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Civil Petition for Special Leave to Appeal No. 148‑R of 1980, decided on 31st March, 1981.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 1‑7‑1980, passed in LPA No. 201 of 1970).

Constitution of Pakistan (1973)‑‑

‑‑‑Art 185(3)‑‑Custom‑‑inheritance‑‑Self acquired property‑‑Unmarried daughter inheriting to exclusion of others‑‑Plea that in absence of pleadings, issue or evidence on question of custom, could not he decided on basis of custom, not sustained‑‑Ample material was available on record to show that parties understood pleadings and issues including a controversy as to eligible successors to inherit self‑acquired property of deceased under custom‑‑Question whether or not petitioner was able to establish a special plea as against admitted custom in Tehsil and District having been concluded by concurrent findings of Courts below, Supreme Court declined to interfere‑‑Leave to appeal refused.

S.M. Mahboob Advocate and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Malik Muhammad Jafar, Advocate for Respondents.

‑‑Leave to appeal has been sought from judgment, dated 1‑7‑1980 of the Lahore High Court whereby a Letters Patent Appeal (arising out of a Civil Suit filed by respondent No. 1, which was decreed) was dismissed.

The original owner of the land in dispute which was admittedly his self‑acquired property, died in 1936 leaving an unmarried daughter Mst. Chanani respondent No. 1. She married one Faqir Hussain in 1942 where after in 1945 on the assumption that she being a female could not hold the land after her marriage, a mutation was sanctioned in favour of the petitioner and others. The reversionary heirs of Amir deceased. In month before tire expiry of 12 years, Mst Chanani filed a Civil Suit claiming ownership of the land in dispute as also seeking possession thereof. It was decreed in 1960. The case was, however, remanded on first appeal in 1960. The trial Court this time dismissed the suit on grounds of estoppels against Mst. Chanani, if being barred by time and also on the ground that the conduct of Mst. Chanani showed that she accepted the position taken from the petitioner's side that the case being governed by "custom", she could not inherit by virtue thereof. On first appeal during the second round, it was held that the case was governed by "custom" according to which an unmarried daughter inherited the self‑acquired property to the exclusion of all others. The questions of limitation and estoppels were also decided against the petitioner slid the respondents' suit was decreed. A learned Single Judge in the High Court dismissed the second appeal of the petitioner, and he having failed in the Letters Patent Appeal also, has now sought leave to appeal.

Learned counsel has contended that there were no pleadings on the question of "custom" nor there was any issue or evidence in this behalf, therefore, the case could not have been decided on the basis of "custom", and that if the petitioner succeeds on the first point, then the case would be governed by Shariat Law and the petitioner and others would be entitled to their due. Share in the property left by Amir.

Learned counsel for the caveator has in reply contended that although there is no specific mention of the word "custom" in the pleadings nor in the issues, yet the parties understood from the very beginning that the claim of succession /ownership was based on "custom" and that issues No.4 and 9 were also understood in the same context. He refuted the other assertion of the learned counsel for the petitioner, by making reference to the record to show that evidence was led on the questions regarding "custom".

It was not disputed before the learned lower Court that the case was governed by "custom". It was also admitted by both the parties that the "custom" in the Tehsil as also in the District was that the unmarried daughters would inherit to the exclusion of others provided the property was self‑acquired of the father. But there was controversy whether in the family of the parties in this case, this "custom" was being followed or not. The plea raised by the learned counsel for the petitioner is that if the question of "custom" had been properly pleaded an issue would have been struck thereon and the petitioner would have led evidence to establish the exception to the prevailing custom in the District, in so far as the family of the parties is concerned. In the alternative, he urged that if the argument of the learned counsel for the caveator that evidence was led by the petitioner in this behalf in the form of his own deposition and the deposition of a Lambardar Mir Afzal (D.W. 6), then also the petitioner would succeed because there was no rebuttal on the question of the "custom" followed by the family, from toe plaintiff‑respondents' side.

Up to the stage of the grounds of tile second appeal in the High Court, the petitioner had not raised the plea that there was no issue on the question of "custom" or that he had not been able to lead evidence in this behalf or even that he was prejudiced in any manner on the question of "custom". On the other hand ground No.2 in the R.S. A. indicated that the petitioner was till that stage relying on Customary Law of Inheritance applicable to the family. It is clear from the record. and the trend of arguments advanced before all the learned Courts prior to the L.P.A. stage that the petitioner as also the plaintiff /respondents were conscious that the main controversy in the suit related to the rights of the parties under Customary Law. It is on account thereof that the petitioner led evidence to establish that the unmarried daughters in the family of the parties do not inherit even if the self acquired property of their father. The plea that the petitioner was prejudiced on account of absence of a specific issue in this behalf was raised for the first time in the Letters Patent Appeal. In our view, it was only an after thought and has rightly been rejected.

There is ample material on record to show that the parties understood the pleadings and the issues as including a controversy as to who was to inherit the self‑acquired property of Amir, under the Customary Law. Thus there is no force in the main contention of the learned counsel for the petitioner. His argument, that if the main plea is not accepted it should be held that the evidence led from the petitioner's side on the "custom" followed by the petitioner's family, should have been accepted on account of absence or weakness of the rebuttal, besides being in the nature of a contradictory plea is not acceptable, because the question whether or not the petitioner was able to establish a special plea as against the admitted "custom" in the Tehsil and District, having been concluded by concurrent findings of the learned Courts below, this Court would not interfere.

This petition, therefore, fails and is accordingly dismissed.

M.I. Petition dismissed.

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