ABDUL HAKIM KHAN Vs. ABDUL MAJID KHAN

JUDGEMENT

(1.) 1. The plaintiff-appellants are the sons of Abdul Rahim Khan. Abdul Rahim Khan was the son of Ismail Khan, but died before his father. Ismal Khan and his brother Mohammad, Ahmad Khan were sons of Imam Khan. When Ismail Khan died in 1917 he left, a widow, Mt. Ghasitibi, three grandsons, the plaintiffs, and three granddaughters. Ghasitibi put forward a claim to unpaid dower money and asked that the village Ari should be mutated in her name. The plaintiffs claimed that the village should be mutated in their names alleging that under a local custom a widow did not succeed to any part of her husband's property. Subsequently on 30th July 1917 the plaintiffs asked for mutation to the extent of fourteen annas in the village adding that possession by the widow of the remaining two annas would enure for their benefit: vide Ex. P-17. Three weeks later Mt. Ghasitibi admitted that there was no unpaid dower and stated that she was entitled under the Mahomedan law to a two annas share in the property left by her husband: she had no objection to her name being recorded as two annas sharer and the plaintiffs' names as fourteen annas sharers: vide Ex. P-16. On 22nd August 1917 the plaintiffs stated that they agreed to mutation in the manner to which Mt. Ghasitibi had agreed: vide Ex. D-10. Two days later an order was passed to the effect that the plaintiffs agreed to Mt. Ghasitibi's request, that there should be mutation in her favour to the extent of two annas and that mutation should take place in favour of the plaintiffs to the extent of fourteen annas and in favour of Mt. Ghasitibi to the extent of two annas. Mt. Ghasitibi remained in possession of the two annas shares until her death in 1926: possession of the share with cultivated land and standing crops was disputed, and the crops were sold by a Court under the provisions of the Succession Act.

(2.) IN the present suit the plaintiffs have claimed the disputed immovable property together with the sale proceeds of the standing crops. The trial Judge has dismissed the claim holding that the alleged custom was not proved to exist and that in any case the two annas share has been given to Mt. Ghasitibi in consequence of a family settlement of a disputed claim. The plaintiffs appeal. The first ground of appeal attacks the finding that Mt. Ghasitibi received the two annas share in consequence of a family settlement. The learned trial Judge has stated that the oral evidence is useless and what was settled at the time of mutation must be gathered from the documents. Mt. Ghasitibi gave up her claim to the dower in the clearest terms and the plaintiffs then agreed to her proposal regarding mutation. There was no need for the plaintiffs to give up the rights which they had asserted in the two annas share. Mt. Ghasitibi was claiming only two annas and if she obtained possession of two annas she gave up nothing. All that had to be settled in the mutation case was the right to possession and the plaintiffs may well have thought that their grandmother would not live long and that the question of their rights after her death could be agitated later. I find nothing on the record which indicates that the plaintiffs made any admission with regard to the character of Mt. Ghasitibi's possession of the two annas share.

(3.) I remark that the theory adopted in the previous judgments that the custom was due to the influence of Hindu practice does not appear to me to be established. The desire that an estate should be kept in the family, i.e., that it should descend to male heirs, is surely universal. Female members of the family who became entitled to fractional shares of the estate would certainly in many cases pay deference to the desire of the head of the family that the estate should remain in the family. It is natural, and in many cases necessary, that a person who has become entitled to a small fractional share of the estate should come to some arrangement with the owners of other shares instead of attempting to break up the estate, and Mahomedan females may not desire to attempt to manage an estate. I should then expect that apart from any tendency to conform to the practice of Hindu neighbours the female members of a Mahomedan family would be satisfied with proper arrangements for their maintenance and would not insist on their unquestioned rights. Their Lordships of the Privy Council in Abdul Huissain Khan v. Sona Dero AIR 1917 PC 181 consider that in many parts of the country it is unusual for Mahomedan ladies to insist on their unquestioned rights. The practice then which, in my opinion, was to be expected does exist. It follows that unless it is extremely rare for Mahomedan widows of a certain community to make any claim in the presence of sons, it cannot be inferred that a custom has grown up in virtue of which the sons exclude them from inheritance. Assuming that such a custom has grown up, it will still be necessary to show that it is an almost universal practice for the widows to make no claim in the presence of' some other male relations of their husbands before holding that in consequence of a local custom such other male relations exclude the widows from succession. The judgments, copies of which have been filed in this case, do not, in my opinion, show that the latter practice is almost universal, or even very common.