' SYED HAMID ALI SHAH, L---Fateh Muhammad resident of village Rajowal died in 1932 leaving one issueless widow namely Mst. Walayat Bibi. Deceased was owner of 20-Kanals 6-Marlas and about 15 Kanals land in village Rajowal and Mera of District Jehlum, respectively. Mst. Walayat Bibi inherited the land as limited owner under custom. She sold 4 Kanals 3 Marlas and 4-Kanals 1-Marla of the land of Mouza Rajowal to the petitioners through two different registered sale deeds dated 7- 3-1951 and 19-5-1956 respectively.
2. Feeling aggrieved of the said sale-deeds, the respondents Muhammad Hussain and Muhammad Boota the brother and nephew of Fateh Muhammad deceased filed a Civil Suit challenging therein the sales by Mst.Walayat Bibi. Learned Civil Judge Jehlum, decreed the suit in favour of respondents through judgment and decree dated 22-10-1997 holding that the sales referred above would not affect the reversionary rights of respondents after death or remarriage of Mst. Walayat. Bibi. The findings of the learned Civil Judge were affirmed by the High Court vide judgment dated 24-1-1971. Mst. Walayat Bibi died on 27-12-1992. During her life time 3/4th share of land was transferred in the name of the respondents and after her death Mutation No, 1769 of 1/4h land was sanctioned in their favour on 16-1-1996 by the Consolidation Officer concerned. Petitioners assailed the order of Consolidation Officer sanctioning the said mutation before the Assistant Commissioner/ Collector Sadar District Jehlum viho through order dated 26-8-1996 partially accepted the petition to the effect that Walayat Bibi had a share of 5K and 2M in the land, therefore petitioners/purchasers were entitled to that extent. The petitioners and private respondents, both assailed the order dated 26-8-1996 passed by. Assistant Commissioner/Collector, through an appeal before Additional Commissioner Revenue Rawalpindi Division Rawalpindi. The Additional Commissioner Revenue Rawalpindi Division Rawalpindi disposed of both the appeals of the petitioner and, private respondents through a' consolidated order dated 18-11-1996 wherein he set aside the order of A.C. Dated 26-8-1996 on the ground that purchases of the petitioners had been annulled by the High Court vide order dated 17-1-1971. Mutation of 3/4th land in favour of the private respondents was also set aside because inheritance had to open on the death of Walayat Bibi as per section 5 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and Mutation No, 1769 dated 16-1-1996 was set aside for fresh decision of Fateh Muhammad's inheritance amongst his heirs arid reversioners. The said order of Additional Commissioner dated 18-11-1996 was assailed by petitioner through a revision petition before Member (Judicial) Board of Revenue, who dismissed the same vide order dated 19-11-2001, maintaining the findings of the Additional Commissioner. Being aggrieved of the order of respondent No,1 dated 19-11-2001 instant petition was filed.
3. The learned counsel for the petitioners contended that the revenue hierarchy from Assistant Commissioner to Member Board of Revenue had no jurisdiction to decide the matter; the acquisition of rights were not reported to the Consolidation Officer by the private respondents within 3 months after death of Walayat Bibi and their claim was barred by time, the respondents had failed to file execution of order of High Court dated 24-1-1971 and that order was passed in departure from the provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.
4. The petition was opposed on the ground that the property belonging to Fateh Muhammad was inherited by Mst. Walayat Bibi as limited owner. Two sales of portions of suit-land were set aside by Civil Court and decision of Civil Judge was confirmed by the High Court in R.S.A. No,313/1958 vide order dated 24-1-1971. Mutation No,1769 dated 16-1-1996 was rightly sanctioned in favour of respondents within the spectrum of the observation of High Court. Petitioners were not entitled to have any lien upon the said land which was destined to be retrieved to the original reversionary heirs.
5. 1 have carefully gone through the record and given due consideration to the arguments advanced by learned counsel of the parties.
6. Admittedly Fateh Muhammad died in 1932 leaving behind one widow, who was Mueless. She inherited the suit land from her husband as a limited owner, under the custom. She sold two parcels of land in 1951 and 1956 and the sales were challenged in civil court by the private respondents. The Civil court decided that the sales made by Mst. Walayat Bibi in the years 1951 and 1956 would not affect the reversionary rights of private respondents after the death or remarriage of Mst. Walayat Bibi. High Court in R.S.A. No, 313/1958 dated 24-1-1971 confirmed the view of learned Civil Court. After death of Mst. Walayat Bibi in the year 1992, Mutation No, 1769 dated 16-1-1996 of 1/4th suit land was sanctioned in favour of the private respondents. Earlier mutation of 3/4th suit- land had been sanctioned in their favour as reversioners during life time of Mst. Walayat Bibi. The said order of mutation, dated 16-1-96 was assailed by petitioners in appeal before Assistant Commissioner/Collector who through order dated 26-8-1996 cancelled Mutation No,1769 declaring that Mst. Walayat Bibi was entitled to the extent of 5 Kanals 2 Marlas out of total 20 Kanals and 6 Marlas in Village Rajowal and sale in favour of the petitioners to this extent was valid, on the ground that purchases of the petitioners had been annulled by the High Court vide order dated 17-1-1971.
Mutation of 3/4th land in favour of the private respondents was also set aside because inheritance had to open on the death of Walayat Bibi as per section 5 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and Mutation No, 1769 dated 16-1-1996 was set aside for fresh decision of Fateh Muhammad's inheritance amongst his heirs and reversioners. The said order of Additional Commissioner dated 18-11-1996 was assailed by petitioner before respondent No,1 through a revision petition before Member (Judicial) Board of Revenue who dismissed the same vide order dated 19-11-2001 maintaining the findings of the Additional Commissioner. The vires and propriety of the last order is in question.
7. Turning to West Pakistan Muslim Personal Law Shariat Application Act (V of 1962), section 3 of the Act provides in express terms that "The limited estates in respect of immovable property held by Muslim Females under the Customary Law are hereby terminated". Section 5 of the said Act lays down that the life estate terminated under section 3 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. Muslim Personal Law (Shariat) Application Act (V of 1962) was amended in 1983 and section 2-A was inserted which reads as follows: - "Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:--
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat);
(b) any decree, judgment or order of any Court affirming the right of any reversionary under custom or usage, to call in question such an alienation on directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;
(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: Provided that nothing herein contained shall be applicable to transaction past and closed where possession of such land has already been delivered under such decrees."
' The impact of the amendment is that a Muslim male heir acquiring any agricultural land under custom prior to enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948 becomes A absolute owner of such land as if such land had devolved on him under the Muslim Personal Law. The above provision is equally applicable to male as well as female heir. While observing so, 1 am fortified by the dictum of the honourable apex Court, laid down in the case of Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407. Mst. Walayat Bibi was quite clearly entitled to her share of inheritance in the estate of her deceased husband and could validly sell her share to petitioners to that extent, notwithstanding and judgment to the contrary; and the petitioners could, therefore, retain the suit land to the extent of her share. A widow can take property of deceased as a whole under custom as limited owner, or her share in the estate of deceased under Islamic law. Identical issue came up for consideration before this Court in the case of Mohsin Khan and 3 others v. Ahmed Ali and 2 others" (PLD 2004 Lahore 1), wherein it was held:-- "According to law, at the demise of Shahmand, in the year 1926, Mst.Allah Jowayee could have either taken his estate as a whole under the customary laws as limited owner or her share under the Mohammadan Law which could only be 1/8th but when the mutation has been effected in her name she was given the whole of the estate; which necessarily and essentially means that she was getting the property not under Mohammadan Law, rather as per custom. Had it not been under the custom, she would not have got the whole estate mutated in her favour, therefore, there is no doubt in my mind, that Mst. Allah Jowayee was not the limited owner. Therefore, the findings of the Court of appeal on issue No,1 are set aside and those of the trial Court are upheld.
' Now considering the question and the effect of section 3 of the Act, 1962, the limited ownership of Mst. Allah Jowayee terminated on the enforcement thereof and property for all intents and purposes vis-a-vis inheritance would revert back to the last male owner, who in this case is admittedly Shahmand. As per law laid down in 1987 SCMR 2008, if Mst.Allah Jowayee had made any gift of the property even before the above law that would be absolutely illegal and void for the reasons that she herself was not the absolute owner of the property, which could be alienated by her in that capacity, therefore, had to be ignored altogether, with the result that distribution of the share in the estate left by the deceased Shahmand, the last male owner, would be on the basis of Mohammadan Law. According to the principles of inheritance under the Shariah, Mst.Allah Jowayee, would get 1/8th share out of the total estate, whereas one-half excluding 1/8 would go to Mst. Nawab Bibi and remaining one-half to the collateral."
8. In the instant transaction petitioners have purchased from Mst. Walayat Bibi two pieces of land in Village Rajowal measuring a total of 8 Kanals 4 Marlas of land. From the facts on the record deceased Fateh Muhammad was the owner of 20 Kanals 6 Marlas land in Village Rajowal District Jehlum. Mst. Walayat Bibi was entitled to the extent of 1/4th share of the property of deceased husband. Her entitlement in the estate of her deceased husband is to the extent of 5 Kanals and 1- 1/2 Marlas.
9. She has sold 3 kanals and 3-1/2 marlas in excess of her share. The land in excess of the share of the vendor (Mst. Walayat Ibi) is void while the sale by vendor to the extent of her share (5 kanals and 1-1/2 marlas) is valid transaction and as such, not open to exception. The vendees are liable under law to surrender to the legal heirs of Fateh Muhammad (deceased) the excess land which they purchased from Mst. Walayat Bibi. The excess land will devolve upon those legal heirs of deceased Fateh Muhammad, who were alive at the time of death of their predecessor (Fateh Muhammad).
10. For the foregoing, by accepting this petition, the order impugned of respondent No, 1 dated 19- 12-2001 is set aside, declared illegal, passed without lawful authority and with no legal effect. The respondent will sanction the mutation according to the share which the legal heirs of deceased including Mst. Walayat Bibi had inherited according to Sharia.