' NASIR-UL-MULK, J.---These appeals by leave of the Court are directed against the judgment of the Lahore High Court, dated 13-7-1999, setting aside concurrent findings of the two courts and thereby dismissing the suits of the appellants, one filed by Ibrahim and the other by Muhammad Sharif, claiming the same relief regarding the suit property, transferred by Mst. Aiysha in favour of her brother, Ibrahim, respondent, through a gift deed dated 3-4-1969.
2. Mst. Aiysha, was the widow of Mahand Bakhsh son of Rehmat Khan, who owned agricultural land and died in India before independence. Upon migration to Pakistan, Mst. Aiysha was allotted 48 kanals 18 marlas of land in Tehsil and District Sheikhupura. She subsequently transferred the property in favour of her brother. The appellants, Faqir Hussain and Muhammad Sharif, filed separate suits in the year, 1979 assailing the gift on the ground that Mst. Aiysha was a limited owner and upon enforcement of the Muslim Personal Law (Shariat) Application Act, V of 1962, her limited ownership came to an end on 31-12-1962 and was thus entitled to only 1/4th share in the estate of her husband, whereas the remaining 3/4 would devolve around the plaintiffs, being the collateral of Mahand Bakhsh. Mst. Aiysha, who was then alive, claimed in her statement that she was full owner of the suit property, allotted to her in lieu of her own property abandoned in India. The defendants also raised the issue of time limitation. The two suits were consolidated and after recording evidence, the Court found that Mahand Bakhsh was governed by custom and that Mst.
Aiysha, being a limited owner could only alienate her 1/4th share in the property by way of gift. That alienation of the remaining 3/4 was illegal and thus invalid. On the question of limitation, the Court held that the cause of action arose to the plaintiffs on 30-10-1969, the date on which the gift was made by Mst. Aiysha and thus, their suits, filed within 12 years in the year, 1979, were within time.
Resultantly, the suits of the plaintiffs were decreed as prayed for. The Appellate Court upheld the judgment of the Trial Court. The High Court, however, reversed the judgments and decrees of the two Courts and dismissed the suits on the ground of time limitation only, in view of provisions of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975)
(hereinafter referred to as 'the Act').
3. Leave to appeal was granted to the appellants on 10th February, 2003, to consider "whether the petitioners could be non- suited on the ground of limitation when the cause of action accrued to them on the making of gift of the disputed property in the year 1969, particularly so when they were co-owners of the property after the termination of the limited estate".
4. In order to appreciate the merits of the arguments of the learned counsel for the parties, it is necessary to refer to the provisions of the Act and the background in which the same was enacted.
It relates to the interests of Muslim widows in the properties allotted to them in Pakistan upon their migration, in lieu of the properties abandoned in India. The allotments were made to such female refugees as full owners. The question as to whether they were to be treated as full or limited owners under custom came under judicial scrutiny. Two judgments of the Lahore High Court, "Sher Muhammad v. Additional Rehabilitation Commissioner (PLD 1968 Lahore 234)" and "Babu Ali Muhammad v Mahmood-ul-Hassan (PLD 1968 Lahore 329)" declared that the allotments to such females were as full owners. This Court in the case of "Additional Settlement Commissioner (Land)
Sargodha v. Muhammad Shafi and others (PLD 1971 SC 791)" overruled the said judgments, holding that a female refugee from India, who had limited interest in the estate of her husband, cannot become full owner of the evacuee property allotted to her in lieu thereof. That in accordance with the provisions of the Muslim Personal Law (Shariat) Application Act, V of 1962, such property was to devolve upon the persons entitled to inherit from the last male owner on the respective dates of termination of the limited interest of the female allottee. Pursuant to this declaration, the Act was enacted with express reference to the said judgment. It reads:- "(2) Removal of difficulties. Notwithstanding anything to the contrary contained in any other law for the time being in force, all decrees, judgments or. Orders passed in any suit, appeal or other proceedings by any court or other authority treating a refugee female allottee as full owner of the property allotted to her in lieu of the property abandoned by her in India or to which she otherwise entitled, as a limited owner, shall be of no legal effect and such suit, appeal or other proceedings shall, on an application made by an affected person within year of the commencement of this Act, be decided afresh.
(3) Permission to file fresh suits, etc.--Any person aggrieved by an alienation or an order of succession with regard to any property allotted to a refuge female in lieu of the property abandoned by her in India or to which she was otherwise entitled as a limited owner under custom, and who could not challenge such alienation or succession, may call it in question in a court or before any other authority within one year of the commencement of this Act.
(4) Bar to claim adverse possession--Any person who claims to have acquired any right or interest in property whether by alienation, succession or otherwise, originally allotted to a refugee female limited owner, shall have no right to plead adverse possession against any lawful heir of the last male holder."
' The High Court had dismissed the suits of the plaintiffs under section 3 of the Act, holding that the suits were to be brought within one year of the enactment whereas they were filed four years later in the year, 1975. Reliance was placed upon the judgment, of this Court in "Hashmat Ali v Mst.
Jantan (1993 SCMR 950)". The Court additionally held that since the cause of action arose to the plaintiffs in the year, 1962 upon enactment of the Muslim Personal Law (Shariat) Application Act, V of 1962, the suits, filed more than twelve years later in the year 1979, were barred by time.
5. Ch. Mushtaq Ahmed Khan, learned Sr. Advocate Supreme Court, appearing on behalf of the appellants, contended that the plaintiffs' suits were not barred by time under the general Law of Limitation, as it raised question of inheritance and Mst. Aiysha had held the property as co-sharer.
The learned counsel argued that the Act did not override the general principles relating to time limitation. In further support of his contention, he referred to section 4 of the Act and pointed out that the fact that no adverse possession can be claimed by anyone acquiring any interest in the property allotted to a female refugee against the legal heirs of the last male owner.
6. In response to the above contentions, the learned counsel representing the respondents, referred to the judgment of "Hashmat Ali v. Mst. Jantan" (ibid) and argued that the Act, being a special law fixing time limitation, overrides the general law of limitation. The learned counsel maintained that the suits filed by the respondents were barred under section 3 of the Act. That whereas section 2 is applicable to those aggrieved persons who had lost a legal battle questioning the allotment of land as full owners to the muslim female refugees, section 3 is attracted to all other cases where the aggrieved persons had, for whatever reasons, not filed a suit. That as the suits were not filed within a year of the enactment of the Act, the High Court rightly dismissed the suits as time barred.
7. The suits of the present appellants were dismissed by the High Court essentially on the ground that the same were barred by time under section 3 of the Act for not having been filed within one year of the date of its enactment. The Act, as earlier observed, was enacted pursuant to the judgment of this Court in the case of Muhammad Shafi (ibid). This Court had, for the first time, declared and clarified that a female widow refugee from India had limited interest in the evacuee property allotted to her in lieu of the estate of her husband in India. The Act did nothing more than to give time to those who would benefit from this declaration, being legal heirs of the last male owner. The Act divided the cases into two categories. The first mentioned in section 2 are those persons, who had through legal recourse claimed their share in the property of the last male owner but failed, perhaps, on account of the law declared by the Courts prior to the judgment in Muhammad Shafi's case. Since the earlier view was reversed in Muhammad Shafi's case, further period of one year was provided to the aggrieved persons to move application to have their suits or appeals decided afresh. The second category was of those persons who were aggrieved by any alienation or order of succession made on the basis of female refugee being a full owner, but could not challenge such alienation or succession. They were also given one year to assail the same through legal process. The case before us falls in the second category as the appellants had filed their suits for the first and the only time in the year, 1979.
8. The question that calls for determination is whether a suit by an aggrieved person falling in the second category is to be filed within one year of the Act or the said period is Only an extension of the period of limitation already provided under the general law. The High Court had primarily relied upon the judgment of this Court in case of "Hashmat Ali v. Mst. Jantan" (ibid) where it was declared that the Act, being a special enactment would apply to the suits filed under the Act and not the general law of limitation. Upon perusal of the said judgment, we have noted that the case before the Court fell in the first category as one of the suits filed by the legal heirs of the last male owner against the allottee female widow was first filed in the year, 1971. It was withdrawn with permission to file a fresh one, re- filed in the year, 1979. The suit was dismissed by the Appellate Court as barred by time under the Act, holding that it was not filed within one year of 31-3-1975. The High Court upheld the order. This Court, reversed these findings and remanded the case to the Trial Court for decision on merits, holding that the suit of 1979 was continuation of the first suit of 1971, therefore, was not hit by the one year limitation provided by the Act.. Referring to the second category of the cases, the Court took specific note of the use of the word "could" and observed that the legislature had, on the purpose, used the said words instead of "did".
9. Hashmat Ali's case had its own distinct features, materially different from those of the case before us. Firstly, that the plaintiffs fell in the first category mentioned in section 2 of the Act.
Secondly, the Court agreed with the view of the Trial Court that the suit filed in 1979 was continuation of the earlier suit file4 by the plaintiffs dismissed as withdrawn in the year, 1971 with permission to, file a fresh one. That consequently, the Appellate Court had erroneously dismissed the plaintiffs' suits on the ground that it was not filed within one year of the enactment of the Act.
Finally, the Court was not confronted with the question whether the periods mentioned in section 2 or section 3 of the Act curtailed the period of limitation otherwise available to the plaintiffs under the general law. On the contrary, in para 9 of the judgment, with reference to the case of "Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1)", the Court observed that upon the enforcement of Muslim Personal Law (Shariat) Application Act of 1962, the life-estate of the respondent, Mst.
Jantan, Indian refugee widow, terminated and that the plaintiffs became co-owners and co- sharers with the respondent to the extent of 3/4 shares; that her possession of the suit property was to be considered as possession on behalf of all the co-sharers.
10. The preamble of 'the Act' expressly declares that it is enacted-to give effect to the judgment in Muhammad Shafi's case. The preamble reads:-- "Preamble-Whereas refugee females who wee limited owners under custom were allotted evacuee property in the Punjab and such allottees were erroneously treated as full owners of the property allotted to them; ' AND whereas the Supreme Court of Pakistan has held that such allottees are limited owners under custom; and whereas it is expedient to extend the benefit of the said decision of the Supreme Court of Pakistan to the persons aggrieved by the said erroneous view;"
The express intent of the legislature was to extend the rule in Muhammad Shaft's case to the persons who would benefit from the principle laid down in the case. This was done in two ways.
Those who had questioned the full ownership of the refugee female of the allotted evacuee property and had lost the legal battle, were held entitled to move an application to the relevant Court within one year to have the case decided afresh (section 2). Whereas those who had not approached the Court at all, were also provided a remedy by taking a legal recourse again within one year of the commencement of the Act. For the proper interpretation of both those sections, they are to be read in the light of the preamble and accordingly, the principle in Muhammad Shaft's case. The declared in the preamble shows that it is beneficial legislation for the benefit of the aggrieved persons mentioned in the preamble and the main body of the Act. The appellants, undoubtedly, would fall within the definition of such aggrieved persons. Being beneficial in nature, the Act it can add to, and not subtract from, the rights conferred upon the 'aggrieved persons' by the general law. To hold that the plaintiffs' suit was barred, by time as it was not instituted within one year of the commencement of the Act, though within the period prescribed by the general law of limitation, would defeat the very object of the Act and violative of the principle in Muhammad Shafi's case. It is significant that whereas section 2 of the Act opens with the non obstante the same have been omitted from section 3. The intention of the legislature thus appears to be not to exclude in the later case the general law of limitation if a suit is filed within the period of limitation prescribed under the Limitation Act. Therefore, the only reasonable interpretation that can be placed upon section 3 of the Act is that it extends the period prescribed under the general law.
Thus, where the period of limitation had already expired at the commencement of the Act, the aggrieved person was granted another year to seek redressal of his grievance. The High Court had thus, erred in law by holding that the appellants' suit was barred by time as it was not filed within one year of the commencement of the Act.
The appellants had in their respective suits mentioned 7th April, 1969, the date of attestation of mutation by Mst. Aiysha in favour of her brother, Ibrhaim, as the date on which the cause of action arose to them. Whereas, the Trial Court reckoned the said date for the purpose of F running of time limitation, the High Court, in addition to the interpretation placed upon it on section 3 of the Act, held that the time started running against the appellants on 1-1-1953 when Mst. Aiysha's limited ownership was terminated by virtue of the West Pakistan Muslim Personal Law (Shariat Application)
Act, 1962. In view of the observations made by this Court in Hashtnat Ali v. Mst. Jantan, mentioned above, Mst. Aiysha held the property since 31-12-1962 as co-owner and co-sharer of the appellants.
The alienation of the property by the gift deed gave cause of action to the appellants. They questioned the gift within 12 years. Even otherwise, Section 4 of the Act does not entitle the transfree of property falling under the Act, to setup a plea of adverse possession.
' For the reasons aforementioned, we allow these appeals, set aside the impugned judgment and decree and restore those of the Trial Court. The parties are left to bear their own costs.