Prohibited degrees.- The horror of incest which, almost without exception, is said to be a characteristic of the human race, lies at the root of the prohibitions against intermarriage. But the degrees within which intercourse is forbidden vary to a considerable extent, and nowhere more so than amongst agricultural tribes in this Province. It has been pointed out by Westermarck in his learned book on the History of Marriage, a book which is destined to supersede many of the conclusions of such writers as Morgan, Tyler, Lubbock and others on several important questions concerning the origin and development of human marriage, that the extent to which, among various nations, relatives are not allowed to intermarry, is nearly connected with their close living together.
Hindus. - This is an extremely interesting explanation, and the fact, admitted by Dr. Tyler, that statistical data seem to establish a strong coincidence between the classificatory system of relationship and exogamy, would lend confirmation to the theory. Such a coincidence is certainly to be found existing among the superior castes of orthodox Hindus, whose large family households have rendered the introduction of the paternal and maternal got system of prohibitive degrees a social necessity. So also in regard to Hindu agricultural tribes the same system, with some modifications, generally prevails.
Muhammadans.- Amongst Muhammadans, those who are strict in their religious observances naturally adhere to the prohibitive degrees prescribed by the Shara, which are themselves restricted within limits which the nomadic tent-life of the Arbas obviously engendered for the sake of the purity of the home. On the other hand, those who are converts from Hinduism not unfrequently retain the customs of the families to which they originally belonged, and are found to practise exogamy or endogamy according as the got system had or had not been relaxed by those families, and the prohibitive degrees vary as one or the other practice obtains among them. The tendency, however, is everywhere as civilization advances to narrow the inner limit within which a man or woman must not marry, and to widen the outer limit within which he or she may marry.
The got system in its original comprehensive character as embracing within its fold not only the agnatic descendants of the patriarchal founder, but the descendants of all those who had placed themselves under the protection or leadership of that founder within the one cattlepen or enclosure, and who may be said to have constituted, in the Vedic sense of the expression, a “collection of cows” bears a strong analogy to the Roman gens to which attention has often been called. This gentile character of the Hindu gotra may also explain what might otherwise appear strange and confusing, that a Brahmin, a Kshatriya, a Vaisa or a Sudra may belong, as often happens, to a gotra of the same name, a fact which suggests the inference that each of these persons is a descendant of an ancestor who at some remote period beyond human memory belonged to the same “patriarchal cell” which was founded by the common spiritual teacher or patriarchal chief at a time perhaps when there was no law to prohibit the different classes of the people from living together, or from eating and drinking together. But in modern time gotras sub-divide, and within this sub-division we frequently find, as amongst Punchzati Khatris, that the prohibited degrees are narrowed, following in this respect the tendency to which reference has already been made. Each sub-division becomes as it were an independent group having gotra of its own.
Grewal Jats.- The popular history of the Grewal Jats of Ludhiana affords a remarkable instance of this. The founder of this Jat tribe, having married a Jatni of presumably lower tribe, was outcasted by his brethren, and he thereupon established a got of his own, which he called after his son, and his descendants, having gradually spread over the country and gained influence, the Grewals rose in importance, until at the present day they admittedly stand at the top of the social scale amongst the Jat gots (Tupper’s Customary Law, Vol.V, p.7). Another instance may be mentioned applicable to the Dhai and Char Ghar Khatris. Three of these – Kapurs, Khannas and Malhotras – have the same gotra (Kaushal), but each ghar or sub-division constitutes and independent group, and intermarriages between these sub-divisions are allowable.
Ordinarily, if the circumstances can justify such a course, the presumption should be in favour of validity of marriage (A.I.R.1934 Lah.550).
70. Essentials of valid marriage. - A marriage to be legally binding must fulfil the following conditions :-
(a) Prohibited degrees. - The parties must not be related to each other within the prohibited degrees of consanguinity, which include -
(I) Amongst orthodox Hindus. – The female descendants within the seventh degree (inclusive) from the father, paternal grandfather, and the rest; and the female descendants as far as the fifth degree (inclusive) from the maternal grandfather, and the rest; also the female descendants within the seventh degree (inclusive) from the father’s cognates (or bandhus), and their six ancestors through whom those females are related; and also the female descendants as far as the fifth degree (inclusive) from the mother’s bandhus, and their four ancestors through whom they are related.
Vyavastha Chandrika, Vol.II, page 457; Vyavashta Darpana, page 659. See on this subject Mayne’s Hindu Law (6th ed.), section 86, 87, 88; Ghose’s Hindu Law, page 678, etc. Seq.
A mother, sister, father’s sister, mother’s sister, brother’s daughter, mother’s sister’s daughter, father’s brother’s daughter are within the prohibited degrees.
Marriage with a mother’s brother’s daughter, father’s sister’s daughter, or sister’s daughter is allowable according to the modern practice of certain schools. (See Cunningham’s Digest, pages 33-34). But the validity of the marriage with a half-sister’s daughter has been doubted by the Privy Council (L.R.VII Ind.App.177). A marriage between a Hindu and the daughter of his wife’s sister has been held valid in Madras (Ragavendra Rau V. Jayaram Rau, I.L.R.XX Mad.283). It is, however, questionable if Hindu custom in this Province would sanction such marriages.
In A.I.R. 1946 Bom.377, 48 Bom. L.R. 196, it has been held by the Bombay High Court that a marriage between sagotras is invalid under the Hindu Law as it is prohibited according to the smriti writers and recognised commentators. But custom is a recognised source of Hindu Law, and if there is a custom proved recognizing the validity of such a marriage it would to that extent modify the ordinary Hindu Law. Long established usages existing in particular districts and families have to be given effect; but it is of the essence of special usages that they should be ancient and invariable and should be established to be so by clear and unambiguous evidence. When general opinion is conflicting it has little value, but when that evidence is all one-sided, the Courts would accept that evidence and act upon the same. The necessary proof in each case will depend on the nature of the custom alleged, and the want of instances or paucity thereof does not prevent the Court from upholding the custom, if there is a general consensus of opinion of persons who are likely to know of its existence, particularly when the evidence is all in one direction. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that has, by common consent, been submitted to as the established governing rule of the particular district.
(2) Amongst Hindu Agriculturists.- All females of the same got as the bridegroom, and, amongst may tribes, also, females of his mother’s, father’s mother’s and mother’s mother’s got.
Tupper’s Customary Law, Vol.II, page 120; Vol. IV, page 95; Vol. V, page 46. See Rose’s Compendium of Punjab Customary Law, page 10. But see among Sudras, No. 80 P.R. 1917.
Jats : Custom applied.- An adoption with religious ceremonies establishes consanguinity between the adopted son and the females of both the natural and adopted families (1 Strange H.L.41). But a customary appointment as heir produces no such artificial effects. “It is urged that a marriage between a man and his nephew’s widow is not allowed by Hindu Law. This may be so, but the parties are Jat agriculturists, and it is custom and not Hindu Law which must be held to govern the case,” 1920, 2 Lah. L.J.370.
Karewa between a Jat and nis widowed daugher-in-law.- A Karewa marriage between a Jat and his widowed daughter-in-law, is not valid by custom, (being repugnant to the ideas of Jats), and, therefore, the issue of such union is illegitimate, A.I.R. 1934 Lah. 283(2); 1934 15 Lah. 688, (Dalip Singh and Abdul Qadir, JJ.). This case was on appeal from Ambala District and does not apparently lay down a general rule of custom applicable to the whole Province. In a recent appeal from Hoshiarpur District, Bhide, J., held, on the evidence, that such marriage was valid by custom; A.I.R. 1936 Lah. 551 : 166 Ind. Cas. 719.
3. Amongst Muhammadans. – A mother, step-mother, paternal or maternal grandmother how high so-ever, daughter, grand-daughter, how low soever, sister of the whole or half-blood, paternal or maternal aunts, brother’s or sister’s daughter of the whole or half-blood, mother-in-law, daughter or grand-daughter of enjoyed wife, son’s or son’s son’s wife, daughter’s son’s wife, foster-mother, or any other female related by fosterage.
Tagore Law Lectures for 1873, page 307; Wilson’s Digest of Anglo Muhammadan Law, 2nd edition, paras 34-38. The rule applies even when there has been no consummation (No. 16 P.R.1917).
Marriage with wife’s sister.- Under the Muhammadan Law governing the Hanafi sect, marriage with wife’s sister during the subsistence of the previous marriage with her sister, is only invalid (fasid) and not void (batil), and the issue of such marriage is legitimate and inherits the father’s property; A.I.R. 1930 Lah. 907; 1930, 12 Lah. 52, (and the cases there cited).
Muhammadans : Marriage with idolatress
Marriage merely invalid and not void ab initio- Under the Muhammadan Law a Muhammadan male may contract a valid marriage with a Muhammadan woman or with the Kitabia, i.e. Christian or a Jewess, but not with an idolatress or a fire worshipper but if he does marry an idolatress or a fire worshipper the marriage is not void ab initio (batil) but merely invalid (fasid) for she might at any time become a Muslim, Christian or Jew, which would have the effect of validating the marriage. The issue of such union are legitimate, Amir Ali’s Handbook of Muhammadan Law, pp. 74, 100, 101; A.I.R. 1928 Pat. 19: 103 Ind. Cas. 430 (Pat) About Zoroastrianism there is a difference of opinion; some of the jurists hold it to be one of the “revealed” faiths; others hold it to be the same as Magianism or fire worship).
A Muhammadan husband can divorce a Kitabia by talak under the Muhammadan Law; A.I.R. 1935 Bom. 5 : 59 Bom. 278 (Held that when a Christian woman marries a Muhammadan in Scotland and she subsequently becomes a Muhammadan, and the parties are domiciled in India, and the husband divorces her by pronouncing talak, the marriage is legally dissolved.
(b) They must belong to castes between which inter-castes marriages are permitted.
Hindu : customary forms of marriage.- No. 1233 of 1869. Compare No. 9 W.R. 552 and No. 64 P.L.R. 1908, where the subject is elaborately discussed. The Hindu Law recognizes custom as a matter of paramount importance, and custom, if it is established, can override the written law. There may, therefore, be customary forms of marriage which are perfectly valid and which do not strictly come within the definition of any of the approved forms of marriage mentioned in the Mitakshara; A.I.R.1926 All.1; 90 Ind. Cas. 358, (Allahabad).
Marriage by chadar-dnazi.- A marriage by chadar-andazi is not a marriage in one of the approved forms; A.I.R.1927 Lah. 441: 8 Lah. 366 at p.371.
1. Inter-marriages: instances. - A Jat Jagirdar cannot ordinarily marry a Brahmin woman. But see No. 50 P.R. 1900, where it was fond that a Karewa marriage between a Hindu Jat and a Brahmin woman was valid; No.73 P.R. 1897, where it was held that issue of a permanent union between a Jat and a woman of the Nai Jhiwar or Kalal class where legitimate; and No. 79 P.R. 1910, where it was held that a marriage between a Jat and a Koli woman was valid. A marriage between a Khatri and a Brahmin woman is not valid under Hindu Law; A.I.R. 1924 Lah. 243: 73 I.C. 239 (distinguishing 50 P.R. 1900 ante.)
2. A sunni Muhammadan may marry a Shiah woman.
3. A Sodi can marry a Khatri woman.
4. A Bujju Rajput cannot marry a Brahmin woman (No. 29 P.R. 1883), nor can a Diawani Rajput marry such a woman (No. 57 P.R. 1893).
5. But a Brahmin may marry a Rajputani (No.48 P.R. 1890).
6. A Sayad woman may marry a Panja Shahi fakir (No. 101 P.R. 1886).
7. A Varaich Jat cannot marry a Muhammadan woman (No. 87 P.R. 1898). But as to this see page 370 (2nd para) of P.R. 1913.
8. A Khatri cannot marry a Khatrani widow (No. 52 P.R.1899). But cf. No. 49 P.R. 1903 as to the effect of Act XV of 1856 in such cases. See also as to this No. 4 P.R. 1905 and No. 61 P.R. 1905. In No. 72 P.R. 1908 a marriage between a Rajput and a Khatrani was held t be valid, and in No. 57 P.R. 1909 a chadar-andazi marriage between a Mihnas Rajput and a Mahajan woman of the Gujrat District
SECTION II Statutory Law 56a. The Punjab Alienation of Land Act. [Repealed by the Adaptation of Laws (Third Amendment) Order, 1951 (See the Gazette of India Extraordinary, Part III Section 3. dated the 4th April, 1951.] " SECTION III Wills 56b. Transfer Inter vivos and by Will The Customary Law ordinarily recognizes no distinction between the power of making verbal or write property inter vivos nor where an unrestricted power of transfer is recognized to exist, between a transfer inter vivos and one to take effect upon the death of the transferor.,. The form of alienation is treated as immaterial. (2) A 'voluntary transfer' and a 'transfer for necessity.' Customary Law recognizes two main kinds of permanent transfers viz., a voluntary transfer and a transfer for necessity. Included in the former category are gifts and wills. It was observed by Sir Mere- dyth Plowden in Sukhav. Amira (1)-"The principle division of transfer in the Customary Law is, voluntary transfer, and transfer for necessjty. The former division includes gift to sons or kinsmen, or rishtadaran ek jaddi.v, and, so far as they may be In derogation of the rights of the customary heir, such gifts, generally speaking, require the assent of the heir on this very ground. The latter division includes mortgages and sales for purposes recognized as necessary. But there is a class of transfers which lies upon the dividing line, which is viewed as not being purely voluntary nor yet altogether for necessity. Of this description are gifts to a person who has resided with the donor, and been treated as a son, or a person who has been associated with him and rendered him services; and gifts (or religious purposes. The donor is recognized as being under some sort of obligation in both classes of cases; and gifts for religious purposes are commonly permitted within moderate limits without consent of agnates, and are expressly recognized in the Riwaj-i-am before us. In the other class, gifts to persons who have been brought up by a sonless donor like a son, or who may have been associated with and served him, there is a tendency to dispense with the consent of the agnates founded no doubt upon the frequency with which consent is given by the agates in such cases when the gift is moderate. Assent is most readily given in respect of gifts to young kinsmen, who have been both brought up by and associated with the donor in cultivation, although the custom of adoption is not recognized, eo nomino." (3) Transfer inter vivos and by will. In a Full Bench ruling reported as Mst. Bano v. Fateh Khan (I), it has been held by a majority (Clark, C. J. dissenting) that the distinction under the Punjab Customary Law between power of gift inter vivos and power of testation is a matter of degree and form only, and where power of gift is shown to exist an initial presumption arises that there is a coextensive power of testation. Clark, C. J., on the other hand. gave his opinion to the effect that under the Punjab Customary Law there is a marked distinction between the power of gift and the power of will, and that though the existence of a power of gift is a strong point in favour of the party asserting a power of will, it is not sufficient to relieve him of the onus of proving the existence of the latter. The questions referred to the Full Bench for decision were- Whether under Punjab Customary Law there is a distinction between power of gift inter vivos and power of testation ? Whether, if there be any distinction, a power of testation shou1d be presumed where a power of gift is shown to exist ? The following general remarks extracted from the said judgment will be found instructive- Per Harris, I.-"With regard to the first question referred, I would preface my remarks by stating my accordance with the view that wills are a natural development in times of security and civilization of the power of gift inter vivos. The arguments of Mr. Justice Mark by in his Elements of Law (5th Edition, pages 390-391) are to my mind convincing, and his conclusion that the practice of making wills rests "on habit and convenience backed by authority," and that "it has grown, like other law, partly out of the expressly declared will of the supreme power, partly out of judicial decision, and partly out of custom" does not seem to me to necessarily exclude the other view, any more than does the opinion expressed in Mayne's Hindu Law that the Hindu will owes its origin to religious influence. In the Tagore will case Tagore v. Tagore (2) J, their Lordships of the Privy Council say: "The introduction of gifts by will into general use ha~ followed in India, as it has done in other countries, the conveyance of property inter vivos," and though the view expressed in the same ruling that a will "is, until revocation, a continuous act of gift upto the moment of death, and does then operate to give the property disposed of to the persons designated as beneficiaries" may not meet with general acceptance, the view that wills developed out of gifts is not lightly to be departed from by courts in India, and is One which has been adopted by this Court in Mst. Ghuiam Fatima v. Maqsudan (1)."Per Chatterjee, J.-"There is no doubt that, except in a few cases which had special features to distinguish them, the right of the people of this Province to make wills was generally recognized by this court in its decisions up to 1889, the validity of the will being dependent on the facts of each case. They were never rejected on the ground that wills were unknown to Customary Law or opposed to it. 'This was distinctly said in Sukha v. Amira (2), and upheld in later decisions. The strongest statement to this effect is that given at page 124 of Roe and Rattigan's Customary Law. It is therefore right to say that these later decisions changed the current of the earlier ones and set it against the recognition of wills until Aii Muhammad v. Duila (3) was passed, which naturally has tended to turn it again in the former direction. "The law of wills may not have been developed in Europe directly from the law relating to gifts, but gifts and wills are intimately connected, so that it is difficult to conceive of a power of will without the power of gift being postulated. What a man is not competent to give away during life he can hardly be deemed to be competent to give away after his death. In India wills have been declared to be developed out of gifts by the high; authority of the Privy Council " "Where the custom is positively against will, i,e., where the Riwaj-i-am or Wajib-ui-arz declares them invalid, and there are instances in which wills have been disallowed, there is of course no difficulty; nor where the right of alienation is restricted. But where there is plenary power of alienation including that of gift but a will is nevertheless declared ' opposed to custom tough there it may be no instances against it, there is more reason .for .dissent. If such. a dictum is pronounced merely on a priori prmciples it ought to be subjected to a careful scrutiny. "Now the grounds given in Sukha v. Amira(4) and Fatta v. Bakhra (5), do not go further than saying that there is a distinction between gifts during life and wills to take effect after death. But assuming that there is a distinction, how does it help to show that wills are opposed or repugnant to custom At lest the matter ought to be, al1 open question judged from this point of View. Another ground of distinction given in Mukarrab v. Fatta (6) and Shad AI; Khan v. Abdul Ghafur Khan (7) is that in an archaic state of society there is no machinery to give effect to the donor's wish after his death where he has not carried it out during his life-time. This merely explains why in such a state of society a custom of testation would not at once follow upon a custom of gift inter vivos. But where there is a settled Government capable of enforcing the tegtator's wish, the ground as a ground for retarding the practice of wills loses its force. "Granted that in pre-British times wills were not common, and to it there was no agency to give effect to them after the death of testators, does it follow that no note should be taken of the present state of the commonwealth ? If a power of donation is known to prevail in a certain tribe, would not the donor sometimes wish to postpone the operation of his gift till after his death and the practice of making of wills thus grow up ? Would not the fact that other residents of this province or of the locality who are governed by their personal law exercise that power have an effect in creating a custom of making wills ? The state already recognizes wills and takes measures to give effect to them, so that facility for testators making wills and for legatees getting their legacies have greatly increased. If an agriculturist makes a will, probate or letters of administration with the will annexed can be taken out without difficulty. In a proceeding for that purpose the factum of the will is alone in issue and the invalidity would have to be established in a separate suit. Does not this help to evolve the custom, if it was inchoate before, and develop it ? Per Clark C. J.-"The power of alienation by gift is exceptional and it lies upon 'the person asserting it to prove it, and it seems to me to be equally heavy on such persons to prove any extensions of this exceptional power. This principle is recognized in the Customary Law of presemption, Courts are not allowed to presume because pre-emption prevails in one mohalla of a town that it prevails in the next mohalla, nor that because certain incidents give the rights of pre-emption, that other similar incidents give the right of pre-emption, The custom has to be proved in its entirety as applicable to the particular facts of the case"". "As delivery of possession is an essential element of a gift, it seem. to me impossible to presume that because a gift, where this essential element occurs, is valid, a will, where it does not occur, is also valid, and it seems to me that it would be equally logical to presume that a gift without possession was valid," . Following the above Full Bench ruling, it was held in Mohammad Khalil v. Mohammad Baksh (1) that presumption is that every person Having authority to transfer property inter vivos has the same authority while in health in bequeathing it by will. But this presumption is rebuttable. Where a custom allowing alienation does not recognize any distinction as to the mode in which an alienation is effected, whether it is to be inter vivos or one to take effect after death, a male owner governed by custom can alienate the non-ancestral property at his mere will and pleasure (2). As has already been referred to above, before the Full Bench ruling cited above, opinions differed as to the existence of the custom of wills in the Punjab and as to the identity of gifts and wills, The following summary of the decisions on this point may prove helpful. Gifts and wills almost identical-judicial decisions. 2 P. R. 1870- A will by a Hindu Brahmin of Rawalpindi held valid. . 18 P. R. 1877- Sindllu Jats of Amritsar and Jullundur. Have tile same power of willing as of gifting inter vivos. 63 P. R. 1880- Bedi Khatris of Pakpattan. 198 P. R. 1889- A Hindu Jat can make any transfer by will which he could make by gift better vivos. "In the Punjab, among certain agricultural communities, land is .regarded as rather the property of the tribe or family than of the intermediate incumbent, and on this principle his power of alienation of his own free will is often restricted. This, however, is a perfectly intelligible ground, and applies equally to transfers made during life as well as to those to take effect after death. But when no such objection exists, we are unable to son that, in the absence of a custom affirmatively proved, absolutely prohibiting the making of wills at all, we can hold a will invalid, simply because such dispositions of property were never made before by any member of the tribe or community to which the testator belonged." per Chatterji, J. 10 P. R. 1892-- No distinction among Muhammadans of Sialkot District. 120 P. R. 1893- Arains of Ferozepur District. What a man cannot do inter vivos he cannot do by will. Where property is not land and is non-ancestral and the owner has power to dispose of it as he likes, there is no presumption against his doing so by will. 26 P. R. 1901- Awans of Shah pur District. The distinction between the power of gift and of testation is a difference rather in degree than in kind and is the result .of the greater uncertainty in the one case than In the other. 96 P. R. 1905- Jhiwars of Hoshiarpur District. There is no essential distinction in Customary Law between gifts and wills and that where the power of gift is established there is a presumption that a co-extensive power to will also exists. 62 P. R. 1906- Gujars of Gujjar Khan. There is no distinction .between wills and gifts inter vivos. 15 P. R. 1907- There is little or no difference between the power to gift and the power to will. 11 P. R. 1908- There is little material distinction between an alienation by will and one by gift. 10 P. R. I908- Gift and will are much on the same footing. 48 P. R. I909- Muhammadan Dab Jats, Jhang District. There is no distinction between gifts and wills. 98 P. R. I912- Kassars of Tahsil Chakwal. Jhelum District. Will and gift are treated alike. 294 P. L. R. 1913- Khokhars of Shahpur. There is no distinction between gifts and wills. 122 P. R. 1216- Arains of Jullulldur City. The power of alienation A. I. R. 1946 Inter vivos and the power of testation go together; Lah. ", Consequetitly that malienation of ancestral property being found liable to be controlled by a collateral of the alienor descended from a common ancestor, it followed that it could not be transferred by will. A. I. R. 1927 Lah. 261- Sabzwari Sayyads, phillaur Tahsil, Jullundur District. =101 I. C. 818 Under the Punjab Customary Law the distinction between the power to gift inter vivos and the powers of testation is a matter of degree and form only, and when the power of gift is shown to exist, an initial presumption arises that there is a co-extensive power of testation. A. 1. R. 1928 Lah. 489- Gakhars of Jhe1um Tahsil. It is a well = 110 I. C. 550 recognized principle of law that the power of alienation inter vivos and the power of testation go together, and if the former is proved to be governed by custom, the latter is presumed to follow the same rule. A. 1. R. 1929 Lah. 192- Gujjars of the Jhelum Tahsil. The Customary 10 Lah. 581 Law does not recognize any distinction between a right to make a transfer inter vivos and one to take effect after the death of transferor. Where in a particular tribe the former right is recognized, very strong evidence will be required to prove that the latter does not exist. A. I. R. 1931 Lah. is Under the Punjab Customary Law powers 132 I. C. 209 of right inter vivos are co-extensive with the power of testation and consequently where lower to make gift to a daughter is not dispute. it is for the party denying to establish that there is no power to will. A. I. R. 1924 Lah. 452- Awans of Talagang Tahsil. Ancestral -5 Lah. 34 property can be gifted without any restriction by sonless Awans of the Talagang Tahsil and consequently it can also be -79 I. C. 743 willed away. Such a presumption ''as, however, rebutted by an entry in the Riwaj-i-am of 1901. 49 P. L. R. 316- Among Arains residing in Jullundur Tahsil. A sonless proprietor has the same power of disposition of his ancestral property by will as he has by gift. Of also 12 P. R. 1877; 128 P. .R. 1888; 170 P. 'R. 1888; 176 P. R. 1888; 60 P. R. 1888; IX Beng. L. R. 397. Gifts and wills not held identical. 69P. R.1890- Kareshis of D. I. Khan District. Evidence to custom of a power of gift by within favour of daughter' son is no proof of a similar power by custom to make a valid gift by will in favour of a sister. The testamentary power, where it exists apart from public sanction, appears in India, as under Roman Law, to have been a development of the law of gift inter vivos and an owner' of property has no larger powers of gift by way of will, than of gift inter vivos. 33 P.R. 1891- Khokhar Awans of Shahpur District. A case where gift was undoubtedly permissible, but power to will held not proved. 90 P. R. 1891- Hindu Bhatti Rajputs of Sandhwal, Dasuya Tahsil Hoshiarpur District. The contention that will and gift are on exactly the same footing in the case of Punjab agriculturists cannot be acceded to. The distinction between wills and gifts in Customary Law is well-founded. 10 P. R. 1892- Kakezais of Sialkot District. It is not correct to say that a distinction between the power of gift and the power of bequest is never recognized. 81 P. R. 1893- It by no means follows that where there is a power to gift in: life-time, completed by delivery of possession, a gift in the form of bequest can be made deferring delivery till after death. 83 P. R. 1895- Khandaya Chuhans of Chakwal Tahsil. Wills and gifts do not stand exactly on the same footing. 88 P. R. 1895- Awans of Jhelum District. The right of testation being a much later development of the right of disposition of property by the owner. could not be assumed merely from the existence of the power of transfer by gift. 24 P. R. 1898- Pathans of Peshawar District. The Customary Law makes a distinction between the power of making alienations inter vivos and of wills which are to take effect after death, and there being essential differences in the nature of the two kinds of alienation, it was wrong to assume that in Customary Law the concession of the power of making gifts inter vivos necessarily implied concession of the power of making gifts by will. 22 P. R. 1899- There is a wide difference between the power of disposing of property inter vivos by gift, and that of disposing of it by will. 46 P. R. 1900- Wills stand on quite a different footing to gifts inter vivos. 86 P. R. 1903- Sindhu Jats of Amritsar District. Where power of transfer by will is not co-extensive with power of transfer inter vivos, onus probandi that proprietor has power to will is on the person setting up the will. Power are not co-extensive among Sindhu Jats of Amritsar District. See also 62 P. R. 1876 and 76 P. R. 1892. (4) Existence of the custom of making wills. AMBALA DISTRICT * Answer to Question No. 69.- . " 1887. The replies given are as a rule curiously wide of the mark and are in themselves quite sufficient evidence of the fact that wills are never made and that the nature of a will is not understood. If their recorded statements could be trusted, a majority of the tribes would agree that wills either oral or written could be made so as to defeat the rights of the heirs. It was abundantly clear at attestation that nothing was further from this intention. The only tribe having any custom on the point are the Sayyads. They agree that a will is legal whether oral or written but they only allow its limited application to special articles and a small portion of the property, and do not recognize its effect as regards immoveable property so as to defeat the heirs. A few other Muhammadans appear to understand what is meant by executing a will, but say that none ever is executed unless' with the intention of making it quite sure that the property shall descend according to custom and not by Mohammedan Law. The Hindu tribe~ without exception agree that a will is unknown and all that they meant by their recorded replies was that where a man had assigned a part of his property to any particular heir during his life-time, and where this assignment had been made publicly and with the consent of the collaterals, effect would be given to his wishes after his death. This practically amounts to a gift made during life, and the only proper answer to the question is that wills are entirely unknown. 1918. Wills and legacies are unknown as far as ancestral immoveable property is concerned." Judicial decisions. 68 P. R. 1888- Dhanoi Jats. By custom a will in favour of a widowed-daughter who lived with her father (a sonless proprietor) was valid and that the will conveyed to the defendant (widowed- daughter) life-estate only. 67 P. R. 1904- Kalals of Ambala City. No custom was established authorising a sonless proprietor to bequeath his ancestral estate to his daughter and daughter's daughter. AMRITSAR DISTRICT Answer to Questions Nos. 97 to 100.- 'The digest generate answer is that a proprietor can dispose by will of all his self-acquired property and a small portion for charitable purposes of his ancestral property. Gil Jats of Amritsar however. state that no portion at all of the ancestral property can be disposed of by will. On the other hand, Mohammedan Kambohs, Pathans and Gujjars of Amritsar Tehsil declare in favour of full powers with respect to both anstral and aquired property. Influenced by the now famous will of Sardar Dial Singh, Gil of Majitha, which was upheld by the Privy Council, some educated Sikh jats of Atari stated that all Jats have a power to make will of ancestral immovable property. No doubt wills are generally gaining ground and the courts view them favorably. All tribes: Where the power of wills is recognized no rule limiting its exercise exists except as noted under answer 97. Where wills are permitted, a person making a will bas a right to leave a legacy to one of his heirs without the consent of the rest. All the tribes with a few individual exceptions state that the woman will, in such cases succeeding to immovable property as a legatee, take in full ownership, provided it is so intended by the terms of the will. judicial decisions. 198 P. R. 1889- Awal Khatris (Agriculturists) of Mauza Chak Awal, Ajnala Tahsil. By custom an alienation of estate by will by a childless proprietor is valid. The onus lay on the defendants to establish that such an alienation was not recognized by custom. 74 P. R. 1899- Sarsut Brahmins, Tarn Taran Tahsil. A daughter Succeeded as heir to the estate of her father. She made a will of that estate in favour of her de. ceased husband's brother. On her death the estate was mutated in favour of her sister's sons; held, that the heirs were the sons of the other daughter who were entitled to succeed as heirs of the entire estate left by the grandfather. A female who succeeds in absence of male issue succeeds only as a means of passing on the estate to the male descendants in the female line and on failure of her male issue the estate reverts to her father's agnates. 86 P. R. 1903- Sandhu Jats, Tarn Taran Tahsil. No custom is established by which a sonless proprietor can validly dispose of his ancestral estate by will in favour of a distant collateral to the exclusion of a nearer one. 158 P. L. R. 1908- Jhiwars of Jupatpur Bazaz. Governed by their Personal Law and not by custom. A. I. R. 1921 Lah. 147- Khatris of Amritsar Town. By custom the adoption of a daughter's son is recognized among the Khatris of the town of Amritsar. The adopted son takes lth of the entire estate. The will of the adoptee in favour of natural son born after the adoption can operate only upon his separate estate and it should be regarded as invalid qua the join estate ATTOCK DISTRICT Answers to Questions No s. 37 and 38.- "It is admitted by all that a will made with the consent of the heirs in favour of some other person will hold good and it is scarcely likely that any dispute will arise in such a case. If the will is for any reason afterwards contested, proof of the consent of the interested parties will be sufficient to make the will valid. , Custom is however vague as to whether a man has a right to dispose of the whole or a part of his property by will according to his own inclinations and without the consent of the rightful heirs. In Fatehjhang it was confidently asserted by all tribes that a proprietor has a right of testamentary disposition of a part if not of the whole of his property, though the feeling of all is that any such disposition of the whole property to the detriment of the legal heirs could be successfully contested. The same tribes in "Pindigheb deny that there is any sanction of custom for any kind of testamentary disposition. Custom is therefore somewhat vague and for the purpose of the Courts it may be safely assumed that a reasonable disposition of property by will for a worthy object (e.g., a charitable bequest or a suitable legacy to the offspring of daughters left destitute, etc., would have the sanction of custom, while any attempt to tamper with the legal right of the direct heirs to the property would be strongly disapproved by public opinion. The attempt made by various tribes at last settlement to define the exact limits within which testamentary disposition is permissible appears to have no justification on customary grounds and have not been repeated on the present occasion." Judicial decisions. 5 P. R. 1914- Awans of Attock Tahsil. A will to a sister's son bequeathing nearly one-half of ancestral land free of encumbrance to the legatee, and leaving the other half to the reversioners on condition of their paying their heavy debts, otherwise the property to go to some other person, was invalid, as it was a disposal of the whole property of the testator for the benefit of the legatee. According to custom a bequest of a reasonable portion of the estate of the deceased would be valid, but a sonless proprietor could not bequeath the whole of his ancestral property to a sister's son in the presence of the reversioners, viz.. first cousins. 32 I. C, 806- Awans of Fatehjang Tahsil. By custom a sonless = 76 P. W. R. 1916 proprietor is not entitled to bequeath his estate to the prejudice of his reversioners. A. I. R. 1923 Lah. 305- Awans of Kot Sarang, Talagang Tahsil. = 75 I. C. 669 By custom a sonless proprietor has not 1924 Lah. 452 [L. P.] free power to dispose of his ancestral estate by will. A. I. R. 193 I Lah. 266- The Awans of Shahpur, Rawalpindi, Attock and Mianwali Possess very wide Powers of alienation inter vivos in respect of ancestral property, but they have no power to dispose of ancestral property by a will. BANNU DISTRICT 121 P. R. 1886- Awans of Bannu. By custom an Awan cannot alienate his estate by will. The will is valid under Muhammadan Law as It was made In favour of one heir without the consent of other heirs. DELHI DISTRICT . * Answers to Questions Nos. 97 to 100.- All tribes.- A proprietor can make by Word of mouth or in writing a disposition of his property to take effect after his death, but cases of wills are infrequent and the custom of making a will in writing is still very rare. There is no established rule limiting the exercise of the powers of bequest by a proprietor, but generally the prevailing custom is that a proprietor at the time of his death can bequeath a limited portion of his property for charitable. purpose Or a religious institution, such is founding a Piau Or building a Mandar or a mosque. In such a case It is not necessary to obtain the consent of the heirs. in instance of this kind (can a legacy be left to one of the heirs without the Consent of the rest) is known to have occurred. There has been no instance of a widow succeeding to immovable property as a legatee.
** Answers to Questions Nos. 69 to 69
"The Muhammadan tribes of the district excepting the Kasranis and Khosas of Sanghar, the Khosas of Dera, the Gurcbanis of Jampur and the Drishaks of Rajanpur say that a will, whether verbal or written, is binding to the extent provided by Muhammadan Law. The Hindus also recognize wills both verbal and written as valid. Those of Sanghar, however, say that a will is binding only if it is in favour of the testittor's collateral male relatives. The Kasranis and other Bilucbes mentioned above state that a proprietor cannot make a will. Muhammadan tribes who recognize the power to make a will, state that alienation by a will may be made to the extent of one-third of the testator's property as allowed by the Muhammadan Law. Hindus do not put a limit to the testator's Power of alienation. Muhammadans, who recognize wins, state that the provisions of the Muhammadaln Law are followed, and a will in favour of one of the heirs the consent of the Hindus recognize the power to make a legacy in favour of one of the heirs without the consent of the others. In the southern two tahiils the power is, however, limited to acquired property. Muhammadans say that if the will be valid under the Muhammadan Law, the widow gets the property in full ownership. Hindus of the Sanghar, Dera and Rajanpur are of the same opinion, but those of Jampur say she only gets a life-interest without a power to alienate."
* Answers to Questions Nos. 1 to 4, Section VIII.-
"Tank Tahsil and all tribes of Dera, except Khatris.- A proprietor cannot make such (by will) a disposition of his property without the previous consent of his agnates, unless the property be self- acquired. Dera Tahsil Khatris.- When his sons or other heirs are not obedient to him, a proprietor may alienate a portion of his property, by gift or testament, in favour of an outsider. Gifts in favour of daughters or their sons, by sonless proprietors, are not uncommon, but possession is necessary to the validity or such transfers. Kulachi Tahsil.-
Instances of a genuine will are not known. A proprietor is not at liberty to make a disposition of his property so as to deprive some of his heirs of their proper share. But such an alienation by a sonless proprietor made in writing and in favour of a daughter would hold good after his death.
Note.- The disposition of property by will is a recent development and was unknown at the advent of the British rule. Its use, as M th Rattigan writes, is not to override but to satisfy the natural claims offence family by modifying the strict archaic law of agnatic successor Consequently a disposition to the past traditions of the tribe should be. given effect to, even when in favour of a stranger. But if it is intended to rpreive the natural heirs of their due share, or no alter their shares matpeially, it must be set aside invariably.
Dispositions by sonless proprietors in favour of a daughter-in-law are often made, but they are mostly of the nature of a gift and are given effect to during the life-time of the donor. Gifts to strangers when coupled with possession are sometimes allowed without much interference on the part of the natural heirs. It is not certain whether a will as such is permissible or not and to what extent. No definite usage on the point exists, but the spirit of tribal custom does not seem to favour it. Babars, Biluches of Paniala and Sayyads of Bilot and .Kathgarhallow the Muhammadan Law.
The power of bequest is subject to limitations as stated above, but there is no fixed rule to regulate its exercise nor any recognized limit with in which a proprietor may bequeath part of his property. By custom a man cannot alter the shares of his ancestral property.
A legacy cannot be left to one of the heirs, without the consent of the rest except as noted above.
This may be done.
There is no such custom (widow succeeding as a legatee taking in full ownership), but if a widow were to succeed as a legatee, she would hold it for life and subject to the same restrictions as if she had succeeded otherwise."
* Answer to Question No. 84.-
"Most tribes state that there is no custom of making wills or verbal dispositions of property. The general opinion is that a man cannot dispose of ancestral property in a manner contrary to the general rules of inheritance. He Can dispose of self-acquired property in any way he likes.
Note:-Wills are practically unknown among the village population. Judicial decisions.
120 P. R. 1893- Arains of Ferozepur District. A will in favour of one son to the exclusion of his half-brothers was held to be invalid as regards ancestral land, but valid as regards a non-ancestral house and movables.
14 P. R. 1912- Pir Pathans of Ferozepur. Held, that it was not proved that these Pathans followed custom in the matter of wills, though the property was not proved to be ancestral. The will being in favour of one heir to the exclusion of the others was invalid under Muhammadan Law.
GUJRANWALA DISTRICT .
Answer to Question No. 82.-
"All tribes Save Khatris and Aroras (Tahsil Gujranwala), Brahminsn (Tahsil Wazirabad) and Arains (Tahsil Sharakpur).-
A proprietor cannot make a disposition of his property to take effect after his death by word of mouth or in writing. However, he can dispose of it to such extent as his aanatei consent to, openly and in writing.
Among Khatris, Aroras, Brahmins and Arains, a man, if he has no male lineal descendants, can make a disposition of his property, movable or immovable, in writing. Among Kharals he has such power only over movable property." Judicial decisions.
34 P. R. 1891- Chima Jats. No special custom was established by which a childless proprietor was empowered to alienate his immovable estate by will in the presence of collaterals (6th or 7th degree).
110 P. R. 1893- Hindu Varaich, Jats, Gujranwala tahsil. A sonless proprietor was not competent to gift or will away the enare of his estate from the proper heir to a more distant collateral.
A. I. R. 1931 Lah. 453- Chhatta Jats, Wazirabad Tahsil. A pro prietor
-133 I. C. 649 cannot make a disposition of his property to take effect after his death by word of mouth or in writing.
Although ordinarily speaking a wide power to make gift may lead to an initial presumption that a similar power exists to make bequests yet the two are not necessarily co-existent or co-extensive.
Answer to Questions Nos. 110 to 113.-
A proprietor can make a will either by word of mouth or in writing in any way he likes about his movable or acquired property. A small portion of his immovable property can be alienated by will for religious and other charitable purposes." Judicial decisions.
25 P. R. l910 - Gujars of Gujrat District Wills in favour of daughters and their husbands are valid only if made in favour of duly appointed and regularly and continuously recognized Khana-damad.
70 P. R. 1908- Bukhari Sayyads. A sonless proprietor is Competent to bequeath the entire of his ancestral estate to his daughter to the exclusion of his near male collaterals. The bequest is for the benefit of her and of her issue. But the extension of the institution of CC Khana-damad" to a future husband of the daughters was inadmissible.
A. I. R. 1933 Lah. 187 (2)- By the custom in Gujrat District where a father bequeaths property in favour of his daughter making her absolute owner of
=141 I. C.270 his property after his death and appoints the son-in- law as his Khana-damado, the daughter acquires an absolute estate to which there is no reversion; and an alienation by her cannot be challenged by another female in the absence of a custom to that effect.
Answers to Questions Nos. 1 to 4, Section V.-
The following tribes either deny the power of a proprietor to make a disposition of his property to take effect after his death, or merely state that no bequest has been ever made among them :-
Pathankot;-Chhangs, Labanas, Muhammadan and Hindu Jats. Shakargarh-Brahmans, Pathans, Sayyads, Hindu and Muhammadan Jats, Gujjars. Arains, Sainis and Mallahs. Batala-Brahmans, Khatris, Kakkezais, Arains, Pathans and Sayyads. Gurdaspur-Hindu Rajputs, Sainis, Labanas, Bhats. Lohars and Tarkhans. From among the tribes of the Gurdaspur Tahsil who admit the power of bequest the Pathans, Moghals and Kakkezais state that a bequest may be both by word of mouth and in writing. The other tribes of this tahsil consider writing to be indispensable. All the tribes of the remaining three tahsils think that a will can be made in either way. The only restriction imposed by the Brahmans and Hindu Rajputs of the Pathankot Tahsil on the power of bequest both as regards ancestral and self-acquired property, is that the consent of the next heirs should be taken. The Sainis of the same tahsil confine this power to self-acquired property as regards which there exists no restrictions. The Muhammadan Rajputs and'’ Sayyads or this tahsil state that in the case of both ancestral and self-acquired property only a part can be bequeathed. No exact share is laid down by custom. but the general opinion is that the share should be one-tenth. The Gujjars of this tahsil do not recognize any restriction as regards self-acquired property. As regards ancestral property they consider the consent of the next heirs to be essential.
In the Shakargarh Tahsil the Hindu Rajputs state that a bequest should always be made for charitable purposes, and whether the property be ancestral or otherwise only a part should be bequeathed. No share is fixed by custom. but the general opinion is that more than 1\4 of the property should not be bequeathed. The Muhammadan Rajputs and Lobanas state that only a small portion of the property should be bequeathed, but can fix no exact limit. In other respects their answer is the same as that of the Hindu Rajputs.
In the Batala Tahsil all the tribes that admit the power of bequest, namely, the Hindus and Muhammadan Jats and the Muhammadan Rajputs, state that there exist no restrictions as regards self: acquired property. The Hindu fats allow no power of bequest as regards ancestral property, and the other two tribes state that only a small portion of the property can be bequeathed for the support of a mosque.
In the Gurdaspur Tahsil the Kakkezais state that a proprietor having no male descendants can bequeath half of his property to his daughter, whether the property be ancestral -or self-acquired. The self. acquired property, they say, can be bequeathed to strangers also. The Kalals state that only a small portion of the property can be bequeathed for charitable purposes, there being no distinction between ancestral and self-acquired property as regards bequest. All the remaining tribes state that there is no restriction as regards self-acquired property, and a small portion of the ancestral property also "an be bequeathed for charitable purposes. None of the tribes admits the power of a proprietor to assign a legacy to any of his heirs out of his ancestral immovable property. As regards self-acquired immovable property, a proprietor has full power among the following tribes :-
Batala-Hindu and Mohammedan Jats, Mohammedan Rajputs.
Gurdaspur-Gujjars, Mallahs, Khatris, Brahmans, Bedis, Sodis and Kakkezais.
The remaining tribes state that in the case of self-acquired property also no legacy can be left to one of the heirs without the consent of the rest. This will depend upon the conditions of the legacy. Most of the tribes, however, merely state that there exists no custom among them on this point."
"There is no general custom by which a proprietor makes a disposition of his property to take effect after his death. (All tribes).
Note.-A few instances may be found, especially of late years, and chiefly among the Sayyads. Ahirs, Meos and Jats, in which an attempt has been made by word of mouth or in writing, to regulate the disposition of the property after death; but it is doubtful to what extent these dispositions would hold if disputed, and they are certainly contrary to general custom. Sometimes, especially perhaps among the Dhusars and Banyas a proprietor does on his death-bed give some directions about his property; but it is difficult to say whether these are of the nature of legacies or death-bed gifts, and to what extent the heirs are considered bound by them. It seems clear that the proprietor cannot, without the consent of his near heirs, deprive them of an unreasonably large portion of the immovable property, or perhaps of the ancestral movable property, by any such disposition" (1).
"Neither wills nor gifts are customary. Wills are absolutely unknown, except in the shape of petty during bequests principally of movable property. Such bequests are opposed to public feeling, as calculated to cause injustice to the ordinary heirs: but, if confined to petty items, are commonly respected out of regard for the deceased's memory. Gifts of small plots of land to daughters or others are occasionally made. But practice is infrequent and I am inclined to think it was rarer still prior to our rule" (2).
Answers to Questions Nos. 92 to 94.-
“Among Hindu Rajputs Brahmans and Mahajans a man can make a disposition of his self-acquired property to take effect after his death by word of mouth or in writing. but he cannot make a will about his ancestral property. Among all other tribes the custom of making wills is quite unknown, and no man has over made, whether by word of mouth or In writing, a disposition of his property to take effect after his death, whether it be self-acquired or ancestral property.
"Among Hindu Rajputs, Brahmans and Mahajans. every person has full power over his self-acquired property, and may leave a legacy to any one he wishes; ill respect however of his ancestral property, no legacy can be left to one of the heirs without the consent of the rest. Among other tribes the custom of leaving a special legacy to anyone is quite unknown. Yes (a widow who succeeds to immovable property as a legatee, takes it in full ownership), but only among the tribes which recognize legacies-Hindus, Rajputs, Mahajans and Brahmins-see the previous replies-and then only as regards the self-acquired property of the legator.
HOSHIARPUR DISTRICT .
Answers to Questions Nos. 79 to 80 and 82.-
"Rajputsof Tahsil Garhshankar,Mahtons, Gujiars, Awaos, Chhangs. Dogras, Brahmins, Khatris and Kalals say there is no custom among them by which a man can dispose of his property by will. Jats, Rajputs of Tahsils Hoshiarpur and Dasuya, Arains and Sainis say that a man has the same power of disposing of his property by will as he has of adopting a son. Pathans, Sayyads and Sheikhs admit power to will, provided it is in writing and duly registered or attested by respectable witnesses. Oral wills are not recognized. Remark as compared with the replies given at last settlement. Jats, Rajputs of Tahsils Hoshiarpur and Dasuya, Arains and Sainis. Who then denied the right of disposal of property by will, now admit it to a limited extent, i.e., to the same extent as a person of these tribes has of making an adoption.
": Jats, Rajputs of Tahsils Hoshiarpur and Dasuya, Arains and Sainis say there is no limit. Pathans, Sayyads and Sheikhs say that a man can dispose of one- third of his property by will to anyone, but not more unless his reversioners consent.
There is no such custom (relating to a widow succeeding to immovable property as legatee. taking in full ownership) i e., the person making the will must have no lineal male descendants and he can only dispose of his property by will to a person he could have adopted. .See questions 61 69 and 70 on the subject. of adoption. It is interesting to. notice that Mahtons, Gujjars of Tahsil Dasuya, Awans, Chhangs, Brahmins, Khatris and Kalals have the custom of adoption, but deny the right to devise Property by will, while Pathans. Sayyads and Sheikhs admit the latter power. but have no custom of adoption. 2. The general trend of the courts. ...is to recognize the power of any person to dispose by will of his self-acquired property. 3. A further principle may also be stated, namely, that a proprietor has the same power to devise his property by will as he has of making gifts inter vivos. See P. R. 810f 1877 ; P. R. 48 of 1903; P. R. 96 of 1905."
Judicial decisions. '
90 P. R. 1891 - Hindu, Bhatti, Rajputs, Dasuya Tahsil. There is no custom by which a bequest of the ancestral estate to a near relative in the presence of other relatives is permitted.
115 P. R. 1891- Mahton Rajputs. A will of one-fourth share to one of the grandsons in the presence of sons held invalid.
96 P. R. l905- Jhiwars. A bequest by a sonless proprietor in lieu of services rendered to him in favour of one of his collaterals is valid without the consent of his other collaterals.
Answers to Questions Nos. 110 to 113.-
"All tribes-Generally person cannot dispose of his ancestral property by will in favour of one of his heirs without the consent of the others, but he has a free hand as regards self-acquired property. A man can alienate property by will to his near relatives and not to stranger. Amongst Hindus a man, if he has no male lineal descendants, or has issue but some one of his collaterals has been serving him, can dispose of a portion of his ancestral property in his favour, provided the collaterals do not object to this. Khojas and other Muhammadan tribes who do not profess to follow custom can dispose of their ancestral property in accordance with Muhammadan Law. No She (a widow) has a life-interest only and her powers of disposal are restricted in the same manner in which her powers as a successor to her husband are.
A proprietor cannot dispose of his ancestral property by a will, either verbal or written, without the consent of his next heirs. He can, however, do so in respect of his self-acquired property and can make a will in favour of the next heir.
In case the next-of-kin consent, then he can make a gift both of ancestral and self-acquired property alike."
69 P. R. 1896- Dhal Khatris, Shorkot Tahlil. Non- ancestral property. Will by a sonless proprietor in favour of his sister's son valid.
48 P. R. 1909- Muhammadan Dab Jats. The defendant failed to establish that a sonless proprietor is competent to make a-gift or a will of his ancestral estate to his daughter or daughter's son or that a daughter or daughter's son is entitled to succeed to the exclusion of the first cousin once removed of the deceased.
90 P. R. 1915- Sials of Jhang District. On the death of a sonless proprietor his two daughters succeeded him.
" One of the two daughters also got some estate from the mother of her first husband and some from her first husband as his widow. She alienated all this estate by a will to her second husband. The plaintiffs (collaterals in the 11th degree),contented this alienation; held, that collaterals had no locus to contest alienations made by a daughter except in respect of the estate which the latter held in the capacity of widow of her first husband.
A. I. R. 1928 Lah. 940- Where power to will is established under Customary Law, the Court has no power to assume that the principle of Mohammedan Law applied to wills, merely because the parties are Musalmans by religion.
A. I. R. 1938 Lah. 3l2- By the custom among the Sials of ]hang a proprietor of ancestral property can by will favour one of his sons as against others. And the custom in this respect is correctly recorded in Riwaj-i-am of 1907 and not correctly recorded in that of 1929.
* Answers to Question Nos. 78 and 79.- Gakkhars-There is a difference of opinion; the right to make wills is not generally recognized, but a large minority state that it may be done even in the presence of sons, who cannot, however, be excluded altogether. Cases cited are chiefly gifts, not wills. Janjuas- The Janjuas also disagree. The jhelum Janjuas say that there is no custom, though a will was upheld in Bajwala Of, the Find Dadan Khan many men say that wills can be made in favour of near: ralations. Wills in favour of daughters and daughters' sons are said to have been acted on in Dalwal and Dandot ; many agree with the Jhelum Janjuas that there is no custom of making wills. Khokhars, jalaps, Mughals, Gujjars, and Miscellaneous.
No custom of making wills. (There is one case in Pind Dadan Khan Amongst Khokhar, where the agnates are about to contest the will after nearly 12 years' silence). Phophras and Brahmans-
There is no objection to bequests of small parcels of land to daughters or daughters’ sons, or by way of charity. Awans -and all Musalman tribes of Chakwal, also Hindus, except Brahmans- Ancestral property cannot be disposed of by will, but self-acquired property can be so disposed of. Jats-At first stated that wills by way of charity or in favour of daughters' sons for small parcels of land are valid, but afterwards more correctly. that there is 'no custom. Sheikhs.-
One'-third of the estate can be disposed of by will according to Shara.
Note.-It will be observed that judicial decisions not with standing, no tribe admits an unlimited power of bequest as regards ancestral land, few admit it even as regards non-ancestral and a limited power of –bequest of ancestral land is asserted only by 'a section of the Gakkhars and Janjuas, some of the jats and the Sheikhs and Phaphras.
The custom of bequest is one of the most fruitful sources of litigation ; where it exists at all, it is, I believe, a new development, due to an incorrect entry in the old Riwaj-i-am which the courts have often followed in their decisions, Compare in this connection the remarks in p1ra 38, Chapter III, of Roe and Rattigan's Tribal Law, to the effect that in general any power of altering the devolution of ancestral property by will is not only unknown but is necessarily opposed to the fundamental principles of Customary Law. (This dictum has, however, been questioned in Punjab Record No.2" of 1901 in which a will amongst Awans of the Shahpur District was upheld.) Sheikhs (The power of bequest) exists to one-third according to shara. All other tribes who assert the power of bequest. Where the power of bequest exists, there are no special customs known..'
56 P. R. 1881 - Phapra Moghals, pind Dadan Khan Tahsil. A sonless proprietor by custom is competent to make a will in favour of his daughter's son, in the absence of his own sons. .
l09 P. R. 1882- Mahr (Muhammadan), Chakwal Tahsil. By the custom of the tribe an heir can be selected, and by will right of succession to the entire estate can be conferred on him.
122 P. R. l884- Jhanjuas of Jhelum Tahsil. Alienation of land in favour of a daughter by will is permitted.
93 P.R. 1885- Muhammadan Rajputs of the Chakwal Tahsil. A proprietor without male issue could by custom make a will leaving his entire estate to his daughter to the prejudice of his near collaterals.
21 P. R.1891- Charmohal Chakwal Tahsil. A will in favour of a widow to the exclusion of step-sons" held invalid.
108 P. R.1893- Awaas. A will ill favour of daughter to the exclusion of a brother held invalid.
83 P. R. 1895- Khandaya Chuhan Rajputs, Chakwal tahsil. A will in favour of daughter by a sonless-proprietor to the exclusion of warisan yek jaddi, held inva1id
88 P. R. 1895 - wans, Talagang Tahsil. A will in favour of a distant collateral to the exclusion of a near collateral held invalid.
22 P. R. 1895- Awans, Talagang Tahsil.. The power to transfer an ancestral estate by Will does not exist among Awans.
56 P. R. 1899- Khots, Chakwalt, Tahsil. The onus probandi of establishing that the devolution of the property by will by a sonless proprietor to his daughter to the exclusion of his near collaterals is valid is on the party who" asserts it.
50 P. R. 1902- Mair Mana Rajputs, Chakwal Tahsil. By custom a will or a gift by a sonless proprietor of non-ancestral immovable estate is valid. But he is not competent to aliginate his ancestral estate by will Or gift favour of his sister's sons and their wives who were also donor's sister's daughters, to the exclusion of his first cousin without his consent.
132 P. R. 1908- Hamdani Sayyads, Talagang Tahsil. A bequest by I a male proprietor of his immovable estate is valid so far as it effects his self-acquired estate only.
68 P. R. 1910- Kahuts of Chakwal Tahsil. A will in favour of sister's son who was also agnatically related in the 5th degree and rendered him service, made with the consent of his brother, held valid.
98 P. R. 1912- Kassars, Chakwal Tahsil. A childless proprietor can devise the entire of his ancestral estate in favour of his sister to the exclusion of his collaterals (6th degree).
53 P. L. R. 19l2- Bargal Jats. A sonless proprietor has no right
-13 I. C. 77 to bequeath his estate by will to his daughter's .son to the exclusion of his agnatic collaterals.
17 P. R. 1913- Kashmiris, Jhelum City, will of self-acquired property held valid.
2 Lah. L. J.666- Mair Minhas, Chakwal Tahsil. A sonless proprietor bequeathed his land and house in favour or his daughter. She in turn after some time made a will in favour of her sister's son and son-in-law. The collaterals of her father issued for possession, held, the will of the sonless proprietor bestowed absolute estate on the daughter and hence she was competent to bequeath the estate to the defendants.
A. I. R. 1925 Lah. 71- Kahuts, Chakwal Tahsil. A proprietor has
=76 I. C. 123 no power to bequeath by will a portion of his ancestral estate in favour of his daughters in the presence of his son.
A. I. R. 1926 Lah. 635- Kassars. Chakwal Tahsil. A will of aoces. .
-96 I. C. 8S tral estate is not void but voidable.
A. 1. R. 1929 Lah. 192 - Gujjars. Jhelum Tahsil. Custom of making
-10 Lah. 581 wills proved to exist. Burden of proving right
-114 I. C. 705 to make will is, however, on the party who alleges it.
A. I. R. 1929 Lah. l46- Kahuts of Chakwal Tahsil, cannot dispose of ancestral property by will.
A. 1. R. 1931 Lah. 450- Jats of Tahsil Jhe1um. They have under
132 1. C. 209 custom the power to bequeath their property to their daughters.
Power of disposition of ancestral property by a Muhammadan of Cltakwal and Awans or Jats of Jhelum as evidenced by Question 78 of Talbot's Customary Law is not dependent upon whether the devisee is a khana-damad or not (Case-law discussed.)
A. 1. R.193l Lah. 481- Awans. Pind Dadan Khan Tahsil. No custom proved enabling a sonless proprietor to make a valid disposition of his ancestral property by will.
A. 1. R. 1933 Lah. 612- Kahuts of Tahsil Chakwal. A sonless
= 14 Lah. 553 proprietor is competent to will a way his
= 14l I. C. 364 ancestral property to his daughters.
A. I. R. 1938 Lah. 527- Mair Minhas (Rajputs). Chakwal Tahsil. A will by a sonless proprietor of ancestral or self- acquired property in favour of his daughter's daughter is valid in presence of his brother. (Case-law discussed).
A. I. R. 1939 Lah. 382- A sonless Musalman proprietor in the Jhelum District has the right to make a will of his ancestral property in favour of his daughters. The initial onus of proving that the will made by their lather is valid under the Customary Law is on the daughters claiming under the will.
Answers to Questions Nos. 79 to 82.-
"AII the tribes of the Nakodar and Phillour Tahsils state that a man can dispose of his self-acquired property by a written will but he cap.,not so dispose of his ancestral property. The Sayyads, Sheikhs. Mughals. Pathans and miscellaneous Muhammadans of the Nawanshahr Tahsil also say so; the other tribes of this tahsil say that the custom of making a will does not exist among them. The pathans. Sayyads and Sheikhs of Jullundur Tahsil state that a man with full fights may dispose of his property by a written deed, while the other tribes of this tahsil say that they have no right to make a written or oral will.
"Where wills are permitted legacy can be left to one of the heir without the consent of the others but only about self-acquired property.
"Where a widow succeeds to immovable property as a legatee she has only a life-interest and can mortgage it in case of actual necessity and in case of marriage of her daughter when collaterals refuse to pay the expenses.
"In’ the Nakodar Tahsil a widow has a full right about the self. acquired property of her husband, but as to ancestral property she has no right to alienate it..,
46 P. R.1880- Pathans. By custom a proprietor cannot interfere with the interests of his descendants in his estate by way of will without their consent.
171 P. R. 1889- Awans of Jullundur Tahsil. By custom a widow in possession was not entitled to bequeath the entire estate of her husband to her unmarried daughter.
15 P. R. 1912- Mubammadan Rajputs of Mauza Bhura. Nawanshahr Tahsil. A proprietor became Christian and made a will in favour of his daughters and their issue. His nephews contested the will. Held, the powers of collaterals to contest an alienation are not affected or diminished by the simple reason that the alienor has adopted Christianity as his faith.
122 P. R. 1916- Arains of Jullundur City. The power of alienation inter vivos and the power of testation go together consequently an alienation of ancestral property being found liable to be controlled by a collateral of the alienor descended from a common ancestor who originally owned it. it followed that It could not be transferred by will.
A. I. R. 1925 Lah.l10- Rajputs of Guna Chaur, Nawanshahr Tahsil.
-78 I. C. 183 The onus is on the alienee to justify alienation by will of ancestral estate in favour of a distant collateral in the presence of nearer collaterals.
A. I. R. 1927 Lab. 261 - Sabzwari Sayyads of Maw, Phillour Tahsil.
-8 Lah.149 By special custom a bequest to a daughter of the
=101 I. C. 818 ancestral estate is valid. ,
A. I. R. 1946 Lab. 426- Among Arains of the district of Jullundur a sonless proprietor can validly dispose of his ancestral property in favour of his daughter by means of a will as well as by means of a gift inter vivos.
A. I. R. 1949 E. P .252- Arain of Jullundur Tahsil has power to dispose of his ancestral property by will in favour of his legal heirs.
Answer to Question No. 85.--
The Brahmins of palampur Tahsil and the Gaddis of Kangra. Tahsil state that there is no custom of making wills or verbal dispositions or property. The other tribes estate that a man cannot dispose of ancestral property in a manner contrary to the general rules of inheritance. He can, however, dispose of self-acquired property and movable property in any way he likes.
A widow succeeds only to a life-estate, and her power to dispose of such property is governed by the rules laid down in the answer to question 45.
121 P. R. 1893- Bhojkis of the temple at Bhawan, Kangra Tahsil.
Bhojkis or heredi tary priests sued as heirs of one G, to recover certain movable and immovable property left by his widow, J, and the defence pleaded a gift or bequest by J to K, as her adopted son. Held, that the most important part of the property in dispute was acquired by J, as representing her husband, and succeeding to his brother's widow, whether rightly or wrongly, and the bequest as to this was certainly invalid, that the widow's savings from the Birt income were invested in jewellery and the ornaments if given or bequeathed apart from inherited estate, the gift or bequest would have been a valid One. However that the accumulations thus invested were not separated from the estate but mixed up with it, and disposed of along with it, and the bequest was accordingly, altogether invalid.
*Answer to Question No. 57.-(Panipat Tahsil and Kamal Pargana).
"Rajputs of Panipat town followed by the Sayyads of Baras, Panauri Jalpahar and Sayyadpura state that the entire estate may be disposed of by will in favour of a male or female relative.by a male proprietor. Roars state that acquired property only may be disposed of by will by any proprietor. Bairagis and Kambohs state that a male proprietor may direct the disposition of all his property after his death by oral or written directions. No other tribe admits testamentary dispositions.
Note.- These answers are in substance the same as those recorded at last settlement and the tribes have refused to alter them. It is, however difficult to believe that the custom would be recognized as binding in Court of Law. The only instance that could be found was the case of Nazir Ali Khan, son of Fatteh Ali Khan, who, in default of issue and in the presence of a widow and a step-brother made a wilt in favour of his real brother, vide records of 1ast settlement (panipat, Taraf Rajput).input the case is hardly strong enough to establish a Custom. For while the widow probably does not contest the will if properly maintained, the claim of the step-brother was inferior to that of the beneficiary under the will."
Answers to Questions Nos. 106 to 109.-
All tribes-Where the power of will is recognized, no rule limiting its exercise exists except as noted under answer 106. All tribes-Where wills are permitted, a person making a will has a right to leave a legacy to one of his heirs without the consent of the rest.
All the tribes limit her (widow's succeeding as a legatee) rights to a life. estate as noted under question No. 56."
62 P. R. 1876- Hindu Jats. Under the terms of the Wajib-ul-arz childless Hindu Jat was incapable of disposing of ancestral immovable property by will.
12 P. R. 1877- Jats of Nurpur, Lahore Tahsil. By custom a willby a proprietor of his estate to his sister's son is valid.
128 P. R. 1888- Dhanoa Jats, Kasur. A will of an immovable estate by a sonless proprietor in favour of a distant relative in preference to a near one is invalid.
11 P. R. 1908.- Rattal Jats of Mauza Jallu, Lahore Tahsil. As a rule collaterals beyond the fifth degree. or at most the seventh degree of relationship, are not recognized as entitled to control the acton of a sonless proprietor in respect of disposition. The collaterals of the eighth degree failed to establish a right to oust the daughters or to contestan alienation of ancestral property in favour of the daughters.
66 P. R. 1911- Arains of Kasur Tahsil. An Arain agriculturist being dissatisfied with one of his sons separated him, giving him his share of the family estate as it then stood; held, that he could exclude that son from further participation in the family estate and that he was entitled to bequeath his remaining estate with its subsequent accretions to his other sons.
49 P. R. 1915- Gul-farosh Arains of Lahore City. Special custom proved under which a will is valid.
A. I. R. 1936 Lah. 687- Customary Law of Lahore District by Mr.
-166 I. C. 386 Bolster, Question 106, states that a sonless proprietor can make a will of self-acquired property.
Answers to Questions Nos. 76 to 79.-
"AII tribes reply that wills and legacies are unknown. Wills are very eldom executed, and there are no Ludhiana cases of printed judicial decisions. Whenever the collaterals have contested a will they have succeeded.
The courts usually act on the rule of law that the right to will is co- extensive with the right of gift inter vivos but the rule does not appear to be consonant with district custom. The consent of all heirs would be necessary to an alienation by devise. I
No custom (of a widow succeeding to immovable property as a legatee). She would probably take only a widow's interest. The rule of law appears to be that no one can create by will in favour of a woman a more extensive estate than she could inherit at law.
51 P. R. 1913.- Udasi Fakirs of Jagraon Tahsil. The father while bachelor made a will in favour of his Chela. The will was not found after the testator's death. Held that the court was justified in assuming that the testator revoked the will.
MIANWALI DISTRICT .
Answers to Questions Nos. 1 to 4, Section VIlI.-
All Musalmans.-A propriotor can make a disposition of his property to take effect after his death, provided that it is made in writing. A disposition by word of mouth is not considered valid. Hindus. A proprietor can make by word of mouth or in writing a disposition of his property to take effect after his death."
"All Musalmans.-A proprietor can bequeath all his property, but ordinarily no disposition is made when there are lineal male descendants.
Hindus.-A proprietor can bequeath the whole of his self-acquired property. He cannot make a disposition of his ancestral property, except in so far as to alter the shares of his sons or other heirs. With the consent of the heirs, he cannot bequeath the whole of the ancestral property as well."
All Musalmans.-A legacy may be left to one of the heirs without the consent of the rest. But ordinarily a son is not deprived entirely of inheritance although altering the shares of sons or other heirs is permitted.
Hindus.- The whole property cannot be bequeathed to one heir without the consent of the rest. A proprietor may however nominate in his life-time one of the heirs as the fit successor, so that he may after his death take a larger share of the property than the others."
"All Musalmans.-A widow who succeeds to immovable property as a legatee takes it in full ownership or subject to the conditions in which the property is bequeathed to her.
Hindus.-A widow has only a life-interest in the property to which she succeeds as a legatee and cannot alienate it.
*Answers to Questions Nos. 107 to 110 (Pakpattan and Dipalpur Tahsils).-
"(1) All Muhammadans of Tahsil Pakpattan except Pathans, Mahtams of Tahsil Pakpattan, A rains, Mahtams, Jat Sikhs of Tahsil Dipalpur, Sayyads t Hujra of Tahsil Dipalpur. Cannot leave a legacy (to one of the: heirs without the consent of others).
(2 Khatris, Aroras of Tahsil Pakpattan, Sayyads of Dipalpul' Town.-Can give a legacy to one of the heirs with the consent of the other heirs. The fact that the property is ancestral or acquired makes no difference.
(3) Jat Sikhs, Kambojs, Pathans of Tahsil Pakpattan; Pathans, Moghals, Aroras of Tahsil Dipalpur .-Cannot give a legacy out of the; ancestral property but can do so out of the acquired property.
(4) Khatris of Tahsil Dipalpur.- The Saegal Khatris state that a man can give a legacy to anyone he likes. All the other Khatris state that he cannot deprive particular heir of his share, but that he has the right to give larger or smaller share to a particular heir than he would otherwise get if the property were distributed equally."
"(1) All Hindus and Musalman tribes of Tahsil Pakpattan and Sayyads, Pathans and Mogals of Tahsil Dipalpur .She (a widow) has full ownership but subject to the conditions, if any, mentioned in the legacy itself.
(2) All Hindu tribes of Tahsil Dipalpur.-She is only entitled to maintain herself out of it till second marriage or death.
(3) Arains, Jat Musalmans, Rajput Wattus, Rajput Musalmans, Qureshis of Tahsil Dipalpur.-Have no custom of wills and legacies.
(1) Khatris, Aroras (Dahra), Jat Sikhs of Tahsil Pakpattan, Sayyads of Hujra and Mustafabad; Pat hans, Mogals, Mahtams, Saegal Khatl'is of Tahsil Dipalpul'. A proprietor can dispose of by written directions his movable or immovable, ancestral or acquired property.
(2) All other Hindu tribes,' all Musalman tribes of Tahsil Pakpattan and Arol'as of Tahsil Dipalpur.-Can give by written directions his acquired property but not ancestral. Aroras of Tahsil Dipalpur state that he can dispose of it even verbally.
(3) Sayyads of Dipalpur Town.-Acquired property can be given to a man of any tribe, but the ancestral property he can only give to his near relatives who are entitled to it.
(4) Jat Sikhs of Tahsil Dipalpul'.-Can give movable but not immovable property.
(5) Khatris of Tahsil Dipalpur except Saegal got. If he has no children he can give the acquired property to anyone he likes, but the ancestral property he can only give to heirs.
(6) Arains of Tahsil Dipalpur.-Cannot give
"(1) Khatris, Arora (Dahre) of Tahsil Pakpattan,' Mahtams of Tahsil Dipalpur . Wherever he has such power, he can give as much Property as he likes without the consest of his heirs.
(2) Aroras (Utradhi, Jat Sikhs, Kambojs, Pathans of Tahsil Pakptattan, Sayyads, Mogals, Pat hans, Khatris. Aroras of Tahsil Pakpattan.-He can give away as much of his acquired property as he likes, but not the ancestral property. No one's consent is necessary. The above mentioned tribes of Pakpattan Tahsil can give even the ancestral property if the reversioners agree.
(3) Mahtams and all Musalman tribes, except Pathans of Tahsil Pakpattan. Can give acquired property as he likes. He has no power to give away any portion of the ancestral property or interfere with the size of the legal shares of each heir even if the heirs agree to it.
(4) A rains, Jat Musalmans, Rajput Musalmans, Rajput Wattus, Qureshis, Kambojs.-Have no such custom."
170 P. R. 1888- Pathans of Dipalpur Tahsil. By custom a will by a proprietor of his acquired estate is valid.
Answers to Questions Nos. 107 to 110.
"Muhammadans of Multan, Shujabad and Lodhran, and rural Hindus of the Multan Tahsil, state that a man can alienate a portion only of ancestral property by will to one of the heirs without the consent of the others. All tribes of Mailsi and Kabirwala and Hindus of Lodhran are agreed that he cannot dispose by will of ancestral property, contrary to the established rules of inheritance.
The opinion of the Hindus of Shujabad is divided. Hindus of. Multan City except Pllihkarna Brahmans follow Hindu Law and Khuddakka and Saddozai Pathans and the family of Hakim Shah Bakhsh Shah Qureshi of Multan and Jablas, Saddiqi. Qureshis Lodhran and the family of Diwan Muhammad Baqir Shah of Shujabad Tahsil follow Muhammadan Law. The Kharals of Multan Tahsil and all. Muhammadan tribes of Shujabad, KabirwaIa, Lodhran and Mailsi, are agreed that a widow has absolute power if she has been invested with full ownership under the terms of the will. The remaining Muhammadans of the Multan Tahsil qualify the above answer by saying that she has absolute power, provided she belongs to the husband's tribe and has no male issue. Hindus of Shujabad, Mailsi and Kabirwala state that she has full power over the property, if so provided in the deed of will. Hindus of Multan and Lodhran say that a widow's interest is limited.
Both Hindus and Muhammadans of Kabirwala say that no man can dispose of his ancestral property by will contrary to the recognized rules of succession.
All other tribes are agreed that a man can make a written or verbal distribution of a portion of his patrimony. If it is verbal, it must have taken place in the presence of the panchayat But all tribes of Mailsi, Rajputs, Biloches, Arains, Khokhars and Mahtams of Multan would not recognize verbal dispositions. There is no difference.of opinion in regard to self-acquired property Which a man can dispose of in any way he likes.
The tribes, who recognize the existence of such power, are not definite as to the proportion of the ancestral property which can be so disposed of. A man can give a much larger share with the consent of his next heirs.
2 P. R. 1881- Kapuria Hindus. By custom relatives more remote than the great grandsons and collaterals (an contest alienations of the ancestral estate; but they cannot do so in respect of the acquired estate or of the estate derived from maternal line by succession.
7 P.R. 1886- Aroras of Multan City. The onus on the plaintiff to establish that a will of ancestral estate in favour of a daughter's son to the exclusion of a brother is invalid and that he bad failed to discharge it.
A. 1. R. 1930 Lah. 969- In Kabirwala Tahsil tbe custom is that a man cannot dispose of his ancestral property by win contrary to the
-129 I. C. 214 recognized rules of succession, and before any body can lay his claims to such property under will, this custom has to be rebutted. There is no custom of death-bed gifts also though a man, if in his senses at that time. Can give away a small portion of ancestral property in charity, but the gift should be reduced to writing.
*Answers to Questions Nos. 106 to 109.-
" Jats of Leiah- The general practice is that a person cannot dispose of by will in favour of one of his heirs his property without the consent of the other heirs, wheather" the property be ancestral or self-acquired. There had, however, been the under mentioned one instance wherein the whole property was alienated by will to the eldest son, depriving the younger sons without their consent. The Biloches of Leiah Tahsil, the Jats, Biloches, Sayyads and Kureshis of Muzaffargarh Tahsil, and Jats, Biloches, Pathans and Hindus of Alipur Tahsil.-A person cannot dispose of his property by will in favour of one of his heirs without the consent of other heirs.
The Pathans, Sayyads, Kureshis and Hindu." of Leiah Tahsil, Jats, Biloches, Pathans, Kureshis and Hindus of Kot Adu Tahsil and Pathans of Muzaffargarh Tahsil.-A mail cannot alienate his ancestral property by will to one of the heirs without the consent of the others. He may, however, do so in respect of self-acquired property." The Jats, Pathans and Hindus of Leiah Tahsil and the Hindus of MuzatTargarh Tahsil say that a widow has fun power over the property received by her, if so provided in the deed of Will. Jats, Sayyads, Kureshis of Lelah Tahsil, Pathans of Kot Adu. Muzaffargarh and Alipur Tahsils, and also Kureshis of Alpur Tahsil.- A proprietor can. make a will either verbal or written disposing of his acquired property, but not of his ancestral property. Among Jats of Leiah, there have, however, been instances wherein ancestral property was also disposed of by will. Hiloches and Hindus (Leiah Tahsil).-A man can dispose of his property by a will either verbal or written, but there is an instance among Hindus when such a will. was not acted upon by mutual agreement of the parties on the heirs raising objection to it.
Pathans (Leiah Tahsil).-Vide answer of Biloches of Leiah Tahsil, but some Pathans of this Tahsil say that the ancestral property cannot be disposed of by will, while some say that a person can dispose of his property of either kind by a will. Jats and Hiloches .(Kot Adu Tahsil).-Some persons of both these tribes say that among them a proprietor can dispose of his property, either self-acquired or ancestral by will, while some say that he can do so only incase of self-acquired property; some assert that none can dispose of his property either acquired or ancestral by means of a will. Hindus (Kot Adu, Muzaffargarh and Alipur Tahsils).-A proprietor who has sons, can dispose of his self-acquired property by a will which should be in writing. He cannot do so in respect of ancestral property. In case h~ has no sons, the ancestral property can also be disposed of by means of a written will. Ja!s ani Bilaches (Muzffargarh Tahsil) and Biloches of Alipur Tahsil.A proprietor cannot dispose of his property either self-acquired or ansestral by means of a will, oral or written, without the consent of his next heirs. One Allah Dad of J atoi, however, says that a proprietor can do so by a written will.
Answers to Questions Nos. 92 to 95..-
The Khwajas, Sayyads of Peshawar centre, Gigianis, Muhammad- zais Duranis and Khattaks all stated that a proprietor has power to dispose of his property by oral or written testament. The Kamalzai, Amazai and Yusufzai representatatives, except Khan Bahadur Muhammad Ibrahim Khan, Mukarrab Khan and Khushal Khan and the Utmanama and Razzar representatives, except Majid Ullah Khan of Beka, held tho same opinion; no clear instances of a contrary custom were brought forward by those who differed from the majority. The Bara Mohmands, Khalis and Daudzais were inclined to refer all questions of wills to be test of Shariat, but an instance of absolute freedom of testamentary disposition was quoted among the Mohmands of Kotla, while Khalils and Daudzais were unable to quote any instance of a will being upset or disregarded. The Halimzai and Tarakzai Mohmands restricted the power to make a will by two conditions, first that the will should not favour strangers, and second that it should not pass over heirs.
The Gigianis, Muhammadzais, Duranis, Kamalzais, Amazaiss Yusufzais, Khattaks, Urmurs, Uriya Khels, Besuds, Awans, and Khand, acknowledged no restrictions on the power of bequest. The Khwajas, Bara Mohmands, Khalils and Daudzais stated that bequests can be only made in favour of persons who are not heirs, and that no will can be made merely to affect the shares of heirs as among themselves, except with consent of the heirs concerned: these tribes also stated that a moribund person cannot dispose of more than one-third of his estate by bequest. The Sayyads of Nausheracircle stated that a proprietor has power to disinherit a Son of any other heir, and that he can also vary the natural shares of the different heirs by testament. The Kaka Khels, on the other hand, asserted that a proprietor was Incapable of entirely disinheriting his natural heirs, but that for good cause he might vary their respective shares. Both Naushera Sayyads and Kaka Khels stated, after great hesitation, that a man might not by will dispose of a large portion of his estate than is permitted by Shara.
Power of bequest is not in any case dependent on the consent of heirs other than the legatee. It is restricted only by the limitations noted in the foregoing paragraph. The Utmanama tribes and Razzars, Awans and Khands said they were unaware of any custom determining the degree of ownership which a widow legatee may possess over immoveable property. Khwajas, Bara Mohmands, Khalils, Daudzais, Gigianis, Muhammadzais of Charsadda centre and Duranis allowed that the ownership of the widow legatee was full and absolute. The Uriya Khels, Urmurs and Besuds only gave her an interest terminated by her remarriage or death. The Muhammadzais of Naushera centre and the Khattaks gave her the same interest in immovable property bequeathed to her as a legacy as in immoveable property inherited by her in a case of intestate succession."
34 P. R. 1884- Muhammadan Khalils. By custom a sonless proprietor is authorised to make a will of his entire property to his sister's sons and sister's husband to the exclusion or a great-grandson of his grand-father.
176 P. R. 1888- Awans. Bequeathing of self-acquired estate by an Awan proprietor to the defendant's mother (daughter or step-daughter of the proprietor).
44 P. R. 1897- Khalils of Peshawar Tahsil. A will in favour of his daughter by a sonless proprietor in the presence of collaterals (4th degree) is valid by custom.
24 P. R. 1898- Pathans (Khan of Zaida family). The onus of establishing the validity of a will by custom rests the party alleging it. Customary Law makes a distinction between the power of making alienation inter vivos and of wills which are to take effect after death.
80 P. R. 190l- Pathans. By custom the power of disposing of an estate by a proprietor inter vivos or by will as he pleases is allowed.
69 I-C. 853- Kamalzai Pathans. Subject to the following restrictions a Kamalzai pathan can make a will
(a) He cannot disinherit a minor son and
(b) He cannot disinherit an adult son except for disloyalty.
* Answers to Questions Nos. 37 and 38.-
"In Rawalpindi Tahsil, Suyyads, Gakhars, Gujjars, Khattars, Awsns, Rajputs and Hindus reply that a proprietor can will away all his self-, acquired, but only a portion of the ancestral property; a woman cannot make a will. The Gakhars limit the power of testamentary disposition of ancestral property to a third of the whole. In Gujar Khan Gakhars reply 'that an owner can will away his property within his tribe only. He can will away from the reversioners but only to a fellow. tribesman, such a disposition need not be limited to a portion only of the property, nor need the will be reduced to writing. Awans reply that a will, verbal or written, giving a share or the whole of the property is good by custom if it alieBates within the tribe, and a will to a stranger is not valid. Gujjars reply that a will within the tribe to anyone, however distantly related, is good, and the reversioners cannot object. Pakhral Rajputs say that a will of a share or the whole of the property within the caste is good if executed in favour of a collateral, but bad ifin favour of anyone not a collateral.
Narwe, Manhas and Rathial Rajputs and Qureshis reply that there is no custom of making wills, and that alienation by will would not be good by custom. Moghals reply that a will is good if within the tribe.
In Kahuta all tribes reply that there is no custom entitling a proprietor to make a testamentary disposition of his property. The Gakhars, when shown the example in the Pharwala family, quoted among the examples of last settlement. reply that the will was not supported by custom, but was respected through affection. Similarly rules affecting only small portions of a property would probably be carried into effect.
In Muree Dhunds deny any custom of testamentary disposition. Sattis Dhanials and Khotwals reply that an owner cannot will away the whole' of his property, but that a will disposing of a small portion only would be good by custom.
This is very doubtful point (Can a testamentary disposition of property be made only with the consent of the heirs, or contrary to their tribes ?), and I should hesitate to say that any clearly defined custom had been made out in the case of any tribe.
In Rawalpindi Tahsil the reply by all Muhammadan tribes is that as the power of will extends only to self-acquired property a share of the ancestral property, the consent of the heirs is not necessary. Hindus reply that self-acquired property can be willed away without the consent of the heirs, but not even a portion of ancestral property. No instances are given.
In Gujar Khan Gakhars, Awans, Gujjars, Pakhral and Bhatti Rajputs and Moghals reply that a proprietor can make a testamentary disposition of his property without the consent of the heirs. Brahmans reply that a will to a collateral does not require the consent of the heirs. Any other will does require such consent.
In Muree Dhanials Sattis and Khetwals say that the consent of the heirs is necessary before" even a share of the property can be willed away. Nowhere have any instances been quoted, nor have I been able to discover any. In all probability the question has never arisen and there is in reality no custom."
136 P. R. 1888- Kahars of Fatehjang Tahsil. Bequeathing his entire share in a joint holding by a sonless proprietor to his sister's son to the exclusion of nephews held invalid.
43 P. R. 1891- Gujjars. A father had no power to disinherit a son by conveying the whole of the estate gift to another son.
97 P. R. 1892- Guiiars of Dhok Nur, Rawalpindi Tahsil. A bequest by a sonless Gujjar to a stranger, an A wan, was not valid by custom. The bequest was of ancestral estate in the presence of a son the donor's brother's son.
93 P. R. 1905- Aroras of Mauza Kuri. A sonless proprietor ;$ competent to make an absolute bequest of his entire acquired estate in favour of his wife in the presence of his uncle. Purther, his wife was empowered to make an alienation in favour of her daughter and the uncle could not contest it.
62 P. R. 1906- Gujjars of Gujar Khan Tahsil. A sonless proprietor is competent to bequest the entire of his ancestral estate to his daughter and daughter's son to the exclusion of his near collaterals.
15 P. R. 1907- Awans of Rawalpindi Tahsil. A bequest of ancestral estate by a sonless proprietor in favour of his daughter is valid to the exclusion of his own brother.
4. P. R. 1909- Chima Jats. A bequest by a childless proprietor of his ancestral estate in favour of his pistant collaterals in the presence of near agnates is valid.
43 P. R. 1916- Gujjars of Gujar Khan Tahsil. It is not established that by custom a childless proprietor can alienate' the entire of his estate to his mother and his mother's brother to the exclusion of near collaterals.
A. I. R. 1923 Lah. 559- Sayyads of Gujar Khan Tahsil, A testator;
D 77 I. C. 538 bestowed an absolute estate upon his brother and daughter and a portion to his widows. To propitiate his brother for his bestowal of absolute estate upon which the widow bestowed upon him a greater portion of his estate upon which the brother consented to the will, held, that the estate bestowed upon the widow was absolute estate,
A. I. R. 1934 Lab. 738- Minhas Rajputs of Rawalpindi Tahsil. A sonless proprietor cannot dispose of his ances- tral property by a will,
A. I. R. 1937 Lah. 525- Awans. There is an unrestricted power, to make a will, even in respect of ancestral property, in favour of the persons of the same tribe and a will of ancestral property made by an A wan in favour of his daughters is valid.
Answer to Ctuestion No. 93A.- .
"Jats, Ahirs, Hindu Rajputs of Jhajjar, Brahmans and Pathans of Guriani zail, have no custom of making wills and say that if any one made one it would be inoperative. Pathans of Gohana and Hindu and Muhammadan Rajputs of Gohana and Rohtak say that a will must be in writing and is complied with, but must not transgress the recognized rule of inheritance of ancestral property. Pathans of Jhajjar outside Guriani zail and Sheikhs of Jhajjar say that a man can make a will orally or in writing dealing with one-third of his property, movable or immovable, ancestral or acquired, but not with more. No instances are produced by Pathans or Rajputs of a will except one by Mussammat Dhana, Rajputni of Gohana, in favour of Allahabad, son of Faujdar Khan. and this was never operated on.
13 P. R. 1902- Awans, Khushab Tahsil. A father has no power to distribute his ancestral estate in unequal shares and disinherit a lawful son. Bet the rule is other- wise regarding self-acquired estate."
72 P. R. 1913- Khokhars of Mauza Chandua. A sonless proprietor cannot make a will of his ancestral estate to his daughters in the presence of his collaterals (5th degree).
A. I. R. 1936 Lah. 210- Amongthe miscellaneous Muialman tribes including Sayyads of the Shahpur District, there is no general power of devising property by will in favour of daughter's sons.
Answer to Question No. 81.-
A will can be made whether oral or written. The whole of the self- acquired property and not more than one-twentieth of the asectral property can be disposed of without any restriction in favour of an alien. More than this cannot be willed away without the consent of the heirs. There is a strong body of opinion, however, that no ancestral property can be disposed of by will so long as any collateral exists.
The tribes of Pasrur Tahsil (except Kakkazais) say that no will can , be made in favour of an alien (ghair qaum}
10 P. R. 1892- Kakkazais of Naushera, pasrur Tahsil. There is a distinction between The power of gift and the power of bequest. There exists a very exceptional power of transfer by will by a widow in favour of her daughter's son. Even if the widow's alienation is assailed, the daughters are entitled to succeed under their father's will.