed upon the record but this is unnecessary, for it seems to me to be clear beyond doubt that among Tarkhelis in the Hazara district, succession to a collateral goes to the full blood in preference to the half‑blood. The ins tances I have cited above are only intended to clear up any doubt which might remain concerning the accuracy of the‑ statement of custom in Pandit Paras Ram's vernacular Riwaj‑i‑am, which may arise on account of the discrepant version in the English Code of Tribal Custom.
It being clear that the Tarkhelis hail from the Utmanzai territory in the North‑West Frontier Province, that the bulk of the tribe is in the Hazara district and that they only have a few villages in the Attock Tehsil, the presumption is strongly in favour of the tribe as a whole following the custom which the defehdants contend for in respect of all their property wherever it may be. A number of authorities was cited at the Bar to show that the custom followed by a tribe does not vary according to the locality where the property affected is situated. Of these I select for special mention the two following cases. "Ralia v. Wariam Singh" (94 P R 1913) is a case relating to a Hindu Jat of the Jullundur district, who had been granted land in the Hoshiarpur district, but had continued to reside in the Jullundur district. On a question arising as to the validity of an adoption made by this person, it was held that the custom which governed the matter was that of the jullundur district and not the different custom of the Hoshiarpur district. Rattigan J: in dealing with the question observed as follows :‑
"The ancestral home‑of the parties was in that (Jullundur) district and it was in that district that the adoptive father, Wazir Singh, lived and died. The land originally owned by him was in that district and when that land was compulsorily acquired by Govern ment and an equivalent given to him in the Hoshiarpur district, he was a young man of about 20‑25 years of age. It is not denied and is found as a fact by the lower Courts, that there are no Hindu Jars of the Rai got apart from the parties in Hoshiarpur district. In these circumstances why should we assume that the custom of the tribes of a different district must regulate the succession to this property ? The case might possibly have been different if Wazir Singh's father had migrated to Hoshiarpur district, or even if Wazir Singh had himself taken up his home in that district and lived and died there, In such a case it might have been argued, with more or less plausibility, that he had given up the customs prevailing in his tribe in the jullundur district and had adopted those of the tribes living round him in his new home. But he did nothing of the sort. He continued to live in his Jullundur home and merely paid intermittent visits to his property in the Hoshiarpur district. Custom is primarily trial, though the custom of a parti cular tribe may, and often does, differ in particular localities, But upon the facts of the case before us. We can find no ground for assuming that Wazir Singh adopted the customs of the tribes of a district in which he did not live, and with the people of which he was not, therefore: brought into daily contact."
Mst. Zenab Bibi v. Nasur Ullah Khan (A I R 1935 Lah. 370) is a Division Bench decision in a case relating to a family of Hundal Jats of the Sialkot district, who had shifted to Lyallpur. The Hundal Jats came originally from the United Provinces, and it was proved that they had re sided in the Amritsar district for only a generation, some four hundered years before the suit, after which they had moved to the Sialkot district and had lived there for about four hundered years before the family in question migrated to Lyallpur. It was contented that the Customary Law of the Amritsar district should be applied to them, but this con tention was overruled, by the Devision Bench, in view of the extreme shortness of this tribe's stay in that district, compared with the great length of their residence in the Sialkot district, and it was laid down .that the Sialkot custom must apply. .As regards the effect of the migration to L yallpur, it was observed :‑
"If a tribe migrates from their ancestral home to a new colony, the members of that tribe must be presumed to be governed by the Customary Law prevailing in‑the district of their origin."
Applying the principles of these two judgments, the case in respect f the Tarkheli Pathans who owned land in the Attock district but .themselves resided‑ in the Hazara district, would require to be decided on the basis of Hazara custom, unless it could be shown that the family in question was resident in the Attock district and in the course of time its customs had been altered so as to bring them into conformity with the customs of the other tribes inhabiting the Attock district. That Muhammad Khan whose estate is the subject‑matter of the present suit, lived and died at Kharbara in the Hazara district, is shown by the death certificate relating to him, vie, Exh. P. 4 ; this is extracted from the death register of Thana Ghazi and mentions that the residence of the deceased was Kharbara village where he died. That the founder of the family Najim Khan lived 'and died at Kharbara is proved by numerous statements e.g., the evidence of Mansur Khan (P. W. 8), Muhammad Akbar (P. W. 10) and the plaintiff Dilbar Khan (P. W. 13) himself. In fact, there is ample evidence on the record to show that the descendants of Najim Khan through Amir Khan and Hussain Khan, have through out lived in Kharbara village, and it is only the descendants through Ali Akbar Khan, who have property in the Attock district in a village named Mohri, who reside there. The history of the family appears with great clearness from three documents produced by them . defendants. These are Eah. D. 47, D. 48 and D. 49: Exh. D. 47 is a judgement of an Extra Assistant Commissioner, dated 7th December 1858 in a suit‑brought by Ali Akbar Khan for a one‑fourth share in the family lands situated in a villages Kharbara and Pipliala. The defendants were Mahandu Khan, son of Amir Khan and Aman Ullah Khan and Sher Khan, sons of Hussain Khan. Even at that early date, Hassan Khan was already dead. It is important to note that Ali Akbar Khan, who, as will presently appear, had been excluded altogether from the Pipliala and Kharbara properties as a result of a partition made by his father Najim Khan. whereby he himself received the entire, property in village Mohri in the Attock district, claimed not one‑third but one‑fourth of the proper ties in Pipliala and Kharbara. It being clear from the judgment, Ex. D. 47 that Hassan Khan was dead at the time and had left no sons. there were only three lines of descendants of Najim Khan in existence and All Akbar Khan as representative of one of these lines should have been entitled to a one‑third share. The case for the defendants is that when Hassan Khan died, they themselves, that is to say the lines of Amir Khan and Hussain Khan, inherited his share to the exclusion of Ali Akbar Khan, and it seems quite clear that by confining his claim to one‑fourth, Ali Akbar Khan was deliberately refraining from challenging this appropriation of Hassan Khan's share which was clearly to his detriment. It is as if he should have said, "As my father's son I am entitled to one‑fourth of the Kharbara and Pipliala properties and that is what I claim : I do not claim any share in the inheritence of Hassan Khan", and the only conclusion to be drawn from the renunciation of any claim to share in Hassan Khan's. estate is that Ali Akbar Khan recognised that the rule of the family was that in succession to a sonless male, his full brothers have preference as against his half brothers. As will be seen, in the document, Ex. D. 49, which is a statement made by Ali Akbar Khan in a suit…
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