' This second appeal is directed against the judgment and the decree dated 10-7-1975 whereby the learned Additional District Judge, Sargodha set aside the findings of the trial Court dated 11-10-1972 and decreed the suit.
2. Some land in Chak No, 129 Janoobi, Tehsil and District Sargodha was transferred to Nabi Bakhsh in lieu of the property left by him in India and confirmed in his name on 23-10-1955. He died on 10- 11-1963 and mutation of Inheritance No, 287 was attested on 26-1-1964 in favour of his son Munawar Khan and widow Mst. Begum to the extent of 7/8 and 1/8 respectively. Out of the land inherited by him Munawar Khan was said to have sold 65 kanals and 10 marlas in dispute to Abdul Sattar appellant for a sum of Rs, 18,300 by a sale deed registered on 30-10-1967. The respondents as the son, daughters and wife of Munawar Khan filed a suit for declaration that the property in dispute was ancestral in nature, and could not thus be alienated by Munawar Khan under custom, and the sale being without consideration and legal necessity was not binding on them. Munawar Khan was made a party but he did not contest the suit. Abdul Sattar vendee however controverted the allegations and claimed that the sale was perfectly in order. As many as 17 issues were framed, and after recording evidence of the parties, the learned trial Court found that the plaintiffs- respondents had no locus sandy to challenge the impugned sale because Munawar Khan alienor was fully competent to alienate his property in any manner, but in appeal the learned District Judge was of the view that the land had not lost its ancestral nature and the sale thereof being without legal necessity was not binding on the plaintiffs-respondents.
3. It is not disputed that the land was transferred in the year 1955 by the Settlement Department to the predecessor-in-Interest of the plaintiffs and Munawar Khan in lieu of his entitlement. It is also a common point between the parties that Nabi Bakhsh while in India was governed by custom in the matters of succession and on his migration to Pakistan be brought his custom with him, but this fact cannot be ignored that be died on 10-11-1963 when the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) had come into force, and Munawar Khan and Mst. Begum as his son and widow inherited the property under Muslim Law. That was why the mutation of inheritance was sanctioned accordingly. Munawar Khan was, therefore, not governed by custom and he was undoubtedly at liberty to alienate his property as a full owner. It is again not denied that Munawar Khan vendor had received consideration of the land in dispute, and executed a sale deed in favour of Abdul Sattar and got it duly registered. The plaintiffs had thus no locus standi to question the sale during the lifetime of their ancestor, because under the doctrine of spec successions Muslim has not even an inchoate right to the property of his ancestor until the death of that successor ; it is only then that the property vests in him absolutely. That being so the plaintiffs during the life of their ancestor Munawar Khan could not claim themselves to be his heirs.
4. The learned counsel for the respondents has referred to the judgment and the decree (Exhs. P. 1 and P. 2) dated 2-3-1966 passed in favour of the plaintiffs and contended that Munawar Khan was restrained by the sale decree from alienating his property without consideration and legal necessity. The decree is passed ex parte, apparently with the collusion of the parties. Abdul Sattar appellant being not a party to that suit was definitely not bound by it. In view of Beli Ram & Brothers v. Ram Lall and others (1) bona fide purchasers of property, under temporary injunction restraining alienation, for valuable consideration without notice of any fraud or collusion on the part of the vendor are protected. The same is the position in respect of a decree for perpetual injunction and such a decree does not invalidate the sale, although penal action might be taken against the ailenor. In view of what has been said above, the learned District Judge was wrong in holding that the property in dispute was governed by custom. He has thus acted in the exercise of his jurisdiction illegally and with material irregularity.
' For the foregoing reasons the appeal is accepted, the judgment and decree of the learned Additional District Judge are set aside and the suit of the plaintiffs-respondents is dismissed with costs. {{FOOT NOTE}}
(1) AIR. 1925 Lah. 644 {{FOOT NOTE}}