AHMAD KHAN vs CHANNI BIBI - 1925 Supreme(SC) 52

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1925 Supreme(SC) 52

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT FINLAY, SIR JOHN EDGE, MR. AMEER ALI, AND MR. JUSTICE DUFF.
AHMAD KHAN - Appellant
Versus
CHANNI BIBI - Respondents
On appeal from the High Court at Lahore.
Decided On : July. 28. 1925.

Important Points

Customary law excluding females from inheritance in certain agricultural tribes applies only to ancestral property, not self-acquired property. Such customs can be proved by general evidence from tribe or family members, even without specific documented instances of mutation.

Subject

Family Law - Succession and Inheritance

Act Referred

Indian Evidence Act, 1872

Headnote

(A) Mahomedan Law - Customary Law - Succession - Exclusion of females from inheritance - Distinction between ancestral and self-acquired property - Whether a custom excluding daughters or sisters from inheritance in favour of collaterals applies to self-acquired property.

(B) Evidence - Proof of custom - A custom of a tribe or family may be proved by general evidence from members who would naturally be cognisant of its existence and exercise without controversy; the absence of specific instances or evidence of mutation does not necessarily invalidate such proof.

Facts of the case:
A sister claimed succession to the property of her deceased brother. While a custom existed in the agricultural tribe to exclude daughters or sisters from inheriting ancestral property in favour of collaterals, it was contended that this custom did not apply to self-acquired property. One of the disputed properties was found to have been acquired through a settlement process after the family had ousted another party, rather than being handed down from ancestors.

Findings of Court:
The court found that the property acquired through the settlement process constituted self-acquired property. It further held that the custom excluding females from inheritance did not extend to self-acquired property and that the evidence provided by the respondent was sufficient to establish this.

Issues: Whether the disputed property was ancestral or self-acquired; whether the custom of excluding females from inheritance applied to self-acquired property; and whether general evidence is sufficient to prove such a custom in the absence of specific instances.

Ratio Decidendi: Property obtained through a settlement process based on possession and equitable division, rather than ancestral descent, is self-acquired. A customary law may be established through the testimony of tribe or family members who are aware of its practice, and the lack of specific documented instances does not preclude the court from accepting such general evidence.

Result: Appeal dismissed.

Legal Category Hierarchy

Advocates:
Solicitors for appellants:Ranken Ford & Chester. Solicitors for respondent: Francis & Harker.

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