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