' Brief facts of the case are that one Muhammad Tufail died issueless before partition. The property in question devolved upon Mst. Noor Begum as limited owner being his widow. After migration to Pakistan she got allotment of the said .Property. On her death in 1987, Mutation No.522 was attested on 21-2-1987-treating her to be full owner and the property stood mutated in favour of the defendants being her Nephews. The respondents/plaintiffs filed a suit on 5-7-1987 and claimed 3/4th share in the property being collaterals of Muhammad Tufail deceased. The suit was contested by the petitioners. After recording evidence, the learned trial Court dismissed the suit vide judgment and decree dated 22-3-1992. The respondents' appeal succeeded vide judgment and decree dated 17-2-2000 passed by the learned Additional District Judge, hence this revision.
2. Respondent No.4 is a purchaser from the parties to the original litigation during the pendency of the proceedings at various levels in the instant case. He has been impleaded as a party before this Court. Since, he is a subsequent purchaser during the pendency of the litigation, therefore, on account of principle of lis pendense, he will follow the events to be determined in the later part of the judgment.
3. The facts admitted by the learned counsel for the parties before starting their arguments are that Muhammad Tufail the original owner had died before partition and Mst. Noor Begum, his widow survived and inherited the property as a limited owner. It is also an undenied fact that the property in question was never dealt with by Mst. Noor Begum during her life time except for deriving benefits from the same. It is also an admitted fact that the plaintiffs are collaterals of Muhammad Tufail deceased. It is also an admitted fact that defendants/petitioners are Nephews of Mst. Noor Begum.
4. The only question raised by the learned counsel for the petitioner and required to be resolved in the instant proceedings is with regard to the limitation for filing of the instant suit by the plaintiffs.
5. Learned counsel for the petitioners contends that under sections 2 and 3 of the Punjab Muslim Personal Laws (Shariat) Application (Removal of Difficulties) Act, 1975 (hereinafter to be called "Act"). The period of limitation for challenging the status, right, alienation etc. By a limited owner is only one year from the date of commencement of the Act. According to him the Act was promulgated on 31-3-1975, therefore, the suit filed by the respondents on 5-7-1987 was hopelessly barred by time. In support of his contention he has relied on 1993 SCMR 950, PLD 1987 Lah. 553 and an unreported judgment of this Court in Civil Revision No.118 of 1991, decided on 13-7-1999. He has however contended that the contrary view taken in 1998 MLD 2513 and 1993 CLC 214 is not, applicable to the facts and circumstances of the instant case.
6. On the other hand, learned counsel for the respondents contends that according to preamble of the Act, the eventualities necessarily required for the application of the Act had not yet arisen, according to him neither Mst. Noor Begum had dealt with the property by way of alienating it to anybody nor her succession opened till her death in 1987, therefore, the provisions of Act were not applicable in the instant case. The suit filed immediately after the opening of succession of Mst.
Noor Begum was well within time. Relies on PLD 2003 Lah. 186, PLD 2002 SC 741, 2002 SCMR 1000, PLD 2004 Lah. 1 and PLD 2002 SC 823.
7. It is next argued that Limitation Act is a Central Statute, while the Act of 1975 is a Provincial Statute, therefore, under Article 143 of the Constitution any Provincial Legislation taking away any right conferred on a. Citizen under a Central Statute is void to that extent.
8. However, learned counsel for respondent No.4 maintains that his client have paid huge amounts for purchasing property in dispute from the petitioners and also from respondents Nos.1 and 2, therefore, both of them have no locus standi keeping in view the transfer in favour of respondent No.4. It is next contended that period of limitation would commence from the date of attestation of inheritance mutation in favour of Mst. Noor Begum which was sanctioned before the independence and the said mutation was placed on record as Exh.P.7 in additional evidence before the lower appellate Court. It is to be noted at this juncture that the said mutation has neither been placed on record by the petitioner nor respondent No.4 had placed it on record although he had been impleaded under Order 1, rule 10, C.P.C. By way of an application moved by him It is next argued that respondent No.4 has purchased the property during the pendency of the instant civil revision, despite that, according to him, his case is not covered under section 52 of the Transfer of Property Act, 1882.
9. As a right of reply, learned counsel for the petitioner while referring to para.2 of the plaint and its reply in written statement has tried to riggle out his earlier contention that Mst. Noor Begum had inherited the entire property of her husband as a limited owner by pleading that the petitioner had denied this fact in the written statement by contending that she inherited as a limited owner. It is further submitted that ever-since allotment in favour of Mst. Noor Begum, she was treated as a full owner till the termination of the limited estate by virtue of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, therefore, it is concluded that the first cause of action arose to the respondent on the promulgation of the said Act.
10. I have considered the arguments of the learned counsel for the parties.
11. The only question involved in the instant case is whether the suit filed by the respondent was within the period of limitation provided by sections 2 and 3 of the Act. For ready reference both these sections are reproduced as follows: "2. Removal of difficulties.---Notwithstanding anything to the contrary contained in any other law for the time being in force, all decrees, judgments or orders passed in any suit, appeal or other proceedings by any Court or other authority treating a refuge female allottee as full owner of the property allotted to her in lieu of the property abandoned by her in India or to which she otherwise entitled, as a limited owner; shall be of no legal effect and such suit, appeal or other proceedings shall, on an application made by an affected person within year of the commencement of this Act, be decided afresh.
3. Permission to file fresh suits, etc:---Any person aggrieved by an alienation or any order of succession with regard to any property allotted to a refuge female in lieu of the property abandoned by her in India or to which she was otherwise entitled as a limited owner under custom, and who could not challenge such alienation or succession, may call it in question in a Court or before any other authority within one year of the commencement of this Act."
Section 2 relates to the cases in which a decision had already taken place as a result of some litigation between the parties and as a result of that litigation some adverse order was passed against the persons who were entitled to inherit from the 'cast male owner treating the females as full owners. Therefore, a right was given to the affected parties to move an application before the same Court or authority within a period of one year from the date of commencement of the Act i.e. 31-3-1975.
12. Section 3 provides the other category of the cases where any aggrieved person had not filed any suit against any alienation or order of succession before the commencement of the Act and was thus given a right to file a fresh suit within a period of one year from the date of commencement of the Act. The above referred categorization is also reflected in para. 7 of the judgment of the Honourable Supreme Court referred by the learned counsel for the petitioner i.e. 1993 SCMR 950 in the following words: "If sections 2 and 3 reproduced above are read together, then it would appear that the intention of legislature was to divide affected persons into two categories. In the first category are persons, who, aggrieved on account of erroneous view, had litigated and some judgments and orders treating refugee females as full owners were declared to be of no legal effect and such affected persons were given right of fresh hearing. The other category of affected persons is covered by section 3 which provides for permission to file fresh suits. This permission is given to persons, who could not challenge such alienation or succession for some reason. Here legislature has not used word "did" but on purpose has used word "could" to denote the sense that such persons who were unable to challenge alienation for variety of reasons and legal objections including the one that suit was barred by limitation, were given opportunity to file fresh suits."
13. Admittedly in the instant case, there had been no litigation whatsoever between the parties before the commencement of the Act of 1975. The condition precedent to apply the bar of limitation provided in section 2 of the Act is that the parties had litigated the issue of limited ownership of the female and some decree, judgment or order was passed in any suit, appeal or proceedings by any Court or authority treating the refugee female allottee as a full owner of the property allotted to her in lieu of her property abandoned by her in India or to which she was otherwise entitled as a limited owner. By operation of law i.e. Section 2 of the Act, such decrees, orders and judgments were declared to be of no legal effect and a fresh right was given to affected persons by keeping a bar of limitation of one year from the commencement of the Act on 31-3-1975. Necessary ingredients to apply the bar of limitation i.e. Litigation between the parties prior to the coming into force of the Act is absent in the instant case. Thus the case does not fall under section 2 of the Act.
14. Mst. Noor Begum admittedly did not alienate in any manner the property held by her as a limited owner prior to coming into force the Act of 1975. On her death, for the first time an order of succession in the shape of inheritance Mutation bearing No.522 was attested on 21-2-1987. The conditions required for the application of bar of limitation as provided in section 3 of the Act are that the female limited owner had dealt with the property by way of alienating it in any form i.e. Sale, gift, exchange etc. Etc. Or on account of her death, succession had opened before coming into force the Act of 1975, if either of the two incidents i.e. Alienation or succession had happened but the aggrieved person for one reason or the other could not challenge such alienation or succession was given a right to file a suit within the extended limitation of section 3 of the Act. It is obvious from the above analysis that for application of bar of limitation one of the above referred eventualities must have taken place before coming into force of the Act of 1975. In the instant case Noor Begum did not alienate the property in her life time till she died in 1987 when her succession opened. Therefore bar of limitation contained in section 3 is not applicable in the instant case.
15. The unreported judgment of this Court in C.R. No.118 of 1991, dated 13-7-1999 referred by the learned counsel for the petitioner is not applicable to the instant case inasmuch as in the referred case, the lady who had inherited as a limited owner had gifted the property to her brother in the year 1969 i.e. Before coming into force of the Act of 1975. Thus in that case alienation had taken place before the Act, therefore, the case was covered under section 3. This is not so in the instant case because Mst. Noor Begum never dealt with her property during her life time.
16. On coming into force of Punjab Muslim Personal Law (Shariat) Application Act, 1962, the respondent/plaintiff had become a co-sharer of the property on account of the termination of limited estate of Noor Begum. Once having become co-sharer in the property, no limitation runs on account of recurring cause of action on every denial. Reference can be made to PLD 1990 SC 1.
17. Learned counsel for respondent has tried to refer to the inheritance mutation of Mst. Noor Begum Exh.P.7 which was placed on record as additional evidence before the lower Appellate Court but neither the petitioner nor the respondent has placed it on record as required by section 115 of the C.P.C. Therefore, without the same being on record, cannot be commented upon.
18. For what has been stated above, I find no merit in this petition which is accordingly dismissed.