Judgement Appeal from a decree of the Chief Court (April 18, 1906) reversing a decree of the District Judge of Jullundur (January 18? 1902). In 1851 Sarfraz Khan executed a deed of gift whereby he conveyed the whole of his own property inherited from his father Alamgir, together, with the property received from his wife, to his daughter Zainab (who was married to his sisters son, Baghe Khan) in lieu of her mothers dower; and Zainab took possession as absolute owner. On the death of Sarfraz in 1853, Siraj-ud-Din, father of the plaintiffs, sued for possession on the ground that as Sarfraz had died sonless the property passed to his collaterals. That suit failed. Thereafter Zainab and her husband Baghe Khan adopted the defendant, then two years old. On May 6, 1887, by registered deed of gift they transferred to him the whole of the property in suit along with other property. He was placed in possession, and after opposition by the plaintiffs mutation was in 1888 effected in his favour, no further steps being taken by the 34 Law. Rep. 39 Ind. App. 19 ( 1911- 1912) Muhammad Umar Khan` V. Muhammad Niaz-Ud-Din Khan 135 plaintiffs, who in 1895 and 1896 effected private partitions with the defendant of lands jointly held by them, and themselves applied to record these partitions with the necessary mutation of names. Zainab died on May 4, 1899; and in May, 1900, the plaintiffs sued, claiming possession of the property on these grounds that the property being ancestral Zainab had only a life interest and that on her death it devolved on the plaintiffs, the reversionary heirs; that the defendant had unlawfully taken possession of the property on Zainabs death and had his name wrongly entered in the official papers as her adopted son; that Zainab did not effect any settlement in favour of the defendant, nor did she ever adopt him, nor was she competent either in law or by custom to transfer the property in suit or to make an adoption, and that such transfer was mill and void as against plaintiffs, the reversionary heirs. The defendant contended that the suit was barred as not being within six years after the adoption became known to the plaintiffs; that the property in suit was not ancestral; that no law or custom existed against the power of alienation of Zainab or her predecessors in title; that the plaintiffs were under Ali the circumstances estopped from now disputing the defendants rights; that the adoption of the defendant was not unlawful, nor was Zainabs action in respect thereto ultra vires; that in any case plaintiffs had no right to the property which originally belonged to Jehangir nor to the property consisting of houses, &c. and that finally defendant had expended over Rs.5000 on improvements in the property, and that he was entitled to recover the same. The District Judge found that the gift to Zainab was for her life only, whether it came to her by way of payment of a dower or not; that the property not being self-acquired was ancestral in her hands; and that, having no customary or other power of alienation, her gift to the defendant was void. He held that art. 118 of the Limitation Act was inapplicable, as the adoption was " inherently invalid and ipso facto void." He accordingly decreed possession as claimed. The Chief Court found that by their silence after the mutation proceedings of 1888 and their actions in regard to the partitions in 1895 and 1896 the plaintiffs had acquiesced in the defendants possession and were estopped from denying the defendants title ; that the factum of the adoption by Zainab was proved and that it became known to the plaintiffs at latest in 1888 ; that such adoption was not " inherently invalid " and that the suit was barred by art. 118. 118. They further found that the evidence established that the Sheikh Ansaris to whom the parties belonged were not agriculturists in the proper sense of the term and that there was no presumption that they had adopted agricultural customs; that evidently females and especially daughters were among them a favoured class ; and that as it was not specifically proved by the plaintiffs that the tribe, in matters connected with the status of females, had actually adopted agricultural custom or some similar restrictive custom, Mahomedan law must be presumed to apply; that in the parties tribe gifts to females in lieu of dower, and even ordinary gifts by males to females, make the donees absolute owners as in Mahomedan law; and that the suit was, apart from art. 118, barred in other ways. De Gruyther, K.C., and Abdul Majid for the appellants, contended that the suit, which was to recover possession, was not barred by limitation. They referred to arts. 91 and 141 of the Limitation Act and contended that art-118 did not apply, as the respondent had failed to prove the appellants knowledge within the statutory period that any adoption had taken place. Jagadamba Chowdhrani v. Dakhina Mohun Roy Chowdhri (( 1886) L. R. 13 Ind. Ap. 84.) decided that art. 129 of the earlier Act covered Ali suits which raised an issue as to the validity of an adoption, but here the adoption, as rightly found by the District Judge, was a complete nullity and could be disregarded. It was unnecessary to set it aside. Reference was also made to Tirbhurwan v. Rameshar Bakhsh Singh (L. R. 33 Ind. Ap. 156, 163.) ; Bijoy Gopal Mukerji v. Krishna Maheshi Debi (( 1907) L. R. 34 Ind. Ap. 87.); and to the Specific Belief Act, s. 42. The Chief Court was also in error in deciding that the plaintiffs were barred by acquiescence and estoppel, for that plea was not raised, and no issue was 34 Law. Rep. 39 Ind. App. 19 ( 1911- 1912) Muhammad Umar Khan` V. Muhammad Niaz-Ud-Din Khan 136 raised nor was any evidence directed to that point. The factum of the adoption, moreover, was not proved. The parties are Sheikh Ansaris and are governed by the customary law of the Punjab and not by Mahomedan law. See Rattigans Civil Law for the Punjab (7fch ed., 1909), pp. 14,19, 26, 27, 39 and 40. The factum of the adoption, moreover, was not proved. The parties are Sheikh Ansaris and are governed by the customary law of the Punjab and not by Mahomedan law. See Rattigans Civil Law for the Punjab (7fch ed., 1909), pp. 14,19, 26, 27, 39 and 40. The Punjab District Gazetteer, vol. 14A, p. 96, sets out the history of the family. So far as Mahomedan law applies the appellants had no claim. If that law does not apply, the universal custom of the Punjab applies except so far as a special custom, family or tribal, applies to the parties. The special custom relied upon provides that ancestral property is inalienable except in case of necessity, and especially to women who take on an alienation in their favour the estate known to the Hindu law as a womans estate, which lasts only for life. On the death of the daughter in this case the ancestral property given to her by her father goes back again to the next heirs, and if she had alienated it the alienation enured only for her life. The adoption if proved in fact carried with it no rights of inheritance and did not in any way affect the claim of the male heirs of Sarfraz Khan to succeed on the death of his daughter. Reference was made to several cases which it was contended established the existence and nature of the custom relied upon Hijjoo v. Meer Mahomed (Punjab Record, vol. 2, 1867,case 54, p. 113,); Slier Muhammad v. Jofir Khan (Punjab Record, vol. 18, 1883, p. 2,case 2.); Lekna v. Thakri (Punjab Record, vol. 30, 1895, p. 124, case 32.) ; Changhatta v. Mokhan Din (Punjab Record, vol. 28, p. 321, case 75 of 1893.) ; Ghulam Bhikh v. Massania (Ibid., p. 109, 22 of 1893.); Mir an Baksh v. Ala Ditto, (Punjab Record, vol. 29, p. 482, 126 of 1894.) ; Muhammad v. Umar Bibi (Punjab Record, vol. 28, p. 501, 129 of 1893) ; Muhammad Hussain v. Sultan Ali (Punjab Record 1903, p. 207, case 54.) ; Hay at Muhammad v. Ala Baksh (Punjab Record, 1903, vol. 38, case 19.) ; Daswandi v. Mahant Krishen Deo (Punjab Record, 1911, vol. 46, p. 121, case 34.) ; Muhammad Niazzuddin Khan v. Muhammad Umar Khan. (Punjab Record, 1907, vol. 42, p. 1.) Other cases unreported but printed in the record were referred to. 38, case 19.) ; Daswandi v. Mahant Krishen Deo (Punjab Record, 1911, vol. 46, p. 121, case 34.) ; Muhammad Niazzuddin Khan v. Muhammad Umar Khan. (Punjab Record, 1907, vol. 42, p. 1.) Other cases unreported but printed in the record were referred to. Sir R. Finlay, K.C., and O’Gorman, for the respondent, contended that the evidence proved an absolute conveyance of the property in suit by Sarfraz Khan to Zainab in lieu of her mothers dower. She was therefore absolute owner, and her gift to the defendant was valid. As regards custom no instance had been proved of a daughter not being allowed to transfer property given to her as in this cse was shewn with regard to Zainab. By custom if not by law Zainab had power to adopt. The Sheikh Ansaris are not agriculturists and have not adopted agricultural custom which might exclude the power of adoption. But the defendants case rested not so much on the adoption as on the deed of gift in his favour. That deed was conclusively established by the evidence and operated to give the defendant an absolute title see Punjab Alienation of Land Act, 1900, s. 3, as amended by Act I. of 1907 of the Punjab Legislature. The case should be decided by Mahomedan law, for the appellants had failed to establish by the evidence that any customary law was applicable. The evidence also established a long course of possession adverse to the appellants from the death in 1846 of Maryam, the donor of the property to Sarfraz, which barred the suit. It also established an acquiescence by acts as well a3 silence on the part of the appellants in the defendants title. Reference was made to Baden-Powells Land Systems of British India, ed. 1892, vol. 2, bk. 3, pt. 4, c. 1, s. 10, p. 566. De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal from the decree of the Chief Court of the Punjab, dated April 18, 34 Law. Rep. 39 Ind. App. 19 ( 1911- 1912) Muhammad Umar Khan` V. Muhammad Niaz-Ud-Din Khan 137 1906, reversing the decree of the District Judge of Jullundur, dated January 13, 1902, which had decreed the plaintiffs claim. This is an appeal from the decree of the Chief Court of the Punjab, dated April 18, 34 Law. Rep. 39 Ind. App. 19 ( 1911- 1912) Muhammad Umar Khan` V. Muhammad Niaz-Ud-Din Khan 137 1906, reversing the decree of the District Judge of Jullundur, dated January 13, 1902, which had decreed the plaintiffs claim. The plaintiffs brought this suit on May 11, 1900, to obtain possession of certain immovable property, lands and houses, in Basti Danishmandan, in the Punjab, which they claimed as their ancestral property. In their plaint they alleged that the property in question had been held for her life by Mussammat Zainab, by virtue of a gift made to her by her father Sarfraz Khan, an uncle of the plaintiffs, and that on her death on May 4, 1899, the right of inheritance in the property devolved upon them as reversionary heirs. They also alleged in their plaint that Mussammat Zainab had not, in fact, transferred the property to the defendant, and that if she had transferred the property to him such transfer was, by law, according to the custom of the tribe to which the parties belong, and the Riwaj-i-Am, null and void as against the plaintiffs as reversionary heirs. The defendant by his pleadings alleged title as owner in himself by gift from Mussammat Zainab, alleged that Mussammat Zainab was entitled to the full estate in the property in question, and not merely to an estate for her life, denied that the plaintiffs had any right to the estate, denied that the property was ancestral, denied that any law or tribal custom existed which made the gift to the defendant unlawful or void, and amongst other things alleged that he had been adopted as her son by Mussammat Zainab. The parties to the suit are Sheikh Ansaris of a Pathan tribe of Punjab Mahomedans. The defendant is in possession of the property in dispute under a gift from Mussammat Zainab made to him in her lifetime. The plaintiffs case, the only case on which they could have succeeded, is that, according to a custom which they alleged to be existing and binding in their family, no woman could take by gift more than a mere interest for her life without any power of alienation in any ancestral property of the family, and consequently that the gift by Mussammat Zainab to the defendant was void. Many issues, some of which, in the view which their Lordships take of this case, were immaterial or irrelevant, were raised by the parties, and much evidence was recorded. The District Judge of Jullundur gave the plaintiffs a decree for possession. From that decree the defendant appealed to the Chief Court of the Punjab. The judges in the Chief Court mainly directed their attention to a question of acquiescence, which their Lordships consider did not arise on the facts, and to the alleged adoption of the defendant by Mussammat Zainab, which was an immaterial issue, and having apparently, although somewhat uncertainly, found that Mussammat Zainab had adopted the defendant, they applied art. 118 of the Second Schedule of the Indian Limitation Act, 1877, to the case, allowed the appeal, and dismissed the suit with costs. Although their Lordships consider that the question of an adoption was an immaterial issue, they think it advisable to say that the omission to bring within the period prescribed by art. 118 of the Second Schedule of the Indian Limitation Act, 1877, a suit to obtain a declaration that an alleged adoption was invalid, or never, in fact, took J3lacet is no bar to a suit like this for possession of property. Their Lordships need only refer to Thakur Tirbhurwan Bahadur Singh v. Raja Rameshar Bakhsh Singh. (L. R. 33 Ind. Ap. 100.) Under the general Mahomedan law an adoption cannot be made ; an adoption, if made in fact by a Mahomedan, could carry with it no right of inheritance. It may be further observed that, even if an adoption by a Mahomedan was permissible by any valid custom in the Punjab, the Chief Court found that it had not been proved that the parties to the suit belonged to a family to which the Punjab agricultural or other similar restrictive customs must be presumed to apply. In order to understand the material evidence in this case it is necessary to refer 34 Law. Rep. 39 Ind. App. 19 ( 1911- 1912) Muhammad Umar Khan` V. Muhammad Niaz-Ud-Din Khan 138 to the pedigree of the plaintiffs. Muhammad Ali Sher, the common ancestor of the plaintiffs and Mussammat Zainab, had three sons, one of whom, Jehangir Khan, had by his wife, Mussammat Fatima, a daughter, Mussammat Maryam, who married her cousin, Sarfraz Khan. Rep. 39 Ind. App. 19 ( 1911- 1912) Muhammad Umar Khan` V. Muhammad Niaz-Ud-Din Khan 138 to the pedigree of the plaintiffs. Muhammad Ali Sher, the common ancestor of the plaintiffs and Mussammat Zainab, had three sons, one of whom, Jehangir Khan, had by his wife, Mussammat Fatima, a daughter, Mussammat Maryam, who married her cousin, Sarfraz Khan. Alamgir, another son of Muhammad Ali Sher, had three sons, one of whom was Sarfraz Khan, who married his cousin Mussammat Maryam; another son of Alamgir was Shahbaz Khan; and the other son of Alamgir was Siraj-ud-Din, otherwise called Sheraz-ud-Din Khan, who was the father of the plaintiffs. Another son of Muhammad Ali Sher was Sarwar Khan, who had two sons, one of whom was Muhammad Said; the other son of Sarwar Khan was Muhammad Bahadur Khan. Sarfraz Khan had by his wife, Mussammat Maryam, a daughter Mussammat Zainab, who married Ghulam Mohy-ud-Din, alias Baghe Khan. The defendant is a son of Jamal-ud-Din, who was a son of a sister of Sarfraz Khan. Jamal-ud-Din Khan was a brother of Mohy-ud-Din, alias Baghe Khan. On the 3rd Ramzan 1248 A.H., Jehangir Khan, by his deed of gift, gave to his daughter Mussammat Maryam, wife of Sarfraz Khan, absolutely Ali his one-third share of the pro perty of his ancestors which had fallen to his lot according to law, in lieu of the dower of her mother Mussammat Fatima. Mussammat Maryam obtained possession of the property which had been given to her by her father Jehangir Khan, and remained in possession for fifteen years, when she gave that property to her husband Sarfraz Khan, who took possession on her death. Mussammat Maryam died in 1846 or 1847. After her death Sarfraz Khans right to the possession of the property which had come to him from Mussammat Maryam was challenged by Muhammad Said Khan and Muhammad Bahadur Khan, sons of Sarwar Khan, and Sheraz-ud-Din Khan, the father of the plaintiffs, who contested the alienation to Sarfraz Khan, alleging that by custom daughters had no right of succession. Sarfraz Khan brought a suit for maintenance of possession in the Court of the Deputy Collector against Muhammad Bahadur Khan, Muhammad Said Khan, and Sheraz-ud-Din. Sarfraz Khan brought a suit for maintenance of possession in the Court of the Deputy Collector against Muhammad Bahadur Khan, Muhammad Said Khan, and Sheraz-ud-Din. In that case Sheraz-ud-Din, Shahbaz Khan, and Muhammad Bahadur Khan proved that Mussammat Maryam had been in possession of the property, and had, through the agency of her husband Sarfraz Khan and his brother Sheraz-ud-Din, received the rents of the land, together with zamindari dues, and had paid the Government revenue. In that case Muhammad Said Khan testified to the facts of the gift and delivery of possession to Mussammat Maryam, and Sheraz-ud-Din admitted that a deed of gift had been executed, and that possession had been delivered to Mussammat Maryam. Several other witnesses, including the marginal witnesses to the deed of gift, proved that the property had remained in the possession of Mussammat Maryam for her lifetime, and had, after her death, passed to Sarfraz Khan, her husband. On May 16, 1849, the Deputy Collector ordered that a decree for Sarfraz Khans claim be passed to the effect that Sarfraz Khan should retain possession of the land then in suit. From that order of the Deputy Collector Muhammad Bahadur Khan appealed to the Settlement Officer, who, on August 3, 1849, dismissed the appeal, holding that the inquiry before the Deputy Collector had established Sarfraz Khans possession, occupation of, and title to the land, and that if Muhammad Bahadur Khan had any claim to the land he was at liberty to lodge a suit in a Civil Court. No suit was brought in a Civil Court to contest the right or title of Sarfraz Khan to the land which had come to him from Mussammat Maryam. The facts above referred to afford, in their Lordships opinion, strong evidence that there was no custom applying to this family which limited the estate in ancestral lands which came to a daughter by gift to a mere life estate, and which prevented a daughter alienating such lands by gift in her lifetime. The facts above referred to afford, in their Lordships opinion, strong evidence that there was no custom applying to this family which limited the estate in ancestral lands which came to a daughter by gift to a mere life estate, and which prevented a daughter alienating such lands by gift in her lifetime. On December 15, 1851, Sarfraz Khan, who was then in possession of the lands which had come to him by gift from his wife Mussammat Maryam, and was also in possession of his own third share of three shares in the ancestral property which had come to him by lot according to law, made a deed of gift by which he gave to his daughter Mussammat Zainab absolutely his entire property of every kind, and gave her possession. To that deed Shahbaz Khan, son of Alamgir, was one of the witnesses. Sarfraz Khan died on May 10, 1852, and on that day the Patwari of Basti 34 Law. Rep. 39 Ind. App. 19 ( 1911- 1912) Muhammad Umar Khan` V. Muhammad Niaz-Ud-Din Khan 139 Danishmandan, on inquiry of Mussammat Zainab, was directed by her to enter the entire share of Sarfraz Khan, which , had come to her, in the official papers in the name of her husband Ghulam Mohy-ud-Din, whose name was accordingly entered on May 10, 1852. In or about 1859 Muhammad Bahadur Khan and Muhammad Said Khan brought a suit in the Revenue Court of the extra Assistant Commissioner of Jullundur against Ghulam Mohy-ud-Din, in which they claimed possession of the lands which had come through Mussammat Maryam and Sarfraz Khan to Mussammat Zainab. The plaintiffs in that suit alleged that Sarfraz Khan had not executed the deed of gift in favour of Mussammat Zainab; that the property in suit could not have passed through his wife Mussammat Zainab to Ghulam Mohy-ud-Din ; and that as Sarfraz Khan had died without a son the property had vested in them, Muhammad Bahadur Khan and Muhammad Said. In that suit the Patwari of Basti Danishmandan was examined as a witness, and in reply to the question " In Basti Danishmandan what custom prevails in respect of an estate left by a sonless proprietor ? " said, " The. following custom prevails—The estate of a proprietor dying childless goes to his daughters. In that suit the Patwari of Basti Danishmandan was examined as a witness, and in reply to the question " In Basti Danishmandan what custom prevails in respect of an estate left by a sonless proprietor ? " said, " The. following custom prevails—The estate of a proprietor dying childless goes to his daughters. Should he make a gift of his property during his lifetime in favour of his daughters, they succeed to their fathers estate. If he does not make a gift in favour of his daughters during his lifetime, his brothers and brothers sons succeed to his estate." Ghulam Mohy-ud-Din gave evidence in that suit; he claimed no title in himself; he said that his wife Mussammat Zainab was the proprietor, and that she had full authority to have her own name inserted in the official papers or to allow the entry in his name to stand. Many other witnesses were examined in that suit, and on June 25, 1859, the extra Assistant Commissioner of Jullundur dismissed the suit. From that order dismissing the suit Muhammad Siraj-ud-Din (Sheraz-ud-Din Khan), who had apparently come into the suit as a plaintiff, Muhammad Bahadur Khan, and Muhammad Said Khan appealed to the Deputy Commissioner, who on December 31, 1859, rejected the appeal, but, holding that Mussammat Zainab alone was the proprietor, directed that her name should be entered in the column of owners. From the order rejecting their appeal Muhammad Siraj-ud-Din (Sheraz-ud-Din Khan), Muhammad Bahadur Khan, and Muhammad Said Khan appealed to the Commissioner of Jullundur, who on February 25, 1860, dismissed their appeal. On May 6, 1887, Baghe Khan (Ghulam Mohy-ud-Din) executed a deed in which he stated that he had adopted Niaz-ud-Din when he was two years old and that he and his wife had brought him up. Niaz-ud-Din, who is mentioned in the deed, is Muhammad Niaz-ud-Din Khan, the defendant in this suit. On May 3, 1888, Ghulam Mohy-ud-Din Khan and his wife Mussammat Zainab executed a deed of settlement by which Ghulam Mohy-ud-Din gave certain property of his in Basti Danishmandan, which is not in dispute in this suit, to Muhammad Niaz-ud-Din Khan, and Mussammat Zainab gave to Niaz-ud-Din Khan the property which is in dispute in this suit. In that deed it is stated that Muhammad Niaz-ud-Din Khan had been placed in possession. In that deed it is stated that Muhammad Niaz-ud-Din Khan had been placed in possession. An application was made to enter the name of the defendant Muhammad Niaz-ud-Din Khan in the column of proprietors in respect of the property in dispute in this suit, and Mussammat Zainab having stated to the tahsildar that Muhammad Niaz-ud-Din Khan was in possession, and no objector appearing, the tahsildar sanctioned the mutation of names, and the name of Muhammad Niaz-ud-Din Khan was accordingly entered in the column of proprietors. In 1895 and 1896 the principal lands, which had been held in unpartitioned shares by Muhammad Niaz-ud-Din Khan, Muhammad Umar Khan, and Muhammad Pirdad Khan, were by agreement between them partitioned, each having allotted to him lands which represented his share. Muhammad Niaz-ud-Dins shares in the partition represented shares which had come to him by the gift of Mussammat Zainab. Mussammat Zainab was then alive ; she died on May 4, 1899. 34 Law. Rep. 39 Ind. App. 19 ( 1911- 1912) Muhammad Umar Khan` V. Muhammad Niaz-Ud-Din Khan 140 Their Lordships consider that these partition proceedings between Muhammad Umar Khan, Muhammad Pirdad Khan, and Muhammad Niaz-ud-Din Khan, who were the original parties to this suit, afford very strong evidence in favour of Muhammad Niaz-ud-Din, who is the defendant in the suit, and respondent in this appeal. The evidence which was given on behalf of the plaintiffs to prove that a custom existed and applied to this family, by which a female could take only a life interest in the ancestral property which had come to her by gift from her son-less father, and had in such property no power to alienate it by a gift in her lifetime, was of the most shadowy description and failed to prove the custom alleged by them. Evidence as to the limited rights by custom of a widow in her deceased husbands property was not evidence from which the custom alleged by the plaintiffs in this suit could be inferred. Nor was evidence that a Mahomedan father had been prevented by some local custom from giving the bulk of his property to one of his sons evidence which had any bearing on the issue in this case. Nor was evidence that a Mahomedan father had been prevented by some local custom from giving the bulk of his property to one of his sons evidence which had any bearing on the issue in this case. The evidence, to which reference has been made by their Lordships, relating to the devolution of Jehangir Khans share to Mussammat Zainab, is entirely inconsistent with the existence of the custom which has been alleged by the plaintiffs. Their Lordships find that not only have the plaintiffs failed to prove the custom alleged by them, but the alleged custom has been disproved. They also find that Mussammat Zainab had a full proprietary estate in the property in dispute, and that she made a valid gift of that property to the defendant. Their Lordships will humbly advise His Majesty that the decree of the Chief Court of the Punjab dismissing the suit of the plaintiffs should be affirmed and this appeal be dismissed with costs.