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First Appeal No. 469 of 1945, referred by Sir Abdul Rashid, C. J. and Muhammad Khurshid Zaman, J. to a larger Bench on 18th May 1948. The reference was answered by Full Bench consisting of Sir Abdur Rahman, A. C. J., Muhammad Sharif and Cornelius, JJ. on 2nd July 1948. The appeal was finally decided by a Division Bench, consisting of Muhammad Munir. A. C. J. and Muhammad Khurshid Zaman, J. on 7th October 1948. The appeal was against the order of Sub‑Judge, 1st Class, Gujrat, dated 20th July 1945.
-West Punjab‑Alienation of land‑Alienation by widow of her husband's self‑acquired property with the consent of her daughter‑'Daughter surviving widow‑Her son can challenge the alienation.
.‑Paragraph 64 of Rattigan's Digest raises a very strong presumption against a female's power, of alienation. Notwith standing that the presumption might be displaced atl4 the contrary might be proved. In custom there is nothing sacrosanct but the quantum of evidence must be heavy. It would be a rare case indeed where under custom a " daughter " would approximate to a " male " in her powers to deal with the property she had succeeded to.
The answer to the question referred to the Bench, thereto, is that the consent of her daughter to the alienation by the widow of the self acquired property of her husband shall, in case the daughter survives the widow, operate to invest the alienee with her own rights only which shall be presumed to be limited to her life‑time and shall not debar her son from challenging the alienation.
A I R 1946 Lah.180 discussed: A I R 1941 P C 21; 19 P R 1887 ; 18 P R 1906 ; A I R 1931 Lah, 809 ; A I R 1936 Lah, 594 referred to.
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--‑Reference made to a larger Bench ‑Reference answered‑Party subsequently cannot object that form of question was incorrect.
‑‑If the question framed by the Division Bench after hearing the appellant was incorrect and did not arise in the case as is alleged by him (appellant's counsel) now, it was obviously his duty to object to the form of the question before the Division Bench It is only after he was made to realise the implications of the question framed that he attempted to wriggle out of the position agreed to by him before the earlier Division Bench. High Court cannot allow him now to argue that his case is different from the one formulated in the question.
S. 6‑Afterborn son of daughter has no right to challenge alienation by his mother's mother, when suit by reversioners had been decreed.
.‑The alienation alluded in the question referred to the Full Bench is the alienation of 1922 while the present suit was brought by the appellant in 1944. The appellant is an afternoon son and if it be assumed that he has the right to question the alienation, the suit is clearly barred by time having been brought more than 20 years after the alienation. At the time of the alienation some of the reversioners were alive and they brought a suit challenging the alienation, which was decreed. Time, therefore, began to run from the date of the alienation and the consequent birth of the plaintiff could not stop it from running.
B. Z. Kaikaus and Tasadduq Hussain for Appellant.
Dr. Shuja‑ud‑Din and Nazar Muhammad for Respondents.
It has been held by a Full Bench of this Court in the case Ali Muhammad v. Mst. Mughlani and others (A I R 1946 Lah. 180 (F B)) that " a gratuitous aliena tion by a widow of her husband's self‑acquired or ancestral property with the consent of the next reversioner is not valid and can be challenged by a remoter reversioner provided his suit is not altogether a speculative one in other words, a considerable number of other re versioners do not intervene between him and the presumptive rever sioner. However, so far as the consenting reversioner and persons deriving title from him are concerned they cannot challenge the alienation and obtain a declaration that it is invalid, When a declaration is granted to a remote reversioner in the circumstances of any particular case, the decree should clearly provide that the declaratory decree will not ensure for the benefit of the consenting reversioner or of persons deriving title through him." It was contended by Mr. Kaikaus that these observations are applicable only when the consenting reversioner is a male. It was urged that if the presumptive heir is the daughter of the last male holder and consent to the alienation is given by her, such consent does not debar her son from challenging the alienation as he does not derive title to the property through his mother but derives his title from the last male holder, i.e., through his grandfather who was the husband of the widow who alienated the property. It, was contended that if the presumptive reversioner is a male he becomes an absolute owner after the death of the widow and the alienation by the widow with his consent can be regarded as two alienations embodied in one transaction, i.e., an alienation by the widow in the favour of the presumptive reversioner and an alienation by the presumption reversioner in favour of the stranger. It was maintained that when the presumptive heir is a daughter of the last male holder, she does not become the absolute owner of the property on the death of the widow even though the property be self‑acquired. As she does not become an absolute owner of the property as a male presumptive re versioner would, her consent does not amount to a second alienation by the presumptive heir in favour of the stranger.
The question referred to above is a difficult one and is not covered by the Full Bench decision in A I R 1945 Lab. 180. We would, there fore, refer the following question for decision to a Full Bench :‑
" If a widow alienate the self‑acquired property of her husband with the consent of her daughter, does such a consent debar her son from challenging the alienation "
The papers will now be laid before the learned Chief Justice for the constitution of larger Bench for the decision of the question referred to above.
‑The following question has been referred to the Full Bench for decision :‑
"If a widow alienate the self‑acquired property of her husband with the consent of her daughter, does such a consent debar her son from challenging the alienation : ‑
No case directly dealing with the point in issue was cited before us, but a somewhat similar question arose in Ali Muhammad v. Mst. Mughlani (1). There the alienation by a widow succeeding under custom to a life‑estate was assented to by the next male reversioner and at page 191 it was observed as follows :‑
" For the reasons given above, it must be held that a gratuitous alienation by a widow of her husband's self‑acquired or ancestral property with the consent of the next reversioner is not valid and can be challenged by a remoter reversioner provided his suit is not altogether a speculative one in other words, a consider able number of other reversioners do not intervene between him and the presumptive reversioner. However, so far as the consent ing reversioner and persons deriving title from him are concerned they cannot challenge the alienation and obtain a declaration that it is invalid. When a declaration is granted to a remote reversioner in the circumstances of any particular case, the decree should clearly provide that the declaratory decree will not ensure for the benefit of the consenting reversioner or of person deriving title through him. There is another rider that must be added to the rule enunciated above concerning non‑ancestral property. Qua such property, the widow's alienation will become indefeasible in case succession opens out during the life‑time of the immediate reversioner who has given his consent and he becomes vested with the inheritance. The reason‑ for this proviso is that as soon as the widow dies or succession opens out in any other manner, the immediate reversioner who has given his consent comes into possession of the estate and concerning non‑ancestral part of it he enjoys power of absolute disposal. Punjab Act I of 1920 has placed a statutory impediment in the way of next reversioners and has declared that they have no right to challenge alienations of non‑ancestral property by a male owner. That being so, his consent to the widow's alienation in respect of her husband's self‑acquired property in cases where the consent ing reversioners acquire the estate by inheritance, cures all defects that may have existed in the alienee's title on the equitable rule given statutory recognition in section 18, Specific Relief Act, and applied in exactly similar circumstances in a considerable number of decisions of this Court. This, however, is not so where the consenting reversioner dies during the life‑time of the widow and never becomes vested with the inheritance. In that case by his consent he cannot sign away the rights of others. His consent in such cases cannot be deemed to be an alienation by him in favour of a stranger because he had no power to make an alienation of the property with which he was never vested. In respect of the ancestral property, the estate of the next immediate reversioner is itself limited and he cannot, therefore, by any act of his make the title of the alienee indefeasible because his own alienations can be challenged by the remoter reversioners."
The above passage shall make it clear that where consenting reversioner survives the widow and "comes into possession of the estate" which is non‑ancestral, his consent "cures all defects that may have existed in the alienee's title on the equitable rule given statutory re cognition in section 18, Specific Relief Act." All persons deriving title from him shall also be barred and the title of the alienee shall become " indefeasible". But where he died before the succession opened out or the property being ancestral, his own estate was limited, his con sent could not operate to " sign away the rights of others". In other words, to make the consent of the next reversioner effective it is neces sary that he should have inherited the estate free from all limitations, and if it was never inherited or he did not become the absolute owner thereof, his consent would not make the position of the widow's alienee unassailable.
The answer to the question under reference would not become easy. The principles enunciated above should be applied to the consent by the daughter of her mother's alienation. It has been recently held in Mst. Subhani v. Nawab (A I R‑1941‑P C 21) that in the case of self‑acquired property, there is a presumption that a daughter of the last male owner is a better heir than the collaterals of her father. This rule is embodied in paragraph 23 (2) of Rattigan's Digest, which provides:‑
" But in regard to the acquired property of her father, the daughter is preferred to collaterals."
As the property is self‑acquired the daughter shall in the absence of sons be the next heir of the widow of the last male owner. Her consent to the alienation by the widow shall have the same conse quences as those observed in the case of the "next reversioner". There is, however, this difference that a female, as shall be seen presently, shall be presumed to have succeeded to a limited estate only. If the daughter died during the life‑time of the widow she never "came into," possession of the estate" and could, therefore, pass nothing. If she survived the widow, her consent would clothe the alienee with all the rights she herself was possessed of. This would lead to the determina tion of the subsidiary question: What rights does a daughter inherit Does she become a full owner like a male inheriting self‑acquired property, or does she get a limited right as a male succeeding to ancestral property in which others too are interested
Paragraph 63 of Rattigan's Digest lays down :‑
"Except as provided in paragraph 39 or paragraph 62, no female iii possession of immovable property acquired from her husband, father, grandfather, son or grandson otherwise than as a free and absolute gift can permanently alienate such property".
paragraph 3: refers to the powers of a widow to make an adoption to her husband and paragraph 62 deals with the circumstances under which a life‑tenant, e.g. a widow, a daughter or a mother, could sell or mortgage the property for necessary purposes. That a widow under custom has only a life‑interest in a property of her husband, ancestral or otherwise, admits of no dispute. It was also conceded that her powers of alienation or surrender are apologoues to those of the widow under Hindu Law. It was, however, contended by the learned counsel for the respondents that paragraph 34 above was true in the case of a widow only and not in the case of a daughter who had inherited self‑acquired property. He would place a " male" and a " daughter" on the same footing. But there is no warrant for the proposition. From the earliest times the village communities have been averse to the grant of more than a life‑interest to a daughter or any other female and would in her case recognize no distinction between an ancestral or immovable property and an alienation without legal necessity was liable to be set aside at the instance of the reversionary heirs of the last male holder. It is wholly immaterial whether the property was ever held by the common ancestor. The rule of custom contained in paragraph 64 is supported by a large number of decided cases. In 19 P R 1887 at page 45 Plowden, J. observed :‑
" The question to be decided is, whether a woman who has suc ceeded under such circumstances has the power to give away her share of the paternal estate The ordinary rule is that a female taking , by succession takes no interest to last beyond her own life. The recent cases in this Court show that a daughter who succeeds in virtue of her husband being khanadamad is virtually a conduct to retain in the paternal estate for her male offspring. When there is such offspring, it is at best extremely doubtful whether she can alienate more than a life‑interest in the property, except for necessity."
The same proposition is affirmed in 18 P R 1906. A I R 1931 Lah. 809 A I R 1936 Lah. 594 and the rulings quoted at page 138 of Rat tigan's Digest (1938 Edition). We were not referred to a single case to the contrary.
Another argument, advanced was that on the death of a daughter her son acquired an absolute estate and that was a clear proof, if any was needed, that the nature of her own estate was as clear and full as that of her descendant. This too is incorrect. The property in the hands of a daughter's son inherited from the maternal grand father is regarded ancestral qua his son I L R 5 Lah. 356 (F B) and an unauthorised alienation could be controlled by him. Where there is no son, there is no one to control, or where there are no descendants of the common ancestor within the degrees mentioned in Punjab Act II of 1920, the daughter's son would be wholly untram meled in his dealings with the property. The same result, however, shall not follow where a daughter is succeeded by her daughter in the absence of a son. She shall be subject to all the limitations attending the estate of a female. This should not have been so if the argument advanced were correct. The difference arises on account of the sex of the daughter's descendant and the influence of. Act II of 1920.
Paragraph 64 of Rattigan's Digest raises a very strong presumption against a female's powers of alienation. Notwithstanding that, the presumption might be displaced and the contrary might be proved. In custom there is nothing sacrosanct but the quantum of evidence must be heavy. It would be a rare case indeed where under custom a "daughter would approximate to a "male" in her powers to deal with the property she had succeeded to.
My answer to the question referred to the Full Bench, therefore, is that the consent of her daughter to the alienation by the widow of the self‑acquired property of her husband shall, in case the daughter survives the widow, operate to invest the alienee with her own rights only which shall be presumed to be limited to her life‑time and shall not debar her son from challenging the alienation.
‑This is a regular first appeal from a decree of Sub‑Judge, First Class, Gujrat, dismissing a suit for a declara tion that an alienation effected by a widow would not affect the plaintiff's rights.
The last male owner of the land in suit was one Bakhshi. He died, leaving behind him a widow Mst. Hatan and a daughter Mst. Roshi. Some of the collaterals of Bakhshi also were alive at the time of his death. On Bakhshi's death Mst. Hatan came into possession of the land left by her husband. On 27th November 1932, she trans ferred 621 kanals and 18 marlas of this land to Muhammad Afzal and Muhammad Hussain for an alleged consideration of Rs. 10,000. There upon two suits were instituted, one by Maulu and others the collaterals of Bakhshi, and the other by Mst. Hatan's daughter, Mst. Roshi. The relief prayed in each suit was that the alienation by Mst. Hatan would, on her death, be inoperative against the plaintiff of each case. On 15th August 1929 Maulu's suit was decreed as prayed but Mst. Roshi's suit continued until on 3rd April 1929, it was compromised on the condition that Mst. Roshi was to be given 40 kanals of land and Rs. 600 in cash. The claim having thus been adjusted the suit was dismissed.
The plaintiff in the present suit is Rana, a minor son of Mst. Roshi, who was born after Mst. Hatan had alienated the property to Muhammad Afzal and Muhammad Hussain. The suit was instituted on 31st May 1944 and was founded on the allegation that the compromise effected by the plaintiff's mother was inoperative against him. The alienees contested the suit and on the pleadings of the parties the learned Sub‑Judge framed the following issues :‑
1. Is the plaintiff heir of Bakhshi deceased
2. If issue No. 1 is proved, is not the plaintiff competent to sue
3. Is the suit within times
4. Does not the decree, dated 15th August 1929 in favour of the collaterals ensure for the benefit of the plaintiff
5. Is the plaintiff estopped by his conduct to sue
6. Has not the plaintiff locus standi to sue as he was not in existence at the time of the alienation
After trial the learned Judge found that the plaintiff was heir to Bakhshi ' that he was not estopped and that the decree of 15th August 1929 did not ensure to his benefit. On issue Nos. 2, 3 and 6, he recorded a combined finding to the effect that the compromise impugned was not an alienation, that the plaintiff was not competent to sue, that he being an after‑born son was not entitled to challenge the alienation by Mst. Hatan and that a suit to call in question that aliena tion was barred by time :‑
Being aggrieved by this decision the plaintiff appealed to the Court and when the appeal first came up for hearing before a Division Bench, the following question was referred to a Full Bench.
"If a widow alienates the self‑acquired property of her husband with the consent of her daughter, does such a consent debar her r:‑ from challenging the alienation "
The answer returned by the Full Bench was that the consent of the daughter to an alienation by a widow, of the self‑acquired property of her husband does not debar the daughter's son from challenging the alienation if the daughter survives the widow. The case is now before us to be decided on the merits in the light of the answer returned by the Full Bench.
We have already pointed out that the suit was directed against the compromise affected by the plaintiff's mother. Though the plaint referred to the alienation by Mst. Hatan it did not directly attack it. But the plaint has been construed by the Division Bench who heard the appeal in the first instance as if it challenged the alienation by Mst. Hatan. Learned counsel for the appellant has now attempted to get out of the statement of the case by the Division Bench by arguing that his plaint and his case were misunderstood by that Bench and that he never attacked or challenged the alienation by Mst. Hatan. We cannot permit him to resile from the position taken by him not only before the Division Bench who heard the appeal in the first instance but also before the Full Bench and before us until his attention was drown to the question referred for decision to the Full Bench. The learned Sub‑Judge himself had some difficulty in following the plaint but we have not the slightest doubt that the appellant allowed his case to be understood by the Division Bench as if he was in the plaint attacking the alienation effected by Mst. Hatan. If the question framed by the Division Bench after hearing the appellant was incorrect and did not arise in the case as is alleged by him now, it was obviously his duty to object to the form of the question before the Division Bench and also before us when we resumed the hearing of this appeal. It is only after he was made to realize the implications of the question framed that he attempted to wriggle out of the position agreed to by him before the earlier Division Bench. We cannot allow him now to argue that his case is different from the one formulated in the question and if the question formulated correctly interprets the plaint id the suit, it is obvious that the suit must be dismissed on the ground that it was barred by time. We have, already pointed out that the alienation alluded to in the question referred to the Full Bench is the alienation of 1922 while the present suit was brought by the appellant in 1944. The appellant is an after-born son and if it be assumed that he has the right to question the alienation, the suit is clearly barred by time having been brought more than 20 years after the alienation. At the time of the alienation some of the reversioners were alive and they brought a suit challenging the alienation, which was decreed. Time therefore began to run from the date of the alienation and the subsequent birth of the plaintiff could not stop it from running. We hold the suit was barred by time and dismiss the appeal with costs.
I agree.
K. M. A. Appeal dismissed.
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