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Civil Petition No.241‑R of 1984, decided on 22nd April, 1986.

(On appeal from the Judgment and order of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 6th June, 1984 in R.S.A. No.40 of 1984).

‑‑‑Art. 185 (3)‑‑Custom‑‑Inheritance‑‑Question whether widow was limited owner or maintenance holder of estate left by her deceased husband‑‑ Trial Court holding that she was a maintenance holder‑‑Finding upheld in appeal and revision‑‑Plea raised that mutation entry did not mention about maintenance and her share being equal to that of her two sons, she should be treated as limited estate holder‑‑General custom among agricultural tribes in Province being that in presence of a male descendant of deceased, his widow was ordinarily only entitled to suitable maintenance, whether such descendant was issue of surviving widow or of another wife‑‑If a departure from general custom was pleaded, it had to be proved‑‑Courts having concurrently held that special custom remained unproved, mere sharing of property equally with sons, held, was not sufficient to prove a special custom such as to displace general custom‑‑Leave to appeal refused.

Mst. Mirza Bi v. Bashir Ahmad and others P L D 1966 Lah. 803, Mst. Hamida Begum v. Siraj Din P L D 1978 Lah. 1128 distinguished.

112 P.R. 1912, A I R 1924 Lah. 265, 1969 I.C. 33ref.

Rattigan Digest p. 323‑1315 ed of 1953 quoted.

Muhammad Yusuf Saraf, Advocate Supreme Court instructed by Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 22nd April, 1986.

The petitioners, who have been unsuccessful as plaintiffs in all the three Courts seek leave to appeal against the judgment of the Lahore High Court, dated 6th June, 1984 by which their revision petition was dismissed.

2. Muhammad Khan, the father of the petitioner, and of the defendants (Allah Yar and Fateh Khan, the latter, since deceased) died in the year 1921/1931. He was an Awan of Talagang, District Attock and was then governed by custom. A mutation of his inheritance was attested whereby the two sons got 1/3rd each and the remaining 1/3rd was mutated in the name of his widow Mst. Baigain. On 8th December, 1975 Mst. Baigain died whereupon 1/4th was mutated in favour of Mst. Baigain and 7/8th of her 1/3rd was mutated in favour of Allah Yar and Fateh Khan. The petitioners are the daughters of Muhammad Khan and Mst. Baigain. They filed a suit claiming 1/3rd as daughter of Muhammad Khan in the entire estate left by Muhammad Khan. The suit was contested. The issue of importance at this stage is No.1 "whether Mst. Baigain alias Began was limited owner or maintenance‑holder under custom". The trial Court held that she was a maintenance‑holder. The appellate Court affirmed this. The High Court did not interfere with it.

3. The learned counsel for the petitioners contended that as the mutation attested on the death of Muhammad Khan in favour of Mst. Baigain did not mention that the land allotted to her was in lieu of maintenance, it could not be held to be so and must be treated as her limited estate. Besides, according to the learned counsel, as her share was equal to that of her own sons, she should be treated as limited estate holder because no question of allocation of separate property for mother by way of maintenance, by real sons could arise at all. He has also placed reliance on decisions in Mst. Mirza Bi v. Bashir Ahmad and others P L D 1966 Lah. 803 and Mst. Hamida Begum v. Siraj Din PLD 1978 Lah. 1128.

4. It is not disputed that the general custom among agricultural tribes in the Province was that. "In the presence of a male descendant of the deceased his widow is ordinarily only entitled to suitable maintenance, whether such descendant is the issue of the surviving widow or of another wife (Para. 16 Rattigan). If a departure from this general custom was pleaded it had to be proved.' There is no proof. What the Raiwaj Aam of Attock district recognizes is as follows (Rattigan Digest p. 323‑1315 ed of 1953):‑

"The majority of tribes agreed at last Settlement that the widow will share for life equally with her sons but without power of alienation. The majority, is now in favour of allowing her maintenance only, a portion of the property being specially set apart for this purpose. Examples are quoted in favour of both theories, and Courts will have to 'consider the circumstances of each case in the absence of any well‑established custom on this point.

If there be two widows, one with issue and the other barren, the replies of all tribes in this district are to the effect that a barren widow is entitled only to maintenance, but the numerous examples collected show that among all tribes barren widows not infrequently get a share in the property of their husbands,

They have, of course, no power of alienation over such land, and it is not of great importance to determine the doubtful question of custom, for it would seem to be generally admitted that barren widows have a claim to maintenance for life or till marriage out of their husband's property. It is immaterial, therefore, whether a share be entered in their names or a portion of the land be set apart for their maintenance.

There appears to be no instance of barren widow establishing her title to a share of the inheritance by an appeal to the Courts. The custom, as started by the tribes, has therefore, the support of legal opinion and may be considered established for practical purposes.

112 P.R. 1912.‑‑A widow does not take a share of the inheritance with the sons of the deceased. She is only entitled to maintenance in the shape of setting aside certain estate for her.

A I R 1924 Lah. 265, 1969 L.C. 33‑‑A step‑mother holding a portion of her deceased husband's estate in her names during the lifetime of her stepson who holds the other portion should be considered as holding in lieu of maintenance.

5. In the case of Nawab and others relied upon by trial Court the law on the subject was summarized as hereunder.

"Under the general custom there is an essential difference between the widow's life estate, where she succeeds in the absence of male lineal descendants, and a widow's right to maintenance, where, there are male descendants of the deceased. There is similarity between the status of the two widows only to the extent that they are entitled to maintenance, but there ends the similarity. Otherwise they differ in rights. A sonless widow in the presence of male lineal descendant of the last male‑holder is entitled to maintenance only and not to a life estate while a widow in the absence of male lineal descendants gets a life estate. Though originally widow's life tenure, in the absence of male lineal descendants of the last male‑holder, originated in her right to maintenance, it generally, in the course of time became a right to the enjoyment of the whole estate, whether it exceeded her needs or not. Such a widow is her husband's representative and she represents him in even collateral succession. There is, thus, a difference between a life estate enjoyed by a widow and the land held in lieu of maintenance. The other distinction between the two widows is that the widow of a sonless proprietor takes whole land whatever be her needs for her maintenance, a widow, she survives her husband in the presence of male lineal descendants, takes only a part of it. She is further not entitled, like the widow of a sonless proprietor to alienate the property for valid necessity."

6. The case of Mat. Mirza Bi is distinguishable on three points, firstly, the widow got one‑half not against the son but against the grandson secondly, the grandson himself had purchased what had fallen to the share of widow, thirdly the local custom of Rawalpindi District supported her case of being a limited holder rather than a mere maintenance‑holder:‑

7. In the case of Mst. Hamida Begum the very distinction between estate held as a limited owner as against that held in lieu of maintenance was obliterated by observing as follows:‑

"In the instant case it appears that Noor Din allowed Mst. Mehtab Bibi to retain possession of half of his father's land in lieu of maintenance. This conduct throughout. his lifetime in not claiming possession of 1/2 held by widow clearly proves that she held the land with his consent for the purpose of maintenance. She thus held widow's limited estate in that 1/2 shares of the land and her status was in the eye of law not different from the widow who holds the estate of her deceased husband dying without a male issue."

8. The distinction that has to be noted is that in holding life estate a widow does not become a full owner, in the sense that after her death 'the descent is to be traced from her and not from her husband. In case of maintenance estates on termination of interest it reverts not to her, husband but to those obliged to provide maintenance to tier, in this case the two sons. This distinction is material and abiding.

9. The Courts having concurrently held that special custom remained unproved, the mere sharing of the property equally with the sons is not sufficient to prove a special custom such as to displace the general custom.

10. There is no merit. Leave to appeal is refused.

M. I. Leave to appeal refused.

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