' MUHAMMAD AKHTAR SHABBIR, J.---This judgment will dispose of R.S.As. Nos. 441 of 1975 and 549 of 1975, arising out of the same suit and impugned judgment.
2. Briefly stated the facts of the case are to the effect that agricultural land measuring 178 kanals 6 marlas situated in the revenue estate of village Ahmadal, Tehsil Pindigheb, Distt. Rawalpindi, was originally belonged to Muhammad Afzal, Rukan Din and Gul Muhammad who died before the partition of Sub-continent and under the customary law (then prevailing), this land had been mutated in the name of Mst. Bhag Bhari as a limited owner. Muhammad Afzal owner of the land died before the independence and his share of land was transferred to his widow namely, Bhag Bhari, under custom, as limited owner. Rukan Din also died before the partition and his share devolved on his widow Mst. Said Bibi, as limited owners and after the death of Gul Muhammad, his land also devolved on his mother Mst. Aysha Bibi under customary law as life estate. Gul Muhammad and Muhammad Afzal both died before the death of Rukanuddin and Mst. Said Bibi, widow of Rukan Din died after them in the year 1944 and her land was also transferred to Mst. Bhag Bhari. Mst. Aysha also died in the year, 1945 and as such her land was devolved on Mst. Bhag Bhari.
Mst. Bhag Bhari died on 15-8-1964. In her lifetime Mst. Bhag Bhari, limited estate holder vide mutation of gift attested on 16-12-1955 transferred the suit-land in favour of respondents Nos. 1 to 3, namely, Muhammad Iqbal, Altaf Hussain and Mumtaz Hussain. The present appellants, Nazir Hussain and others had filed a suit for possession of the suit-land to the extent of 11/12 share of the suit property, claiming themselves to be the Muslim Law heirs of Messrs Muhammad Afzal, Gul Muhammad and Rukah Din, the last male holders, of the property. The said suit had been filed on 1- 3-1967 which was contested by the defendants-respondents, who filed their written statements, denying the averments of the plaint, raising some objections including that the suit is barred by limitation.
3. From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame the following issues:--
(1) Whether Mst. Bhag Bhari was maintenance holder?
(2) If issue. No.1 is not proved, whether Mst. Bhag Bhari was a limited owner or the suit-land?
(3) Whether Muhammad Afzal, Rukanuddin and Noor Shah (Gul Muhammad vide order, dated 14- 2-1970) were the last male holder?
(4) Whether the suit-land is ancestral of the plaintiffs qua the last male holder?
(4-A) Whether the suit property was mortgaged with the defendants, if so, when and against what amount and with what effect? (vide rder, dated 15-1-1970).
(5) Whether the suit is within time?
(6) Whether any gift of the suit-land was made in favour of the defendants by Mst. Bhag Bhari?
(6-A) If issue No.5 is proved, whether the gift was result of fraud? (Vide order, dated 15th January, 1970)
(7) Whether Mst. Bhag Bhari had no power to alienate the suit-land?
(8) Relief.
' After recording and appreciating the evidence of the parties, pro and contra, the learned trial Court vide judgment and decree, dated 18-11-1974 decreed the suit in favour of the plaintiffs/Nazir Hussain and others, to the extent of 49/145 share in the suit-land, instead of 1/12 share claimed by the plaintiffs. Aggrieved by this judgment and decree, two appeals were filed before the District Court at Cambellpur, which came up for hearing before the learned Additional District Judge. The defendants-respondents had challenged the judgment and decree of the trial Court, praying for dismissal of the suit, whereas the appellants (herein) have challenged the decree of the learned trial Court to the extent of determination of their shares averring in the appeal that the suit should have been decreed to the extent of 11/12 share as claimed by the plaintiffs-appellants in the suit.
The learned lower appellate Court vide consolidated judgment and decree, dated 5-4-1975 decided both the appeals, accepted the appeal filed by the defendants-respondents and dismissed the suit of the plaintiffs-appellants, declaring it as time-barred and as a result of which, the appeal filed by the appellants titled as "Nazir Hussain and others v. Muhammad Iqbal, and others" had been dismissed. The learned lower appellate Court did not render the decision with regard to the objections raised by appellants regarding their claim of share.
4. The judgment and decree of the lower appellate Court had been assailed through these two R.S.As. By the appellants in this Court.
5. Learned Single Judge of this Court vide consolidated jbdgment, dated 12-7-1984 accepted both the appeals, setting aside the judgment and decree passed by the First Appellate Court with the direction that the appeals shall be deemed to be pending before the lower appellate Court with further direction to decide the same afresh after deciding all other issues except the issue of limitation which had finally been decided by this Court, declaring the suit as having been filed within limitation.
6. Feeling aggrieved by the judgment of this Court, dated 12-7-1984, a Civil Appeal No. 331 of 1995 had been filed in the Hon'ble Supreme Court of Pakistan and the apex Court vide its order, dated 26-11-2001, remanded the case to this Court with a direction to decide all the issues afresh on merits in the light of the evidence available on the record.
7. During the pendency of these appeals, Mst. Qamar Sultan and Mst. Munawar Sultan appellants had died and their legal representatives were brought on record. On the other hand, respondents Nos. 1 to 3 also died and their legal representatives were also brought on the record and the amended memo. Of the parties has been filed.
8. Ch. Riyasat Ali, learned counsel for the appellants contended that after the death of all the three original land holders, namely, Muhammad Afzal, Gul Muhammad and Rukanuddin, mother of Gul Muhammad and wife of Rukanduddin, the property in dispute was transferred in favour of Mst.
Bhag. Bhari widow of Muhammad Afzal who was the sole survived legal heir of three deceased and at that time she was holding the land as limited estate holder in view of the prevailing customary law in the area. Further submitted that limited estate had been terminated by the enforcement of West Pakistan Muslim personal Law (Shariat) Application Act, 1962 w.e.f. 31-12-1962 and the property would be reverted back to the original owner of the property and shall be inherited by their legal heirs. Further argued that the plaintiffs being the legal heirs or co-owners/co-sharers of the property in dispute and when the question of inheritance is involved with regard to the property of a muslim deceased holder, the question of limitation would not arise. Further added that the mutation of gift by The limited estate holder Mst. Bhag Bhari in favour of the predecessor-in- interest of present respondents, was void ab initio and without any lawful authority; that a limited owner of the property is not entitled to transfer the same except her own share. Further argued that the limited estates were terminated in the year, 1962 and the present suit was filed in the year, 1967, quite within limitation. Further contended that the judgment of the lower appellate Court, dated 5- 4-1975, - declaring the suit as barred by limitation is not sustainable in law and liable to be set aside. Further contended that there is no dispute to the effect that Mst. Bhag Bhari was limited estate holder and no evidence on the record is available to contradict that Muhammad Afzal, Gul Muhammad and Rukanuddin were the last male holders of the suit-land. Lastly argued that the plaintiffs are entitled for 7/18 share out of the total property left by the three deceased persons.
Learned counsel relied on the cases of Mst. Ghulam Jannat and others v. Ghulam Janat through legal heirs and others (2003 SCM R 362).
9. On the other hand, learned counsel appearing on behalf of the respondents have vehemently opposed the arguments addressed by the learned counsel for the appellants and supported the judgment of the lower appellate Court, contending that Mst. Bhag Bhari being the only legal heir of the deceased was full owner of the property. Further submitted that Mst. Bhag Bhari had also mortgaged the land for a consideration of Rs.1122 with the defendants and vide Mutation No.1388 attested on 16-12-1955 she had gifted away the suit-land in their favour in lieu of their services rendered to her by them. Further contended that the property had been transferred by Mst. Bhag Bhari in the year, 1955 and the period of limitation, challenging the mutation as provided in the Limitation Act is six years, which expired on 1712-1961.
10. I have heard the learned counsel for the parties at length and perused the record.
11. Before the trial Court, learned counsel for the appellants had abandoned issue No.1 by making a statement before the Court on 29-1-1974 and the issue had been dropped by the trial Court. In view of the statement of learned counsel for the appellants, the defendants had conceded the issue No.2 which was answered in the affirmative by the trial Court so that fact is admitted by both the parties that Mst. Bhag Bhari was limited estate holder of the suit-land and not as maintenance holder.
12. There is no evidence on the record to rebut Exhs.P.1, P.5 and P.6 by the defendants-respondents to controvert that Muhammad Afzal, Gul Muhammad and Rukanuddin were the last male holder of the suit-land. Learned counsel for the respondents had not been able to controvert this admitted fact that Mst. Bhag Bhari was widow of Muhammad Afzal, Mst. Aysha was mother of Gul Muhammad and Mst. Said Bibi was widow of Rukanuddin. The property of all the three original male holders/deceased devolved on the above mentioned three ladies and out of these three, Mst.
Aysha and Said Bibi had died in life time of Mst. Bhag Bhari who lastly died on 15-8-1964 and from the perusal of the record it reveals that Muhammad Afzal, Rukanuddin and Gul Muhammad were last male holders of the suit-land, thus, issue No.3 is answered in the affirmative.
13. The P.Ws. Stated that property in dispute was the ancestral property and their statements were corroborated by documentary evidence Exhs.P-1 to P-13. The defendant No.2 appeared as D.W. As his own witness and the documentary evidence produced by the defendants; Exhs.D.1 to D.8 is also the proof of the fact that the suit-land was ancestral and the deceased persons have acquired this land from their ancestors. Thus, this issue No.4 is also decided in favour of the plaintiffs-appellants.
14. On the file of the lower Court, there is documentary evidence produced by the parties Exhs.P-14 and D.9, the certified copies of mutation or mortgage, dated 31-5-1941, which shows that 66 kanals and 5 marlas had been mortgaged in favour of the defendants by Mst. Bhag Bhari for a consideration of Rs.1122. This fact had not been denied by the plaintiffs-appellants and it is established on the record that this portion of the land out of the suit-land was subject to a charge of a sum of Rs.1122 at the time of gift in dispute. It is admitted fact that till the death of Mst. Bhag Bhari, the limited estate holder in the year, 1964, the mutation of mortgage remained in the field and had not been set aside nor the land was got redeemed by any of the legal heir and the defendants have not been compensated or returned their mortgage money, therefore, if the suit is decreed in favour of the appellants, they are liable to be compensated this charge to the extent of their legal share to the defendant Issue No.4-A is decided accordingly.
15. Issues Nos. 5 to 7 are important and interlinked issues which hit the fate of the suit/instant appeals, therefore, I will take up these issues together. All the three male holders, namely, Muhammad Afzal, Gul Muhammad and Rukanuddin died issueless and after their death, property of all these deceased persons devolved upon three ladies, mentioned above, out of three, two ladies, holders of the property, namely, Mst. Aysha and Said Bibi died during life time of Mst. Bhag Bhari, the last limited holder of the property and no other person came forward to claim their property so their share was also transferred to Mst. Bhag Bhari and at the time of her death she was having the property of all three male holders-deceased and this fact is not denied by the defendants-respondents that Mst. Bhag Bhari was holding the land as limited owner of the property. The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was enforced to the whole Provinces of West Pakistan and section 3 of the said Act and terminated the limited estate in respect of immovable property held by a Muslim female under the customary law:-- ' Section 2.---of the said Act contemplates that, notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims.
' Section 5.---of the Act further emerges that the life estate terminated under section 3 or the property in respect of which the further operation of a will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the testator as though he had died intestate; and if any such heir has died in the meantime, his share shall devolve in accordance with shariat on such persons as would have succeeded him if he had died immediately after the termination of the life estate or the death of the said legatee.
16. The Muslim female holding a limited estate under a customary law was entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner to inherit her share. The provisions of sections 3, 4 and 5 of the Act were made applicable retrospectively.
17. In the case in hand, though, Mst. Bhag Bhari the limited estate holder had died in the year, 1964 but limited estate had terminated w.e.f. 31-12-1962 and the right to use or claim the legal share had accrued to the plaintiffs-appellants w.e.f. The aforesaid date. The instant suit had been filed in the year, 1967 within five years of the termination of the limited estate. Article 120 of the Limitation Act provides limitation for filing a suit for declaration to get determine the right o the litigant as six years and for suit for possession, the said act has provided limitation period as 12 years. In either case, the suit filed by the plaintiffs-appellants had been filed within the period prescribed in the Limitation Act.
18. After the termination of the limited estate of a widow, legal heirs of the last limited holder of the property would succeed to the estate as an heir and no period of limitation would start against rights of such heir unless and until it is proved on the record that defendants (donees from widow) had acquired title by adverse possession as laid down in cases of Abdur Rashid alias Muhammad Rashid v. Muhammad Boota (1993 CLC 214) and Ismail v. Ghulam Qadir (1990 SCM R 1667).
19. The co-sharer is entitled to file a suit to establish his right of cosharership for declaration when his right is denied by his opponents and his suit would be within time whenever fresh cause of action accrues to MM. In this context, reliance can be made to the cases of Ghulam Ali v. Ghulam Sarwar Naqvi (PLD 1990 SC 1), and Hasmat Ali v. Mst. Jantan' (1993 SCM R 950).
20. In case of Muhammad Yusuf v. Noor Din (1993 M LD 763), Hon'ble Judge of this Court while dealing with the point of limitation in a suit or possession on the basis of inheritance had observed that mutation neither a document of title, nor a presumptive evidence of title. Person feeling dissatisfied with entries in the mutation might not feel aggrieved by its entries. Cause of action would not in such cases-accrue to him when mutation order, original, appellate or revisional was made. Cause of action would accrue to him when person concerned "feels himself aggrieved" by such an entry. It means that in case of inheritance of the property left by a muslim right holder, the time for filing a lis would not expire. It is a continuous right and every adverse entry to his interest in the Revenue Record would give him fresh cause of action and his suit would be within limitation.
21. On termination of limited interest of female, the property was to be considered as ownership of last full owner and same would devolve upon his Shari heirs alive at the time of his death and if any one of such heirs had died prior to termination of limited estate, his heirs would also F get that share to which their predecessor would have been entitled if alive but the limited owners were also entitled to their legal shares. The widow of last full owner was also entitled to inherit her husband to the extent of 1/4 share because of his having died issueless.
22. As observed in the preceding paragraphs that after the death of Mst. Bhag Bhari, the property reverted to last male holder and thereafter to their descendants howlowsoever. The plaintiffs as legal heirs of last full owner, sons and daughter of Sharafuddin who is real brother of Rukanuddin are entitled for the inheritance. Moreover, all the deceased persons died issueless and their property would revert to Syed Ahmad, their predecessor-in-interest who had two sons namely, Sirajdin and Fazal Din, both died in 1914 and 1922 respectively. The plaintiffs-appellants are grandsons of Fazal Din son of Syed Ahmad and their claim cannot be ignored. In this context a reference can be made to the case of Suba v. Mst. Fatima Bibi (1992 SCM R 1721).
23. In another case Bahadar v. Muhammad Aslam Hon'ble Supreme Court of Pakistan had also held that plaintiffs being co-sharers in land in dispute, title suit filed by them against defendants who were also co-sharers in such land, bar of limitation would not apply.
24. It is also admitted fact that a gift of the land was made by Mst. Bhag Bhari in favour of the defendants and it is a legal proposition that the property of a Muslim male holder would devolve upon his legal heirs immediately after his death and with the termination of limited estate. G The limited estate holder ceased to be the owner of the property except her own legal share inherited from the property of her husband or last male holder (whichever is the case), therefore, transfer of total holding by a widow as owner of limited estate through mutation of gift is without backing of any authority of law and the limited owner/Mst. Bhag Bhari could not transfer the property, to the defendants beyond her own share and thus, the transfer in favour of the defendants was invalid.
Reliance in this respect can be made to the cases of `Suba' (supra) and Abdur Rehman v. Amrat (PLD 2003 SC 186).
25. Since mutation of gift was made by Mst. Bhag Bhari on 16-12-1955 and limited estate were terminated w.e.f. 31-12-1962 but the application of sections 2, 3 and 5 of the West Pakistan Muslim Personal Law (Shariat) Act, were made retrospectively, it means that limited estate holders have ceased to be owners of the property prior to the promulgation of the said Act and the plaintiffs in the instant case were entitled to inherit the property of the .Last male holder falling in the category of distant kinder and by adding section 2-A through amendment Ordinance No.XIII of 1983, West Pakistan Muslim Personal . Law (Shariat) Act was retrospective in its operation and intention of its enactment was that inheritance would be deemed to have devolved on date of death of last male owner on all his heirs under Islamic Law, who would be deemed to have become joint owners as laid down in case of Mst. Ghulam Janat (supra).
26.. In view of the above discussion and following the judicial wisdom laid down by the Hon'ble Judges of Supreme Court of Pakistan, I have no hesitation in observing that the findings of the lower appellate Court on issue No.5, declaring the suit as barred by limitation, is illegal, contrary to law and liable to be reversed. The plaintiffs-appellants have filed the suit validly within limitation and the gift made by Mst. Bhag Bhari in favour of the defendants to the extent of total holding of the property of last -male holder was without lawful authority and not sustainable in law, hence, the mutation of gift except the share of Mst. Bhag Bharri is declared to be invalid and liable to be set aside. Issues Nos.5 to ,7 are decided in favour of the plaintiffs-appellants and as a result of my findings on issues Nos. 5 to 7, there is no need to comment upon issue No.6-A.
27. Now I take up the question of share of the plaintiffs-appellants in the disputed land. Rukan Din arid Muhammad Fazal real brothers and Gul Muhammad their nephew, son of their 3rd brother Noor Shah were owner of the property in equal share 1/3rd each. Gul Muhammad died in the year, 1919 and after his death, his property would devolve on his legal heirs two uncle Muhammad Afzal and Rukan Din who will inherit 1/9 share each and his mother Mst. Aysha 1/9. Muhammad Afzal acquired 1/9 share from Gul Muhammad plus his own share 1/3 and total he was holding 4/9 share at the time of his death in the year, 1923. His property transferred in the name of his widow as limited estate. Rukan Din died in the year, 1929 and his property was transferred in the name of Mst.
Said Bibi his widow as limited owner who died in the year, 1944 and after her death, the property devolved upon Mst. Zubaida his daughter 7/18 share and remaining was reverted to Mst. Bhag Bhari. She was the only legal heir of all the three original land holder of the property. Mts. Bhag Bhari died on 15-8-1964 and she being limited owner of the property, the property would revert to the original land holders. The plaintiffs/appellants legal heirs of Sharafuddin who was son of paternal uncles of Muhammad Afzal and Rukan Din and they being legal heirs of the last male holders of the property are entitled for the share .Out of property let by them and now legal shares of all the legal heirs would be as under:--
(i) The legal heirs of Mst. Aysha/mother of Gul Muhammad would be entitled to 1/9 share equal to 19 kanal, 16 Marlas.
(ii) The legal heirs of Mst. Bhag Bhari would be entitled to 1/9 share equal to 19 kanals and 16 marlas.
(iii) Mst., Zubaida daughter of Rukan Din would be entitled to 7/18 share equal to 69 kanals and 7 marlas,
(iv) The plaintiffs-appellants being the Legal heir of Sharafuddin who is son of Fazal Din real uncle of Muhammad Afzal and Rukan Din would be entitled to 7/18 share equal to 69 kanals and 7 marlas.
28. For the foregoing reasons, I accept both the appeals, set aside the impugned judgment and decree passed by the lower appellate Court, dated 5-4-1975 and that of the trial Court, dated 18-11- 1974 is restored with the modification that the plaintiffs-appellants shall be entitled to 7/18 share equal to 69 kanals, 7 marlas. No order as to costs.