' MUHAMMAD NAWAZ ABBASI, J.---These two petitions involving common question of law and facts have been directed against a consolidated judgment dated 22-7-2002 passed by a learned single Judge of Lahore High Court, Lahore, in Writ Petition No,1777 of 1997 and Civil Revision No, 719 of 1998 filed by the petitioners in C.P. No,2912-L of 2002 and C.P. No,3045-L of 2002 respectively are proposed to be disposed of through this single judgment. The petitioners in both these petitions have common interest against the same respondents, therefore, for the convenience, the judgment is rendered with reference to the parties in C.P. No,2912-L of 2002.
2. The relevant facts in small compass giving rise to these petitions are that one Taj Ali son of Maula Baksh died issueless in District Karnal (India) before partition and the land owned by him in India, was transferred in the name of his widow, Mst. Jannat Bibi as limited owner (since dead) under custom. Mst. Jannat Bibi, on partition, migrated to Pakistan in 1947 and filed a claim for allotment of land in lieu of the land left by her in India. She was allotted land measuring 85 Kanals in village Laloopur and 113 Kanals in village Noen-e-Key of District Gujranwala and on enforcement of West Pakistan Muslim Personal Law Shariat Application Act, 1962, the concerned revenue officer, at the instance of Abdul Aziz etc. Who claimed themselves to be collaterals of Taj Ali, vide a revised Mutation No,3 dated 18-10-1963 held that Mst. Jannat Bibi, widow of Taj Ali who was limited owner, would get 1/4th share in the land and remaining 3/4th would go to them as collaterals of Taj Ali, the last male owner of the land. Mst. Jannat Bibi challenged the legality of this mutation by way of filing an appeal before the Collector, Gujranwala, with the assertion firstly, that she being the allottee of the land in her own right, was the full owner of the land and secondly, Abdul Aziz etc. Were not related to Taj Ali to have inherited his property. The mutation in question was set aside by the Collector but in appeal filed by Abdul Aziz and others, the Additional Commissioner (Revenue) by setting aside the order of Collector, remanded the case to him for fresh decision. In post-remand proceedings, the Collector, vide order dated 8-6-1965, again set aside the mutation and held that Mst. Jannat Bibi was full owner of the land. An appeal filed by Abdul Aziz etc. Against the above order of Collector, was dismissed by the Additional Commissioner, Lahore Division, vide order dated 10-1-1969. Later, a revision petition filed by them before the Board of Revenue, Punjab, Lahore, met the same fate which was dismissed by the Member Board of Revenue vide order dated 10-11-1970.
Mst. Jannat Bibi pending litigation before the revenue authorities, having made gift of the land vide Mutations No,53 dated 11-6-1968 and 110 dated 12-6-1968, in favour of her nephews and niece, namely, Muhammad Jamil Khan, Muhammad Khalil Khan, sons and Mst. Asia, daughter of Abdul Latif, delivered the possession of the land to them. Mst. Jannat Bibi died in 1971 and Abdul Aziz etc. Filed a writ petition bearing No,20 of 1972 in the Lahore High Court Lahore challenging the order dated 10-11-1970 passed by Member, Board of Revenue wherein she was impleaded as respondent through the donees showing them as her legal heirs. Muhammad Jamil etc. The donees of land, pending disposal of the writ petition, sold the land measuring 85 Kanals, 4 Marlas to the petitioners in village Lalpura vide registered sale-deed dated 17-5-1989 for a consideration of Rs,2,50,000 and on the basis of sale deed Mutation No,266 dated 1-11-1992 was attested in their name; The learned Judge in Chambers in the light of observations, made by this Court in Additional Settlement Commissioner (Land) v. Muhammad Shafi (PLD 1971 SC 791), that "widows and other limited owners in India would retain the same character in respect of land allotted to them in Pakistan and would not be treated as full owner" held that Mst. Jannat Bibi being limited owner, would get 1/4th the share in the land allotted to her whereas the remaining 3/4th share, would go to the writ petitioners in their capacity as collateral/ reversionaries of Taj Ali. The petitioners were not party in the writ petitions but they and donees filed C.P. 135-L of 1993 and C.P. No,137 of 1993 respectively in this Court against the above judgment of the High Court which were dismissed vide judgment dated 7- 5-1994 and in consequence thereto, 3/4th share in the land was mutated in the name of Abdul Aziz etc. As collaterals of Taj Ali vide Mutation No,320 dated 9-6-1994.. They further sold an area measuring 83 Kanals, 6 Marlas in Village Noeke. Muhammad Jamil Khan and two others, donees of the land from Mst. Jannat Bibi and the petitioners, vendees from them, filed separate suits seeking declaration that except Mst. Jannat Bibi there was no other legal heir of Taj Ali in Pakistan and Abdul Aziz etc. Having no relation with him, were not entitled to inherit his property, therefore, the Mutation No,320 dated 9-6-1994 was ineffective upon their right in the property. The respondents while taking the plea of res judicata, denied the averments of the plaints in the written statements in both the suits and by filing separate applications under Order VII, Rule 11, C.P.C. In the suits, sought rejection of the plaints. The precise plea of the respondents was that the litigation in the matter' relating to the inheritance of Taj Ali, arising out of Mutation No,3 dated 18-10-1963 before the revenue authorities stood finally decided by the High Court in Writ Petition No,20 of 1972 vide judgment dated 9-12-1992 and the petitions for leave to appeal filed by the petitioners against the said judgment in the Supreme Court of Pakistan were also dismissed, therefore, the civil suits on the same subject, would be barred by the principle of res judicata. The learned trial Judge, dismissed the application under Order VII, Rule 11, C.P.C. In the suit filed by the petitioners but a learned Additional District Judge in a civil revision filed by the respondents against the order of Civil Judge, rejected the plaint vide judgment dated 15-12-1996. The petitioner being aggrieved of the above order of the revisional Court, filed a writ petition in the Lahore High Court, Lahore, and a learned Judge in Chambers, vide judgment dated 22-7-2002, dismissed the writ petition. The plaint in the connected suit filed by the donees of the land was rejected by the learned civil Judge vide order dated 18-11-1997 and their appeal against the said order was also dismissed by a learned Additional District Judge, vide order dated 1-4-1998. The donees invoked the revisional jurisdiction of Lahore High Court in the matter by way of filing a civil revision which was heard along with the writ petition and was dismissed through the impugned judgment.
3. Learned counsel for the petitioner has contended that the controversy involved in the litigation before the revenue Courts, was confined to the limited question as to whether Mst. Jannat Bibi, widow of Taj Ali, was a limited owner or she was full owner of land and the attestation of Mutation No,3 dated 18-10-1963 on the enforcement of West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 by virtue of which she was held entitled to 1/4th share in the land was or was not in accordance with law. The learned counsel while conceding the legal position vis-a-vis 1/4th share of Mst. Jannat Bibi, widow of Taj Ali, in his property under law of Shariah, vigorously argued that neither any evidence was brought before the revenue authorities nor before the High Court in the writ petition in proof of the existence of relationship between Abdul Aziz etc. And Taj Ali nor this precise question was adjudicated and decided by any forum at any stage, therefore, the learned Judge in the High Court was not supposed to have raised such presumption of fact without any evidence and to hold that Abdul Aziz etc. Were collaterals of Taj Ali. Learned counsel submitted that there can be no departure to the rule of succession in Islam that widow is entitled to get 1/4th share in the property of her husband and remaining 3/4th is distributed amongst his other legal heirs but without proper proof of the fact as to who were the legal heirs of deceased, who would have inherited him on his death, the property would not be distributed amongst the claimants. The learned counsel argued that the essential question that except the widow of Taj Ali, who died in India as to who were his other legal heirs, who would have inherited his property on the opening of his succession and whether Abdul Aziz etc. Were actually his collaterals was neither adjudicated nor decided by the High Court in the earlier writ petition and apart from Mutation No,3 dated 18-10- 1963 no other evidence was brought on record in proof of the existence of any relationship between them, so much so, that there was no evidence to suggest that Abdul Aziz etc. Were refugees from District Karnal (India) and in absence of any such evidence, the disputed mutation by itself would not be considered as evidence of relationship. Learned counsel emphasized that without proper adjudication and decision of the question of existence of relationship between Abdul Aziz etc. And Taj Ali and the manner in which they were connected with each other, the verdict given by the learned Judge in the High Court in the writ petition that they were collaterals of Taj Ali, would have no binding force to operate as res judicata to the filing of the suit on the subject and consequently, the rejection of plaint under Order VII, Rule 11, C.P.C., was not legal.
4. Learned counsel for the respondents, on the other hand, without showing us any evidence from the record of Writ Petition No,20 of 1972 to suggest the existence of relationship between Abdul Aziz etc. And Taj Ali contended that Mst. Jannat Bibi, widow of Taj Ali, being entitled to 1/4th share in the property of her husband could not pass on the title in the land in excess of her share and consequently, the gift of land made by her beyond her share, being void would not create any right, title or interest in favour of the donees or the vendees as the case may be. Therefore, notwithstanding the adjudication and decision of the issue regarding the existence of relationship inter se Abdul Aziz etc. And Taj Ali in the earlier litigation, the petitioners having no valid title, would have no locus standi to challenge the status of Abdul Aziz etc. As collaterals of Taj Ali in the civil suit or claim protection of section 41 of Transfer of Property Act, 1882. The learned counsel added that the application moved by the petitioner in the writ petition filed by Abdul Aziz etc. In the earlier litigation for their impleadment as party was dismissed in the light of principle of lis pendens and the matter being a past and closed transaction, could not be reopened in the suits, therefore, the rejection of plaints in the suits on the basis of doctrine of res judicata, was quite legal. . .5. This is an admitted fact that Taj Ali died in India before partition and notwithstanding the opening of his succession under the law of Shariah, Mst. Jannat Bibi succeeded him as limited owner under the customary law and on her migration to Pakistan, she was allotted land in lieu of the land left by her in India. The limited interest of female under custom stood terminated at the first instance under Muslim Personal Law (Shariat) Application Act, 1948 and then under Muslim Personal Law (Shariat) Application Act, 1962 and later in consequence to the declaration made by the Federal Shariat Court that customary law was repugnant to the Injunctions of Islam, section 2- A was added in the ibid Act by virtue of West Pakistan Muslim Personal Law (Shariat) Amendment)
Act, 1983 (Act XIII of 1983). This Court in Abdul Ghafoor and others versus Muhammad' Shafi and others (PLD 1985 SC 407) held that on termination of limited interest, the properties comprising therein subject to the conditions contained in sections 2 and 2-A ibid would be governed by the rule of succession under Muhammadan Law and would go to all those persons who would have right of inheritance on the opening of succession of last male owner on his death. Consequently, the essential question requiring determination in the present case, would be as to who were the legal heirs of Taj Ali, who, on his death in India, would have been entitled to inherit his property according to law of Shariah. The dispute in the earlier litigation before revenue authorities and High Court as is evident from the record, was in respect of the status of Mst. Jannat Bibi "whether a limited owner or full owner of land" and the verdict of the revenue Courts was that she being allottee in her own right, was full owner of the land but High Court having found the above verdict in conflict to the law laid down by this Court in Additional Chief Settlement Commissioner v.
Muhammad Shafi (PLD 1971 SC 791) held in the judgment dated 9-12-1992 passed in the Writ Petition No,20 of 1972 that she was a limited owner. However, the learned Judge in Chambers in the High Court instead of confining to the question of law that after exclusion of the share of Mst. Janat Bibi as widow of Taj Ali, the remaining estate would go to his legal heirs who were entitled to inherit him on his death in accordance with the law of succession in Islam observed as per assertion of the writ petitioners that remaining 3/4th would go to them as collaterals of Taj Ali. The operative part of the judgment is read as under:-- "5. The result is that this writ petition is accepted and the orders impugned therein are declared to be without lawful authority, with the result that Mutation No,3 sanctioned on 18-10-1963 terminating her life interest and giving her 1/4th of the land and the remaining 3/4th to the petitioners in their capacity as collaterals of her deceased husband, shall hold the field."
' The application of vendees from respondents Nos.1-3 (C.M.1916/89), for being impleaded as party to the suit petition merits little consideration, they having purchased the disputed land during the pendency of writ petition. Aforesaid application is dismissed."
6. The special leave to appeal sought against the above judgment by the petitioners and others, was refused by this Court, vide judgment dated 7-5-1994, with the following observations:-- "8.Undoubtedly Muhammad Jamil one of the donee/vendors in his statement before the High Court admitted that Taj Ali was the original owner of the land. He died in India. On his death as per custom, the land was mutated in the name of Mst. Jannat Bibi as his widow. The learned High Court Judge was, therefore, right to hold Mst. Jannat Bibi as holder of limited interest in the property. She inherited 1/4th share of the land as widow and the rest of the property devolved upon the collaterals of the last male owner. It is not denied that the vendees purchased the land in dispute, during the pendency of writ petition, the principle of lis pendens was, therefore, correctly applied in the matter."
A careful perusal of the judgments of the High Court and this Court in the matter would show that the adjudication in earlier litigation was confined to the question regarding the status of Mst.
Jannat Bibi as to whether, a limited owner or full owner of the land allotted to her and if A she was a limited owner on the termination of her limited interest, what would be her share in the property under Muhammadan Law but the question that at the time of opening of the succession of Taj Ali on his death, as to who were his other legal heirs in existence who would have been entitled to his succession, was not at all under consideration.
7. The rule of res judicata is based on the consideration that same cause should not be tried for the second time between the same parties and there must be an end to the litigation between the parties. The principle is that since the cause of action in a suit merges in the judgment, therefore, no second suit can be filed on the basis of same cause of action unless it is shown that it was recurring in nature, thus, the essential condition required to be fulfilled to establish the plea of res judicata would be that the matter in issue and the material point in dispute between the parties in the earlier litigation was directly and substantially in issue in the subsequent litigation. This is settled law that if matter in issue in the subsequent litigation was not substantially decided in the earlier litigation, it would not be res judicata actually or constructively because for res judicata, it is essential to show that earlier decision in the matter was based on proper adjudication on the relevant issue either of law or fact or mixed issue of law and fact. The decision on an issue of fact based on evidence and decision on issue of law on the basis of set of facts, directly and substantially by a competent Court, is certainly res judicata and the verdict given by the superior Courts in Constitutional jurisdiction, on a point of law or on a question of fact based on proved facts and admissible evidence would operate as res judicata inter se parties but decision on a disputed question of fact in Constitutional jurisdiction, without any evidence would not operate as res judicata to the adjudication of such question of fact in the subsequent litigation. In nutshell, there can be no cavil to the proposition of law that the adjudication on question of law or fact or mixed question of law and fact on the basis of established set of facts and the determination of such questions in the judgment, would essentially be res judicata if the facts were found to have satisfied the requirement of law but the finding or mere observation on a question of fact without proper adjudication and any evidence would not operate as res judicata. In the light of this rule even in the matter of application of general principle of res judicata at least the condition of final decision on merits of the dispute between the parties must exist.
8. The proposition involved in the present case, was discussed in detail in Pir Bakhsh v. Chairman, Allotment Committee (PLD 1987 SC 145). The ratio of the above judgment is that in certain circumstances, Court shall not try a suit or issue involving a matter no longer open to contest either on a question of law or fact by reason of an earlier decision if the matter in issue in the subsequent suit directly and substantially is the same which was involved in the earlier litigation. The plaint in the subsequent suit can certainly be rejected under Order VII, Rule 11, C.P.C. On the basis of principle of res judicata without framing issues and recording evidence but Order VII, Rule 11, C.P.C.
Contemplates rejection of plaint only on the basis of averments made in the plaint to consider whether there is failure of cause of action or the suit is barred under some provision of law but the plaint cannot be rejected under Order VII, Rule 11, C.P.C. On the basis of pleas raised by the defendant in the written statement in his defence as at this stage, the pleas are only contentions which are not based on the evidence. This is settled law that Order VII, Rule 11, C.P.C. Becomes operative only when the plaint is liable to be rejected on the basis of its contents taken to be true and correct but the Court can also rely upon the documents annexed to the plaint and brought on record with written statement to consider the question of applications of Order VII, Rule 11, C.P.C. In the present case, the applications for rejection of plaints under Order VII, Rule 11, C.P.C. Were moved after filing of the written statements wherein the respondents raised the plea of res judicata in defence and the averments of the plaints would not, prima facie, suggest the application of the provisions of Order VII, Rule 11, C.P.C.
9. There can be no cavil to the legal position that the judgments of the superior Courts in Constitutional jurisdiction on the questions of law or facts have binding force and the parties are not allowed to reopen the settled issues, directly or indirectly but to claim the bar of res judicata , on the basis of a judgment of superior Court rendered in the Constitutional jurisdiction, it is essential to prove that the dispute brought before the Court was previously adjudicated in the proper manner and was conclusively decided in such jurisdiction. The decision on the question of law on the basis of settled principle and a decision on a question of fact on the basis of proved facts and legal evidence, would be res judicata and parties would not be permitted to re-open the settled issues but a decision on a disputed question of fact based on no evidence, would not debar the judicial determination of such question in a subsequent adjudication. The net result of the above discussion is that there can be no departure to the settled law, that the principle of res judicata cannot be pressed into service unless it is established that the matter in issue was earlier adjudicated on merits and conclusively decided.
10. Under the law of Shariah on death of a Muslim his property is distributed amongst his heirs in order of succession and the general rule regulating the succession is that the heir most nearly related to the deceased would take in'preference to one more remotely connected and in case of any dispute regarding the claim of a person in the inheritance as successor of the last male owner, the claimant must prove the existence of his relationship with deceased to establish his right in the succession and the most natural and reliable evidence to prove such relationship in addition to the pedigree table prepared in due process of law, is the evidence of the persons who have the direct knowledge of such relationship between the claimant and deceased owner and in absence of such proof it is not possible to raise a presumption of existence of such relationship. The succession of a Muslim in Shariah is deemed to have opened on his death and the property owned by him would be distributed amongst his heirs in accordance with law of Shariah, therefore, it would be essential to ascertain as to who were those heirs who would have inherited him on opening of his succession and without tracing out the line of succession, the distribution of property amongst the claimants presuming them to be the legal heirs of last male owner, would amount to defeat the purpose of law of succession and also deprive the other legal heirs of the deceased who had the preferential right in the inheritance. This 'Court in the light of section 2 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and section 2A inserted in the said Act by virtue of Muslim Personal Law (Shariat) Application Amendment Act, 1983 held in a number of cases that on the termination of limited interest the inheritance would be deemed to have devolved on the date of death of last male owner on all his legal heirs who were in .Existence at the time of his death and would be deemed to have become joint owner under the law of Shariah. The proposition that even before the termination of limited interest under the statutory law, the succession under Mahomedan Law would be deemed to have opened on the death of last male owner and all his legal heirs in existence at the time of his death would inherit his property in order of succession was discussed in Mst. Fazal Nishan and others v. Ghulam Qadir and others (1992 SCM R 1773), Mst.
Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others (2003 SCM R 362), Sardar v. Mst. Nehmat Bibi and 8 others (1992 SCM R 82) and Muhammad Yousaf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others (2003 SCM R 1535) and it Was consistently held that notwithstanding the customary law, a person who died under the domain of Muslim Law, the succession to his estate subject-matter of limited interest would be deemed to have opened under Mahomedan Law on the dated of his death and all his legal heirs who were in existence at the time of his death would be entitled to inherit him in accordance with the rule of succession in Shariah.
11. The Muslims in the matter of inheritance, are governed strictly in accordance with law of Shariah and the rights of heirs of a deceased in his property, are certainly determined in order of the succession according to which the heirs connected with the deceased by the tie of blood, are divided into three classes namely, sharers, residuaries and distant kindred and the rule of proximity is that a nearer blood relation would inherit in preference to remote and if the claimants are equal in degree, the method of determining their right would be on the basis of line of relation. The collaterals in the order of succession, inherit after sharers and residuaries therefore, there can be no departure to the 'rule of law of inheritance in Islam that in presence of sharers and residuaries, the estate of a Muhammadan would not devolve upon the collaterals, except in a case in which the only surviving sharer is husband or wife and in such a case after allotting the share of spouse, the remaining would go to collaterals. However, according to some of the Muslim jurists, if intestate dies leaving no other legal heir, except a wife or a husband, entire would go to her/him as the case may be, whereas other say that it would go to State. The right of a missing legal heir or one who for the time being is not traceable, would not be destroyed, unless a presumption of his being dead is raised under the law but no such presumption can be raised regarding the non-existence of any other legal heir of the deceased except the claimant at the time of opening of his succession without proper adjudication and decision of the matter on the basis of legal evidence. It is well settled that a person who displaces a natural succession to the property by claiming that except him, there was no other legal heir of deceased, must discharge the burden which lies upon him to prove, firstly that he was connected with the deceased in a manner in which he would have inherited his property along with or to the exclusion of others and secondly, that at the time of opening of his succession there was no other legal heir of the deceased in existence to have preferential right of inheritance in his property. In the present case no such evidence, documentary or oral, was brought on record to enable the High Court to draw a presumption that Abdul Aziz etc. Were collaterals of Taj Ali and except Mst. Jannat Bibi, he had no sharer or residuary at the time of opening of his succession to inherit his property and consequently, the High Court without recording the evidence, could not possibly give a conclusive decision on the complicated and controversial question of facts.
12. The provisions of section 11, C.P.C. Are clear and definite, therefore, subject to conditions contained therein, the Court in which the suit is filed, may proceed with it in certain specified circumstances and mere fact that an issue in the suit, directly or indirectly was connected with the dispute in the earlier litigation would not be sufficient to prevent the subsequent adjudication of such issue. A careful perusal of the judgment of the High Court and this Court under reference, would show that the dispute raised in the suit would relate to the adjudication of the questions firstly "who were the legal heirs of Taj Ali who would have been entitled to inherit his property on the opening of his succession" and secondly "whether Abdul Aziz, etc. Were in fact, his collaterals and if so, after Mst. Jannat Bibi, there was no other legal heir to have preferential right in the succession of Taj Ali" whereas in the earlier litigation, the limited issue before the revenue Courts and High Court was "whether Mst. Jannat Bibi was a limited or a full owner of the land allotted to her, in lieu of the land left by her in India". Perusal of record would show that the Mutation No,3 dated 18-10-1963 showing Abdul Aziz, etc., as collaterals of Taj Ali was attested without ascertaining the correct factual position regarding the succession of Taj Ali which would neither create nor extinguish right in the inheritance and also would not be considered an evidence of the existence of right of inheritance, therefore, the judicial verdict being based on this mutation given by the High Court in the writ petition, would not debar the adjudication and determination of question of succession before the Civil Court.
13. The law of Shariah is supreme law and is not subordinate to any other law or judgment of any Court, including the High Court and this Court, therefore, the decision made by a Court in respect of a matter Concerning the law of Shariah, if is found in conflict or not in consonance with the law of Shariah, there would be no bar on its subsequent adjudication for decision in accordance with the law of Shariah and in such cases, the rule of res judicata or estoppel would not be applicable as these rules do not run against the law of Shariah. The succession of a deceased Muslim, is a matter which concerns law of Shariah and for application of the doctrine of res judicata in a case involving dispute of succession, it would be essential to establish that in the previous litigation, the question regarding the existence of right of claimant in the succession of last male owner, was adjudicated and conclusively decided and it was also determined that except the claimant,, there was no other legal heirs of the deceased who would have inherited his property as sharer or residuary at the time of opening of his succession. We having examined the matter in detail, have not been able to find out any material on record to show that the existence of relationship between Abdul Aziz etc. And Taj Ali was established on the basis of legal evidence at any stage of the proceedings in the first round of litigation or that who else except Mst. Janat Bibi would be entitled to inherit his property on the opening of his succession. It appears that the High Court, without going into the question of succession of Taj Ali and ascertaining the correctness of the claim of Abdul Aziz etc. By means of any evidence, held them entitled to 3/4th share in the property of Taj Ali, by raising a presumption that they were collaterals of Taj Ali and he had no other sharer or residuary except Mst. Jannat Bibi to inherit his property. This Court without going into the controversial question of facts, concentrated only on the legal question relating to the right of Mst. Jannat Bibi as widow of Taj Ali and by maintaining the judgment of the High Court, dismissed the petition for leave to appeal, with the observations that Mst. Jannat Bibi being limited owner, would get 1/4th N share and remaining would go to the collaterals of last owner. The precise question regarding the existence of relationship inter se Taj Ali and Abdul. Aziz etc. Or that who were legal heirs of Taj Ali who would have been entitled to inherit his property on his death was neither discussed nor decided either by the High Court or by this Court.
14. There can be no departure to the principle of law that on the basis of rule of lis pendens, the subsequent vendee may not be able to claim the protection of section 41 of Transfer of Property Act, 1882, but in the present case, the real question for consideration would be whether without proper determination of dispute regarding the legal status of Abdul Aziz etc. As successors of Taj Ali, the petitioners who claimed to have fulfilled the essential conditions for the purpose of benefit of section 41 of the Transfer of Property Act, 1882, mentioned herein 0 below could be noa-suited.--
(a) The transfer was made by ostensible owner;
(b) The transfer was made by express or implicit consent of real owner; and
(c) The transfer was with consideration and it was acted in good faith taking reasonable care to ascertain that transferor had the power to transfer.
' In absence of the proof either in the form of evidence oral or documentary or admission of vendee that he had the knowledge of defective title of vendor and the pendency of litigation before the sale,. It would be difficult to hold that vendee had not taken reasonable care required to be taken by the purchaser before sale and consequently, the question of fact regarding the bona fide of the purchaser could not be effectively decided without recording evidence and providing him proper opportunity of hearing. The reliance may be placed on Muhammad Nawaz Khan v. Muhammad Khan (2002 SCM R 2003).
15.. The petitioners being the subsequent vendees, on coming to know about the pendency of writ petition, moved an application to become party in the writ petition but this application was not entertained and consequently, the question relating to their bona fide and the knowledge about the litigation before the sale was not properly ascertained. Mst. Jannat Bibi made gift of the land in 1966 and revenue Courts finally decided the dispute in 1970 wherein she was held full owner of the land, whereas the validity of gift was challenged by Abdul Aziz etc. By filing of the writ petition in 1972 after her death, therefore at the time when gift was made, she had valid title and the claim of petitioners was that they having purchased the land for valuable consideration from the donees who were ostensible owners without any knowledge of defect in their title or pendency of the writ petition were bona fide purchasers. Thus in these circumstances, the question vis-a-vis knowledge of the petitioners about the pendency of writ petition at the time of, sale, could not be adversely presumed without providing them proper opportunity of proving their bona fide but we find that the petitioners were neither permitted to join the proceedings in the writ petition nor have been allowed to prove their bona fide in the suit. Be that as it may, this is not deniable that the controversial question of fact involved in the suit relating to the genuineness of the claim of Abdul Aziz etc. Of inheritance in the property of Taj Ali was not as such adjudicated and decided either by the revenue Counts 'or by the High Court and this Court in the first round of litigation, therefore, the dispute in respect of succession of Taj Ali would essentially need determination on merits in the light of rule of succession under Mahomedan Law and the rejection of the, plaint on the basis of doctrine of res judicata, would not be proper and legal without decision of the following questions:- -
(a) Whether it was ascertained in the writ petition that who were the R legal heirs of Taj Ali, who had to inherit his properties on the opening of his succession on his death in India under the law of Shariah?
(b) What was the evidence on the basis of which Abdul Aziz etc. Were shown as successors of Taj Ali, in Mutation No,3 dated 18-10-1963 and the High Court in Writ Petition No,2 of 1972 held them collaterals of Taj Ali?
(c) Whether without proof of the existence of relationship of a claimant with the deceased owner, a legitimate presumption can be raised vis-a-vis his right in the succession and without proving the non-existence of nearer blood relation, the remote can inherit with the exclusion of all other legal heirs?
(d) Whether in absence of any other legal heir, the widow of deceased owner, after inheriting as sharer, would not be entitled to the remaining share as residuary ?
16. The net result of the above discussion is that the decision of the High Court and this Court that on termination of limited interest, Mst. Jannat Bibi, widow of Taj Ali would get 1/4th in the property owned by him and remaining would be distributed amongst his other legal heirs in accordance with the rule of succession of Mahomedan Law could not be re-opened in the suits but the question as to who were the legal heirs of Taj Ali except Mst. Jannat Bibi who would have been entitled to inherit his property on the opening of his succession and whether the claim of Abdul Aziz, etc., to be the collaterals of Taj Ali was factually correct and if not Mst. Jannat Bibi in absence of any other legal heir of Taj Ali after inheriting her share as sharer would not be entitled to get the remaining as residuary, having been not adjudicated and decided would be open for decision in accordance with law. Consequently, the rejection of plaint under Order VII, Rule 11, C.P.C., would not be proper and legal.
17. In the light of foregoing reasons, we convert these petitions into appeals, set aside the impugned judgment and, remand the case to the trial Court for decision of all the issues involved in the suits on merits, in accordance with law. There shall be no order as to costs.
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