Hashmat Ali and another vs Mt. Nasib-ul-Nissa

Sir Lawrence Jenkins, J.

This is an appeal from a decree, dated the 23rd of July, 1921, of the High Court of Judica ture at Lahore, varying a decree, dated the 28th of May, 1915 of the Court of Senior Subordinate Judge of Bohtak.

The suit is brought by Mt. Nasib-ul-Nissa to recover possession of immovable property described in the plaint on the ground that it formed part of the inheri tance left by her uncle, Mir Barkhat Ali, and on the death of Mt. Bismillah Begam, his last surviving widow, devolved on her as his customary heir.

Though the record is voluminous, the points now in issue are narrowed down to two. (a) whether the whole of the pro perty claimed formed part of Barkhat Ali''s Estate, and (b) whether the plaintiff has established that she is his customary heir, The items claimed include a moiety of the villages of Salakhni and Kanal.

Up to the Mutiny the entirety of these villages belonged to Bisharat Ali. They were then confiscated for his alleged default of duty. But on the application of Barkhat Ali, whose military service had earned him the good will of the authori ties, the villages in 1858 were restored to him and Umrao, Bisharat''s son, and their names were entered in the revenue records. The Subordinate Judge held that the name of Barkbat Ali was included as part owner without any apparent rhyme or reason by Barkhat Ali himself when Umrao was a mere boy of 14, that Bark hat Ali had never been in actual posses sion or enjoyment of the villages, and Barkhat Ali died in 1872 without issue but survived by the three widows shown in the pedigree. Contrary to the rule of Muhammadan law, they succeeded to the whole of his estate, for an interest ter minable with their lives and with a right of survivorship as between themselves.

Mussammat Bismillah Begam was the survivor, and on her death in 1909, three members of the family instituted three separate suits, each claiming as heir of Barkhat Ali to recover possession of the property now in suit. One was brought by that the defendants had so long been in adverse possession of them against Bark hat Ali and his successors that the plain tiff was not entitled to lay any claim to them. The High Court, for reasons which appear in its judgment, took a different view and held that the moiety of these villages belonged to Barkhat Ali.

Their Lordships agree with this con clusion.

Has then the plaintiff established her claim to be the customary heir of Barkhat Ali ? The members of his family are Mohammedan Arab-Sayads of Kharhanda, and it is among them that the heir to his property is to be found. Their relation ship to him is shown in the following pedigree :-

Mussammat Nasib-ul-Nisa, one by Mus sammat Ahmad-ul-Nisa, and the third by Mir Afzal Ali. They were consolidated and heard together. The second and third failed, and no appeal has been preferred ; in Nasib-ul-Nisa''s, a decree was passed in her favour on appeal, and it is against that decree that the present appeal has been preferred.

For Nasib-ul-Nisa it has been argued that, as the heirship of her two rival claimants has been negatived, hers must be taken to be established even as against the defendants. But their Lordships cannot assent to this contention. The defendants, though without title, are in posses sion and the plaintiff can only recover that possession by establishing her own title as against them, regardless of what has been determined in the other two suits.

Appended to the Subordinate Judge''s judgment are nine pedigrees, G. I. to G. IX, showing the family relationship at the date of the several successions said to support the customary rules of succession on which the plaintiff relies. Their correct ness is not questioned and the actual succession in each case is proved, not merely by oral evidence, but by judicial decisions or revenue orders made in mutation proceedings.

The devolutions to which they relate have been accurately investigated by the High Court and it would serve no useful purpose for their Lordships to travel over the same ground.

What has to be determined is the inference to be drawn from them as to the rules of succession relevant to the plaintiff''s claim in this suit.

They corroborate the oral evidence that in this family custom is followed in matters of inheritance, and this, in their Lordships'' opinion, is established beyond controversy. So the present enquiry is not whether in relation to the particular succession now in question the ordinary personal law is superseded by a custom, but what is the customary rule that regulates it.

That there is a customary rule which entitled Barkhat Ali''s widows to succeed as heirs to his estate for limited interests is not disputed; it is equally clear that there is a rule of inheritance in this family which entitles brothers to succeed to the exclusion of sisters. Applying these two rules to the succession on the surviving widow''s death, if Sarfaraz Ali had sur vived, he would have inherited Barkhat Ali''s property to the exclusion of his sisters. But Sarfaraz Ali was dead, and the plaintiff, his daughter, alleges that by the Code of customary rules regulating succession in this family, the principle of representation is sanctioned, and she claims that by virtue of it she, as Sarfaraz Ali''s daughter, in the absence of male issue, represents him and stands in his place. Their Lordships agree that repre sentation is a part of the rules of succession in his family. It is settled by judicial decision that a son in matters of inherit ance represents his deceased father, and the record discloses instances of succession in which a widow was recognized as the representative of her husband, and a daughter as the representative of a deceased uncle. It is thus shown that sex is not a bar to representation, but that widows and daughters in the absence of sons can claim the right in their favour.

But then it is said that no instance is proved of an actual succession by a brother''s daughter, and therefore, it is argued, the necessary custom that pre cisely covers this case has not been proved. But if there be a rule that entitles an uncle''s daughter to be her father''s repre sentative for the purpose of inheritance, it would be anomalous and arbitrary to with hold from a brother''s daughter the same right and their Lordships hold that the High Court rightly decided in Nasib-ul-Nisa''s favour. In their opinion, there fore, this appeal should be dismissed, and they will humbly advise His Majesty accordingly. The appellants must pay the costs of this appeal.