SARFARAZ AND Versus MUHAMMAD KHAN

1. SAJJAD AHMAD, J. ‑This petition for special leave to appeal arises out of a suit brought by the respondents Muhammad Khan and Ahmad Khan, for a declaration under custom that five alienations of ancestral agricultural land, which were made by their brother Fazlu in favour of the petitioners between the years 1952 to 1956 were not binding on their reversionary rights as they were without legal necessity and consideration. The suit was decreed by the trial Court, but was dismissed on appeal by the Senior Civil Judge, Rawalpindi. In a second appeal to the High Court, a learned Single judge has reversed the judgment of the first appellate Court and restored that of the trial Court. It may be noticed here that on the issue of the sales being without legal necessity and consideration, both the first Court and the learned Senior Civil Judge had found against the petitioners. The learned Senior Civil Judge, however, took the view that the vendor had under the custom un restricted powers of alienation of his ancestral and non‑ancestral property. The learned Single Judge in the High Court has differed from this view and agreed with the trial Judge that the powers of the vendor under custom were restricted. Fazlu admittedly belonged to a Gujjar tribe, which was a compact community in village Dhow of Tehsil Gujjar Khan. The tribe was consulted at the time of the preparation of the Riwaj‑e‑am of the District, wherein it was recorded that Gujjars were depending for their livelihood on agriculture and that they were governed in the matter of alienations, by custom. The learned Senior Civil Judge considered that on the answers to questions Nos. 38, 39 and 40 in the Riwaj‑e‑am of the District, certain Muslim tribes of Gujjar Khan, including Gujjars, exercised powers of testamentary disposition and gift in certain cases without the consent of the presumptive heirs and concluded that a son‑less Gujjar could sell his ancestral land even though it was without consideration and legal necessity. As pointed out in the judgment of the learned Single Judge in the High Court, the learned Senior Civil Judge approached the case as if the initial onus was upon the plaintiff's' collaterals to prove the unrestricted powers of alienation of his ancestral property on the part of Fazlu. Once it was conceded that the matter was governed by custom ; the onus clearly lay on the defendant‑vendees to prove that Fazlu did possess unrestricted powers. No instance was brought on record to support this contention. On the contrary, the plaintiffs had produced a judgment of the Civil Court dated the 18th of August 1954, by which the sale of his ancestral land by one, Karam Din, a Gujjar, was set aside at the instance of the collateral being without consideration and legal necessity. The law on the subject is compendiously stated in paragraph 59 of Rattigan's Digest of Customary Law, 13th Edn., wherein it is stated that ancestral immovable property is ordinarily inalienable, except for necessity or with the consent of the male descendants or in the case of a son‑less proprietor, of his male collateral. ‑According to para, 61 of the same Digest, the initial onus is A S always upon the party who canvasses unrestricted powers of alienation of ancestral property, though this presumption is not so strong in the western districts and may be even weaker among certain tribes inhabiting such districts. The trial Judge and the learned Single Judge in the High Court were both right in their view that in the present case no evidence was adduced or instance cited by the vendee‑respondents to displace this presumption, however feeble it may be, that Fazlu did not possess unrestricted powers of alienating his ancestral property.

2. The petition is dismissed.

3. K. B. A. Leave refused.