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Petitioner: MAJID VS Respondent: GUL MUHAMMAD
P L D 1949 Lahore 152
P L D 1949 Lahore 152
(SINGLE BENCH)
Before Cornelius, J
MAJID‑Appellant
versus
GUL MUHAMMAD and others‑Respondents
Second Appeal No, 208 of 1948, decided on 16th June, 1949, from the decree of the District Judge, Attock at Campbellpur,
(a) Custom (Punjab)‑Gifts of land in the female line among Awans of Tallagang Tehsil of Campbellpur District‑Opposed to general feeling of the tribes.
The general feeling of the tribes is undoubtedly opposed to aliena tions by gift of part of his inheritance by a male proprietor during his lifetime without the consent of his sons, and gifts of land in the female line are not popular and have not the sanction of custom.
(b) Custom (Punjab)‑Tallagang Tehsil of Campbellpur District‑Father cannot disinherit any of his sons or rightful heirs.
By the Riwaj‑i‑am of the District a father cannot disinherit any of his sons or rightful heir, and these words are wide enough to prohibit the disinheriting of a single son.
25 Ind. Cas. 715; 8 P R 1906; 88 P R 1911 distinguished.
Muhammad Sharif for Appellant.
Shameen Hussain Qadri for Respondents.
CORNELIUS, J ‑The suit in the Court below was brought by Gul Muhammad and Kehar Muhammad, and related to about 130 kanals of land situated in village Mirjan, Tahsil Tallagang, District Attock. This land belonged to one Hayat, an Awan proprietor, who had a son Jowaya, and a daughter Mst. Gullan. Jowaya is admittedly of unsound mind. Apparently for this reason, Hayat gifted his property to his daughter Mst. Gullan. The mutation of gift was sanctioned in 1938. Hayat died about a year or two later. Mst. Gullan sold a part of the property to one Majid who already held it in mortgage with possession from her father Hayat. On the 29th April 1943, five years after the gift, the plaintiffs who are sons of Nek Muhammad, a brother of the deceased Hayat, brought the suit out of which this appeal arises, for possession of the land. in the right of collaterals; in the alternative, they claimed that if the right of possession belonged to Jowaya, then they should be granted a declaration that the gift to Mst. Gullan would not affect their reversionary rights. The suit was not contested by Mst. Gullan. Jowaya through his guardian supported the plaintiffs. The alience Majid contested the suit. It was held by the trial Court that the land was ancestral qua the plaintiffs who were competent to sue not for posses sion, but for a declaration saving their reversionary interests, that the gift to Mst. Gullan in fact disinherited the son Jowaya, and this was contrary to the recorded custom of the Attock District, and finally, that Majid was mortgagee with possession of that land, sold to him by Mst. Gullan, and would, therefore; be entitled to remain in possession of that land until it was lawfully redeemed. The plaintiffs were granted a decree for a declaration saving their reversionary interests. Majid appealed to the District judge without success and has now come up to this Court in second appeal.
The latest compilation of the Attock District Riwaj‑i‑am was made] at the Settlement of 1931. Question 39 of the recorded riwaj‑i‑am relates to the power of a male proprietor having sons, to make a gift of part of his inheritance during his lifetime, and the answer recorded is that the general feeling of the tribes is undoubtedly opposed to such alienations, without the consent of the sons, that gifts of law in the female line were not popular and that they did not have the sanction of custom. Question 48 relates to the power of a male proprietor to disinherit a son. The question is posed in the following terms :‑
" Can a father deprive one of his sons or near kindered of his share of the inheritance and divide it among the rest ?"
"The answer is as follows :‑
" The answers of the tribes would on the whole seem to favour the view that a father cannot disinherit any of his sons or any of l the rightful heirs to his property ".
The answers to both questions are supplemented by instances, and as a general rule, those instances in which there was contest are in favour of the custom as recorded in the answers. There are of course numerous cases in which there was no contest, and in a few cases, after contest, the person entitled under the recorded custom did not succeed but on grounds irrelevant to that custom. Learned Counsel for the appellant attempted to rely on authority for the proposition that in the Tallagang Tahsil of the Compbellpur District, Awans enjoy unrestricted powers of alienation of ancestral property. These authorities, however, are generally confined to sonless proprietors, which is not the case here. They may be dealt with very briefly.
Sher Muhammad v. Ali Muhammad (25 I C 715) is a decision of a learned Single Judge of the Punjab Chief Court, and relates to the sale of certain land by two Awan proprietors, a man and a woman. The sale was contested after four years by collaterals of the vendors four degrees removed. It had been held by the lower appellate Court that necessity for the sale was not proved and that Awans of Tahsil Tallagang did not possess unlimited powers of alienations to strangers. The learned Divisional judge declared that the sale was binding on the plaintiff to the extent of Rs. 140 only. The learned Single judge was not prepared to say that the decision of the Divisional judge was wrong and accordingly dismissed the appeal, and from this it might be con cluded that the learned Divisional Judge's view that the powers of alienation among Tallagang Awans were restricted had been upheld but in the body of the judgment the following observations appear:
"And in regard to Awan custom in the Tallagang Tahsil it appears to me dangerous to attempt to lay down any invariable rule. * * * * * * * * * * * *
The general tendency has, no doubt, been to recognise very extensive powers of alienation among Awans, but when it comes to a question of alienation to strangers the discussion has generally turned on the much clearer point of the rights of daughters and their sons. I cannot also overlook the fact that in this case one of the vendors has only her widow's interest in half the land sold, and it would be going beyond the published rulings to hold that she has an unrestricted right of alienation"‑
It is on the basis of this paragraph that the report has been furnished with a headnote of a misleading character, reading as under :‑
" The Awans of Tahsil Tallagang in the Attock District have extensive powers of alienating their ancestral immovable property to their relatives, as daughters, sisters and their sons, but they have limited powers like other agriculturists of alienation in favour of a stranger, whether an Awan or not ."
It may be that by some process of logic, it is possible to deduce the substance of the headnote from the intermediate remark of the learned Single judge, but the case was not one of alienation to a relative, and the conclusion of the learned judge is only to be regarded as a precedent in relation to alienation to a stranger, which was the position in that case.
Khudayar v. Fhatteh (8 P R 1906) is a Division Bench case decided by the Punjab Chief Court, in which the judgment was written by Rattigan, J. There a gift had been made by an Awan of Tallaganb Tahsil in favour of his daughter's sons, and had been challenged by his nephews. There was a son in existence, who had consented to the gift The suit had been dismissed by both the lower Courts and on appeal it was held by the Division Bench that this was correct. A number of precedent cases as well as non‑judicial instances were examined in the judgment, and at the conclusion the learned Judges remarked as under :‑
". . . we do not hesitate to say that the preponderance of authority is in favour of the validity of gifts when the donees are either daughters or their issue and when the persons challenging the validity of such gifts are not sons ".
This would appear to support the case for the appellant, but not to the full extent necessary, for, firstly it does not appear that the son in the precedent case was afflicted with any disability as in the present case, so that he was unable to give a valid consent, and secondly, it does not appear that there was any disinheriting in the sense that the estate was gifted away from the son. On the contrary, as the son in the precedent case did not object to the gift to his sister's son, it may be presumed that he was himself satisfied with what he had got.
The third case cited is Khuda Bakhsh v. Waham Ali (88 P R 1911;, which was a decision by a learned Single judge of the Punjab Chief Court. It lays down that a male proprietor of Tallagang has power to alienate his ancestral property in the presence of a son. That again proceed on distinguishable facts ; it is not shown that by the alienation the son was deprived of the entire inheritance or that there was any such intention behind the alienation. Finally, reliance was placed by learned Counsel on an admission by the plaintiff Gul Muhammad, that his own wife had received a gift of land from her father as part of his dowry, and that she had brothers living. That again involves no dis inheriting, and in the present case, the main stress is on the circums tances that on account of Jowaya's, disability, his father left all his property to his daughter Mst. Gullan. Learned Counsel attempted to argue that question and answer 48 in the rivaj ‑i‑am of the Attock District, must be cotlfined in their effect to a case‑ where a male proprietor is guilty of discrimination between his sons or, other heirs in regard to his inheri tance. He urges that neither the question nor the answer can apply to the case of a father disinheriting his only son. I find in the answer the words:
"The answer of the tribes would on the whole seem to favour the! view that a father cannot disinherit any of his sons . . . ."
and in my opinion, these words are wide enough to prohibit the disin heriting of a single son. If, on the other hand, the interpretation relied upon by learned Counsel for the appellant be accepted the position might be that unrestrained !powers of alienation would be available in the Tallagang Tahsil of Attock District not only to sonless proprietors but also to male proprietors who had only one son. It is true that the mere fact of absurd, results accruing by the application of logic to a recorded custom is not a sufficient ground for declining to follow that custom, but in the present case I am persuaded that the recorded custom does grant protection to a single son against being disinherited by his father.
Ground No. 4 of the grounds of appeal refers to the mortgage in favour of Majid, and prays that it should be held to bind the respon dents. It is unnecessary to save the mortgage by express words, for its existence is admitted and it runs with the land, so that it cannot be avoided except by the method of redemption.
I accordingly dismiss this appeal with costs.
As a difficult question of custom is involved, I grant a certificate for an appeal under the Letters Patent.
A. H. Appeal dismissed.