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(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 18th May 1962, in R. S. A. No. 399 of 1956). .

(a) Custom (Punjab)

‑Tribe once proved to be governed by custom‑Powers of alienation in respect of agricultural property presumed to be restricted‑Such presumption, however rebuttable.

Once it is proved that a tribe follows custom, the presump tion, in accordance with paragraph 59 of Rattigan's Digest of Customary Law is that the powers of the person to alienate property are restricted. This initial presumption is, of course, rebuttable by proof of instances.

Rattigan's Digest of Customary Law, para. 59 ; Mst. Subhani etc. v. Nawab and others A I R 1941 P C 21 and Manzurul Haq v. Muhammad Nawaz and others Civil Regular Second Appeal No. 72 of 1954 ref.

(b) Wajib‑ul‑arz

‑[Village Jhawarian in Shahpur District] Entry in Wajib‑ul‑arz explained.

The entry was as follows : "For the present entries regarding the sale and mortgage of the holding of the proprietors are entered in the Khewat and in the future every proprietor shall be entitled to sell or mortgage his holding with due regard to the rights regarding pre‑emption." Agreeing with the view of the High Court that this entry does not record any custom but states only a rule that the proprietors wanted to be applicable to them in future :

Held, the High Court in the present case rightly held that the entry in the Wajib‑ul‑Arz did not lay down the custom regarding the alienability of the ancestral land.

Muhammad Shah and others v. Rukkan Shah and others A I R 1931 Lah. 12 and R. S. A. No. 72 of 1954 ref.

(c) Custom (Punjab)

‑[Village Jhawarian in Shahpur District] Agricultural land‑ Alienation‑Permissible for legal necessity.

General Code of Tribal Custom in the Shahpur District of the Punjab Section X, Answers 11 and 12 by J. Wilson; Muhammad Nawaz and others v. Muhammad and others R. F. A. No. 92 of 1940 ; R. S. A. No. 424 of 1943 ; Civil Appeal No. 51 of 1914 ; 114PR 1913; 15PR 1907 ;72PR1914; 42PLR 1914; 56 P R 1915 ; Samand Khan and another v. Ata Mohammad and others A I R 1935 Lab. 296; Raja Khan v. Muhammad Bakhsh P L D 1951 Lah. 443; Chanan Shah v. Muhammad Fazil P L D 1952 Lah. 408 and R. S. A. No. 72 of 1954 ref.

(d) Sale

‑Agricultural land‑Legal necessity‑Burden of proof‑Sale taking place in 1936 but challenged as made for no legal necessity in 1953, after lapse of such considerable time-Existence of legal necessity mentioned in registered sale deed and supported by a marginal witness‑Best possible witnesses being either dead or gone out of country due to Partition of sub‑continent‑Sale being in favour of vendor's daughter's sons‑Onus to prove legal necessity‑Comparatively light in circumstances and held sufficiently discharged.

Muni Lal and others v. Kishore Chand Kanshi Ram A I R 1927 Lah. 373 ref.

(e) Contract Act (IX of 1872),

S. 10‑Sale‑Consideration Burden of proof‑Sale of land taking place in 1936 but challenged in 1953 as being without consideration‑Sale deed registered, reciting receipt of consideration by vendor, and supported by evidence of a witness‑Onus, held, lay heavily on party objecting to sale to prove non‑payment of consideration‑Matter when passed from stage of contract to that of executed conveyance and delivery of possession even non‑payment of consideration would not render transaction void‑Title to property, held, passed on registration of sale deed although price, if not paid, being a charge on property, could be recovered under law.

I L R 42 Mad. 20 ref.

Mahmood All Qasuri, Senior Advocate Supreme Court (Rafiq Ahmad, Advocate Supreme Court with him), instructed by Ejaz Ahmad Khan, Advocate‑on‑Record for Appellants.

Muhammad Shafi Mian, Senior Advocate Supreme Court instructed by Mushtaq Ahmad Khawaja, Advocate‑on‑Record for Respondent.

Dates of hearing : 16th, 17th and 18th February 1971.

JUDGEMENT

SALAHUDDIN AHMAD, J.‑

This appeal by special leave is from an order of the erstwhile High Court of West Pakistan Lahore, passed in a Second Appeal reversing the decision of the trial and first appellate Courts and decreeing the suit.

Respondent Muhammad Nawaz son of Fazal Din is an Awan of Shahpur. He brought a suit on the 17th of April 1953, for possession of 1891 kanals of land situated in village Jhawarian in Shahpur, on the ground that the land was ancestral and it had been illegally sold by his father and step‑mother to appel lants Nos. 1 to 3, without any legal necessity. The respondent claimed that the parties were governed by the Agricultural custom.

It will be useful to give here the pedigree table to understand the relationship between the parties

Mullan

_________________ _______________

Shams Din Ahmad Din ____________ _________

Alam Din

Ghulam Qadir Gaman

Fazal Din (married) Mst Altaf Bibi

Muhammad Nawaz Mst. Fatima

(Plaintiff-

respondent)

_______________________ ________________________

Muhammad Muhammad Muhammad Muhammad

Hayat Iqbal Afzal Akram

(Appellant (Appellant (Appellant (Appellant

No.1) No.2) No.3) No.4)

By a registered deed of sale dated the 6th March 1936, Exh. D. 1, Fazal Din and Mst. Alaf Bibi, father and step‑mother, respective ly, of the respondent, sold 941 kanals out of 1891 kanals of land to their daughter's sons, appellants Nos. 1 to 3 (defendants Nos. 1‑3 in the suit), for a consideration of Rs. 2,000. It was asserted that the consideration was not paid. Subsequently, the land was sold to appellants Nos. 5 to 7 by appellants Nos. 1 to 3. It is stated that appellant No. 4, Mohammad Akram, had an interest in the land identical with that of appellants Nos. 1 to 3. On the basis' of this sale deed, however, mutation was effected in respect of the entire 1891 kanals of land in favour of appellants Mohammad Hayat, Mohammad Afzal and Mohammad Iqbal, on the 15th May 1936 (Exh. D/2). The respondent was a minor at the time of the sale and on attaining majority he filed the suit on 17‑4‑1953. Both the alienors had died before the West Punjab Personal Law (Shariat)Application Act of 1948 came into force.

The appellants admitted that the parties were governed by Custom but denied the ancestral character of the property. They claimed that the alienors were absolute owners of the disputed land and had unrestricted powers of alienation. They asserted that the entire disputed land was sold for valid necessity and its price was paid, and that in any event the said land was given to appellants Nos. 1 to 3 by way of gift, and was rightly mutated in their favour. They also pleaded adverse possession for a period of more than 12 years against the respondent.

The trial Court dismissed the suit on the ground that the respondent failed to prove that the disputed land was ancestral inasmuch as it was not proved that the land devolved upon Fazal Din and Mst. Alaf Bibi by inheritance from a common ancestor. The Court held that the entire 189 kanals of land were sold by the vendors to the vendees (the defendants in the suit), and that they also became owners of the land in dispute by virtue of adverse possession for a period of more than 12 years. Finally it was held that the vendors had under custom, unrestricted powers of alienation in respect of the suit land. The learned District Judge, Shahpur dismissed the respondent's appeal and maintained the findings of the trial Court. In second appeal, the High Court set aside the judgments and decrees of the Courts below, and decreed the suit for possession of the land detailed in the plaint, except half of the land comprised in Khasra Nos. 6090, 6088, 6990/1, 5034 and 6054. Cross objections filed by the appellants herein were dismissed.

On behalf of the appellants the following contentions have been advanced :‑

(1) The disputed land is not ancestral property.

(2) The parties being Awans of Shabpur have unrestricted powers of alienation in respect of ancestral property.

(3) Even if the part had restricted powers of alienation, the land was alienated for consideration and for a valid necessity and the transfer was, therefore, legal.

As regards the first contention, the High Court, on a con sideration of the evidence, has come to the finding that it is ancestral. The High Court is of the view that having regard to the fact that Shamsud Din's two sons Ghulam Qadir and Gaman were entered as owners of property left by Shamsuddin in ancestral share, there was an initial presumption that the disputed land was ancestral. On the death of Gaman, Fazal Din became the owner of 3/4th share in the land inasmuch as he inherited 1/2 from his father Ghulam Qadir and 1 /4th out of the one‑half from his uncle Gaman. Fazal Din married Mst. Alaf Bibi, daughter of the said Gaman and the former allowed 1/4th of his share of the land to be recorded in the ownership of his wife Mst. Alaf Bibi. Admittedly, Ghulam Qadir was the common ancestor of respondent and vendor Fazal Din. The High Court held that there was nothing to show that Shamsuddin gifted the property to his sons Ghulam Qadir and Gaman, and in turn the latter gifted to Fazal Din and Mst. Alaf Bibi, and that the land had ever gone out of the family and was acquired by a predecessor of the respondent. The High Court, accordingly, found it safe to presume that the land owned by Shamsuddin, the common ancestor, had devolved on his two sons, Ghulam Qadir and Gaman, by inheritance, and subsequently, the share of Ghulam Qadir devolved by inheritance on his son Fazal Din. The High Court further held that according to the excerpt Exh. P. W. 7/1, there were the following four khatas of the disputed land in the year 1865 :‑

1. Khata No. 233

2. Khata No. 234

3. Khata No. 242/Min.

4. Khata No. 261

While item No. 1 was entirely owned by Shamsuddin, in item No. 2 Shamsuddin had half share and in item No. 4 he had 1/8th share. In item No. 3 Shamsuddin was shown in possession. Shamsuddin having been dead, in the Settlement of 1891‑92 the following two khatas were formed out of the above 4 khatas :‑

(1) No. 67/Min, incorporating in it the above‑mentioned khatas being items Nos. 1, 2 and 3.

(2) No. 682 incorporating in it the aforesaid khata being item No. 4.

On reference to this Settlement it appears that both the new khatas were owned by Gaman for self and also as mortgagee of the share of Ghulam Qadir son of Shamsuddin. It was held that the circumstances of the present case clearly indicated that the property had devolved on Fazal Din and Mst. Alaf Bibi by inheritance from the common ancestor, except the land which at one stage was entered in the name of Mst. Fateh Bibi. The khatas remained joint throughout. Jamabandis relating to the years 1909‑10 and 1911‑12 show Gaman son of Shamsuddin and Fazal son of Ghulam Qadir as Malkan Qabza. This expression only meant that the Malkan had no share in the shamilat or the village. This, however, did not mean that they were not owners of the land which was shown to be in their possession. So far as the land comprising the aforesaid Khata No. 244/Min. is concerned, in the Settlement for the year 1885 it appears that Mst. Fateh Bibi was the owner of the land. The following Khasra Numbers are included in this khata, namely :‑

3615, 3618, 3622, 3626, 3636, 3637, 3656, 3660, 3653, 3661, 3613 and 3664.

In the Settlement of 1891‑92 the land belonging to the said Mst. Fateh Bibi was recorded in the ownership of Gaman and Ghulam Qadir in equal shares and the following new numbers were given to the Khasra Nos. mentioned above :

1283, 4281, 4290, 4300, 4309 and 4312.

Thereafter, this land fell to the share of Fazal Din and his uncle Gaman. The corresponding Khasra Nos. in the Jamabandi for the year 1911‑12 are as follows :

6090, 6088, 4990/1, 5034 and 6054.

These numbers remained the same in the Jamabandi for the year 1930‑31 which was filed with the plaint. Admittedly Ghulam Qadir was the common ancestor of the plaintiff and the vendor Fazal Din. Out of the land which was originally owned by Mst. Fateh Bibi 1/2 share of the land fell into the share of Ghulam Qadir in the Settlement of 1891‑92, and he was recorded as owner of this 1/2 share. Later, this share devolved on his son Fazal Din and as such it was ancestral qua the plaintiff. The other one‑half of the land belonging to Mst. Fateh Bibi went to Gaman but Gaman was not common ancestor of the respondent and as such it was held that 1/2 of the land of Mst. Fateh Bibi which fell to the share of Gaman was not proved to be ancestral qua the plaintiff and for these reasons the High Court held that the land described in the heading of the plaint except 1 /2 of the land mentioned in 6090, 6088, 4990/1, 5034 and 6054 was proved to be ancestral qua the plaintiff.

On the above analysis of the entries in the Revenue Records the finding arrived at by the High Court that the suit land was ancestral is not open to any exception.

As regards the 2nd contention, as the parties were admittedly governed by custom at the relevant time, it is necessary to consider the extent of the power of the vendors to alienate the disputed land.

In support of their contention the appellants have relied 'on certain documents and judicial decisions.

Rattigan's Digest of Customary Law has been held by Privy Council in the case of Mst. Subhani etc. v. Nawab and others (AIR 1941 P C 21) to be a book of unquestioned authority. Paragraph 59 of the Digest contains the following statement :‑

"Ancestral immovable property is ordinarily inalienable (especially amongst Jats residing in the central districts of the Punjab), except for necessity or with the consent of male descendants, or, in the case of a sonless proprietor, of his male collaterals. Provided that a proprietor can alienate ancestral immovable property at pleasure if there is at the date of such alienation neither a male descendant nor a male collateral in existence."

Accordingly, as has been held by the High Court of West Pakistan, Lahore, in Civil Regular Second Appeal No. 72 of 1954, decided on 16th October 1956 (Manzural Haq v. Mohammad Niwaz and others, once it is proved that a tribe follows custom, the presumption, in accordance with paragraph 59 of Rattigan's Digest of Customary Law is that the powers of the person to alienate property are restricted. This initial presumption is, of course, rebuttable by proof of instances but the appellants have failed to rebut the presumption. It has been argued that the following entry in the Wajib‑ul-Arz of the village concerned gave power to the proprietor to sell or mortgage his property subject only to the right of pre‑emption of the other party. The entry is as follows :‑---

"For the present entries regarding the sale and mortgage of the holding of the proprietors are entered in the Khewat and in the future every proprietor shall be entitled to sell or mortgage his holding with due regard to the rights regarding pre‑emption."

The learned Judges of the High Court have held that this entry does not record any custom but states only a rule that the pro prietors wanted to be applicable to them in future. In the case of Mohammad Shah and others v. Rukkan Shah and others (A I R 1931 Lah. 12), while considering a similar entry in the Wajib‑ul‑Arz of 1857 of the village in question in the case, it was held that the entry did not really deal with the power of collaterals to control alienation by a male proprietor without necessity and that it contained the usual pre‑emption clause which was found in almost all the Wajib‑ul‑Arz of the Punjab villages prepared soon after the annexation and which contained the agreement of the village proprietors relating to the rules of pre‑emption, before the law on that subject was codified in Punjab Laws Act No. IV of 1872. This decision was approved of by Kaikaus, J. in R. S. A. No. 72 of 1954. In our opinion, the learned Judges of the High Court in the present case rightly held that the entry in the Wajib‑ul‑Arz did not lay down the custom regarding the alienability of the ancestral land.

The appellants have next argued that inasmuch as there is nothing in the General Code of Tribal Custom in the Shahpur District of the Punjab by J. Wilson to show as to what was the custom with regard to sales, no custom should be held to exist with respect to sales. This point too was considered by Kaikaus, J. who found no substance in it and the High Court, in our opinion, rightly agreed with the view of Kaikaus, J.

Our attention has been drawn to Exh. D. 10, a certified copy of the High Court judgment in R. F. A. No. 92 of 1940, dated the 23rd November 1943, Mohammad Niwaz and others v. Mohammad and others. In this case although Wajib‑ul‑Arz of village Kadian, drawn up in 1857, was held not to record any existing custom and to be, therefore, of not much assistance, yet it was relied on to rebut any initial presumption that at the time the village was governed by general custom. On the basis of materials placed on record it was held that Nangianas of District Sargodha had unrestricted power of alienation. In the first place the case does not appear to be applicable to Awans, and in the second place, the High Court found that in the present case the appellants failed to cite any instance to show that Awans of Shahpur District had unrestricted power of alienation.

R. S. A. No. 424 of 1943 (pp. 4 to 9 of the Paper‑Book, Part III), decided on 8‑7‑1944, was based on Wajib‑ul‑Arz of 1.865 relating to village Nawshera in Tehsil Khushab. It was stated in this Wajib‑ul‑Arz that whenever land of any owner was sold it was automatically entered in the names of vendees. Two instances in support of this state of affairs were also relied on. On these facts the Lahore High Court held that the father of the plaintiff had unrestricted power of alienation.

Civil Appeal No. 51 of 1914, appearing at page 185 of the Paper‑Book, that has been cited before us, relates to Ichhar tribe, and therefore, has no application to Awans of Shahpur District. In this case reliance has been placed, inter alia on Punjab Report 88 of 1911 where it was recognised that Awans had unrestricted powers of alienation, even in the presence oft their sons. Punjab Report 88 was considered in 114 P R 1913 at page 435 and it was observed as follows in the latter report :‑---

"Counsel cites 88 P R 1911, but it may be remarked (though this does not appear from the judgment of this Court) that in this case the son was born after alienation in question, so that the case is not one of an alienation by the father in presence of a son. It may also be noted that of the four rulings relied on in 88 P R 1911, the three earlier ones are not cases of alienation in presence of sons, but of a alienation by sonless proprietors, while in 8 P R 1906, the right of a son to object was not decided as the son assented to the gift, and the contest was between the nephews of donor and the daughter's son."

The respondent too has cited a large number of judicial decisions in favour of his contention that the vendors had restricted powers of alienation. Besides relying on the initial presumption against the vendor having unrestricted powers of alienation, as mentioned in the aforesaid Rattigan's Digest, he has relied o1: certain cases which we shall presently mention.

In 15 P R 1907, Johnstone, J. observed as follows :‑

.... "I think if these classes are fairly looked at it will be seen (i) that any interference with the natural rights of sons is jealously resented, (ii) that, when there are no sons, much freedom is allowed to male proprietors . . . . ."

In 72 P R 1914 it has been held that Customary Law recognises a distinction between the powers of alienation of a sonless proprietor and those of a proprietor who has sons, and that it was not proved that among Awans of the Talagong Tehsil, a proprietor who had sons had unlimited power to deal with ancestral property as he pleased.

Again in 42 P L R 1914 (corresponding to 23 I C 934) has been held that an Awan of Talagong Tehsil, who has sons living, has not unlimited powers when dealing with ancestral property.

In 56 P R 1915 p. 254 it was held that it had been proved that by custom among Awans of Mauza Marir Hasan, Tehsil Rawalpindi, a childless proprietor has power to alienate his ancestral property in the presence of a first cousin, without necessity.

In A I R 1935 Lah. 296 it has been held that Awans of Shahpur District cannot make unequal distribution of their ancestral property among their sons. Exh. P. 8 decided on 31‑3‑1936 by Mr. S. A. Rahman, Additional District Judge, Shahpur at Mianwali (vide p. 249 of Paper‑Book, Part I) refers to A I R 1935 Lah. 296 and says that Awans of Shahpur District did not possess unrestricted powers of alienation but could only part with their ancestral heritage for valid necessity. Exh. P. 7 is a second appeal in the High Court at Lahore from Exh. P. 8. The appeal was partly allowed on a different ground, namely; that necessity in respect of a part of the amount had been proved.

In P L D 1951 Lah. 443 it has been held that a sonless Awan of Pind Dadan Khan Tehsil of Jhelum District, enjoys unrestricted powers in the matter of alienation of his ancestral property, even without necessity.

In P L D 1952 Lah. 408, it has been held that an Awan proprietor of Attock District having sons has only restricted powers of alienation.

R. S. A. No. 72 of 1954 of the Lahore High Court decided on 16‑10‑1956, was an appeal from Exh. P. 9. In this Second Appeal Kaikaus, J. held that there was an initial presumption in favour of a restricted power of alienation of the vendor.

Section X, answers 11 and 12 of the General Code of Tribal Custom in the Shahpur District of the Punjab drawn up by J. Wilson dated 1896 state as follows :‑

"Answer 11.‑Awans . . . . . . As regards immovable property a father having sons or son's sons, cannot, without their consent, give to any relative through females any land except a reason able small area in dowry to a daughter, nor can he give a larger share of the immovable property to one son than to the others, or cut off a son from his share. A father having no son, or son's son, has full power to give the whole of his immov able property to his daughter, daughter's son, sister, sister's son or son-in‑law, or to one of his agnate heirs without the consent of the other agnates.

No distinction is made between ancestral and acquired property.

Answer 12.‑As regards immovable property. ‑ Awans, Miscellaneous Musalmans.

A father, having sons or son's sons, cannot make a gift of immovable property to a person not related to him, without the consent of the sons. A proprietor having no son or son's son, can, without the consent of the agnate heirs, make a gift of immovable property, ancestral or acquired, divided or not, to a person not related to him.

Note.‑Among the Awans there is a general feeling that a sonless man is absolute owner of all his property, including his land, and can do with it as he likes, as his agnate heirs are generally his enemies."

On a consideration of the documents and cases mentioned, above, we have come to the conclusion that the vendors in the, present case did not possess unrestricted powers of alienation, but they could alienate the ancestral property for a legal necessity.

We now come to the third contention. So far as the existence of a legal necessity is concerned, not only has it been mentioned in the sale deed that the land is being sold for necessity but also there is the evidence of D. W. 6 to show that Fazal Din had loans outstanding in favour of Sikhs and for this reason the lands were sold. D. W. 6 is a marginal witness in whose presence the registration of sale deed was made. Having regard to the considerable distance of time that has elapsed from the date of sale and to the fact that the best possible witnesses are either dead or have gone out of the country, and to the circumstance that the sale was in favour of vendors' daughter's sons, the onus to prove legal necessity upon the plaintiff‑respondent was compa ratively light, and this onus was sufficiently discharged as stated above. This is consistent with the view expressed in A I R 1927 Lah. 373 where it has been observed that mere recital in the deed as to necessity is no evidence of such necessity so as to bind minor members, where it is not shown that any enquiry was made at all, nor is it shown that proof of that enquiry was not forthcoming owing to lapse of time. In the present case not only evidence was led to prove the existence of legal necessity but also to show that further and better evidence on the point was not available owing to lapse of time, and the intervention of very exceptional circumstances, namely; the exodus following the creation of the two States of Pakistan and India.

As regards the payment of consideration the High Court does not appear to have considered certain material facts. The sale took place in May 1936, and it was made by a registered deed which contained a recital that the consideration had been received and this was supported by the evidence of D. W. 7. The onus in this respect, therefore, lay very heavily indeed on the plaintiff respondent to prove that the consideration had not been paid. This onus, in our opinion, has not been discharged. Furthermore on the analogy of the decision reported in I L R 42 Mad. 20. when the matter has passed from the stage of contract to that of an executed conveyance and possession of the property hay been given thereunder even non‑payment of consideration will not render the transaction void. The price if not paid, is a charge on the property sold and it can be recovered under the law.. Title to the property nevertheless passed on the registration of the sale deed.

We accordingly find it difficult to maintain the findings of the High Court on these points. It may be mentioned here that the trial and first appellate Courts did not consider it necessary to give any findings on these questions. It is not desirable at this distance of time to remand the case to the High Court to reconsider them. Upon the materials on record and for the reasons indicated earlier, we hold that the consideration must be considered as paid and that the vendors transferred 94 kanals of disputed land for legal necessity.

We are, however, unable to maintain the order of the High Court in respect of the other half of the disputed land. The transfer of this land was clearly without consideration and the mutation in respect of the land to which vendor Mst. Alaf Bibi was not a party, on the basis of the said sale deed, was illegal. Even if the mutation of this land can be regarded as a gift, it is not sustainable in law. According to custom such a gift could not be made in presence of a son, namely ; the respondent. We, therefore, hold that there has been no transfer of this half of the land to the appellants.

The appeal is accordingly allowed in part and the plaintiff respondent's suit with regard to 94 kanals of land is dismissed. The appeal with regard to the remaining 94 kanals of land is dismissed. We make no order as to costs.

Appeal partly allowed.

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