' This revision petition is directed against concurrent judgments and decrees of the learned two Courts whereby suit for declaration filed by the respondents has been decreed. The facts of the case are briefly noted hereunder.
2. The dispute in this case relates to inheritance to the estate of Faqir Muhammad alias Faqiria. He died in India quite some time before the partition of the sub-continent. On migration to Pakistan, her widow, namely Mst. Umri, submitted two Claim Forms Nos.4625 and 2825 against which a total area of 26 Kanals and 4 Marlas was allotted in her favour. Through an oral sale transaction attested by Mutation No.536 on 8-11-1962 the said Mst. Umri alienated land measuring 25 Kanals, 4 Marlas in favour of Mst. Bashiran Bibi, her daughter, the petitioner herein. On 24-1-1976, the respondents, claiming to be the legal heirs of Nawab, filed a suit for declaration impeaching the aforesaid mutation. Their case was that Nawab and Faqir Muhammad sons of Nizam Din were real brothers. Mst. Umri, widow of Faqiria, succeeded as a limited estate holder and, therefore, could not make a valid alienation in favour of the petitioner on account of the constraints of the customary law.
3. The suit was contested by the petitioner. In the written statement, besides a number of preliminary objections, it was asserted that Mst. Umri was a full owner even before the partition of the subcontinent and the land in dispute was allotted in her favour in lieu of the land abandoned by her in India. It was further averred that Mst. Umri was fully competent to alienate the land in dispute. In the first instance, the only preliminary issue framed in the case was "Whether the suit was within limitation"? The learned trial Court found the said issue in favour of the petitioner as a result of which the suit was dismissed on 6-11-1976. However on the appeal of the respondents, the case was remanded vide judgment dated 5-1-1977 of the learned first Appellate Court for decision on merits.
4. Against that the matter was brought before this Court. The learned counsel for the parties are not in a position to give number of the case. However, according to the judgment of the learned first Appellate Court, the matter was disposed of by this Court on 14-7-1990 with the observation that decision on the question of limitation should be given with the decision of the status of Mst.
Umri.
5. After the remand, necessary issues on the merits of the controversy were also framed and parties led evidence in support of their respective pleas.
6. On consideration of the evidence produced in the case the learned trial Court found that Mst.
Umri was a limited estate holder, Bashiran Bibi the petitioner was her daughter while the respondents were the collaterals of Faqiria. On the basis of the Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Ordinance (No.V) 1975, the suit was held to be within time. Accordingly, the suit was decreed on 27-2-1993. It may be noted at the outset that issue No.3 as to whether the plaintiffs were entitled to inherit the estate of Faqiria and if so, what was their share was not determined either by the two Courts.
7. Against the judgments and decrees aforesaid, the petitioner filed an appeal before the learned District Court, Sheikhupura, which was dismissed vide judgment and decree dated 18-6-1995. This revision petition is directed against the said judgments and decrees.
8. The learned counsel for the petitioner has agitated the findings of the learned two Courts on Issues Nos.1, 2-A, 7 and 12. The said issues are reproduced for facility of reference.
(1) Whether the plaintiffs are estopped by their own conduct to institute this suit? OPD.
(2A) Whether the suit is within limitation? OPP.
(7) Whether Mst. Umri was a limited owner of the suit-land under the custom? OPP.
(12) Whether the pedigree-table given in para. No. 2 of the plaint is correct? If not, what is the correct pedigree-table? OPP.
9. As far as issue No.1 is concerned, he submits that Nawab Ali, one of the respondents, had agitated the matter before the Revenue Authorities but had failed. Reference was made to Exh.D-1 the order dated 8-7-1963 of the learned Additional Commissioner and Exh.D-2 the order dated 15- 4-1963 of the learned Additional Deputy Commissioner, Sheikhupura to contend that the respondents were estopped to bring the suit. On the question of limitation, he submits that since the Revenue Authorities had declared Mst. Umri as a full owner, an application under Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Ordinance (No.V), 1975 was maintainable and the alienation could not have been impeached before the Civil Court. On issue No.7 his contention is that in accordance with the evidence produced in the case (D.Ws 1 to 3), Mst.
Umri was a full owner and, therefore, was free from any constraint of the customary law. On Issue No.12 he maintains that it had not been established that the respondents were the collaterals of Faqiria. Reference was made to the pedigree-table Exh.P-3 in which although Faqir Mohammad and Nawab were shown but the respondents were not shown under Nawab.
10. On the other hand the learned counsel for the respondents has defended the impugned judgments and decrees for the reasons recorded by the learned two Courts. He submits that the decision rendered by the Revenue Authorities in summary jurisdiction could not stand in the way of the respondents to question the alienation made by Mr. Umri vide Mutation No.536 (Exh.P-4) before the Civil Court. On Issue No.2-A his contention is that besides remedy of an application before the Revenue Authorities, the remedy to challenge the disputed alienation before the Civil Court was always available to the plaintiffs-respondents. On Issues Nos. 7 and 12 his contention is that whatever evidence the parties had produced, was duly taken into consideration and the matter stands concluded by concurrent findings of fact.
11. The submissions made by the learned counsel for the parties have been considered. In fact the Revenue Authorities had rendered their decision in the background that the law in force as interpreted by the superior Courts in 1963 was that even if a female allottee was a limited owner she would be treated as a full owner because the allotment under the Rehabilitation Laws was in the nature of grant, although, this was not so stated in their orders. The last order passed by the Board of Revenue has not been placed on the record. Perusal of Exh.D-1, the order of learned Additional Commissioner, Lahore shows that the Board of Revenue had made certain modification.
In this order, there is no finding that Mst. Umri was a full owner while according to the order dated 15-4-1963 (Exh.D-2) the finding recorded was that the learned counsel for the appellant (Nawab Ali) had not been able to prove that Mst. Umri was a limited owner. In view of the prevalent state of law as to the status of female allottees, the question as to the status of Mst. Umri (as full or limited estate holder) at the time of partition was not required to be determined. However, in Sher Muhammad v. The Additional Rehabilitation Commissioner, Multan and 7 others (PLD 1968 Lah.
234) a Full Bench of this Court departed from the earlier view and held that a female allottee who was a limited estate holder will continue to hold the land in the said capacity. There have been legislative changes thereafter but for the purpose of disposal of this revision petition, it is not considered necessary to note them. Thus, the first contention of the learned counsel for the petitioner has no merit.
12. As far as Issue No.2-A is concerned, the learned two Courts relied on section 3 of the Punjab Ordinance (V of 1975) which allows challenge to an alienation or an order of succession in a Court or before any other authority within one year. A perusal of the said section shows that jurisdiction of the civil Court to determine the dispute in respect of an alienation made by a limited estate holder was not excluded. After hearing the learned counsel for the parties I found that while Mst. Bashiran Bibi, the petitioner was the daughter of Faqiria, the respondents were the successor-in-interest of Nawab, the brother of Faqiria, the parties to the suit being co-sharers in the land, the question of limitation does not arise and this was the reason that in their suit the respondents had claimed a declaration that they were entitled to the share in the estate of Faqiria and a prayer for joint possession was made.
13. As far as issue No.7 is concerned, the evidence produced in the case has been examined by me with the assistance of the learned counsel. 'Examination of the evidence produced in the case clearly shows that the family was governed by custom and Mst. Umri succeeded as a limited estate holder. According to the pedigree-table (Exh.P-3) the following entry is recorded:- {{URDU TEXT}} The year of this pedigree-table has not been indicated but I am quite clear that it pertains to the period prior to the partition of this sub-continent. This entry alone would not have been sufficient to hold that Mst. Umri was a limited estate holder but from the evidence produced in the case, it stands duly corroborated that she was a limited estate holder. As regards Issue No.12, initial burden was on the plaintiffs-respondents. P.W.-1 appeared and corroborated the pedigree-table, given in para.2 of the plaint. On the other hand, none of the D.Ws. Examined uttered even a single word about the aforesaid pedigree-table. As far as Exh.P-3 is concerned, it shows Nawab and Faqir Mohammad sons of Nizam but the descendants of Nawab have not been shown because a pedigree-table only records the landowners in the estate and in the lifetime of Nawab, his descendants could not have been shown. Further the date of birth of the sons and daughters of Nawab or the date of preparation of this pedigree-table is not on the record. It may also be observed that as far as Issues Nos.7 and 12 are concerned, the matter stands concluded by concurrent findings of the learned two Courts and, is therefore, not open to revision.
14. The learned two Courts have not however, determined the shares of the parties. The disputed alienation was made by Mst. Umri on 8-11-1962. On 31-12-1962, the Punjab Act V of 1962 was promulgated. It has the effect of terminating all limited estates and reversion of the property to the last male holder. The alienation by Mst. Umri in favour of the petitioner being invalid, the effect would be that the disputed property would revert to Faqiria on termination of her life estate. Mst.
Umri as widow was entitled to 1/8th share, Mst. Bashiran Bibi, the petitioner, as daughter, to one half share while the plaintiffs-respondents will be entitled to the remainder i.e. 3/8th share. This revision petition is, therefore, partly accepted and the impugned judgments and decrees of the -learned two Courts stand modified to this extent. No order as to costs.