Mr. M.R. Jayakar:-

The question in this appeal is whether under the customary law applicable to the members of the Tulla clan resident at mauza Mahmad Tulla in the tahsil and district of Shahpur in the Punjab, collaterals of the tenth degree of a deceased landowner can take precedence over his married daughters in succession to his non-ancestral estate. The question arose as follows: One Sahlion, a Mahomedan landowner of the Tulla clan, resident as stated above, died, leaving him surviving a widow and two married daughters (appellants before the Board) and some immovable property. The widow subsequently gave the property to the daughters by a registered deed of gift dated 8th September 1934. The respondents claiming to be his collaterals instituted a suit against the widow (defendant 1) and the daughters (defendants 2 and 3) asserting that Sahlion's property was ancestral as regards the plaintiffs and that the widow had no right to make the gift which should be declared void and ineffectual as against the plaintiff's rights and invalid after the death or remarriage of the widow. The widow and daughters denied the claim on the ground that the property was not ancestral and that the plaintiffs had no locus standi to sue, because daughters succeeded to the non-ancestral property as against collaterals, "especially when the plaintiffs are collaterals of the tenth degree." The subordinate Judge who tried the suit dismissed it holding that the plaintiffs were Sahlion's collaterals of the tenth degree, that the lands in the suit were not ancestral and that according to the general rule of custom prevailing among the Mahomedan tribes of the district of Shahpur which applied to the parties the daughters were not ousted by the plaintiffs with regard to succession to the non-ancestral property of their father. In arriving at his decision, the learned Judge relied on the oral and documentary evidence adduced by the parties and upon certain rulings of the Punjab Courts.

The plaintiffs appealed to the High Court at Lahore and that Court in a judgment remarkable for its brevity, allowed the appeal. The material part of the High Court judgment begins with the statement that it is common ground that under the customary law which governs all the Musalman tribes of the Shahpur-district married daughters do not inherit their father's estate in any circumstances.

Their Lordships have a difficulty in understanding this statement, because the question stated by the High Court as the "common ground" was precisely the issue in controversy in the case. The judgment bears in several places, indications that the High Court, instead of examining the disputed question on the facts and the evidence in the case carefully considered in the subordinate Judge's judgment, proceeded entirely on the authority of the questions and answers contained in a Manual compiled by Mr. (afterwards Sir) James Wilson called a "General Code of the Tribal Customs in the Shahpur District of the Punjab" published in 1896. (It may be convenient to refer hereafter to this publication as Wilson's Manual.) Basing their views on certain questions and answers in Wilson's Manual the learned Judges of the High Court held that there was a presumption against inheritance by the daughters and that this presumption had not been rebutted. They therefore allowed the appeal. The judgment contains no detailed criticism of the oral and documentary evidence of custom adduced by the parties all of which was ignored with the brief observation that in a Full Bench decision of the Punjab High Court, ('37) 24 AIR 1937 Lah 451:169 IC 909 : ILR (1937) 18 Lah 594:39 PLR 349 (FB), Bahadur v. Mt. Nihal Kaur it had been stated that recent judicial decisions are not sufficient to abrogate the custom so clearly laid down in Wilson's Manual of Customary Law.

Their Lordships have consequently derived less assistance than they would have expected from the High Court judgment in elucidating the important question in co