ALI ASGHAR Vs. COLLECTOR OF BULANDSHAHR

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought by the appellant for possession of a half share of the village Wair Badshahpur in the district of Bulandshahr, which has been granted to his father Asghar Ali, by the British Government for services rendered during the Mutiny of 1857. Asghar Ali was originally a resident of the town of Palwal in the Gurgaon district, now appertaining to the Punjab. He held various appointments, and finally became Tahsildar of Azamgarh, when he rendered the good service for which he obtained the village of Wair Badshahpur. He died in 1876, leaving him surviving two widows, Moti Begam and Sakina Begam, a son, Ali Asghar, the present plaintiff, and two daughters, Sughra Begam and Saira Begam. The children were the issue of his marriage with Moti Begam. At the time of his death the son Ali Asghar was very young. Saira Begam is dead and her heirs are defendants to the suit, so also is Sughra Begam. In 1892, the widows applied to the Government to take over the estate in the Bulandshahr district under the management of the Court of Wards. An inquiry was held, and it was reported that the property belonged to the two widows, the son and the daughters of Asghar Ali, they being his heirs under the Muhammadan law. The Government declared the two widows and Sughra Begam, who were adults, to be disqualified proprietors and the Board of Revenue ordered that the Court of Wards should assume charge of the estate as the property of all the heirs of Asghar Ali (see p. 78R).

(2.) In 1897, Ali Asghar attained majority, but it was not until 1910 that one-half of the property was released in his favour. The remaining half is still under the management of the Court of Wards on behalf of Sughra Begam and the heirs of Saira Begam. For this reason the Court of Wards has been made a defendant to the suit. The widows of Asghar Ali being dead, one-half of the property devolved, under the Muhammadan law, on Ali Asghar, the son, and the other half on his sisters or their heirs. It is this half share which is claimed by the plaintiff in this suit and his claim is founded on the allegation, as contained in the 7th paragraph of the plaint, that "according to the personal law and the custom prevailing in Palwal, the residence of the plaintiff and his ancestors, and in the district of Gurgaon...and the entire province of Punjab, the daughters and their issue do not in any case get a share in the paternal estate in the presence of the son."

(3.) A contention was raised that, the alleged custom being contrary to Muhammadan law, which governs inheritance among Muhammadans, no evidence could be given to prove it. This contention is supported by the decision of a Full Bench of this Court in Surmust Khan v. Kadir Dad Khan Agra Full Bench Bulings (1860), which was followed in Jammya v. Diwan (1906) I.L.R. 23 All. 20. p. 38 and Ismail Khan v. Iiniiaz-un-nissa (1907) 4 A.L.J. 792. In the case last mentioned an appeal was preferred to the Privy Council and their Lordships set aside the decision of this Court and remanded the case with directions to take evidence in proof of the alleged custom. The judgement of their Lordships is reported in 17 C. W. N., page 97. We must therefore take it that in the opinion of their Lordships evidence is admissible to prove the alleged custom, although it is at variance with Muhammadan law. The trial court accordingly took evidence, but it came to the conclusion that the custom set up by the plaintiff was not proved and dismissed the suit. Upon appeal to this Court the learned Judges who heard the appeal differed in opinion on the question of custom, the learned Chief Justice holding that the custom was proved whilst the view of Mr. Justice Rafiq was in accordance with that of the lower come. Hence this appeal under the Letters Patent.