The facts briefly stated are that on the death of Sattar Muhammad in the year 1945 the estate left by him (fully described in the head note of the plaint) went to his widow namely Mst. Sairan Bibi under custom for maintenance. The petitioners who are nephews of said Sattar Muhammad (heirs of his brother Shah Muhammad) filed a suit on 7.12.1989 claiming that according to custom under which the estate left by their predecessor Sattar Muhammad was mutated vide Mutation No, 53 dated 3.1.1945 in favour of Mst. Sairan Bibi for her maintenance as a limited owner, the said limited estate had to terminate either on her remarriage or death, whichever was earlier and that since Mst. Sarian Bibi had contracted second marriage before the enforcement of Muslim Personal Law (Shariat) Application Act, 1948, hence she was not entitled to retain the said property as a limited owner and the property automatically stood transferred to the petitioners being the legal heirs of last male owner Sattar Muhammad and per custom in vogue at the relevant time the widow of last male owner was deprived to inherit even her legal share under Muslim Law. The suit was contested by Mst. Sairan Bibi through written statement, wherein she besides denying petitioners' claim that she contracted second marriage before enforcement of Punjab Muslim (Shariat) Application Act, 1948, specifically pleaded that she had contracted second marriage in the year 1950 and that the suit was malafide having been filed just to disinherit her from the estate left by her deceased husband Sattar Muhammad and that she being his widow was entitled to inherit the estate left by him to the extent of 1/2 share and she had been collecting her share of produce from the petitioners till the institution of the suit. The learned trial Court framed the following issues and put the parties at trial:-- ISSUES:--
1. Whether the plaintiffs are owners in possession of the suit land and entries in the jamabandi are against facts, law and liable to be cancelled? OPP.
2. Whether the plaintiffs have got no cause of action and locus standi to institute this suit? OPD.
3. Whether the suit is within time? OPP.
4. Relief.
2. The petitioners produced Muhammad Latif PW-1, Ghulam Sarwar PW-3, Muhammad Din PW-4 whereas Muhammad Khaliq one of the petitioners appeared as PW-2 and by tendering documents Ex. P-1 to Ex P-5, they closed their evidence. In rebuttal, Mst. Sairan Bibi appeared as PW-1, produced Muhammad Sattar DW-2, Muhammad Latif DW-3 and closed her case by tendering documents Ex.
D-1 and 2.
3. On conclusion of the trial, the learned trial Court vide judgment and decree dated 29.4.1991 decreed petitioners' suit to the extent of 3/4 share of the suit property only and dismissed the same to the extent of remaining (1/4) share holding that Mst. Sairan Bibi was entitled to inherit the estate of her deceased husband to the said extent according to Muslim Law of inheritance. The, petitioners filed appeal against the above said judgment and decree of the learned trial Court and the learned Appellate Court vide judgment dated 16.4.1996 remanded the case to the trial Court after recasting Issue No, 1 and framing an additional Issue as Issue No, 1-A to the following effect:--
1. Whether Mst. Sairan Bibi was limited owner of the estate left by Sattar Muhammad? OPP.
1-A. Whether Mst. Sairan Bibi defendant had contracted second marriage with Muhammad Ali on 15.3.1948, if so, its effect? OPD.
On remand, the parties before the learned trial Court opted not to lead any further evidence on the above mentioned recast as well as additional issue and addressed arguments. Resultantly, the learned trial Court vide judgment and decree dated 13.6.1998 decreed the suit of the petitioners by holding that Mst. Sairan Bibi was a limited owner and that by contracting second marriage in 1947 she had extinguished her right and the petitioners being collaterals of Sattar deceased were owners of the entire property to the exclusion of Mst. Sairan Bibi. Mst. Sairan feeling aggrieved of the above mentioned judgment and decree of the learned trial Court filed an appeal which was allowed by the learned District Judge on 14.6.2000, whereby the petitioners were declared as owners of the suit property being heirs of Sattar Muhammad last male owner to the extent of 3/4 share but dismissed the same to the extent of remaining 1/4 share declaring Mst. Sarian Bibi as owner of the said property being entitled to inherit the estate of Sattar her deceased husband and last male owner of the said property under Muslim Law, hence this civil revision.
4. Mr. Abdul Wahid Chaudhry, learned counsel for the petitioners has argued that the learned Appellate Court acted illegally and with material irregularity by reversing the findings of the learned trial Court and accepting the appeal of the respondents declaring Mst. Sairan as the owner of suit property to the extent of 1/4th share as widow of Sattar Muhammad, the last male whereas, it is established from the record that Mst. Sarian contracted second marriage with one Muhammad Ali some time in the year 1947, hence her right to retain the said property left by her deceased husband Sattar Muhammad and to occupy the same as a limited owner, automatically stood terminated on her remarriage and per custom prevalent in the family of deceased Sattar Muhammad, the last male owner, she could not even lay her claim to the extent of 1/4th share over the suit property as widow of the deceased.
5. On the other hand, Mr. Zafar Iqbal, learned counsel representing the respondents has argued that neither the allegation of the petitioner that Mst. Sairan contracted second marriage before the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948, is established nor there is any evidence on the record to establish the existence of any valid custom in the family of deceased Sattar Muhammad, the last male owner, disentitling a widow to claim her legal share under the Muslim Law, after termination of the limited estate. By placing reliance on the case of "Muhammad Saleem Ullah and others versus Additional District Judge, Gujranwala and others"
(PLD 2005 SC 511), learned counsel submits that after incorporation of Section 2-A in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, custom was no more the rule of succession and property left by a Muslim deceased shall be deemed to have devolved under Islamic Law on the date of his death and all his legal heirs, who were in existence at the time of his death, would be entitled to inherit his property under the law of Shariah. Further submits that even the present Civil Revision was not maintainable after the incorporation of Section 2-A, referred to above and also in view of the law declared by the Hon'ble Supreme Court of Pakistan in the case "Abdul Ghafoor and others versus Muhammad Shafi and others" (PLD 1985 Supreme Court 407). The learned counsel has therefore, concluded his arguments by contending that findings of the learned Appellate Court do not suffer from any legal or material irregularity or any jurisdictional defect and the suit filed by the petitioner being malafide with the object of depriving the widow of her legal share in the estate left by her deceased husband, has rightly been dismissed by the learned Appellate Court to the extent of widow's share.
6. I have considered the arguments of learned counsel for the parties, scanned the available evidence and thrashed the relevant case law.
7. The ultimate analysis of above arguments and appraisal of evidence, leads met to determine the following three important points, in this Civil Revision:--
(i) Whether Mst. Sairan was holding/possessing the suit land as a limited owner under custom and contracted second marriage, if so when?
(ii) Whether there was any custom in vogure in the family of Sattar Muhammad deceased, the last male owner of the suit land, depriving the widow to her normal right of inheritance from the estate of the deceased in case of her remarriage or death, before the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948? And
(III) Whether the present Civil Revision is maintainable after incorporation of Section 2-A in the Punjab Muslim Personal Law (Shariat) Application Act, 1962?
8. So far as the first limb of Point No, 1 is concerned, there is no dispute about the status of Mst.
Sairan that on the death of her husband namely Sattar Muhammad, the last male owner, his property stood automatically transferred to her under custom as a limited owner for her maintenance. There is also no dispute between the parties that Mst. Sairan contracted second marriage after the death of said Sattar Muhammad. However, the real controversy between the parties is as to when she contracted second marriage, whether before or after the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948. According to the petitioners she contracted second marriage some times in 1947, hence she was not entitled to claim any right of inheritance in the estate of her deceased husband under customs, whereas, the contention of respondent is that she contracted marriage in 1950 i.e. after the enforcement of above Act and was thus entitled to inherit her normal 1/4th share under the Muslim Law. Although, the findings of two Courts below on the point of time of second marriage of Mst. Sairan, are at variance yet the conclusions arrived at by the learned Appellate Court are more natural and based on proper appreciation of evidence. There is another important aspect of the case also i.e.. Abdul Khaliq, etc. the present petitioners filed an appeal against mutation in question i.e. Mutation No, 53 dated 3.1.1945 before the Assistant Commissioner/Collector, Toba Tek Singh and plea taken in the said appeal was that Sattar Muhammad deceased had divorced Mst. Sairan Bibi respondent in his life time. Copy of memo of said appeal is Ex. D-1. But, in the instant suit, a different plea has been taken with the object of depriving the respondent of her right of inheritance. I am, therefore, satisfied that while holding that Mst. Sairan contracted second marriage with Muhammad Ali in the year 1950, the learned Appellate Court committed no illegality or irregularity and the findings of the learned Appellate Court on this score are sustained.
9. Since, it is established that Mst. Sairan contracted second marriage in the year 1950 i.e. after the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948, hence, she was legally entitled to inherit her normal 1/4th share under the Muslim Law from the estate left by her deceased husband Sattar Muhammad, on the termination of limited estate. Reliance is placed on "Muhammad Saleem Ullah and others versus Additional District Judge, Gujranwala and others"
(PLD 2005 SC 511). Even otherwise, the petitioners have brought no evidence on the record showing existence of any valid custom in the family of deceased Sattar Muhammad depriving widow of her normal share under the Muslim Law, in case of her remarriage or death and in the absence of any such evidence regarding existence of any such valid custom, the presumption would be that the family of Sattar Muhammad deceased was governed by Muslim Law on the termination of limited estate.
10. Finally, it is established that after the termination of limited estate, Mst. Sairan respondent was entitled .to inherit 1/4th normal share under the Muslim Law and the property was mutated in her favour on the death of her deceased husband Sattar Muhammad for the purposes of maintenance only, hence the findings of the learned Appellate Court to this effect are also maintained being in consonance with the provisions of Section 2-A (added by Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983) in the West Pakistan Muslim. Personal Law (Shariat)
Application Act, 1962 and this Civil Revision is therefore, not maintainable in the light of law declared by the Hon'ble Supreme Court of Pakistan in the case "Abdul Ghafoor and others versus Muhammad Shafi and others" (PLD 1985 Supreme Court 407).
11.The net result of above discussion is that this Civil Revision has no force and the same is accordingly dismissed, leaving the parties to bear their own costs.