Judgement

Appeal from a judgment and decree of the Chief Court (December 23, 1908) reversing a decree of the Divisional Judge of Shahpur (February 3, 1904) which affirmed a decree of the District Judge of Jhang.

The parties belonged to the small tribe of Dhabs, a branch of the Jats, which had for many generations been settled in the Jhang district of the Punjab. The tribe was endogamous in practice, and all its members were Mahomedans. Shahamad had a daughter, Jindwadi, but no son. Jindwadi married Daim, who was the son of her fathers first cousin, and, as found by the Courts in India, a khana-damad, or resident son-in-law.

In 1884 Shahamad executed a will in the following terms " I air now sixty years old. I have no male issue, nor have I any hope to have any. Daim, son of Ahmad, caste Dhab, is my son-in-law. He has been living with me since his Royhood, and has served me as a son. If a son is born of my daughter he, after the death of my wife and myself, shall be considered as my adopted son. He shall succeed to the entire property movable and immovable." The appellant, Beg, was the son of Daim and Jindwadi. After Shahamads death his widow enjoyed his property, Daim and Jindwadi continuing to live with her. On the widows death, Daim having predeceased her, Jindwadi and Beg remained in possession and obtained mutation of names.

The respondents, male collaterals of Shahamad, in 1900 instituted a suit in the Court of the Additional District Judge of Jhang against Beg, under the guardianship of Jindwadi. They claimed possession of half Shahamads property, which they alleged was ancestral, admitting that Daim was entitled to the other half.

The issues settled, so far as material to the appeal, were (1.) Is the property in suit ancestral ? (2.) Have the plaintiffs any right to inherit in the presence of Jindwadi and Beg ? There were further issues as to the validity of the will, the fact and effect of the adoption, and as to whether Daim was a khana-damad.

Oral and documentary evidence was adduced. The defendant put in evidence the riwaj-i-am of the Jhang district, prepare 1 at the 1880 settlement, which recorded the customs of the various tribes, including the Jats. There were answers with regard to the right of a proprietor to adopt and to make a gift; the settlement officer recorded, however, that he had great doubt as to the answers about adoption. As the case eventually turned upon the right of Jindwadi to succeed by custom, and not upon adoption or the will, these answers became immaterial. As to the latter custom, question 12 of the riwaj-i-am was whether in the absence of male issue daughters and their descendants or collaterals of the father succeed to property left by him. The answer recorded in the case of the Jats was, " the same answer as given by the Syeds." The answer of the Syeds was as follows "In the absence of a male issue, a daughter, or her descendants, succeed to the property, provided she is married to a near relation. The daughter who is married in another family has never got any share. The collaterals of the owner of the property succeed him."

The District Judge found that Daim was a khana-damad, and that the will was genuine. He held that by the custom of inheritance Beg would have succeeded and that Shahamad was entitled to make a will in his favour. He therefore dismissed the suit.

The Divisional Judge upon appeal affirmed the decision. . After referring to the answers in the riwaj-i-am as to adoption and gifts, he said that the unusual power of disposition of property vested in the agriculturists of the Jhang district raised a presumption that Shahamad had power to dispose of his property by will in favour of the defendant. He also said that the answer of the Syals (which was in the same terms as that of the Syeds) to the twelfth question showed that among them the daughters son could inherit the estate of a maternal grandfather if the daughter married a collateral, and that it was to be presumed that