' MUHAMMAD KHALID MEHMOOD KHAN, J.---This revision petition has been directed against the judgment and decree dated 31-7-1992 passed by the learned appellate court and judgment and decree dated 28-2-1981 passed by the learned civil court.
2. Briefly stated the facts of the case are that one Manda Rajput by caste was resident of Pindi Rajpootan Tehsil and District Lahore and was survived by 5 sons namely Shahab Din, Nabi Bukhsh, Gulab, Charagh Din and Muhammad Ali and one wife Taleh Bibi. Taleh Bibi was having a daughter from her earlier husband. Manda was the owner of agricultural land in village Pindi Rajpootan Tehsil and District Lahore. After his death in the year 1933 mutation of inheritance No,187 was attested on 18-3-1973 in favour of his five sons and one widow equally. Five sons inherited half share and widow Taleh Bibi also become the owner of half land of the deceased Manda under the Customary law.
3. Mst. Taleh Bibi out of her land inherited being limited owner under the customs, sold 49 kanals 11 marlas land in favour of her daughter Sardar Bibi and Muhammad Hussain, against consideration of Rs.18,000 through a registered sale deed dated 6-4-1962. Shahab Din and Nabi Bukhsh sons of Manda filed a suit on 24-7-1963 against Taleh Bibi and three others claiming that after the enforcement of West Pakistan Muslim Law (Shariat) Application Act (V) of 1962 that all limited estates have been terminated and the property inherited by Mst. Taleh Bibi being the limited owner stands reverted to the legal heirs of deceased Manda according to Islamic law of inheritance. They have claimed that they are owners of 7/20 share of land reverted back to the legal heirs of deceased and prayed a decree for declaration and permanent injunction that they are the owners of 7/20 shares in the land and that the petitioners/respondents be permanently restrained to claim to be the owners of land to the extent of their shares on the basis of sale deed. They amended the plaint and reallocated the shares and as per amended plaint they claimed the shares of 77/128 on the ground that the property was their ancestral property and their family was governed by agricultural custom in the matter of alienation and succession. The sale on behalf of Taleh Bibi being the limited owner was against the Customary Law. She could not alienate the land except in case of legal necessity. They further claimed that the sale in favour of respondents are without consideration and as such is void and against their rights.
4. The suit was resisted by the petitioners/defendants . The petitioners/ defendants claimed that Taleh Bibi was the absolute owner of land and as such was fully authorized to sell her property. In alternative they also claimed that the sale on behalf of Taleh Bibi was under the legal necessity as permitted under the customary law.
5. The learned trial Court framed the following issues:--- "ISSUES:
(1) Whether Ordinance No,XXXIX was placed before the legislature within 6 months, if not, its effect?
OPP
(2) Whether the property in suit was sold for legal necessity and consideration? OPD
(3) Whether the plaintiffs are estopped by their conduct to institute the suit? OPD
(4) Whether Lahore Improvement Trust is a necessary party to the suit and whether the plaintiff's suit in respect of acquired land is not maintainable? OPD
(5) Whether the plaintiff's have no locus standi to bring this suit? OPD
(6) Whether the defendants are estopped to raise injunction in preliminary objection No,7 of the written statement? OPD
(7) Whether Mst. Taleh Bibi was a limited owner, if so, to what effect? OPD
(8) Relief.
6. Both the parties adduced their evidence both verbal and documentary. Mst. Taleh Bibi also appeared as her own witness. Learned Civil Judge decreed the suit vide judgment and decree, dated 28-2-1981.
7. The petitioners/defendants assailed the said judgment and decree through an appeal which too was dismissed on 20-9-1982. Decree dated 20-9-1982 was assailed through a revision before the Lahore High Court which was allowed vide order dated 31-7-1992 and the appeal was remanded for revisiting the evidence and re-decision. The said appeal was also dismissed on 23-7-1992, hence, the present revision petition. From the pleadings and evidence available on record the controversy between the parties revolves around the following questions:---
(i) Whether the land inherited by 5 sons of Manda and one widow Taleh Bibi was ancestral property?
(ii) Whether Customary law was applicable on Manda and the property inherited by Taleh Bibi being widow of Manda 1/2 share can be alienated without legal necessity being absolute owner?
(iii) Whether Taleh Bibi inherited the property as absolute owner and there was no restrictions on her under the Customary law of Rajput?
8. There is no dispute between the parties about 5 sons of Manda and one widow Mst. Taleh Bibi 5 sons of Manda accepted half portion of land as legal heirs and have not objected to half share transferred to Taleh Bibi vide mutation No,187 dated 18-9-1993. After the promulgation of West Pakistan Mulsim Personal Law (Shariat) Application Act (V) of 1962 the Customary law application to Manda and his family was terminated. First question was answered by the learned Courts below in affirmative
9. The second question was answered by the learned Courts below in affirmative however the question of legal necessity was a question of fact and it was decided in the light of evidence produced by the parities.
10. Mst. Taleh Bibi sold land measuring 49 kanals 11 Marlas to Mst. Sardar Bibi her daughter from previous husband and one Muhammad Hussain. The sale was through registered deed registered on 6-4-1962 with the Sub Registrar Lahore and as per the sale deed the consideration for that sale was paid Rs.18,000. Mst. Taleh Bibi herself appeared as her own witness as D.W.4. She deposed that after the death of her husband Muhammad Bukhsh his half land was mutated in her favour and remaining half was mutated in favour of 5 sons. Out of her share she sold 7 kanals land but is not aware to whom that land was sold. She deposed that she received Rs.5000 in advance and Rs.13,000 subsequently. Out of Rs.18,000 she arranged "Nanki Shak" of 7 grand daughters. Her house was burnt. She reconstructed her house. In cross examination she admits that her husband was Rajput by caste but when a question was asked to her whether her husband was governed by Riwaj (Custom) under which the widow was getting the land for her maintenance and could not sell without necessity. Mst. Taleh Bibi replied that she is not aware of that. The learned trial court observed that she is not answering the question clearly. In cross-examination she further deposed that she is not aware when she performed Hajj. She admits that she is not aware show much amount was spent for reconstruction of the house. She also failed to reply who constructed the house. She further was unable to reply how much amount was spent in the account of "Nanki Shak".
Mst. Taleh Bibi is the only relevant witness who can depose about the tribe of her husband and the custom applicable on him. She admits that her husband was Rajput by caste but withheld the fact that half land of Manda was transferred to her under the Customary law and she cannot sale that land except in case of legal necessity. Statement of Taleh Bibi shows that she tried to withhold the true facts. No doubt Mst. Sardar Bibi and Muhammad Hussain purchased the land against the consideration of Rs.18,000 but subject to the charge of custom prevailing in the tribe of Taleh Bibi.
Mutation No,181 in favour of five sons and Taleh Bibi was entered on 14-7-1933 and the noting in the column of report and order is as under:- {{URDU TEXT}} ' This mutation was attested on 18-9-1933 and the following order was passed by the Revenue officer:- {{URDU TEXT}}
11. This is the document on the basis of which Mst. Taleh Bibi is claiming the ownership of half portion of land left by deceased Manda. This mutation is not denied by any party to the suit. This document alone is sufficient to prove that Mst. Taleh Bibi inherited the land of Manda on the basis of Riwaj (Custom) and as such there is no difficulty in answering the question whether Taleh Bibi was the limited owner of land and not the absolute owner? Now the point required resolution is that whether the limited owner can alienate the property except in case of legal necessity. The reconstruction of a house, marriage of grand-daughters and performance of Hajj are no doubt legal necessities, give authority to limited owner to sell the limited estate. Taleh Bibi in her statement is unable to depose that when she performed Hajj, how much amount she spent in this account. She is not in a position to explain how much amount she incurred in connection with Nanki Shak and marriage of grand-daughters. No document has been placed on record showing that her house was burnt and she reconstructed the same nor the purchasers of land Mst. Sardar Bibi and Muhammad Hussain produced any document showing that the house of Taleh Bibi was burnt, she got married her grand-daughters and she performed Hajj, which are the legal necessities as claimed by Taleh Bibi and the subsequent purchasers of land. The sale deed in favour of Sardar Bibi and Muhammad Hussain is Exh.D-1. In sale deed Mst. Taleh Bibi has not mentioned that she is selling the property for fulfilment of her legal necessities as she claimed in her statement. Surprisingly when she executed a sale deed Exh. D-2, of land measuring 7 kanals 2 marlas in favour of the Central Government Employees House Building Cooperative Societies, she has claimed as under:
12. This shows that while selling the land to Central Government Employees House Building Cooperatives Societies, she is claiming that she is selling her property for purchasing other land but nothing has been produced on record which show that Mst. Taleh Bibi has sold any portion of property for fulfilment of her legal necessities or purchased any other land. In case Sardar Bibi and Muhammad Hussain succeed to prove that they have purchased the land against consideration of Rs.18,000 even then they cannot claim any encumbrance against the property, subject matter of sale deed against the rights of sons of Manda. The limited ownership was terminated by Act (V) of 1962 and after the termination of limited ownership the property reverted back to the legal heirs of deceased Manda less the share of Taleh Bibi which she has inherited under Islamic law of inheritance. Sardar Bibi and Muhammad Hussain may claim their charge against the share of Taleh bibi but not against the respondents who are the real sons of deceased Manda. So in view of the above discussion, the logical conclusion is that Mst. Taleh Bibi become the owner of land left by the deceased Manda as limited owner. She cannot alienate her property before the termination of limited estate under the law but for some legal necessity. A The legal necessities which she explained have not been proved. Even none of the grand daughters has been produced in evidence who can confirm that her grand-mother has incurred expenses in connection with her marriage or gave Nanki Shak to her. Had the Taleh Bibi been absolute owner, legally no restriction or condition can be imposed against the absolute owner of the land but as discussed above it is B proved from the own evidence of Taleh Bibi that she was not the absolute owner of land subject matter of mutation No,181, she was proved to be a limited owner according to the custom of Rajput tribe and the land was transferred in her name being issue less widow for her maintenance in the absence of her husband. Mst. Taleh Bibi has failed to prove that she was absolute owner of the land, mutation No,181 has been proved to be a mutation of limited ownership and as such the transaction in favour of Sardar Bibi and Muhammad Hussain through a registered sale deed is not in accordance with law and confers no right in favour of the two purchasers in spite of the fact that they purchased the same through a registered document.
13. In view of the above discussion, the judgment of two Courts below are in accordance with law, facts and record. Both the Courts below have rightly declared that after the promulgation of West Pakistan Muslim Law (Shariat) Application Act (V) of 962 the property in the name of Taleh Bibi reverted back to the plaintiffs being real sons of Manda and as such the impugned judgments and decree were rightly passed. The revision petition fails and is dismissed with no order as to costs.