MOHAMMAD KHALIL Vs. MOHAMMAD BAKHSH

JUDGEMENT

(1.) The only point for decision in the present case is whether it is open to a son- lees Arain of the Jullundur Tahsil to make a testamentary disposition of his ancestral property in favour of his legal heirs. It appears that on 29 August 1941, one Imam Din, an Arain of the said Tahsil executed a will by which he bequeathed his ancestral property to his brother Mohammad Bakhsh. Imam Din died on 24 October 1941, and the property left by him was mutated in accordance with the wishes of the testator. On 20 October 1943, Nizam Din, another brother of the testator, brought the present suit for possession of half the property belonging to Imam Din on the ground that the latter must be deemed to have died intestate as the ancestral property of an Arain who is governed by the customary law of the Jullundur District is inalienable by will. The trial Court held, and held as it seems to me on ample evidence, that the property was ancestral and that will was duly executed. It held further that as a sonless Aram has full power under custom to transfer his ancestral property by way of gift, the said power of transfer must be deemed to include the power to make a transfer by means of a will. As a result of these findings, the plaintiff's suit was dismissed. The District Judge endorsed the views of the trial Court in regard to the character of the property and the due execution of the will but was unable to bold that the power of making an alienation inter vivos carries with it the corresponding power of making an alienation by will. The appeal was accordingly allowed and the plaintiffs suit decreed. In second appeal, a learned Single Judge of the High Court at Lahore upheld the view taken by the trial Court and dismissed the plaintiffs suit. The plaintiffs are dissatisfied with the order and have preferred Letters Patent Appeal.

(2.) As pointed out by Sir Henry Rattigan in his admirable treatise on Customary Law the power of testation is everywhere followed by conveyance of property inter vivos. As long ago as the year 1812, Pandits of the Sadr Diwani Adalat declared in Sri Narain V/s. Bhya Jha 2 S.B.A. 23, that the same rule applies to be quests as to gifts every person who has authority, while in health, to transfer property to another, possesses the same authority of bequeathing it. The Chief Court at Lahore has followed this principle in a cumber of decided cases and has held that where the power of gift is shown the power of testation is presumed. (Vide Mt. Bano V/s. Fateh Khan and Anr. 48 P.R. 1903. This presumption, however, is a rebuttable one and a number of cases have jbeen cited at page 262 of Rattigan's Digest in which this presumption was rebutted.

(3.) The customs by which the parties are regulated are embodied in the customary law of the Jullundur District as prepared by Rai Bahadur Hotu Singh in the year 1931. This compilation contains the following questions and answers: Question 79--Can a proprietor make by word of mouth, or in writing, a disposition of his property to take effect after his death? Answer.-All the tribes of the Nakodar and Phillaur Tahsils state that a man can dispose of his self-acquired property by a written will but he cannot so dispose of ancestral property. The Sayyada, Sheikhs, Mughale, Pathans and miscellaneous Muhammadans of the Na-wanshahr Tahsil also say so; the other tribes of this Tahsil say that the custom of making a will does not exist among them. The Pathans, Sayyads and Sheikhs of the Jullundur Tahsil state that a man with full rights may dispose of his property by a written deed, while the other tribes of this Tahsil say that they have no right to make a written or oral will. Question 84 (A).--State the facts necessary to constitute valid gifts 1 Can a gift be conditional or implied? Is delivery of possession essential? Must the gift be made in writing? Answer.-The gift must be made in writing exoept in the Nakodar Tahsil and the donee must be put in actual possession. It is also necessary that the property should be self-acquired. A gift can be conditional or implied in the Nawan-shahr Tahsil only. The Arains and Awans of the Jullundur Tahsil say that in the absence of a male issue they can alienate by yift the whole or part of their property in favour of their relations without the consent of their legal heirs. The answers to the questions reproduced above make it quite clear that while it is open to a sonless Arain of the Jullundur Tahsil to alienate inter vivos the whole or a part of his ancestral property in favour of his relations without the consent of the legal heirs, it is not open to him to make a testamentary disposition even in respect of his non-ancestral property. The question thus arises whether the entries in the riwaj-i-am of the Jullundur District have rebutted the presumption that the power of testation is co-extensive with the power of gift. In Qamar-ud-Din and Ors. V/s. Mt. Fateh Bano and Ors. A.I.R. 1944 Lah. 72, Mahajan, J. held that if the riwaj-i-am on which reliance is placed is a reliable and trustworthy document, has been carefully prepared, does not contain within its four corners contradictory statements of custom, and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be, in those circumstances the riwaj-i-am would be a presumptive piece of evidence in proof of the special custom set up therein. If, on the other hand, the riwaj-i-am is not a document of the kind indicated above, then such a riwaj-i-am would have no value at all as a presumptive piece of evidence. Unfortunately, the riwaj-i-am of the Jullundur District cannot be regarded as a reliable or trustworthy document, for, it has been held in a number of decided cases such as Zahar Htissain V/s. Ghulam Fatima A.I.R. 1927 Lah. 261, Ghulam Mahommad V/s. Balli A.I.R. 1931 Lah. 641 and Mt. Fatima V/s. Sharaf Din A.I.R. 1946 Lah. 426 that it has not been prepared with care and attention. It seems to me, therefore, that it is impossible to aocept the statements appearing therein at their face value. In Mt. Fatima V/s. Sharaf Din and Anr. A.I.R. 1946 Lah. 426, a question arose whether a sonless Arain of the Nakodar Tahsil had power to execute a will bequeathing bis ancestral property to his daughter. The learned Judges came to the conclusion that the statements as to custom recorded in the answer to question 79 that a man cannot dispose of his ancestral property by will and in the answer to question 90-A that he cannot make a gift of his ancestral property to his daughter without the consent of sons and near kindred are not correct. They held further that according to custom an Arain father has full power to make a disposition of his ancestral property in favour of his daughters both by way of gift and will. At page 428 the learned Judges observed as follows: Indeed, in Jullundur District as early as 1877 powers of agriculturists in the matter of making wills were held to be co-extensive with their powers to make gifts inter vivos vide Pertab Singh V/s. Bishen Singh 81 P.R. 1877. In Zawar Hussan V/s. Ghulam Fatima A.I.R. 1927 Lah. 261, in a ease relating to Subzawari Sayad of village Maw in Phillaur Tahsil, after referring to questions and answers 79 and 90 (A), a custom favouring the power to make a will of ancestral property was held proved on the strength of instance of gifts of similar property. At page 152 the argument that the instances oited were only cases of gifts inter vivos and could not, therefore, be regarded as sufficient evidence of a custom regarding the power to make a will was repelled on the authority of Mt. Bano V/s. Fateh Khan 48 P.R. 1903. The learned Counsel for the respondents was unable to draw our attention to any decided case in whioh a distinction was made between the powers of a male proprietor in Jullundur District to dispose of his ancestral property by means of a will and his powers to dispose of similar property by means of a gift inter vivos, I am, therefore, of the opinion that the ordinary presumption mentioned in Mt. Bano V/s. Fateh Khan 48 P.R. 1903 fully applies to this case and that if a custom permitting a father to make a gift inter vivos of ancestral property in favour of his daughter is found to exist amongst the Arain of the district, it must follow as a necessary corollary that the father has a similar power to dispose of his ancestral property in favour of the daughter by means of a will.