' MUHAMMAD RAZA KHAN, J.-This judgment will also dispose of the connected Civil Revision No, 56 of 2002 as both the revision petitions are the offshoot of a single suit relating to the inheritance of one Akbar Khan who died in 1925.
2. A civil suit-for possession Was filed in 1982 by the successor's of one Sanai and the successors of one Fateh Khan claiming their right to the extent of l/6th in the inheritance of Akbar Khan. This suit was dismissed by the original Court on 26-3-1985. However, the appeal against the said decision was accepted vide judgment dated 21-7-1992 and the matter was remanded to the learned Civil Court. The plaintiffs were allowed in the said remand order to amend their plaint. Accordingly the amended plaint was submitted and due to transposition of the children of Fateh Khan from the panel of the plaintiffs to the panel of defendants, the plaintiffs and their sister (pro forma defendant No, 12) merely sought a declaration with perpetual injunction for l/12th share in the inheritance of the said Akbar Khan. In the alternative the prayer for possession was also made. This suit was processed and vide a judgment and decree dated 4-1-1996 of the learned Senior Civil Judge, Tank, the prayer of the plaintiffs was accepted. Two appeals were filed against the said decision; one by Zabat Khan etc. (the successors of Badshah Khan) and the other by Mst. Shah Bibi etc. (The successors of Sikandar). The learned appellate Court vide judgment and decree dated 18-2-2002 modified the judgment and decree of the trial Court and the appeal filed by Zabat Khan and others was dismissed whereas the appeal of Mst. Shah Bibi etc. Was allowed. This judgment of the appellate Court has been challenged through these two civil revisions; one filed by Asal Khan etc, (the successors of Badshah Khan) and the other by Mst. Said Bibi etc. (the successors of Mst.
Meera)
3. Arguments heard and record perused.
4. Before discussing the pro and contra arguments advanced on behalf of the parties, it will be appropriate if the facts relating to the dispute are described for convenient appreciation of the point in issue.
5. One Akbar Khan died in the year 1925. He was issueless. He had two sisters Mst. Meera and Mst.
Rabea as her sharers. Mst. Rabea was married prior to the death of the said Akbar Khan whereas Mst. Meera was unmarried by then. In the year 1925, under the customary law, the property of the issueless Akbar Khan devolved on his sole unmarried sister Mst. Meera. The said Akbar Khan did not have any descendents or ascendants alive at the time of his death. Even there was no descendants of his father or his grandfather. His father Abizar had a real uncle namely Nawaz Khan who had two sons Bahadur and Adam. Therefore, Bahadur and Adam were the cousins of Abizar, the father of Akbar Khan. Bahadur had three sons Ghulam Hussain alias Sanai, Sikandar and Fateh Khan. Adam had only one son namely Badshah Khan. The plaintiffs and the pro forma defendant No, 12 are the children of Ghulam Hussain alias Sanai. Mst. Meera was the second wife of the said Sanai and the defendants Nos.4 and 5 are the daughters of Mst. Meera from the said Sanai. The defendants Nos. 1 to 3 are the legal heirs of Sikandar and the defendants Nos.6 to 8 are the children of Badshah Khan whereas defendants Nos.9 to 11 are the sons of Fateh Khan. It is also undisputed that Mst. Meera married Sanai somewhere in 1933 (i.e, within eight years of the death of Akbar Khan), Mst. Rabea had married Sikandar admittedly prior to the death of Akbar Khan. Mst. Meera died in the year 1982. To this extent, there is no dispute between the parties.
A
6. The disputed points are that Mst. Meera had gifted half of her property to her sister Mst. Rabea in 1939 vide Mutation No, 1223, dated 30-7-1939. There were four other Mutations Nos. 10, 11, 12 and 13 attested in the year 1972 whereby there was exchange and sale of land between some of the parties. After the death of Mst. Meera in the year 1982, a civil suit was filed as stated earlier. In the amended plaint, it was alleged that Mst. Meera being a limited estate owner died in the year 1982 and then the limited estate terminated and the entire property reverted to the legal heirs entitled to the inheritance of the said Akbar Khan deceased and it was also alleged that any gift, exchange or sale of property by the said Mst. Meera was void because she could not transfer the property being the beneficiary till her life-time only. The learned trial Court accepted the plea of the plaintiffs and passed a decree to the extent of l/12th share as prayed for in the plaint by holding that being a limited estate owner she could not alienate the property and all the mutations were, therefore, void.
While adjudicating upon the appeals, the learned Appellate Court took exception to the findings of the learned trial Court by holding that Mst. Meera was entitled to her shari .Share and she could certainly transfer to the extent of her share by gift etc. And therefore, the gift mutation of 1939 was validated by the learned appellate Court whereby the legal heirs of Mst. Rabea were held entitled to the share of Mst. Rabea as well as the share of Mst. Meera transferred through gift mutations.
Thus, the legal heirs of Mst. Meera were deprived and the mutations of exchange between Mst.
Meera and Badshah Khan were also adversely affected. Both these parties filed these revision petitions.
7. Before proceeding further to discuss the merits of the petitions, it will be appropriate to refer to the duration of limited estate of Mst. Meera. The limited ownership continues with the female legal heir of the deceased till her remarriage (in case of widow) or marriage (in case of sister) or death of the limited owner. Mst. Rabea (the sister of Akbar Khan) was admittedly married prior to the death of Akbar Khan and therefore, she was not entitled to limited estate. Mst. Meera was unmarried and she got the entire property in the year 1925 through Mutation No,658, dated 21-3- 1925. As stated hereinbefore, Mst. Meera entered into marriage somewhere in 1933 and therefore, the limited estate terminated on the date of marriage. The parties as well as both the Courts have omitted to notice this fact that the limited estate did not continue till the death of Mst. Meera in 1982, rather it terminated in 1933 at the time of her marriage. Therefore, the property had to revert in 1933 to those legal heirs of Akbar Khan who were alive in 1925. There is no evidence about the living legal heirs but since the allegations contained in the plaint have neither been rebutted by the pleadings of the contesting parties nor there is any documentary proof to the contrary, therefore, it will have to be presumed that in 1925 he had two sisters in the column of sharers under the Muslim Law of inheritance. Both the sisters were, therefore, entitled to l/3rd share each. The remaining l/3rd had to go to the residuaries. Since there was no descendents or ascendants as residuary nor even there were the descendents of the father or the father of the father, therefore, the nearest relatives admitted to be alive in 1925 were the sons of the paternal uncle of the father of Akbar Khan and they being four in number, were entitled to share per capita. Thus, Mst. Meera and Mst. Rabea were entitled to inheritance of 4/12th share each whereas Sanai, Sikandar, Fateh Khan and Badshah Khan were entitled to 1/12th share each.
8. So far as the suit of the plaintiffs is concerned, they being the children of Ghulam Husain alias Sanai are definitely entitled to 1/12th share despite the misconception in the plaint, deficiency in the evidence and misappreciation by. The Courts. They shall be entitled to 1/12th share in any case because they being collaterals were also co-owners in possession in all the property joint between the same family. Therefore, so far as the suit is concerned, the decree can be upheld without any further observation or discussion. The subsequent transfers through gifts, exchanges or sales were not he subject-matter of the suit as originally drafted.
9. However, in the interest of justice, it will be fair to discuss the issue cropped up during this prolonged litigation. Mst. Meera could certainly not alienate by gift or exchange any property as a limited owner but she could certainly transfer the share that could devolve on her as a legal heir.
As stated hereinabove, Mst. Meera was definitely entitled to 4/12 shares as her legal right of inheritance not only with effect from 1933 (i.e, the date of termination of her limited ownership) but in fact that entitlement was there by operation of law with effect from 1925 (i.e, the time of death of Akbar Khan). Therefore, she could alienate the property to that extent. The first alienation took place in 1939 where she gifted one half of her share through Mutation No,1223 attested on 30-7- 1939 to the sister Mst. Rabea. What share could be validly transferred through the said mutation was a moot point. It was argued at the bar that when she transferred half of the entire property to Mst. Rabea, it meant that she transferred her entire entitlement and was left with nothing. This does not appear to be the correct interpretation of the intention of the transfer. Had she transferred the entire property, her entire entitlement would have been deemed to have been transferred.
However, she transferred half of her property which indicated that she intended to part with half of her entitlement. Thus, Mst. Meera gifted half of her entitlement i.e, 2/12 share to Mst. Rabea.
Therefore, Mst. Meera shall be left with 2/12 shares and Mst. Rabea shall be entitled to 6/12 shares and the other four brothers shall be entitled to 1/12 share each. Any further transaction between Mst. Meera and petitioners Asal Khan etc. Shall be limited to the extent of her 2/12 share and the daughters of Mst. Meera shall be entitled to the balance left, if any, after exchange and sale of certain area by Mst. Meera through Mutations Nos. 10, 11, 12 and 13. Her daughters shall also be entitled to whatever was received by her in exchange stated in the said mutations.
10. Thus with these observations the decree in favour of the plaintiffs to the extent of 1/12 share out of he inheritance of deceased Akbar Khan as per judgments of both the Courts below is upheld whereas the shares of Mst. Meera, Mst. Rabea and Asal Khan etc. Shall be modified accordingly.
The revision petitions are, therefore, partially accepted to the extent stated above.