' SYED JAMSHED ALI, J.---The concurrent judgments and decrees of the learned two Courts dismissing the suit of the petitioner have been assailed in this revision petition. The facts of the case are noted hereunder.
2. Ahmad was the occupancy tenant of the land in dispute. On his death only his one son namely Sadiq alias Saddo (predecessor-in-interest of the respondents) and two widows namely Mst.
Fatima and Mst. Ayesha of Rajada, another son of Ahmad were alive. Mutation No,124 was attested on 13-11-1944 (Exh.P.1) whereby the estate of Ahmad was mutated in favour of Sadiq, his son, to the extent of one half, while the remaining half was transferred to the two widows of Rajada. Vide Mutation No,51 attested on 29-4-1964, (Exh.P.2), the estate of Mst. Fatima was terminated on her remarriage and her share transferred to Sadiq. The limited estate of Mst. Ayesha was also terminated, she was allowed to retain 1/16 share in the estate of Ahmed and rest was mutated in favour of Sadiq vide Mutation No,52, (Exh.P3), attested on 29-4-1964. The case of the petitioner was that she was the daughter of Rajada and on termination of the limited estate of Mst. Fatima, her mother, she was entitled to inherit her one half share from the estate of Rajada her father but she was deprived of the said share. Her relationship with Rajada is not in dispute.
2. Defendants Nos.1, 2 and 6 confessed judgment while it was contested by defendants Nos.3 to 5 and 7 to 16. They raised a number of objections including limitation and maintainability of the suit in the form it was filed. It was averred that Mst. Aysha, widow of Rajada and Sadiq were granted proprietary rights and the said order was not challenged. It was vehemently denied that Mst.
Fatima, the mother of the petitioner, qualified to be legal heirs of Ahmad deceased.
3. Necessary issues were framed and the suit was tried. The learned trial Court as also the learned first appellate Court found that the petitioner-plaintiff, pre-deceased daughter of Rajada, was not entitled to inherit any share from the estate of Ahmad the last male holder. Accordingly, the suit and the appeal filed by the petitioner-plaintiff were dismissed respectively on 26-2-1991 and 7-6- 1994.
4. The fate of the case turns on the interpretation of section 5 of the West Pakistan Muslim Personal Law (Shariat Application), Act, (No,V), 1962. According to the reading of the said provision of the learned counsel for the petitioner, it will be presumed that the last male holder died on the date of termination of the life estate of Mst. Fatima. He maintains that in 1961, Muslim Family Laws Ordinance had already been promulgated and as the daughter of Rajada, the petitioner was entitled to her share in the estate of Ahmed. In support of his submission reliance is being placed on Sardar v. Mst. Nehmat Bi and 8 others (1992 SCM R 82) and Nazir Ahmad and others v. Abdullah and others (1997 SCM R 281).
5. On the other hand, the learned counsel for the respondents submits that mutations in respect of termination of life estates of Mst. Fatima and Aysha, were attested on 29-4-1964 while the suit was filed on 24-2-1988 which was clearly barred by time. It is next submitted that proprietary rights in the land in dispute were conferred on Mst. Aysha widow of Rajada and Sadiq and the said order passed by the Revenue Authorities was not challenged. He next submits that according to the customs prevailing in 1944, at the time of death of Ahmed, a granddaughter was not entitled to inherit the estate of her grandfather.
6. The submissions made by the learned counsel for the parties have been considered. The basis of the judgment of the learned two Courts is that as daughter of a pre-deceased son of Ahmed, the petitioner was not entitled to inherit the estate with a finding that both Ahmed and Rajada, had died before promulgation of Act V of 1962. This approach was contrary to rule laid down by the Honourable Supreme Court in the case of Sardar (supra). In the said case, Ilam Din, the last male holder had died in 1947 while his daughter Mst. Fatima Bi had died in 1942. On promulgation of Act No,V of 1962, the life estate of Mst. Rehmat widow of Ilam Din, was terminated and the estate of Ilam Din was mutated, inter alia, in favour of the children of the Mst. Fatima Bi, pre-deceased daughter.
This course of devolution was challenged by one Sardar Khan, son of Ilam Din's brother. He was successful upto the District Court in excluding the children of the pre-deceased daughter of Ilam Din from inheritance. They, however, succeeded before this Court and the judgment was maintained by the Honourable Supreme Court with the following observations:-- "After hearing the learned counsel for the parties and perusing the precedents cited by them, we are of the view that while enforcing section 5 of the Muslim Personal Law (Shariat) Application Act, 1962 for the purpose of devolution of the estate of the last full owner we will have to apply Muslim Personal Law (Shariat) wherein is included the Muslim Family Laws Ordinance, 1961. The contention of the learned counsel for the respondents in this behalf is supported by the judgment of the Supreme Court (Shariat Bench) in Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120 that Muslim Personal Law (Shariat) is a comprehensive term to cover all laws relating to personal matters of Muslims. Section 4 of the Muslim Family Laws Ordinance, 1961, allows inheritance to the children of the predeceased son or daughter to the extent that the son or daughter would have got. Section 3 of the latter Ordinance 1961 also provides that "The provisions of this Ordinance shall have effect notwithstanding 'any law, custom or usage". Therefore, it appears to us that the learned Judge in the High Court was right in holding that by providing for devolution of the property under section 5 of the Muslim Personal Law (Shariat) Application Act, 1962 on termination of the life estate, the children of predeceased daughter of the last full owner will inherit the share which their mother would have got as if she were alive at the time of the opening of the succession, that is to say, on the demise of her father Ilam Din in 1947."
' The rule laid down in the said case fully covers the controversy and was reiterated in the case of Nazir Ahmed (supra).
7. The contentions of the learned counsel for the respondents have been considered. Since the petitioner was a co-sharer, the law of Limitation was not applicable, to assert such a claim as held by the Honourable Supreme Court in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). As far as the assertion that occupancy tenancy was converted into full ownership in favour of Mst. Aysha and Sadiq is concerned, it had no effect whatsoever on the course of devolution because occupancy tenancy was heritable as per the definition of "tenant" given in section 4(7) of the Punjab Tenancy Act. As far as applicability of the custom in 1944 is concerned, it has no bearing on the controversy in view of the provision of Punjab Act (V of 1962) and the rule laid down by the honourable Supreme Court in the case of Sardar (supra).
8. The other question which attracted my attention is as to the share to which Mst. Khatoon was entitled to. Had Rajadah not been predeceased, he would have been entitled to 1/2 share in the estate of Ahmed and as daughter of said Rajadah, the petitioner was entitled to 1/2 share out of the 1/2 share of Rajadah. In this conclusion, I am fortified by the judgment of Honourable Supreme Court in Mst. Zainab v. Kamal Khan alias Kamla (PLD 1990 SC 1051).
9. For what has been stated above, this revision petition is allowed, the impugned judgments and decrees of the learned two Courts dismissing the suit of the petitioner, are set aside and her suit is decreed to the extent of 1/4th share in the estate of Ahmed. No order as to costs.