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Second Appeal No. 104 of 1955, decided on 29th January 1958 from the decree of Muhammad Akbar, District Judge, Attock at Campbellpur, dated the 8th January 1955, affirm ing that of Abaid Ullah Khan, Civil Judge 2nd Class, Pindigheb, dated the 19th November 1954.

[as amended by Punjab Muslim Personal Law (Shariat) Application (Amendment) Act (XI pf 1951)], S. 2‑Gift of ancestral land belonging to agriculturist owner --To be judged by Custom and not Muhammadan Law.

An Awan proprietary owner, belonging to Talagang Tehsil of Campbellpur District, gifted on 3rd January 1953, 200 out of 254 kanals of ancestral land in favour of a distant relation on account of the services rendered by the. latter to the donor. A brother of the donor challenged the gift under custom, but the donee's plea was that the gift was valid under custom and, in the alternative, that the gift was to be judged under the Muslim Law by virtue of section 2, West Punjab Muslim Personal Law (Shariat) Application Act, (IX of 1948) (as amended in 1951).

Held, that the gift was to be judged not under Muslim Law, but with reference to custom.

--Alienation‑Awans of Talagang Tahssl of Campbellpur District‑Extensive powers of alienation.

Awans of Talagang Tahsil of Campbellpur District possess extensive powers of alienation. They can even gift away all their property provided there are no near collaterals.

Nura v. Tora 46 P R 1900 and Amir Ali v. Baggo and others 15 P R 1907 ref.

Alienation ‑ Gift‑Awans of Talagang Tahsil of Campbellpur District‑Children and grand children of donor not objecting to gift‑Collaterals not entitled to insist that gift should have been only of a reasonable portion of property.

Where the children and grandchildren of the alienor exist the rule that only a reasonable portion of the property may be alienated cannot inure for the benefit of the collaterals, near or distant.

Inayat Ullah Khan for Appellant.

Maulvi Ghulam Mohy‑ud‑Din for Respondents,

Date of hearing: 29th January 195 ,

This appeal arises out of a suit by the appellant which was dismissed by the Civil Judge 2nd Class, Pindigheb, by his judgment dated the 19th of November 1954, which was upheld in appeal by the learned District Judge, Campbellpur, by his judgment and decree dated the 8th of January 1955.

The property in suit was owned by the defendant -respondent, Masta, who gifted it on the 3rd of January 1953 to the second defendant‑respondent, Fateh Khan, who was, apart from being the grandson of Masta's grandfather's sister, related to him through his (Fateh Khan's) wife. The appellant filed a suit to challenge the validity of this gift as being contrary to custom. The land is admittedly ancestral. The defendants pleaded that the gift was valid according to custom and also that the gift had, in view of the Muslim Personal Law (Shariat) Application (Amendment) Act of 1951, to be judged with reference to the provisions of Muslim Law and not custom. The lower appellate Court dismissed the appeal on the ground that the gift had to be judged in accordance with the provisions of Muslim Law according to which it was valid. It is conceded by the learned counsel for the respondents that this is not so and that it must be judged with reference to the custom. The validity of the gift according to custom, however, was not considered by the learned District Judge; but as admittedly the entire evidence which the parties desired to produce on that question is on the record it would be proper to decide that question in this appeal in order to bring the litigation to an end.

The parties are Awans of Talagang. It is conceded by the learned counsel for the appellant that the Awans in Talagang Tahsil possess extensive powers of alienation and that they can even gift away all their property provided there are no near collaterals; but he contends that in the present case Masta could, in the presence of his brother, the plaintiff Sultan, make a gift of only a reasonable portion of his property. He, however, conceded that his client could have had no claim in law if the gift had been in favour of the donor's children, male or female. Admittedly, at the time of the gift Masta had one daughter and two daughters of a deceased daughter alive. None of them objected to the gift. Three grand‑daughters and one son of a daughter of Masta are still alive and have not so far come forward to challenge the gift. In these circumstances, it is difficult to appreciate the right of the plaintiff to challenge the gift. Where the children and grandchildren of the alienor exist the rule that only a reasonable portion of the C property may be alienated cannot inure for the benefit of the collaterals, near or distant.

In a number of rulings it has been held that the Awans in Attock, Jhelum and Rawalpindi Districts possess very extensive powers of alienation. In a case reported as Nura v. Tora (46 P R (1900)) a gift in favour of wife's sister's son was upheld even though there was a brother of the donor. It is true that the donee in this case is not a very near relation of the donor; but admittedly he is very near to his heart on account of the services which he has been rendering to him. In a ruling reported as Amir Ali v. Baggo and others (15 P R (1907)) it was recognised that a gift could be made in lieu of services. I do not think that in the circumstances of the present case the donor was bound by the limitation to gift only a reasonable portion of his property; and even if it were so, I would hold that, in the circumstances, a gift of 200 kanals out of about 254 kanals of land is not unreason able. The appeal is dismissed, but the parties are ordered to bear their own costs in this Court.

A. H. Appeal dismissed.

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