JUDGMENT

1. On 19th March 1918, one Mt. Umar Bibi, acting on behalf of her two minor daughters, mortgaged the land in dispute to the defendants Umar Din and Muhammad Din for Rs. 755. The estate originally belonged to Mt. Umar Bibi's deceased husband Sadar Din, a Jat of Kotli Maharan in the Gajran wala District, and on the latter's death it was inherited by his widow. The widow subsequently contracted a marriage with one Jalal, and consequently forfeited her life-estate, with the result that the property was mutated in favour of the two daughters of Sadar Din.

2. The plaintiffs, who claim to be the collaterals of Sadar Din, have brought the present action for the declaration that they are entitled to inherit the land as soon as the daughters get married or attain majority, and that the alienation shall not prejudicially affect their right of succession to the estate. Now, the trial Judge holds, after examining the evidence on the record, and we have no hesitation in endorsing his conclusion that the plaintiffs are collaterals of Sadar Din in the sixth degree and not in the fifth degree as claimed by them. We do not, however, agree with the learned Judge that the property in question has been proved to be ancestral qua the plaintiffs. It is beyond dispute that it was their duty to satisfy the Court that the property descended from the common ancestor Ghariba, and the mere fact that the revenue records are silent on the question of the acquisition of the land by any of the descendants of Ghariba does not justify the conclusion that it belonged to him. A mere conjecture, however plausible, cannot be a substitute for proof, and the learned Counsel for the plaintiffs is unable to invite our attention to any evidence which would show that the property descended from the common ancestor.

3. Nor do we think that the plaintiffs, who are related to the last male holder in the sixth degree, are entitled to inherit the estate in preference to his daughters, more especially when it is not proved to be ancestral. The onus rested upon them to establish a custom in favour of their right of succession to the exclusion of the daughters, and this onus they have wholly failed to discharge.

4. The trial Judge is, however, wrong in dismissing the suit merely on the ground that the daughters have got a preferential right of succession. The rule of the customary law is firmly established that a female inheriting landed estate from a male holds the property on life tenure, and it is immaterial whether the female is a widow, a daughter or a mother, vide, inter alia, Abdul Hussan y. Habib Ullah [1906] 18 P.R. 1906. A female is not competent to alienate the property except for necessity, and the reversionary heirs of the last male holder are entitled to contest the alienation, even if the property is not proved to be ancestral.

5. It is, therefore, clear that the alienation cannot adversely affect the plaintiffs when the succession opens out to them, unless the mortgagees prove not only consideration but also necessity for the mortgage. The learned Subordinate Judge was, therefore, wrong in dismissing the suit without determining the question of the consideration and necessity for the alienation.

6. We accordingly accept the appeal and remit the case to the trial Judge for redecision with reference to the foregoing remarks. The costs in this Court shall abide the event.