SAID MUHAMMAD Versus TALIB HUSSAIN

1. SALAHUDDIN AHMED, J. ‑This appeal by special leave of this Court is from an order of the then High Court of West Pakistan, Lahore Seat, dismiss ing a Regular First Appeal of the appellant herein.

2. On the 5th of March 1953, respondent No. 6 Mubarak Ali, a consanguine brother of appellant Said Muhammad, had made a registered gift of the land in dispute measuring 258 kanals in Chak No. 366/G. B., Tehsil Toba Tek Singh, District Lyallpur in favour of respondents Nos. 1 to 4, who are sons of Karam Dad (a brother of respondent Mubarak Ali). Mutation of the gift was sanctioned on the 16th of September 1953.

3. In the year 1956 the appellant instituted a suit in the Court of the Senior Civil Judge challenging the validity of the gift on the ground that the donor was of unsound mind, and asking for a declaration that the gift was void and did not affect the reversionary rights of the plaintiff under custom. The plaintiff claimed that the land was ancestral and the family was governed by custom.

4. Respondent No. 1 Talib Hussain only contested the suit and denied the claims of the plaintiff:

5. The suit was dismissed on the 16th September 1957. The learned Senior Civil Judge held, inter alia, that the parties were Jats and belonged to a predominantly agricultural tribe; that Mubarak Ali was a man of sound mind; the land in dispute was not ancestral; the land originally belonged to Ghulam Muhammad who by a 'will' distributed it amongst his three sons, namely, Said Muhammad (appellant herein), Karam Dad (father of the donees) and Mubarak Ali (the donor of the disputed gift) in unequal shares; the transfer was not an acceleration of succession because the transfer took effect after the death of Ghulam Muhammad; that it was not proved that the land had been inherited by Ghulam Muhammad from his father; the family were governed by custom; and Mubarak Ali was competent to make the gift.

6. In the appeal preferred by the appellant the learned Judges of the High Court, inter alia, agreed with the findings that Mubarak Ali was of sound mind, and that the property in dispute was not ancestral. The appeal was accordingly dismissed.

7. Leave was granted by this Court to consider the question whether the 'will' made by Ghulam Muhammad operated as acceleration of succession.

8. Ch. Abdul Rahman, learned counsel appearing on behalf of the appellant, has contended before us that the 'will' of Ghulam Muhammad could not be regarded as acceleration of succession for the simple reason that it was intended to take effect and it did take effect only upon the death of Ghulam Muhammad. There was no surrender of the property during the life time of Ghulam Muhammad. The contention has force and must be accepted. There is no doubt about the fact that what the three sons of Ghulam Muhammad got, they got it by way of inheritance. The 'will' was a pious wish of the father in the matter of the division of the property. The mere fact that the division was unequal, granting that this was so. it could not and did not alter the nature and character of the property. The property which thus fell into the bands of the sons is, therefore, "ancestral property" as stated by Rattigan and Om Prakash in their books on Customary Law. Vide. section, page 664 of 'A Digest of Customary Law' by W. H. Rattigan, and Chapter VI at page 225 of 'Punjab Customary Law' by Om Prakash. In both 'ancestral property' has been defined as follows:

9. "Ancestral property means, as regards sons, property inherited from a direct male lineal ancestor, and, as regards collaterals, property inherited from a common ancestor. Property which has never been held by the common ancestor cannot be regarded as ancestral in any sense."

10. It may be mentioned here that the definition is based on several decisions ,of Courts one of which may be cited here, namely, Jagtar Singh v. Raghbir Singh (A I R 1932 Lah. 85). In the case under report it has been observed as follows:

11. "It is well settled that under Customary Law 'ancestral property' means, as regards sons, property inherited from a direct male lineal ancestor."

12. It seems evident from the definitions that the essence of "ancestral property" is descent from an ancestor. The property in question no doubt C descended to the three sons from their father, and is, therefore, ancestral. This receives further support from the fact that the mutation was recorded in terms of the 'will' with the consent of all the sons and in presence of their mother. Qua the father, the property was ancestral in the hands of the sons.

13. The learned Judges of the High Court themselves have observed as follows ,in paragraph 6 of the judgment:

14. "It is firmly established that the property in the hands of the owner acquired otherwise than by descent or by reason merely of his connection with the common ancestor, is treated as his self‑acquired property. In Saif‑ul‑Rehman v. Muhmrnad Alt Khan (A I R 1928 Lah. 285), it was observed that:

15. 'There is no doubt if Wazir Khan had obtained this land by succession it would have been ancestral. But here the ordinary course of inheri tance was diverted by the gift by Qutab‑ud‑Din to Wazir Khan, who was not his heir at the time. He was one of his distant collaterals and the gift by Qutab‑ud‑Din to him was admittedly not made by way of surrender of his estate or acceleration of succession but was a gift pure and simple. In my opinion the mere fact that the donee was one of the large number of collaterals makes no difference what ever':'

16. The principle of acceleration of succession applies to a case of gift or sale in favour of a person who would ordinarily succeed the transferor apart from the gift or sale. Such transfer provided it is followed by surrender of the property will not change the character of the property transferred. Vide referred to in the High Court judgment. See also Jagtar Singh v. Raghbir Singh (A I R 1926 Lah. 171). in which it has been observed thus at page 86 col. 2 of the report :-

17. "It is, of course true that a person can surrender his estate to the next heir and thus accelerate the succession. But it is settled law that if he wishes to do so, he must completely efface himself and pass his 'whole interest in the whole estate' to the entire body of heirs who would be entitled to take it in the event of his death: Behari Lai v. Madho Lai Ahtr (1892) 19 Cal. 236=1,9 1 A 30 =6 Saur. 88 (P C),

18. Rangasami Goundan v. Nachlappa Goundan A : R 1918 P C 196=501 C 498=461 A 72=42 Mad. 523 (P C) and Wazir Chand v. Nakhu (1902) 17 P R 1902 =16 P L R 1902."

19. The case of Balwant Singh v Gurbachan Singh (A I R 1939 Lah. 286), and relied on by the High Court has no application to the facts of the present case. The case under report was a case of sale of ancestral property by its owner in favour of his son which had the effect of direct acceleration of succession. It seems that both the Courts fell into error when they confined themselves to the property of Ghulam Muhammad before his death, and failed to consider its character when it descended on his sons after his death.

20. There is another aspect of the case. The sons after having inherited fro their father were entitled to divide the property amongst themselves and i doing so if they keep in mind the wishes of their father as contained in hi will, it does not affect the partition. Admittedly, the division envisaged in the 'will' was agreed to by all the three sons in presence of their mother as the records show. Thus, the division was quite valid but this did not alter the ancestral character of the property and make it the self acquired property of each of the three sons. Besides all the sons having agreed to the division none else had any locus standi to challenge the division.

21. The question that remains for consideration is whether Mubarak Ali who came to inherit the property in dispute, could transfer it by gift to respondents Nos. 1 to 4. The answer to the question is in the negative. Under Customary Law the general presumption is that a gift relating to ancestral. property is invalid. This presumption is, however, variable and rebuttable. No evidence appears to have been led to rebut the presumption. There is also nothing to show that the donor, Mubarak Ali. was sonless, and that he p had transferred the property in dispute for legal necessity or in lieu of services rendered. No custom in favour of such a gift among Jats of an agricultural . tribe has been established. The gift by Mubarak Ali is, therefore, illegal and' cannot be upheld.

22. I would, therefore, allow the appeal but without any order as to costs. The result is that the decree of the trial Court as upheld by the High Court is set aside.

23. S. A. H. Appeal allowed.