| Citation(s) |
|---|
| 1955 SLG 123 1955 SLD 123 1955 PLD 593 |
Lahore High Court
First Appeal No. 92 of 1951 decided on 17th May, 1955 from the decree of the Court of Azam Ali, Senior Civil Judge, Lyallpur, dated the 18th August 1951
M R. KAYANI, A. C.J. AND AKHLAQUE HUSAIN, J.
Muhammad Nazir and Fazal Elahi, for Appellants. Mian Muhammad Shafi, for
Respondents
First Appeal No. 92 of 1951 decided on 17th May, 1955 from the decree of the Court of Azam Ali, Senior Civil Judge, Lyallpur, dated the 18th August 1951
M R. KAYANI, A. C.J. AND AKHLAQUE HUSAIN, J.
Muhammad Nazir and Fazal Elahi, for Appellants. Mian Muhammad Shafi, for
Respondents
Shahzada Brigadier SHER MUHAMMAD JAN and another
VS
Mst. Shahzadi ASAFIA SULTAN and another
Law:
Section:
(a) Custom or Muhammadan Law---Sadozai Afghans settled in Lahore District- Governed by Muhammadan Law in matters of succession. The parties were Sadozai Afghans settled in Lahore District. The plaintiffs-daughters-claimed their share according to Muhammadan Law in the. estate left by their father, consisting of land and a Bank balance. Plaintiffs also claimed their share in the profits of land received by defendant No. 1 since the death of their father. The defendants-a son of the deceased and the latters' widow-pleaded custom in bar of the plaintiffs' claim. Held (on evidence) that the defendants had entirely failed to prove any rule of custom in derogation of the plaintiffs right under Muslim Law to a share in the inheritance of their deceased father. The parties were a royal Muslim family of Afghanistan that ever since its migration to this country had to a very large extent kept clear of the influence of local culture and had never identified itself with the occupation of agriculture. The burden of proof of custom was therefore heavy on defendants. The facts proved by the defendants furnished .too slender a basis for a finding of the alleged custom. Instances adduced by the defendants did not disclose that certainty which is a sine qua non of a valid custom. The instances relied on by the defendants at best disclosed a practice on the part of some females of foregoing their shares in favour of their brothers, with or without consideration ; or on the part of males of illegally depriving the females of their due share in the inheritance by taking undue advantage of the peculiar social position of the latter. Rutcheputty Dutt Iha Bho Launauth Iha and others v. Rajunder Narain Rao and Coower Mohainder Narain Rae 2 M I A 133 ; Chaudika Bakhsh v. Muna Kunwar I L R 24 All. 273 (P C) ; Balwant Rao v. Baji Rao 47 1 A 213 and Mirabivi v. Vellavanna I L R 8 Mad. 464 ref. (b) Limitation-Suit by a Muhammadan heir against a co-heir for a share in the movable part of the estate of deceased Muhammadan-Governed by Art. 120, Limitation Act (IX of 908)-Arts. 62, 109, 123 inapplicable. A suit by a Muslim heir against a co-heir for a share in the movable part .of the…
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