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(a) Constitution of Pakistan (1973)

-- Art. 185(3)-Custom-Leave to appeal granted to examine whether two appellate Courts had rightly, held, that in respect of half share of estate, succession opened from son in respect of other half, it opened from father, devolving upon their respective Muslim Law heirs.

(b) Custom

-- Custom cannot be extended by logical process or analogy, but must be established inductively and not deductively-Custom has to be specifically proved and onus lies on those alleging same.

Ratigan's Digest of Customary Law by om Prakash Aggarwalla, 13th Edn., page 57 ; Ghulam Akbar v. Irshad Begam P L D 1963 S C 543 ; Abdul Hussain v. Bibi Sona A I R 1917 F C 181 and Shahzadun Bibi v. Amir Hussain Shah P L D 1956 S C 227 ref.

(c) Custom

-- Afghan residents of Mardan District-No material showing that widow in said tribe was excluded from receiving a life share in estate of deceased husband except for maintenance-Relevant mutation (1911) itself not showing that share given to widow was for maintenance but all it showed was that according to custom, widow was entitled to half share for life or until remarriage - Presumption, held, was that allocation of half share from estate of, husband to widow was in conformity with custom applicable to family or tribe of parties-Widow, therefore, did not receive said share as maintenance in circumstances.

(d) Constitution of Pakistan (1973)

-- Art. 185-Appeal to Supreme Court-Plea not taken before trial Court or even in memorandum of first appeal-Such plea, held, could not be raised at appeal stage before Supreme Court.

(e) Custom

Afghan residents of Mardan District-Widow-Succession Widow who succeeds partly or wholly to estate of her deceased husband under Custom, does so as a representative of her husband Succession on death of such widow is to be traced to husband Widow receiving half share from estate of her husband as his widow-Property, held, would, on her death, revert to her husband as its last full owner.

( f ) Constitution of Pakistan (1973)-- Art. 185-Appeal (civil)-Issue of limitation raised in suit not on specific ground as raised in appeal before Supreme Court-Leave having not been granted on said point either-Supreme Court, found it unnecessary to go into said point.

A. R. Sheikh, Senior Advocate Supreme Court instructed by Khawaja Mushtaq Ahmad, Advocate-on-Record for Appellants.

M. Shah Badshah, Advocate Supreme Court instructed by S. Safdar Hussain, Advocate-on-Record for Respondents Nos. 1 to 4.

Date of hearing : 29th December, 1984.

M. S. H. QURAISHI, J.-The dispute giving rise to this appeal, by leave of the Court, is in regard to share in 1,706 kanals 9 marlas of land situate in village Gangodher, Tehsil Swabi, District Mardan.

2. The admitted facts are that the said land was the property of Khawaja Muhammad Khan who had two wives, namely, (1) Mst. Feeroza from whom he had a son Niaz Muhammad Khan and a daughter Mst. Sakina, and (2) Mst. Mirmanji from whom he had three daughters, namely, Mst Nazran, Mst. Marwari and Mst. Hussain Jamal. Upon his death in 1911, half the property was mutated in favour of his only son Niaz Muhammad Khan and the remaining half in favour of his widow Mst. Mirmanji for life or until re-marriage, vide Mutation No. 44 attested on 12-6-1911. Niaz Muhammad Khan who had three daughters but no male issue, died in 1930, whereupon the mutation of inheritance of the half share of the property inherited by him from his father was attested in favour of his widow Mst. Khanam Jan, vide Mutation No. 14 of 18-8-1930. Mst. Mirwanji died in 1933 and her half of the property was also mutated is favour of Mst. Khanam Jan, widow of Niaz Muhammad Khan, vide Mutation No. 81, dated 23-5-1933. Mst. Khanam Jan thus came to hold the entire property of Khawaja Muhammad Khan which remained with her until her death in April, 1967. As the Shariat Act had, in the meantime, come into force, the entire property held by her, was, by the mutation of inheritance No. 746 attested on 5-6-1967, entered in the name of the Muslim Law heirs of Niaz Muhammad Khan, i.e. his three daughters, namely, Mst. Sardaro, Mst. Bakht Jamala and Mst. Amirzadagai (present appellants) and his sister Mst. Sakina, on the assumption that succession opened from him as the last full owner.

3. The three daughters of Mst. Mirmanji namely, Mst. Nazran, Mst. Marwari and Mst. Hussain Jamala (deceased through her sons Amir Sultan and Firdous Khan), who were thus excluded from the inheritance, filed a declaratory suit claiming that they were owners in possession of 26/40 share of the entire estate of their predecessor-in-interest Khawaja Muhammad Khan and challenging the validity of Mutation No. 746, dated 5-6-1967 qua their rights. In the alternative, they sought relief of joint possession of 767 kanals 4J % marlas free from mortgage and the equity of redemption of 342 kanals. The basis of their claim was that the succession had opened from Khawaja Muhammad Khan as the last full owner. The plea of the daughters (defendants Nos. I to 3 in the suit) of Niaz Muhammad Khan and his sister Mst. Sakina (defendant No. 6) in their joint written statement was that Niaz Muhammad Khan was the last full owner of the property ; that in accordance with custom the half share given to Mst. Mirwanji was, on her death, mutated in favour of his widow Mst. Khanam Jan and that, in any case, Mst. Khanam Jan had acquired title by adverse possession for more than twelve years.

4. The trial Court decreed the suit in respect of one-half of the property of Khawaja Muhammad Khan but dismissed the plaintiffs' claim with regard to the other half of the property which had passed on to Niaz Muhammad Khan. The trial Court came to the view that with respect to the half share which Niaz Muhammad Khan had got, Mst. Khanam Jan had a prescriptive title over it and that part was not available to the plaintiffs. In regard to the other half held by Mst. Mirmanji, it held that the share of Niaz Muhammad Khan in her property should have devolved upon his daughters but as he predeceased her and as the plaintiffs got the possession on the death of their mother Mst. Mirmanji in 1933, their possession, being adverse, had matured their title after 12 years in 1945.

5. The appeals were filed by the defendants, that is, one by the three daughters of Niaz Muhammad Khan and the others by his sister Mst. Shkina. The plaintiffs also filed cross-objections. The appellate Court turned down the defendants' contention that Mst. Mirmanji had got the estate in lieu of maintenance, for the reason that they had not taken such plea earlier. It also rejected their claim to prescriptive title and held that Niaz Muhammad Khan had inherited only half the estate of his father under custom and as such that half share was to be inherited by his Muslim Law heirs, that is, his widow (3/24 share), his daughters (15/24) and his sister (6/24), and that the plaintiffs being his step-sisters, would not get any share of his estate. In regard to the other hi.lf, the appellate Court held that the same had devolved on Mst. Mirmanji as a limited owner and as such it would be inherited by the Muslim law heirs of Khawaja Muhammad Khari in the following shares

Mst. Mirmanji, widow = 6/4,8

The three daughters from Mst. Mirmanji at the rate 7/48 = 21/48

Mst. Sakina daughter = 7/48

Niaz Muhammad Khan = 14/48

As the share of Mst. Mirmanji would also devolve on her three daughters, they would in all receive 27/48 share or 27/96 of the entire estate of Khawaja Muhammad Khan. The decree passed in their favour was modified accordingly.

6. The daughters of Niaz Muhammad Khan then preferred a second appeal before the Peshawar High Court but the same was dismissed by the impugned judgment, dated 1-2-1974. The High Court agreed with the first appellate Court that the contention that Mst. Mirmanji had been given half share in the property in lieu of maintenance, could not be considered because no such plea had been taken before the trial Court or in the grounds of the first appeal and that, in any case, a reference to Mutation No. 44, dated 12-6-1911 made it clear that Mst. Mirmanji had not been given the half share in lieu of maintenance under custom. The High Court also agreed that Khawaja Muhammad Khan was the last full owner of the life estate which devolved upon 11tst. Mirmanji, and after

her death, on Mst. Kbanam Jan again as a life estate and that there was nothing on the record to show that they had held themselves out as full owners or that they had ever claimed that Khawaja Muhammad Khan was not the last full owner. The High Court, therefore, rejected the contention that Niaz Muhammad Khan was the last full owner of the estate held by Mst. Mirmanji and consequently concluded that the plaintiffs were entitled to get their Shariat share in that estate.

7. Not satisfied, the daughters of Niaz Muhammad Khan sought leave to, appeal and leave was granted to them to examine whether the two appellate Courts had rightly held that in respect of half share of the estate, A succession opened from Niaz Muhammad Khan while in respect of the other half, it opened from Khawaja Muhammad Khan, devolving upon their respective Muslim law heirs.

8. The main contention raised before us remains that in the presence of a son, the widow could not under custom receive any share of the estate except for maintenance. For this, reliance was placed on Rattigan's Digest of Customary Law and certain Court rulings. But it is not necessary to examine the same as they do not relate to the custom governing the tribe with which we are concerned here. It is an established principle that custom cannot be extended by logical process or analogy, and must be established inductively and not deductively. See Rattigan's Digest of Customary Law, by Om Prakash Aggarwala, 13th Edition, page No. 57 and Ghulam Akbor v. Irshad Begum (PLD1963SC543). custom has, therefore, to be specificall proved and the onus lies on those alleging the same. See Abdul Hussain v. Bibi Sona (AIR1917PC181) and Shahzadan Bibi v. Amir Hussain Shah (P L D 1956 S C 227). The parties here are Afghan residents of District Mardan and there is no material to show that a widow in the tribe was excluded from receiving a life share in the estate of the deceased husband except for maintenance. In the relevant mutation of 1911 itself, there is no mention that the shar given to Mst. Mirmanji was for maintenance. All it said was that accordin to custom, his widow was entitled to half share for life or until remarriage. It is, therefore, to be presumed that allocation of half share from the C estate of Kbawaja Muhammad Khan to Mst. Mirmanji was in conformity with the custom applicable to the family or the tribe of the parties. There is, therefore, no scope to hold or interpret that Mst. Mirmanji had received the share as maintenance. Even otherwise, as observed by the Courts below, this plea that the half share given to Mst. Mirmanji had been by way of maintenance had not been taken before the trial Court even in the memorandum of the first appeal. The contention, therefore, fails.

9. A widow, who succeeds partly or wholly to the estate of her deceased husband under custom, does so as a representative of her husband and on her death succession is to be traced to him, Since Mst. Mirmanji had received the half share from the estate of Khawaja Muhammad Khan a his widow, the property would, on her death, revert to Khawaja Muhamma Khan as its last full owner and as at that time the only person who could hold the property of Khawaja Muhammad Khan under custom was Mst. Khanam Jan, the widow of his son, the property was mutated in he name. The appellants themselves had admitted in their written statement that on the death of Mst. Mirmanji, her property devolved on Mst. Khanam Jan under custom. This would not alter the fact that on the death of Mst. Khanam Jan in 1967, as regards the property held by Mst. Mirmanji, Khawaja Muhammad Khan, and not Niaz Muhammad Khan, remained the last full owner from whom inheritance was to be traced.

10. It was lastly urged that the suit was barred by limitation on the ground that the N.-W. F. P. Muslim Personal Law (Shariat) Application Act (VI of 1935), which was retrospective in its application, came into force on 6-12-1935 while the suit was filed in 1968. The issue of limitation raised in the suit was, however, not on this specific ground. In any case, leave had not been granted on this point and as such it is not necessary to go into.

11. In the result, the appeal fails and is accordingly dismissed. There shall be no order as to costs.

M. B. A. Appeal dismissed.

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