Judgement

Appeal (No. 74 of 1924) from a decree of the High Court (May 25, 1922) reversing in part a decree of the Subordinate Judge of the Attock District at Campbellpur.

The parties were Mahomedans belonging to one of the agricultural tribes called the Khattar. The suit was brought by the respondent claiming as sister of Ali Waris Khan, who died in 1904, to succeed to the property which had descended to him from their father Mohamed Khan upon the death of the last survivor of the latters two widows. The plaintiff-respondent claimed under Mahomedan law, and while admitting that in the tribe there was a custom by which a sister or daughter was excluded from succession in favour of collaterals, alleged that that custom did not apply to self-acquired property.

Both Courts in India found that part of the property claimed was self-acquired property. The Subordinate Judge dismissed the suit, but the High Court made a decree in the plaintiffs favour as to that portion of the property. The learned judges (Raoof and Qadir JJ.) were of opinion that the custom as alleged by the plaintiff was established by instances proved in evidence, although there was no certain evidence of mutation in accordance with the instances, and by statements made by witnesses in a previous suit relating to the tribe in question.

1925. July 2. De Gruyther K.C. and E. B. Raikes for the appellants.

Abdul Majid for the respondent.

July 28. The judgment of their Lordships was delivered by

MR. AMEER ALI This appeal arises out of a suit brought by the respondent Musammat Channi Bibi in the Court of the District Judge at Attock, for the establishment of her title in respect of certain lands which she claimed by right of succession to her deceased brother Ali Waris Khan.

The parties both trace their descent from one Zulfikar Khan through his son Mahmud Khan. Mahmud had two wives, named respectively Sataro and Gohar Bano. By Sataro he had three sons, respectively named Ahmad Khan, Amir Khan and Mohamed Khan. By Gohar Bano he had also three sons named Khan Mulak, Baland Khan and Hidaya Khan.

It is in evidence that Mohamed Khan died in 1902, leaving him surviving two widows Musammat Ilahi Khanam and Musammat Nur Jehan. The latter died in 1905. By Ilahi Khanam, who lived until 1915, Mohamed Khan had a son, Ali Waris, and a daughter, the plaintiff in this case. Ali Waris died in 1904; and the litigation relates to his inheritance.

The defendants are the descendants of the brothers and half-brothers of Mohamed Khan.

The parties belong to one of the agricultural tribes of the Punjab, called the Khattar.

The plaintiff, whilst admitting the existence in her tribe of a custom under which a daughter or a sister is excluded in favour of collaterals from inheritance in respect of "ancestral" property, denies its application to "self-acquired property."

She states that there is no special or general custom prevailing in the Khattar tribe under which collaterals like the defendants deprive a daughter or a sister of the right of succession to property acquired by the father or brother.

The defendants plead that by the custom prevailing in the tribe or in the family, females are excluded from succession irrespective of the character of the property whether it was ancestral or self-acquired. The parties went to trial on that issue.

There are two properties in dispute, one called Surag Salar, the other Kharala. The senior Subordinate Judge of Attock, before whom the case came for trial, found as a fact that Surag Salar was "self-acquired property" within the meaning of the custom alleged by the plaintiff, and that Kharala, save and except 416 kanals of land, was "ancestral." But as regards the plaintiffs claim he held that she had failed for absence of specific instances to establish satisfactorily the custom under which she claimed her brothers inheritance. He accordingly dismissed her suit in respect of both the properties.

The High Court of Lahore, on the plaintiffs appeal, have giv