' SARDAR MUHAMMAD RAZA KHAN, J.---. Ashiq Hussain and eight others have filed this appeal by leave of Court against the judgment, dated 28-2-2000 of a learned Judge in Chambers of Lahore High Court, Multan Bench, whereby, on acceptance of the revision petition filed by Kabir respondent, the judgment, dated 14-3-1989 of the learned District Judge, Khanewal was set aside and that dated 14-6-1988 of learned Civil Judge, Khanewal was restored, maintaining the decree to the effect that Kabir, as prayed for, was entitled to half share in the property of Sardara duly inherited from him as well as his daughter Mst. Daulan.
2. The following pedigree-table would help comprehend the background:-- Jam Machhi Noora Hamda (issueless)
Gehna (issueless)Lehna jahanan sardara Nadra (issueless)Bahadra Daulan (issueless died on 1978)Budhai Kabir Mst.
NehmatDad Ashiq Died in 1984 Amiran Gulab Bibi Ghulam AbbasMuzher abbasMaryam Miran Manzooran 3 The property measuring 200 Kanals, 2 Marlas along with Ihata No,2 measuring 1 Marla, 4 Sarsahis situated in Chak No,5/8AR, Tehsil Mian Channu, District Khanewal, admittedly was allotted to Sardara son of Noora under the scheme of the Colonization of Government Lands (Punjab) Act, 1912. Upon his death, the entire property devolved upon his two daughters Mst. Budhai and Mst.
Daulan, under the orders of the Collector on the basis whereof Mutation No,47 was attested on 6-3- 1942. According to the aforementioned admitted pedigree-table Sardara was survived by two sets of successors. One set flowed from the daughters while the other set included the sons of the first cousins of Sardara. Out of such collaterals only Kabir is alive being respondent while the first set aforesaid are the appellants who have been deprived of 1/2 share in the property of Sardara having been decreed by the trial Court and upheld by the High Court.
4. It may be stated at the very outset that leave to appeal involving the question of limitation was granted by this Court on the strength of Mst. Ajaib Sultana and another v. Gohar-ur-Rehman and 5 others 1997 SCM R 1412. A perusal of aforesaid authority revealed that it too was a leave granting order in Civil Petition No,1377-L of 1993. The two points on which the leave was granted did not directly relate to the question of limitation. However, the aforesaid petition was converted into Civil Appeal No,255 of 1995 which was subsequently decided no merits and the appeal of Mst. Ajaib Sultana denying the claims of the collaterals was dismissed on 8-1-2001. Limitation, even if involved, was never considered to be a hurdle.
5. Coming to the merits of the present case, the disputed one being a colony land and proviso to section 14 being not applicable, the succession to the tenancy was to devolve in accordance with section 20 of the Colonization of Government Lands (Punjab) Act, 1912, and it so devolved upon his two daughters Mst. Budhai and Mst. Daulan. Both the daughters aforesaid vide Mutation No,12 of 10- 8-1965 transferred the entire property in favor of Ashiq Hussain and Dad, the sons of Mst. Budhai.
One may recall that Mst. Daulan had died issueless in the year 1978. Dad son of Budhai having died in 1984, his legal heirs are before us as appellants. Kabir, while claiming his shari share in the property of Sardara and Mst. Daulan has also challenged the aforesaid transfer vide Mutation No,12 of 10-8-1965.
6. The devolution aforesaid under section 20 as well as 30-A of the Colonization of Government Lands Act, 1912 (inserted by Punjab Act, VI of 1944), from the plain reading of the sections, appears to be a devolution under Customary Law and the daughters of Sardara would therefore, be deemed to have held the property as limited owners.
7. This Court in Mst. Began v. Mst. Bai 1983 SCM R 80 has elaborately discussed the factum of devolution of inheritance under sections 20 and 30-A of Colonization of Government Lands (Punjab) Act, 1912 and the effect thereon of sections 2, 3 and 5 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. It was held that the rules of succession contained in sections 20 and 30-A of the Act of 1912 are mainly derived from the rules of customary succession. That such female owners would always be deeined to be limited owners and on termination of the limited estate, the legal heirs of the last full owner would inherit the property in accordance with Muslim Personal Law, including the limited owner who will also inherit her shari share in accordance therewith.
8. In the instant case, the limited estates stood finally terminated by section 3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and from the year 1962 onwards all the legal heirs of Sardara would become owners in accordance with their shari share. It is an admitted fact that Sardara having no male issue was survived by two daughters who would inherit 2/3rd share collectively while 1/3rd share would go to the collaterals (cousin's son of Sardara) out of whom only Kabir is alive, inheriting the share of his real uncle Nadra having died issueless. In the given circumstances the present appellants would be entitled only 2/3rd share and the respondent Kabir to 1/3rd share in the property left by Sardara.
9. Kabir had claimed 1/2 share because apart from his 1/3rd he also claims entitlement through inheritance to 1/6th share in the property of Mst. Daulan. Mst. Daulan is otherwise entitled to 2/6th share being half of 2/3rd of the two daughters. This half share in the property of Sardara was decreed by the trial Court and maintained by the High Court. We have given our considered thought to the matter and are of the firm view that 1/6 share of Mst. Dalan was wrongly allocated to Kabir respondent, for the strong reason, that Mst. Daulan having died in the year 1978, she had transferred her entire entitlement in favor of the sons of Mst. Budhai vide Mutation No,12 attested on 10-8-1965. Kabir cannot, therefore, inherit anything from Mst. Daulan. In nutshell, Kabir is entitled only to 1/3rd share in the property of Sardara.
10. Consequent upon what has been discussed above, the appeal is partially accepted and the judgment and decree granted by the trial Court and upheld by the learned High Court is modified to the effect that the appellants are entitled to 2/3rd share, while the respondent Kabir is entitled to 1/3rd share, in the property of Sardara. The decree be deemed to be amended accordingly.