M. Javed Buttar, J.--This appeal, by leave, is directed against judgment dated 3.4.2000 passed by an Hon. Judge in Chambers of Lahore High Court, Multan Bench, whereby RSA No, 39 of 1990 instituted by Respondent No, 1/plaintiff Muhammad Hanif was allowed, the judgment and decree dated 14.5.1990 passed by Hon. Additional District Judge, Pakpattan was set aside and the judgment and decree dated 13.2.1988 passed by Hon. Civil Judge, 1st Class, Pakpattan, District Sahiwal was restored.
2. The relevant facts are that on 21.10.1979 the Respondent No, 1 Muhammad Hanif instituted a suit against the appellants and Respondents No, 2 and 3 alleging that Gamun son of Hussain was his father. His mother died when he was one year of age and his father married Mst. Soman, his step- mother. His father died seven years before independence of the Country without having any issue from Mst. Soman leaving behind some land in village Vahani, Tehsil Gohana, District Rohtak and at the time of partition he and Mst. Soman came to Pakistan. It was further alleged that on the death of the last male owner Gamun, half of his said land was mutated in favour of the plaintiff while the remaining half was mutated in favour of his step-mother Mst. Soman as a limited owner. After coming to Pakistan they filed claims as a result whereof against the half share mutated in his favour, land was allotted to him in village Shafi while the suit-land was allotted to Mst. Soman in village Nanak Pur. It was also averred in the plaint that Atta Muhammad, the predecessor-in- interest of the appellants got a sale-deed executed and registered in his favour on 25.9.1963 from the said Mst. Soman. The plaintiff challenged not only the genuineness of the said sale-deed but also the fact that Mst. Soman being merely a limited owner was not entitled to sell away the entire land. It was further narrated that both Mst. Soman and the said transferee Atta Muhammad died in June, 1979 and when he made an attempt for getting the mutation of inheritance attested in his favour, he acquired the knowledge of the said registered sale-deed. Accordingly, he prayed that the said sale-deed be declared to be illegal and void. Respondents No, 2 and 3 i,e, daughter of Mst.
Soman conceded the suit. However, the appellants contested the same by filing a written statement objecting that the suit was time barred and that Mst. Soman was the full owner of the suit property. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit of Respondent No, 1 vide judgment and decree dated 13.2.1988. Hon. Additional District Judge, Pakpattan vide his judgment and decree dated 14.5.1990 allowed the appeal filed by the appellants and dismissed the suit of Respondent No, 1 and as mentioned above, an Hon. Judge in Chambers of Lahore High Court, Multan Bench vide impugned judgment allowed the second appeal of Respondent No, 1/plaintiff and restored the judgment and decree passed by the learned trial Court.
3. On the basis of the evidence available on record and while discussing the same, the Hon. Judge of the High Court held that the plaintiff-Muhammad Hanif was son of Gamun while Mst. Soman was his widow and in possession and the documentary evidence proved that Mst. Soman was not full owner of the suit-land but was merely a limited owner and that the suit-land originally belonged to Gamun and upon opening of succession by termination of her limited estate after adjusting her 1/8th share, the balance 7/8th share of the entire land vested in the plaintiff/Respondent No, 1 and that the sale in excess of her 1/8th share was void. As to the objection of the appellants in regard to the issue of limitation, it was held that Punjab Limitation (Custom) Act, 1920 was repealed by West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the alienation in question was admittedly made on 25.9.1963 i,e, long after the repeal of the said Punjab Limitation (Custom) Act, 1920, therefore the period of limitation provided in the said Act was not applicable. As regards the objection that the suit was beyond time prescribed in the Punjab Muslim Personal Law (Removal of Difficulties) Act, 1975, it was held as under : This argument is baseless. It is the case of the appellant that he acquired knowledge of the sale after the death of both parties to the transaction i,e, Mst. Soman as well as Atta Muhammad in June, 1979. This later fact stands proved from the death entries Ex. P.5 and P. 6 which show that both Atta Muhammad and his sister Mst. Soman died on 4.6.1979. Thus the suit filed on 21.10.1979 is well within time".
4. We have heard the learned counsel for the appellants, the Respondent No, 1 and have also seen the available record with their able assistance. The other respondents are proceeded ex-parte. The learned counsel for the appellants has raised the issue of limitation only. It has been contended that the alienation of the suit land was effected on 25.9.1963 in favour of Atta Muhammad (deceased), the predecessor-in-interest of the appellants, whereas the suit was filed on 21-10- 1979, which was clearly barred by limitation in view of Section 3 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act XXV of 1975 and that the learned Judge in Chambers of Lahore High Court erred in holding that the general Law of Limitation would apply. He has placed reliance upon Hashmat Ali and another vs. Mst. Jantan and six others (1993 SCMR 812) and Mst. Salma vs. Mst. Jan and another (PLD 1987 Lahore 553).
5. Learned counsel for Respondent No, 1, on the other hand has supported the judgment of the learned Single Judge of the High Court and submitted that. Punjab Limitation (Customs) Act, 1920 was,repealed by West Pakistan Muslim Personal Law (Shariat) Application, 1962, consequently the limited ownership of Mst. Soman was terminated on enforcement of Act, 1962 whereby the estate in question became open for succession amongst the Shariah heirs of the last full owner, thereby Mst.
Soman, the widow, became the owner to the extent of 1/8th share in the estate left behind by Gamun, hence she could not alienate land in excess of her share i.e 1/8th, therefore, the alienation beyond her share was void and not binding on the respondent/plaintiff.
It has also been submitted that in the matters of succession no period of limitation is involved because on the opening of the inheritance legal heirs automatically become co-owners, whether recorded as such or not and in the present case on the termination of limited estate of Mst. Soman, the Respondent No, 1/plaintiff being the son of the last, male owner namely Gamun shall be deemed to have become the co-owner in the land left by Gamun the moment Gamun died because on the termination of the limited estate of Mst. Soman, the inheritance of Gamun automatically opened from the date of his death. He has also placed his reliance Muhammad Din through L.Rs and 16 others v. Zulfiqar and 2 others (2008 SCMR 1054), Muhammad Zubair and others v. Muhammad Sharif (2005 SCMR 1217) and Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others (2005 SCMR 1447).
6. It is settled law that right of succession cannot be defeated by law of limitation or principle of res-judicata as no law or judgment could over-ride law of Sharia being a superior law. In the case of Muhammad Zubair (supra). It was held as under : "There is no cavil to the proposition of law that on the enforcement of Muslim Personal Law (Shariat) Application Act, 1962 as amended by Act XIII of 1983, the property of last male owner subject-matter of limited interest would be deemed to have devolved upon his legal heirs on his death, and the right of succession would not be defeated by the law of limitation or the principle of res judicata as no law or judgment can override the law of Sharia which is superior law."
Similarly, in the case of Muhammad Iqbal (supra), it was held as under: "This is settled principle of law that the bar of limitation is not applicable to right of inheritance which does not extinguish by afflux of time. The right of inheritance of a female, recognized in Shariah, cannot be denied on the basis of oral assertion of surrender of such right by a female in favour of male member of family and in any case, there is no concept of estoppel to deprive a person from his right in the inheritance in Islam. The respondents have not been successful in showing us that Mst. Allah Wasai had surrendered her right in the property in favour of her brothers in a lawful manner or the suit involving right of inheritance could be dismissed on the ground of estoppel or limitation".
Similar, view has been expressed by this Court in a recent judgment titled: Muhammad Din through L.Rs and 16 others u. Zulfiqar and 2 others (2008 SCMR 1054) and it has been held that in such circumstances no limitation would run against co-owners.
7. In view of the above discussion, it is held that the arguments of the learned counsel for the appellants have no force, the judgments relied upon by him are not applicable and are distinguishable and that a legal heir cannot be deprived of his lawful inheritance on the issue of limitation because he/she becomes a co-owner the moment inheritance opens. We may also mention here, as mentioned in Para: 5 of the impugned judgment (reproduced above) that both Atta Muhammad and his sister Mst. Soman, the step-mother of the plaintiff/Respondent No, 1 died in 1979 and the plaintiff came to know of the impugned sale in favour of Atta Muhammad, the predecessor-in-interest of the appellants thereafter when he attempted for getting the mutation of inheritance attested in his favour and therefore, for this reason also no issue of limitation as argued by the learned counsel for the appellants can be said to be involved in the present case because the suit was instituted on 21.10.1979.
8. It may further be mentioned that on 6.1.2009 after having heard the learned counsel for the parties, we had announced that we do not agree with the submissions made by the learned counsel for the appellants on merits but we had partially allowed the appeal because in our view the deceased widow Mst. Soman was entitled to 1/4th share in the land left by Gamun and not 1/8th share as held in Para: 3 of the impugned judgment.
9. However, while writing the judgment the matter became doubtful viz: the share of widow Mst.
Soman. We accordingly ordered rehearing of the appeal on this limited issue, Today we have again heard the learned counsel for the appellants on the issue of share of Mst. Soman inherited by her in the land left by Gamun. We are convinced that learned High Court had correctly determined the share of widow Mst. Soman as 1/8th because Gamun was not issueless.
In view of the above mentioned, we find no merit in this appeal which is dismissed leaving the parties to bear their own costs.