Judgement

Appeal (No. 84 of 1927) from a decree of the Court of the Judicial Commissioner, North-West Frontier Province (August 26, 1925), reversing a decree of the District Judge at Peshawar (June 10, 1924).

The suit was brought in 1923 on behalf of the appellant, a minor, against the three surviving sisters of the appellants mother Nikko, who died in 1911, and other defendants. The plaintiff claimed her deceased mothers share of property which had devolved upon her mother and her mothers sisters upon the deaths of their father Balmokand and his widow. The plaint asserted that the plaintiff was entitled by a deed of compromise dated June 23, 1910, “ and by riwaj (custom)." The parties were Arora Sikhs resident at Peshawar.

The facts of the case, and the pleadings, both in the present suit and in that compromised in 1910, appear from the judgment of the Judicial Committee.

The District Judge decreed the suit, holding that the compromise was a valid family settlement, and that under it the plaintiff was entitled to recover.

The Judicial Commissioner set aside the decree on the ground that in the previous suit the interest of Gurmukh Singh (the husband of Nikko) was adverse to that of the minor sisters Lalo and Ravelo, whose guardian he had been appointed, and consequently that the compromise which he entered into on their behalf was not binding upon them. The reasons appear more fully in the present judgment.

At the trial two witnesses gave unrebutted evidence of custom, but their evidence was rejected by the District Judge on the ground that they had not been able to support their evidence by instances. The judgment upon appeal, beyond affirming that view, did not deal with the question of custom.

1928. June 14, 15, 18. Dunne K.C. and Joseph Nissim for the appellant. The compromise of 1910 was a valid family arrangement, and under its terms the plaintiff was clearly entitled to her mothers share. There is no substance in the objection that the interest of the guardian was adverse to that of the minors. He was duly appointed by the Court under Order xxxii., r. 3, after inquiry, and the compromise was approved by the Court under Order xxiii., r. 3, in proceedings in which all the parties were represented by counsel. The objection was first raised upon the appeal fourteen years later.

[De Gruyther K.C. referred to Rashid-un-nisa v. Muhammad Ismail Khan. (( 1909) L. R. 361. A. 168.)]

In that case there was clearly an adverse interest and the suit was to set aside the compromise. In the present case there was no pleading raising the question. The compromise was not in the nature of an alienation, but was based upon rights antecedent to it Khunni Lal v. Gobind Krishna Narain. (( 1911) L. R. 38 I. A. 87.)

But whether the compromise was valid or not the plaintiff was entitled to her mothers share by custom. Custom was pleaded, and two witnesses gave unrebutted evidence as to its existence. Though instances were not given the Court was not entitled to disregard the evidence, more especially as it was supported by the manuals of customary law both of the district and adjoining districts Customary Law of the Peshawar District (J. G. Lorimer, 1899), pp. 31, 32 ; Customary Law of the Mianwalli District (Hari Kishen Kaul, 1908), pp. 29, 30 ; Customary Law of Multan District (Emerson, 1924), p. vi., p. 301. Manuals or codes of customary law are compiled officially from the riwaj-i-am. The Board has held that a statement in a riwaj-i-am is sufficient prima facie evidence without proof of instances Beg v. Allah Ditta. (( 1916) L. R. 44 L A. 89.) So also in Ahmad Khan v. Channi Bibi (( 1925) L. R. 52 I. A. 379.) the Board held that unrebutted evidence of a custom given by members of the tribe in question, namely the kind of testimony recorded by a riwaj-i-am, was sufficient although it was unsupported by instances. The North-West Frontier Province Regulation, 1901, s. 27, is in the same terms as the Punjab Laws Act, 1872, s. 5, and under the la