Punjab-Haryana High Court
Jameel Ahmed Etc vs Zarib Hassan Etc on 9 February, 2026
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by Mohammad Baksh, the common ancestor of the par es. Upon his death,
the land devolved upon his son Roshan, therea er upon his son Hayatoo, and
finally upon Smt. Jano, widow of Hayatoo, who died issueless.
4. The plain ff pleaded that he, along with defendant Nos.4 and 5,
being collaterals of the deceased husband, were the legal heirs of Smt. Jano.
It was further pleaded that the par es belonged to the Mohammedan Gujjar
community, were agriculturists by profession, and were governed by
customary law in ma,ers of succession, aliena on, marriage and adop on.
According to the plain ff, as per the prevailing custom, a widow or female
inheri ng property from her husband acquires only a life estate, has no right
of aliena on, and upon her death, the property reverts to the collaterals of
the last male holder. On this premise, the plain ff challenged the registered
gi deed dated 28.07.1977 executed by Smt. Jano in favour of defendants
Nos.1 to 3 (appellants herein) as illegal, void and not binding, and sought
possession a er se8ng aside the said aliena on.
5. Defence of Contes ng Defendants : Defendant Nos.1 to 3
contested the suit by denying the alleged custom in its pleaded form. While
admi8ng that the par es were Mohammedans by religion and Gujjars by
caste, it was specifically denied that there existed any custom restric ng a
widow to a life estate. It was pleaded that the suit property was the self-
acquired property of Hayatoo, and that Smt. Jano became the absolute
owner thereof. The defendants further pleaded that Smt. Jano had full
authority to gi the property and that the gi deed was executed in
recogni on of the services rendered by them to her during her life me. The
pedigree pleaded by the plain ff was also disputed, and the defendants
asserted that the plain ff had no subsis ng right, tle or interest in the suit
land.
6. Defendant Nos.4 and 5 supported the case of plain ff.
7. Issues and Trial Court Findings : On the basis of pleadings, the
Trial Court framed necessary issues regarding (i) Nature of the suit property,
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(ii) Applicability and proof of custom, (iii) Validity of the gi deed, and (iv)
Limita on.
8. During evidence, though plain ff proved general custom as
pleaded, but the defendants cited and proved several instances from the
same Tehsil, where Muslim widows had alienated inherited property as
absolute owners. Upon apprecia on of en re evidence led by the par es, the
Trial Court recorded the material findings that the suit property was treated
as non-ancestral in the hands of Hayatoo, a finding which a,ained finality;
that Smt. Jano inherited the property upon the death of her husband; that
though the par es were agriculturists and generally governed by custom, the
specific custom pleaded by the plain ff was not proved; and that no cogent
evidence was produced to establish that a Mohammedan widow of Gujjar
caste held only a life estate. Consequently, Smt. Jano was held competent to
execute the gi deed dated 28.07.1977. On these findings, the Trial Court
dismissed the suit.
9. Findings of the First Appellate Court : The First Appellate Court
reversed the judgment of trial court primarily on the reasoning that:
x Punjab customary law governs all agricultural tribes irrespec ve of
religion;
x The plain ff had pleaded and proved the existence of custom through
oral evidence;
x A widow under customary law holds only a limited estate, even in non-
ancestral property;
x The gi deed executed by Smt. Jano was therefore invalid.
The Appellate Court further held that proof of custom was not confined to
documentary evidence like Wajib-ul-Arz or Riwaj-i-Am and could be
established through oral tes mony alone.
10. Conten ons in Second Appeal : Assailing the above reversal, it is
contended by Ld. Counsel for the appellants that the First Appellate Court
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commi,ed a grave error of law by presuming a restric ve custom without
strict proof. It was argued that Personal law governs Mohammedans unless a
custom to the contrary is proved; that the concept of a life estate is unknown
to Mohammedan law; that the plain ff failed to prove a custom specific to
the locality and community; and that contrary instances proved by the
defendants completely destroyed the plain ff's case.
11. Per contra, learned counsel for the respondent supported the
appellate judgment and contended that customary law of Punjab overrides personal law for agricultural tribes.
12. Substan al Ques on : The core issue that arises for determina on is whether the First Appellate Court was jus fied in presuming a restric ve custom limi ng the estate of a Mohammedan widow without strict proof, thereby invalida ng a registered gi deed executed by her.
13. Analysis of Law and Evidence : There is no dispute that agriculturist communi es in Punjab have historically been influenced by customary law. However, it is equally well se,led that custom is an excep on to personal law and must be strictly proved. Under Sec on 5 of the Punjab Laws Act, 1872, succession and aliena on among Mohammedans are governed by Mohammedan personal law, unless a valid and binding custom to the contrary is established.
14. Mohammedan law does not recognise the concept of a limited or life estate. As stated by Mulla (Principles of Mohammedan Law, paras 41, 45 and 52) and Tyabji (Muslim Law, paras 554 and 560), under Mohammedan law an heir, including a widow, takes an absolute interest in the inherited property, the doctrine of limited or life estate being unknown to Muslim jurisprudence.
15. Thus, an heir, including a widow, succeeds to the property as an absolute owner, fully competent to alienate it. Therefore, the burden squarely lay upon the plain ff to prove that among Mohammedan Gujjars of Page 4 of 7 4 of 7 ::: Downloaded on - 11-02-2026 03:39:34 ::: RSA No.691 of 1999 2026:PHHC: 019137 Tehsil Jagadhri, even non-ancestral property inherited by a widow was held only for life.
16. Though, pre-Independence Lahore High Court decisions such as Ahmad Din ad others v. Mst. Fa ma Bibi and others, 1928 AIR (Lahore) 290, and Fazal Karim and others v. Allah Rakha and others [1939-40 Ind. Rul. 62], undoubtedly recognise restric ve customs governing female inheritance. However, those cases were decided in contexts where the existence of such custom was either admi,ed or stood established through consistent local recogni on, o en supported by Riwaj-i-Am or Wajib-ul-Arz entries.
17. Moreover, the Lahore High Court decisions relied upon by the First Appellate Court were rendered prior to authorita ve pronouncements of the Hon'ble Supreme Court in Ujagar Singh v. Jeo 1959 AIR SC 1041, Thakur Gokal Chand v. Parvin Kumari (AIR 1952 SC 231), Mara and others v. Mst. Nikko @ Punjab Kaur and another (1964 AIR SC 1821) and Sant Ram and others v. Labh Singh and others (AIR 1965 SC 314), which have clarified that custom is a ques on of fact requiring strict proof, that no dis nc on exists between general and special custom for the purposes of proof, and that judicial no ce cannot be taken where conflic ng instances or evidence exist.
18. The earlier Lahore view proceeded on presump ve acceptance of customary restric ons and therefore, cannot be mechanically applied without first examining whether the alleged custom has been proved in the locality and community concerned.
19. In the present case, the very existence of the pleaded custom was seriously disputed and stood contradicted by mul ple local instances (Ex.D2 to Ex.D6) produced by the defendants.
20. The plain ff also relied upon decisions of this Court such as Sher Singh and others v. Des Raj and others [1977 PLJ 73] and Bachna v. Sadhu (deceased) by his LRs [1993 (2) RRR 600]. These decisions recognise that custom may be proved by instances. However, significantly, Bachna's case Page 5 of 7 5 of 7 ::: Downloaded on - 11-02-2026 03:39:34 ::: RSA No.691 of 1999 2026:PHHC: 019137 dealt with ancestral property, where customary restric ons tradi onally operate with greater force. In the present case, the suit property has been conclusively held to be non-ancestral, and therefore, these authori es do not advance the plain ff's case.
21. Reliance was further placed upon Abdul Rehman v. Jumma Khan [2002 (3) LJR 342], where a widow of the Meo Mohammedan community in District Gurgaon was held to possess only a life interest. That decision, however, was founded upon a proved Rewaj-i-Am of Gurgaon district. It is se,led law that custom varies from district to district and even from village to village, as held by Supreme Court in Mara vs Nikko (supra). A custom prevailing among Meos of Gurgaon cannot be imported into Tehsil Jagadhri in the absence of proof of a similar custom.
22. On the other hand, the legal posi on stands authorita vely se,led by the Hon'ble Supreme Court in Ujagar Singh v. Jeo (supra), wherein it has been categorically held that all customs, whether general or special, must be strictly proved unless they have a,ained judicial no ce through long and consistent recogni on. It was further held that where conflic ng instances exist, courts cannot take judicial no ce of an alleged custom and, in such circumstances, the ma,er must be decided according to personal law.
23. As no ced above, the principle that custom changes from district to district and proof in one area cannot be extended to another has also been reaffirmed by the Hon'ble Supreme Court in Mara v. Mst. Nikko @ Punjab Kaur (supra).
24. Applying these binding principles, the Trial Court correctly took note of several documented contrary instances from Tehsil Jagadhri, where Mohammedan widows inherited and alienated property absolutely. Such instances are sufficient in law to demolish the alleged custom. The First Appellate Court failed to deal with these instances altogether, which vi ates its findings.
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25. Once it is held that the alleged custom has not been proved, the inevitable consequence is that Mohammedan personal law applies. Smt. Jano, therefore, inherited the suit property as an absolute owner and was fully competent to execute the registered gi deed dated 28.07.1977. The plain ff, being merely a collateral of the deceased husband of Jano, had no vested or reversionary right capable of invalida ng such aliena on.
26. Conclusion : The Trial Court correctly appreciated the pleadings, evidence and se,led legal posi on. The First Appellate Court reversed the judgment on presump ons unsupported by strict proof, misapplied customary law, ignored binding Supreme Court precedent, and failed to consider decisive contrary evidence. Such reversal suffers from substan al errors of law and warrants interference under Sec on 100 CPC.
27. Consequently, the present Regular Second Appeal is allowed. The judgment and decree dated 22.02.1999 passed by the learned Addi onal District Judge, Jagadhri, are set aside; and the judgment and decree dated 29.08.1996 passed by the Trial Court, are restored. The suit stands dismissed. There shall be no order as to costs.
February 09, 2026 (DEEPAK GUPTA)
Sarita JUDGE
Whether speaking/reasoned? Yes/No
Whether reportable? Yes/No
Uploaded on: February 09, 2026
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