1. Dispute over the validity of sales of ancestral property by members of a Mohammadan tribe based on alleged customary restrictions on alienation. (Para 2 , 3 , 4 , 5 , 6 )
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1948 Supreme(SC) 74
Privy Council At Lahore
Sir John Beaumont, Lord Normand, Justice Lord Du Parcq, JJ.
Mohammad Jan and another -Appellant
Versus
Rafi-ud-din and others -Resopndent
Privy Council Appeal No 43 of 1947
Decided On : 18-10-1948
Advocates Appeared:
Hy. S.L. Polak and Co., Robert Ritson
Hy. S.L. Polak and Co., Robert Ritson
The burden of proving a custom lies on the party asserting it. A custom restricting the gift of ancestral property cannot be logically extended to restrict alienations for value without specific evidence.
Headnote:(A) Punjab Laws Act, 1872 - Section 5 - Burden of proof regarding custom - It lies upon the person asserting that he is ruled by custom to prove that he is so governed and to establish the particular custom; in the absence of such evidence, parties are governed by their personal law. (Para 8)
(B) Custom - Alienation of ancestral property - Restriction on gifts - A custom restricting the gift of ancestral property cannot be extended by logical process to include alienations for value; such an extension must be proved by evidence. (Para 9)
Facts of the case:
Two brothers sold ancestral land to purchasers. The sons of the sellers subsequently challenged the validity of these sales, contending that the tribe to which they belonged was governed by a custom restricting the alienation of ancestral property except for necessity or with requisite consents. The High Court had previously ruled that such a custom existed based on entries in the Riwaj-i-am and a recognized digest of customary law.
Findings of Court:
The court found that while entries in the Riwaj-i-am established a custom restricting the gift of ancestral property, there was no evidence to prove that this custom extended to alienations for value. Evidence of other unchallenged alienations for value further suggested the absence of such a restrictive custom.
Issues: Whether the burden of proof for the existence of a custom lies on the party asserting it and whether a custom restricting gifts of ancestral property can be logically extended to restrict sales of the same.
Ratio Decidendi: The burden of proving a custom lies on the party asserting its application. A custom restricting gifts is distinct from one restricting alienations for value; the latter cannot be inferred from the former through logical extension and must be independently proven by evidence.
Result: Appeal allowed.
Legal Category Hierarchy
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property law
-
customary law
- alienation of ancestral property (Para 2)
- burden of proof
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customary law
-
personal law
- mohammadan law
Table of Contents
2. Whether the parties are governed by custom restricting the alienation of ancestral property without necessity or consent, versus the application of personal Mohammadan law. (Para 2 )
Sir John Beaumont.-
These are consolidated appeals from two judgments and decrees of the High Court of Judicature, Lahore, dated respectively 4th November 1943, which set aside two judgments and decrees of the Court of the District Judge, Attock District, at Campbellpur, dated 28th April 1941, affirming two judgments and decrees of the Court of the Subordinate Judge, 1st Class at Campbellpur dated 12th December 1940.
[2] The case raises the question whether the Qureshis, a Mohammadan tribe in the Punjab, of the village Paur Miana, are precluded by custom from alienating ancestral property except for necessity or with requisite consents.
[3] The property was owned by two brothers, Abdulla and Ghias-ud-din, and it is conceded that in their hands the property in suit was ancestral property
[4] On 26th August 1924, Abdulla and Ghias-ud-din sold part of the lands in suit to the appellants, Mohammad Jan and Shera, for Rs. 1,800 by a registered sale deed, and on 29th May 1938, they sold the remainder of the lands in suit to the appellant Mohammad Jan for Rs. 60. Subsequently Abdulla died.
[5] On 1st March 1940, the respondent Mumtaz Hussain who was a son of Ghias-ud-din, commenced the first suit from which these appeals arise in the Court of the Senior Subordinate Judge at Campbellpur claiming a declaratory decree that the sale of the lands on 26th August 1924, was without consideration and valid necessity and was ineffectual, null and void
[6] On 30th March 1940, the respondents, Rafi-ud-din and Manzur Hussain, who were the sons of Abdulla, commenced the second suit from which these appeals arise in the same Court claiming a decree for possession of half of the lands so sold as aforesaid, representing their father's share
[7] The learned Subordinate Judge held that it had not been proved that the parties were governed by custom and dismissed the suit. On appeal the District Judge took the same view. In a second appeal to the High Court the learned Judges held that it was proved that the parties were governed by custom which restricted the free alienation of ancestral property, and they passed a decree in favour of the plaintiffs subject to repayment to the purchasers of so much of the consideration as they held to have been justified by necessity. From this decision special leave to appeal to His Majesty in Council was granted by the Board.
8. It was at one time held by the Courts in the Punjab that the effect of S. 5, Punjab Laws Act 1872, was to make custom the primary law of the Punjab in relation to the matters specified in that section and to cast upon anyone alleging that he was governed by personal law the burden of so proving. But in a Full Bench decision of the Punjab Chief Court reported in the Punjab Records vol. 41, p. 390, this view was dissented from and in the judgment of Robertson J., it was laid down that it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is, and that there is no presumption created by the section of the Act in question in favour of custom. The principle of this decision was expressly approved by this Board in Abdul Hussein Khan v. Bibi Sona Dero , 45 IA, p. 10 : (AIR (4) 1917 PC 181), where the material passage of the judgment of Robertson J., was quoted in extenso. It must, therefore, be accepted that in the Punjab the burden lies upon those who assert that they are governed by custom to prove the fact, and to establish the particular custom, and if such evidence is not available the parties are governed by their personal law, which in the present case is the Mohammadan Law.
9. The respondents did not appear upon this appeal and their Lordships have, therefore, not had the advantage of any argument in support of the judgment appealed from. Counsel for the appellants challenged the judgment on the ground that the learned Judges had ignored the rule above-ment
