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First Appeal No. 92 of 1951 decided on 17th May, 1955 from the decree of the Court of Azam Ali, Senior Civil Judge, Lyallpur, dated the 18th August 1951.
--Sadozai Afghans settled in Lahore District‑ Governed by Muhammadan Law in matters of succession.
The parties were Sadozai Afghans settled in Lahore Dis trict. The plaintiffs‑daughters‑claimed their share accord ing to Muhammadan Law in the. estate left by their father, consisting of land and a Bank balance. Plaintiffs also claimed their share in the profits of land received by defendant No. 1 since the death of their father. The defendants‑a son of the deceased and the latters' widow‑pleaded custom in bar of the plaintiffs' claim.
Held (on evidence) that the defendants had entirely failed to prove any rule of custom in derogation of the plaintiffs right under Muslim Law to a share in the inheritance of their deceased father.
The parties were a royal Muslim family of Afghanistan that ever since its migration to this country had to a very large extent kept clear of the influence of local culture and had never identified itself with the occupation of agriculture. The burden of proof of custom was therefore heavy on defendants.
The facts proved by the defendants furnished .too slender a basis for a finding of the alleged custom. Instances adduced by the defendants did not disclose that certainty which is a sine qua non of a valid custom. The instances relied on by the defendants at best disclosed a practice on the part of some females of foregoing their shares in favour of their brothers, with or without consideration ; or on the part of males of illegally depriving the females of their due share in the inheritance by taking undue advantage of the peculiar social position of the latter.
Rutcheputty Dutt Iha Bho Launauth Iha and others v. Raj under Narain Rao and Coower Mohainder Narain Rae 2 M I A 133 ; Chaudika Bakhsh v. Muna Kunwar I L R 24 All. 273 (P C) ; Balwant Rao v. Baji Rao 47 1 A 213 and Mirabivi v. Vellavanna I L R 8 Mad. 464 ref.
Suit by a Muhammadan heir against a co‑heir for a share in the movable part of the estate of deceased Muhammadan‑Governed by Art. 120, Limitation Act (IX of 908)‑Arts. 62, 109, 123 inapplicable.
A suit by a Muslim heir against a co‑heir for a share in the movable part .of the inheritance falls outside the scope of Article 62 and is governed by Article 120 of the Limitation Act.
Articles 109 and 123 are inapplicable.
Interpretation of Art. 62 with reference to English Com mon Law disapproved.
A I R 1935 Mad. 731, 32 1 C 102 ; A I R 1933 Lah. 951 ; A I R 1924 Rang. 155. ; Midnapore Zamindary Co. Ltd v. Kumar Naresh Narayan A I R 1925 P C 93 ; A I R 1924 P C 144 and A I R 1949 E P 243 ; Muhammad Riasat Ali v. Hasin Banu 20 I A 155 ; I L R 21 Cal. 157 ; Ma Pwa Thein v. U Uvo A I R 1931 Rang. 318 ; Mst. Ghulam Bibi v. Mst. Sarwar Bibi A I R 1933 Lah. 784 ; Swarnamoyee Dasi v. Probodh Chandra Sarkar A I R 1933 Cal. 253 ; Ghulam Muhammad v. Ghulam Husain A I R 1932 P C 81; Muhammad Wahab v. Muhammad Ameer I L R 32 Cal. 527 ; Sinclair v. Brougham and another 1914 A C 398 ; Monarch Steamship Co. Ltd. v. A /B Karlshamns Olgifariker and others (1949) 1 All. Eng. Rep. 1 ; The Bank of England v. Vagliano Brothers 1891 A C 107 ; Norendra Nath Sircar v. Kamalbasini Dasi 23 I A 18 ; Riasat Ali v. Hasin Banu I L R 21 Cal. 157 ; Muhammadally v. Safiabai A I R 1940 P C 215 ; Joti Parshad v. Sant Lal 34 P R 1914 ; Muhammad Hamidullah Khan v. Muhammad Majidullah Khan 401 C 374 and Mst. Sharif Begum v. Court of Wards A I R 1940 Lah. 475 ref.
Bhagwati Saran Singh v. Rai Kishunji A I R 1936 Pat. 370, (371) dissented from.
Syed Lutf Ali Khan v: Mst. Afzalunnissa Begum 9 Beng. L R 348 and Amina Bibi v. Najmun‑Nissa Bibi I L R 37 All. 233 inapplicable.
Abdul Ghaffar v. Nur Jahan Begum 37 All. 434 does not lay down correct law.
Abasbhai Shaikh Abdul Hussain v. Bhimji Malji Choskey A I R 1932 Bom. 86 distinguished.
Muhammad Nazir and Fazal Elahi, for Appellants.
Mian Muhammad Shafi, for Respondents.
‑This is an appeal by the defen dants against the judgment and decree of the Senior Sub- Judge, Lyallpur, decreeing against them the suit of the plaintiffs respondents for their shares, according to Muslim Law, in the inheritance of their late father Shahzada Asad Jan, who died on the 21st of November, 1942. The two res pondents are the daughters, the defendant‑appellant No. 1 the son, and the defendant‑appellant No. 2, Shahzadi Sultan Begum the widow of the said Asad Jan. Sultan Begum is the mother of all the three children who alone admittedly survived their father. The property left by Asad Jan consisted of 21 squares of land situate in the District of Lyallpur (specified in the first paragraph of the plaint) and a sum of Rs. 9,155‑13‑8 in deposit with the Imperial Bank, Lahore. Besides their 7/16th share in these two items the plaintiffs also claimed Rs. 5,775 as profits of their share of the landed property since the death of their father.
The suit was resisted on two grounds firstly, That the rights of the parties in the inheritance of the deceased are governed by custom and not by Muslim Law, and, secondly, that the claim to mesne profits and a share in the Bank deposit is barred by time. The following four issues were raised in the lower Court and all of them were answered in favour of the plaintiffs‑respondents : ‑
(1) Was the deceased Shahzada Sultan Asad Jan governed by custom and did defendant No. 1, under the custom governing the deceased, succeed to his entire property to the exclusion of plaintiffs
(2) Is the entire or a part of the claim for mesne profits within time If only a part should be within time, what part of it is within time
(3) When did the cause of action to recover the plaintiffs' share of the debts of their deceased father, if they really succeeded to any share, arise, and is the claim for the share of the debts within time.
(4) Relief.
The findings on all the issues have been contested in this appeal.
As regards the first issue the custom set up in paragraph 4 of the written statement was that the family of the parties, which had settled down in the Punjab more than a century ago, was since a long time governed, in matters of alienations and inheritance, by custom ; and that such members of the family as settled in Lahore were governed by the custom of Lahore District and those who settled down in Ludhiana were governed by the custom of that district. The exact extent of the custom, and its application to the present dispute, was not stated ; but three instances were set forth. According to the first instance inheritance was mutated in favour of the sons of the deceased in preference to his widow and daughters ; and in the other two instances mutation was made in favour of widows in the absence of male children. The clear intention of the defendants' pleading, although it was not stated in so many words, was that such members of the parties' family as had settled down in Lahore had adopted the custom of that district, according to which daughters and widows were excluded from inheritance in the presence of male issue. Neither of the defendants entered the witness‑box ; but the only two witnesses who were examined by them set up a family or tribal custom and did not testify to the local custom pleaded by the defendants. D. W. 1, a cousin of the deceased Asad Jan, said : "Our tribe is governed by custom. Accord ing to our custom sons exclude daughters from inheritance." Similarly D. W. 2 asserted, "Our family of Sadozai Pathans has already (always ) been governed by custom in matters of succession. Among us daughters get no share in presence of son." This variance between pleading and proof is not without significance in the circumstances of this case.
The parties belong to the Sadozai tribe of Afghanistan and are descendants of the famous Ahmad Shah Abdali. After Shah Shuja Sadozai lost his Kabul throne during the first Afghan war he, along with a number of his relations and tribesmen migrated to India in 1830 ; and the presence of Sado zais in this country dates back to that year. The immigrants settled down in different places, mostly in Peshawar, Kohat, Lahore and Ludhiana ; some of them are also living in Bannu, Sargodha, Montgomery, Multan and few other towns. Some of them have also occasionally been changing their residence from one town to another. None is known to have settled down in any rural area. As to the occupation of the Indian branch of the tribe, P. W. 7, Shahzada Major Ghulam Muhammad Khan, stated in his examination‑in‑chief, "Shah zada Sultan Asad Jan (to whose inheritance the present dispute relates) commenced Government Service as an Extra Assistant Commissioner and retired as a Sessions Judge. A vast majority of members of our family has always been in service." In cross‑examination the following further facts were elicited from him : "One member of our tribe cultivates his own land but those who are not in service live on income of their land and political pensions allowed to them." P. W. 3 Shahzada Abdul Ali, said: "Our marriages are endogamous. Those of us who live at Lahore marry their daughters to those of us who live at other places and vice versa." These facts not only stand unrebutted' but are amply borne out by the evi dence on the record, District Gazetteers and Settlement Reports of several districts, History of the Punjab Chiefs and judgments of various Courts relating to this family, e. g., 73 I C 609 and Exhibit D. 7. In the face of these indisputable ‑‑and undisputed‑facts the defendants cannot assert‑that the general customary law of the Province, which applies to agricultural tribes alone, is applicable to them. The parties belong to a royal family and agriculture to this day has never been their occupation, even partially. They have all along kept clear of the influence of the local society by their absten tion from marrying amongst the local families. Nor can it be plausibly claimed that they are governed by the local custom of any district in this province for the local custom again is mainly agricultural custom, being only the local variation or modification of the general agricultural custom of the Province. It is, however, possible that, as alleged in the written state ment, members of the family who had settled down in a particular town may have adopted the custom of that town or its district , or, as alleged by the defendants' witnesses, the entire family as a whole, although settled in different parts of the country, may have in course of time adopted the custom of exclusion of females from inheritance. But in neither case can there be any initial presumption in favour of such a custom. On the contrary the onus of estalish ing it will lie upon the defendants. In Rutcheputty Dutt Iha Bho Launauth Iha and others v. Rajender Narain Rae and Coosver Mohainder Narain Rae (2 M I A 133) their Lordships of the Privy Council observed : "When a class of Hindus migrate from one place to another and retain their ancient religion, the presumption is, unless the contrary is shown, that they carried their personal law with them to the new settlement." The rulings in Chaudika Baksh v. Muna Kunwar (I L R 24 All. 273 (PC)) and Balwant Rao v. Baji Rao (47 I A 213) are to the same effect. The burden of proof on the defendants in this case is specially heavy in view of the facts that the family is a royal Muslim family of Afghanistan, that ever since its migration to this country it has to a very large extent kept clear of the influence of the local culture by its constant refusal to marry amongst the locals and that it never identified itself with the occupation of agriculture, which in this part of the country is the main source and basis of all custom relating to inheritance and alienations.
In support of the custom alleged by them the defendants have relied, inter alia, upon‑the Customary Law of Lahore District. 1916. There is no reference in this either to Sadozais or to Afghans Reliance is placed upon the fact that in the introduction of this book "Pathan" is mentioned as one of the tribes which were consulted in 1912‑16 at the time of the revision of the Riwaj‑i‑Am of 1868. It may be noted that no sub‑divisions of the Pathan tribe are given. It is true that in course of time the Sadozais in India have come to be known, and most of them have styled themselves, as Sadozai Pathans. Even the plaintiffs in this case have described themselves in the plaint as such. But, to the best of our knowledge, no tribe in the North Western Province, and in Afghanistan, the original home of the Sadozais, is known by the name of Pathan. This is a term in use mostly to the east of Attock river and is employed to describe or distinguish any person hailing from the west, whether from the N. W. F. P. or Afghanistan. We have been unable to discover the word Pathan anywhere in the Customary Law of the Peshawar Dis trict. The tribe mentioned in the Customary Law of Lahore as Pathan most probably represents the descendants of those persons who in times immemorial migrated to the east of Indus and settled down in various parts of India. A note worthy fact is that the Pathans are mentioned as an agricul tural tibe in the Customary Law, while we know it as a fact that the family with which we are dealing never adopted agriculture as its occupation. Since the parties' ancestors migrated from Afghanistan and belong to the Royal family of Sadozais in Kabul it would be more appropriate to describe them as Sadozai Afghans‑as the learned judge described Shahzada Faridun in Exhibit D. 6 ; or the plaintiff was des cribed in Exhibit P. 5, or the P. Ws. 3 and 4 in this case described themselves. In this view of the matter there can be no justification in applying the Customary Law of the Lahore District to the parties in this case. An attempt was made to make out during the cross‑examination of P. Ws. 3 and 4, and it was argued before us with reference to Exhibit P. 1, that the custom relied on by the defendants applies only to land. The sixty‑second question in the Customary Law, and its answer are as follows :‑
"Question 62.‑Is there any distinction as to the rights of daughters to inherit (1) the immovable or ancestral, (2) the movable or acquired, property of their father
Answer 62.‑All tribes.‑No distinction is made . . . ."
That there are Muslim families or tribes in this district which are governed by 'Muslim Law in matters of succession is apparent from the answer to the sixty‑fourth question: "Where daughters inherit by Muhammadan Law or exclude agnates as explained under Answer 61, they have full rights of alienation by sale, gift, mortgage, or bequest." It is not without significance that in the Customary Law of no district in which the Sadozais settled down, e. g., Lahore, Ludhiana, Peshawar, Kohat, are Afghans or Sadozais mentioned. It does not appear from paragraph 565 o'I Douie's Settlement Manual that the representatives of the towns were consulted at the time of the preparation of the Riwaj‑i‑Ams of the districts; and the Sadozais ever since their advent in India have been town dwellers. It was observed in Shiromani Gurdwara Prabandhak Committee v. Karam Singh (A I R 1930 Lah. 46) that the Customary Law of the district is based on enquiries made in the rural areas. Again it is laid down in paragraph 565 of the Manual : "It is only necessary to make such records for the principal tribes in each Tehsil." Considering their recent origin and small numbers Sadozais could not have been treated as a "principal" tribe. As already pointed out they are not stated in the Customary Law of Lahore District as one of the tribes, or sub‑tribes, who were consulted.
It has already been pointed out that the pleading of the defendants are at variance with the testimony of the only two witnesses produced by them ; the former allege the adoption of local custom by the members of the family settled down in a particular district, while the latter speak of the custom of the family or tribe settled down in the Punjab and N. W. F. P, Neither of the defendants entered the witness‑box to depose to the alleged custom. The oral evidence adduced by them lends hardly any support to their case. D. W. 1, whose grand‑daughter is married to the son of defendant No. 1, has given only one instance of the custom viz., the exclusion of his own sisters by himself and his brothers. One of his sisters Faxrukh Tai Begum instituted a suit for her share in the estate of her father and Exhibit D. 7 is the judgment of the Sub‑Judge dismissing the suit on the 8th of August, 1927. There was an appeal to the High Court and the witness admits in cross‑examination that "we submitted a Razinama and the High Court decided the suit in accordance with the Razinama." The plaintiff in that suit is the wife of P. W. 4 who has given the substance of the compromise in the follow ing words :‑
"My wife and her sister instituted a suit against their three brothers for a share of inheritance of their father. This suit was dismissed by the trial Court: Shahzada Anwar Jan, brother‑in‑law of Shahzada Saleh Muhammad, insti tuted a suit against me on a pro‑note. That suit was also dismissed. . Appeals were taken to the High Court from the decision of these suits. In the High Court Razinamas were entered into by all concerned and the appeals were ‑decided in accordance with the Razinamas.
In accordance to ( ) with the Razinamas both the appeals taken to the High Court were dismissed."
Thus the solitary instance mentioned by this witness' is wholly inconclusive. D. W. 2 besides deposing to the same instance gave one more instance, that of the exclusion of the daughters of Shahzada Ismail Jan by their brothers. Exhibit D. 2 is a copy of the mutation entry showing that the property of Ismail Jan. was mutated in the names of his four sons at the instance of Asad Jan, one of the sons. None of the sisters contested and there is nothing to show that they had any knowledge of the mutation. The reason for there being no claim by the daughters is thus stated by P. W. 7 (and this statement was not challenged in the cross‑examination) :‑
"Shanzada Ismail Jan left four sons and three daughters. His daughters were Mst. Saadat Sultan, Mst. Mahwara Sultan and Mst. Mubarik Sultan. Of them Saadat Sultan and Mst, Mahwara Sultan lived with Shahzada Sultan Asad Jan. Mst. Saadat Sultan was of unsound mind and Mst. Mahwara Sultan was a widow. Neither of the said two ladies had any issue. Mst. Mubarik Sultan lived at Ludhiana. Sultan Asad Jan built a house for her at Ludhiana. He further gave her a monthly allowance which is being paid up till now."
The knowledge of this witness (D. W. 2) of the alleged custom of his family will appear from his cross‑examina tion :‑
"It is a fact that some members of our family or tribe live at Ludhiana and some others at Peshawar. I really do not know the rules of custom or Muhammadan Law prevail ing among members of our tribe living at Ludhiana arid Peshawar. Sons exclude daughters only in respect of land. Again said, as a matter of fact, sons exclude daughters in respect of even movable property and money as well as house property. It is a fact, Shahzada Ismail Jan died before Shahzada Sultan Ibrahim Jan. Even unmarried daughters are excluded by sons from every form of property. Even widows are excluded by sons. In the absence of sons, daughters and widows succeed together."
Besides Exhibits D. 2 and p. 7, which have been already considered, learned counsel for the defendant relied on Exhibits D. 3, D. 4 and D. 6. Exhibit D. 3 relates to the muta tion of the estate of Shahzada Sultan Ahmad Jan, paternal uncle of the plaintiff and defendant No. 1. Ahmad Jan left a widow, a widowed mother and three brothers. His three bro thers, one of whom was Asad Jan, applied that the property be mutated in the name of their mother in accordance with the will of the deceased. In spite of repeated notice the brothers never presented themselves before the revenue authorities, nor did they produce, or cause to be produced, the alleged will. On the 31st of January, 1933 it was ordered that unless "the reversioners" present themselves with the will on the 25th of February, "mutation will be made in favour of the widow according to the custom". The reference, to custom in this order, which was made in the absence of the parties and members of the family, is obviously due to the commonly prevalent notion or presumption, that families owning agricul tural land are governed by agricultural custom. We repel the appellants' contention that the impression of the person who made this order that this family was governed by custom should be treated as evidence of the custom. On the next day nobody turned up and mutation was ordered in the name of the widow, Latafat Begum. The doubtful value of the mutation of Ahmad Jan's estate in favour of his widow becomes still more doubtful in view of the fact that in 1948 the latter gifted the whole of the property to her unmarried daughter 'Ahmadi Sultana (Exhibit P. 4).
In 1937, Shahzada Wala Gohar, a son of Sultan Ismail Jan, died leaving surviving him, a widow, a daughter and two brothers. By an ex‑parte order (Exhibit D. 4) without any claim or contest by any one, mutation of his agricultural property was made in favour of his widow Farkhunda Begum. Exh. D. 6 is copy of a judgment in the suit filed by one Bibi Begum for a one‑fourth share in the agricultural property of her grandfather Shahzada Faridun, a Sadozai Afghan who had settled down in Lahore. It was admitted by the parties that Faridun owned besides agricultural land four houses and that he had executed a will whereby he had bequeathed one‑fourth of his entire property to the plaintiff his granddaughter, one fourth to his wife, one‑fourth to his son, and one‑fourth to his grandson, the plaintiff's brother, and his mother jointly, The suit was contested on various pleas but it was dismissed on two grounds : firstly, that it was barred by time and, secondly, that the will was inoperative qua the land because it offended against the provisions of the Government Tenants (Punjab) Act of 1893. One of the'" issues in the case was : Did the plaintiff get her share of the property under the will and has defendant No. 1 (the plaintiff's brother) been recognising her as owner of one‑fourth The plaintiff had alleged that although the four houses had been divided according to the will (and this fact was not denied) the land remained joint all along and that on the next day of her fathers' death. her brother had executed an agreement whereby he undertook to pay bet Rs. 120 every harvest. Dealing with the conten tion that the agreement had been executed by the brother in recognition of his right in the land the learned Sub‑Judge observed : "I am inclined to think quite the other way. Among the Sadozai Pathans the succession of daughters is not rec6g nised by a special family custom. In all other respects they follow. Muhammadan Law. . . " Not much weight can be attached to these observations as there was no issue in that case regarding the alleged custom. Nor does it appear from the judgment that the defendants had pleaded custom. Indeed the fact that Faridun had in the presence of his son and grandson deemed it proper to give as much as one fourth of his property (almost as much as she would have got as an heir of her father under the Muslim Law) seems to indi cate that the idea of succession of females to landed property was not foreign or obnoxious to him. Among endogamous families there is little reason for excluding daughters from inheritance.
Learned counsel for the appellants also relied on the instances of exclusion of daughters mentioned in Exh. D. 7. The plaintiffs were not parties to that suit and, therefore, any evidence, reasoning or finding in the judgment in that case is not admissible against them (vide A I R 1931 P C 89 ; A I R 1929 P C 99 ; A I R 1930 Lah. 237 and A I R 1937 Lah. 437) Exh. D. 7 is admissible only as an instance, or transaction, in which the custom set up by the defendants in this case was upheld ; and as such, it has already been dealt with in an earlier portion of this judgment. But even if the instances mentioned in Exh. D. 7 could be' treated as evidence in this case, we are in general agreement with the learned trial Court that they, do not establish the custom pleaded by the defendant‑appellants.
The defendants have laid much emphasis on the exclusion from inheritance of the daughters of the plaintiff's own grand father Sultan Ismail Jan (Exh. D. 2), of their grandfather's brother Sultan Ibrahim Jan (Exh. D.7), of their paternal uncle, Sultan Ahmad Jan (Exh, D. 3) and of another paternal uncle, Wala Gohar (Exh. D. 4). Whatever value these instances may otherwise have had (and we have already shown that they possess little value) it has been completely neutralised by the deed of gift, Exh. P. 1, executed by Sultan Ibrahim on the 6th of January 1888, in favour of his two sisters, Agha Begum and Gohar Taj Begum in respect of his share in a house left by his father Sultan Adham. It is clearly stated in the deed that the heirs of the deceased Sultan Adham were the executant, his brother Sultan Ismail and his sisters Agha Begum and Gouhar Taj Begum. It was argued by the appel lants' learned counsel that this document does not demolsih his case inasmuch as it acknowledges the heirship of the two daughters only in the house property and not in the agricul tural land. In the first place the deed does not confine the claim of the daughters to any particular kind of property ; it recites clearly and unequivocally, that they are the heirs of Sultan Adham : "Whereas a haveli in the City of Lahore . . has been left by the late Shahzada Sultan Adham (Khan Bahadur ) whose heirs are myself, my own brother Sultan Ismail and Mst. Agha Jan and Gohar Taj Begum." Moreover, the defendants did not plead that the operation of the custom alleged by them was confined to landed property only. Even the plaintiffs' claim to the money of their father in the Bank was resisted on the basis of custom. Both the witnesses of the defendants stated that the‑ daughters get no share in the inheritance. It was only during his cross‑examination that the D. W. 2.was forced to shift his ground by saying, "Sons exclude daughters only in respect of land." But; in the next moment he retraced his steps : "Again said, as a matter of fact, sons exclude daugh ters in respect of even movable property and money as well as house property." In none of the judgments on the record of this case was it ever contended that custom applies to land only. It was wholly unnecessary for Sultan Ibrahim to men tion agricultural property in Exh. P. 1 as the gift related only to his share in a certain house left by his father. The gift might have been made out of love or in lieu of the sisters' shares in the agricultural land. Be it as it may, it is clear that until 1888 custom as a weapon against the females had not been thought of in this particular branch of the Sadozai family.
In 1922 Sher Ali filed a suit for partition of the property left by his father Shahzada Wala Gauhar of Ludhiana. The first issue raised in that case was :‑
Are parties governed by custom prevailing among agricul turists in matters of succession
It was found "that Muhammadan Law governs the parties in all respects." Exh. P. 5 is a copy of the judgment. One Mst. Gauhar Nisa, living in Peshawar, died in 1915 leaving two daughters and a son and there was litigation in respect of her property between her daughter and the widow and daughter of her son who had also died in the meanwhile. It was pleaded by the defendants that the parties were governed by a special custom excluding females from inheriting immovable property. There was "a very complete body of evidence‑upon the record upon both sides of the question" and the learned trial judge, after dealing with the issue at length, rejected the plea of custom. Upholding the finding of the lower Court in appeal, the learned Judicial Commissioner held that the Sadozai family descended from Shah Shuja follows Muhammadan Law in matters of succes sion and that no custom obtained in the family whereby females are excluded from inheritance (73 I C 609).
The plaintiffs examined six witnessas to prove that succes sion in the family is governed by Muslim Law exclusively P. W. 2, Shahzada Sultan Mahmud of Peshawar deposed that on the deaths of one Shahzada Jehangir and the witness's grand‑father's brother, Shahzada Muhammad Yusaf, their inheritance was divided among all their heirs, male and females, in accordance with Muslim Law. Nothing was brought out in cross‑examination to cast doubt on his testi mony. Two of the instances cited by P. W. 3 stand unre butted. Shahzada Muhammad Zaman of Ludhiana died leaving two sons and a daughter. His property was mutated in the names of all the three in the presence of this witness. Shahzada Muhammad Jehangir gifted his whole property to his sons and daughters according to their legal shares as his heirs. P. W. 5 stated that his father distributed his property in his life‑time among his wife, seven sons and five daughters according to Shariat. He further stated that on the death of Shahzada Muhanima.d of Peshawar his property was inherited by his daughter and sisters, but he did not know the extent of the shares taken by them. P. W. 6 deposed that on the death of Shahzada Ghulam Qadir of Ludhiana his property was divided among his widows, two sons and two daughters in accordance, with an arbitrator's award. The parties had referred the matter to arbitration in order to avoid any possible dispute.
This is all the evidence relied on by the parties before us. Excepting the two judgments Exhs. D. 6 and D. 7, which we have already shown to be entirely inconclusive, the entire evidence produced by the defendants amounts to this much only : that sometimes mutation of the property of a deceased person was made in the name of his widow and sometime in the names of his sons in the presence of his daughters. Are these instances sufficient to prove that this endogamous royal family of Afghanistan has within the past half century (be cause no instance goes beyond that time) have adopted some custom mostly prevalent amongst the agriculturists in deroga tion of the Muslim Law in spite of the fact that they never adopted agriculture as their occupation. , As against these instances, we have instances, and two, of them judicially recognised, where daughters participated in the inheritance of their parents in accordance with the, rules of Shariat, and therefore, the instances adduced by the defendants do not disclose that certain which is a sine quo non of a valid custom. The instances reified on by the defendants at best disclose a practice on the part of some females of foregoing their shares in favour of their brothers, with or without consideration ; or on the part of males of illegally depriving the females of their due share in the inheritance by taking undue advantage of the peculiar social position of the latter. It was observed in that well‑known case of Mirabivi v. Vellayanna (I L R 8 Mad. 464) :--‑
"It must be admitted that the instances have been adduc ed in which the claims of daughters and sisters to a share have been ignored, or they have been allotted maintenance, though the cases mentioned by the Judge of a partition in the father's lifetime are not inconsistent with Muhammadan Law. There are also cases in which married daughters have been treated as estranged from the family. . But instances of this kind will be found to occur where there is no doubt that the family is governed , by pure Muhammadan Law. Indeed, in many parts of the country it is unusual for Muhammadan ladies to insist on their unquestioned rights. They will often prefer being maintained by, their brothers to taking a separate share for themselves, and when they are married the marriage expenses and presents are often by express or implied agreement, taken as equivalent to the stiare which they could claim. Moreover, Muhammadan females are so much under the influence of their male relations, that 'the mere partition of the property among the males without reference to them cannot count for much A single instance to the contrary would out‑weigh many such partition deeds when the existence of a binding custom is in question . . . "
" . . what the respondents assert as a custom is a mere practice, more or less common, and that it has not the characteristic of a genuine custom, viz., that it is consci ouslyaccepted as having the force of law."
These observations were noted by their Lordships of the Privy Council with "entire agreement" in Abdul Hussain Khan v. Mst. Bibi Sona Dero and another (A I R 1917 P C 181) and have since been consistently followed by Courts in this subconti nent. Lest, however, this passage may create the erroneous impression that a female in Muslim families is a helpless and oppressed being and generally exploited by the males, we would add that this attitude of the female towards the inheritance of her father or brother is as a rule grounded in sentiments of family love and affection not readily compre hensible to the more materialistic and matter of fact European mind. It is not at all a rate phenomenon in families governed by Muslim Law that the children, males and females, of a deceased Muslim, have the entire property mutated in the names of their mother. Even in families where succes sion is regulated by custom it quite frequently happens of course in varying degrees according to the cultural stratum of the society to which the family belongs‑that sisters are treated well and generously by their brothers and allowed the benefit of their parents inheritance in one form or another.
Upon a consideration of all the material on the record and the circumstances of this case, we are clearly of the opinion that the facts proved by the defendants appellants, even if they be treated as positive evidence of custom, furnish too slender a basis for a finding of the alleged custom. We have, therefore no hesitation in holding that the defendants A have entirely failed to prove any rule of custom in derogation of the plaintiffs' right under Muslim Law to a share in the inheritance of their deceased father, Sultan Asad Jan. We might add that the defendant‑appellant No. 2, Sultan Begum, had along with her sister F,arrukh Begum, sued her brothers and step‑brothers in 1924 for a share in the inheritance of her father on the basis of Shariat.(Exh. D. 7) and, as already noted, the claim was subsequently given up under a compromise.
It was contended by the appellants that the claim to the profits of the property claimed by the plaintiffs is barred by three years limitation. Applicability of Article 62 of the First Schedule of the Limitation Act "for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiffs' use"‑is on the face of it excluded by the more specific Article 109‑"for the profits of immovable E property belonging to the plaintiff which have been wrongfully received by the defendant. The latter Article, however, is in terms inapplicable because (1) the property did not belong to the plaintiffs alone ; it belonged to them jointly with the defendants ; and (2) the defendant No. 1 did not "receive" the profits "wrongfully", because as a co‑owner he could legally realise the profits of the entire joint property. A suit by a co‑owner of his share in the joint property realised by another co‑owner is governed by the residuary Article No. 120, vide A I R 1935 Mad. 731, 32 1 C 102, A I R 1933 Lah. 951, A I R 1924 Rang. 155, Midnapore Zamindary Co. Ltd. v. Kumar Naresh Narayan (1925 A I R P C 93, A I R 1924 P C 144, and A I R 1949 E P 243).
The plea of limitation was also raised against the plaintiffs' claim to a share left by their father in the Imperial Bank and the application of Article 62 was strenuously contended for. On a plain reading that Article is inapplicable because in this case the first defendant did not receive the money from the Bank for the plaintiffs' use. The heirs under Muslim Law are tenants‑in‑common and the defendants received the money in that capacity, or, if that was his intention, in assertion of his title to the entire amount in denial of the plaintiffs' title. In either case it cannot be said that he received the money for the plaintiff's use. He was entitled to "receive" the whole of it as a co‑heir and the plaintiffs, if their title was admitted or established, could only call upon him to give them their legal shares. In this view of the matter there are only two other Articles in the Schedule, viz. 723, and 120, which can possibly apply. It is now settled beyond dispute that Article 123‑"for al distributive share of the property of an intestate"‑is applica ble to suits against an administrator. Muhammad Riasat Ali v. Hasin Banu (20 I A 155 = I L R 21 Ca1. 157), Ma Pwa Thein v. U Uvo (A I R 1934 Rang. 318), Mst. Ghulam Bibi v. Mst. Sarwar Bibi (A I R 1933 Lah. 784), Swarnamoyee Dasi v. Probodh Chandra Sarkar (A I R 1933 Cal. 253) and Ghulam Muhammad v. Ghulam Husain (A I R 1932 P C 81). Thus there remains only the residuary Article 120 which alone governs a suit of this nature.
Learned counsel for the appellants has, however, relied upon certain cases which have interpreted the language of the sixty‑second. Article with reference to the Common law of England. In the well‑known case of Muhammad Wahab v. Muhammad Ameer (I L R 32 Cal. 527) Sir Asutosh Mookerjee observed: "It seems to me to be clear, as pointed out by Markby J. in Raghumoni Audhikwy v. Nilmoni Singh Deo (I L R 2 Cal. 393) that Article (62), when it speaks of a suit for money received by the defendant for the plaintiff' use, points to the well‑known English action in that form, consequently the Article ought to apply wherever the defendant has received money which in justice and equity belongs to the plaintiff under circum stances which in law render the receipt of it, a receipt by the defendant to the use of the plaintiff. As pointed out by Lord Mansfield, C. J., in Moses v. Macfarlene ((1760) 2 Burr. 1005), this form of action lies for money paid by mistake, or upon a consideration, which happens to fail, or for money got through imposition (express or implied) or extortion or oppression or an undue advantage taken of the plaintiffs' situation contrary to law made for the protection of persons under those circumstances, in other words, this form of action would be maintainable in cases in which the defendant at the time of the receipt, in fact or by presumption or fiction of law, receives the money to the use of the plaintiffs : See also Keener on Quasi Con tracts, page 180." After referring to four English cases, viz. Litt v. Martindal ((1856) 18 C B 314), Andrews v. Hawley ((1857) 26 L J Exch. 323), Neate v. Harding ((1851) 6 Exch. 349) and Holt v. Ely ((1853) 1 E & B 795) where the defendants had wrongfully obtained the plaintiff's moneys, either by false pretence or under fraudulent misrepresentation the learned judge concluded : "It is clear, therefore, that under the English Law, a sum received by the defendant is treated as having been received for the plaintiff's use, even though it might have been taken wrongfully, and I am of opinion that the same principle ought to be applied in construing Article 62."
The origin of the Common Law form of action pressed into service by Sir Asutosh dates back to that stage in English legal history when the Common Law of England, with all its peculiarities and oddities, was still in its rudimentary state. The history and nature of this action was thus described by Viscount Haldane L. C., in Sinclair v. Brougham and another (1914 A C 398).
" The claim in Moses v. Macterlan (2 Burr. 1005) was one of assumpsit in the form of the common indebitatus assumpsit count. This was a form of claim which had been very gradually evolved. The researches of recent writers appear to me to have placed its origin in its true light. The basis of actions of this kind was originally tort, a writ having been framed in concimili casu under the provisions of clause 24 of the Statute of Westminster (13 Edw. 1). By degrees, out of this action on the case and as one of its forms, a new form which was soon to diverge wholly from tort, the action of assumpsit, arose. In Slad's case ((1604) 2 Rep. 92 (b)) the Judges resolved that "every contract executory imports in itself an assumpsit, "with the result that it became no longer neces sary or desirable to use as the remedy where money was due the action of debt, which was embarrassing because it let in the right to a "wager of law." Then came the extension of indebitatus assumpsit to cases in which it was clear that no express promise could be proved. For, as Lord Mansfield points out, the law is ready to imply a debt in such cases arising quasi ex contractu. The promise to pay which created the right of action might have been a pure fiction of law. In many cases no such promise could possibly have been established. Yet it took some, time before the judges brought themselves to go so far. Starke v. Cheesman ((1699) I Ld. Raym. 538) was a claim on a bill of exchange by the holder against the drawer on the allegation that the drawee bad refused to accept. It was held that an actual promise just be implied. But what is remarkable is the language of the judgment in which the declaration, which contained an indebitatus assumpsit count, was held good. Holt C. J. is reported to have said "that the notion of promises in law was a metaphysical notion, for the law makes no promise, but where there is a promise of the party." Yet, the obser vation of Holt C. J. notwithstanding a little latter on this "metaphysical notion" became firmly established. For it was just the fiction of attributing a promise in a multitude of cases where in reality there was none which finally gave the action its comprehensive range, and made it available even where no fact importing or implying privity of con tract could be proved. The history of the action of assumpsit has been described by a writer to whom lawyers and historians alike owe much, the late Professor Ames of Harvard University in language which shews how easily the fiction of a promise grew into part of the law. Speaking of the action of assumpsit generally he says : "In its origin an action of tort, it was soon transformed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract. Based at first only upon an express promise, it was afterwards supported upon an implied promise, and even upon a fictitous promise. Intro duced as a special manifestation of the action on the case, it soon acquired the dignity of a distinct form of action, which superseded debt, became concurrent with account, with case upon a bailment, a warranty, and bills of exchange, and competed with equity in the case of the essentially equitable quasi contracts growing out of the principle of unjust enrichment. Lectures on Legal History, page 166."
We wonder how much of the learning contained in the passage quoted above is easily comprehensible to an average lawyer in this country. Excursions by the judges of this country into the domain of English Law are at times likely to cause great hardship and even injustice.. The law refuses to excuse any one for the ignorance of its august command ments‑but the bewildered citizen may well ask : Which law, our own or that of England There appears to be utterly no justification or warrant for importing this artificial and peculiarly English form of action into the body of the law of this sub‑continent where the courts from their very incep tion were courts of law as well as courts of equity and were able to dispose of every case on its merits rationally without recourse to subversion of logic and facts. The reasons for occasional lapses into English Law are not far to seek e. g., an excessive zeal for legal erudition or, in the case of early British judges presiding over the High Courts in India, inability to think in terms other than those of English common law in which alone they had received their legal training. The danger of importing notions or principles of the laws of a foreign country was forcefully brought out by Lord Wright in a recent case in the House of Lords Monarch Steamship Co. Ltd. v. A/B Karishamns Olgifariker and others ((1949) 1 All. Eng. Rep. 1) in the following words : How difficult and, perhaps, dangerous it may be to ask a British judge to rely on a particular United States decision torn from its settings in the totality of the United States Law and Statutes, simply because of some partial similarity in the facts." The remarks of Lord Wright apply with greater vigour where in interpreting plain words of a statute of a country a whole branch of the law of another country, peculiar to its particular legal system and history, is sought to be imported only by reason of some similarity in the common language employed. We are, therefore, unable to follow those cases which have laid down that Article 62 of the Indian Limitation Act has made the English action of money had and received for the plaintiffs' use applicable to the Indo‑Pak sub‑continent. In this we are not faced with the application of the principle of stare decisis for the opinion of the learned judges of the various High Courts in India on this question has not been always uniform. In a latter case, Ananrtam Bhattacharjee v. Hem Ghandra Kar (I L R 50 Cal. 475) a Division Bench of even the Calcutta High Court dissented from the ruling in Muhammad Wahab v. Muhammad Ameer.
The ruling of the Patna High Court in Bhagwati Saran Singh v. Rai Kishunji, relied on by the appellants, deserves consideration at some length. The facts of the case, which are not clearly set forth in the judgment, are, as far as we have been able to make them out, these: The defendant had sold the property to the plaintiff but before mutation could be entered in the latter's name the property was sold for arrears of revenue. The surplus proceeds of the revenue sale viz. Rs. 1,890‑14‑6 were paid by the Collector to the defen dant in accordance with the provisions of section 31 of the Bengal Land Revenue Sales Act, which required the payment of surplus in such cases to be made to the recorded proprietor. The plaintiff sued the defendant for the surplus amount and interest. In appeal by the defendant it was contended by his counsel "that as the Collector was bound to pay his client under section 31, Act II of 1859, he was in law entitled to the sum, and that there was nothing either in contract or quasi contract under which the plaintiff could recover." The Act did not make the recorded proprietor the owner of the land to the exclusion of real owner or owners ; it only indicated the person, payment to whom would, as between the Collector and the owner of the land, be deemed to be full discharge of the Collector's liability. The simple answer to the appellant's ingenious argument would have been that the plaintiff was as much, and in the same sense, entitled to recover from the defendant the surplus after the revenue sale as he was to recover from him, before the sale, the land itself and its profits. The plaintiff was as much the owner of the sale proceeds as of the property itself which had been sold under law for the payment of the revenue. Wort J., however, could discover the solution of the problem only in the Law of England : "But in this case the cause of action is for money had and received to the plaintiff's use and in considering that cause of action we are applying no specific provision of the law of India as there is none, but the rule of justice, equity and good conscience : in other words, in the absence of any rule in India, the Law of England as pointed out by Lord Hobhouse in the case reported in Volume XIV of Indian Appeals, to which repeated reference has been made by me in this Court".
The question of limitation did not arise and, therefore, was not decided in the Patna case ; it only lays down the principle on the basis of which relief was granted to the plaintiff on the facts of that case. The ruling, however, furnishes support to the appellants in so far as it rules that the action of assumpsit (for money had and received for the plaintiff's use) is a part of the law of this country. It is true that in the absence of any statutory provision, or any other specific rule of law, rights and liabilities have to be adjudged by rules of equity, justice and good conscience ; but the learned Judge went too far in stating that those rules must be taken to be the "Law of England". The dictum of Lord Hobhouse, referred to by the learned Jude, appears at page 96 of Volume 14 of Indian Appeals in the following context :‑
"Now it was most candidly stated by Mr. Mayne, who argued the case on behalf of the respondent, that there is not in Indian law any rule which gives a guardian and manager greater power to bind the infant ward by a personal covenant than exists in English law. In point of fact, the matter must be decided by equity and good cons cience, generally interpreted to mean the rules of English Law if found applicable to Indian society and circum stances."
The omission, in the quotation given by Wort J of the expressions "generally" and "if applicable to Indian society and circumstances" and the substitution of "the Law of England" for "the rules of English Law" has put a com plexion upon' the matter which was obviously not in the contemplation of Lord Hobhouse. All that the noble Lord meant was that, if applicable to its society and circumstances, the rules of equity, justice and good conscience obtaining in England may, in the generality of cases, be taken to be applicable to India‑and this proposition, if we may say so with profound respect, is unexceptionable and would, to a very great extent, remain so if for "England", "the U. S. A:" were substituted. "The Law of England" does not consist only of rules of equity; justice and good conscience ; it very largely comprises of "Common Law," which has throughout its peculiar and interesting history, thrived on technicalities and fictions. The action of assumpsit is one of the dear offspr ing of the English Common Law and can it, as such, be safely adopted in our system of law and equity It may not be without interest to note that while Wort J., an English practising barrister appointed to the Bench of the Patna High Court, easily succumbed 'to the call of the Writ of Assumpsit, the other learned member of the Division Bench, Rowland J., a Judge recruited from the Indian Civil Service, based his conclusion on an elementary principle of equity and commensence acknowledged all over the word " . . . the suit," concluded the learned judge, "has to be decided on the simple question in whom the ownership of the property was when it was sold ".
Again, can that English action, on any sound principle of interpretation of statutes, be read into Article 62 of our Limitation Act We cannot do better than answer the question with the following quotation from the opinion delivered by Lord Herschell in the House of Lords in The Bank of England v. Vagliano Brothers (1891 A C 107) :‑
"I think the proper course (in interpreting an Act) is in the first instance to examine the language of the statute uninfluanced by any considerations derived from the previous state of the law and to start with enquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, roaming over a vast number of authorities in order to discover what the law was, entracting it by a minute critical examination of the prior decisions."
These observations were relied on by Lord Macnaghten in delivering the opinion of the Board in Norendra Nath Sircar v. Kamalbasini Dasi (23 I A18). Applying these principles to the simple and common words of Article 62‑"For money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use"‑We feel we shall be wholly unjustified in travelling outside those plain words in determin ing their meaning.
The ruling of the Judicial Committee of the Privy Council in Syed Lutf Ali Khan v. Mst. Afzalunnissa Begum (9 Beng. L R 348) relied on by the appellant's learned counsel, has no bearing whatever on the facts of this case. In that case their Lord ships rejected the plea of limitation on the ground that, on account of a compromise between the parties, limitation remained in suspense. It was not at all indicated as to what was the period of limitation applicable to the facts of that case, which were wholly dissimilar to the facts before us. The facts and the decision in Amina Bibi v. Najmun‑Nissa Bibi (I L R 37 All. 233) are fairly brought out in the head‑note of that report which is a s follows :‑
"Some of the heirs of a deceased Muhammadan brought a suit upon a mortgage in his favour impleading as a defendant the remaining heir. The plaintiffs obtained a decree, and in execution thereof brought the mortgaged property to sale on the 21st of May, 1906, and purchased it themselves for a sum slightly in excess of the amount of the decree and costs. The decree‑holders auction purchasers paid .in the excess and got possession. On the 1st of June, 1912, the remaining heir sued to recover her share in the mortgage money, or in the alternative, a share in the property pur chased.
Held that the plaintiff had no cause of action so far as the property was concerned, and that as to the money her suit was barred by article 62 of the first schedule to the Indian Limitation Act, 1908."
This ruling is inapplicable to the facts of this case and we decline, with all respect, tp follow it as it is based on Muhammad Wahab v. Muhammad Arneer. That this case is clearly distinguishable from the case before us is evidence from the following observations, which actually support the view we are taking :‑
"It is obvious that the present suit is not one to establish a right of inheritance. The plaintiff's right to a one‑fourth share in the money has not at any time been disputed."
In the same volume another case of that Court is reported at page 434 (Abdul Ghaf far v. Nur Jahan Begum), which fol lowed the rulings in Muhammad Wahab and Amina Bibi's case; and for that reason we are regretfully unable to treat it as laying down correct law. In Abasbhai Shaikh Abdul Hussian v. Bhimji Malji Choskey (A I R 1932 Bom. 86) one of the learned Judges based his judgment upon the ruling in Muhammad Wahab's case but the learned Chief Justice arrived at a conclusion for which it was unnecessary to drive any support from that ruling as would appear from the following sentence in his judgment: "In that view of the matter it is not necessary for us to consider the question discussed by the learned judge as to whether or not under the English Law an action for money had and received would lie or not." That case is also dis tinguishable from the case before us on facts.
Our conclusion that a suit by a Muslim heir against his co‑heir for his share in the movable part of the inheritance 1 clearly falls outside the scope of Article 62 and is equally clearly governed by Article 120 is amply supported by authority. In the case ‑of Raasat Ali v. Hassin Banu (I L R 21 Cal. 157) the plaintiff sued to recover the estate of her deceased husband from the latter's brother Riasat Ali who had taken possession of it. The estate consisted of both movable and immovable properties. Their Lordships of the Privy Council held, in regard to the cash and movables wrongly seized by the de fendant, that neither Article 123 nor Article 49 applied, but that Article 120 applied. In Muhammad Ali v. Sahabai (AIR 1940 P C 215) their Lordships of the Privy Council observed : "It is a suit against certain Muhammadan co‑heirs by a person entitled to part of interest of an heir and the High Court on appeal rightly held that to such a suit neither Article 106 nor Article 123 is applicable. The heirs of a Muhammadan succeed to his estate in specific shares as tenants‑in‑common and, the plaintiffs' suit against the son and daughters of Ebrahimji for due administration of what came to their hands 1s property left by their father is governed as regards immov able property by Article 144 and as regards movables by Article 120 : 20 I A 155 Muhammad Riasat Ali v. Hasin Banu (59 I A 74)". In Marian Buriammal v. Kadir Mura Sahib Taragan (29 I C 275) the Madras High Court ruled that to a suit brought by one of the heirs to recover his share of estate left by a Muhammadan who died intestate, Article 144 of the Limita tion Act is applicable if the property is immovable, but if it is movable Article 120 is applicable.
In the Punjab it has been almost consistently held that such a suit is governed by Article 120. In rloti Parshad v. Sant Lal (34 P R 1914) Sir Arthur Reid, Chief Justice, relying Oil Muhammad Riasat Ali's case, held that a suit by one brother for recovery from another brother of half of the jewellery left by the widow of another brother was governed by Article 120 and not by Article 49. A Division Bench of the Chief Court held in Muhammad Hamidullah Khan v. Muhammad Majidullah Khan, that a suit for partition of movable and immovable property and cash left by the parties' father is not, in respect of cash, governed by Article 62 but by Article 120. In Mst. Sharif Begum v. Court of Wards (A I R 1940 Lah. 475) a Division Bench of this Court held that a suit by the plaintiff to recover her share of the cash left by her father was governed by Arti cle 120 and not by Article 62. The ruling in Muhammad Riasat Ali v. Hasin Banu was relied on.
As the appellants have failed on all the points raised by them, we dismiss their appeal with costs and confirm the decree passed against them by the learned trial Court.
A. H.Appeal dismissed.
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