and occupations of Kalals as found in this Province, The lear red Divisioral Judge seems to me to confound ownership of land with agriculture as an occupation. The distinction is a very clear one, and was brought out forcibly in Atar Singh v. Prem Singh (1), in which case certain Khatris, who had held land for no less than 200 years, were taken as non-agriculturists and as a tribe regarding whom no presumption arose that they had adopted agricultural custom. It seems to me clear on the facts given above that the Kalals of Bhutari are not agriculturists properly so called. Again the same idea as that which formed the basis of my judgment in Civil Appeal 371 of 1902 comes out in the two Bedi cases, both of Hoshiarpur District, Khazan Singh v. Maddi (2), and Uttam Singh v. Jhinda Singh (3). In the former case it was found that the Bedis formed a compact village living on agriculture, in the latter they were a small section of a village community, mainly composed of other tribes. In the latter Hindu Law was applied, in the former agricultural

custom.

These Kalals came, or say they came from Ahlu, District Lahore, and are to be found in many parts of the province. They have taken to a variety of occupations, of which agriculture is probably not the most prominent. Their religious and social status was low, but has improved somewhat in recent generations partly from the circumstance that the Kapurthala family belongs to the tribe. On the high authority of the census officers of 1881, and 1891 (Messis Ibbetson and Maclagan) they should be classed as a whole as "Miscellaneous artisans ", and 80 Mr. Gordan Walker, Settlement Officer of Ludhiana in the eighties, also classes them, though he thinks perhaps for that district they might be called agriculturists. Notwithstanding petitions to Government the Kalals of Ludhiana have not been included in the list of agricultural tribes of the district for the purposes of the Land Alienation Act. In Kalalhatti, District Umballa, as already noted, and in Patti Kalalan, a compact village of Kalals adjoining Umballa City, Mussammat Kirpi v. Solekh Singh (4), they have been declared to Fave adopted agricultural custom ; but equally in Jandiala, District Amritsar, the reverse has been found to be the case,-Attar Singh v. Guran Ditta (5)-upon a careful enquiry into actual practice.

Considering all this and also the circumstance that, according to the evidence, the Kalals of Butahri have relations rather

with Amritsar and Lahore than with Umballa, I am inclined to hold that the onus in the present case, at this stage of the discussion is on plaintiff. But, however this may be, I will consider first the evidence produced or relied upon by

defendants.

Defendants have put in a list of adoptions in the tribe, some 30 in number, and this has been exhaustively criticised by Lala Ishwar Das. Divisional Judge discusses about half in detail and says the rest are vague. It would be tedious to go through this list seriatum. I will content myself with noticing those which seem to me to be unmistakably in favour of defendants and with making a few remarks about the others. No. 3 is no doubt of the town of Khanna, but the case was undoubtedly one of nomination of an heir and the property was 300 bighas of land. The heir selected was a daughter's son's son. Rao Singh of Kalal Majra (No. 6) orally adopted Hira Singh, a daughter's son, and there is a nephew of the adopter, an influential man who became Lambardar vice Rao Singh; Hira Singh keeping all deceased's property. No. 16 is the case of one Ram Kishen (Munsif) of Alawalpur, who adopted a daughter's son, his property was in land and was of substantial value. Nos. 1, 2, 4, 10, 11, 12, 15, 17, 19, 22 are objected to by plaintiffs on the grounds that the properties were small and the cases of towns. This is to some extent true. It is also true that in some cases the property was houses or shops. I think Mr. Shafi is right when he protests against the discrimination adopted between town Kalals on the one hand and rural Kalals not forming compact village communities on the other; also between house and landed property. Adoption is the appointment of an heir to the whole of the adopter's property. If the tribe anywhere recognises adoption of daughters' sons or sisters' sons, the adopted one will of course take everything on the adopter's death-land,

houses and moveables. In No. 4 it is said that there were no reversioners, but this is incorrect. I lay no stress on the remaining instances, Nos. 5, 7, etc., as in some of them there is some possible doubt as to whether they involve real adoptions at all, and in others special reasons exist why reversioner should not have sued. I should also note that plaintiffs' own witnesses have been forced to admit some 13 of defendants' instance.

Plaintiff's evidence to rebut all this is weak. His witnesses are numerous, but their value may be gauged by the fact that many of them roundly assert that adoption is not at all allowed among the tribe. Further, some of them first deny the truth of certain of defendants' instances and then have to admit

that the adopted ones are in possession and enjoyment of the adopters' estates. They are able to cite not a single instance of Ludhiana, Amritsar or Lahore in which the adoption of a daughter's or sister's son has been set aside.

For all these reasons it seems to me abundantly clear that the adoption in the present case is valid, and that the decree of the Divisional Judge should be set aside and the suit dismissed with costs.

No. 88.

Appeal allowed.

APPELLATE SIDE.

30th March 1907.

Before Mr. Justice Robertson and Mr. Justice Shah Din. NIGAHIA AND ANOTHER,-(DEFENDANTS),-APPELLANTS,

Versus

SANDAL KHAN AND OTHERS,-(PLAINTIffs),—

RESPONDENTS.

Civil Appeal No. 409 of 1906.

Custom-Alienation-Gift by sonless proprietor to daughter - Rajputs of mauza Kharal Kalan and Kharal Khurd in the Jullundur and Hoshiarpur Districts.

Held, that defendants on whom the onus lay had failed to establish a custom by wihch among Rajputs of Bhatti got of mauza Kharal Kalan and Kharal Khurd in the Jullundur and Hoshiarpur Districts a sonless proprietor was competent to gift his ancestral estate to a daughter in the presence of collaterals of the fifth and third degrees respectively. Imam-ud-din v. Wazir Khan ('), Suchet Singh v. Banka (*), Sultan Bakhsh v. Mussammat Mahian (3) Mussammat Lakhan v. Rahmat Khan, (^`, Amir Khan v. Sirdira (5), and Umar Khan V. Samand Khan (*),

referred to.

Further appeal from the decree of J. G. M. Rennie, Esquire,
Divisional Judge, Jullundur Division, dated 4th April 1905.
Harris, for appellants.

Sheo Narain, for respondents.

The judgment of the Court was delivered by

SHAH DIN, J.-In this appeal and in C. A. No. 1095 of 1906 the same question of custom is involved. They were therefore heard together and will be disposed of by one judgment. In this appeal the parties are Rajputs of Bhatti got of mauza Kharal Kalan in the tahsil of Jullundur, while in the

connected appeal (C. A. No. 1095), they are Rajputs of mauza Kharal Khurd in the tahsil of Dasuya in the Hoshiarpur District. Both the villages, Kharal Khurd and Kharal Kalan, are inhabited by Rajpats, mostly of the same got, and it is admitted that they are governed by the same rules of custom. In this appeal the dispute has arisen out of one Nigahia having made a gift of his ancestral land in favour of his daughter, Mussammat Jhando, on 17th January 1904, the validity of which gift is contested by Nigahia's collaterals

who meet him in the fifth degree from the common ancestor. In the connected appeal the gift in dispute was made by one Gulab Khan to his daughter, Mussammat Imam Bibi, and the plaintiffs who have sued to have the alienation set aside are Gulab Khan's collaterals in the third degree. The question for decision, therefore, in both the appeals is whether among Rajputs of Kharal Kalan and Kharal Khurd in the Jullundur and Hoshiarpur Districts, respectively, a sonless proprietor is competent by custom to make a gift of ancestral land to his daughter in the presence of collaterals of the fifth and third degrees.

It is not disputed that the initial burden of proof lies upon the donees, the daughters, in both the cases, and we have therefore to see whether they have succeeded upon the materials before us in discharging that onus. The Courts below have found in each case that the onus has not been discharged and have decreed the plaintiffs' claim.

The Riwaj-i-ams of tahsil Jullandur and tahsil Dasuya practically throw no light upon the point under consideration, and the Wajib-ul-arz of either village is equally silent upon it. The decision of the question of custom, therefore, turns wholly upon the instances which have been adduced by the parties and further sifted by the local commissioner appointed during the trial of the suit out of which the present appel has arison, the oral evidence produced in either case being admittedly of little value. The Court of first instance has, in this case, examined in sufficient detail the instances aforesaid, and at the arguments before us have been limited to a discussion of those instances, we have to see how far they beir upon the question at issue between the parties.

There are altogether seventeen instances, of which Nos. 1 to 8 relate to mauza Kharal Kalan (Nos. 1 to 4 being deposed to by witnesses examined in Court and Nos. 5 to

8 being brought to light at the local enquiry). Nos. 9 to 12 and No. 17 relato tɔ mauza Kharal Khurd, Nos. 13 to 15 relate to Rostgo (which is inhabited mainly by Nara Rajputs) and No. 16 relates to mauza Zahura.

The detail is as follows:

(1). One Kesar gifted, on 9th June 1902, 46 kanals 1 marla of land (out of 62 kanals and 11 marlas) to his daughter without consent of collaterals. No suit has yet been brought. The alienation is very recent and no conclusion can be based upon it.

(2). One Fatteh made a verbal gift of 4 kinals 1 marla out of 30 ghumaos (about 1th of the estate) to his daughter on 15th April 1888, a son of the donor is alive. No suit brought. The gift was of a very small area and the son appears to have been a consenting party.

(3). Allah Ditta, son of Fatteh (in instance No. 2) gifted on 9th November 1894 th share of 234 kanals 10 marlas to his sister. No suit brought by collaterals.

(4). This instance is not at all clear.

(5). One Toba made a verbal gift to his sister's sons of about th of his estate on 15th June 1887 in presence of his son. No suit brought.

(6). One Ghausa died in 1866, leaving him surviving two brothers, Kada and Baja, and two daughters Mussammats Chando and Bhari. The daughters took possession of Ghausa's estate with the consent of Kada. In 1875 the sons of Baja sued the daughters for possession of their uncle's land, with the result that after two remands for local enquiry the Additional Commissioner of Jullundur held on 15th July 1876 that by custom applicable to the parties' tribe the daughters were excluded from iuberitance by the nephews of the deceased proprietor, and the suit of the latter was accordingly decreed. In the course of the enquiry in that case, the plaintiffs seem to have admitted that if their uncle Ghausa had gifted his land to his daughters, they (the plaintiffs) would have had no claim to it. It is this admission of the plaintiffs as to the validity of a gift to a daughter which is relied upon by the donee in this case, but obviously a stray admission in an old case which did not touch the merits of the actual dispute between the parties can hardly furnish a good basis for a claim as of right under circumstances attending the present alienation.