MUSAMMAT SUBHANI Vs. NAWAB

JUDGEMENT

(1.) THE question in this appeal is whether, under the customary law applicable to the members of the Tulla clan resident at mauza Mahamad Tulla in the tahsil and district of Shahpur in the Punjab, collaterals of the tenth degree of a deceased landowner can take precedence over his married daughters in succession to his non-ancestral estate. THE question arose as follows:- One Sahlion, a Mahomedan landowner of the Tulla clan, resident as stated above, died, leaving him surviving a widow) and two married daughters (appellants before the Board) and some immoveable property. THE widow subsequently gave the property to the daughters by a registered deed of gift dated September 8, 1934. THE respondents, claiming to be his collaterals, instituted a suit against the widow (defendant No.1) and the daughters (defendants Nos. 2 and 3) asserting that Sahlion's property WAS ancestral as regards the plaintiffs and that the widow had no right to make the gift, which should be declared void and ineffectual as against the plaintiff's rights and invalid after the death or re-marriage of the widow. THE widow and daughters denied the claim on, the ground that the property was not ancestral and that the plaintiffs had no locus, standi to sue, because daughters succeeded to the non-ancestral property as against collaterals," especially when the plaintiffs are collaterals of the tenth degree.

(2.) THE Subordinate Judge who tried the suit dismissed it, holding that the plaintiffs were Sahlion's collaterals of the tenth degree, that the lands in the suit were not ancestral and that, according to the general rule of custom prevailing among the Mahomedan tribes of the district of Shahpur which applied to the parties, the daughters were not ousted by the plaintiffs with regard) to succession to the non-ancestral property of their father. In arriving at his decision, the learned Judge relied on the oral and documentary evidence adduced by the parties and upon certain rulings of the Punjab Courts.

(3.) BEFORE examining the questions and answers in Wilson's Manual, it will be useful to ascertain the customary rights of daughters against collaterals with reference to ancestral and non-ancestral land as they are stated in Sir W.H. Rattigan's Digest (of Civil law for the Punjab, chiefly based on customary law, 1935 edition), a book of unquestioned authority in the Punjab. In paragraph 23 (p. 79) it is stated that (1) a daughter only succeeds to the ancestral landed property of her father, if an agriculturist, in default (a) of heirs mentioned in the preceding paragraph (viz., male lineal descendants, a widow or mother), or (b) of near male collaterals, provided that a married daughter sometimes excludes near male relatives, especially amongst Mahomedan tribes, under circumstances specified in the: paragraph (not material to the present issue); (2) but in regard to the acquired property of her father the daughter is preferred to collaterals. It is further stated (p. 92) "that the general custom of the province (the Punjab) is that a daughter excludes collaterals in succession to self-acquired property of her father," and "the initial onus therefore is on the collaterals to show that the general custom in favour of the daughter's, succession to the self-acquired property of her father has been varied by a special custom excluding the daughters." This being the legal position of the parties, the question arises whether, the property being non-ancestral, the plaintiffs have discharged the onus by proving the existence of a special custom excluding daughters. They endeavoured to do this in two ways, (1) by relying on the authority of Wilson's Manual, and (2) by producing oral evidence at the trial.