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1943 Supreme(SC) 43
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKIN, LORD ROMER AND SIR GEORGE RANKIN.
MIAN SALEH MOHAMMAD SHAH - Appellant
Versus
SAYYAD ZAWAR HUSSAIN SHAH - Respondents
On appeal from the High Court at Lahore.
Decided On : Nov. 22. 1943.
Solicitors for appellant:Hy. S. L. Polak & Co. Solicitors for respondents: Hardcastle Sanders & Co.
Important Points
Subject
Civil Law - Succession/Customary Law
Headnote
(B) Customary Law of Succession - Marriage Outside the Family - Marriage to a person outside the family does not wholly disqualify a daughter from succeeding to the property, although preference is given to those married to male collateral kindred within specific degrees. (Paras 4-5 of the reasoning section)
(C) Customary Law of Succession - Collateral Kindred - Succession among collaterals is determined by the degree of relationship; remote collaterals cannot claim preference over closer relatives simply because the latter married outside the family.
Facts of the case:
A dispute arose over the succession of immovable property following the death of an unmarried woman who had previously acquired the property. The appellant claimed the entire estate based on a deed of gift executed by the deceased just before her death and the contention that the respondents' mother, a married daughter of the original owner, was excluded from succession for marrying outside the family.
Findings of Court:
The court found that the deceased held only a limited interest in the property, which ended upon her death, rendering the deed of gift invalid. Furthermore, it was held that marrying outside the family did not completely disqualify a daughter from inheriting, and the appellant's own relationship to the original owner was too remote to grant him preference over the respondents.
Issues: (1) Whether an unmarried sister or daughter holds an absolute, heritable interest with the power to alienate the property or a limited interest that terminates upon death or marriage. (2) Whether a daughter married outside the family is entirely excluded from succession in favor of more remote collaterals.
Ratio Decidendi: The court reasoned that under the applicable customary law, the right given to unmarried women is a temporary provision for their maintenance while single, not an absolute estate. Consequently, such a holder cannot transfer the property by gift. Regarding marriage, the custom provides for preference to those married within the family but does not create an absolute disqualification for those married outside, especially when the competing claimant is a very remote collateral.
Result: Appeal dismissed.
Please provide the legal document content (inside
Legal Category Hierarchy
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family law
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succession
- customary law
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succession
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property law
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alienation
- gift
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alienation
Judgement
Consolidated Appeal (No. 52 of 1942) from two decrees of the High Court (May 27, 1940), which reversed the decision of the Senior Subordinate Judge, Jhang, and varied the decrees of that court (February 28, 1939).
The following facts are taken from the judgment of the Judicial Committee, In this consolidated appeal the question was whether the appellant on the death in 1934 of his mothers sister, Sat Bharai, became entitled to the whole of certain extensive immovable properties in the Jhang district of the Punjab which had formerly belonged to his maternal grandfather, Hassan Shah, or only to a half-share therein, ||
36 Law. Rep. 71 Ind. App. 14 ( 1943- 1944)
Mian Saleh Mohammad Shah V. Sayyad Zawar Hussain Shah 137
the other half-share having devolved on Sardar Bibi, the respondents mother.
Hassan Shah (d. 1893).
|
| | | | |
Jindwaddi Nur Bhari Sat Bharai Allah Jowai Mahmud
(widow ; (widow ; d. (wife ; (widow ; d. Khatun
d. 1911). 1918, predeceased 1905, (widow ;
| issueless). Hassan issueless). d. 1893).
| Shah).
|
| | | Allah Yar
Bakht Bhari Sat Bharai | Shah (d.
(daughter) (daughter) | 1894).
(m. Khuda (d. |
Yar Shah ; unmarried |
predeceased 1-2 May, |
Jindwaddi). 1934). |
| |
| |
Mian Saleh Sardar Bibi
Mohammad (daughter)
Shah (m. 1902 to
(Appellant, Akbar Shah ;
b. 1891). d. 10th
December,
1938).
|
Sayyad Zawar Hassan Shah
Husain Shah (Respondent
(Respondent No. 2).
No. 1).
The property in suit belonged to Hassan Shah, who died in 1893, leaving an only son, four widows and three daughters. One widow (Mahmud Khatun) died a few days after him, and his son died in the next year. Nevertheless the son succeeded to the properties and is the person from whom succession must now be traced. One of the three daughters of Hassan was Sardar Bibi, whose mother had predeceased Hassan, and in 1895 the properties were recorded in the revenue papers in the names of the three remaining widows and Sardar Bibi. The latter having married in 1902 and Allah Jowai having died in 1905, the properties after some litigation were entered in the names of the two remaining widows, Jindwaddi and Nur Bhari. In 1911 Jindwaddi died, having survived her daughter, Bakht Bhari (the appellants mother), and Jindwaddis share was recorded in the name of her unmarried daughter, Sat Bharai. In 1918 on the death of the remaining widow, Nur Bhari, her share also was recorded as belonging to Sat Bharai, who thus came into possession of the whole property. Their Lordships of the Board were not called on to comment on the correctness of those mutations and must not be taken as objecting to any of them. Sat Bharai died unmarried on May 2, 1934.
In 1935 the appellant sued Sardar Bibi on the footing that he was in possession of one half for a declaration that he was entitled to the whole, and in 1936 Sardar Bibi brought a suit [@ page LRIA
16] against the appellant claiming the whole in like manner. Those suits were tried together, and on February 28, 1939, the trial court decided that the appellant was entitled to the whole of the property. Sardar Bibi had in the meantime died, and was represented by her sons, the two respondents before the Board. On appeal the High Court at Lahore (Bhide and Din Muhammad JJ.), by decree of May 27, 1940, held that the appellant was entitled to a half-share only and the respondents to the other half. Hence this appeal. The appellant relied in the first instance on a deed of gift, dated May I, 1934, the day before Sat Bharai died, which purported to be a transfer to him by Sat Bharai of the whole of the property. Independently of that deed, he relied on the admitted fact that the respondents mother, Sardar Bibi, was married " outside the " family "—that was to say, that her husband, the respondents father, Akbar Shah, was not a member of her fathers family. Those two grounds of claim had to be justified by the customary law of the Jhang district applicable to Sayyads.
The relevant questions and answers in the riwaj-i-am of the
