' This second appeal is directed against the judgment and decree dated 18-12-1977 passed by the learned Additional District Judge, Jhang, reversing the judgment and decree of the learned trial Court, whereby the suit filed by the appellant and Mst. Jantan, respondent No, 11, was decreed in their favour.
2. The facts giving rise to this litigation are that Sultan, the last male holder, who died in the year 1935, was the owner of the suit land, situate in two villages, namely, Nitherkey and Boonga, Tehsil Chiniot, District Jhang. He was survived by a widow by the name of Mst. Bakhan, two brothers, namely, Bhai Khan and Haji Mahmood and two daughters, who have been impleaded as respondents Nos. 1 and 2. The appellant is the son of Haji Mahmood, whereas respondent No, 11 is the daughter of Mobabbat son of Bhai Khan. On the death of Sultan the suit land devolved on Mst.
Bakhan, as a limited owner under custom, who gifted it in favour of her two daughters, i,e, respondents Nos. 1 and 2. The alienation of the land situate in village Nitherkey was evidenced by Mutation No, 389, whereas the mutation in respect of the other village was entered at No,
153. Both the mutations were attested on 20-2-1958.
3. The cause, out of which this appeal has arisen, was commenced by the appellant and respondent No, 11 by filing a suit on 3-2-1970 for possession for 42/864 share of the suit land, on the plea that the land was ancestral qua Sultan deceased; the parties were governed by custom; the gift made by Mst. Bakhan being violative of custom, was not binding on them. Mst. Jantan, who had joined hands with the appellant in challenging the gift, has not filed appeal against the judgment and decree of the learned First Appellate Court. She has however, been arrayed as respondent.
4. Mst. Bakhan died on 11-10-1959. As per averments made in the plaint, the cause of action arose to the appellant on 20-2-1958 when the mutations were attested and so also the death of Mst.
Bakhan. The donees as well as the other reversioners, who were impleaded as party, pleaded that the suit was barred by time and also contested it on a number of other grounds, as reflected by the issues framed by the learned trial Court. The learned trial Court held that the suit was governed by Article 141 of the Limitation Act and having been filed 'within 12 years of the accrual of cause of action, was within time. As the findings on the other material issues were in favour of the appellant, the suit was decreed in his favour.
5. On appeal the learned Additional District Judge dealt with only the question of limitation and did not touch the findings of the learned trial Court on other issues. He was of the view that the appellant's suit became barred by time on 19th February, 1964, under the provisions of the Punjab Limitation (Custom) Act, 1920 (Act I of 1920) before the promulgation of the West Pakistan Muslims Personal Laws (Shariat) Application Act (Amendment) Act 1964 (Act. XXVIII of 1964) which was enforced on 15th April, 1964. Accordingly, by his judgment and decree dated 18-12-1977, he dismissed the suit. Hence this second appeal.
6. This appeal requires determination of Issue No, 6 only, which is to the effect as to whether the plaintiff's suit is within time. For adjudication of this point, it will be appropriate to refer to various enactments governing the period of limitation for a suit challenging the alienation of ancestral immovable property, not binding on the reversioners. Initially Punjab Act I of 1920 held the field and under section 7 thereof read with para. 2 of its Schedule, the period of limitation for filing a suit for possession of the ancestral immovable property, was six years from the date of attestation of the mutation. Thus the suit could have been filed uptil 21-2-1964, but before the expiry of this date the West Pakistan Muslims Personal Law (Shariat) Application Act, 1962 (Act V of 1962) came into force with effect from 31st December, 1962 and under section, 7(1) thereof the Punjab Act I of 1920 stood repealed. However, by subsection (2) of section 7, the cases in which the death of the last full owner or the termination of the life estate had occurred before this Act, were saved and were continued to be governed by the Act repealed. This subsection was omitted by the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Ordinance, 1963 (Ordinance XXXIX of 1963) with effect from 21st November, 1963. The Ordinance was replaced by the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1964 enacted on 15th April, 1964.
7. The argument advanced on behalf of the appellant was that before the expiry of the period of limitation provided by Punjab Act I of 1920, as a result of enactment of section 3 of Ordinance XXXIX of 1963, the preservation of this Act, in respect of the cases in which cause of action had arisen before the enforcement of West Pakistan Act V of 1962 was recalled and consequently, the general law of limitation became applicable. In the submission of the learned counsel if the cause of action was considered to have arisen on the date of attestation of the mutation, Article 141 of the Limitation Act would apply and in case the date of Mst. Bakhan's death was the starting point of limitation, then Article 144 would be attracted and as both' the Articles provided 12 years period of limitation, the suit was within time. In reply to a question put to the learned counsel, that the transaction of gift or for that matter the mutations in question cast a cloud on the appellant's title and therefore, before asking the relief by way of possession, the appellant should have sought a declaration of his rights, for which the period of limitation under Article 120 of the Limitation Act was six years from the date when the right to sue, accrued, he came forth with the contention that the alienation made by the widow in excess of her share, in the estate of the last male holder, under Muslim Personal Law, was ab initio void and thus it was not incumbent on him to file a suit for setting aside such alienation. In aid of his these arguments, the learned counsel cited L. Arura Mal v.
Mt. Sandhuran (1). As regards the mutations, it was argued that the entries in the revenue record neither created nor extinguished title and therefore, the appellant was not bound to first take the proceedings for removal thereof.
8. The learned counsel for the respondents, on the other hand, submitted that despite the repeal of the Punjab Act I of 1920 the rights and obligations of the parties for the purposes of limitation of the suit would continue to be governed by the repealed Act. It was also argued that the transaction of gift was not void but merely voidable at the option of the reversioners and, therefore, they should have challenged it through a declaratory suit, within six years of the accrual of cause of action. In the submission of the learned counsel the appellant was not entitled to possession without suing for declaration and that the suit having been brought after six years both from the date of attestation of the mutations as well from the date of death of Mst. Bakhan, was barred by time.
9. I am inclined to agree with the appellants' learned counsel to the extent that after the repeal of the Punjab Act I of 1920, the general law of limitation would apply. As observed above, this Act was repealed when the period of limitation under section 7 read with para. 2 of the Schedule, was yet to expire. As held in The Collector, Mardan and 2 others v. Mst. Taj Bibi and 14 others (2), the law of limitation is a part of the procedural law. The Limitation Act does not create any right but merely prescribes the period during which that right is enforceable. The respondents' learned counsel was thus not right in arguing that despite its repeal, the Punjab Act I of 1920 shall continue to be operative for the purposes {{FOOT NOTE}}
(1) AIR 1947 Lah. 290 (2) PLD 1972 Pesh. 197 {{FOOT NOTE}} ' of limitation. No vested right accrued to the respondents to have remained ineffective by the repeal of the Act unless it was taken away expressly. The position would have been different if the period of limitation had already run when the Act ceased to be part of the statute book, even in respect of the cases in which the cause of action arose before the promulgation of West Pakistan Act V of 1962 or for that matter West Pakistan Ordinance XXXIX of 1963. In Ram Karan Singh and another v. Ram Das Singh and others (1) Sulaiman, Actg. C. J. Observed: All that I can say is that when a question of limitation is raised it ought to be decided in accordance with the law of limitation in force at the time of the institution of the suit and not that in force at the time of the cause of action, unless there be any express provision to the contrary in the Act itself."
' Similar view was taken in Masjid Shahid Ganj and others v. Shiromani Gurdwara Parbandhak Committee, Amritsar and another (2) and Dost Muhammad and another v. Rais Satik and another (3). The learned Additional District Judge overlooked section 3 of the West Pakistan Ordinance XXXIX of 1963 and directly laid hand on West Pakistan Act XXVIII of 1964.
10. The learned counsel for the appellants even having scored the point that the suit would be governed by the general law of limitation, cannot march with success, for there is still another formidable hurdle in his way to establish that he could sue for possession without filing a suit for declaration. It may be observed that where a plaintiff sues for possession, on the strength of his title, but an intermediate transaction in respect of the property claimed by him, throws a cloud over his title, he must seek a declaration of his rights, before he can get a relief of possession. I am not averse to the proposition that where a transaction is void and its being nullity is so apparent that it admits of no doubt, the seeking of declaration of his title by a plaintiff would not seem to be necessary.
11. The fate of this case, therefore, largely hinges on the answer to the question whether the transfer of the suit land by the widow by gift inter vivo was void or voidable. No doubt under custom the widow's power of disposition is generally restricted, but under certain circumstances she can pass on. a complete title to the transferee. Transfer for legal necessity or as an act of good management or with the consent of male decendants/collaterals, may be quoted as instances of valid alienation. I also cannot be disputed that a transfer by a widow ratified by the reversioners attains finality and cannot be questioned. The expression void connotes absolute nullity and that what is incapable of ratification and whereas an act is termed as voidable when the party affected thereby is entitled to rescind it and till its rescission, it carries the legal effect which it was intended to have. If void is synonymous with that what does not exist in the eye of law, then how can the subsequent action or inaction of the reversioners or abandonment of their rights by them bring into existence what was non-existent? Could not the acquiescence on the par of the respondents have legitimatized the transaction of gift? If this is so then the gift was voidable and not void. This attribute is inherent in the nature of an alienation of property subject to the incidents of custom which merely received recognition through incorporation of section 7 in {{FOOT NOTE}}
(1) AIR 1931 All. 635 (2) A 1 R 1940 P C 116
(3) PLD 1962 Quetta 82 {{FOOT NOTE}} ' the Punjab Act I of 1920 and, therefore, its repeal, as regards the character of the transaction is not of any significance. In Barkhurdar Shah v. Mt. Sat Bharai and another (1) Shadi Lal, C. J. Held that a widow's transfer of her estate in excess of her powers is voidable and not void. The report in L Arura Mal v. Mt. Sadhuran referred to by the appellant's learned counsel is distinguishable, as in that case the female alienor disposed of the property in contravention of the will of the last male-holder and while examining the question of application of Article 125 of the Limitation Act, Mahajan, J.
Observed :- ' A fortiori, this Article cannot apply to cases where the alienation is ab initio void, i,e, is bad from its very inception or in other words, is a nullity. An alienation by a person who has no power to make it is void ab initio. . . . . . . ."
' The generality of expression used in this authority, is qualified by the facts of the case and seemingly was not intended to be an absolute exposition of legal character of the transfer by a female whose power of alienation under custom was restricted.
12. It is correct that the mutation does not extinguish title but the gift inter vivos creates a title. It was, therefore, essential for the appellant to have sued for setting aside this transaction before the relief of possession could be granted to him. In my opinion, the appellant was bound to seek declaration for which the cause of action arose on 20-2-1958. This relief has been sought by him in the garb of a suit for possession. The suit is barred by time under Article 120 of the Limitation Act. In the circumstances of the case, the appellant cannot lay hand on Article 141 or for that matter Article 144. Even on 21-11-1963 when Ordinance XXX1X of 1963 was promulgated six years time limit had not expired and a declaratory suit could be filed, but the appellant did not choose to do so.
13. The upshot of this discussion is that the suit was barred by time. The conclusion reached by the learned Additional District Judge is upheld though on different reasoning. This appeal therefore fails and is hereby dismissed leaving the parties to bear their own costs. {{FOOT NOTE}}
(1) AIR 1931 Lab. 677 {{FOOT NOTE}}