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 Mahmad 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 immovable property. The widow subsequently gave the property to the daughters by a registered deed of gift dated 8 September 1934. The respondents claiming to be his collaterals instituted a suit against the widow (defendant 1) and the daughters (defendants 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 remarriage 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." 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.

(2.) The plaintiffs appealed to the High Court at Lahore and that Court in a judgment remarkable for its brevity, allowed the appeal. The material part of the High Court judgment begins with the statement that it is common ground that under the customary law which governs all the Musalman tribes of the Shahpur-district married daughters do not inherit their father's estate in any circumstances. Their Lordships have a difficulty in understanding this statement, because the question stated by the High Court as the "common ground" was precisely the issue in controversy in the case. The judgment bears in several places, indications that the High Court, instead of examining the disputed question on the facts and the evidence in the case carefully considered in the subordinate Judge's judgment, proceeded entirely on the authority of the questions and answers contained in a Manual compiled by Mr. (afterwards Sir) James Wilson called a "General Code of the Tribal Customs in the Shahpur District of the Punjab" published in 1896. (It may be convenient to refer hereafter to this publication as Wilson's Manual.) Basing their views on certain questions and answers in Wilson's Manual the learned Judges of the High Court held that there was a presumption against inheritance by the daughters and that this presumption had not been rebutted. They therefore allowed the appeal. The judgment contains no detailed criticism of the oral and documentary evidence of custom adduced by the parties all of which was ignored with the brief observation that in a Full Bench decision of the Punjab High Court, 18 Lah 594=39 PLR 3491 it had been stated that recent judicial decisions are not sufficient to abrogate the custom so clearly laid down in Wilson's Manual of Customary Law. Their Lordships have consequently derived less assistance than they would have expected from the High Court judgment in elucidating the important question in controversy in this appeal. Before examining the value to be attached to the statements in Wilson's Manual, and the effect of the Full Bench decision, it will be useful to state what the true legal position of the parties was as it emerged from the pleadings. The basis of the plaintiff's claim was that the property in suit was ancestral so far as their rights were concerned. This was denied by the defendants. The onus was therefore on the plaintiffs to prove that the property was ancestral. The subordinate Judge held that the onus had not been discharged. The learned Judges of the High Court did not consider this question, as the statements in Wilson's Manual on which they relied made no distinction between ancestral and non-ancestral property, and stated generally that married daughters "in no case" inherited their father's estate or "any share in it." Before this Board, the respondents did not appear in support of the High Court judgment. Their Lordships have therefore to decide the question on the evidence which is available in this case, and, on reviewing it, they agree with the finding of the subordinate Judge that the land was not proved to be ancestral. In more than one decision of the Lahore High Court (see, for instance, 8 Lah 58423 at pp. 589-90 and 13 Lah 4043 at p. 406) it has been laid down that to establish the ancestral character of land it is not sufficient to show that the name of the common ancestor from whom the parties are descended was mentioned in the revenue pedigree. It should also be proved that the descendants of that common ancestor held the land in ancestral shares and that the Land occupied, at the time of the dispute, by the proprietors thereof had devolved upon them by inheritance. It is now settled law in the Punjab that the mere mention of the name of a person in the pedigree table as the common ancestor is no proof of the fact that every piece of land held by his descendants (howsoever low) was originally held by and descended from him in succession from generation to generation. As is explained by Tek Chand J. in 8 Lah 5842 at p. 589, a genealogical tree of this kind it prepared merely to indicate the relationship of the proprietors in a particular village and is in no sense intended to be a record of the acquisition of every bit of land held by all persons whose names appear in it. It is no doubt presumptive proof of their kinship, but not of the nature of the property owned by them. For that purpose one has to look to the history of the acquisition of the village.

(3.) The extracts from the settlement records relating to the land in dispute, which are a part of the evidence in this case, justify the finding of the subordinate Judge. 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 para. 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.